FEDERAL COURT OF AUSTRALIA

Tayef v Minister for Immigration and Border Protection [2016] FCA 633

ORDERS

THE COURT ORDERS THAT:

1.    The application for an adjournment is dismissed.

2.    The appeal is dismissed.

3.    No orders as to costs.

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

REASONS FOR JUDGMENT

NORTH J:

Introduction

1    Before the Court is an appeal from orders made by the Federal Circuit Court on 26 February 2016. The Federal Circuit Court dismissed a review of a decision of the Administrative Appeals Tribunal, then the Migration Review Tribunal, made on 28 February 2014. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection to refuse the appellant a Student (Temporary) (Class TU) (subclass 572) visa.

The facts

2    On 31 May 2011, the appellant was granted a Student (Temporary) (Class TU) (subclass 573) visa expiring on 15 March 2013.

3    A requirement of that visa was contained in condition 8202 of the Migration Regulations 1994 (Cth) (the Regulations), which relevantly provided:

(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)

…

(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;

4    On 4 October 2012, the appellant’s education provider, the University of Ballarat, issued a certificate that the appellant was not achieving satisfactory course progress under s 19 of the Education Services for Overseas Students Act 2000 (Cth) and Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007) for the Bachelor of Business course undertaken by the appellant.

5    Under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act), the Minister may cancel a visa if satisfied that the holder has not complied with a condition of the visa. Under s 116(3), if the Minister may cancel a visa under s 116(1), then the Minister must cancel a visa if there exists prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2)(b)(2) of the Regulations provided:

(2)    For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

…

(b)    in the case of a Student (Temporary) (Class TU) visa:

    (ii)    that the Minister is satisfied that:

(A)    the visa holder has not complied with condition 8202; and

(B)    the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

6    On 12 October 2012, the Department of Immigration and Citizenship, as it then was, sent the appellant a notice of intention to consider cancellation of his 573 visa for failure to comply with condition 8202(3)(a), and invited the appellant to respond. On 18 October 2012, the appellant sent a response which included:

I was receiving medical counselling during the period when this breach took place. My grandfather was very sick in Bangladesh and I was really stressed about his medical condition. I could not concentrate on my studies and hence could not have a satisfactory course performance. My stress levels increased with the deteriorating health of my grandfather, and I was not mentally in a state to perform well academically or maintain a proper attendance at the University.

My grandfather later died on 15/07/2012 due to diabetic nephropathy and ischemic heart disease.

7    On 8 November 2012, an officer of the Department wrote to the appellant stating:

I have decided that there is no ground(s) for cancellation of your visa. Your visa will therefore not be cancelled. It will continue to provide you with permission to travel to and enter / remain in Australia until 15 March 2013.

8    On 8 March 2013, the appellant applied for a subclass 572 visa. Clause 572.235 of the Regulations relevantly stipulated a requirement for the grant of this visa 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 tribunal decision

9    The Tribunal identified the question before it as follows at [7]:

In the present case, the applicant's last substantive visa was a Subclass 573 visa that was subject to Condition 8202. The focus of this review is whether the applicant substantially complied with condition 8202, and in particular 8202(3) which requires that the visa holder's education provider has not certified the visa holder as not achieving satisfactory course progress and/or attendance.

10    The Tribunal found that the appellant’s education provider had certified that the appellant had not achieved satisfactory progress. Indeed, that fact was admitted by the appellant. The Tribunal said at [11]:

[T]he requirement of an absence of a relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not.

11    The Tribunal relied on the majority reasoning in Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 156 FCR 199; [2006] FCAFC 167.

12    Before the Tribunal, the appellant’s migration agent argued that because the delegate did not cancel the previous visa, the appellant was deemed not to have breached the condition of that visa, and the Minister was estopped from now alleging that the appellant failed to comply with the previous visa.

13    On the issue whether the decision of the delegate was that the appellant had not breached the previous visa, the Tribunal said at [15]:

The notice of decision not to cancel is worded very poorly and is, logically, wrong. There is no question that the applicant breached condition 8202(3) because there was certification by his education provider of not having achieved satisfactory progress. The only decision which the previous delegate could have made is that the applicant's breach of condition 8202(3) was due to exceptional circumstances beyond his control. This is, in fact, the second step of the process described by the former delegate in the notice of intention to consider cancellation.

