Dai v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT NORTH J: 1 Before the Court is an appeal against orders made by a judge of the Court which dismissed two applications for review of a decision made by the Migration Review Tribunal (Wen Bi Dai v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1819;(2006) 96 ALD 309). The decision of the Tribunal confirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to cancel the visa held by the appellant. 2 The appellant entered Australia on 6 April 2003 on a Student (Temporary) (Class TU) (Subclass 572) visa. The delegate cancelled the appellant's visa on 21 July 2004. The central question on the appeal concerns whether the first respondent had power to cancel the appellant's visa in the circumstances. 3 The power relating to cancellation of a visa is conferred by s 116(1) and (3) of the Migration Act 1958 (Cth) relevantly as follows: 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; or … (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. 4 Clause 2.43(2) of the Migration Regulations 1994 (Cth) relevantly 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, that the Minister is satisfied that the visa holder has not complied with: … (ii) condition 8202. 5 Condition 8202 relevantly stated: (1) The holder … must meet the requirements of subclauses (2) and (3). … (3) A holder meets the requirements of this subclause if: … (b) 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. 6 The appellant was enrolled at the International College of Tourism and Hotel Management in 2003. She failed to maintain a satisfactory academic performance in the September 2003 term, and was placed on academic probation for the January 2004 term. This term ended on 30 April 2004. In May 2004, the College notified her that her enrolment had been cancelled as a result of unsatisfactory academic progress. The College advised the Department of the dismissal. On 21 July 2004, the delegate of the Minister cancelled the appellant's visa. 7 On review, the Tribunal concluded: 38. The Tribunal accepts that the review applicant found it difficult to achieve satisfactory results given the marking system of the College. The Tribunal also accepts that the review applicant had some personal problems in the first semester of 2004 which may have resulted in difficulties in studying. Nevertheless, the Tribunal's only role is to consider whether the review applicant has in fact breached condition 8202. The Tribunal is satisfied that the evidence provided by the International College of Tourism and Hotel Management indicates that the review applicant did not achieve an academic result certified by the International College of Tourism and Hotel Management, her course provider at that time, to be at least satisfactory for Semester 1 of 2004. Accordingly, the Tribunal finds that the review applicant breached condition 8202 in Semester 1 of 2004 39. Accordingly, the Tribunal finds that the review applicant has not complied with condition 8202 of her visa and is, therefore, liable for cancellation pursuant to s 116(1)(b) and s 116(3) of the Act. 8 In the course of argument on the hearing of the appeal, an issue was raised by the Court concerning the construction of condition 8202 that would activate the power of the Minister to cancel a visa under s 116(3) of the Act. Condition 8202 requires that the visa holder achieve an academic result that is certified by the education provider to be at least satisfactory. Thus, non-compliance with the condition, and the trigger for cancellation, arises upon non-certification of satisfactory performance rather than upon certification of unsatisfactory performance. The issue that emerges is how could a visa holder comply or fail to comply with the condition if required to provide certification, over which the visa holder has no control 9 The issue had not been argued before the primary judge, and was consequently not raised as a ground of appeal. As the argument involved a question of law and did not require further evidence, the first respondent, (the second respondent having filed a submitting appearance), properly, agreed that the Court should consider the argument even though it had not been raised before the primary judge. 10 The hearing of the appeal was adjourned to allow the appellant to amend her notice of appeal and to allow the parties to file and serve further written submissions on the point. Then, on 29 June 2007 a further hearing was held to address oral argument on that issue. 11 As the argument is determinative of the appeal in favour of the appellant, it is unnecessary to set out the reasoning of the primary judge or traverse the other grounds of appeal originally relied upon. We therefore move immediately to a consideration of that argument.

