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High Court of Australia Transcripts |
Last Updated: 12 November 2015
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S9 of 2015
B e t w e e n -
WEI WEI
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Defendant
Application for an order to show cause
GAGELER J
KEANE J
NETTLE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 12 NOVEMBER 2015, AT 10.01 AM
Copyright in the High Court of Australia
MR S.B. LLOYD, SC: May it please the Court, I appear with MR L.J. KARP for the plaintiff. (instructed by Ren Zhou Lawyers)
MR G.R. KENNETT, SC: May it please the Court, I appear with MS R.S. FRANCOIS for the defendant. (instructed by Clayton Utz Lawyers)
GAGELER J: Mr Lloyd.
MR LLOYD: The Court will have a copy of our outline so I will not introduce the order of things because it is set out. The nature of the proceeding is that we seek an extension of time under section 486A of the Migration Act. It is in our bundle filed on 7 September on page 15. That is an order under section 486(2) to extend the 35-day period within which an application may be made and if the extension is granted we seek also the related substantive relief set out in the application – actually it is not - the relief we seek is subject to one matter that I will clarify at the end set out in our submissions.
GAGELER J: Yes.
MR LLOYD: Because one of the factors for an extension of time concerns the merits of the argument, we propose to start by dealing with the substantive argument and then to deal at the end with other factors relating to an extension of time. That is all I wanted to say under topic 1.
In relation to topic 2, all I really want to say there is what is said in the outline, which is what we say is the substantive question for the merits is what is the significance of the plaintiff’s education provider having failed to comply with section 19 of the ESOS Act – I will come to that provision later. As far as the Minister’s decision to cancel the plaintiff’s student visa, there are a number of issues that are not in contest that are important – provide an important background. We just note them. There are 11 of them.
GAGELER J: These are facts, are they?
MR LLOYD: Facts all related to uncontroversial – I think uncontroversial legal propositions. The first is that Macquarie University was under an obligation to provide certain information to the Secretary of the Education Department within 14 days of accepting the plaintiff for enrolment. One sees that obligation in section 19 of the ESOS Act, which is at pages 67 to 68 of our bundle, and 19(1)(a) indicates that certain prescribed details have to be provided when a person becomes an accepted student.
The prescribed details are set out at pages 72 to 73 of the bundle. The specific content of the details is not critical, because none were provided. Collectively, that information is defined in the ESOS regulations, which are on page 71 as the confirmation of enrolment, in regulation 1.03. So, when I refer to confirmation of enrolment, I am just referring to that bundle of information required under 19 to be provided.
Also, while on page 71, I note that there is a definition there – well there is an acronym which is also a definition called “PRISMS” and that is an electronic system of that name used to process information given to the Secretary in the form approved under subsection 19(3).
GAGELER J: Now, the Secretary - is it the Secretary of the Department of Education? Is that correct?
MR LLOYD: That is correct, yes.
GAGELER J: What is it that links PRISMS to decision-making under the Migration Act?
MR LLOYD: In our outline under topic 5 - I will be going through that if I can – I will certainly – I understand I need to make that connection and will do so. The next proposition which we think is not controversial is that that system was constructed by the Education Department for the purpose of receiving and storing information about accepted students. That is given to the Secretary under section 19. That is in the agreed facts at paragraphs – which is on page 95 of the book and paragraphs 7 to 8.
Then, the next proposition is that PRISMS is used, inter alia, by the Minister for Immigration for monitoring compliance with student visas and one gets that, apart from anywhere else, from paragraph 9 of the agreed facts and that information can be provided pursuant to section 175 of the ESOS Act. If we could just hand to the Court a further bundle, a small supplementary bundle which has a few sections - - -
GAGELER J: We have that Act, Mr Lloyd.
MR LLOYD: Thank you. Well, I will give your Honours the bundle because there are a couple of other things in there as well.
GAGELER J: Thank you.
MR LLOYD: So, section 175 is hopefully on page 4. It provides that:
(1) For the purposes of -
and there are several purposes, but
(c) promoting compliance with the conditions of a particular student visa or visas, or of student visas generally; or
(d) facilitating the monitoring and control of immigration;
the Secretary may give information obtained or received for the purposes of this Act –
which would include section 19(2), inter alia -
(e) an agency of the Commonwealth . . . that is responsible for or otherwise concerned with immigration - - -
GAGELER J: That ties then with the object that we see in section 4A(c).
MR LLOYD: That is precisely so, your Honour. The next proposition which we think is uncontroversial is that the plaintiff was in fact enrolled with Macquarie University at the relevant times. One sees that on page 96 of the book, in paragraph 19. The next proposition is that Macquarie University did not comply with the requirements to give notice on PRISMS within 14 days, as it created this record only as at 18 November 2014, and one gets that from paragraph 36 of the agreed statement of facts.
NETTLE J: So there was just nothing there. If you look for this man’s record there was not one, on the PRISMS.
MR LLOYD: There was – exactly. He was not shown as being enrolled in anything.
NETTLE J: Did not compute.
MR LLOYD: Exactly.
KEANE J: But if someone had actually spoken to the University, presumably the University would have been able to say he is enrolled, as was the fact.
MR LLOYD: Yes, we would assume they would have said that if they were asked that question. I think the Minister did contact the University for the purpose of finding out my client’s address, but not for the purposes of asking if he was enrolled.
GAGELER J: Well, the address was part of the information that was required to be provided, was it not, by the University under the obligation in section 19.
NETTLE J: Part of the confirmation of enrolment.
MR LLOYD: I will just check that, your Honour. It probably was. It was, yes.
GAGELER J: I think it was a visa condition that he keep the University apprised of his address and then a statutory duty of the University to put that information on PRISMS.
MR LLOYD: Yes. Now, my client had previously been an enrolled student so the computer may have shown an address for that period when he was then enrolled – an earlier period in time – but because they did not have this information, or I should say because - the University did not provide any of this enrolment information and so the Minister did not have it for the relevant period. So that is letter H, letter I.
When PRISMS was used by the Minister in February 2014 to monitor compliance with the plaintiff’s visa condition, 8202(1), it indicated, wrongly, that the plaintiff was not enrolled in a course. We can get that because it is an agreed fact that it was because of the PRISMS information that the Minister or the Minister’s delegate formed the intention to cancel. One sees that in paragraph 21 of the agreed facts.
NETTLE J: Just pausing there, Mr Lloyd, did PRISMS actually show that he was not enrolled or simply did not show that he was?
MR LLOYD: I think that it is not before the Court exactly what PRISMS showed but I think because nothing was sent - - -
NETTLE J: It just would not have shown.
GAGELER CJ: I think we have a screenshot somewhere.
MR LLOYD: It is before the Court on page 67.
NETTLE J: It is pretty hard to read, is it not?
MR LLOYD: It is hard to read, but I think the nub of it is that at the relevant time it did not show that he was enrolled.
NETTLE J: Is there any line there that one should look at in particular?
MR LLOYD: I do not think so.
NETTLE J: You see where on 14 February 2013 is there for the “Bachelor of Commerce”, about four lines from the top.
MR LLOYD: My friend tells me that he comes up on the system as having finished on 14 June 2013.
NETTLE J: But that was not put on according to the facts until October 2014, was it, or was it?
MR LLOYD: Sorry.
NETTLE J: I am sorry to trouble you with this, it just seems to me it is a matter of some importance to know whether it actually showed he was not enrolled or simply did not show that he was.
MR LLOYD: I understand it showed that he had finished his previous course in June 2013 and then the matter that shows that he was enrolled was not added until November 2014. That is the agreed fact at paragraph 36 on page 98, so all that it would have shown is that he had finished the course that he had been enrolled in.
NETTLE J: That seems to be a conclusion that it did not show that he was enrolled rather than showing that he was not, or am I incorrect?
MR LLOYD: I think that is correct.
NETTLE J: Thank you.
MR LLOYD: Then the other paragraph which links the decision-making processes to PRISMS, so 21 and – well, they are essentially the same thing – paragraph 28 of the agreed facts indicates that it was because PRISMS indicated that he had not been enrolled, that is how the agreed fact is posited, in a registered course since 26 July 2013 there was an intention to cancel and then the decision to cancel is referred to in paragraph 30, and it is put as:
because a delegate of the defendant was satisfied, by reference to PRISMS, that the plaintiff had not been enrolled in a registered course –
KEANE J: There is not any – in terms of the statutory provisions which link the ESOS Act and regulations with the Migration Act, there is nothing that says that PRISMS has some presumptive force that if you are not in PRISMS it can be inferred that you are not enrolled. There is nothing that says that.
MR LLOYD: There is nothing that says that.
KEANE J: On what basis then would one ever be able to have a state of mind other than a suspicion that the person might not be enrolled?