14    Then at [16], relying on Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; [1997] FCA 70, the Tribunal rejected the estoppel argument. The Tribunal said that the doctrine cannot be used to allow a party to evade the requirements of legislation.

15    Further, the Tribunal considered that the cancellation powers in s 116 of the Act operated independently of the powers to grant a visa. The Tribunal said at [17]:

Further, the decision of the first delegate was pursuant to s.116, the general power to cancel a visa, and was in respect of the applicant's then visa. Different considerations come into play in the exercise of that power than apply in the consideration of whether the applicant meets the criteria for the grant of a subsequent visa. All that the previous decision, not to cancel the applicant's last student visa, means in the context of considering his current student visa application is that the applicant was still the holder of a student visa when he lodged his current application for another student visa. Having lodged that application, the delegate was bound, as is this Tribunal, to determine whether the applicant met all the criteria for the grant of that visa.

the federal circuit court judgment

16    On 2 April 2014, the appellant filed an application for review in the Federal Circuit Court. The ground of the application for review was stated as:

The Tribunal erred by misinterpreting the meaning of the term “complied substantially” in clause 572.235 of Schedule 2 to the Migration Regulations 1994.

Particulars

The Tribunal considered that it was not possible for a person to comply substantially with condition 8202(3) of a student visa, even though a decision had been made to revoke the cancellation of his visa.

17    Before the Federal Circuit Court, the appellant applied for an adjournment in order to raise or to obtain time to raise funds to engage a lawyer. The Federal Circuit Court was prepared to accept that this was a good reason for seeking the adjournment. However, the Federal Circuit Court then examined whether there would be any utility in adjourning the proceeding. The Federal Circuit Court determined that there was no arguable case available to the appellant that the Tribunal decision was affected by jurisdictional error. Consequently, there was no purpose in adjourning the proceeding. The Federal Circuit Court then refused the adjournment application and dismissed the application for review.

the appeal

18    On 11 March 2016, the appellant filed a Notice of Appeal in this Court. The grounds of appeal are meaningless. However, the appellant appeared at the hearing of the appeal and was assisted where necessary by a Bengali interpreter. In substance, he raised the question how he could have been found to have been in breach of his previous visa when the officer of the Department had found that there were no grounds to cancel that visa. The appellant again applied for an adjournment of the appeal to allow him to arrange for legal representation.

19    It is convenient first to consider whether the Federal Circuit Court was correct in concluding that the appellant does not have an arguable case. As the appellant did not have legal representation, the Court has scrutinised the decision of the Federal Circuit Court to ensure that the appellant has not been prejudiced by not having had a lawyer.

20    Several arguments not raised in the Federal Circuit Court are therefore addressed immediately. It is easy to understand the bewilderment of the appellant. He explained to the Departmental officer who was considering cancellation of his previous visa why he was not able to progress satisfactorily in his course. As a result, the Departmental officer decided not to cancel the visa, stating that there were no grounds to do so.

21    To imagine then that the non-compliance has been excused seems logical. It would seem to follow that the excused non-compliance could not then become a non-compliance which would justify the refusal of a subsequent visa. One way that result would be less likely would be to read the requirement in clause 572.235 for substantial compliance with the conditions that apply to a visa as applicable to the conditions in total rather than to each condition.

22    However, such a construction is foreclosed by the judgments in Montero v Minister for Immigration and Border Protection [2014] FCAFC 170 (Montero) in materially similar circumstances. For the grant of a visa in that case, clause 3004(e) required Mr Montero to have “complied substantially with the conditions that apply or applied to” the grant of his previous student visa. Mr Montero had not complied with some of the conditions of that visa, but he argued that it was sufficient if he had substantially complied with the conditions as a whole.

