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[2004] FCA 1078
Federal Court of Australia
2004-08-20
Cooper J
Original judgment source is linked above.
The applicant's submissions 18 The applicant submitted that, as a matter of construction, the purpose of s 20 of the ESOS Act and s 137J of the Act was to give a student the opportunity to explain why he or she had not complied with condition 8202. That meant, in the present case, to give the applicant the opportunity to explain to an officer of DIMIA why he had not achieved satisfactory academic performance. 19 The applicant submitted that the explanation was intended to have some operative statutory effect with respect to the consequence of non-compliance with condition 8202 and that such effect was to be found in giving an ambulatory effect to the words 'has not been complied with' in reg 2.43(2)(b) of the Migration Regulations by adding the words 'without reasonable explanation' or simply by giving the words a less restrictive operation than one requiring strict compliance with the requirement of condition 8202. 20 The applicant submitted that, to fail to give some statutory effect to the words in s 20 of the ESOS Act, the notice given under s 20, or s 137J that it was a requirement 'to attend before an officer for the purpose of explaining the breach', is to treat the direction as a statutory sham because the breach of condition will render cancellation mandatory whether or not the student attends before an officer of DIMIA for that purpose. The applicant further submitted that s 137L indicates that if, notwithstanding a breach of condition 8202, the explanation given is that the breach was due to exceptional circumstances beyond the student's control and that explanation is accepted, the Minister has a discretion not to cancel the visa for breach of condition. Otherwise, the applicant submitted, the student would be better off not attending as required by the notice under s 20 of the ESOS Act because automatic cancellation under s 137J of the Act would give to the student a ground to avoid cancellation which would not otherwise be available to him or her if the Minister were precluded on an exercise of the power under s 116 of the Act to have a discretion whether or not to cancel the visa for breach of condition 8202. 21 The applicant submitted that the MRT failed to consider the explanation given by the applicant and whether or not that explanation constituted reasonable grounds for the breach or the circumstances showed that the breach was due to exceptional circumstances beyond the applicant's control. By holding that the issue was whether or not there had been strict compliance with condition 8202 in regard to satisfactory academic performance, the MRT had allegedly denied the applicant his statutory right to have his explanation considered and, if found acceptable, to receive a favourable exercise of discretion against cancellation. It was further alleged that, in holding that there was no discretion available to it, the MRT failed to exercise the statutory power properly available to it. The applicant contended that both of these circumstances, together or individually, constituted jurisdictional error thus precluding the MRT decision being a privative clause decision for the purposes of s 474 of the Act and thereby not justiciable in these proceedings: Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 and 511. 22 It was submitted in the alternative that, if reg 2.43(2)(b) was not to be given an ambulatory effect, it was inconsistent with s 20 of the ESOS Act and s 137J of the Act and therefore invalid and of no effect as being beyond the regulation making power contained in s 504 of the Act. 23 Finally, the applicant submitted that there was no decision of this Court which required the MRT to come to the conclusion which it did.
THE respondent's SUBMISSIONS 24 The respondent submitted that the MRT's finding that the applicant was in breach of condition 8202 of his visa because he had not achieved an academic result that was certified by the education provider, John Paul College, as being at least satisfactory was a finding of fact. As such, it was not reviewable in this Court: Namm v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32. 25 The respondent submitted that, having made the finding of fact that a breach of the visa condition had occurred, it was open to the Minister, or the MRT standing in the shoes of the Minister, to cancel the visa pursuant to s 116(1)(b) of the Act. Absent any other circumstance, the respondent submitted that the power to cancel would be discretionary. However, in the present case, s 116(3) had an operation by virtue of reg 2.43(2) of the Migration Regulations. Because the breach of condition was a breach of condition 8202 attaching to a student visa subclass 571, the regulation provided the prescribed circumstance for the purpose of s 116(3), which required the Minister to cancel the visa. This conclusion, the respondent submitted, had been consistently arrived at in a series of decisions in this Court: see Minister for Immigration and Multicultural Affairs v Nguyen; Minister for Immigration and Multicultural and Indigenous Affairs v Hou; Akter v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1504; Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495; Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170. 26 The respondent submitted that reg 2.43(2) was not inconsistent with any provision of s 116 of the Act. This was because the regulation was contemplated by the terms of s 116(3) of the Act and was necessary to facilitate the operation of that sub-section. Regulation 2.43(2) merely provided the prescribed circumstances contemplated by s 116(3). Further, the respondent submitted, reg 2.43(2) was not inconsistent with the provisions of subdivision GB of Div 3 of Pt 2 of the Act because that subdivision was concerned with the automatic cancellation of student visas with which reg 2.43(2) had no relevant operation. The respondent submitted that s 20 of the ESOS Act and s 137J - s 137M of the Act were separate and specific provisions dealing with the automatic cancellation of visas which stood separate and apart from the Minister's power to cancel a visa for breach of condition pursuant to s 116(1)(b) of the Act. 27 The respondent submitted that, because there was no relevant inconsistency between the regulation and any operative provision of the Act, it had not been established that the regulation was being beyond the regulation making power contained in the Act and therefore invalid. 28 The respondent submitted that, in these circumstances, there was no error made by the MRT. Accordingly, it was submitted that, as no jurisdictional error was made out and as the decision was a privative clause decision, s 474 of the Act operated to place the decision beyond challenge.