MR LLOYD: Because – well, we think how it works is that the delegates rely upon PRISMS and they know that there is an obligation on education providers to put somebody who is enrolled into PRISMS and they look it up and if it does not show that somebody is enrolled they draw the inference that they are not enrolled and then move towards cancellation.
KEANE J: There is certainly no statutory authority for drawing that inference.
MR LLOYD: No.
KEANE J: What you might say in terms of – you might say that it creates a suspicion that the person appears not to be enrolled.
MR LLOYD: Certainly, and certainly that is in fact what it did. We do not per se - - -
KEANE J: Did the decision-maker’s state of mind ever get beyond the position that it appeared to the delegate that your client was not enrolled or might not be enrolled?
MR LLOYD: I think it is expressed in terms of satisfaction, which is the statutory requirement of section 116.
NETTLE J: Satisfaction seems to be rather as to the reasons for cancelling, rather than the fact of the man not being enrolled. The reasons for cancelling seem to be that he might not have been enrolled, if you look back to page 59 of the book.
MR LLOYD: Page 59?
NETTLE J: I beg your pardon; that is the first page of the letter. It has a “59” at the top; page 54 of the book. It is at line 50 there.
MR LLOYD: Yes, although in the reasons for the cancellation, which are on page 61 of the book – on the last line, the delegate has said:
I am satisfied that there is a ground for cancellation . . . under paragraph(s) s116(1)(b) - - -
KEANE J: That follows the preceding paragraph, where it is said:
Based on evidence available to me in . . . (PRISMS), it appears that the client has not been enrolled . . . Therefore, it appears that the client does not meet the requirements –
and on the basis of these appearances, the delegate is satisfied.
MR LLOYD: That is so.
KEANE J: Do you make any submission about that?
MR LLOYD: Obviously, we say it would have been better for my client if they had just asked the University – when they rang up the University, to ask for the address, having not had a current address - - -
KEANE J: It would have been better if we had got beyond appearances, would it not?
MR LLOYD: Sorry, your Honour?
KEANE J: It would have been better if the evidentiary basis on which the delegate proceeded had got beyond appearances from PRISMS, or inferences drawn from the appearance of PRISMS.
MR LLOYD: That is so. We do accept, and we in part link the PRISMS system to the Migration Act by saying that it is part of, in the ESOS Act and the Migration Act, an information-gathering regime which is meant to inform the student visa compliance process. It is part of something which is an important process to inform decisions like visa cancellation decisions.
We do not say it is wrong to have regard to it – we in fact say they should have had regard to it. The problem is ultimately – and I will develop this later – the database in PRISMS was infected by error because of the fault of the education provider, and that meant that that error arising from an action which faces a criminal sanction for the University is a fundamental basis – or at least was, in the circumstances of this case, a fundamental basis. We say there is an important link, and one way we put the jurisdictional error is to say that the error in the failure to comply with section 19 undermines the capacity of the Minister to rely upon that material as the sole basis for the decision.
NETTLE J: It would undoubtedly be a good argument if the decision-maker had in fact applied a test of being satisfied that your client was not enrolled. There is an anterior question of whether he did in fact apply that test, or applied another test of being satisfied that he might not have been enrolled.
MR LLOYD: If he applied the “might not have been enrolled” test then that is just a legal error because it is not the correct test. So, if my friend is going to try and get around our argument in that way, we would say that would itself - - -
NETTLE J: I do not think he would be embracing that argument, I rather thought that you might have.
MR LLOYD: I am content to embrace it but what I am saying is that on that path, if that is the correct way to read the reasons, then that would be clearly error. If one reads it as them having reached the state of satisfaction by relying upon PRISMS we say the flaw in compliance with section 19 is also in error. So, on either basis, we say, the result follows.
GAGELER J: So, you would say that the decision-maker under section 116 is entitled to reach a state of satisfaction by looking at PRISMS and applying an assumption of regularity but if what was assumed to be regular is shown, in fact, to have been in breach of an imperative duty then the decision is affected by jurisdictional error. That is essentially the way you put it.
MR LLOYD: We say that, yes. That is so.
KEANE J: Because the decision-making process itself has been undermined.
MR LLOYD: Yes. So, that was all I wanted to say about the uncontroversial propositions. So, how we sort of characterise the facts, we say, in short, the plaintiff’s visa was cancelled because the PRISMS system indicated wrongly that he was not enrolled and, thus, appeared to be in breach of 8202(1). The PRISMS system was wrong because Macquarie University failed to comply with section 19(1) which exposes the University to criminal sanctions, if I put it neutrally in that way.
The prosecution of the University does not offer my client any meaningful relief. Had the education provider complied with its obligations there is no reason to believe that the Minister would have even got to step one, which is having formed the intention to cancel my client’s visa. We contend that the education provider’s failure to comply with its obligations under section 19 constituted a breach of a key provision in a legislative regime that is used to monitor compliance with the student visa conditions, even though it is not under the Migration Act. We contend that that breach of section 19 is either a jurisdictional error or a denial of procedural fairness.
If I go now to the next point, which is point 5 of 8, which is the key aspects of the legislation, in the year 2000 a series of Acts were enacted which led to a level of connection between the law which regulates education providers that serve overseas students and the law that regulates the admission of overseas students to Australia. The latter law, of course, being the Migration Act, the former law being the Education Services for Overseas Students Act.
My friends have provided a bundle to the Court, if I can just note the material links that – the extrinsic material that links it, I will go further than that, but on page 61 is the explanatory memorandum to the Migration Legislation Amendment Overseas Students Bill 2000. On page 61, the first paragraph notes that it is part of package of Bills, including the ESOS Bill, and the overall objectives of the package include strengthening the integrity of the student visa program. So, we rely upon that to show interlinkages.
Then on page 18 of the same bundle there is the revised explanatory memorandum to the ESOS Bill 2000. In the third paragraph it talks about the Department of Immigration being closely involved in the reform process. Then in the penultimate paragraph, it says:
The Bill establishes reporting requirements on providers concerning their students and a new secure electronic confirmation of enrolment system -
that is PRISMS -
to preclude fraudulent practices and provide evidence for scrutinising compliance with the new Act -
And so that also links the Bills, and at the end of that paragraph there is a note that the migration reforms are complementary measures. Now, in terms of the actual language of the legislation, section 20, which I think is also set out in this bundle on the previous page, page 15 of the ESOS Act, requires or provides under subsection (1):
a registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa –
condition. So that is a condition under the Migration Act relating to attendance or satisfactory academic performance. Now, there is a prescribed condition. In the supplementary bundle we added - I will not take the Court to it but 8202, which is the condition in this case, is the only prescribed condition, that is in regulation 3.03A.
So, section 20 says that the education providers have to send out notices. Then in the Migration Act there were then reforms that related to those notices, so if one goes to 26 of the Minister’s bundle, these are provisions added to the Migration Act at the same time and one sees 137J. There is a whole process but I will just stop at 137J. One sees that:
This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act –
and then various things happen. So, in this way the two Acts very, very clearly work together. Another reflection of that, which I think came a little bit after the enactment of these provisions but, in any event - - -
GAGELER J: So, is 137J still there?
MR LLOYD: Yes.
GAGELER J: So, this would provide the normal way for dealing with non-compliance.
MR LLOYD: Not for the immediate current issue. Section 20 is
for non-achievement of attendance or non-satisfactory performance, whereas
the
current breach of 8202 is for not being enrolled. Perhaps if I take
the Court to the current version of 8202, which is in our
original bundle
at page 64, so this is the form of condition of 8202 that was on my
client’s visa.
It is not the form that was in the legislation.
Curiously it shows another linkage. Condition 8202, although part of the
regulations,
was inserted into the regulations by the Migration Legislation
Amendment (Overseas Students) Act, not in this form. The one inserted in
the Act was only to last for a certain period of time and was designed to have a
retrospective
application. So if I go first of all – although it is
not to critical provisions here but to show the link under section 8202(3),
one shows:
A holder meets the requirements of this subclause if neither of the following applies –
So there is part of a negative process there, and the first thing that has to not apply is that you have to have not been certified by the education provider as not achieving performance under section 19 of the ESOS Act. So, under section 19 of the ESOS Act, section 19(2), there is a requirement to notify – under section 20 there is a requirement to notify the student.
