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Karki v Minister for Immigration & Anor [2011] FMCA 369 (25 May 2011)

Last Updated: 25 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KARKI v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Decision of Migration Review Tribunal (“Tribunal”) – student visa – interaction of visa condition 8202 and s.19 of the Education Services for Overseas Students Act 2000.


Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Hossain v Minister for Immigration & Citizenship [2010] FCA 161; (2010) 183 FCR 157
Maan v Minister for Immigration & Citizenship [2009] FCAFC 150; (2009) 179 FCR 581

Applicant:
SAMIR KUMAR KARKI

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 1975 of 2010

Judgment of:
Cameron FM

Hearing date:
12 November 2010

Date of Last Submission:
12 November 2010

Delivered at:
Sydney

Delivered on:
25 May 2011

REPRESENTATION

Solicitors for the Applicant:
Newman & Associates

Counsel for the First Respondent:
Mr J. Smith

Solicitors for the Respondents:
Sparke Helmore

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1975 of 2010

SAMIR KUMAR KARKI

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant arrived in Australia on 27 March 2009 as the holder of subclass 572 Vocational Education and Training Sector visa which had been granted on 28 February 2009. That visa was subject to condition 8202 which, relevantly, required the applicant to maintain a satisfactory level of course attendance. On 23 December 2009 a delegate of the first respondent (“Minister”) cancelled the applicant’s visa on the basis that he had failed to comply with condition 8202. The applicant sought review of that decision with the second respondent (“Tribunal”) but was unsuccessful. He now seeks judicial review of the Tribunal’s decision.
  2. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
  3. For the reasons which follow, the application will be dismissed.

Relevant legislation

  1. Section 116 of the Migration Act empowers the Minister to cancel a visa in circumstances where the visa holder has failed to comply with a condition of his or her visa. That section relevantly provides:
  2. Regulation 2.43 of the Migration Regulations 1994 (“Migration Regulations”) sets out the prescribed circumstances referred to in s.116(3). It relevantly provides:
  3. Condition 8202 is found in cl.8202 of sch.8 to the Migration Regulations. It relevantly provides:

(2) ...

(3) A holder meets the requirements of this subclause if neither of the following applies:
  1. At the relevant time, ss.19 and 20 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) relevantly provided:

Background facts

  1. On 22 September 2009 the applicant’s education provider, Sapphire International Pty Ltd (trading as Lamart College of Technology), issued the applicant with a notice in relation to his Diploma of Community Welfare Work, certifying him as not achieving satisfactory course attendance for s.19 of the ESOS Act and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (“National Code”). It also issued a non-compliance notice purportedly pursuant to s.20 of the ESOS Act stating that it had certified that the applicant had not achieved satisfactory course attendance for s.19 of the ESOS Act and standard 11 of the National Code.
  2. The document certifying that the applicant had not achieved satisfactory course attendance was reproduced at page 1 of the Court Book (“CB”) and stated:
  3. On 20 October 2009 the applicant attended the offices of the Minister’s department and was issued with a Notice of Intention to Consider Cancellation of his visa (“NOICC”). The NOICC set out the grounds of the applicant’s breach and sought his comments.
  4. The applicant subsequently provided the Minister’s department with an undated statement in which he made submissions concerning his course, the bad advice he said that he had received and his family’s expectations of him.
  5. On 23 December 2009 the Minister’s delegate cancelled the applicant’s visa pursuant to s.116 of the Migration Act as he was satisfied that the applicant had breached condition 8202 of his visa.
  6. On 6 January 2010 the applicant lodged an application for review with the Tribunal. On 11 March 2010 the Tribunal wrote to the applicant and advised him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to attend a hearing on 8 April 2010 but, at the applicant’s request, rescheduled that hearing to 29 April 2010. Despite having earlier advised the Tribunal of his intention to appear, the applicant did not attend the hearing at the scheduled time and place.
  7. On 9 August 2010 the Tribunal affirmed the delegate’s decision to cancel the applicant’s subclass 572 visa. Relevantly for this proceeding, the Tribunal found that as Lamart College had certified the applicant as not achieving satisfactory course attendance for s.19 of the ESOS Act and standard 11 of the National Code, he had not complied with condition 8202(3)(b). It was further satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. Consequently, s.116(3) of the Migration Act required that the applicant’s visa be cancelled and thus the Tribunal affirmed the decision of the delegate.

