FEDERAL COURT OF AUSTRALIA Xiao v Minister for Immigration & Multicultural Affairs [2001] FCA 459 MIGRATION – review of decision of migration review tribunal – consent order – jurisdiction to remit matter to the tribunal – whether conceded "potential" error of law sufficient for remittal PROCEDURE – consent orders – jurisdiction to remit matter to migration review tribunal – whether concession of "potential" error of law sufficient to found exercise of discretion to order remittal Migration Act 1958 (Cth) ss 116(1)(b), 481(1) Migration Regulations condition 8202 Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575, referred to Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557, considered National Bank of Australasia v Solar (1976) 28 FLR 372, cited Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, cited Australian Competition & Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 79, cited Kapagama v Minister for Immigration & Multicultural Affairs [1999] FCA 1881, referred to Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, referred to Yulianti v Minister for Immigration & Multicultural Affair [2001] FCA 142, followed Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265, cited Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186, cited SHU BO XIAO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 222 of 2000 RD NICHOLSON J 27 APRIL 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 222 of 2000 BETWEEN: SHU BO XIAO APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 27 APRIL 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application of review be allowed. 2. The matter of the cancellation of the applicant's student visa be remitted to the Migration Review Tribunal differently constituted for determination according to law. 3. Each party bear his own costs of this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 222 of 2000 BETWEEN: SHU BO XIAO APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 27 APRIL 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 These reasons address the issue of whether it is appropriate for the Court to make orders in terms of a minute of proposed consent orders. 2 The issue arises in the following circumstances. 3 The applicant is a national of China, born on 9 April 1981, who first entered Australia in May 1999 holding a student (temporary), class TU, subclass 560 visa. He was last granted such a visa on 10 January 2000. On 18 August 2000 a delegate of the respondent made the decision to cancel that visa. On 22 August 2000 the applicant applied to review that decision. On 13 November 2000 the Migration Review Tribunal ("the Tribunal") affirmed the decision under review. 4 At the hearing before the Tribunal the applicant did not dispute his poor attendance record at his full-time course of study. A letter sent by the applicant's place of education on 26 May 2000 stated that the applicant had an attendance rate of 42%. Following counselling between 7 February and 11 August 2000 his attendance rate increased from 42 to 63%. However this was still below the level of 80% required by the conditions governing his visa. However, he relied on factors surrounding his mother's illness and his car being tampered with in Australia as having resulted in him becoming depressed, homesick and confused. He sought another chance to continue his studies. Additionally, submissions were made by an agent on his behalf in relation to other circumstances said to be mitigating and relevant to the achievement of a better attendance and academic record by the applicant since the cancellation of his visa. The Tribunal noted he had not sought medical help to deal with the depression which he claimed to have suffered. It said that in the case of a student visa granted after 1 December 1998, cancellation was mandatory upon breach of condition 8202 of the Migration Regulations. Relevant legislative and regulatory provisions 5 Section 116(1)(b) of the Migration Act 1958 (Cth) ("the Act") empowers the respondent, subject to subs (2) and subs (3) of the section, to cancel a visa if satisfied that "its holder has not complied with a condition of the visa". The qualifying subsections require the respondent not to cancel a visa if there exist prescribed circumstances in which it is not to be cancelled and require the Minister to cancel the visa if there do exist prescribed circumstances in which it must be cancelled. 6 Regulation 2.43(2)(b) of the Migration Regulations provides that for the purpose of subs 116(3) of the Act, the circumstances in which the respondent must cancel a visa are, in the case of a student (temporary) (class TU) visa, that he is satisfied the visa has not complied with (relevantly) condition 8202. 