Under section 19 there is a requirement to notify through PRISMS the Education Department and because the Minister of Immigration has contact, in fact the Minister also gets notice. So if there is a certification by the University that there has been non-achievement of satisfactory course of progress or non-achievement of course attendance, then the existence of that certification constitutes a breach – no certification, no breach. Section 8202(2), which is the one we are dealing with, is in a sense a little bit like the reverse of that. Here the:
holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course –
and in that sense we say it is clear, given that a positive state of satisfaction is required under section 116(1)(b) the Minister cannot just look at nothing and say “I am not satisfied that you are enrolled” and therefore cancel the visa. In substance, the Minister has to have something where he would expect to find information about enrolment. That place is PRISMS. That is the way that the two Acts get together and so that is a place that he is meant to be able to go to get that information and here he looks at it and, if able to reach a state of satisfaction required by 116(1)(b), then 8202(2)(a) is breached.
GAGELER J: Well, there is a definition of “registered course”, the language that is used in 8202(2)(a). It is a definition that ties back to the Education Services for Overseas Students Act.
MR LLOYD: Yes. All of this is just to say there are lots of linkages and the Court should not be troubled by the fact that section 19 is in a completely differently Act to section 116(1)(b) of the Migration Act. They are meant to work together and so there is no reason why the Court should not infer that a breach of section 19, which is meant to inform the decision-making under section 116, should not be able to infect it with jurisdictional error.
GAGELER J: So you do not get into the Education Services for Overseas Students Act unless you are an overseas student, and to be an overseas student you need to hold a student visa. Is that not the way it works?
MR LLOYD: Yes, I mean, in a sense, the Act regulates the education providers more than the students.
GAGELER J: In respect of those who hold student visas?
MR LLOYD: If you are an education provider who did not provide services to overseas students – that is, people who hold student visas – you do not need to do anything under that Act. The Act only regulates education providers who have overseas students.
Another link, which I will not take the Court to because your Honour the presiding Judge has already mentioned it, is the objects of the ESOS Act, which is in our supplementary bundle and, in particular, subparagraph (c) of that. It is in this way we say that the PRISMS system is a legislatively recognised process for providing data to inform visa decision-making. It is, in fact, used for that purpose and was the total basis for the cancellation decision in this case.
Section 116(1)(b) is enlivened in the way that I have already said, where the Minister has a positive state of satisfaction and it is not something that can be done by the absence of information. PRISMS is, at least, a place that the Minister, we say, must look at and it is true that that mechanism - that one of the ways we put our argument, which is the way I have already foreshadowed, but if I go on to topic 6 on our list - - -
GAGELER J: Why do you say the Minister must look at PRISMS?
MR LLOYD: We say that because it was established for the purpose of student visa condition monitoring and is made available to the Minister and we say is a relevant consideration. Whether or not it would necessarily be enough is a separate point.
KEANE J: Why is it not just a monitor? Why is it not what you say it needs to be? It is a means of monitoring so that it provides information – it provides a basis for further inquiry. So you look at it and you think, “Goodness me, this person appears not to be registered”, and then the next step is to find out if, in fact, in accordance with the regulation he is enrolled.
MR LLOYD: I am content with it having that character as well, but even there it would be something that the Minister should have regard to in the process of monitoring.
KEANE J: He is assisted by it because it assists in monitoring, but the question then is does it provide a basis for decision-making?
MR LLOYD: If it does not provide a basis for decision-making, which we are certainly content to embrace, then the decision is flawed on that basis. If it is able to provide a basis, then we say it is flawed because the breach of section 19 has flawed the database. So, either way, we say we get to the result.
NETTLE J: There is nothing anywhere, is there, that says it is a sufficient basis for a decision to cancel someone’s visa that their name does not appear in the PRISMS database?
MR LLOYD: No, nothing in those terms. We put the error in three ways. We would rely upon – I will not take the Court to it – but what was said in this Court in Kirk [2010] HCA 1; 239 CLR 531 at 73 to indicate that there is no rigid taxonomy of jurisdictional errors. I am now going to advance three ways in which we put it. I do not suggest that they are not overlapping to some degree, but they each have a slightly different nuance to it.
The first way is, in a sense, one that I have already canvassed, which is that section 19, we say, was a critical source of information for the Minister for informing student visa cancellation decisions. The importance of reliability of that source of information is reflected in the fact that there is a criminal sanction on the entity that is meant to supply that information.
Where there has been non-compliance and a cancellation decision has been made upon a flawed section 19 database, we say that that decision should have no effect at law, and we say that the Court should be comfortable in considering that Parliament’s intention would be that a decision infected by such a flaw should be given no force and effect.
GAGELER J: So this is applying a Project Blue Sky analysis to a breach of a procedural provision?
MR LLOYD: That is so, exactly so. Then, the second way we put it relies upon a decision of R v Criminal Injuries Compensation Board; Ex parte A. It is by way of an analogy, but if I take the Court briefly through that decision. The substantive issue starts to be analysed at the bottom of 341. At 343, at the letter G, it is said in that case:
in a matter of crucial importance, the board was led to proceed on evidence which was wrong and they did not have the true facts.
In the same paragraph, but in fact immediately before the bit I just referred to, it is noted that there was not anything that was done “deliberately” or “fraudulently” in that case - - -
GAGELER J: What page are you reading from?
MR LLOYD: Page 343, at about letter G. The paragraph begins:
It is not suggested that the officer gave her inaccurate evidence deliberately, let alone fraudulently.
Then at page 345, between the letters C and D, it is noted that it was not relevant that there was not anyone who was at fault. We say in our case, there was somebody who was at fault, which was the education provider, but that only makes our case stronger than Ex parte A.
There was an indication here that there was no onus on the police to provide the information. Nonetheless, the police were said at F on page 345 to occupy “a special position”. I should perhaps say, at letter C, the court indicated – or Lord Slynn, whose reasons are agreed in by the balance of the court save in one respect by all the other members, notes there are two bases. One could be simply an error of fact, but then his Honour says he prefers to put it in terms of:
a breach of the rules of natural justice –
It is the second way that we are noting. So, back down to F and G, the court notes a special position of the police in these cases, where they refer to in G:
an informal understanding -
according to which the police provide relevant information. Now, we say again that our case is stronger than that case because here, the education providers are under a duty to provide, through the PRISMS system, relevant information. The unfairness is described on page 347 at the letter B:
I consider therefore, on the special facts of this case and in the light of the importance of the role of the police in co-operating with the board in the obtaining of evidence, that there was unfairness in the failure to put the doctor’s evidence before the board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done.
We say in the present case the role of the educator does not arise from the informal understanding of the statutory obligation. The making of the decision by the delegate without regard to the information which should have been provided under section 19(1) was unfair to the plaintiff, and so the same result should follow. Now, that might all just be another way of justifying the Project Blue Sky - - -
GAGELER J: Well, but without any reference to the statutory scheme, as I understand it.
MR LLOYD: That is so.
GAGELER J: This case has not been received particularly well in this Court, I think. Ex parte A has been the subject of some comments in a number of cases.
MR LLOYD: Well, I would not entirely say that. I think Chief Justice Gleeson in Hot Holdings at paragraph 22 at least relied upon it for the notion that a third party error could affect jurisdictional error. In S134, which I am not sure that I have actually, the Court does discuss the matter a bit further. It is distinguished in that case. It might be said that it is not wholly embraced, but mostly the criticism in that case was really the fact part – the error of fact aspect that was being said, I think, in S134 to be problematic and it might not reflect Australian law wholeheartedly, as opposed to the natural justice point.
Anyway, we put it in terms of, there can be unfairness, even if the decision-maker is not the source of the unfairness and, here, there was a process – and stronger than Ex parte A, there was a statutory obligation for someone to provide information that should have found its way into the process and it did not, and it was unfair in those circumstances.
The second analogy for jurisdictional error is with SZFDE [2007] HCA 35; 232 CLR 189. In that case, the Court held that the fraudulent advice of a person – and that person was somebody who had falsely purported to be a migration agent, but that was not the critical point – but the advice was to the effect that the recipients of the advice should not attend a hearing of the RRT in accordance with section 425. The Court considered that that advice so stultified the information-gathering processes and procedural fairness processes of the Act that it undermined the validity of the Act. That was so even though the Tribunal was blameless.
Now, against that background, if I can just draw out a few matters that we draw to the Court’s attention. Above paragraph 8, there is a heading “‘Fraud’ in the law” and what the Court will see, throughout really, maybe not the totality of the reasons but much of the reasons, “fraud” is in inverted commas. Then there is a heading above paragraph 11 with “Fraud” again in inverted commas – “‘Fraud’ and public law” and emphasis in paragraph 11 is based on the notion of the “due administration” of the laws of the Commonwealth at the top of page 195.
Then at paragraph 13, the notion of bad faith – “good and bad faith” is discussed and there is a passage from an English text which seems to have the approval of the Court which notes really that although the language of good faith is used at the end:
Contrary to the natural sense of the words, they impute no moral obliquity.”