The proceeding in this Court

  1. The application commencing this proceeding as amended at the hearing pleaded the following ground:

Applicant’s submissions

  1. The applicant originally submitted in his written submissions that this case was on all fours with Hossain v Minister for Immigration & Citizenship [2010] FCA 161; (2010) 183 FCR 157 in that the notice sent to the applicant purportedly pursuant to s.20 of the ESOS Act was ineffective. In Hossain’s case the applicant was sent a s.20 notice which stated that he had breached condition 8202 of his student visa. As noted earlier, s.20(1) of the ESOS Act provides:

At the time Mr Hossain’s s.20 notice was sent to him, no student visa condition had been prescribed for the purposes of s.20. Consequently, it was held that what purported to be a notice pursuant to s.20 was ineffective for the purposes of that section. In Mr Hossain’s case, that had the consequence that the purported automatic cancellation of his visa brought about by his failure to respond to the notice was ineffective.

  1. At the time that the present applicant’s s.20 notice was sent to him, there was still no prescription of any student visa condition for the purposes of s.20 of the ESOS Act. Consequently, he submitted, his visa could not be cancelled pursuant to s.116 of the Migration Act. He submitted that there was an express linkage between the s.20 notice and what he described as the “certificate under s.116”. In this regard, he pointed to Lamart College’s certification that he had not achieved satisfactory course attendance. He submitted that the s.20 ESOS Act notice was not “a sufficient notice” as it did not state that the certification of his inadequate attendance was made pursuant to s.19 of the ESOS Act.
  2. In his oral submissions the applicant also pointed to what he described as the notice issued pursuant to s.19 of the ESOS Act, i.e. the document quoted above at [9], and to the fact that it also contained a certification for the purposes of visa condition 8202(3). The applicant submitted that the notice did not comply with s.19 because it failed to provide particulars of the visa condition breach he was said to have committed, such as by referring to the length of his course, the minimum level of attendance required and in what respects he fell short of the minimum requirements. In this regard he referred to para.51 of the National Code, found in sch.1 to the Education Services for Overseas Students Regulations 2001 (“ESOS Regulations”). He submitted that condition 8202(3) was inconsistent with s.19 of the ESOS Act and failed to reflect the true intention of that section. He submitted that a certification under condition 8202(3) had to contain the particulars required by s.19 of the ESOS Act.