Consideration 17 Following from the language of clause 2.43(2), the Minister must cancel the visa holder's visa if satisfied "that the visa holder has not complied with condition 8202." Thus, the visa holder is the subject of the condition and it is the visa holder who must comply. Yet, when one turns to the condition about which the Minister had to be satisfied one sees that the condition required certification by the education provider that the academic result of the visa holder was at least satisfactory. The requirement imposed by the condition was certification of the academic result. This was to be the act of the education provider. The visa holder had no role to play in providing the certification. 18 The education provider is obliged to keep a record of a student's academic performance (paragraph 34 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students established under s 33 of the Education Services for Overseas Students Act 2000), and this record may be required by the Department as evidence that the student satisfies visa requirements relating to academic performance (paragraph 36 of the Code). A breach of paragraph 34 is an offence punishable by a fine (reg 4.01 of the Education Services for Overseas Students Regulations 2001 (Statutory Rule SR 2001 No. 96). But there is no statutory right conferred on the visa holder allowing the visa holder to compel the education provider to furnish certification for the purpose of condition 8202. This circumstance highlights the fact that the visa holder is given no role to play in the certification referred to in reg 8202. In Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238, the Full Court recognised that compliance with the condition is dependent alone on certification by the education provider and no act of the visa holder was involved. At [56] the Full Court said "if there is no certificate, compliance with Condition 8202 has not been achieved." Similarly, even if the first respondent was correct in the contention that the education provider keeping records constitutes certification, there is no role for the visa holder in compliance or non-compliance and no apparent trigger for cancellation. 19 There was no act of the visa holder which could satisfy the requirement of condition 8202. The achievement of the academic result was irrelevant unless certified. No matter what the student did or did not do, the absence of a certificate would be fatal. 20 Thus, there was no way in which the visa holder could not comply with the condition 8202. It follows that it was not possible for the Minister to be satisfied that the visa holder had not complied with condition 8202. It further follows that the power of the Minister to cancel the appellant's visa under s 116(3) was not engaged.

