Mohammed v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 On 28 May 2013 a delegate of the Minister refused to grant the now-Appellant a Student (Temporary) (Class TU, subclass 572) visa. The basis for that decision was that the Appellant did not satisfy cl 572.235 of Sch 2 to the Migration Regulations 1994 (Cth) (the "Migration Regulations"). 2 Clause 572.235 provides 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. This clause requires compliance with each of the conditions to which a visa is subject: cf. Montero v Minister for Immigration and Border Protection [2014] FCAFC 170 at [27] to [32], (2014) 229 FCR 144 at 149 to 150 per Flick J (Allsop CJ and Logan J agreeing). 3 The facts to which this provision applied were not in dispute in the present proceeding. 4 The Appellant's last substantive visa was subject to a number of conditions, including condition 8202 of Sch 8 to the Migration Regulations. That condition in relevant part was 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. With respect to the Appellant's last substantive visa, an education provider certified that the Appellant had not achieved satisfactory course progress. In such circumstances, s 116 of the Migration Act 1958 (Cth) (the "Migration Act") conferred a discretionary power to cancel the visa. In August 2011 the Minister exercised that power so as not to cancel the visa. 5 In May 2013 a delegate of the Minister decided to refuse the application for a subsequent visa upon the basis that the now-Appellant did not satisfy cl 572.235 of the Migration Regulations. 6 The delegate's decision was affirmed by a decision of the Migration Review Tribunal (the "Tribunal") in February 2014. The Tribunal referred to the fact that the form of condition 8202(3) with which the present Appellant had not complied was in a different form to that considered by the Full Court of this Court in Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167, (2006) 156 FCR 199 at 202. Heerey and Sundberg JJ there concluded: [12] Since the regulations include some conditions to which the concept of substantial compliance can have no logical application, the regulations are to be read as not admitting any qualification of substantial compliance in such cases. For example, in the present case the visa applicant must be the holder of an existing visa of a specified kind. Either that condition is satisfied or it is not. [13] An analogy is provided by Hunter Resources Ltd v Melville (1988) 164 CLR 234. Mining regulations required tenements, the subject of applications, to be marked out by pegs at intervals not exceeding 300 m. The High Court held that a mining warden had correctly refused an application where the intervals in three places exceeded 300 m by between 1 and 3 m. Dawson J said at 249: … this is a case, in my view, in which substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not … I am unable to understand how it can be said that to exceed the maximum limit was substantially to comply with it. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [92] McHugh, Gummow, Kirby and Hayne JJ, notwithstanding their abandonment of the traditional mandatory/directory distinction, cited the above statement with approval. [14] Turning to condition 8202(3), we note first that counsel accepted that the four paragraphs of the condition are cumulative; there would not be substantial compliance if an applicant satisfied three paragraphs. [15] The substantial compliance requirement might, as counsel's argument suggests, be apt in the case of para (c) where the condition is expressed in terms of the decision-maker being satisfied of a particular percentage of contact hours. However, in the present case it is not suggested there was any certificate at all. There was thus no compliance, let alone substantial compliance. Still less could reasons or explanations for non-compliance amount to compliance, substantial or otherwise. [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]. In Jayasekara condition 8202(3)(d) required a student to achieve "an academic result that is certified by the education provider to be at least satisfactory"; the condition now in issue is expressed in terms of the education provider certifying the student "as not achieving satisfactory course progress…" and/or "attendance". That difference in terminology, it may be noted, has not led to any different application of cl 572.235 or the identically worded cl 573.235 in other decisions of this Court: e.g., Vannemreddy v Minister for Immigration and Citizenship [2013] FCA 245, (2013) 211 FCR 223; Ramasahayam v Minister for Immigration and Border Protection [2014] FCA 498; Sharma v Minister for Immigration and Border Protection [2014] FCA 566. 7 Notwithstanding that difference in terminology, the Tribunal in the present case concluded (without alteration): 24. The Tribunal is bound by the reasoning of the majority of the Full Federal Court in Jayasekara which states that Condition 8202(3) is one to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not. This approach has been confirmed in subsequent decisions of the Federal Circuit Court of Australia which has considered the post 1 July 2007 version of Condition 8202 that applies in this case: see Singh v Minister for Immigration & Anor [2011] FMCA 972 and Purohit v Minister for Immigration & Anor [2012] FMCA 477. 25. For these reasons, as there is a relevant certification before the Tribunal from the education provider for the purposes of Condition 8202(3)(b), the Tribunal finds that the applicant did not comply with Condition 8202(3)(b). The Tribunal has no discretion to take into account the reasons that the applicant did not comply with Condition 8202. The Tribunal is unable to consider whether the applicant complied substantially with the condition. The Tribunal finds that the applicant did not comply with condition 8202 of his previously held student visa. 26. As the applicant's education provider has certified the applicant as not achieving satisfactory course progress for the purposes of Condition 8202(3), the applicant did not comply with Condition 8202(3). As such the applicant does not satisfy cl.573.235. 8 The Federal Circuit Court of Australia dismissed an application seeking judicial review of the Tribunal's decision: Mohammed v Minister for Immigration & Anor [2015] FCCA 1282.

