FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCA 679

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as taxed if not agreed.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1    On 4 September 2013, the appellant was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa. That visa was subject to condition 8516, which stated:

8516    The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

2    The relevant criteria required the applicant to be “an eligible higher degree student” (Migration Regulations 1994 (Cth), Sch 2, cl 573.223(1A)) or enrolled (or the subject of a current offer of enrolment) in a course of study approved for a subclass 573 visa under reg 1.40A (Migration Regulations, Sch 2, cl 573.231). The appellant was an eligible higher degree student when the visa was granted and he was enrolled in a relevant course of study – a Bachelor of Information Technology degree at the University of Ballarat (currently called the Federation University Australia). The appellant, however, failed to meet the requirements for that course of study, failed the units he was undertaking and, on 7 April 2014, his enrolment was cancelled at his request. He thereupon ceased to meet the criteria to be an eligible higher degree student and he ceased to be enrolled in a relevant course of study.

3    On 12 September 2014, the appellant was advised by letter that consideration was being given to cancelling his student visa because he had not “continued to be a person who would satisfy” the requirements for the visa.

4    The same day, 12 September 2014, the appellant obtained an offer of enrolment in a Bachelor of Business degree at Stott’s Colleges, to commence on 20 March 2017, more than two years thereafter. A confirmation of enrolment was provided on 17 September 2014.

5    The appellant’s first argument on the present appeal, shortly put, is that enrolment in this higher education course met condition 8516 because enrolment to study at this level meant that he once again satisfied the criteria in cl 573.223(1A) (or cl 573.231) and thereby met one of the dictionary meanings of “continue”, namely “to go on after [suspension or] interruption”. I will return to explain why I do not accept this construction.

6    The appellant had meanwhile commenced a vocational course in the field of cookery and applied, on 17 April 2014, for a subclass 572 Vocational Education Sector visa, but that visa was refused. That decision requires no further attention here.

7    The appellant’s subclass 573 visa was cancelled by a delegate of the Minister on 10 November 2014 under s 116 of the Migration Act 1958 (Cth). Relevantly, s 116(1)(b) provides:

116    Power to cancel

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(b)    its holder has not complied with a condition of the visa; …

[Sections 116(2) and (3) are not here relevant.]

8    Two issues required the delegate’s attention under s 116: had the appellant failed to comply with a visa condition (s 116(1)(b)); and, should the visa be cancelled in the exercise of a discretion. On the present appeal it is the first issue which is critical. The delegate concluded, as to this issue, that the appellant had not continued to be an eligible higher degree student and had not continued to be enrolled in a relevant course of study.

9    The appellant then applied to the Migration Review Tribunal (“the Tribunal”), whose earlier functions are now performed by the second respondent, for review of the delegate’s decision. On 10 February 2015, the Tribunal affirmed the delegate’s decision to cancel the visa.

10    The Tribunal recorded:

APPLICATION FOR REVIEW

…

2.    The delegate cancelled the visa under s.116(1)(b) on the basis that applicant did not maintain enrolment in a higher education course and therefore did not comply with a condition imposed on his student visa requiring him to do so, Condition 8516. The delegate exercised the discretion to cancel the visa on the basis that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

…

CONSIDERATION OF CLAIMS AND EVIDENCE

6.    Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

7.    A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance the tribunal finds that Condition 8516 attached to the applicant’s visa. This condition requires that the student visa holder continued to satisfy the primary criteria for the grant of the student visa.

8.    The applicant’s evidence at hearing was that he was no longer enrolled in the Bachelor of Information Technology degree at the University of Ballarat after 8 April 2014. This occurred as a result of his requesting his education provider to cancel his confirmation of enrolment. He said that he had earlier applied for a release letter, on about 2 April 2014, however that was refused.

9.    The applicant’s further evidence is that he subsequently obtained a confirmation of enrolment for a Bachelor of Business degree at Stott’s Colleges on 17 September 2014. He does not claim to have been enrolled in any higher education course in the interim, although he claims to have been making arrangements to attempt to do so.