REASONS FOR JUDGMENT GYLES J: 23 I have had the advantage of reading the reasons of North J in draft. Those reasons explain the necessary background and the manner in which the point for decision arises and need not be repeated. Condition 8202 has attracted much litigation in its various forms. It has been described as "difficult to construe and apply" (Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 at [49]). That is true of the form of the condition relevant to this case. I agree with North J that the appeal should be allowed on a ground not argued before the primary judge. Indeed, all other grounds of appeal were bound to fail in the face of the decision of the Full Court in Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 71 and were effectively abandoned. 24 The trigger for cancellation pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) and reg 2.43(2)(b) was that the holder of the visa "has not complied with" condition 8202, subclause (1) of which required that the holder "must meet the requirements of" subclause (3), including: "(b) 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." 25 The form of condition 8202(3)(b) does not sit easily with reg 2.43(2)(b) or s 116(1)(b). The failure on the part of a visa holder to comply with a condition most naturally connotes failure on the part of the visa holder to do, or refrain from doing, something within his or her control. However, condition 8202 subclause 3(b) requires the visa holder to achieve an academic result that is certified by the education provider, certification not being in the control of the visa holder. The form of s 116(1)(b) can be contrasted with that of s 116(1)(a) and (c). 26 It is relevant to note the existence in the Migration Act of subdivision GB of Div 3 - Visas for non-citizens - of Pt 2 - Control of arrival and presence of non-citizens - consisting of ss 137J-137P inclusive and entitled "Automatic cancellation of student visas". Subdivision D deals with cancellation of visas on certain grounds and the general procedure for cancelling visas under subdivision D is dealt with by subdivision E. Those two subdivisions are applicable to the present case. Subdivision GB was inserted by the Migration Legislation Amendment (Overseas Students) Act 2000 and links with the Education Services for Overseas Students Act 2000. There was no detailed examination of the interplay between subdivision GB and the balance of Div 3 in argument. In particular, there was no analysis of how condition 8202 fits with that regime. It suffices to note that there is a procedure for cancellation of visas which is linked with, and complementary to, the statutory regime applicable to education providers that was not applied here. 27 It was put for the appellant that a condition that depends upon the uncontrolled and uncontrollable actions of a third party is bad (Conroy v Shire of Springvale and Noble Park [1959] VR 737 per Herring CJ at 748; Gavan Duffy J at 753 and Sholl J at 758-9). That can be illustrated at its highest by taking the case of a visa holder who achieved a satisfactory academic result but the education provider did not, for one reason or another, certify accordingly. Reasons could include incompetence, loss of records, closing down of the institution, corruption (the certificates only issued upon payment of a significant sum), personal animus and so on. Counsel for the Minister submitted that a formal certificate may not be necessary to comply with this condition but, even if that is correct, it does not avoid the problem as the result must be "certified by the education provider". Counsel for the Minister sought to reduce the sting of the argument by referring to the Education Services for Overseas Students Act 2000 and the Education Services for Overseas Students Regulations 2001. Whilst those provisions require the keeping of records, there is no statutory obligation upon the education provider to certify results or any means of enforcing any such obligation. Furthermore, there is no statutory link between the Migration Act and the Education Services for Overseas Students Act 2000 (cf Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 71 and the authorities referred to in that decision). Condition 8202 in the form relevant to this case was introduced together with that Act and Regulations. It would have been expected that the obligation to obtain certification would have been matched by an obligation to certify and the failure to so legislate is at the root of the problem in this case. 28 In my opinion, a scheme could be devised including a properly framed condition that depended upon a visa holder holding certification of a result by the education provider. The holding of a particular qualification evidenced by certification is a common enough requirement for the licensing of various kinds of activity - the holding of different kinds of driving licences and educational qualifications evidenced by degrees from an educational institution are examples. The issue here relates to a condition of a student visa. Academic progress is obviously relevant to the grant or revocation of a student visa. Academic progress, or lack of academic progress, is therefore within the scope of the enabling legislation. The ascertainment as to whether there has been satisfactory academic progress, bearing in mind all relevant circumstances, may be difficult involving contestable questions of fact and degree. The choice of certification by the educational institution as the only evidence of the fact removes those elements of uncertainty. As was said by Heerey and Sundberg JJ in Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 at [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]." 29 In my opinion, the decision in Conroy [1959] VR 737 cannot be relied upon to establish the appellant's argument at its highest. The real ground of the decision is not easy to discern from the separate judgments. The reasons of Sholl J at 758 are clearest, although the precise basis for invalidation is not expressed. Those reasons are too broadly expressed - as I have pointed out, holding of a certificate or consent from one authority is often a condition precedent to obtaining a consent or certificate from another authority. Counsel for the Minister drew attention to the criticism of the decision in Pearce D and Argument S, Delegated Legislation in Australia, (3rd ed, LexisNexis Butterworths, 2005) at par 15.14. 30 The question is whether this is such a scheme and such a condition. In my opinion, it is neither. The preponderance of authority favours the view that certification is the gist of this condition - Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 at [55] and [56]; Ahmed 143 FCR 314 at [50]; Jayasekara 156 FCR 199 per Heerey and Sundberg JJ at [15] and [16]; and Cheng [2007] FCAFC 71 at [35]. The opinion of Finkelstein J in dissent in Jayasekara 156 FCR 199 at [25]-[27], relied upon by counsel for the Minister, does not represent the law. Condition 8202 is not framed so as to expressly impose an obligation upon the visa holder to hold or procure certification - certification is rather a free standing requirement. Compliance depends upon the existence of a positive certificate. Non-compliance is therefore the absence of a positive certificate rather than the existence of a negative certificate. 