Clause 572.235 - complied substantially & unfairness 9 No submission was advanced on behalf of the Appellant that either cl 572.235 or condition 8202(3) was beyond power and, accordingly, invalid. 10 The argument advanced was that cl 572.235 should be construed in a manner which avoided the very real potential for condition 8202(3) to work unfairness to a student. 11 The potential for unfairness in the manner in which condition 8202 could operate in the circumstances of an individual case has long been recognised. Indeed, it was the potential for an unfair result which drove Finkelstein J in Jayasekara to conclude that such a result could not have been intended. His Honour there concluded: [23] When one examines condition 8202(3)(d) it is apparent, at least it is apparent to me, that the principal part of the condition is that the visa applicant has achieved a satisfactory academic result in the course he is undertaking. The provision of the certificate is the means by which this is established. It is therefore a subsidiary part of the condition. This suggests that the failure to provide the certificate should not be fatal to the visa applicant provided he is able to show by some other means that he has achieved a satisfactory academic result as assessed by the education provider. [24] One is driven to this conclusion if one pauses to consider the consequences of holding that the failure to produce a certificate obliges the Minister to refuse to grant the visa. Let it be assumed that a visa applicant is able to satisfy paras (a), (b) and (c) of condition 8202(3). Let it also be assumed that the applicant is one of the top students in his course, achieving results that far exceed satisfactory. Finally, let it be assumed that the visa applicant is unable to obtain a certificate that certifies his excellent academic record. There may be several reasons for the inability to produce a certificate, none of them altogether fanciful. For example, the institution in which the visa applicant was enrolled may no longer exist. Another possibility is that the school records have been destroyed. Or it may simply be that for no good reason the institution refuses to supply the certificate when needed. [25] In my opinion it is simply not possible to attribute to the author of condition 8202 the intention that the failure to provide a certificate is fatal to the visa applicant's claim. Subject to one qualification, all that is necessary to comply with the condition is for the visa applicant to show that his academic results are satisfactory. In the absence of a certificate this could be done, for example, by the production of an academic transcript. If the transcript is not available a written statement from the teacher might do. No doubt there are other means of establishing that the visa applicant has reached the appropriate standard: (2006) 156 FCR at 203 to 204. The form in which condition 8202(3) was then expressed assumed importance to the reasoning of Finkelstein J. To some extent his Honour's concerns are addressed by the different form in which condition 8202(3) is now expressed. 12 Condition 8202 was also the subject of comment by another Full Court in Dai v Minister for Immigration and Citizenship [2007] FCAFC 199, (2007) 165 FCR 458. The condition there in issue was comparable to that under consideration in Jayasekara. More importantly for present purposes - and with reference to the current submission as to the manner in which cl 572.235 is to be construed - the issue before the Court in Dai was the statutory power conferred by s 116 of the Migration Act to cancel a visa. Section 116 relevantly provided as follows: 116 Power to cancel (1) Subject to subsection (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. Regulation 2.43(2) of the Migration Regulations relevantly provided: (1) For section 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. As is apparent from the terms of s 116, the issue in Dai focussed upon whether the Minister was satisfied that a student had not complied with a condition of the visa; the issue was not the consequences that attended an education provider issuing a certificate or the construction of the phrase "complied substantially" in cl 572.235. 13 Within that context, North J in Dai concluded that there was no way the Minister could reach the requisite state of satisfaction for the purposes of s 116. His Honour concluded: [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. Justice Gyles acknowledged the very different circumstances under consideration when the issue is one of the refusal to issue a visa as opposed to the cancellation of a visa. In doing so, his Honour expressly acknowledged that the dissenting views of Finkelstein J in Jayasekara did not "represent the law" as follows: [30] ... The preponderance of authority favours the view that certification is the gist of this condition: Tian (at [55] and [56]), Ahmed (at [50]), Jayasekara (at [15] and [16] per Heerey and Sundberg JJ) and Cheng (at [35]). The opinion of Finkelstein J in dissent in Jayasekara (at [25] to [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 (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), is different from cancellation of a visa for failure to comply with the condition on that basis. (References omitted) His Honour went on to conclude that failure to comply with the condition had not been established on the facts then before the Court. His Honour, however, went on further to observe: [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, subcl (3)(b), on the other, is also reflected within condition 8202 itself. Subclause (1) obliges the visa holder to meet the requirements of subcl (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 subcl (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. His Honour referred to those authorities dealing with the role of unreasonableness, proportionality and uncertainty in relation to subordinate instruments and concluded: [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. Although their Honours in Dai were addressing the requirements of s 116 of the Migration Act, the obiter views of Gyles J nevertheless express a conclusion that condition 8202 (as it was then drafted) was "not authorised". That condition could, obviously enough, not be authorised for some purposes (e.g., s 116) but authorised for other purposes (e.g., cl 572.235). Edmonds J concluded that