Then, at paragraph 14, the Court seems to have favoured the notion that one should consider the effect of the dishonest acts or omissions on the processes of the tribunal. That is what the focus is upon. Then there is a heading - - -
GAGELER J: The focus is upon dishonest acts or omissions, is that right - although “fraud” is used in inverted commas, as you mention. What the Court is dealing with here is dishonesty.
MR LLOYD: Yes, on the facts of this case there were dishonest acts and omissions. What we would ultimately say is in our circumstances there is unlawful conduct, criminally unlawful conduct which, maybe it would not normally fall within the crime of fraud – well, not normally, it would not fall within the crime of fraud, but within the public law notion of good faith and bad faith it is not a stretch to draw an analogy where conduct of that nature can have the same kind of consequences. Paragraphs 17 and 18, especially at the end of 17, it says:
Their Honours noted that in this context “fraud” was used in a broad sense which encompasses “bad faith”.
Paragraph 18 again noted the power of fraud is apparent. Paragraph 22 notes that one significance of fraud in some contexts, including the visa and the immigration context, is that actions – civil suits for fraud may provide no useful remedy. In the same way my client, even if he wanted to take an action for breach of statutory duty to the Macquarie University would probably get no useful remedy, if he wants to stay here and be educated.
In paragraph 32 we say that while there was a measure of fraud in the case – so, in the case, for example, there was a fraud directly on the victims which was telling them, for example, that the adviser was a lawyer or a migration agent, of which he was neither, the Court, we say, did not focus upon that because there was an issue that the Court left unresolved of whether or not the fraud had to be on the Tribunal or whether it would be enough if the fraud was on the victim.
So it is focusing upon – it found that there was fraud on the Tribunal and so therefore did not need to decide whether fraud on the victims was enough and the focus in paragraph 32 is on the notion of whether there had been an effective “subversion” of the processes under the legislation. In paragraph 45, the fraud that the Court ultimately relies upon is the notion that Mr Hussain was motivated by self-protection to give the advice not to go to the hearing. Then in paragraph 49:
The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants.
That concept of stultification is also referred to in paragraph 51 in relation to “the operation of the critically important natural justice provisions” in that case. We say the analogy we would rely upon in this case is we say the education provider, we accept, did not do something that was self-serving but it did do something that exposes it to criminal sanctions. We say that it should fall – something of that nature would fall within the broad penumbra of “bad faith” that the Court discusses. We say the breach by the education provider stultified an important information-collecting provision which was important to informing the visa cancellation decisions under the Migration Act. So, therefore, we say that invalidity should follow in the same way.
Now, all of that may simply be another way of putting or justifying the Project Blue Sky reason as to why it is an important link and the Court may not need to go to SZFDE but we do rely upon that. That brings me to the penultimate topic, which are the other factors relevant to the extension of time. Obviously the first factor is whether or not my client’s argument has sufficient merits and I have now said everything I propose to say on that, not only in support of the extension of time application but, if time is extended, on the substantive application.
We say that the agreed facts reveal that my client did not sit on his hands in relation to challenging the cancellation decision. The agreed facts reveal that he was not actually informed of the possible exercise of the cancellation power and what we rely upon in particular there are paragraphs 22, 29 and 31 which all show that the attempts to notify him were not actually successful, so we are not in any way critical of the Minister, but we are not saying they did the wrong thing but as a fact they were not successful.
GAGELER J: What about paragraph 24? Do I understand that to mean that the Department had the correct email address, but just typed it incorrectly otherwise he could have been notified by email?
MR LLOYD: That is my understanding, yes.
GAGELER J: Would email have been one of the methods of service permitted by the Act?
MR LLOYD: It would be a permitted method under the Act. So, yes, I was going to go next to 24. Your Honour is ahead of me. Then in paragraph 33, although it does not say this in terms but it is a necessary inference from paragraph 33 that my client did not know of the cancellation decision until 2 October because he discovered it the day before 3 October.
Then, within a day, he applies to the Migration Review Tribunal which, if it were within time, would have been the normal place to apply to, but it was not within time. He did apparently have the assistance of a migration agent in relation to making that application and I say that because the decision of the Tribunal was sent to a migration agent and one sees that on page 70 of the book. Now, I cannot deny that the application was misconceived but still, we say it does not show that he was sitting on his hands. He was seeking to agitate the cancellation decision as soon as he knew about it.
GAGELER J: So it was only misconceived because it was out of time. This class of decision is an MRT-reviewable decision, is it?
MR LLOYD: Yes. The only reason why we are in this Court is because, because it is an MRT-reviewable decision, it cannot go to any other court because it is a primary decision within the terms of the Migration Act which then excludes the jurisdiction of every other court.
Then he gets notified of the decision of the Tribunal which is at 72 to 74, on or slightly after 5 December, let us say on 5 December and he then applies to this Court by 8 January, that is paragraph 38 of the agreed facts, which is within 35 days - even including the Christmas period - 35 days from realising that the MRT was the wrong place to go.
In relation to my friend’s submissions that rely upon Ex parte Marks, if I just indicate we rely upon what we say in our reply submissions at 8 and 9 as to why that case is quite different. In the bundle of material that we handed up, at the very back of that there is a transcript of a decision of Justice Gummow in this Court in Ahmed [2011] HCATrans 35, one of my defeats at the hands of my junior, in which Justice Gummow granted an extension of time in a case with a much longer delay and only with the prospect – I mean, his Honour put it as “a” prospect of success. We say that we are stronger in both respects.
GAGELER J: I see your junior has highlighted his victory in the version you have handed up.
MR LLOYD: I think, to be fair to my junior, I had done the highlighting.
GAGELER J: Thank you.
MR LLOYD: I apologise for the highlighting. That brings me to the last point, which is not something in the book, but I noticed it so I should draw the Court’s attention to the issue. I do not think it is a matter of substance. The Court may not get to it in any number of ways. But in our application, which is on page 3, we applied:
That time be extended or enlarged, to the extent necessary, for the making of this application.
In our submissions we said that that should be extended to 8 January 2015, which is the date on which the document which starts at page 2 of the book was filed. That may be right, but can I just go back to section 486A of the Act, which is in our original bundle.
In the Ahmed Case, although I am not sure if it is in the bit with the transcript, there was some discussion as to the way 486A(2) works. The issue is whether or not one can make any substantive application prior to the extension of time under subsection (2). One view is you make a kind of a shadow application, which is not a lawful application under subsection (1), as we did on 8 January, the court gives an extension of time to 8 January and that, in a nunc pro tunc kind of way, makes it a valid application.
GAGELER J: I think I dealt with one of these matters recently.
MR LLOYD: I am unfamiliar with that, your Honour.
GAGELER J: I have a very poor memory, but I dealt with this issue very recently.
MR LLOYD: If it has been resolved, that is fine. We would say that the other way of construing it is that you cannot make an application until there has been an extension of time and so then the order should be to extend the time up until today, and then the application can be treated as being made today.
NETTLE J: What is the argument as to why it should not be construed as giving power to order nunc pro tunc?
MR LLOYD: Only that under 486A(1) you cannot make an application after the 35 days. Then there is a power to extend time to allow the making of the application and if you have purported to make an application at a point in time when you could not have made a lawful application, there is a question as to whether or not that counts. Can it be rectified or not?
We do not care one way or the other. I understand that the Federal Circuit Court take the nunc pro tunc approach. However, in the Ahmed line of territory, I had posited to Justice Gummow that – and that was a case that could be remitted – his Honour could not remit the
application unless an application had been made. It had to be made before it could be remitted, and so his Honour had to either extend time or not extend time, but he could not remit the extension of time application. He could only remit the substantive application.
GAGELER J: Yes, I followed him recently and I made an order nunc pro tunc. I am not sure I saw any issue about it, but I hear what you say.
MR LLOYD: I just felt I should raise it. In argument in another case in this Court, in Bodruddaza, it was a slightly earlier form of section 486A where there was only a limited capacity to extend time. Part of the argument on behalf of Bodruddaza was that the order had to be made and dealt with by the Court before the end of that unextendable period, because that was an unextendable period; otherwise, that was the same structure of this.
At least in the course of argument, there was some discussion about it, and the Court in argument seemed to accept that, and it was not disputed by the Minister in that case. Of course, the Court ultimately held the provision to be constitutionally invalid. It was then re-enacted without any limit on the extension of time, but it still leaves the question, what is the status of an invalid application? Is it capable of being validated?
All we say is if the Court is of the view that it can work nunc pro tunc, we are happy with the orders that we sought. If the Court is of the view that it does not work nunc pro tunc, then we would ask for an extension of time up until today to make the application. May it please the Court, they are our submissions.
GAGELER J: Thank you. Mr Kennett.