7 Condition 8202, which was a condition to the applicant's visa granted on 10 January 2000, provided: "8202 The holder: (a) must: (i) … (ii) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student – be enrolled in a full-time course of study; or (iii) … (b) must (if the holder is not an occupational trainee): (i) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider; or (ii) if attendance cannot be evidenced, achieve an academic result that is certified by the education provider to be at least satisfactory; and (c) must (if the holder is not an occupational trainee) comply with any requirement of the education provider in relation to payment of fees for the course" The contents of this condition have been changed with effect from 1 November 2000 (SR 259 of 2000 reg 5 and sch 4). On behalf of the applicant it will be contended that the issue of whether sch 4 applied in the applicant's case will be a live issue on any reconsideration of his application on the basis that, if it is contended that it has any application, it will be met with the argument that the condition there brought into effect could not apply to a visa which had been cancelled prior to the introduction of the provision. The relevant aspect of the condition upon which the Tribunal relied was that contained in 8202(b)(i). Effect of Federal Court decision 8 On 6 November 2000 (that is, shortly before the Tribunal affirmed the decision under review) Katz J delivered his reasons for decision in Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575. He ordered that the decision of the Tribunal affirming a decision by a delegate of the Minister to cancel a student visa held by a Vietnamese national should be set aside. In his reasons his Honour was concerned with the application by the Tribunal of a post 1 December 1998 version of condition 8202 which read: "8202 The holder must: (a) be enrolled in a registered course; and (b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and (c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and (d) comply with any requirement of the education provider in relation to payment of fees for the course." For reasons which his Honour set out, he concluded that the ordinary meaning of par (b) of this condition 8202 and the manner in which it should be construed is that the condition contemplates an examination of the students attendance in the registered course in which he or she is enrolled only when that course has concluded. 9 The respondent in the present case does not necessarily acknowledge the correctness of the reasoning in Nong or its applicability to the relevant aspect of condition 8202 in the proceeding before the Tribunal of which the applicant here seeks to review. Rather, it sees the reasoning in Nong as arguably pointing to a potential error which could be reargued before the Tribunal in event of the application being reconsidered. It is accepted for the respondent that in the event of the potential error being made out, it would give rise to a ground of review pursuant to s 476(1)(e) of the Act. 10 It is germane also to mention that by the Migration Legislation Amendment (Overseas Students) Act 2000 condition 8202 was further amended relevantly so that the provision relating to course attendance now reads: "(c) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester – for the course; or (ii) for a course that runs for at least a semester – for each term and semester of the course; and" The amendment was operative from the date of royal assent on 21 December 2000 and consequently has no present application to the position of the applicant and is only indicative that Parliament wishes to achieve legislatively a different result to that held to be applicable in Nong. Proposed consent orders 11 It is against this background of circumstance and law that the applicant and the respondent tender a minute of proposed consent orders. These would allow the application for review; remit the matter of the cancellation of the applicant's student visa to the Tribunal differently constituted for determination according to law; and provide that each party should bear its own costs of the application. 12 The rules of the Federal Court provide in O 35 r 10 for the making of consent orders and do so in the following terms: "10(1)A written consent of the parties to a proceeding, or of their representatives on the record, to the making of an order in the proceeding may be filed in the Registry at the proper place. 10(2) Despite anything contained in these Rules: (a) if a written consent is filed, unless paragraph (b) applies, the Registrar must bring the matter before a Judge who, without any other application being made, may: (i) make an order in accordance with rule 10A; or (ii) direct the Registrar to draw up, sign and seal an order in accordance with the terms of the consent; (b) if the written consent is in respect of an order which the Registrar has power to make, the Registrar may, unless the Registrar is of the opinion that the consent should be brought before a Judge, draw up, sign and seal an order in accordance with the terms of the consent. 10(3) The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Judge." Rule 10A, which came into effect from 22 December 2000, provides for the means by which the consent order may be made in the following terms: "10A(1) A Judge may make an order in accordance with the terms of a written consent of the parties to a proceeding, or their representatives on the record, by initialling or otherwise annotating the written consent and placing it on the Court file. 10A(2)The order must state that it is made by consent. 10A(3)The order is of the same force and validity as if it had been made after a hearing by a Judge." 