31 The problem is illustrated by considering how and when failure to comply is established. It was decided in Ahmed 143 FCR 314 at [50] that certification could not take place until completion of the relevant course, term or semester and therefore there could be no anticipatory failure to comply. Condition 8202 was in a somewhat different form at that time but condition 8202(c), as it then stood, is the same as the relevant part of the present condition. The situation after completion of the course, term or semester was not considered in that case. There will normally be a gap between completion of the course, term or semester and certification of results by the education provider. No doubt, education providers vary significantly in the size of the gap and the gap may vary from course to course or even from student to student depending upon particular circumstances. At what point does the visa holder fail to comply with the condition? Refusal to issue a visa where no certification is held (such as in Jayasekara 156 FCR 199), is different from cancellation of a visa for failure to comply with the condition on that basis. 32 In order to operate as contended for by the Minister, the condition would have to be read as not only imposing a positive obligation upon the visa holder to procure or hold certification but also as requiring it to be procured or held by a particular time. In my opinion, each would amount to a substantive redrafting of the condition. Furthermore, it cannot be concluded that, if attention had been directed to the issue, the condition would have been drafted to require certification within a reasonable time after completion of the course. That would involve uncertainty by contrast with the very prescriptive nature of the visa scheme generally and, in particular, in its application to student visas. It is just as likely that the condition would have required certification to be obtained within a fixed period of time after completion of the course so as to withdraw subjective judgment from the issue. 33 It was submitted for the Minister that, if this argument succeeded, condition 8202 would not be invalidated but, rather, a question would arise as to the application of s 116. There is a s 116 question. It was submitted for the Minister that the present case was not a "no certificate" case as the records in evidence showed that there had been unsatisfactory academic performance by the appellant, citing Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448. The records in evidence do not amount to certification or the absence of certification within the meaning of condition 8202. As I have said, there is no legal interaction between the records kept by an education provider and condition 8202. The Full Court said in Cheng [2007] FCAFC 71 at [35]: "The condition was to be satisfied only by the requisite certificate on the part of the education provider. There is nothing in the language of condition 8202 that invites a consideration of the internal processes of the education provider which has led to a certificate or refusal to certify for a satisfactory academic result." The decision in Yu 141 FCR 448 is consistent with that conclusion - see Tamberlin J at [7] and Allsop J at [36]-[40]. Indeed, Moore J dissented in substance on that issue ([2]-[6]). The precise point in issue here was not raised in that case. The merits or otherwise of this appellant are irrelevant. Failure by the appellant to comply with the condition has not been established. 34 I do not agree that the consequences of the argument end there. The validity of condition 8202 is affected by the conclusion I have reached. The disconformity between s 116(1)(b) (and reg 2.43(2)(b)), on the one hand, and condition 8202 subclause (3)(b), on the other, is also reflected within condition 8202 itself. Subclause (1) obliges the visa holder to meet the requirements of subclause (3)(b) in those cases to which it is applicable. In my opinion, the form of condition 8202 that was in force at the time relevant to this case was ultra vires the legislation, at least in circumstances where subclause (3)(b) came into play. On pain of cancellation of the visa, it compelled compliance by the visa holder with requirements that were not practicable or certain. 35 The role of unreasonableness, proportionality and uncertainty in relation to subordinate instruments is controversial - see the analysis in Pearce D and Argument S, Delegated Legislation in Australia, (3rd ed, LexisNexis Butterworths, 2005) at Ch 21 and Ch 22 and Aronson M and Dyer B, Judicial Review of Administrative Action, (2nd ed, LBC Information Services, 2000) at pp 275-292. There has been valuable recent discussion as to reasonableness and proportionality by Weinberg J sitting in the Full Court in Vanstone v Clark (2005) 147 FCR 299 at [140]-[161] and [170]-[172]. See also Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 per Spigelman CJ at [127]-[139]; One.Tel Ltd v Australian Communications Authority (2000) 176 ALR 529 per Hely J at [27]-[35]; and Minister for Immigration and Multicultural Affairs v Singh (2000) 171 ALR 53 per O'Connor and Mansfield JJ at [36]-[51]. 36 The most illuminating discussion of uncertainty in the context of a licence condition, breach of which would render the licence subject to cancellation, is that by Kitto J in Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 at 70 as follows: "In this context it seems to me a necessary conclusion that what the Act means by a 'condition' is a specification of acts to be done or abstained from by the licensee company - a specification telling the company what it is to do or refrain from doing, and thus on the one hand enabling it in regulating its conduct to know whether it is imperilling the licence or not, and on the other hand making clear to the Minister for the time being what test he is to apply in order that any judgment he may form as to compliance or non-compliance may not be vitiated by error of law. A specification cannot, I think, fulfil this dual function if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty; and for that reason it seems to me that on the proper construction of the Act the Minister's power to impose conditions is to be understood as limited to the imposition of conditions that are reasonably certain - that is to say (as has been said in a long line of cases with respect to conditions of forfeiture created by the dealings of private persons with other forms of property) conditions such that from the moment of their creation the Court can say with reasonable certainty in what events forfeiture will be incurred: cf In re Sandbrook; Noel v Sandbrook [1912] 2 Ch 471, at p 477. Such certainty includes both certainty of expression and certainty in operation." 37 In my opinion, condition 8202 as it stood in 2004 was both uncertain and unreasonable in the sense explained in the authorities and so was not authorised by the legislation.

(1993) 119 ALR 342

(1993) 46 FCR 494

(2006) 156 FCR 199

(2000) 171 ALR 53

(2005) 143 FCR 314

(2004) 141 FCR 448

(2005) 138 LGERA 11

(2000) 176 ALR 529

(1963) 109 CLR 59

(2005) 147 FCR 299

[2004] FCAFC 141