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[1999] FCA 1240
Federal Court of Australia
1998-12-01
Gyles J
Original judgment source is linked above.
INTRODUCTION 1 The applicant is a citizen of Nepal. He arrived in Australia on 10 March 1995 having been granted a Student (Temporary) (Class TU) Subclass 560 visa until 20 March 1997. He enrolled in, and satisfactorily completed, a diploma course in Business Studies at Insearch Institute of Commerce, University of Technology, Sydney. He then enrolled at the University of Western Sydney, Nepean, undertaking a Bachelor of Commerce - Human Resource Management and Industrial Relations course. He started this course in July 1997 but changed the course in the first week of studies to a Bachelor of Commerce - Computing and Information Systems course. The applicant is a full fee paying student. A further visa of the same type was granted to the applicant on 15 April 1997, effective until 30 July 2000. 2 On 3 March 1999 the Department of Immigration and Multicultural Affairs ("the Department") advised the applicant of its intention to cancel his student visa. The applicant was interviewed by officers of the Department on 17 March 1999 and his visa was cancelled on that day. The applicant then applied to the Immigration Review Tribunal ("the IRT"), as it was then called, to review the decision of the Minister's delegate. The IRT decided, on 26 May 1999, to affirm the decision under review. The applicant then made an application to this Court to review the decision of the IRT.
ISSUES 3 The delegate based her decision to cancel the applicant's visa on the applicant's failure to comply with condition 8202 in Schedule 8 of the Migration Regulations 1994 (Cth) ("the Regulations"). Prior to 1 December 1998, and at the time the applicant was granted a student visa, condition 8202 read as follows: "8202 The holder must satisfy course requirements." On 1 December 1998 a new form of condition 8202 was substituted to read as follows: "8202 The holder must: (a) be enrolled in a registered course; and (b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and (c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and (d) comply with any requirement of the education provider in relation to payment of fees for the course." 4 At all material times, s 116 of the Migration Act 1958 (Cth) ("the Act") included the following provisions: "116 (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." 5 In the same instrument as substituted the new form of condition 8202, a new subreg 2.43(2) was substituted in the Regulations so as to read: "For subsection 116(3) of the Act, the circumstances in which the Minister must cancel are 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 condition 8202." 6 The notice of intention to cancel a visa which the Department sent to the applicant referred to cancellation under either paragraph 116(1)(a) or (b) of the Act, and the record of decision makes it clear that the delegate proceeded on the basis of the new form of condition 8202. Interestingly, however, a departmental document which forms part of the evidence, and sets out visa conditions, assumes that the earlier form of 8202 applies to visas applied for before 1 December 1998 and that the later form only applies to visas applied for on or after that date. 7 The decision of the IRT, however, proceeded upon the footing that the old form of condition 8202 was applicable, but that the new subreg 2.43(2)(b) was applicable. The IRT also made a puzzling reference to s 116(1)(g) which is undoubtedly an error in construing the legislation but which does not seem to have any real consequence. 8 The applicant attacks the IRT's application of subreg 2.43(2)(b), and the respondent attacks the application of the old form of condition 8202.
ARGUMENTS 9 It was submitted for the applicant that the visa granted to him conferred substantive rights on particular conditions, and that the amending regulation should not be construed in a fashion which would interfere with those rights. Otherwise, it would have a retrospective effect. 10 The respondent submits that there is no retrospective operation in the true sense, there being a distinction between legislation having a prior effect on past events and legislation basing future action on past events, referring to paragraph 10.4 of Statutory Interpretation in Australia (4th ed), Pearce and Geddes, Butterworths, 1996. It was submitted that there was no "accrued right" involved such as was discussed, for example, in Esber v Commonwealth (1992) 174 CLR 430 at 440-441. It was submitted that s 116 contemplates circumstances changing from time to time, and that the amendment of visa conditions was always an inherent characteristic of the rights involved. It was submitted that this was simply a case of a tribunal applying the law as it stood at the time of the decision.
