FEDERAL COURT OF AUSTRALIA

Majumder v Minister for Immigration and Border Protection [2016] FCA 1372

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

BROMWICH J:

1    This is an appeal from the “whole of the judgment” and orders made by a judge of the Federal Circuit Court of Australia on 29 July 2016. His Honour dismissed an application for review of a 3 March 2014 decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal. The Tribunal had affirmed a 25 June 2013 decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a Student (Class TU) Higher Education Sector (subclass 573) visa.

2    The reason why the delegate refused the grant of the visa sought, why the Tribunal affirmed that decision and why the primary judge dismissed the application for review were all the same. Clause 573.235 of Schedule 2 to the Migration Regulations 1994 (Cth) applied to the visa in question and provided as follows:

573.235

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.

3    That clause in terms requires substantial compliance with each of the conditions to which the prior visa was subject. The appellant’s last substantive visa, a Student (Temporary) (class TU, subclass 573) visa was subject to a number of conditions, including condition 8202 of Schedule 8 to the Migration Regulations. The relevant parts of condition 8202 at the relevant time were 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.

4    In relation to that last substantive visa, the appellant’s education provider had certified that he had not achieved satisfactory course progress. There were two consequences of that certification. The first consequence is that s 116 of the Migration Act 1958 (Cth) conferred a discretionary power to cancel the visa. That discretion was not exercised. It is not necessary to consider whether not cancelling the prior visa was a course available to the Minister or his delegate. Unless set aside, the decision not to cancel the prior visa stands. Moreover, as that visa has long since expired that is now academic.

5    The second consequence of the education provider’s certificate is that condition 8202(3)(a) was engaged. That condition could not be met because of the education provider certification that the appellant had not achieved satisfactory course progress.

6    The solicitor appearing for the appellant before the primary judge accepted that the Tribunal had applied the construction of “complied substantially” as it appears in cl 573.235 reproduced at [2] above that had been reached in the prior decision in this Court of Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007. That construction was to the effect that condition 8202(3)(a) was not a condition that was amenable to the concept of substantial compliance. It was either complied with, or it was not. It was also accepted that Casse was binding on his Honour. Accordingly, the argument was put on behalf of the appellant as a matter of formality to preserve his position for any appeal.

7    The primary judge delayed handing down his decision pending a further decision on the same topic by Flick J, which had not yet been heard by his Honour. Justice Flick heard that case on 20 August 2015 and handed down his decision on 1 October 2015, reaching the same conclusion as North J in Casse: Mohammed v Minister for Immigration and Border Protection [2015] FCA 1060. While Flick J’s judgment and reasons dealt with a subclass 572 Vocational Education and Training Sector visa, not a subclass 573 Higher Education Sector visa, nothing turns on this. His Honour referred at [6] to “cl 572.235 or the identically worded cl 573.235”.

8    The primary judge was therefore bound by two appellate jurisdiction decisions of this Court on the issue raised. His Honour followed those decisions, although it should be said there was no indication his Honour had any difficulty in accepting the correctness of both.

9    I am of the same view as the primary judge and gratefully adopt the reasoning of Flick J in Mohammed. In particular, Flick J in Mohammed held, and I agree, as follows (at [16]):

(1)    clause 572.235 in that case [and therefore cl 573.235 in this case] requires compliance with each of the conditions to which a visa is subject;

(2)    condition 8202(3), when it applies, is one such condition;

(3)    condition 8202(3) does not permit of any qualification which allows recourse to the concept of substantial compliance for the purposes of cl 572.235: the same reasoning must apply to cl 573.235 in this case; and

(4)    although the potential for injustice or unfairness has been recognised in respect of the operation of condition 8202(3), there is no decision of a Full Court concluding that the condition is void and existing decisions have proceeded only upon the basis that the condition is one which may lawfully be imposed.

10    The relevant authority cited and quoted by Flick J in support of the conclusions reached by his Honour include the following:

(1)    Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199 at 202 [12]-[16], by which it was reasoned:

(a)    regulations can include conditions to which the concept of substantial compliance can have no logical application;

(b)    such a condition is met or it is not;

(c)    such regulations are to be read as not admitting any qualification of substantial compliance;

(d)    condition 8202(3) is one such condition, citing and relying upon the High Court cases of Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 249 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389-390 [92];

(e)    the obvious policy behind the way in the which the condition was framed was that 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, citing Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 at [4];

(2)    Dai v Minister for Immigration and Citizenship [2007] FCAFC 199; (2007) 165 FCR 458 was distinguishable because it was dealing with cancellation, not refusing to grant a visa, and concerned a version of condition 8202 cast in positive terms requiring a certification of satisfactory performance, rather than the absence of a certification of not meeting a requirement for satisfactory performance.

11    It follows that the appeal cannot succeed in relation to the underlying issue because there was no error on the part of the primary judge, nor for that matter on the part of the Tribunal or the delegate.

12    For completeness, I should observe that the notice of appeal does not even raise the matters addressed above, which needed to be raised and successfully prosecuted in order for the appeal to succeed. Rather, the grounds of appeal in the notice of appeal dated 16 August 2016 and signed by the appellant were as follows (reproduced verbatim):

1.    On 3 March 20131 have applied for a student (temporary) (class TU) Higher education sector (sub class 573) visa (student visa) but my visa as not granted on that time ,while I had explained my circumstances before to the student integrity officer and they had understand my circumstances and decided not to cancel my visa even though when I applied to extend my visa my visa was not granted.

2.    I had explain my circumstances and situation to the federal circuit court, but I believe that even though I had not fulfil the study requirement but due to some circumstances, but later on I have finished my study with good grade so I believe that I should be given the opportunity to continue my study and my visa application should be granted.

13    It is apparent that these grounds constitute nothing more than a narrative as to what has happened and do not raise any proper ground of appeal at all. No error is alleged on the part of the primary judge or the Tribunal. Rather, the appellant asks for a different outcome. The orders sought correspondingly seem to be treating an appeal to this Court as an opportunity to have the question of whether or not he should be granted a visa revisited as a matter of a fresh exercise of administrative discretion, which is obviously not a matter for this Court. For that additional reason, the appeal cannot succeed.

Conclusion

14    I am satisfied that the interpretation placed on cl 573.235 and condition 8202(3) by the delegate, by the Tribunal and by the primary judge was correct. Accordingly, this appeal cannot succeed and must therefore be dismissed.

15    The appellant could not give any reason why he should not pay the Minister’s costs other than his lack of money. In circumstances in which he chose to continue these proceedings in the face of a clear judgment by the primary judge as to why his application for review failed, that is not a sufficient reason to deprive the respondents of a costs order. The appellant must therefore pay the respondents’ costs.

Associate:

Dated:    23 November 2016