condition 8202(3)(b) did not impose on the visa holder a requirement with which he could not comply; achievement of an academic result that was satisfactory, it was said, would "carry with it mandatory certification to that effect": [2007] FCAFC 199 at [47], (2007) 165 FCR 458 at 470. It may be noted that in Minister for Immigration and Citizenship v Brar [2009] FCAFC 53, (2009) 175 FCR 432 the Minister submitted that Gyles J was in error in Dai in concluding that condition 8202 was invalid for uncertainty and unreasonableness. But Stone J concluded that it was not necessary to express an opinion on the validity or otherwise of condition 8202(3)(b) as it did not arise in that appeal: [2009] FCAFC 53 at [17], (2009) 175 FCR at 437. Greenwood and Besanko JJ relevantly agreed with Stone J. 14 His Honour Justice North returned to the potential for unfairness in Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007. The form of condition 8202(3) there in issue was the same as that in issue in the present proceeding. Notwithstanding the difference in terminology between the form of condition in Jayasekara and that now in issue, North J held that the "previous version is not relevantly different". His Honour thus cited with approval the conclusion of Heerey and Sundberg JJ in Jayasekara that "the regulations are to be read as not admitting any qualification of substantial compliance…": [2013] FCA 1007 at [12]. North J referred to the amendment to condition 8202 that was effected by the Migration Amendment Regulations 2007 (No. 5) (Cth) and to the explanatory statement which "explained that the amendment aimed to put the assessment of education progress into the hands of the education provider": [2013] FCA 1007 at [15]. His Honour further observed that the "power of the Court is limited once a certificate has been issued" and that in "some circumstances, this may work an injustice": [2013] FCA 1007 at [17]. To address this prospect, North J observed that s 351 of the Migration Act confers a discretion upon the Minister to substitute a more favourable decision if the Minister thinks it is in the public interest to do so. 15 One of the objectives or policies sought to be achieved by condition 8202(3) is to place the assessment of educational matters in the hands of the education provider - rather than those of the Minister: Jayasekara [2006] FCAFC 167 at [16], (2006) 156 FCR 199 at 202 per Heerey and Sundberg JJ; Casse [2013] FCA 1007 at [15] per North J. On occasion, the conferral upon separate entities of power to make an assessment of factual matters may be inconsistent with the statutory scheme and hence can lead to invalidity: e.g., Plaintiff M47/2012 v Director-General of Security [2012] HCA 46, (2012) 251 CLR 1. The condition of the visa there in question (cl 866.225) required compliance with a Public Interest Criterion (PIC 4002) that required a person not be assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. A majority consisting of French CJ, Hayne, Crennan and Kiefel JJ concluded that the condition was invalid. In so concluding, French CJ reasoned: [71] … The public interest criterion requires the Minister to act upon an assessment which leaves no scope for the Minister to apply the power conferred by the Act to refuse the grant of a visa relying upon those Articles. It has the result that the effective decision-making power with respect to the disentitling condition which reposes in the Minister under the Act is shifted by cl 866.225 of the Regulations into the hands of ASIO. Further, and inconsistently with the scheme for merits review provided in s 500, no merits review is available in respect of an adverse security assessment under the ASIO Act made for the purposes of public interest criterion 4002. Public interest criterion 4002 therefore negates important elements of the statutory scheme relating to decisions concerning protection visas and the application of criteria derived from Arts 32 and 33(2). It is inconsistent with that scheme. In my opinion cl 866.225 of the Regulations is invalid to the extent that it prescribes public interest criterion 4002. [72] Because public interest criterion 4002 is invalid, the refusal of the plaintiff's application for a protection visa was affected by jurisdictional error … Although not urging that condition 8202(3) is invalid, Counsel for the Appellant in the present case urged that the inherent danger in shifting power from the Minister or his delegate to the education provider was a reason to construe cl 572.235 in a manner which avoided the conclusive nature of a certificate issued by an education provider. 16 Notwithstanding the recognised potential for injustice or unfairness that could be occasioned to a student by the various forms in which condition 8202(3) has been expressed, the conclusion which necessarily must be reached is that: condition 8202(3) - as previously expressed and as now expressed - does not permit of any qualification which allows recourse to the concept of "substantial compliance" for the purposes of cl 572.235; although the potential for injustice or unfairness had been recognised in respect to the operation of condition 8202(3), there is no decision of a Full Court of this Court which has concluded that that condition is void and, more importantly, existing decisions have proceeded only upon the basis that the condition is one which may lawfully be imposed; and clause 572.235 requires compliance with each of the conditions to which a visa is subject. Counsel for the Appellant repeatedly stopped short of a submission that the condition is invalid. Any such submission would have been rejected. Neither cl 572.235, nor condition 8202(3), is void for uncertainty; nor is either the clause or the condition inconsistent with the Migration Act. But contrary to the submission in fact advanced, none of the decisions relied upon provide any reason, with respect, to construe cl 572.235 in any manner other than that which is conveyed by the natural and ordinary meaning of the words employed. With the exception of the decision in Dai, which in any event was a decision directed to the operation of s 116 of the Migration Act, the recognised potential for unfairness has not led any other Judge of this Court to construe cl 572.235 as having been complied with in circumstances where an adverse certificate has been issued.

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