FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration and Border Protection [2015] FCA 1059

THE COURT ORDERS THAT:

1.    The name of the Second Respondent is changed to “Administrative Appeals Tribunal”.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    This case concerns the consequences attaching to a decision to revoke the earlier cancellation of a student visa by reason of the student not having complied with a condition of the visa.

2    The Appellant in the present case, Mr Ahmed, had a Student (Temporary) (Class TU, sublcass 573). He received notification that his visa had been cancelled because his education provider had certified that he had not achieved a satisfactory course attendance. That cancellation was subsequently revoked in February 2013, on the basis that his non-attendance was due to exceptional circumstances beyond his control.

3    He was then advised that he could attend at an office of the then Department of Immigration and Citizenship to apply for a new visa. This he did. But in June 2013 a delegate of the Minister refused to grant him a new student visa. The delegate concluded that the certification by the education provider that there had not been satisfactory course attendance precluded the grant of a new visa. There was no room to consider, so the delegate reasoned, whether there had been “substantial compliance” with the requirement. The Migration Review Tribunal (the “Tribunal”) affirmed the delegate’s decision in February 2014. The Tribunal similarly concluded that it had no discretion to take into account the reasons why the now-Appellant failed to comply with the requirement of satisfactory course attendance.

4    In May 2015 the Federal Circuit Court of Australia dismissed an application seeking judicial review of the Tribunal’s decision: Ahmed v Minister for Immigration & Anor [2015] FCCA 1341. Mr Ahmed now appeals to this Court.

5    The appeal is to be dismissed with costs.

The legislative regime

6    The morass of regulatory detail surrounding the grant of different classes of visas and the conditions attaching to different visas is almost impenetrable. The detail relating to the grant of visas and the conditions attaching to different classes of visas is set forth in the Migration Act 1958 (Cth) (the “Migration Act”) and the Migration Regulations 1994 (Cth) (the “Migration Regulations”).

7    Fortunately for present purposes, the relevant provisions were common ground between the parties and are as follows:

    s 29 of the Migration Act provides that the Minister may grant a non-citizen a visa;

    s 31 thereafter provides that there are “prescribed classes” of visas and that the Migration Regulations may prescribe criteria for specified classes of visas; and

    s 41 further provides that the Migration Regulations may specify that certain classes of visas may be subject to specified conditions.

8    For present purposes, reg 2.01 provides that for the purposes of s 31 of the Migration Act the prescribed classes of visas are those set out in Sch 1 to the Migration Regulations. Among the classes of visas set forth in Sch 1 is item 1222 being a Student (Temporary) (Class TU) visa. Regulation 2.02 further provides that the particular subclasses of visas are those set forth in Sch 2 to the Migration Regulations.

9    Schedule 2 to the Migration Regulations relevantly provides in cl 573 that an applicant for a visa must have “complied substantially” with the conditions attaching to a prior visa. Clause 573.235 is expressed as follows:

If the application was made in Australia, 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.

The conditions which have relevantly been specified as those to which a student visa is subject include condition 8202 of Sch 8 to the Migration Regulations. That condition provides in relevant part as follows:

8202

(1)    The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2)    A holder meets the requirements of this subclause if:

(a)    the holder is enrolled in a registered course; or

(b)    in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student—the holder is enrolled in a full-time course of study or training.

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

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

(ii)    standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

Section 19 of the Education Services for Overseas Students Act 2000 (Cth) provides (inter alia) for the Secretary to be notified of any breach of any prescribed condition of a student visa. Section 20 provides for the giving of notice to a student of any breach of a prescribed condition. Condition 8202, it should be noted, has undergone numerous amendments since the commencement of the Migration Regulations.

10    In addition to these regulatory provisions is Subdiv GB of Div 3 to Pt 2 of the Migration Act. Within that Subdivision are ss 137J to 137P. Section 137J provides for the automatic cancellation of a student visa where a notice has been sent under s 20 of the Education Services for Overseas Students Act 2000 (Cth). But s 137K provides for an application to be made for “revocation of cancellation”. That section provides, in part, as follows:

Applying for revocation of cancellation

(1)    A non-citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.