MR KENNETT: Your Honours, I am afraid I cannot assist on the last issue that Mr Lloyd was addressing, except to note facetiously that it can be avoided by not granting an extension of time. Apart from that perhaps unhelpful observation, I do not wish to add anything to what our written submissions say on the question of extension of time specifically. I just want to confine my submissions to the substantive issues in the case.
Before I come to the points in my outline, could I go to page 61 of the appeal book and say a couple of things about an issue that your Honour Justice Keane raised with my friend? The reasoning of the delegate expressed at the bottom of that page may appear – in the penultimate paragraph on the page – might appear to be somewhat tentative and it could not be defended if the delegate were merely acting on a suspicion of non-compliance. There has to be a state of satisfaction that a condition has not been complied with. That state of satisfaction has to be based on persuasion as to a set of facts.
One would read these reasons, reading them fairly and without an eye keenly attuned to the perception of error, as making that finding. That is, when the delegate says it appears – and this is at the end of a discussion which begins with there having been nothing on PRISMS – and goes through the plaintiff having not added anything to the delegate’s state of knowledge. When the delegate then says:
it appears that the client has not been enrolled –
That should be taken to mean that the delegate is now persuaded that the plaintiff was not enrolled and that that state of persuasion arises from the absence of anything – of any notation in the PRISMS database – and from an underlying assumption of reliability of that database. What I mean to say by that is that the delegate, one assumes, is accustomed to relying on PRISMS as a reliable source of information about whether somebody is enrolled or not. If it appears from PRISMS that he is not enrolled and if there is no other evidence bearing on the question, the delegate can properly infer that the person is not, in fact, enrolled.
KEANE J: Is that the application of some common law notion of omnia praesumuntur rite esse acta?
MR KENNETT: I do not think it goes that far, your Honour. I put it, really, as a proposition of, firstly, reading the delegate’s reasons in a commonsensical way, and then submitting to the court that it is open to an administrative fact finder to infer – to reason in that way.
NETTLE J: Because he can presume the regularity of compliance with section 19?
MR KENNETT: Because he can – I am hesitating to embrace propositions about presumption of regularity, your Honour, because that may elevate it to a higher lever – a more theoretical level – than it needs to be. Really, all that I am saying is that this is not an unreasonable form of fact finding for an administrative decision-maker to adopt.
NETTLE J: You would have to be able to infer it was probable that there had been compliance, at least, would you not?
MR KENNETT: Yes, yes.
NETTLE J: So it is an inference of compliance, what, based upon the fact of criminal liability if the University does not comply?
MR KENNETT: Partly. We do not know, of course, but one imagines based partly on experience of using the database.
NETTLE J: Well, if the experience of this case is any indication, that would not be much of a guide, would it?
MR KENNETT: Well, based on this one case, quite so.
GAGELER J: Mr Kennett, is the way we are to read the reasons affected by the terms of the agreed fact - in paragraph 30 of the agreed facts, or would I be reading too much into that?
MR KENNETT: Well, the agreed fact by virtue of having been agreed achieves a degree of pre-eminence under the Evidence Act.
NETTLE J: It is not admissible in a sense, is it? It is just a reinterpretation of what is already in writing.
MR KENNETT: It is. I would need leave to adduce a piece of evidence to contradict or qualify what we have agreed in that statement, but what is in paragraph 30 is really no more than a paraphrase of what is in the document. They are not inconsistent with each other so I do not think a problem arises there.
NETTLE J: Are you putting it on the basis that the plaintiff admits that the letter is properly to be construed in the way it is set out in 30?
MR KENNETT: Well, yes, that is the consequence of what is in the agreed facts.
KEANE J: If we take it that way, if we take it that the fact is the delegate was satisfied by reference to PRISMS because PRISMS is an essential aspect of the decision-making process, and that fact is wrong, why do we need to go in a search for some pigeonhole in the taxonomy of judicial review? Why has not the whole decision-making process failed at that point?
MR KENNETT: The reason is, as your Honour put to my friend earlier, that PRISMS has no statutory status, no presumptive status under the Act. It is practically an important tool which decision-makers use, but it is not required by the Migration Act to be even the starting point for a decision, let alone the end point for a decision. So that it is a piece of, in practical terms, useful evidentiary material which a decision-maker would no doubt be criticised for not looking at, but nothing in the Act makes it presumptively right.
GAGELER J: Is it not a means of ensuring the provision and reporting of information relevant to the administration of the migration law?
MR KENNETT: It is, but ensuring the provision of information relevant does not mean that that which is provided is necessarily required to be relied upon or that that which is provided has some special status – necessarily special status in the decision-making processes of people exercising - - -
KEANE J: If it is only an aid to investigation then the fact stated in paragraph 30 suggests that the delegate acting upon PRISMS has acted upon an irrelevant consideration because he has used it as a basis for decision-making rather than merely a tool for investigation.
MR KENNETT: He has used it as a piece of evidence, your Honour, to make a finding of fact. We would hesitate to describe that in terms of relevant considerations. He has relied on a piece of evidence that was available to him. He has drawn an inference from it. Other people might not have drawn the same inference but that is by the by, we would say.
KEANE J: Other people might have just rung up the University, as in fact he did to find out the address. It might have occurred to them that if the address was not available perhaps there was something - from PRISMS - there might be something wrong with PRISMS.
MR KENNETT: Yes. Well, a couple of things in relation to that. No point is taken by our friends about a failure to inquire in this case. Clearly, the inquiry was open to be made.
KEANE J: Well, they cut to the chase. They do not worry about the inquiry, they just say there was no factual basis for this because the foundation on which the delegate acted was absent.
MR KENNETT: Yes, and it may be so. It may be the case that he could have asked the University is this person enrolled and the University, the person on the other end of the phone might have said yes – might have said other things as well, some of which relate to matters that have been struck through in the agreed facts because they were not – did not appear to be relevant at an earlier stage of the proceeding.
KEANE J: But the only basis on which the cancellation occurred, the only breach which was the basis for the cancellation was non-enrolment?
MR KENNETT: Yes. The other thing I should mention is that as we read the regulations on page 72 of our friend’s original bundle, the requirement to – this is paragraph (ea) of regulation 3.01, the requirement to show the person’s “current residential address” and other matters applies only “if the student is under 18” which, I think, is no longer the case and was no longer the case for this plaintiff at the times that we are talking about. So, the address would not necessarily have been there if his enrolment had been uploaded.
Could I then turn to the matters that I have included in the outline? Your Honours will see that we start with some propositions about statutory construction, which really go to the Project Blue Sky aspect of our friend’s arguments, and then we come to some propositions about the importance of – or the impact of the University’s failure in this case on the decision-making process in this case. The ultimate question in the case is whether the power to cancel the visa was available to the delegate in circumstances where the ESOS Act had not been complied with by the education provider, and that involves questions as to the construction of the power that was – the provision under which cancellation took place, namely, section 116(1)(b) of the Migration Act.
In our submission, nothing in the statutory scheme indicates that compliance by the provider was a precondition for the use of 116(1)(b) to act to cancel a visa. Of course, there is nothing express in section 116 that says that, or anywhere else in the Migration Act. One needs to find it, if at all, by inference. The substantive precondition for the power to cancel, of course, is the Minister’s satisfaction that a condition of the visa has been breached, and the particular conditions that are applicable will depend on the regulations as they stand from time to time.
There is nothing in the provision, we say, that would allow or provide a basis for it to be read as being subject to some form of additional precondition; a condition applicable if the visa condition in question had certain characteristics, perhaps. To reason in that way would amount to reading the provision as if it contained additional words. The Court recently looked at that question in Taylor, which I was not proposing to go to – it is not on anybody’s list – but the reference is [2014] HCA 9; 253 CLR 531. We just note that there is nothing in the structure or the language of section 116(1)(b) to suggest that Parliament’s intention was anything other than what the words of the provision convey.
It is also far from clear what are the additional words that one would take to be there; for example, is the implied limitation one which applies specifically to the ESOS Act? Does it apply more broadly where third parties are relied on to provide information? Does it apply only to the present condition 8202, and what would be the basis for that? Does it apply to other kinds of visa conditions as well?
GAGELER J: How do you deal with the fraud case? Do you have to read in some qualification in section 116?
MR KENNETT: One deals with the fraud case by finding that if it be the case that fraud has irretrievably compromised the process of decision-making, as occurred in SZFDE – I will come to that in due course – at the moment, I am attempting to deal with it at the level of statutory construction in a Project Blue Sky sense. The link from the ESOS Act via PRISMS to decision-making under the Migration Act as your Honours have seen, occurs through section 175 of the ESOS Act, which is of course discretionary in its terms.
One imagines it was envisaged that the information would be passed on to the Migration Department as a matter of course, but all that the statute actually provides for is a discretion for the Secretary of one department to give information to the Secretary of another department, which is a slender basis, we would say, for a conclusion that compliance with the one is a necessary precondition for decision-making under the other.
