Shrestha v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-04-03|Before: Madgwick J

REASONS FOR JUDGMENT HIS HONOUR: 1 The applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") of a decision of the Migration Review Tribunal ("the Tribunal") on 14 August 2000. The Tribunal affirmed the decision of the respondent Minister's delegate to cancel the applicant's student (Class TU) subclass 560 visa ("student visa"). It is claimed that the decision of the Tribunal was made contrary to s 476(1)(e).

Factual background 2 The applicant, a citizen of Nepal, arrived in Australia on 31 May 1997 on a student visa which was valid until 9 July 1999. He was granted a further student visa on 9 July 1999 valid to 2 September 2000 to study at the Kent Institute of Business and Technology ("the Kent Institute"). He enrolled there in a Diploma of Information Technology course which commenced on 2 August 1999 and finished on 28 July 2000. 3 On 10 December 1999, the respondent Minister's Department was notified by the Kent Institute that the applicant had failed to meet course requirements and was not completing the course in which he was enrolled. 4 On 7 January 2000, the applicant was notified by the Department of an intention to cancel his visa under s 116 of the Act. A response to the Department's notice was sent on behalf of the applicant on 20 January 2000 by Little N' Bons' Associates, migration agents. It included a copy of the applicant's results from 23 June 1997 to 21 June 1999, showing that, during that earlier two-year period, he had completed all his subjects and had an attendance rate of 82%. On 14 February 2000, a decision was made by a delegate of the respondent Minister to cancel the student visa held by the applicant pursuant to s 116(1)(b) of the Act for a failure to meet course requirements. On 15 February 2000, the applicant filed his application for review of the decision to cancel his student visa with the Tribunal. 5 The Tribunal sought further information from the Kent Institute and received a letter dated 29 March 2000, which stated that the applicant's attendance rate from 2 August 1999 to 10 December 1999 was 9.5% and that the applicant had attempted only one subject in that period, for which he received a mark of 63%. Kent Institute also informed the Tribunal that they did not have any doctor's certificates from the applicant nor had any leave requests by him been approved. 6 On 2 June 2000, the applicant wrote to the Tribunal setting out his response to the cancellation of his student visa. He acknowledged in this letter that he "had a very poor attendance" during the period of 2 August 1999 to 10 December 1999, but claimed that this was partly caused because of family problems, including the death of his father. The Tribunal also received a letter from Dr P S Prabhu, replying to a request for information from the Tribunal concerning the applicant, in which he indicated that he had seen the applicant on five occasions between 29 August 1999 and 11 April 2000 relating to stress and depression. 7 Unable to complete his course at the Kent Institute, the applicant enrolled on 28 February 2000 as a full time student at the University of Ballarat's Sydney campus, studying for a Graduate Diploma in Information Technology, which he was due to complete on 28 February 2001. The Tribunal received a letter from the University of Ballarat on 2 June 2000 indicating that the applicant's academic performance was satisfactory and his attendance rate as at that date was 97%.