10.    Is apparent from the evidence, and the tribunal finds, that the applicant did not maintain enrolment in a higher education course and that he did not maintain his status as an ‘eligible higher degree student’ after 8 April 2014 until at least 17 September 2014, when the confirmation of enrolment for the Bachelor Business degree in respect of Stott’s Colleges was created (as set out on the confirmation of enrolment certificate provided by the applicant to the tribunal). The applicant agreed at hearing when that question was put to him. The tribunal notes that it does not necessarily accept that Stott’s Colleges is an eligible education provider and so that enrolment may not have satisfied the relevant requirements in any event.

11.    As the applicant was no longer an eligible higher degree student after 8 April 2014 he no longer satisfied the primary criteria set out in subclause 573.223(1A) of Schedule 2 to the Regulations. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

11    On the present appeal, the appellant argued the Tribunal misdirected itself (as had the delegate) by using the terms “maintain enrolment in a higher education course” and “maintain his status as ‘an eligible higher degree student’” rather than considering the meaning of “continue” in condition 8516. The appellant also argued that the Tribunal failed to consider an alternative path to visa eligibility.

12    Clauses 573.223(1A) and 573.231 of the Migration Regulations provide:

573.223

…

(1A)    If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

(a)    the applicant gives the Minister evidence that the applicant has:

(i)    a level of English language proficiency that satisfies the applicant’s eligible education provider; and

(ii)    educational qualifications required by the eligible education provider; and

(b)    the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii)    any other relevant matter; and

(c)    the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

(i)    the costs and expenses required to support the applicant during the proposed stay in Australia; and

(ii)    the costs and expenses required to support each member (if any) of the applicant’s family unit.

…

573.231

If subclause 573.223(1A) does not apply:

(a)    the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

(b)    the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

(i)    made under regulation 1.40A; and

(ii)    in force at the time the application was made.

13    No specific attention is required to the matters in cl 573.223(1A)(a) to (c). The principal question is whether the appellant continued to be “an eligible higher degree student” or continued to be enrolled (or hold an offer of enrolment) in a relevant course of study.

14    The appellant’s submissions argued:

21.    The Applicant was enrolled from September 2013 until 8 April 2014 and then from 17 September 2014 to at least the date of cancellation of his visa on 10 November 2014.

22.    The operation of the provision of Cl. 573.223(1A) and Cl. 573.231 is that a decision maker must first consider whether an applicant meets Cl. 573.223(1A) and then if the applicant does not, by operation of condition 8516, consider whether that applicant meets the criteria set out in 573.231.

The Tribunal failed to carry out the second step.

15    That submission suggests that satisfaction of one or other requirement at the time of decision will render irrelevant any lapse of compliance with visa conditions during the interim period, as well as contending that the Tribunal failed to consider the operation of cl 573.231. As will become apparent, I do not accept either contention.

16    After the Tribunal’s decision, the appellant applied to the Federal Circuit Court of Australia (“the FCCA”) for judicial review of the decision of the Tribunal. The application was dismissed with costs (Singh v Minister for Immigration & Anor [2015] FCCA 2998; (2015) 304 FLR 156).

17    For the purpose of the application to the FCCA it became necessary to identify some jurisdictional error on the part of the Tribunal. The arguments to which I have referred were put to the FCCA, which recorded:

6.    The applicant argues that the Tribunal applied the wrong test in determining whether or not there was a discretion to cancel his visa. He argues that the word “continue” in the condition to his visa meant that he could comply with the condition in circumstances where, although he had stopped complying with it at some point in time, he had later resumed compliance with it.

7.    At the hearing, there also arose an issue as to whether the Tribunal had properly understood what was meant by the “criteria … for the grant of the visa”. The applicant was granted leave to amend his application orally to include that issue and the parties both filed supplementary written submissions addressed to it.

18    The FCCA embarked on a detailed discussion of the statutory scheme (at [9]-[31]) which it is unnecessary to repeat here. The FCCA’s conclusion about the issue of statutory construction was (at [31]) (referring to cll 573.223(1A) and 573.231):

31.    In summary, in order to satisfy the criteria for the grant of a class TU visa by reference to subclass 573; an applicant in this applicant’s circumstances had to either:

a)    have had, both at the time of application and at the time of decision, a confirmation of enrolment in a course of study for the award of, relevantly a bachelor’s degree, or

b)    at the time of decision be enrolled in or be the subject of the current offer of enrolment in a course of study specified by the Minister.