We also make the submission that the construction of section 116(1)(b) cannot logically be controlled by the use of particular phrases in the Migration Regulations. So our friends in their reply refer to a definition in the Migration Regulations which reflects some of the language used in the ESOS regulations, and we would say – and your Honour Justice Gageler drew attention to the fact that condition 8202 picks up language that traces back to the ESOS Act – but, as at a matter of logic, the things that the regulation maker have done cannot control the construction of the principal Act.
GAGELER J: Well, the difficulty here is that you have two principal Acts, one of which takes as its starting point regulations made under the other. The ESOS Act can only be understood in its principal operation against the background of the visa categories and visa conditions created by the regulations made under the Migration Act. So, this perhaps is one of those rare cases – like the sales tax legislation – where you simply cannot read the Act without also taking into account the scheme of the regulations.
MR KENNETT: The ESOS Act applies only to overseas students who are people who have student visas. That is the way it enters its universe. It does not follow that it is to be read as one with the Migration Act, to be integrated in every sense. The Migration Act is quite explicit about the extent to which it integrates itself with the ESOS Act, as I will come to in a moment.
The formation of the Minister’s state of satisfaction for the purposes of section 116 is also governed of course by the procedural requirements which one sees in Subdivision E, Division 3 of Part 2 beginning with section 119. That regime does not itself provide any hook for a submission that compliance by an education provider with its obligations is in some way a mandatory precondition. If anything, we would say to the contrary.
If one goes to Subdivision E, one sees - I am sure your Honours are familiar with all this, but in section 119 there is a requirement - I should say there are other processes in Division 3 for visa cancellation but Subdivision E is the one that was applicable here. The other processes for various reasons were not. So, section 119 required notice of the proposed cancellation to be given to the visa holder with particulars of the grounds and an invitation to show within a specified time that those grounds did not exist or that there is a reason why the visa should not be cancelled.
Then section 120 required information to be given to the visa holder, “relevant information”, that is, in brief terms, adverse information. One sees that in section 120(1). Then there were the provisions in section 121 about invitations to comment and how they are to be given and where that is to be done in writing, subsection (2), your Honours will see:
if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or –
otherwise –
a reasonable period.
Then finally, and relevantly here, section 124 which provides for when a decision about cancellation can be made:
the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after . . .
(a) the holder responds to the notice;
(b) the holder tells the Minister that the holder does not wish to respond;
(c) the time for responding to the notice passes.
So that there is a regime for procedural fairness and here we say is the first mechanism by which the Act provides for picking up errors or gaps in the information upon which the Minister might be proposing to rely in exercising the cancellation power under provision of that mechanism. The other mechanism of course is merits review which ordinarily one gets now in the Administrative Appeals Tribunal, subject to applying within time. The provision of those mechanisms, we say, stands in the way of any argument that says that provision of the correct information in the first place by a third party is essential to the operation of this statutory scheme.
We also rely, to the opposite effect to our friends, on a couple of matters which my friend mentioned in his submissions. One is Subdivision GB in Division 3, which your Honours have been taken to; Section 137J, which your Honours were taken to, is the beginning of a set of provisions for automatic cancellation, which are triggered by a notice given under the ESOS Act. That is why I say the Migration Act is quite explicit about the extent to which it integrates itself. We have here an express provision that says something expressly about when the operation of the Act is affected or triggered by things done under the ESOS Act.
We also rely on some aspects of the legislative history, which is contained in the defendant’s bundle that my friend also made some reference to. If I could just indicate the parts of that bundle that we want to draw attention to. First, we have - - -
NETTLE J: Sorry, Mr Kennett, how does 137J help your case?
MR KENNETT: It indicates, your Honour, that the drafters of the Migration Act have thought about the extent to which they intend the Act to work, together with the ESOS Act. So, in one situation, there is an express link. If in another situation there is no express link, that tends to support our position, we say.
NETTLE J: It does not assist, or does it, your argument that there is nothing implicit in this Act which makes accuracy of the PRISMS a condition of the exercise of the jurisdiction?
MR KENNETT: We say it does.
NETTLE J: Because?
MR KENNETT: For the reason I have just given because, when the drafters of the Migration Act want to make something in the ESOS Act the trigger for the something – they have done it expressly in 137J.
NETTLE J: But what is provided for in J is sending a notice which, presumably, is assumed to be a notice based upon accurate information because, unless it is responded to, it results in the cancellation.
MR KENNETT: This is a notice sent by the provider in performance of its obligations under section 20 and the Migration Act gives it a consequence expressly. It does not have to be based on PRISMS or done through PRISMS. It is a notice sent to the student, as I understand it.
NETTLE J: Sorry to delay you.
GAGELER J: So you are saying that PRISMS has a particular statutory status under the Migration Act but, relevantly, for the purpose of section 116 it is just another bit of information?
MR KENNETT: We do not say the first part of that, your Honour. We deny that PRISMS has a particular statutory status. We note that in another part of the Act the ESOS Act is given a consequence - - -
GAGELER J: I see.
MR KENNETT: - - - but not in the part of the Act that we are concerned with here.
NETTLE J: So it is just another piece of information for relevant purposes? It is just - - -
MR KENNETT: Yes, yes, that is what it comes down to. So, your Honours, in the – if your Honours would turn to the defendant’s bundle of materials, the first item in there is section 11 of the 1992 Migration Reform Act, which begins on page 1 and inserts a large number of new provisions, including relevantly, section 50AB on page 6, which is the forerunner of section 116, which we are concerned with today. So, a provision in this form is in the Act, in the early 1990s.
Your Honours will see also starting at page 7, sections 50AE to AJ, which are the forerunners of the provisions of Subdivision E that I mentioned a moment ago. Then for ease of reference, page 13, we have included section 116 as it stood immediately before its amendment by the 2000 amending Act that my friend mentioned, that is the Migration Legislation Amendment (Overseas Students) Act 2000.
Then, at pages 14 to 16, also for convenience, we have included sections 19 and 20 of the ESOS Act as they were enacted. I do not need to dwell on those. At page 17 begins an extract from the explanatory memorandum to the Bill for the ESOS Act, and your Honours have been taken to a couple of paragraphs on page 18 where the memorandum in the penultimate paragraph on page 18 speaks in fairly anodyne language about the establishment of:
reporting requirements . . . and a new secure electronic confirmation of enrolment system to preclude fraudulent practices –
Then it mentions co-ordination between a number of departments which you see will minimise the presence of certain undesirable providers. It mentions that:
Complementary measures are being introduced in the Migration Legislation Amendment (Overseas Students) Bill 2000.
Then, over the page, your Honours have another extract from the explanatory memorandum, which – this is the discussion of clause 19, and in the fourth paragraph on that page it says:
It is intended that these records would be required for tracking a student’s progress through the electronic formation of enrolment system, for use in monitoring a student’s compliance with relevant visa conditions concerning attendance or satisfactory academic performance –
So, interestingly, enrolment is not mentioned there but, more generally, it speaks of an intention that the records will be used for monitoring compliance, does not rise to the level of – certainly does not rise to the level of expressing an intention that provision of the information would be a necessary precondition for steps to be taken under the Migration Act.
The next thing in the bundle is the Migration Legislation Amendment (Overseas Students) Act 2000 beginning at page 20 and there are just a couple of things to note in here. Firstly, at page 26 your Honours see Subdivision GB which I have mentioned and which my friend has mentioned being inserted into the Migration Act. Then at Schedule 4 to this Act which starts on page 57 of the bundle, there is an amendment to section 116 and that is item 1 in Schedule 4 and that is to insert an additional basis for cancellation, that is, the Minister being satisfied that the:
holder is not, or is likely not to be, a genuine student; or –
is engaged or –
likely to engage . . . in conduct (including omissions) not contemplated by the visa –
and then a couple of definitions added for the purpose of that by sub-item (ii). Then the remainder of Schedule 4 is not by way of insertion of provisions of an ongoing nature in the Migration Act but to make special provisions for an existing situation which is mentioned in the explanatory memorandum that I will come to very shortly.
So what this Act did to section 116 was not to do anything to paragraph (b) or surrounding paragraph (b) or add any qualification to the existing cancellation power arising out of the ESOS Act but just to add a further basis for cancellation.
GAGELER J: But also importantly, as I understand it, to insert condition 8202, so as to require that the student visa holder be enrolled in a registered course, registered course being a course provided by a registered provider.
MR KENNETT: Yes, it adds the condition. It makes no provision, certainly expressly, for monitoring compliance with that condition. It certainly does not recruit PRISMS as the basis for monitoring compliance. The condition, of course, goes into the regulations where it becomes amendable in the ordinary way by subsequent regulation.