Relevant legislation 8 Section 116 of the Act provides: "(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 … (fa)in the case of a student visa: (i) its holder is not, or is likely not to be, a genuine student; or (ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or (g) a prescribed ground for cancelling a visa applies to the holder. (1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose. (1B) In paragraph (1)(fa): student visa means a visa described in the regulations as a Student (Temporary) (Class TU) visa. (2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled. (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." (Emphasis added) 9 Regulation 2.43(2) of the Migration Regulations 1994, set out the prescribed circumstances contemplated by s 116(3): "(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: (i) [possible conditions limiting engagement in paid work]; or (ii) condition 8202." 10 At all relevant times, the operative version of condition 8202 (pursuant to the Migration Amendment Regulations 1998 (No 10)) read: "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." 11 In addition, the Minister had authorised the issue of a "Procedures Advice Manual". As in effect at the time of the Tribunal's decision (and, materially, to the same effect as the previous version at the time of the delegate's decision), it stated: "14.3 Condition 8202 ("Enrolment and course requirements") Loss of student status 14.3.1 A student must abide by the following requirements prescribed in condition 8202 in order to be regarded as 'satisfying course requirements': … · attend at least 80% of the course's scheduled classes and tutorials (as evidenced by the education provider's records of attendance); or · if attendance cannot be evidenced, achieve an academic result certified by the education provider to be at least satisfactory. … 14.3.5 Any student whom DIMA officers suspect is not complying with this condition should be interviewed and the following considered: · the student's reason(s) for not abiding by the standards or conditions of the education provider. Failure to pass a course does not in itself mean that the student is not complying with this condition. However, reasons for failure should be investigated as failure may be an indication that the student's attendance record has not been satisfactory; · whether the circumstances were reasonably beyond the student's control (e.g. absence or failure due to illness or non-elective surgery); · whether the student is able to provide evidence in support of these circumstances (e.g. medical certificates); and · whether the student has decided to leave Australia or has enrolled with another education provider or for another course and would meet legislative requirements to be granted a visa 560."

The Tribunal's reasons 12 In his reasons for decision, the Tribunal member stated: "The uncontradicted evidence before me is that the Applicant did not attend at least 80% of the course in which he was enrolled from 8 July 1999. The Applicant admits non-attendance but says he was, in fact, at the college and failed to formally register his presence….I find it implausible that he would attend the college and fail to sign the register for this protracted period of time. The policy guidelines state that when assessing whether a student is not complying with condition 8202, officers should consider whether the circumstances were reasonably beyond the student's control. The Applicant says he was depressed and distressed because of the sudden death of his father of which he was advised on 16 August 1999… However, he was well enough to undertake 30 hours of work per week from early October 1999, thereby consciously breaching another visa condition, and did not consult the doctor for a further 5 months until after receiving the cancellation notice from the Department. …I am not satisfied the circumstances of the breach were reasonably beyond the Applicant's control. On all the evidence I am satisfied that the Applicant has not complied with condition 8202. Given that this is the case the Tribunal has no discretion as to whether or not to cancel the Applicant's visa. It cannot take compassionate or other circumstances into account. Regulation 2.43(2)(b)…is applicable. It makes it clear that in these circumstances the visa must be cancelled."

The case for the applicant 13 By his amended application in this Court the applicant asserts that the Tribunal was bound to apply the policy set out in the Procedures Advice Manual. The argument proceeds that the policy envisages that regard should be had to whether the student's absence or failure were due to "circumstances reasonably beyond the student's control", but the Tribunal did not fully consider this matter. In particular, regard was not had to the likely effect of his father's death upon him. 14 As a preliminary point, condition 8202 applies only to student visas granted on or after 1 December 1998. The applicant's visa was granted to him on 31 May 1997. A further visa was granted to him on 9 July 1999. Whether this was a new visa and subject to condition 8202 or an extension of his existing visa is not clear on the evidence. The question whether condition 8202 may not apply to the applicant was not raised by the solicitor for the applicant or Counsel for the respondent Minister and accordingly, I will proceed on the basis that condition 8202 is applicable, as put forward by both parties.