conclusion of appeal 29 The argument which the applicant advanced in these proceedings is based solely upon the introduction of s 20 of the ESOS Act and the insertion of subdivision GB - automatic cancellation of student visas - in Div 3 of Pt 2 of the Act. These statutory changes occurred with the passage of a package of legislative enactments in 2000, being the Acts numbered 164, 165, 166, 167 and 168 of 2000. This package deals with the regulation of education services for overseas students and for related purposes. The five Acts received Royal Assent on 21 December 2000. For the purpose of these proceedings, the only relevant Acts are No 164 of 2000 (the ESOS Act) and No 168 of 2000 (the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) ('the MLA Act')). 30 Prior to the passage and the coming into effect of the ESOS Act and the MLA Act, the cancellation of student visas for breach of a condition occurred when the Minister exercised his or her power of cancellation under s 116 of the Act. The power to cancel under s 116(1) of the Act is, and was, expressly subject to the provisions of s 116(2) and s 116(3). Where s 116(3) operated, the discretionary nature of the power under s 116(1) was lost and if the Minister had a discretionary power to cancel, that power had to be exercised if the prescribed circumstances existed. The prescribed circumstances were those contained in reg 2.43(2) of the Migration Regulations. Those Regulations identified the category of cases where mandatory cancellation was required by s 116(3) of the Act. 31 A breach of condition 8202 attaching to a Student (Temporary) (Class TU) visa became a prescribed circumstance when it was inserted as part of reg 2.43(2) in 1998 by the Migration Amendment Regulations 1998 (No 10). The amended regulation commenced to operate on 1 December 1998. A breach of condition 8202 by a student visa holder prior to the commencement of the MLA Act on 4 June 2001, where the Minister had under consideration the exercise of his or her power to cancel for breach of a visa condition under s 116(1)(b) required mandatory cancellation of the visa by virtue of s 116(3) of the Act and reg 2.43(2)(b) of the Migration Regulations. See Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1285 at [6] - [7]; Peng v Minister for Immigration and Multicultural Affairs [2000] FCA 1672 at [16] - [18]; Patsanza v Minister for Immigration and Multicultural Affairs [2001] FCA 734 at [17]; Ariyagama v Minister for Immigration and Multicultural Affairs [2001] FCA 1407 at [20]; Minister for Immigration and Multicultural Affairs v Nguyen at [11]; Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs at [17]; Minister for Immigration and Multicultural Affairs v Hou at [22]. 32 The question then arises: did the introduction of the ESOS Act and the MLA Act in 2000 and their commencement in June 2001 alter the situation? That requires a consideration of the two Acts and their operations. 33 The ESOS Act is not concerned with the cancellation of student visas. It is concerned with the regulation of the providers of education services to overseas students in Australia. This it does by the registration of providers of education services and the imposition of obligations on them. Those obligations include an obligation to give information about students accepted for courses by the registered provider, including information as to breach of a visa condition concerning attendance or academic performance, or early cessation of a course by an accepted student: see generally Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1058 at [21] - [26]; [29] - [30]. Section 20 of the ESOS Act operates to impose an obligation on the registered provider to give to a student a notice in the event of a breach of an attendance or academic performance condition of a student visa. The purpose of the notice is simply to initiate a process which will cause the student to attend upon a DIMIA officer for the purpose of explaining the breach of visa condition alleged in the notice, or to bring about the automatic cancellation of the visa in the event of non-compliance with the notice or non-attendance on the officer: s 137J(2) of the Act. The notice under s 20 of the ESOS Act has no other purpose and creates no rights or obligations in the student and is effective for the purposes of the Act even if it is not received by the student visa holder: s 137J(1). 