Alam v Minister for Immigration & Multicultural Affairs & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant applied for a Student (Temporary) (Class TU) Visa, subclass 560. The application was refused by a delegate of the Minister. Subsequently, the Migration Review Tribunal ("the MRT") affirmed the delegate's refusal. The applicant applied to the Court, pursuant to s 39B of the Judiciary Act 1903 (Cth), for prerogative relief in respect of the decision of the MRT on the ground that it had fallen into jurisdictional error. 2 The Minister submitted that: · s 474 of the Migration Act 1958 (Cth) operates to preclude the Court from granting the relief sought if the MRT made a bona fide attempt to exercise its power, its decision relates to the subject matter of the legislation and the decision is reasonably capable of reference to the power given to the decision maker ("the Hickman conditions"): see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615; · as the applicant has not claimed that the Hickman conditions were not satisfied, s 474 of the Migration Act 1958 (Cth) ("the Act") precludes the Court from granting relief; · the Court should deal with the s 474 issue at the outset, rather than proceed to assess the merits of the grounds upon which relief is sought and to then consider the application of s 474 to those grounds. 3 Reliance was placed by the Minister on certain observations of Heerey J in Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 ("Turcan") at [46]: "In my view, the correct approach is to first consider whether s 474 applies. If it does, the Court need not, indeed should not, go any further. The Court should not assess the case as if s 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the Court's jurisdiction and is to be applied at the threshold." 4 In NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 59 ("NABC") at [6]-[7] Gyles J agreed with the approach of Heerey J stating that it "avoids deciding a false issue (with the consequent saving of time and court resources)" and is also consistent with a number of decisions of other Judges of the Court. More recently in SBAP v Refugee Review Tribunal [2002] FCA 590 Heerey J reiterated at [45] that it was "wrong in principle to deal in detail with contentions made as though s 474 did not exist". 5 In VAAC v Minister for Immigration and Multicultural Affairs [2002] FCA 573 ("VAAC") at [29] Marshall J stated: "I respectfully disagree with the view expressed by Heerey J in Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397, and followed by Gyles J in NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539, that the Court should first consider the effect of s 474 of the Act on the application. In my view, when there are two or more issues before the Court, any one of which if determined against an applicant would dispose of the proceeding, it is open to the judge concerned to deal with one or both issues in the order she or he thinks fit in the exercise of her or his judicial function.I also consider that it may be appropriate to characterise the nature of the error made by the relevant tribunal in order to determine if that error is of a kind which is protected from review by s 474 of the Act. This view is, I believe, consistent with the approach taken by Gyles J in NAAX at [34]." 6 I would add that where a judge determines that it is appropriate to first consider the merits of the ground relied upon, it does not follow that the judge is dealing with the matter as though s 474 did not exist. Rather, as is clear from many of the cases decided in the Court since the enactment of s 474, the judges concerned with those cases decided that it was appropriate to consider the merits of the ground relied upon and then to determine whether and, if so, how s 474 applied in the circumstances of that particular case: see for example Walton v Philip Ruddock, The Minister for Immigration and Multicultural Affairs [2001] FCA 1839 ("Walton"); NAAT v Minister for Immigration and Multicultural Affairs [2002] FCA 332 per Sackville J; Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498 per Finkelstein J; NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 551 per Tamberlin J; Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 per North J and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 per Mansfield J. 7 The conceptual foundation for the view expressed by Heerey J is that s 474 "goes to the Court's jurisdiction". In Bray v Hoffman-La Roche Ltd [2002] FCA 243 ("Bray") at [168]-[187] I considered a submission that the Court is under a duty to forthwith hear and determine a bona fide challenge to its jurisdiction. I concluded at [187]-[188]: "187. In my view the Court is not under a duty to forthwith determine if it has jurisdiction to proceed with the hearing of the present proceeding as soon as that was raised as a bona fide issue. In the usual course a court must satisfy itself that it has jurisdiction in the proceeding but the time at which it does so is a matter for the court. In many cases it may be desirable for the court to deal with the jurisdictional issue as a preliminary issue but it is not under an unqualified duty to do so. Ultimately, it is for the court to determine, in the interests of the justice, the time at which and the manner in which a jurisdictional issue is to be determined. 