19    Having considered the statutory scheme, the FCCA examined the facts.

20    As to the appellant’s first argument, the FCCA said:

57.    … On the applicant’s construction, a student could, without breaching the condition of his or her visa, immediately cease studying, give up enrolment and, say, simply work to earn money so long as, at some point prior to the determination of whether there has been a breach, re-enrol in a relevant course. That would not be consistent with the type of permission given to the visa holder. The purpose of having and granting student visas is not simply to have non-citizens enrolling at the moment of being granted a visa but, rather, to continue that enrolment in order to attain a higher education.

58.    For those reasons, the Tribunal’s use of the word “maintain” at [10] of its reasons does not reveal any error. It was correct to conclude that, because the applicant was no longer an eligible higher degree student after 8 April 2014, he no longer satisfied the criteria in sub-cl.537.223(1A). The words “maintain” and “no longer” are not contained in condition 8516 but they do bear the same meaning as “continue”. Although decision-makers might risk error by failing to adhere to the statutory text, to do so does not necessarily mean that the wrong test has been applied: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572. The ground as raised in the application is rejected.

21    As to the second argument, the FCCA said:

59.    The conclusion, at [11] of the Tribunal’s reasons, that the applicant “no longer satisfied the primary criteria set out in sub-cl.573.223(1A) of Schedule 2” was not a complete answer to the question whether he continued “to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa”. That is because, if as explained above, sub-cl.573.223(1A) did not apply to the applicant, he could satisfy the criteria for the grant of the visa by satisfying the criterion in sub-cl.573.231.

…

79.    … He submits that the operation of the provision of sub-cl.573.223(1A) and cl.573.231 is that a decision maker must consider sub-cl.573.223(1A) and, if an applicant does not meet that criterion by operation of condition 8516, the decision-maker must consider whether an applicant then meets the criteria set out in cl.573.231. The Tribunal, he says, clearly failed to take the second step.

80.    While I accept the first part of the argument, the second is more difficult.

22    The FCCA went on to conclude that the reference by the Tribunal (at [10] of its decision, set out above) to enrolment in a “higher education course” between 8 April 2014 and 17 September 2014 made it sufficiently apparent (even if not pellucidly clear) that the Tribunal had also concluded that the requirements of cl 573.231 were not met either, and for those reasons dismissed the application.

23    The appellant has now appealed to this Court. The grounds of appeal, and particulars, are as follows:

Grounds of appeal

1.    The proper construction of the word ‘continue’ in the context of Schedule 8516 to the Migration Regulations

Particulars

a.    The Federal Circuit Court found that “the words ‘maintain’ and ‘no-longer’ are not contained in condition 8516 but they do bear the same meaning as ‘continue’”

b.    The word “continue” has a broader meaning than “maintain” and “no-longer”

c.    The Tribunal was required to consider the full meaning of the term as expressed in the condition, not the narrower meaning found by the Federal Circuit Court.

2.    The Federal Circuit Court erred in its construction of the Migration Regulations Cl. 573.223(1A) and Cl. 573.231

Particulars

a.    The two regulations are separate and must be considered sequentially

b.    The Federal Circuit Court, in order to explain the reasoning of the Tribunal, referred to the primary decision of the Respondent to explain the lack of any reference to Cl. 573.231 in the Tribunal’s decision

c.    Such reasoning is contrary to the approach to decision making set out in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

24    The reference to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) in both the notice of appeal and the appellant’s written submission was unfocussed. No more precise reference was advanced in oral argument. Wu Shan Liang is usually cited to draw support from the following passage (at 271-272):

The proper role of a reviewing court

The Full Court recognised, on the face of the delegate’s assessment of the first respondent’s claim, “that the delegate correctly directed herself as to the test which she had to apply”. Later in its reasons the Full Court noted:

“Undoubtedly the delegate considered Mr Wu to have a genuine fear of persecution for a Convention reason. The question was whether there was objective support for that fear. The delegate was obliged to find that there was if there was a real chance of persecution. The expression ‘real chance of persecution’ is used in the reasons. We refer to par 4.6(4) as an example. Paragraph 12 ... provides another. The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written.”

In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities.

When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. …

(Emphasis added.) (Footnotes omitted.)

