Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 52 (7 February 2003)

Last Updated: 7 February 2003

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 52

MIGRATION - student (temporary) (Class TU) visa - review of decision of Migration Review Tribunal - applicant alleged to have breached condition of visa relating to satisfactory academic performance - whether cancellation of visa effected only on basis s 116(1)(a) thus invalidating notice of cancellation under s 119(1) - whether applicant given notice of "grounds" for cancellation of visa - whether visa cancelled on basis of s 116(1)(b) - whether failure to respond to show cause notice could not have constituted an express statement that education provider had not certified applicant's results to be at least satisfactory

WORDS AND PHRASES - "grounds"

Migration Act 1958 (Cth) ss 116(1), 119(1)

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 referred to

GURSHARAN SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO. V413 OF 2002

HEEREY J

7 FEBRUARY 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V413 OF 2002

BETWEEN:	GURSHARAN SINGH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	7 FEBRUARY 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent's costs, including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V413 OF 2002

BETWEEN:	GURSHARAN SINGH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	7 FEBRUARY 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicant appeals from a decision of the Migration Review Tribunal made on 30 May 2002 affirming a decision of a delegate of the Minister to cancel a student (temporary) (Class TU) visa held by the applicant.

2 The applicant is a male citizen of India born in 1978. He arrived in Australia on 26 January 1999 as the holder of a Class TU subclass 560 student (temporary) visa valid until 8 January 2001. During the period of this visa the applicant was enrolled at Chalmers Business College.

3 On 24 November 2000 the applicant was granted a further Class TU subclass 560 visa. This visa was valid until 15 March 2003. The applicant had by this time enrolled in an information technology course at Charles Sturt University.

4 On 13 August 2001 the University sent a show cause letter to the applicant. The applicant did not respond to this letter. The letter is not in the material before the Court but it is to be inferred that it sought explanations as to his repeated failures in University subjects.

5 On 31 August the University sent to the applicant a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth). This notice alleged that the applicant had breached a condition of the visa relating to satisfactory academic performance. Particulars of the breach were stated to be that he had been excluded from study at Charles Sturt University for two years and had failed a course pre-requisite subject twice. The notice informed him that pursuant to s 137J of the Migration Act 1958 (Cth) his visa would cease on the twenty-eighth day after the date of the notice unless he reported to the Department of Immigration and Multicultural Affairs by that time.

6 On 4 September the applicant wrote to the Exclusion Appeals Committee of the University seeking to appeal against his exclusion. He said that he received the show cause letter on 13 August and apologised for losing it after that date "without having fully realised the consequences". He said that he did not understand the importance of the letter at this time until he got the notice of 31 August. He gave further personal details including the death of his grandfather the previous November.

7 On 12 September the University wrote to the applicant stating that its Academic Appeals Committee determined that the reasons he gave for not submitting a response to the show cause letter did not constitute exceptional circumstances. He was to remain excluded from his course for a period of two years from the beginning of Spring Session 2001.

8 On 24 September 2001 a delegate of the Minister issued a notice under s 119 of the Migration Act of proposed cancellation of the applicant's visa. At this point it will be convenient to refer to the relevant legislative provisions.

9 Section 116 of the Migration Act provides that, subject to subss (2) and (3), the Minister may cancel a visa if he or she is satisfied of any one of a number of matters specified in pars (a) to (g). Relevantly for present purposes these matters include:

"(a) any circumstances which permitted the grant of the visa no longer exist; or

(b) its holder has not complied with a condition of the visa."

10 Section 116(3) provides:

"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."

11 Regulation 2.43(2) of the Migration Regulations sets out the prescribed circumstances contemplated by s 116(3). Relevantly to the visa presently under consideration, this includes the circumstance that the Minister "is satisfied that the visa holder has not complied with...condition 8202".

12 Clause 4 of sch 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) applied a new condition 8202 to all student visas in effect on 21 December 2000, or granted after that date but before 1 July 2001. It is now common ground that the condition in this form applied to the visa in question. Item 4(3)(d) imposed a condition that

"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."

13 Returning to the Migration Act, s 119 prescribes procedures which must be followed where the Minister is considering cancelling a visa. Section 119(1) provides that 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:

(i) those grounds do not exist; or

(ii) there is a reason why it should not be cancelled."

14 Form 1099 contains in Part A the notice under s 119 of intention to consider cancelling a visa, in Part B the record of decision whether or not to cancel the visa, and in Part C the notification of that decision. In the present case, all parts of the form are dated 24 September 2001. Part A includes the printed statement:

"It has come to the Department's attention that there may be grounds for cancellation of your visa under s 116 of the Migration Act 1958 for the following reasons"

The delegate has written in the immediately following space:

"Notice of non compliance issued by Education Provider for failure to meet course requirements."