188. A possible exception to that principle, that has arisen in the Admiralty cases and arose in Gray, is where a statutory precondition to the invocation of the Court's jurisdiction is required to exist before the proceeding can be commenced or the Court's jurisdiction can be invoked. Those cases are examples of where a properly constituted court may lack jurisdiction because a condition precedent to its entering upon the inquiry has not been fulfilled: see Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136 at 1151. The Admiralty cases are authority for the principle that in such cases the Court has to determine the facts upon which its jurisdiction depends as a preliminary issue: see Shin Kobe Maru at 426. As with any preliminary issue the determination is to be at the time and in the manner that accords with the requirements of justice in the particular case." 8 The possible exceptions to which I referred have no application in the present case. Of course, in some cases the Court may form the view that it should first consider whether s 474 applies but there is no duty upon it to do so. As stated above, the overriding principle is that it is for the Court to determine, in the interests of justice, the time at which and the manner in which a jurisdictional issue is to be determined. In Turcan and NABC their Honours determined that, in the circumstances of the cases before them (which included the ability in their Honours' view to determine whether the grounds relied upon precluded the grant of the relief sought) it was appropriate to determine the s 474 issues at the outset. There can be no doubt that that course was open to their Honours in those circumstances. However, if their Honours were going further and purporting to state a general principle applicable to all cases then, for the reasons given by me in Bray, by Marshall J in VAAC and by me below as to why s 474 does not go to jurisdiction, I would respectfully disagree with their Honours because such a view would be clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. 9 There is a further reason why I would not accept their Honours' approach if it is being relied upon, as it is in the present case, as a general principle. I do not accept that s 474 goes to the "jurisdiction" of the Court. In Walton at [32] I observed: "The Hickman principle construes the Act in question on the basis that the privative clause has substantive, rather than merely procedural, consequences. Thus, rather than merely immunising a particular decision from review the clause operates substantively to make a decision made in breach of a statutory requirement valid and lawful, whereas it may otherwise have been invalid and unlawful." 10 Section 474 concerns the Court's power to grant relief in cases where s 474 operates to render a particular decision valid and lawful. There is nothing in s 474, or in the substantive provisions to which it may apply, that imposes an imperative duty on the Court to give effect to the correct construction of the relevant provisions as they apply to the facts of the case. Thus, the Court has jurisdiction to correctly or incorrectly apply s 474 to the facts of the case before it: see The Queen v Bowen; Ex parte Federated Clerks Union of Australia (1984) 154 CLR 207 at 210 and The Queen v Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313 at 319-320, Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391-392 and The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351 ("Gray") at 394. An erroneous exercise of the Court's jurisdiction in a matter that involves the operation of s 474 is therefore not to be equated with a wrongful assumption of jurisdiction: see Gray at 394. Accordingly, as the Court has jurisdiction to construe and apply s 474, correctly or incorrectly, to the facts of the case before it, the section does not go to the jurisdiction of the Court: see Bray at [192]-[198]. 11 While s 474 precludes the grant of relief in a proceeding that falls within its terms, that preclusion is not to be equated with the Court not having jurisdiction, as distinguished from not having power, to grant the relief sought. 12 In the present case I have decided not to follow the course adopted in Turcan. There is a conflict in the decisions of single judges of the Court as to the operation of s 474. Although a Full Court has been convened to resolve that conflict it may be some time before both certainty and finality is reached on that issue. In all the circumstances, including the circumstance that the grounds relied upon in the present case are not precisely expressed, I have decided that it is appropriate to consider the merits of those grounds before considering the operation of s 474. 13 The applicant held a subclass 560 visa from 9 February 1999 until 15 March 2001 when he applied for a further subclass 560 visa. It is common ground that in order to be eligible for the further visa the applicant must have complied substantially with the conditions to which the visa he held was subject: see cl 560.213 of subclass 560 in Sch 2 of the Regulations. 14 The relevant condition for the purposes of the present case is condition 8202, which provides: "(a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student the holder is enrolled in a full-time course of study; and (b) in any other case the holder is enrolled in a registered course; and (c) in the case of a holder whose education provider keeps attendance records the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester for the course; or (ii) for a course that runs for at least a semester for each term and semester of the course; and (d) in any case the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester for the course; or (ii) for a course that runs for at least a semester for each term or semester (whichever is shorter) of the course." 