The next thing is the explanatory memorandum or part of the explanatory memorandum to the Bill for the Act that I have just been discussing. I think your Honours have already seen this but the first paragraph on page 61 notes that this is part of a package, complements the ESOS Bill, so these pieces of legislation were enacted together.
We rely on that to say when the drafter had the ESOS Act and the Migration Act together and was working out the extent to which they would integrate or be integrated there was no provision made in relation to reliance on the PRISMS system or statutory consequences being given to it or to failures in it.
We then have starting at page 63 the supplementary explanatory memorandum to the same Bill which is not of great consequence here. It explains on page 64 the inclusion of Schedule 4 which I took your Honours to a minute ago. The second dot point under paragraph 2 notes the insertion of a power to cancel where the Minister is satisfied that the holder is:
no longer a genuine or continuing student.
The remainder of the discussion on page 64 tells us that the material in Schedule 4 was a response to a judgment of the Federal Court in a case called Nong which the Minister at the time sought to overcome. That was about the construction of the former version of condition 8202.
We have also included the remainder of that supplementary explanatory memorandum and it mentions the new 116(1)(f) towards the bottom of pages 65 and 66 and I do not think anything turns on that for present purposes. Then, again, just for ease of reference we have included at page 70 section 116 as it stood following the amendments made by the 2000 amending Act.
What we seek to draw from all that is the proposition I have already put, that the extent to which these two Acts integrate with each other has been a matter of express provision and thought when the two were before the Parliament at the same time. What one does not get is any indication coming out of that that compliance with section 19, or the correctness of the PRISMS system is a statutory prerequisite for things to be done under the Migration Act.
That is what I wanted to say at the level of statutory construction. Could I come then to the circumstances of this case? Here, I am really dealing with the second and third ways that our friend puts his argument, which is to say the propositions that the decision-making process provided for by the Act was undermined or undercut or stultified in this case by non-compliance by the education provider with its obligations.
The first point that we make about that is that the procedural fairness provisions in Subdivision E are predicated, we would say, on the possibility that the information upon which the Minister is minded to rely might be incorrect, or arguably incorrect, or might be incomplete. Those provisions are there to provide the visa holder with an opportunity to place the correct information before the Minister.
In this case, the visa holder had at his disposal a piece of evidence which would almost certainly have persuaded the delegate that he was in fact enrolled in a course. We know that from paragraph 20 of the agreed facts on page 96.
GAGELER J: Well, we know he was in fact enrolled.
MR KENNETT: We know that the University gave him a letter of enrolment confirming that he was enrolled. The document itself is in the book. It is at page 88. It is dated 23 December 2013, so before this cancellation process began. It is on the letterhead of the Macquarie City Campus, and it confirms that the plaintiff is “currently enrolled”. It says he commenced on 27 February 2012, and is expected to finish on 1 June 2014.
The plaintiff’s evidence at paragraph 6 on page 78 of the book was that he received the letter on 23 December 2013. So he has, at his disposal, in his possession, a piece of evidence which would in a flash have persuaded the delegate that the ground set out in the notice of intention was not a good ground and that the visa was not liable to be cancelled on that basis.
The procedure for procedural fairness in Subdivision E, we say, was followed in this case. Indeed, the delegate probably did more than was required by the statute. We do not understand our friends to say to the contrary, but I should just note some of the documents in relation to that.
GAGELER J: I am not sure you really need to go through that detail, Mr Kennett.
MR KENNETT: All right, I will pass over that. So the procedure was complied with, letters were sent by one of the methods contemplated in regulation 2.55, firstly to the last address that the Department had for the plaintiff, secondly to the address that the Department had obtained from the University for him. The second of those notices was sent on 25 February. Both of the notices set out the basis upon which the delegate was minded to think that he had not complied with condition 8202 and invited him to demonstrate that he had complied. The decision to cancel is made on 20 March, we would say, in compliance with the timeframe in section 124.
GAGELER J: All of that is accepted. I thought you were trying to deal here with Mr Lloyd’s argument based on Ex parte A.
MR KENNETT: Yes, yes. I am circling around it, but I am going to get there. The point is there is a statutory process for procedural fairness which is there in part to pick up or to deal with problems where the Minister might get an initial piece of information which is wrong or incomplete. That process was followed here. That process, as we know, did not avail the plaintiff because the notices did not reach him.
A reason why the notices did not reach him was that neither the Department or the University seems to have had an up-to-date address for him, and we mention in paragraph 7 of the outline condition 8533. The plaintiff’s first bundle of material contains all of Subclass 573 in Schedule 2 to the regulations. It starts at page 39 of that bundle, and the relevant part of it for the point that I am now seeking to make is clause 573.611 on page 60 of the bundle which imposed:
If the applicant satisfies the primary criteria –
which this present plaintiff did; he was the student – 611 tells us what conditions apply to the visa and in all cases - there is a list of them. The one that is of present interest is 8533, which we have included at the end of our bundle of material and it is on the - we have actually given your Honours the whole set, but the only one that is interesting is 8533 on page 80, in particular (b)(i) which says that:
The holder must:
. . .
(b) in all cases:
(i) notify the education provider of any change in the holder’s residential address in Australia within 7 days –
If the address that the University had for the plaintiff was wrong, as we understand it to have been from the fact that the letter came back, then it would seem to follow that the plaintiff had not complied with that condition on his visa also.
GAGELER J: Where does that point go?
MR KENNETT: Only to say that that non-compliance, together perhaps with his non-responsiveness for whatever reason to the delegate’s attempts to call him - - -
GAGELER J: Perhaps combined with the inability of someone to type in a correct email address.
MR KENNETT: Combined with that, prevented the process in Subdivision B from being useful in this case. So, there is a process there. It should have worked, should have resolved the matter, did not resolve the matter because of a combination of circumstances, prominent in which we say is the plaintiff’s failure – and I use that neutrally – to keep his education provider and, for that matter, the Department, although there was no obligation in that regard, but to keep his education provider up to date with where he could be contacted.
NETTLE J: Mr Kennett, before you go to the next point, may I just ask, once - granted that he may have caused the process to miscarry in the way which you say, once it was established that the process had miscarried, was there no power left in the Minister to revoke the revocation, or the cancellation? Was his discretion exhausted at that stage?
MR KENNETT: The only discretionary power we have been able to locate is section 195A which is a general public interest power to give somebody a visa if they are in detention.
NETTLE J: So there is just no power to, as it were, revoke this cancellation?
MR KENNETT: There would have been - if his application to the Tribunal had been within time then one infers that the Tribunal would have fixed it, and if the Tribunal had not fixed it, there is then a subsequent discretion of the Minister in section 351 to substitute a more favourable decision but he did not get there because his application to the Tribunal was out of time. So the only discretionary fix that we have been able to locate is one which is predicated on the non-citizen being detained.
NETTLE J: I see, thank you.
MR KENNETT: Now, in the circumstances that I have outlined, our proposition is that the failure of the education provider to upload his enrolment into PRISMS did not stultify, undermine, whatever phrase one wants to use, the operation of the legislative scheme. We can accept as a matter of extreme likelihood that if his enrolment had been recorded promptly then this process would not have started. So the notice that your Honours are seeing would not have been sent. The decision that was made – cancellation on the ground of non-enrolment – would not have been made.
Our friends in their reply seem to go a little bit further than that and say in bald terms that the visa would not have been cancelled and we say that that overstates the position in the light of – particularly in the light of some paragraphs in the - - -
KEANE J: But the ground on which it was actually cancelled - - -
MR KENNETT: Would not have been thought of. So one - - -
KEANE J: So your contention is it was not required as a matter of law that the delegate have reference to and act upon what was in PRISMS, but the fact is that the delegate did and treated the PRISMS entry as the basis for the decision that this gentleman was not enrolled.
MR KENNETT: Yes.
KEANE J: So in fact that is the basis on which the decision was made.
MR KENNETT: Yes, that is so.
NETTLE J: I suppose coupled with the lack of response to the letter that was sent out.
MR KENNETT: Yes. I mean, it was the lack of response that made reliance on the PRISMS information possible, in a sense, because the response would almost certainly have included the document which I took your Honours to, which again, it is very difficult to imagine a delegate presented with that still being of the view that - - -
KEANE J: On the other hand, if we are talking about what is difficult to imagine, it is difficult to imagine that other than in the novels of Franz Kafka one would expect that when one has a letter from the University saying that you are enrolled and when all that is required to establish that one is enrolled is there be a phone call from the Department to the University, it is very difficult to imagine the possibility of someone concluding that you were not enrolled. It is just extraordinary.
