FEDERAL COURT OF AUSTRALIA

Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007

THE COURT ORDERS THAT:

1.    The title for the first respondent is changed to Minister for Immigration, Multicultural Affairs and Citizenship.

2.    The appeal is dismissed.

3.    The appellant to pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        Before the Court is an appeal from orders of the Federal Circuit Court (formerly the Federal Magistrates Court) made on 30 November 2012, dismissing the appellant’s application for review of a decision of the Migration Review Tribunal.

2        On 1 May 2012, the Tribunal affirmed the decision of the delegate of the Minister for Immigration, Multicultural Affairs and Citizenship, not to grant the appellant, her husband and two children Student (Temporary) (Class TU) visas.

3        The visas were refused because it was a condition of the grant of that visa under cl 572.235 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) that:

…the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant and to any subsequent bridging visa.

4        The last substantive visa held by the appellant was a Vocational, Education and Training Sector visa. Relevant to this appeal was a condition of that visa which is set out in cl 8202(3)(a) of Schedule 8 of the Regulations as follows:

(3)    A holder meets the requirements of this subclause if neither of the following applies:

(a)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

(i)    section 19 of the Education Services for Overseas Students Act 2000; and

(ii)     standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

(b)    [a condition not applicable in this appeal]

5        On 4 August 2009, the appellant’s then education provider TrainEdge Pty Ltd (TrainEdge) certified that:

Mrs Marie Georgina CASSE, for course Certificate III in Hairdressing (WRH30106), as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).

6        The central question in this appeal was whether the Tribunal was required to go behind the certificate in order to determine whether the appellant had substantially complied with the conditions that applied to her previous visa.

7        At the hearing of the appeal, the appellant was not legally represented. Mr W Morgan, a lecturer at a university sought leave to appear as an advocate on behalf of the appellant and leave was granted. Mr Morgan related factual issues with respect to the Tribunal hearing. It was explained that the Court had a limited role on the appeal and that the Court could not revisit the fact findings made by the Tribunal.

8        The essence of the appellant’s case before the Tribunal was that the certificate was not justified because, in fact, she was doing well in her course. Further, the appellant said that the certificate was issued by the education provider as a vindictive act against her for failing to comply with some of the demands which she regarded as unreasonable. For instance, she objected to working in a hairdressing salon owned by a director of TrainEdge on Saturday mornings for family reasons. She also claimed that she was asked to sign a blank form by the education provider and refused to do so.

9        The Tribunal determined that the certificate was conclusive and that the circumstances which gave rise to it were not matters which it could take into account. The Tribunal said at [39]:

The Tribunal finds that the applicant’s education provider has certified the applicant as not achieving satisfactory course progress for the purposes of Condition 8202(3)(a). While the Tribunal has sympathy for the applicants and accepts that they are in possession of a letter dated 25 May 2009 (not 3 August as asserted by the applicant’s representative at the hearing) which states that, at that time, she was “progressing with the course and is on track to complete her course on time”, as noted above, this aspect of Condition 8202 is one to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not. As there is a relevant certificate before the Tribunal from the education provider for the purposes of Condition 8202(3) the Tribunal finds that there is no compliance with Condition 8202(3), let alone substantial compliance.

10        On 28 August 2012, the appellant sought a review of the decision of the Tribunal in the Federal Circuit Court.

11        The Federal Circuit Court rejected the application for review. The Judge held that there was binding authority which obliged the Tribunal to accept the certificate on its face. The Court relied particularly on the majority judgment in Jayasekara v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 199 (Jayasekara) and the more recent judgments in Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384; [2012] FCA 958 (Patel) and Hassan v Minister for Immigration and Citizenship [2012] FCA 816 (Hassan).

12        In Jayasekara, Heerey and Sundberg JJ considered a previous version of condition 8202(3). The previous version is not relevantly different. Their Honours said at [12]:

Since the regulations include some conditions to which the concept of substantial compliance can have no logical application, the regulations are to be read as not admitting any qualification of substantial compliance in such cases. For example, in the present case the visa applicant must be the holder of an existing visa of the specified kind. Either that condition is satisfied or it is not.

13        The same reasoning was applied in Patel and Hassan.

14        The Federal Circuit Court’s conclusion is supported by the statutory scheme which applies to the certification process.

15        Condition 8202 was amended by the Migration Amendment Regulations 2007 (No. 5) (Cth). The explanatory statement for the amending regulations explained that the amendment aimed to put the assessment of educational progress into the hands of the education provider as follows:

[The] proposed amendment to student visa condition 8202 reflects changes to the Education Services for Overseas Students Act 2000 (the ESOS Act) and the National Code 2007. The changes to the ESOS Act and the National Code 2007 were made after a comprehensive evaluation...The evaluation found that the issue of a student’s course progress and attendance is more appropriately handled by DEST and education providers and that the Department’s role should be limited to migration matters.

This change will mean that the Minister will no longer be required to assess whether a student is meeting their attendance requirements.

If an education provider certifies that a student has not achieved satisfactory course progress or attendance and reports the student, the DIAC delegate will be required to initiate cancellation action of the visa, unless exceptional circumstances can be demonstrated that the visa should not be cancelled. These exceptional circumstances will be outlined in a section 499 direction.

16        When an education provider has come to the view that a student is not achieving satisfactory course progress for the purposes of condition 8202(3), the student must be notified in writing of the education provider’s intention to report the student under standard 10.6 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. The written notice must inform the student that he or she is able to access the registered provider’s complaints and appeals process as per standard 8 and that the student has 20 working days in which to do so. In the present case, the appellant was advised of the alleged breach and of her rights to challenge that allegation. The appellant said she did not take any steps because she was not familiar with this process.

17        The power of the Court is limited once a certificate has been issued. In some circumstances, this may work an injustice. To avoid such a result, s 351 of the Migration Act 1951 (Cth) provides that if the Minister thinks it is in the public interest to do so, the Minister can substitute a more favourable decision in place of an adverse decision of the Tribunal. The appellant may still seek redress using this process.

18        In the result, the certificate from the education provider means that the appellant did not comply with condition 8202(3) in respect of her last visa. It follows that the appeal must be dismissed with costs.

Associate:

Dated:    3 October 2013