15 The factual question before the MRT related to whether, during the relevant period, the holder was enrolled in a registered course and the MRT was satisfied that the holder attended 80% of the contact hours scheduled for the course. There was little factual dispute about the applicant's course attendance during the relevant period. The MRT summarised the applicant's evidence as follows: "The visa applicant gave evidence that he only completed one subject in each semester of 1999. This was a part time load as a full time load is 4 subjects per semester or a student can apply to do 3 subjects and still be considered full time. The visa applicant was asked why he only attended part time and he replied it was because he needed money and was working. He admitted that he worked 30 hours a week, a workload in excess of his visa requirements. He stated he knew he was in breach of his visa but his family had stopped supporting him and he needed the money. They stopped supporting him because his sister got married and they had to pay for the wedding and dowry and were in financial difficulties. They are now supporting him again. The visa applicant did not attend college for semester 1 of 2000 because he went to Bangladesh in February 2000 and when he returned to Australia in March 2000 it was too late to enrol in a course. He returned to Bangladesh to help his family sell some properties and to assist his father to set up a business. At the time he told Chalmers that he did not wish to continue with the course there and he made enquiries with RMIT about starting a pilot's course but he was told that it did not commence until July 2000. The visa applicant confirmed that he commenced the course on 10 July 2000 and that he applied to cancel his enrolment on 21 July 2000, 11 days later. He stated that he discovered that he suffered from air sickness and he discussed the matter with his instructor who suggested that he try another course. It was then too late to enrol in any other course for second semester. The visa applicant successfully completed a 14 hour computer course at Swinburne in November 2000. The visa applicant enrolled in a Bachelor of Business at RMIT in December 2000 and was due to commence on 26 February 2001. He was asked why he had no results for that course and he replied that in March he discovered that there was a problem with his obtaining a new student visa. He was very frustrated about the refusal of his visa and could not study or concentrate. The applicant approached Ballarat University and enrolled in a Graduate Diploma of Computing in June 2001. He completed a semester and he passed 3 subjects and failed one subject." 16 In its findings the MRT stated: "The Tribunal notes that for all of 1999 the applicant was part-time completing only one subject per semester. In 2000 he did not attend an institution during semester 1 because of his trip to Bangladesh. In semester 2 he attended a pilots course for 11 days. In 2001 semester 1 he did not attend his course, a Bachelor of Business (Transport & Logistics) course at RMIT University which commenced on 26 February 2001." 17 Thus, there was a substantial period, between 9 February 1999 and 15 March 2001, during which the applicant was not in attendance at a registered course as required by condition 8202. The applicant, however, claimed that his non-attendance was brought about for reasons that were beyond his control and, as a consequence, he substantially complied with condition 8202. The MRT, while not rejecting the explanations proffered by the applicant, was not satisfied that the explanations warranted a finding of substantial compliance. 18 The MRT observed: "The Tribunal notes that the applicant according to his evidence was not enrolled in any course during semester1 of 2000. The Tribunal does not accept that his visit to Bangladesh precluded him from being enrolled and continuing his studies in first semester of 2000. According to the Department's movement records the applicant was out side of Australia from 1 February 2000 until 4 March 2000. He could have made arrangements to enrol before he departed and would have had ample time to catch up any classes missed at he beginning of the semester. The Tribunal finds that the applicant was in breach of condition 8202 for semester 1 of 2000. The applicant only attended a course for 11 days during semester 2 of 2000. He withdrew from his course and did not enrol in any alternative course. During semester 1 of 2001 the applicant was enrolled in a Bachelor of Business (Transport & Logistics) course at RMIT University but he did not attend that course or attain any results and so was in breach of condition 8202 for that period." And concluded: "The period of the visa applicant's previous visa was 9 February 1999 until 15 March 2001. As discussed the applicant failed to attend any educational institution for 2 semesters of the period of his visa and he only attended for 11 days during another semester. Looking at the proportionality of the period of non compliance with condition 8202 the Tribunal has found that for at least a year of the period he was in breach of condition 8202. The Tribunal has considered the circumstances of his failure to attend classes as discussed above. There is nothing before the Tribunal to indicate that the visa applicant failed to appreciate he was in breach of the condition. He has not claimed that he was misled by the Department. The evidence is not that he sought to comply with the condition but made an innocent error or was thwarted from complying through no fault of his own. The Tribunal accepts that the applicant has paid a large amount of fees to institutions in Australia which may be an indication that he genuinely intended to study. The Tribunal notes that the applicant did complete one 14 hour course, introduction to computers but when looking at the totality of the visa period this a relatively short period of compliance. The Tribunal also notes that the applicant complied with condition 8202 during 1999. However he only attended part-time during this period. The Tribunal takes in account his evidence that he attended part time so that he could undertake more paid work and admitted undertaking more work than is permitted by the conditions on his visa. The Tribunal is of the view that this is not the attitude of a genuine student. In all the circumstances the Tribunal is not satisfied that the visa applicant substantially complied with condition 8202 on his previous visa and therefore he cannot satisfy clause 560.212, a criterion for the grant of the current visa and he is not entitled to the visa sought." 