25    Approaching the matter in that way would support, rather than call into question, the approach taken by the FCCA of searching for the substance of the Tribunal’s reasoning.

26    In the present case, on the findings made by the Tribunal, the appellant had not continued, after 8 April 2014, to be “an eligible higher degree student” within the meaning of cl 573.223(1A). He also had not continued to be enrolled in a course of study prescribed under reg 1.40A for the purpose of cl 573.231. The delegate had found explicitly that the appellant “has not continued to be a person who would satisfy either subclauses 573.231 or 573.223(1A)”. I agree with the learned Judge in the FCCA that the reference by the Tribunal (at [2] of the decision, set out above) to the basis of the delegate’s decision, and to whether “that ground for cancellation is made out”, indicates that the Tribunal was well aware of the two clauses to consider. Furthermore, the expressions used by the Tribunal (at [10] of its decision, set out above) to “a higher education course” and to “his status as an ‘eligible higher degree student’” appear to me to also reflect that awareness.

27    Mr Turner, who appeared on the present appeal for the appellant and said everything that could be said on his behalf, very properly accepted that in the period after 8 April 2014 (at least until 12 or 17 September 2014) the appellant did not satisfy the requirements of either cl 573.223(1A) or cl 573.231.

28    I therefore agree with the FCCA that the second argument cannot succeed.

29    The fate of the appeal turns, therefore, on the first argument, to which I said earlier I would return.

30    It is not in dispute that there was a period of time in which the appellant no longer satisfied (i.e. did not continue to be a person who would satisfy) the requirements of cl 573.223(1A) or cl 573.231. The appellant’s argument is that when he achieved acceptance of enrolment in a further course (even if for sometime in the future) he again satisfied the requirements of each of those clauses. He relies on cases in this Court where the word “continues” has, in cases concerning criteria to be applied at the time of application for visa and also at the time of decision on the application, been held not to require uninterrupted satisfaction of the criteria.

31    In Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 (“Rao”), Allsop J concluded that a requirement that a visa applicant “continues to satisfy” an identified criterion, at the time of decision on those applications, permitted examination of whether there had been compliance “at and between” (original emphasis) the date of application and the date of the decision. However, in Xiang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 64; (2004) 81 ALD 301 (“Xiang”), a Full Court appeared to adopt a contrary construction, although it expressly refrained from disapproving the judgment in Rao.

32    In Xiang, the question for examination concerned a requirement for a “special need relative” visa stated by reg 806. It was necessary for the visa applicant in that case to meet a definition in reg 1.03 which turned on whether the applicant was a relative of a permanent resident who was “willing and able to provide substantial and continuing assistance”. It was stipulated that, at the time of decision on the application, the applicant “continues to satisfy the criteria”.

33    The Full Court found that the Tribunal had erred in its understanding of “willing and able” by concluding that the visa applicant was not able to provide the necessary assistance (although willing to do so) during a period when the permanent resident (not the visa applicant) was absent overseas. The Full Court went on:

8        The tribunal also fell into error in the meaning it placed on the word “continues” in subcl 806.221. According to the tribunal it means that a visa applicant must do more than establish that he or she is a special need relative at the time of application and at the time of decision. It also requires the applicant to satisfy this definition throughout the entire intervening period, or at least for a substantial part of that period. According to the tribunal “[t]o hold otherwise would deny any use or purpose to the inclusion of the word ‘continues’ in the regulations”. Although not the subject of complaint, it should be noted that the tribunal said that unless an applicant was a special need relative during the period between the time of the application and the time of decision, the applicant would not satisfy subcl 806.213. Even if the tribunal were correct in its construction (which it is not, for reasons soon to be explained), it was wrong to hold that this would result in a failure to satisfy subcl 806.213. It could only lead the tribunal to the conclusion that the visa applicant had failed to satisfy subcl 806.221, namely the criteria at the time of decision, and not that she had failed to do so at the time of the application.

9        Returning to the meaning of the word “continues” in subcl 806.221, that meaning cannot be considered in isolation. Its meaning must be gathered from the context. The context is that a visa applicant must be a “special need relative” both at the time of application, and at the time of decision, to satisfy that criteria. It will be remembered that a special need relative is defined as a relative who is willing and able to provide the requisite assistance to an Australian or New Zealand citizen or resident. The first point to note is that the word to be construed is the verb “continues” and not the adjective “continuing”. Second, it is plain that the word “continues” is not concerned with any activity on the part of the visa applicant, but rather with the applicant’s status; a status which has a temporal condition.