13 In Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557 French J declined to make an order by consent unless the error of law grounding the decision to set aside the decision of the Tribunal there concerned was specified in the proposed order and the Court was satisfied that there was a proper basis for setting aside the decision and remitting the matter to another tribunal for consideration. In doing so he acknowledged there was some difference in the approach taken by the judges of this Court to the making of consent orders of that kind. However, he considered that as a consent order involved the exercise of judicial power, an order disposing of proceedings by consent should be self-explanatory. His ratio was that if the Court were to make an order remitting a matter to a decision-maker or tribunal to be decided "according to law" and the court itself was not informed of the nature of the error conceded, the court would be making an order without being apprised of its basis and proposed operation and so, would not be properly engaging in an actual exercise of judicial power. Furthermore, the decision-maker or tribunal would in a practical sense lack the benefit of any binding direction from the court. French J supported these reasons with reference to National Bank of Australasia v Solar (1976) 28 FLR 372 (as to the importance of public disclosure of the full terms of the court's orders even when based upon compromise between the parties) and to Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163 (that parties cannot by consent confer power on a court to maker orders where a court lacks power to make them) and to Australian Competition & Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 79 at 86 (that a court must have regard to the public interest in exercising a public function). In conclusion French J said it was sufficient, in regard to the matters to which he referred, if a judge was satisfied that the terms of the consent order reflected the basis upon which the matter was being remitted so that it was not necessary for a judge in making such orders to elaborate reasons in the ordinary case. 14 In Kapagama v Minister for Immigration & Multicultural Affairs [1999] FCA 1881 Whitlam J was addressed by senior counsel on behalf of the respondent who argued that the consent order in that proceeding should provide for the matter to be remitted to the Refugee Review Tribunal "for reconsideration" without added identification of the error or errors of law to be avoided. Senior counsel supported these arguments by reference to s 481(1) of the Act. Whitlam J was persuaded that an order in terms of remittal of the matter before him to a tribunal "for reconsideration" was within the powers given by pars (a) and (b) of s 481(1) of the Act. 15 Section 481(1) of the Act reads: "481 (1) On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders: (a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies; (b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit; (c) an order declaring the rights of the parties in respect of any matter to which the decision relates;" 16 Section 481(1) was considered by the High Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343. The High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ, Gaudron J dissenting) there held that the Full Federal Court was in error in remitting a matter to a tribunal to allow it to take account of developments since its decision, although there was no reviewable error in its decision. The Court said that s 481 of the Act must be read with the limitation that s 476 imposes upon the grounds of review. The majority said at 356: "These provisions reflect the terms of sub-ss (1), (3), and (4) of s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act). However, the rights conferred by the AD(JR) Act were stated by s 10 thereof to be additional to other rights. The AD(JR) Act plainly was designed to provide a more streamlined procedure for the obtaining of relief which was formerly available only by way of prerogative writ, injunction or declaration of right. The terms of s 16 should not be the subject of any narrow or restrictive construction (Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 537; Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 at 644; cf Johns v Australian Securities Commission (1993) 178 CLR 408 at 433-434). On the other hand, with respect to Div 2 of Pt 8 of the Act, s 485 limits the jurisdiction of the Federal Court. Section 481 of the Act must be read with the limitation upon the grounds of review imposed by s 476." 17 In Yulianti v Minister for Immigration & Multicultural Affair [2001] FCA 142 Stone J rejected a submission on behalf of the respondent that Thiyagarajah made apparent that it was open to the Court to make orders remitting a matter to the Tribunal without identifying a particular ground of review. Stone J distinguished between the issues of whether the Court is entitled to make the orders without itself being satisfied of the existence and nature of the error from the question as to whether the grounds of review must be specified in the order. On the first question she accepted that it was for the Court to be satisfied that it had jurisdiction prior to making the order. She was fortified in that conclusion by reference to the decision of French J in Kovalev as well as to the earlier decision of Sackville J in Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265, which had been cited in Kovalev. Stone J reached her view notwithstanding the provisions of O 35 r 10 of the Federal Court Rules on the basis that, to the extent the decision of Whitlam J in Kapagama was inconsistent with the views in Kovalev, she declined to follow it. 18 However, in