MR KENNETT: Well, your Honour, the fact is the question was not asked. We would say there was no legal obligation to ask it. Had it been asked, it would have opened up a degree of background history which your Honours have not been saddled with as to the earlier performance of this student and matters of that kind. The University’s answer to the question may not have been simple is all I am saying.
NETTLE J: The only answer that the University could have given to the question as to whether he was enrolled was that he was enrolled, surely?
MR KENNETT: Yes, based on the agreed facts.
NETTLE J: That is what we are proceeding upon, as I understand it.
MR KENNETT: That would, one would think, at least, bring to an end the process based on the grounds in the notice of intention that your Honours have seen. It may have led in other directions as well, is probably all I should say.
GAGELER J: I think you were still responding to the argument based on Ex parte A. Is that right?
MR KENNETT: Yes. Sorry, the failure to record the enrolment in PRISMS, the effect that that had was to – that resulted in a notice of intention to cancel which brought the Subdivision E provisions into play so that, we say, the University’s failure to act did not dictate cancellation of the visa or make any particular result inevitable. It did not, in any way, doom the visa to cancellation and that takes us to our distinction between this case and Ex parte A, and also, in a way, to our distinction between this case and SZFDE.
In Ex parte A one had a situation where the police had neglected to provide an inquiry – with a board of inquiry with certain information the information was not available to the applicant. She did not know about it. There was nothing she could do to fix that so the omission of the police which was found by their Lordships to be significant meant that the hearing was irretrievably compromised. That is the reason why, as we understand the case, the applicant succeeded there where - - -
GAGELER J: Just so I understand it at a high level, you are accepting Ex parte A as a statement of the law?
MR KENNETT: No.
GAGELER J: You are not? I can understand you distinguishing it on the facts and that is not difficult to do, but do you want to say something more about it?
MR KENNETT: I did not, your Honour. We have mentioned in the final footnote of our written submissions, page 6, at the bottom. We have included a reference to S134, which I confess I have not revisited today because I only learnt this morning that my friend was going to go to the case. But we do note that it is, at least, doubtful whether Ex parte A is good law in Australia. I am not in a position at the moment to add to that debate, but we seek to avoid it by distinguishing it.
We say that this case does not get into that territory because all we had here – we did not have an error by a third party or an omission by a third party which sent the process irretrievably off the rails. All that the error by the third party did here was trigger a further process which was then conducted according to the Act, which did not fix the problem because of later and separate problems.
NETTLE J: What were the later and separate problems?
MR KENNETT: The various matters which added up to the fact that the Department did not have the right address to - - -
NETTLE J: That had preceded the decision, had it not?
MR KENNETT: Yes, your Honour.
NETTLE J: And, indeed, preceded the sending out of the second warning letter?
MR KENNETT: Yes, but postdates the omission by the University. That is my point. So the omission by the University does not have the cataclysmic effect of the police mistake in Ex parte A or the fraud in SZFDE because all that it does is trigger a further process under the statute, which is there to pick up - - -
GAGELER J: You put the two failed processes together, then you have the cataclysmic effect.
MR KENNETT: You do, but the later events, we would say, do not change the character of the earlier ones.
NETTLE J: I do not see why they are later. He had already failed to inform the University of his correct address when the process was got underway and because the PRISMS was inaccurate the process thus miscarried. There is no later event in reality. The one singular event is the inadequacy of the PRISMS entry.
MR KENNETT: Well, that is what begins it, your Honour. But then when the process of decision-making starts, the plaintiff has not supplied the right address. He rejects the delegate’s attempts to ring him up. He does not respond to a telephone message asking him to call. If any of those matters had gone differently, then one infers the notice would have reached him and he had the means at his disposal to undo the problem that had been caused by the University.
NETTLE J: It almost sounds like an argument based upon retributive justice, rather than a process which is put in place by an Act of Parliament.
MR KENNETT: I hope not, your Honour. All I am seeking to do is identify properly the effect that the University’s omission had on the decision-making process, which is a different effect, we say, to what one sees in Ex parte A and a different effect to what one sees in SZFDE. Could I just go very briefly to SZFDE 232 CLR, which I think your Honours have. There is an interesting discussion of the notion of fraud, which my friend took your Honours to some parts of. At paragraph 28, on page 200 of the report, their Honours say that:
It is unnecessary . . . to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” –
They then turn to the circumstances of that case. That ends up, as my friend noted, at paragraph 49 on page 206 with the proposition that:
The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice –
Then, at 51 on the same page:
the concomitant –
of what Mr Hussain had done –
was the stultification of the operation of the critically important natural justice provisions . . . the Tribunal . . . was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review.
Now here, we say far from stultifying the operation of the natural justice provisions, the University’s error simply kicked them off. It started them, put them in train. It was for quite separate reasons that the natural justice provisions here did not end up bringing any joy to the plaintiff so that the third party error in this case does not have the same functional attributes, to use a word – to borrow a phrase from Professor Jaffe, referred to in Kirk – it does not have the same functional attributes as the errors, or conduct, or fraud, however one characterises it, in the cases upon which my friend relies. So that is how we seek to meet that second part of the argument. Those are the submissions for the defendant.
GAGELER J: Thank you, Mr Kennett. Mr Lloyd.
MR LLOYD: Can I start by making two corrections, perhaps, I think I should have corrected in-chief. If the Court has a document called the “Plaintiff’s Amended Annotated Submissions”, the nub of the matter was in our original submissions at a time when I was not involved. We went beyond the ambit of the matter, so there was then an amended set of submissions which took out certain things, and then we had to annotate the amended submissions, and somehow, on page 10 of the amended annotated submissions, paragraph 28 has slipped back in. That was something that should be out. It is not a major deal, but I did not want to - - -
GAGELER J: You want us to cross out paragraph 28?
MR LLOYD: Paragraph 28 should be crossed out, and 29, which was in the original set of submissions, is wrong; the second paragraph anyway. It is the reverse. At the time this happened, the offence was a strict liability offence, and then subsequent to any circumstances in this case, it has become not a strict liability offence. I did not want to mislead the Court on that. Nothing turns on it; it is just that what we say is wrong.
GAGELER J: The relevant provisions are those annexed to the submissions. Is that right?
MR LLOYD: Yes, well, in the bundle which is our bundle we have annexed both versions of section 19. So, the relevant one is the one at pages 67 to 69. The only difference is in the one on page 78 there is no subsection (6). Subsection(6) said this is a strict liability offence, so that was repealed after all of the events of this case. That is all I wanted to say about that.
One of my friend’s submissions on statutory construction, my friend took the Court to a number of provisions that seemed to support two propositions. One was that Parliament exhaustively indicated the extent to which there is a connection between the ESOS Act and the Migration Act by 137J and with the related provisions. So when they do it, they do it expressly. So that is a kind of expressio unius argument. We say that the Court should not readily accept that. There is no language that sort of supports the idea that that is the full ambit of the link and in fact it is not the full ambit of the link because subsequently 8202 was itself amended to bring in another link to section 19 of the ESOS Act. So, it is not a full ambit of the links.
The second point was to show, I think, that section 116 existed prior to the 2000 amendments and section 116(1)(b) was not in a different form afterwards so as to imply that there could not be any implications as a result of the amendments. We say that it is trite that an Act should be construed as speaking in the continuous presence and so if there is an amendment, even an unamended section could have an implication that was not there before the amendment and so we say that none of that discussion is inconsistent with or provides a problem to our submissions.
In relation to – at one point my friend characterised my client as being non-responsive. Well, the position is rightly or wrongly there were letters sent to an address he was not at any more so they might blame him for not being there but he was not non-responsive. There was a phone call to him to which he, perhaps being paranoid, was not prepared to say anything to the person at the other end of the phone.
There was a second phone call to him that left a message that said “I am going to send you an email” and then no email came because they sent it to the wrong address. We say it is unfair to characterise – and asked him to contact them, my client – by phone.
GAGELER J: Mr Lloyd, I am not sure a great deal is going to turn on that.
MR LLOYD: No. Well, I am just simply saying that, in my submission, it is unfair to characterise my client as non-responsive even in relation to that second phone call, he was awaiting an email that never came. Finally, in relation to SZFDE and Ex parte A, the reason why I characterised or went to both of those matters is because if the Court does not accept the more direct path of the Project Blue Sky connection between the two Acts, both
of those SZFDE path and the Ex parte A path provide mechanisms whereby in the circumstances information can be important where an error can give rise to a jurisdictional error without the direct need for the Project Blue Sky analysis. So we do rely upon those matters. May it please the Court, they are our submissions.
GAGELER J: Thank you. The Court will reserve its decision in this matter and will adjourn until 9.30 am tomorrow in Canberra and 9.30 am tomorrow in Sydney.
AT 12.14 PM THE MATTER WAS ADJOURNED
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