Consideration

  1. By the end of the hearing it appeared that the applicant no longer relied on any asserted failure to send an effective s.20 ESOS Act notice. However, if I am incorrect in this understanding I should observe that although Hossain’s case did deal with the cancellation of a student visa, its concern was the purported automatic cancellation of such a visa pursuant to s.137J of the Migration Act. A student visa will be cancelled automatically pursuant to s.137J of the Migration Act if the visa holder is sent an effective notice issued pursuant to s.20 of the ESOS Act and he or she does not, within 28 days, comply with that notice or otherwise with s.137J. In Hossain’s case, it was held that Mr Hossain’s student visa had not been automatically cancelled because the notice which he had been sent ostensibly pursuant to s.20 of the ESOS Act was ineffective for the purposes of that section. Hossain’s case is authority for the proposition that if a s.20 ESOS Act notice is ineffective, then s.137J is not engaged and does not operate to automatically cancel the student visa in question.
  2. In this case, because he had responded to the NOICC sent to him and had attended the department in connection with it, the applicant’s visa was not automatically cancelled pursuant to s.137J of the Migration Act. Instead, it was cancelled pursuant to s.116. As a result, the principle to be derived from Hossain’s case is not applicable to this matter and the effectiveness of the s.20 notice is not relevant to the outcome of this proceeding.
  3. Turning then to the challenge to the efficacy, for the purposes of s.19 of the ESOS Act, of the document which contained the certification required by condition 8202(3), first it must be noticed that s.19 requires the particulars of a student’s breach of a visa condition to be notified to “the Secretary”. Section 5 of the ESOS Act defines “Secretary” to mean “the Secretary of the Department”. “Department” is not defined in the ESOS Act but s.19A of the Acts Interpretation Act 1901 provides, relevantly:
  4. The Administrative Arrangements Order of 25 January 2008, as amended on 1 May 2008, was to the effect that at the relevant time the reference to “the Secretary” in s.19 of the ESOS Act was a reference to the Secretary of the Department of Education, Employment and Workplace Relations (“DEEWR”). Consequently, s.19 required education providers to advise the Secretary of DEEWR of a breach by an accepted student of a prescribed condition of that student’s visa. At the relevant time, reg.3.03A of the ESOS Regulations prescribed student visa condition 8202 for the purposes of s.19 of the ESOS Act. As a result, Lamart College was empowered and required to advise the Secretary of DEEWR if and when the applicant breached visa condition 8202.
  5. Secondly, s.19 does not specify or provide for the manner in which the breach of a visa condition is to be advised to the Secretary of what, at the relevant time, was DEEWR. Although a document containing a condition 8202 certification may satisfy the requirements of s.19, it is not necessary that it do so as it is not the only information which may be provided to the Secretary pursuant to s.19. The education provider may supply the required information to the Secretary by other means. In this case, it seems likely that that information was contained in the letter which Lamart College sent to the applicant in supposed compliance with s.20 of the ESOS Act. In this regard, it might be inferred from the dated DEEWR website footer appearing on the documents reproduced at CB 1-7 that all those documents, including the purported s.20 notice, were sent to DEEWR no later than
    20 October 2009.
  6. The applicant’s argument was that the document reproduced at CB 1 and quoted above at [9] failed adequately to particularise the visa condition breach which he was said to have committed. He said that this meant that the document failed to meet the requirements of s.19 of the ESOS Act with the result that the education provider’s certification pursuant to condition 8202 was also ineffective. However, there is no reason to suppose that the level of detail which a s.19 ESOS Act advice contains is a matter of any relevance to the operation of the Migration Act. Such advices are given for the purposes of the ESOS Act, not the Migration Act, and are given to the Secretary of what was, at the relevant time, DEEWR and not to the Secretary of the Department of Immigration and Citizenship. I conclude that if that the document reproduced at CB 1 and quoted above at [9] is, indeed, a notice pursuant to s.19 of the ESOS Act, the extent of its compliance with, or satisfaction of the requirements of, that Act has no effect on its effectiveness as a certification pursuant to condition 8202(3).
  7. As to the proper characterisation of the document reproduced at CB 1 and quoted above at [9], the applicant’s argument assumed that it was, in fact, an advice pursuant to s.19. However, there is nothing in that document, which is headed “Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migration Regulations 1994”, or in the other material before the Court which supports that conclusion.
    It appears to me that the document reproduced at CB 1 and quoted above at [9] was a condition 8202 certification and nothing more.
  8. However, it is not necessary to make any findings on whether that document attempted to or did satisfy the requirements of s.19 of the ESOS Act because the continuation or cancellation of the applicant’s visa did not depend on advice given to the Secretary of DEEWR pursuant to s.19 of the ESOS Act, whatever it contained and however it was made. Rather, it depended on the operation of the relevant provisions of the Migration Act and the Migration Regulations and, in particular, visa condition 8202(3) and its legislative source, cl.8202(3) of sch.8 to the Migration Regulations. The fate of the applicant’s visa turned on the certification that he had failed to comply with the relevant visa condition and not on the detail of that non-compliance. This conclusion follows from an ordinary reading of cl.8202(3) of sch.8 to the Migration Regulations: Maan v Minister for Immigration & Citizenship [2009] FCAFC 150; (2009)
    179 FCR 581     at 590 [44]. Consequently, it is unnecessary to decide whether adequate particulars of the applicant’s breach were provided to the Secretary of DEEWR because even if they had not been that would not have invalidated the certification pursuant to cl.8202(3).
  9. The certification having been given, it was plainly open to the Tribunal to find, for the purposes of reg.2.43, that the applicant had not complied with condition 8202. The applicant did not challenge the Tribunal’s finding that this failure was not excused by reason that it was due to exceptional circumstances beyond his control. In those circumstances, the terms of s.116 meant that the Tribunal had no alternative but to affirm the delegate’s decision to cancel the applicant’s visa and that it committed no error in doing so.

Conclusion

  1. Jurisdictional error on the part of the Tribunal had not been demonstrated.
  2. Consequently, the application will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM


Associate:


Date: 25 May 2011

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