Morsed v Minister for Immigration & Multicultural & Indigenous Affairs

· Mr Morsed did not report to the department in response to the notice. As a result of the operationof s 137J of the Migration Act 1958 (Cth) ("the Act") the visa was cancelled.

The MRT's decision 3 The MRT referred to condition 8202. At the material time it provided: "(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 an 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:

(a) 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

(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.

(4) In the case of the holder of a Subclass 560 visa who is an AusAID student of the holder of a Subclass 576 (AusAID or Defence Sector) visa - the holder is enrolled in a full-time course of study or training." 4 The MRT noted that during the semester ending October 2002, Mr Morsed failed two out of his three subjects. The MRT was satisfied that he did not achieve an academic result in that semester which the University could certify to be at least satisfactory within the meaning of condition 8202(3)(b). The MRT also found that his attendance rate was less than the 80 per cent referred to in condition 8202(3)(a). 5 The MRT then considered, in accordance with s 137J(1)(b) of the Act, whether the breaches of condition 8202 were "due to exceptional circumstances beyond the non-citizen's control". The MRT found that no exceptional circumstances existed.

The Federal Magistrate's decision 6 The Federal Magistrate, in an ex tempore judgment, set out the MRT's reasons for decision in rejecting the appellant's challenge to the visa cancellation. His Honour noted that Mr Morsed's counsel relied upon two alleged errors on the part of the MRT. The first was its supposed failure to take into account, as a possibility, that his low attendance record might simply be the result of having arrived ten minutes late for class on some occasions, but having been marked as absent. The second concerned the University's treatment of his academic results. 7 The Federal Magistrate rejected both of these contentions. There is no challenge to his Honour's reasoning on these matters in the appeal to this Court. Accordingly, nothing more need be said about them. The Appeal to this Court 8 Prior to the hearing of the appeal, counsel for the Minister indicated that it proposed to consent to orders being made allowing the appeal, and quashing the decision of the MRT. That consent was proffered on the basis of a recent decision of the Federal Magistrates Court in Uddin v Minister for Immigration and Multicultural and Indigenous Afairs [2005] FMCA 841. In thatcaseit was held that the s 20 notice, which was relevantly indistinguishable from that issued in the present case, was invalid on a number of grounds, including in particular its failure to set out accurately the effect of s 137J(2)(b)(ii) of the Act. 9 More specifically, Uddin held that the s 20 notice was defective because, inter alia, it failed to inform the applicant in that case that he could report to an "officer" for the purpose of explaining the alleged breach, but instead required him to report to a "compliance officer". This was said to impose a more restrictive requirement than permitted by s 20 of the Overseas Students Act. Uddin also held that the s 20 notice was invalid because it required the applicant to report to a particular DIMIA office, at 2 Lonsdale Street, Melbourne, rather than reporting to any DIMIA office, anywhere in Australia, as s 137J(2)(b) permitted. 10 An appeal by the Minister from the decision in Uddin was ultimately abandoned. On 10 August 2005, that appeal was dismissed by consent. 11 The Minister's concession before us that the s 20 notice did not comply in an important respect with the requirements of s 20, based upon the principles laid down in Uddin, is sufficient to justify allowing the appeal, and setting aside the cancellation decision. However, in taking that course, we should not be taken as endorsing all aspects of the reasoning in that case. 12 There is, however, a matter of real concern arriving out of the form in which s 20 notices are apparently being drafted. It involves the interaction between the s 137J "automatic" cancellation scheme, and the cancellation scheme of general application that applies under s 116 of the Act. Specifically, we are concerned that the following statement in the s 20 notice may be misleading: "If you report to DIMIA as required under this notice, the automatic cancellation of your student visa will not proceed, but a decision will then be made whether or not to cancel your visa. Your student visa will not be cancelled if you can show that no breach occurred." 13 Section 116(1) of the Act applies to all categories of visas. It grants the Minister a general power to cancel visas if holders have breached visa conditions. Although framed in discretionary terms, s 116(3) states that this power must be exercised if prescribed circumstances exist. Regulation 2.43(2)(b) of the Migration Regulations 1994 (Cth) provides that, subject to an exception not presently relevant, breach of condition 8202 is such a prescribed circumstance in the case of a Student (Temporary) (Class TU) visa. Therefore, pursuant to s 116, the Minister is compelled to cancel that student visa if she is satisfied that the attendance or academic performance requirements of condition 8202 have not been met. 14 The provisions relating to automatic cancellation of student visas were introduced to the Act in 2000. Section 20 of the Overseas Students Act obliges "registered providers" (educational institutions) to send a written notice to a student "if a student has breached a student visa condition relating to attendance or satisfactory academic performance". Clearly, condition 8202 is such a visa condition. 15 Section 137J of the Act is in the following terms: "(1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice). Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen's visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach. (2) The non-citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day: (a) the non-citizen complies with the notice; or (b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either: (i) in Australia; or (ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette; makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice." 16 Section 137K provides that once a visa has been automatically cancelled pursuant to s 137J, the non-citizen may apply to the Minister for revocation of that cancellation. Section 137L sets out the bases on which the Minister may revoke the s 137J cancellation: "(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister: (a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or (b) that the breach was due to exceptional circumstances beyond the non-citizen's control; or (c) of any other matter prescribed in the regulations. (2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J. (3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made." 17 If a person is sent a s 20 notice, having breached condition 8202, and then complies with that notice by making themselves available to an officer to explain the breach, their visa will not be automatically cancelled under s 137J. 18 However, that person remains subject s 116, which requires the Minister to cancel a visa if she is satisfied that there has been a breach of condition 8202. Once a s 20 notice has been sent, and a person has attempted to "explain the breach" (rather than deny it), it is difficult to see how the Minister could fail to be satisfied that there has been a breach of condition 8202. Therefore, while the person may not have their visa automatically cancelled, the Minister will be compelled to cancel pursuant to s 116. 19 In contrast, if that same person does not "report to DIMIA" to explain the breach, their visa is automatically cancelled. Once a visa has been automatically cancelled pursuant to s 137J, they may apply for revocation of that automatic cancellation on the ground that the breach was due to "exceptional circumstances beyond the non-citizen's control". 20 If revocation is granted, not only is the automatic cancellation revoked, but, more importantly, the breach in issue is prevented from being used as a basis for cancelling their visa under s 116. This is because s 137P(2) provides: "(2) If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116." 21 Therefore, the only way a holder of a student visa who has breached condition 8202, but whose breach was due to exceptional circumstances beyond their control, can avoid having their visa cancelled is to not comply with the s 20 notice. 22 Given this, we consider that the statement in the s 20 notice, extracted above, is misleading. In the event that a person has breached condition 8202, and reports to DIMIA as requested, it is incorrect to state that "a decision will then be made whether or not to cancel your visa". This may imply some sort of discretion on the part of the officer, particularly given that the notice asks the recipient to "explain" their breach. It implies that it is possible that the visa will not be cancelled if the breach is adequately explained. However, the true position is that the Minister is obliged under s 116 to cancel the visa if satisfied there has been a breach. 23 Furthermore, the s 20 notice may be misleading by omission. The notice states that the visa will not be cancelled "if you can show that no breach occurred". It does not go on to say the corollary of that, which is that a visa will be cancelled if a breach did occur, (or, probably more accurately, if it cannot be shown that no breach occurred). 24 For those visa-holders who have breached condition 8202, but may have exceptional circumstances beyond their control to explain that breach, the notice creates a trap. It encourages the visa-holder to explain their circumstances to avoid automatic cancellation. However, it does not tell them that in doing so, and in admitting a breach, they will then have their visa cancelled pursuant to s 116. 25 In fact, if a person's breach was due to exceptional circumstances beyond their control, they would be best served by not complying with the s 20 notice, having their visa automatically cancelled under s 137J, and then applying for revocation under s 137K. If revocation is granted, their breach is then "immunised" from being used as a basis for cancelling their visa under s 116. 26 We would urge the department to give careful consideration to modifying the standard form of a s 20 notice in order to avoid the difficulties outlined above. 27 In any event, having regard to the Minister's concession, the appeal will be allowed. The order of the Federal Magistrates Court made on 15 November 2004 dismissing the appellant's application for review is set aside. In lieu thereof it is ordered that: (i) in accordance with SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 the MRT be joined as a respondent to this appeal; (ii) there be an order in the nature of certiorari to quash the decision of the MRT made on 29 September 2003; and (iii) there be an order in the nature of mandamus requiring the MRT to review according to law the decision made by a delegate of the Minister on 21 February 2003 not to revoke the cancellation of the Student (Temporary)(Class TU) visa held by the appellant

Costs 28 The Federal Magistrate ordered Mr Morsed to pay the Minister's costs fixed in the sum of $6,500. The point on which the appellant has succeeded in this Court was not raised below. 29 In these circumstances the parties were invited to provide submissions to the Court regarding the question of costs. The appellant submitted that he should recover his costs of the appeal, and also the costs of the proceedings before the Federal Magistrate. Alternatively, he submitted that, at the very least, he should not be required to pay the costs of the proceeding below. 30 In our view, justice will best be served if the costs order made by the Federal Magistrate is simply set aside, and no order for costs regarding that proceeding is made. The appellant should have his costs of the appeal.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Marshall and Weinberg.

Solicitor for the Appellant: Vernon da Gama and Associates