34 Section 137J of the Act is part of subdivision GB of Div 3 of Pt 2, which is concerned with the automatic cancellation of student visas. The subdivision is completely self-contained and includes s 137J - s 137N inclusive. The subdivision has no relevant operation in respect of subdivision D of Div 3, which contains s 116 of the Act. Subdivision D is concerned with the cancellation of visas on the grounds specified in s 116 of the Act. Sub-section D has no relevant operation with respect to any of the matters provided for in subdivision GB. 35 The process for automatic cancellation of a student visa is initiated by the giving of a notice pursuant to s 20 of the ESOS Act: s 137J(1) of the Act. Subdivision GB cannot operate in the absence of the giving of a notice under s 20 of the ESOS Act. 36 If a notice is not complied with, the visa is automatically cancelled by force of s 137J(2) upon the expiration of the statutory time period provided for in the sub-section. In that event, the student has the right to seek revocation of the cancellation: s 137K. However, the grounds of revocation are limited to those specified in s 137L of the Act. So far as presently relevant, those grounds are:
(a) that the student did not, in fact, breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the student's control.
37 The perceived anomaly arising from the provisions of s 137L of the Act (see per Mansfield J in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 216 at [33] and [34]) and the applicant's case in the present proceedings as to the existence of an inconsistency arising from the terms of s 137L(1)(b) is, it is said, that a student is better off not complying with the s 20 notice because he or she obtains the benefit of a ground to avoid cancellation (being exceptional circumstances) which is not available to a student who appears in answer to the notice. The unavailability of the exceptional circumstances ground is said to arise because of the operation of s 116(3) of the Act and reg 2.43(2)(b) of the Migration Regulations. 38 The resolution of the apparent anomaly lies, in my view, in the use for which an explanation of the breach alleged in the notice under s 20 of the ESOS Act is sought. The use is to obtain information from the student in respect of what is no more than an allegation of a breach of condition, the allegation being made by the registered provider of the education services. That explanation may reveal that in all the circumstances there does not appear to have been any breach of condition. Or, it may appear that if there was a breach of condition, it was due to exceptional circumstances beyond the student's control. The information is sought not for the purpose of the exercise of any discretionary power under s 116(1) of the Act to cancel the visa. Rather, it is to enable the decision-maker to see whether there appears to be grounds for cancelling the visa for breach of a condition attaching to it concerning attendance or academic progress and, if so, to consider what action, if any, ought to be taken in respect of the visa. In the context of any possible exercise of the cancellation power in s 116, that would require the taking of steps under s 119 of the Act. Section 119 provides as follows:
(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(ii) there is a reason why it should not be cancelled.
(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4) The other provisions of this Subdivision do not apply to a cancellation:
39 Unless a notice is issued under s 119 of the Act and the procedure specified in subdivision E of Div 3 followed, the Minister cannot exercise any cancellation power under s 116 of the Act. The giving of a notice which complies with s 119 of the Act is a statutory precondition to the exercise of the Minister's power to cancel for breach of condition: Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 at 84, 92, 93. 40 The purpose and operation of s 119 was considered by a Full Court of this Court (French, Hill and Carr JJ) in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235. Their Honours said:
'23. Section 119 addresses both the content and the manner of the notification to be given by the Minister or the Minister's delegate before proceeding to cancellation under s 116. Dealing first with its content, the notification must contain a statement "that there appear to be grounds for cancelling" the visa. It must provide particulars of the grounds and "of the information (not being non-disclosable information) because of which the grounds appear to exist". The visa holder is to be invited to show within a specified time that the grounds do not exist or that there is a reason why the visa should not be cancelled (s 119(1)).