23    This construction was rejected. Flick J, with whom Allsop CJ agreed at [1] and Logan J also agreed, but expressed certain reservations at [4], said at [29]:

The principal reason for this conclusion is that that result is the natural and ordinary meaning conveyed by cl 3004(e). It was accepted by Senior Counsel for Mr Montero that had the word “substantially” not been included within cl 3004(e), the clause would require compliance with each of the conditions applying to “the last of any substantive visas” held by an applicant. If that word had not appeared in cl 3004(e), an applicant would be required to comply with each condition. The inclusion of the word “substantially” does not dictate any different conclusion. All that the presence of that word adds to the meaning of cl 3004(e) is that there must be “substantial compliance” with “the conditions” – not one or other of those conditions, but “substantial compliance” with “the conditions”. The word “substantial” simply identifies the extent of compliance; it does not affect the identification of “the conditions” which must be complied with.

24    In Montero, the Court referred to the lack of symmetry between the exercise of the power to cancel a visa and the power to grant a visa. Flick J, with whom Allsop CJ and Logan J agreed, said at [33]-[37]:

33.    This construction of cl 3004(e) is consistent with a purposive approach to the construction of the clause. The phrase “substantial compliance” was presumably employed by the Parliamentary draftsman with the intention of permitting a degree of latitude or flexibility when exercising the power to grant a new visa.

34.    Non-compliance with the literal terms or “conditions” of a visa, it may readily be assumed, was not intended to attract fatal consequences – whether the analysis was to be conducted for the purposes of either cancelling a visa or refusing to grant a fresh visa.

35.    A visa holder who fails to comply with the “conditions” of a visa is liable to have his visa cancelled: Migration Act s 116. That power is conferred in discretionary terms and is to be exercised by reference to facts known at the time of the decision. Even where non-compliance with a condition of a visa is accepted, the Minister retains a discretion to cancel the visa or to leave it on foot. Presumably the seriousness and importance of the condition and the gravity of the circumstances surrounding the reasons for non-compliance may be relevant to the Minister when exercising the discretion. In circumstances where a visa holder may have failed to strictly comply with the terms of a particular condition, the fact that he may have “substantially complied” with the object and purpose sought to be achieved by the condition, would equally be relevant to the exercise of the discretion.

36.    Loosely comparable was the exercise of the power to grant a fresh visa, albeit in circumstances where there had not been strict compliance with the “conditions” but only “substantial compliance”.

37.    The two powers – be it of cancellation or grant – are not, of course, totally comparable; they merely overlap in the manner in which they operate. Greater discretionary flexibility may be available when exercising the power conferred by s 116 to cancel a visa than when exercising the discretionary power to grant a fresh visa. Even total non-compliance with a condition may not necessitate cancellation of a visa; but non-compliance with one condition may preclude the granting of a visa in conformity with cl 3004(e).

[Emphasis added]

The final sentence refers precisely to the circumstances of the present case.

25    The Tribunal and the Federal Circuit Court did not consider whether, on its proper construction, cl 572.235 looked to substantial compliance with all of the conditions of the previous visa as a whole, or to substantial compliance with each of the conditions of the previous visa. However, in view of the judgments in Montero, the approach taken in fact by the Tribunal, to assess substantial compliance by reference to each condition, was correct.

26    Montero also supports the view of the Tribunal that the power to cancel and the power to grant a visa operate independently. The Tribunal and the Federal Circuit Court were correct, for the reasons which they gave, to reject the appellant’s argument that the Minister was estopped from contending that the appellant had failed to comply with clause 8202. They were also correct that the exercise of power to cancel a visa was independent of the exercise of a power to grant a visa.

27    For the above reasons, the Federal Circuit Court was correct to conclude that there was no arguable case available to the appellant, and that consequently there would be no utility in granting the adjournment. The Federal Circuit Court was therefore correct to dismiss the application for an adjournment and then to dismiss the application for review.

28    As the appeal is bound to fail, the application for an adjournment is refused. Further, the appeal is dismissed.

29    The Minister applied for an order that the appellant pay the costs of the appeal, on the basis that costs usually follow the event. However, the circumstances of the present case are unusual. The appellant explained that when he received the notice of intention to cancel his visa, he was willing to accept that he had not complied with his visa conditions, and that his visa should accordingly be cancelled. It was only when the Departmental officer did not cancel the visa that the appellant concluded that the non-compliance had been excused. The appellant said that his application to the Federal Circuit Court and appeal to this Court were brought under that misapprehension caused by the decision of the Departmental officer. In these circumstances, fairness is best served by no order being made as to costs.

Associate:

Dated:    31 May 2016