19 On the material before the MRT it was plainly open to it to be satisfied that the applicant had not substantially complied with condition 8202 during the relevant period. The period of non-compliance with the enrolment and attendance requirements of the condition (about 12 out of about 25 months) was extensive and it would have been difficult, by objective criteria, for the MRT to have concluded that there was substantial compliance. 20 The Full Court in Minister for Immigration and Multicultural Affairs v Modi [2001] FCA 1656 considered a previous form of condition 8202, which made it a condition of the visa that the "holder must satisfy course requirements". After citing several single judge decisions of the Court, the Full Court accepted that in determining whether there was substantial compliance the Court is to have regard to all the circumstances of the case, including the nature of the non-compliance and the visa holder's explanation. As is clear from [16]-[24] of the reasons of the Full Court, it is for the Tribunal to assess the weight to be accorded to those matters, which were "not to be elevated to the status of relevant considerations in every case". 21 Condition 8202 in its present form is primarily about matters that are capable of being determined by objective, rather than subjective, criteria. Plainly, in determining whether there has been substantial compliance with the conditions to which a visa was subject the issue of substantiality must be addressed in the context of compliance with the conditions of the visa. The question is not whether there was substantial compliance with every condition of the visa. Thus, the significance of, and the nature of non-compliance with, particular conditions will usually be matters that are material to, but not necessarily determinative of, the general issue of non-compliance. 22 In the present case the MRT focused its attention on condition 8202, which is plainly a significant condition in respect of a student visa. It was not contended by counsel for the applicant that the MRT erred in doing so. In considering the nature of non-compliance with that condition it was open to the MRT to consider: · the steps the applicant could have taken, but did not take, to comply; · whether the applicant sought to comply with the condition but made an innocent error or was thwarted from complying through no fault of his own; · whether non-compliance occurred because the visa holder was not a genuine student; and to have given those considerations such weight as the MRT deemed appropriate. 23 I have focussed on the above considerations because the applicant's counsel criticised the MRT's reliance upon those considerations contending that, in the circumstances of the present case, they were not relevant considerations. 24 The applicant's counsel contended that, as the MRT found the applicant complied with the enrolment and attendance requirements during 1999 it was wrong for it to have concluded that his part-time enrolment and work during that period was not consistent with him being a genuine student. On a fair reading of the reasons as a whole that adverse finding was not confined to 1999. Rather, the MRT made the finding, as it was entitled to do, as part of its consideration of the nature of the applicant's subsequent non-compliance. Thus, the question of whether the MRT considered the applicant to be a genuine student was a matter the MRT was entitled to take into account. 25 Criticism was also made of the statement that there was no evidence that the applicant sought to comply with condition 8202 but made an innocent error, or was thwarted from complying through no fault of his own. While it is correct that there was evidence that some aspects of the applicant's non-compliance were not his fault it was open to the MRT to approach the issue of non-compliance generally throughout the relevant period and to reach the conclusion it did in respect of the non-compliance (ie for some 12 out of 25 months) that occurred during that period. In any event, even if on one view there was some factual error made by the MRT that is not jurisdictional error. 26 For the above reasons I have concluded that: · it was open to the MRT to arrive at the conclusions it did; · the MRT arrived at those conclusions after having regard to relevant considerations and disregarding irrelevant considerations. 27 In these circumstances there is no need to consider the operation of s 474. Accordingly, the applicant's challenge, which was in substance a challenge on the merits rather than one based on jurisdictional error, must fail. 28 There is, however, an unfortunate aspect to the present case. The MRT appeared to accept that since March 2001 the applicant has paid a considerable sum to enrol in a registered course which he has continued, with some success academically, to attend. While it may not be open to the Minister to grant him a subclass 560 visa when he is in Australia, it would be unfortunate if, in assessing any further application for a subclass 560 visa, the "compliance" found by the MRT to have occurred since March 2001 was not taken into account. 29 It must follow that the application is to be dismissed with costs. The Minister, quite properly in my view, accepted that those costs should not include any costs incurred in relation to submissions concerning s 474 of the Act. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.