41 The notice under s 20 of the ESOS Act does not perform the same function as a notice under s 119 of the Act, and is not a substitute for such a notice. Nor is it open to the decision-maker to affirmatively determine to cancel a visa for breach of condition 8202 on the basis of the explanation given by the student in complying with the notice under s 20 of the ESOS Act. As the Full Court makes clear in the passages cited above, the time for the decision-maker to make a decision does not arise until the procedures in subdivision E of Div 3 have been complied with and at that time the decision is made on the whole of the materials then available to the decision-maker. 42 There is nothing in subdivision GB to indicate that the legislature intended that students, beyond being exposed to the possibility of automatic cancellation of their student visa by force of the operation of s 137J of the Act, were to be treated differently for the purposes of the Act in being at risk of ultimate cancellation of the student visa depending upon whether or not they complied with the requirements of the notice under s 20 of the ESOS Act or, as required by s 137J(2), attended on a DIMIA officer. There is no indication that the legislature intended to penalise or disadvantage a student who appeared in response to the notice in favour of a student who did not do so. Rather, in my view, the legislature made clear in s 137L that if there was no breach, or, if any breach was due to exceptional circumstances beyond the control of the student, the student was to be left in, or restored to the same position in terms of the status of the student visa as if no notice had been given pursuant to s 20 of the ESOS Act. That means when the student has attended on a migration officer in compliance with the notice or in compliance with s 137J(2) of the Act, if the student satisfies the decision-maker that either of the circumstances specified in s 137L exist, then no further action ought to be taken in respect of the breach alleged in the notice given under s 20 of the ESOS Act. In the context of a possible exercise of the power to cancel the visa under s 116 of the Act, that would mean that no notice under s 119 of the Act would issue in respect of the breach of condition alleged in the notice under s 20 of the ESOS Act. 43 However, where it is the case that, notwithstanding the explanation given by a student who attends and gives an explanation in response to a notice under s 20 of the ESOS Act, the Minister determines to give a notice under s 119 of the Act, the exercise of the power to cancel for breach of condition is to be controlled by the provisions of subdivision E of Div 3 and by the operation of s 116(3) and reg 2.43(2)(b) of the Migration Regulations. Such explanation as has been given in response to the s 20 notice, to the extent that it remains relevant to the issues to be determined by the decision-maker, forms part of the whole of the body of material upon which the decision is to be made. Where a breach of condition 8202 is relied upon to ground the exercise of the power under s 116 to cancel the visa, the only relevant issue is whether the decision-maker is satisfied on the material then available that a breach of the condition has occurred. The reason why the breach occurred is irrelevant. 44 When the statutory purpose of s 20 of the ESOS Act and s 137J of the Act is understood, there is no occasion to construe reg 2.43(2)(b) of the Migration Regulations in any way so as to read down or modify the ordinary meaning of the words used. In any event, I do not consider that the text of the regulation enables the regulation to be read down or given an ambulatory effect of the type contended for by counsel for the applicant: see Minister for Immigration and Multicultural Affairs v Hou at [33]; Tian v Minister for Immigration and Multicultural and Indigenous Affairs at [35]. 45 Further, as there is no inconsistency between the operation of s 116(3) together with reg 2.43(2)(b) of the Migration Regulations on the one hand and the operation of any provision of subdivision GB of Div 3 on the other, no case is available of invalidity of the regulation based on an inconsistency between the regulation and the operative sections of subdivision GB. 46 The MRT identified the correct question which arose on the exercise of a power to cancel a student visa for a breach of condition 8202 under s 116 of the Act. It was correct in its view that a finding of breach of condition 8202 lead to a mandatory cancellation of the visa. 47 The decision presently the subject of these proceedings is a privative clause decision. Absent the existence of jurisdictional error or some other disentitling circumstance, the privative clause operates to protect the decision from challenge in this Court. No basis has been made out by which the effect of the privative clause is avoided. In consequence, the application will be dismissed. 48 There is no basis why costs should not follow the event in accordance with the ordinary course. 49 The Court orders:
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.
Solicitor for the Respondent: Blake Dawson Waldron
Zhou
Minister for Immigration & Multicultural & Indigenous Affairs
The decision of the mrt 9 The MRT held that the issue before it was to determine whether or not the applicant had breached condition 8202 attaching to his student visa. The MRT held that the issue was a factual one and found it against the applicant after hearing him. The MRT next found that the breach of condition 8202 entitled the Minister to cancel the visa pursuant to s 116(1)(b) of the Act. However, it held that, because of the operation of s 116(3) and reg 2.43(2)(b) of the Migration Regulations 1994 (Cth) ('the Migration Regulations'), there was no discretion as to whether or not to cancel the visa. Rather, it was mandatory to cancel the visa because of the breach of condition 8202. In coming to this conclusion, the MRT relied upon two decisions of this Court: Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460.
(2003) 211 CLR 476
(1998) 89 FCR 80