Conclusions 15 It is true that the Tribunal did not fully have regard to the Procedures Advice Manual policy. The Tribunal simply said: "Of this condition the Procedure Advice Manual states: 12.3.1 A student must abide by the four requirements prescribed in condition 8202 in order to be regarded as 'satisfying course requirements'." 16 If it were legitimate for the Tribunal to have regard to the substance of the policy, it is clear that the broad question "whether the circumstances were reasonably beyond the student's control" was not considered. This appears to be "an error involving an incorrect application of the applicable law" within the meaning of s 476(1)(e) and, as such, a matter that would permit the Court's intervention. That would be so, notwithstanding that merely "failing to take a relevant consideration into account in the exercise of a power" does not for the purposes of s 476 fall, as in other circumstances it would, within the purview of an "improper exercise of the power conferred by [the Act] or the regulations": ss 476(1)(d) and (3)(e). 17 However, the question arises whether the policy, although apparently a sensible one designed to mitigate the draconian nature of Reg 2.43(2) and condition 8202, was lawfully promulgated. On one view, s 116(3), Reg 2.43(2) and condition 8202 appear on their face designed to deny a discretion not to cancel a visa if the condition was not complied with. If such a literal reading is the correct one, then it could not be altered by the mere promulgation of an administrative policy. Condition 8202, read literally, would permit no misadventure to a visa-holder, not illness, not accident, not duress, however blameless the visa-holder might be, to mitigate the visa-holder's fate. 18 There are in my opinion three reasons why condition 8202 should not be read literally: first, that would be inconsistent with the express policy of parliament as to student visas; second, a purposive interpretation, which would assist the applicant is both possible and mandated; or, third, the regulation promulgating condition 8202, if it is to be read literally, would be invalid as beyond the power of the regulation-maker.