(2)    A non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.

(3)    In addition to the restriction in subsection (2), a non-citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than:

(a)    2 working days after the day on which section 194 was complied with in relation to his or her detention; or

(b)    if he or she informs an officer in writing within those 2 days of his or her intention to so apply—within the next 5 working days after those 2 working days.

(4)    A non-citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation.

(5)    In any case, a non-citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.

Section 137P provides for the “effect” of revocation. That section provides as follows:

Effect of revocation

(1)    If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J.

(2)    If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116.

(3)    However, a revocation under section 137L or 137N does not otherwise limit or affect any other power to cancel the visa under this Act.

(4)    In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under section 116.

(5)    Despite subsection (1), any detention of the non-citizen that occurred during any part of the period:

(a)    beginning when the visa was cancelled under section 137J; and

(b)    ending at the time of the revocation of the cancellation;

is lawful and the non-citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

Past unsatisfactory attendance and a new application?

11    But for the revocation pursuant to s 137L of the Migration Act of the automatic cancellation of Mr Ahmed’s student visa pursuant to s 137J of the Migration Act, it was common ground that Mr Ahmed could not fall within cl 573.235. But for the revocation pursuant to s 137L, Mr Ahmed was not a person who had “complied substantially” with the conditions to which his student visa was subject.

12    Condition 8202, it has been held, is a provision which does not permit of “substantial compliance”: Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167, (2006) 156 FCR 199. The condition there in issue was condition 8202(3)(d), a condition directed to satisfactory course progress. That condition provided for certification by an education provider. Heerey and Sundberg JJ there concluded:

[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 a specified kind. Either that condition is satisfied or it is not.

[13]    An analogy is provided by Hunter Resources Ltd v Melville (1988) 164 CLR 234. Mining regulations required tenements, the subject of applications, to be marked out by pegs at intervals not exceeding 300 m. The High Court held that a mining warden had correctly refused an application where the intervals in three places exceeded 300 m by between 1 and 3 m. Dawson J said at 249:

… this is a case, in my view, in which substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not … I am unable to understand how it can be said that to exceed the maximum limit was substantially to comply with it.

In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [92] McHugh, Gummow, Kirby and Hayne JJ, notwithstanding their abandonment of the traditional mandatory/directory distinction, cited the above statement with approval.

[14]    Turning to condition 8202(3), we note first that counsel accepted that the four paragraphs of the condition are cumulative; there would not be substantial compliance if an applicant satisfied three paragraphs.

[15]    The substantial compliance requirement might, as counsel’s argument suggests, be apt in the case of para (c) where the condition is expressed in terms of the decision-maker being satisfied of a particular percentage of contact hours. However, in the present case it is not suggested there was any certificate at all. There was thus no compliance, let alone substantial compliance. Still less could reasons or explanations for non-compliance amount to compliance, substantial or otherwise.

[16]    There is an obvious policy behind the way the condition is framed. Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision-maker or the Tribunal, who are less well fitted to make such judgments: Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 at [4].

At that time condition 8202(3)(d) was expressed in terms different to those now in issue: condition 8202(3)(d) in Jayasakera required a student to achieve “an academic result that is certified by the education provider to be at least satisfactory”; the condition now in issue is expressed in terms of the education provider certifying the student “as not achieving satisfactory course progress…” and/or “attendance”.

13    For the purposes of the application of cl 573.235 there is no relevant difference between conditions 8202(3)(a) or (b), as they are now expressed, and condition 8203(3)(d), as it was considered in Jayasekara.