relation to the second question Stone J was of the opinion that the grounds may equally well be set out in the Court's reasons for decision as was done in Sanchez and in Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186 by Sackville J and Katz J respectively. Her view was that provided the judge is satisfied for reasons set out in their judgments that there was a reviewable error, there was no necessity to state the nature of the reviewable error in the order itself. Being satisfied as to the existence of a relevant reviewable error in terms of s 476(1)(g) in Yulianti, Stone J accordingly agreed to the making of the consent orders remitting the matter to a tribunal differently constituted for further consideration. Novelty in present proceeding 19 In this proceeding it is submitted that the respondent does not have to concede the nature of the reviewable error. Rather, it is said that it is sufficient if the respondent points to a potential reviewable error. It is submitted that it is sufficient for the Court to be satisfied as to the subject area in which a particular ground of review may be made out; that is for it to be identified to the Court where the relevant error of law might lie. 20 It is further submitted that this is particularly so where, as here, there is no educative function to be served by the issue because the decision in Nong will be the matter argued before the Tribunal. 21 The wish of the respondent not to be committed to the making of a concession is supported by further submissions. The first is that the respondent as the Minister responsible for the Act should be free to decide at all times during the course of litigation whether or not to make a concession; that is, the respondent should not be bound by a concession in order to obtain remittal when the matter will be fully argued before the Tribunal to which the matter goes. Secondly, the respondent wishes to be free to argue before the Tribunal on recommittal or otherwise that the interpretation accorded to condition 8202 in Nong failed to accord a proper purposive interpretation to the relevant portions of the Act and Regulations. Thirdly, it is genuinely open to argument whether the decision in Nong is correct. On behalf of the respondent reference was made to seven other decisions in which it is said the view adopted in Nong was not there adopted by judges of this Court or did not arise before them. 22 For the applicant it is accepted that the Court can only make the consent orders if it has jurisdiction and that the orders themselves cannot vest the Court with jurisdiction. That, therefore, is common ground. The case for the applicant generally supports the submissions for the respondent and concurs in the submissions that, in view of the decision in Nong, it is likely that there was an error of law. Jurisdiction, it is said, derives from the provision of s 475(1)(c) of the Act. Resolution of submissions 23 I agree with Stone J that it is not necessary to state in the consent orders the nature of the reviewable error where that is made apparent by the reasons given in judgment. To that extent I would follow Yulianti in preference to Kovalev. 24 The more difficult question is whether, the error not being conceded, the Court can make the orders sought without finding that the error is made out. Kovalev seems to me to have proceeded on the basis of disclosure of a conceded error. Likewise, in Sanchez Sackville J accepted that the ground of review had been made out having regard to concessions made by counsel for the Minister. 25 The correctness or otherwise of the decision in Nong has not been argued here. This Court is therefore not in a position to determine whether an error of law in terms of the reasoning in Nong was in fact made by the Tribunal. 26 The powers which the Court is now invited to exercise rise pursuant to s 481(1) of the Act. That subsection invokes the discretion of the Court which must be exercised judicially. It is necessary therefore to identify what is before the Court relevant to the exercise of that discretion. 27 There is the concession by the respondent that the matter should be remitted for reconsideration because the decision in Nong was not considered. That is an acceptance that there was an error of law in that the Tribunal incorrectly applied the law to the facts in that it did not consider the reasoning in Nong: s 476(1)(e) of the Act. However, that is without prejudice to the right of the respondent to argue the correctness of Nong upon remittal. The two propositions are entirely consistent. The error of law in effect conceded for the purpose of remittal for reconsideration is not in its terms or in fact prejudicial to the right of the respondent to argue the correctness of the law in Nong upon reconsideration. In my view that is the proper characterisation of the submission for the respondent upon analysis of it. Conclusion 28 For these reasons I consider that the discretion s 481(1) is properly activated by the circumstances I have referred to and that it is appropriate for the Court to make the orders sought by way of consent. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 27 April 2001 Pro bono Counsel for the Applicant: Mr SV Phillips Solicitor for the Applicant: SV Phillips & Co Counsel for the Respondent: Mr AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 April 2001 Date of Judgment: 27 April 2001