Sharma v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Circuit Court of Australia given on 19 December 2013, in which the appellant's application for constitutional writs under s 75(v) of The Constitution (Cth), pursuant to the jurisdiction of that court reserved by s 476 of the Migration Act 1958 (Cth) ("the Act"), was dismissed. That application related to a decision of the Migration Review Tribunal ("the Tribunal"), made on 22 April 2013, whereby an earlier decision of a delegate of the respondent Minister not to grant the appellant, Vikas Sharma, a Student (Temporary) (Class TU) visa, was affirmed. 2 At the time of his application for the visa with which the decision of the Tribunal was concerned, the appellant held a Sub-class 572 Vocational Education and Training Sector Visa, which had been granted on 9 January 2009. That visa was subject to conditions which included those set out in cl 8202 of Sch 8 to the Migration Regulations 1994 (Cth) ("the Regulations"), subcll (1) and (3) whereof provided as follows: (1) The holder … must meet the requirements of subclauses (2) and (3). …. (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. 3 With respect to the visa for which the appellant applied in his application dealt with by the Tribunal in the present case, s 31(3) of the Act provided for the Regulations to prescribe criteria for visas of a specified class. By reg 2.03(1) of the Regulations, the "primary criteria" were those set out in the relevant part of Sch 2. By cl 572.235 of that schedule, the following was a criterion which applied to the visa for which the appellant applied: 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. 4 On 4 October 2010, the education provider which was then relevant to the appellant's original visa had certified as follows: Nova International Education Pty Ltd [02856B] (trading as Nova Institute of Technology) on 4 October 2010 certifies Mr Vikas SHARMA, for course Certificate IV in Business Management (BSB41101), as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007). That certificate ("the certificate") came within the terms of cl 8202(3)(b) of Sch 8 to the Regulations. 5 In its decision of 22 April 2013, the Tribunal held that the certificate produced the result that the appellant had not complied with the conditions that applied to the substantive visa which he held at the relevant time and that, therefore, he did not satisfy the criterion set out in cl 572.235 of Sch 2 to the Regulations. This was, the Tribunal held, a condition with which the appellant either complied or not: the notion of substantial compliance had no logical application. 6 The gravamen of the appellant's complaint, both in the Federal Circuit Court and in this court, was that the conclusive effect of the certificate had never been an issue until the hearing before the Tribunal. Until then, apparently, the appellant had provided materials, and answered questions, in response to requests from the Tribunal, but the prospect that his then application might be defeated, without the Tribunal having any discretion in the matter, under cl 8202(3)(b) of Sch 8 to the Regulations had never, he alleged, been raised. 7 Accepting that the jurisdictional dimension of the appellant's complaint is the requirement placed upon the Tribunal to observe procedural fairness, the complaint is answered by the following finding of fact made by the Federal Circuit Court Judge, which was not challenged in this appeal: The Tribunal appears to have raised with the applicant the critical issue on which the decision turned, and gave the applicant an opportunity to respond after consulting with his adviser. 8 In other respects, her Honour held that the appellant had not, either in his application or in his supporting affidavit, identified any jurisdictional error on the part of the Tribunal. Nothing put by the appellant in this appeal casts any doubt on the correctness of that holding. 9 I propose to dismiss the appeal with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.