14    On the facts of the present case, the education provider had certified that Mr Ahmed had not achieved a satisfactory course attendance. The cancellation of his visa was “automatic”; the cancellation was effected “by force of” s 137J. And cl 573.235 required compliance with each of the conditions to which a visa is subject: cf. Montero v Minister for Immigration and Border Protection [2014] FCAFC 170 at [27] to [32], (2014) 229 FCR 144 at 149 to 150 per Flick J (Allsop CJ and Logan J agreeing).

15    But the fact that the cancellation of his visa had been revoked pursuant to s 137L had the consequence, Counsel for Mr Ahmed contended, that the Appellant satisfied the requirements of cl 573.235 and that the decision of Heerey and Sundberg JJ in Jayasekara should be distinguished. The manner in which Mr Ahmed was said to have complied with clause 573.235 was essentially advanced in a number of ways, namely:

    the revocation of the cancellation decision had the consequence that the continuing effect of any prior failure to satisfy course attendance requirements was “spent”;

    the consequence of the decision to revoke the cancellation decision was such that Mr Ahmed should be deemed to have “substantially complied” with the conditions of his student visa; and/or

    clause 573.235 should be construed as subject to a necessary implication that permitted students who had successfully invoked s 137L to now satisfy the requirements of that clause.

These may not be the only ways in which the proposition was sought to be advanced.

16    However the proposition is expressed, it is rejected. Section 137P, it is respectfully concluded, provides for the “effect of revocation”. That “effect” is that “the visa is taken never to have been cancelled under section 137J”. But that is the only “effect” that flows from the revocation of the automatic cancellation of a visa pursuant to s 137J. Section 137P does not provide that a further “effect” of the revocation of a cancellation decision is that a student who has failed satisfactorily to attend a course is (for example) “taken” to have complied with that condition.

17    There is, with respect, no reason to construe cl 573.235 in any manner other than according to the natural and ordinary meaning that the words convey. Section 139P does not change the manner in which that clause is to be construed. And there is no reason to construe that clause as subject to some implication of further unspecified words qualifying the natural and ordinary meaning of the words employed. Nor is there any statutory or regulatory mandate to deem a student who has not satisfactorily attended a course to have done so.

18    The fall-back position for the Appellant was to contend that cl 573.235 is invalid by reason of inconsistency with the legislative objective to be discerned from s 137P or invalid by reason of some “unfairness” in its operation.

19    The potential for an “unfair” or “harsh” application of cl 573.235 may be acknowledged. Indeed, it was the potential for an unfair result which drove Finkelstein J in Jayasekara to conclude that such a result could not have been intended. His Honour there concluded:

[23]    When one examines sub-condition 8202(3)(d) it is apparent, at least it is apparent to me, that the principal part of the condition is that the visa applicant has achieved a satisfactory academic result in the course he is undertaking. The provision of the certificate is the means by which this is established. It is therefore a subsidiary part of the condition. This suggests that the failure to provide the certificate should not be fatal to the visa applicant provided he is able to show by some other means that he has achieved a satisfactory academic result as assessed by the education provider.

[24]    One is driven to this conclusion if one pauses to consider the consequences of holding that the failure to produce a certificate obliges the Minister to refuse to grant the visa. Let it be assumed that a visa applicant is able to satisfy paras (a), (b) and (c) of condition 8202(3). Let it also be assumed that the applicant is one of the top students in his course, achieving results that far exceed satisfactory. Finally, let it be assumed that the visa applicant is unable to obtain a certificate that certifies his excellent academic record. There may be several reasons for the inability to produce a certificate, none of them altogether fanciful. For example, the institution in which the visa applicant was enrolled may no longer exist. Another possibility is that the school records have been destroyed. Or it may simply be that for no good reason the institution refuses to supply the certificate when needed.

[25]    In my opinion it is simply not possible to attribute to the author of condition 8202 the intention that the failure to provide a certificate is fatal to the visa applicant’s claim. Subject to one qualification, all that is necessary to comply with the condition is for the visa applicant to show that his academic results are satisfactory. In the absence of a certificate this could be done, for example, by the production of an academic transcript. If the transcript is not available a written statement from the teacher might do. No doubt there are other means of establishing that the visa applicant has reached the appropriate standard: (2006) 156 FCR at 203 to 204.