10        Finally, the question whether the applicant meets the criteria at the time of application and at the time of decision is determined at the time of decision. Relevantly, the question is whether the applicant was (at the time of application) and still is (at the time of decision) a “special need relative”. That is to say, the applicant “continues” that status if the applicant still is a “special need relative” at a particular time; that time being when the decision is made. Possibly the draftsman assumed that a person who was a “special need relative” at the time of the application and continues to satisfy that condition on the day of decision would be a “special need relative” throughout the intervening period. But, whatever may be the assumption, there is no legal requirement that this be so. This conclusion is probably inconsistent with the decision in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755. There on a slightly differently worded regulation Allsop J decided that the word “continues” was not intended to limit the enquiry whether the visa applicant in that case had satisfied the relevant criteria at the time of the decision. On the other hand, the judgment in that case may be supported because the word “continues” was used in a different context. This issue need not be resolved.

(Italics in original.) (Bold added.)

34    Having regard to the passage I have emphasised in [8] and to the earlier reasons for its conclusion of jurisdictional error, the statements made in [10] which I have emphasised are obiter dicta and not binding. On the findings made by the Full Court, the visa applicant had not ceased to meet the visa requirements at any time. It was therefore unnecessary for the Full Court to offer an opinion on that question of construction even though (as is apparent from [8]) it wished to correct something said by the Tribunal about that issue.

35    In Liang v Minister for Immigration and Citizenship (2009) 175 FCR 184 (“Liang”), Logan J suggested a means of reconciling Rao and Xiang by reference to considerations of context. His Honour suggested (at [47]):

47    … If a visa criterion contains a temporal limitation in relation to possession of a particular status at the time of application, a visa applicant who then has that status and who also has that status at the time when the decision in respect of that application is made, necessarily “continues” to have that status. Furthermore, the visa applicant will “continue” to have that status at the time of decision irrespective of whatever his or her status may be in the period which elapses after the date of application and before the date of decision. On the other hand, in respect of an activity based criterion carrying with it no temporal limitation, satisfaction at the time of decision that the visa applicant “continues to” meet that criterion will necessarily require scrutiny of whether that activity was maintained in the interval.

36    Each of Rao, Xiang and Liang concerned an issue not relevant to the present appeal, namely whether satisfaction of a criterion applicable at the date of a visa application continued to be satisfied at the time of decision on the application. Satisfaction on the first date would be necessary for a valid application. Only a valid application may be considered (Migration Act, s 47). Satisfaction of relevant criteria on the second date is necessary for the grant of a visa (Migration Act, s 65).

37    The context in which s 116 of the Migration Act operates is different. A failure to comply with a condition of a visa engages a discretion to cancel a visa (Migration Act, s 116(1)(b)). In my view, once the discretion to cancel a visa has been engaged that discretion is not removed by the fact that a breach is not ongoing, or by the fact that new arrangements have been put in place which attempt to substitute the original foundation for the grant of a visa.

38    In the present case, as the Tribunal found, at least between 8 April 2014 and 12 or 17 September 2014, the appellant did not continue to satisfy the criteria for the grant of his visa. That factual circumstance was not overcome, or rendered irrelevant, by obtaining a confirmation of enrolment in another course at a different institution sometime in the future. Whether the circumstances of that enrolment, and/or the appellant’s personal circumstances, may have justified the exercise of a discretion not to cancel his visa is a question which does not arise in the present proceedings.

39    As a single judge, I would (despite any reservations of my own) be bound by Xiang if it was on point, but it is not. First, as I have said, the statements relied on in Xiang are not, in my respectful view, binding as a matter of precedent because they are obiter dicta. Secondly, the statutory context of the present case renders the analysis in Xiang (and in Rao and Liang) not directly applicable.

40    There was no appealable error made by the FCCA. I can see no jurisdictional error which was made by the Tribunal.

41    The present appeal must be dismissed with costs.

Associate:

Dated:    8 June 2016