STATUTORY BACKGROUND 11 In order to resolve the issue, it is necessary to understand a little more about the nature of a visa, with particular reference to the conditions of a visa. Visas for non-citizens are dealt with in Division 3 of Part 2 of the Act. By s 29, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia. 12 The kind of visa here in question is a temporary visa (s 30). Section 31 provides for prescribed classes of visa with prescribed criteria for a specified class. Conditions on visas are dealt with by s 41, which, relevantly, provides as follows: "41(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions. … (3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection." 13 The Act deals with the application for a visa, consideration of which ultimately leads to the grant or refusal of the visa (s 65). Subdivision AE deals with evidence of visas (ss 70 and 71). 14 Visas are dealt with in Part 2 of the Regulations. For present purposes, Division 2.1 of that Part, dealing with "Classes, Criteria, Conditions etc", is the most important. This works by way of schedules to the Regulations. Schedule 1 sets out the classes, Schedule 2 identifies subclasses and Schedule 8 sets out visa conditions. Regulation 2.05 deals with conditions, the most important provisions being as follows: "2.05 (1) For the purposes of subsection 41(1) of the Act (which deals with conditions that apply to a visa), the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included. (2) For the purposes of subsection 41(3) of the Act (which deals with conditions that may be imposed on a visa), the conditions that the Minister may impose on a visa are the conditions (if any) referred to as being conditions that may be imposed in the Part of Schedule 2 that relates to visas of the subclass in which the visa is included. …" 15 Schedule 8 to the Regulations is entitled "Visa Conditions", and a series of numbered paragraphs with particular conditions follow. Condition 8202 is one of the numbers. In Schedule 2, where a particular subclass is dealt with, a clause lists the conditions out of those set out in Schedule 8 which are applicable for that subclass. 16 At the time of the grant of the Student (Temporary) (Class TU) Subclass 560 visa to the applicant, condition 8202 was identified as a condition applying to that visa. Division 2.4 of the Regulations deals with evidence of visas. In the particular case of a student visa of the type here concerned, evidence is by visa label affixed to a valid passport. 17 The relevant entries in the applicant's passport are as follows: "CLASS TU STUDENT P146 SUB CLASS 560 CONDITIONS MIG.REGS.SCHED.8 8517 SCHOOL-AGE DEPENDANTS 8501 HEALTH COVER 8105 WORK LIMITATION 8202 MEET COURSE REQUIREMENTS GRANTED 07 MAR 95. MUST NOT ARRIVE AFTER 15 MAR 95. SINGLE TRAVEL. HOLDER(S) PERMITTED TO REMAIN IN AUSTRALIA UNTIL 20 MAR 97." "CLASS TU STUDENT P146 SUB CLASS 560 CONDITIONS MIG.REGS.SCHED.8 8105 WORK LIMITATION 8202 MEET COURSE REQUIREMENTS 8501 HEALTH COVER GRANTED 15 APR 97. HOLDER PERMITTED TO REMAIN IN AUSTRALIA UNTIL 30 JUL 00. MULTIPLE TRAVEL. MUST NOT ARRIVE AFTER 30 JUL 00."
REASONING 18 I have not been referred to any authorities which analyse the nature of a visa, but it is obviously a question of status of great importance to the holder of the visa. The scheme appears to be that conditions attached to visas are general, in the sense that they apply to categories of visa rather than being tailor-made to suit the particular applicant. Indeed, s 65 provides that the fate of an application, as I have said, results in either grant or refusal of the visa, but does not include grant on conditions particular to the individual application. 19 In my opinion, when the visa was granted on 15 April 1997 the applicant was permitted to remain in Australia until 30 July 2000 on the conditions then specified, including 8202 as it then stood (and as summarised on the passport). The scheme of the Act and Regulations could, but does not, provide for variation of the conditions during the term of a visa. In my opinion, s 50 of the Acts Interpretation Act 1901 (Cth) applies and the repeal and re-enactment of condition 8202 does not affect the rights acquired by the applicant upon the grant of the 1997 visa. Heerey J recently examined the relevant principles and authorities concerning the application of s 50 in Keeley v Repatriation Commission [1999] FCA 1103, which came to my attention after argument in the present case, albeit in a different setting. I therefore agree with the author of the departmental document summarising the conditions as to their effect. 20 It follows that the delegate had regard to the wrong condition, but that the IRT had regard to the correct condition. It did so, however, on the footing that the amended subreg 2.43(2)(b) applied. 21 This amendment is different in character from that involved in the change to condition 8202 in Schedule 8. Legislating for cancellation of a visa for breach of condition may not affect accrued rights in the same way as changing the conditions imposed upon entry. However, in the present case, it seems to me that, as a matter of construction of the Migration Amendment Regulations 1998 (No. 10) (Cth), it is to be concluded that when the substituted subreg 2.43(2)(b) refers to condition 8202, it is referring to a condition in the form substituted by the same regulations. In a sense, the fact that it bears the same number is co-incidental - the substance is different from that which went before it.
CONCLUSION 22 Therefore, in my opinion, the IRT fell into error of law in applying the substituted subreg 2.43(2)(b) in its consideration of this case. 23 What effect that may have upon reconsideration is not a matter for me. Without entering upon the merits of the matter, I should say that I do not agree that it is possible to read the new terms of condition 8202 into the former terms of 8202 "as a matter of policy" in accordance with a portion of the Department's Procedures Advice Manual reproduced by the IRT in the reasons for its decision. 24 The decision under review will be set aside. There will be a direction that the matter be remitted to the Migration Review Tribunal for further consideration according to law, and an order that the respondent pay the applicant's costs of this application. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.
Solicitor for the Applicant: Mr S Diab of John H Maait & Co
Solicitor for the Respondent: Australian Government Solicitor
Pradhan
Minister for Immigration & Multicultural Affairs
(1992) 174 CLR 430