The form continues:

"If this is the case, your visa may be cancelled under subs 116(1)"

In the form there follows a bracket in which the delegate has inserted "(a)".

15 In Part B there appears the printed statement:

"I consider there are grounds for cancellation under subs 116(1) ... Evidence of and reasons why grounds for cancellation exist."

The delegate has inserted "(a)" and the following:

"Mr Singh has had a notice of non-compliance issued by his education provider for failure to meet course requirements. Mr Singh has now enrolled in a new course which was done after he had been issued the notice of non-compliance. Mr Singh has previously had a notice of non-compliance issued by another education provider at which time he transferred his study."

Further, under the heading "Compliance with Visa Conditions", it is stated "Mr Singh has a history of non-compliance with condition 8202 - meet course requirements." In Part B a decision to cancel is stated and the notification of that decision is recorded in Part C.

16 On 30 May 2002 the Tribunal affirmed the delegate's decision. The Tribunal found the applicant had breached condition 8202 of his visa and that s 116(3) of the Act and par 2.43(2)(b) of the Regulations required its cancellation. It is apparent from the terms and structure of the Tribunal's reasons that it was relying on s 116(1)(b). It held (at [26] to [28]) that the notice under s 119 was not invalid by reason of the reference to s 116(1)(a).

17 Before proceeding to consider the arguments put on behalf of the applicant I should note that it was common ground that the decision of the Tribunal was a privative clause decision and thus subject to s 474(1) of the Act which provides:

"1. A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."

18 Argument in this case was concluded before the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 was handed down on 4 February 2003. In very broad terms, the High Court held that s 474(1) does not prevent judicial review of a decision affected by jurisdictional error. It is not necessary to say any more as to this, since, as will appear, I am not satisfied that the decision of the Tribunal was affected by any error, whether jurisdictional or otherwise.

19 The first argument on behalf of the applicant was that the notice of cancellation was provided, and the cancellation was effected, on only one basis, namely s 116(1)(a), and that the Tribunal was wrong in finding that the giving of notice pursuant to s 119(1) and the subsequently cancellation could be validated by reliance on s 116(1)(b).

20 In my opinion, the notice was a valid notice under s 119(1). In particular, it complied with par (a). It gave the applicant notice of the grounds for cancellation of his visa, namely "notice of non-compliance issued by education provider for failure to meet course requirements". "Grounds" in this context is used in one of the meanings given in the Macquarie Dictionary namely "the foundation or basis on which a theory or action rests; motive; reason". "Grounds" in s 119(1)(a) is not referring to one of the matters (a) to (g) in s 116(1) of which the Minister is to be satisfied. Rather "grounds" in s 119 is referring to facts or circumstances which might lead the Minister to be satisfied that the 116(1) conditions exist. Some confirmation of this reading is provided by s 119(1)(b)(i). When the Act is providing for the possibility of the visa holder showing that "grounds" do not exist what is obviously contemplated is that the visa holder may be able to show, for example, that some alleged past event had not in fact occurred. The purpose of s 119 is to give the visa holder an opportunity to respond to and dispute factual allegations which, if made out, might lead the Minister to be satisfied of one of the matters in s 116 and thus enable him or her to cancel the visa. By the same token, it would not be of any help to a visa holder if all the s 119 notice said was, for example, "its holder has not complied with a condition of the visa".

21 As to the cancellation of the visa itself, it is plain that the Tribunal did not rely on s 116(1)(a) but rather on s 116(1)(b). That is the relevant decision.

22 The second argument of the applicant was that breach of condition 8202 was not made out in the circumstances. It was said that failure to respond to a show cause notice could not have the effect that the University's letter of 12 September 2001, or the fact of the exclusion itself, constituted an express statement that the education provider had not certified the applicant's results to be at least satisfactory. There is no substance in this argument. Plainly the University stated that the applicant had been excluded for study for two years because he had failed the course pre-requisite twice. The factual basis of that is not in dispute. The applicant had not achieved an academic result certified by the education provider to be at least satisfactory. The only certificate or written record of the education provider was to the contrary.

23 The appeal will be dismissed with costs, including reserved costs.

I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated: 7 February 2003

Counsel for the Applicant:	J Gibson
Solicitors for the Applicant:	Haag Walker Lawyers
Counsel for the Respondent:	C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 December 2002
Date of Judgment:	7 February 2003