19 As to the first matter, s 116(1)(fa)(i) of the Act clearly indicates Parliament's relevant intention: a student visa might be cancelled if its holder is not or is likely not a "genuine student". It may safely be imputed to the legislature, in my opinion, that it did not intend that the respondent Minister's delegate could permit, let alone effectually require, a person who might well be a genuine student but had failed in attendance and/or assessment through innocent temporary mishap, to lose his or her visa. Indeed, s 116(3) makes the Minister's contemplated lack of discretion not to cancel a visa conditional on both: (a) his having the statutory power to cancel a (student) visa; and (b) a prescription (by regulations) of circumstances in which a visa must be cancelled. 20 Even if the power to make the prescription in (b) is not conditional on its not being contrary to s 116(1), the power in (a) certainly is. The power only exists in relation to a non-genuine or likely non-genuine student. An otherwise genuine student does not lose his or her genuineness or likely genuineness because of transient misadventure. If the applicant's was such a case, the regulation could not oblige the Minister to cancel his visa. The Tribunal, standing in the respondent Minister's shoes, therefore, would have had a discretion as to whether to cancel the applicant's visa. 21 As to the second and third matters, the relevant purposes underlying the enactment by Parliament of a system of visas for students who are aliens may be readily inferred: to do good by giving access to Australian providers of education to people who cannot access such facilities in their own countries, and to do well by assisting such providers to market their services to foreign as well as domestic students. At the same time, there is an evident purpose, consonant with the whole Act, to prevent the undermining of the efficacy of the visa system by resort, by aliens, to merely colourable efforts to study. Such purposes are plainly undermined by delegated legislation which would encourage genuine foreign students here but then, for mere misadventure, pack them off again. 22 This being so, either the regulation must be accorded a purposive interpretation, assuming the limits of such an approach are not transgressed, or the regulation should be regarded as, to that extent, travelling beyond the scope and purpose of the regulation-making power conferred by the legislature. It would be highly preferable, if possible, to apply the first of these approaches so as to give the regulation a reasonable construction; see the approach in Ferner v Wilson (1906) 4 CLR 785, Matthews v City of Prahan [1925] VLR 469 at 476-77 per Irvine CJ and Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565. The limits to such an approach were seen by McHugh JA as, at once, large but limited in Bermingham v Corrective Services Commn of NSW (1988) 15 NSWLR 292. His Honour said: "To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved. … a court [may do so] when three conditions are fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect." 23 The course of later judicial authority does not diminish the force and weight of this approach: see Leah v Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 86 FCR 230 at 234-235, Transport Action Group Against Motorways Inc v Road and Traffic Authority & Anor (1999) 46 NSWLR 598 per Mason P at 627 and Pyramid Building Society (In Liq) v Terry (1997) 189 CLR 176 per McHugh J at 195-196. 24 Those conditions are, in my opinion, satisfied: the relevant purposes of the Act and regulations are evident, as are the "mischiefs" with which they were to deal, and it is clear that the framers of the provisions in question did not turn their minds to the question of misadventure. One can also say "with certainty" what those framers would have provided: this is that the requirements of condition 8202 should not apply if the circumstances of failure to meet the requirements were beyond the student's reasonable control and this could be satisfactorily shown. This "certainty" arises because the policy was broadly conformable with the parliamentary guidance (in s 116(1)(fa)) on the very point; and it was contemporaneously enough promulgated by the Minister, a member of the government which advised the Governor-General, the regulation-maker. No difference between the Minister and the Governor-General on such a matter can, in point of constitutional theory and practice, be admitted: see Steiner & Anor v Attorney-General for Commonwealth of Australia (1983-84) 52 ALR 148 at 152-153 per Beaumont J. The attitude of the delegated legislator is therefore to be taken to be that of the Minister, whose position was made clear in the policy document. 25 Alternatively, although, I trust, observing due caution and appropriate respect from the judicial arm of government for the executive (and perhaps particularly when the Governor-General is the regulation-making authority: see e.g. Zhang Fu Qui v Minister for Immigration & Multicultural Affairs (1994) 55 FCR 439 at 447 per Lockhart J), I think this is a case where, in its application to cases of proven misadventure, the regulation read literally does, in my opinion, qualify as standing outside the scope of what Parliament authorised. 26 In Williams v Melbourne Corporation (1933) 49 CLR 142 at 155 Dixon J said: "… the true character of the by-law may … appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power." This has developed into a test of "reasonable proportionality" and was restated by the High Court in South Australia v Tanner (1989) 166 CLR 161. The majority said at 167-168: "… the test of validity is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved … It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power." These authorities were considered by Gummow J in Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 577: "These observations in the High Court indicate that whatever may be the sweep of the proportionality principle in federal constitutional law, when the question of validity is concerned with delegated legislation made pursuant to a law of the Parliament whose validity itself is not impugned, the proportionality principle is differently focussed. The observations by their Honours further suggest that here at least there has been no significant shift in doctrine and, indeed, that the subject is still controlled by what was said by Sir Owen Dixon [in Williams] … The fundamental question is whether the delegated legislation is within the scope of what the Parliament intended when enacting the statute which empowers the subordinate authority to make certain laws." (Emphasis added) 27 The Governor-General's power to make regulations is, as set out in s 504(1) of the Act, to "make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act …". The purposes of the Act, as it relates to visas, can be broadly said to be to control the granting of visas to suitable applicants and ensure that aliens do not abuse the privilege of the visa. In relation to student visas, the purposes are as set out in para 21 above. However, the provisions of condition 8202, read literally, cannot be said to be reasonably proportional to those purposes, as the condition does not allow for any sort of discretion in the event of genuine misadventure on the part of a "genuine student". Hence a purposive approach can and should be applied. 28 It follows that, in the result, it was legitimate for the Tribunal to have regard to the policy, and that the Tribunal misinterpreted the legislation as not permitting that. Accordingly, there were reviewable errors of law within the meaning of s 476(1)(e).

Disposition 29 The decision of the Tribunal will be set aside and the matter remitted to it for further consideration according to law.

Costs 30 Although the normal rule is that costs follow the event, I intend to exercise the discretion to depart from the normal rule. The applicant's solicitor filed an application for review and when this matter was first listed for hearing, presented submissions which did not raise any issue of law. During the course of the first hearing I raised a number of issues. Mr Newman did to some extent consider these in his amended application for review and subsequent submissions. The costs of the first hearing date were wasted through no fault of the respondent Minister. Accordingly, the applicant is to pay the costs of the first hearing. No doubt Mr Newman will consider whether his client should personally suffer those costs. I will give the applicant liberty to apply on 7 days' notice to Mr Newman in relation to that matter. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Date of Hearing: 17 November 2000 6 December 2000

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