In refusing an application for special leave, Kirby J observed:

The applicant sought judicial review from the Federal Court of Australia. A Full Court heard the application. By majority (Justices Heerey and Sundberg with Justice Finkelstein dissenting) the Full Court dismissed the application. The applicant now seeks special leave to appeal to this Court, substantially relying on the reasoning of the dissenting judge. In his reasons, Justice Finkelstein is critical of the reasoning that appealed to the majority, in effect, that the relevant provision of the Migration Regulations posited the existence of an essential factum, namely, the certificate from the education provider. His Honour asked how that could be so if the education provider no longer existed or if its records had been destroyed.

As a point of construction, there may be merit in Justice Finkelstein’s point. However, the present is not the case in which this Court would plumb its depths. The applicant’s case is not one falling within Justice Finkelstein’s posited class, effectively one of the impossibility of the application of the regulations to the case. If such a case arises that will be time for this Court to become involved. Meantime, the construction adopted by the majority of the Full Court must be upheld. It is for the education provider, rather than for the decision-maker or the Tribunal, to decide whether satisfactory progress has been made by the student visa holder: Jayasekara v Minister for Immigration and Multicultural Affairs [2007] HCATrans 163.

See also: Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007 at [17].

20    Neither the statutory wording of cl 573.235, nor condition 8202(3), is invalid: Mohammed v Minister for Immigration and Border Protection [2015] FCA 1060 at [16]. Other than the decision of Gyles J in Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 at [37], (2007) 165 FCR 458 at 468, no decision of a Full Court of this Court has concluded that condition 8202 is void or invalid, and other decisions of this Court have proceeded only upon the basis that the condition is a condition which may lawfully be imposed: [2015] FCA 1060 at [16].

21    On the facts of the present case it may be noted that Mr Ahmed in fact completed the course in which he was enrolled. There is, moreover, some disharmony in the application of the regulatory regime to the facts. The course for which Mr Ahmed was enrolled at the relevant time was a course commencing on 3 September 2012 and finishing on 17 February 2013. The certification provided by the education provider as to Mr Ahmed’s failure to achieve satisfactory course attendance was provided on 20 December 2012. But the decision revoking the automatic cancellation of his visa was not made until 4 February 2013. But no submission was made that anything turned on those facts. And it was also common ground that Mr Ahmed had in fact proceeded to complete his academic course – albeit, it would seem, on a bridging visa and not a student visa.

CONCLUSIONS

22    The Tribunal was correct to conclude that it had no discretion to consider the reasons for non-attendance.

23    Neither the fact that the cancellation of Mr Ahmed’s student visa was subsequently revoked nor the letter inviting Mr Ahmed to attend and apply for a new student visa detracts from or otherwise qualifies the necessity to comply with the requirements of the Migration Regulations.

24    As the facts unfolded, Mr Ahmed has suffered no substantial unfairness. The potential for cl 573.235 to operate harshly or unfairly in different factual circumstances should be left open for resolution on another occasion.

25    The proceeding is to be dismissed.

26    There is no reason to depart from the general principle that costs should follow the event. The Appellant is to pay the costs of the First Respondent.

27    The name of the Second Respondent should be changed from that nominated in the Notice of Appeal from the “Migration Review Tribunal” to the “Administrative Appeals Tribunal”. The Tribunals Amalgamation Act 2015 (Cth) (the “2015 Act”) amalgamated the former Migration Review Tribunal, and other Tribunals, under the auspices of the Administrative Appeals Tribunal. The 2015 Act came into operation on 1 July 2015.

THE ORDERS OF THE COURT ARE:

1.    The name of the Second Respondent is changed to “Administrative Appeals Tribunal”.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

Associate:    

Dated:    1 October 2015