FEDERAL COURT OF AUSTRALIA Hossain v Minister for Immigration & Citizenship (No 2) [2010] FCA 306 Citation: Hossain v Minister for Immigration & Citizenship (No 2) [2010] FCA 306 Appeal from: Hossain v Minister for Immigration & Anor [2009] FMCA 1008 Mo v Minister for Immigration & Anor [2009] FMCA 1026 Parties: MOHAMMED MARUF HOSSAIN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL ZHIMIN MO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number(s): NSD 1276 of 2009 NSD 1288 of 2009 Judge: BUCHANAN J Date of judgment: 26 March 2010 Legislation: Education Services for Overseas Students Act 2000 (Cth) s 20 Migration Act 1958 (Cth) ss 137J, 137K, 137L, 349 Migration Regulations 1994 (Cth) Sch. 2 clause 571.21 Cases cited: Re McBain; ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 Date of hearing: 26 March 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 11 Counsel for Mr Hossain: L Karp Solicitor for Mr Hossain Parish Patience Immigration Lawyers Counsel for the Respondents: A Mitchelmore Solicitor for the Respondents: Australian Government Solicitor Solicitor for Ms Mo: M Jones Counsel for the Respondents: A Mitchelmore Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1276 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MOHAMMED MARUF HOSSAIN Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 26 MARCH 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The appellant's costs of the appeal are to be paid by the first respondent, such costs to be taxed if not agreed. 3. The orders made by the Federal Magistrates Court on 20 October 2009 are set aside and in lieu thereof the following orders are made: (1) It is declared that the notice sent to the applicant on 15 September 2008 was ineffective for the purposes of s 20 of the Education Services for Overseas Students Act 2000 (Cth) and s 137J of the Migration Act 1958 (Cth). (2) It is declared that the applicant did not cease to be the holder of a Subclass 571 Schools Sector visa consequent upon the issue of the purported notice sent to the applicant on 15 September 2008. (3) There be issued an order in the nature of certiorari to quash the decision of the second respondent made on 23 April 2009. (4) The first respondent pay the applicant's costs. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1288 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: zhimin mo Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 26 MARCH 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The appellant's costs of the appeal are to be paid by the first respondent, such costs to be taxed if not agreed. 3. The orders made by the Federal Magistrates Court on 23 October 2009 are set aside and in lieu thereof the following orders are made: (1) It is declared that the notice sent to the applicant on 11 February 2008 was ineffective for the purposes of s 20 of the Education Services for Overseas Students Act 2000 (Cth) and s 137J of the Migration Act 1958 (Cth). (2) It is declared that the applicant did not cease to be the holder of a Subclass 573 Higher Education Sector visa consequent upon the issue of the purported notice sent to the applicant on 11 February 2008. (3) There be issued an order in the nature of certiorari to quash the decision of the second respondent made on 17 April 2009. (4) The first respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1276 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MOHAMMED MARUF HOSSAIN Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1288 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: zhimin mo Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE: 26 MARCH 2010 PLACE: SYDNEY REASONS FOR JUDGMENT BUCHANAN J: 1 I delivered judgment in these two matters on 2 March 2010. In those judgments I concluded that the student visas of each of the appellants had not been cancelled as a result of notices sent to each of them in purported compliance with s 20 of the Education Services for Overseas Students Act 2000 (Cth) ("the ESOS Act"). I asked the parties to give attention to the terms of appropriate orders to give effect to that conclusion. I did so because Mr Lloyd SC who appeared in each case for the Minister, drew my attention to a question about the legal effectiveness of the proceedings in each case before the Migration Review Tribunal, ("the MRT"), in the event that I decided the appeals as in fact I did. 2 The proceedings before the MRT had come about because, after the notices were sent under s 20 of the ESOS Act, it was thought that each of the visas of Mr Hossain and Ms Mo had been cancelled automatically, pursuant to s 137J of the Migration Act 1958 (Cth) ("the Migration Act"). In response to that view of the operation of s 137J, Mr Hossain and Ms Mo each made an application for revocation of the "cancellation" of their visa under s 137K of the Migration Act. In each case, a delegate of the Minister declined, under s 137L of the Migration Act, to revoke the "cancellation" of their visa. 3 Applications were then made to the MRT for review of the decision of each delegate. Under s 349 of the Migration Act, the MRT may exercise all the powers and discretions conferred by the Act on the person who made the decision. It may, as it did in this case, affirm the decision or, as one of the other alternatives, may set aside the decision and substitute a new decision. However, the consequence of the findings which I made in each appeal (that there was no automatic cancellation of the visa under s 137J of the Migration Act) is that there was no need or occasion to apply to revoke the "cancellation". It also follows that any decision not to revoke the "cancellation", whether by a delegate or by the MRT, had no legal utility. 4 A practical difficulty for each of the appellants arises from the fact that if their visas were not cancelled by operation of s 137J of the Migration Act, each visa has nevertheless expired in the intervening period. Ms Mo's visa expired on 21 August 2008 and I was told by the parties that Mr Hossain's visa expired on 24 February 2009. They may each apply for further visas of the same kind, but they are faced with the difficulty that certain criteria must be satisfied at the time that their application for a new visa is made. Using Mr Hossain's case as an example, the criteria are set out in clause 571.21 of schedule 2 of the Migration Regulations 1994 (Cth). He must satisfy the requirements of sub-clause (2), (3), (4) or (6) of clause 571.21. It is common ground that sub-clauses (4) and (6) are not here relevant. Sub-clause (2), which accommodates the possibility that he holds a visa in a list of named visas does not assist him because he does not. Sub-clause (3) requires, in his case, either that the application for a new visa be made within 28 days after the day when the last substantive visa ceased to be in effect, or "if that last substantive visa was cancelled" the MRT has made a decision to set aside the cancellation decision. Upon the view which I take of the operation of s 137J of the Migration Act, this last condition could not be activated because the last substantive visa was not cancelled and there has not been any legally effective decision which the MRT could set aside. 5 After I delivered judgment in the two appeals the parties invited me to make orders which include a direction to the MRT to revisit the decision made by each of the delegates and review it according to law. It appeared to me however that, although there may be grounds for quashing each of the decisions of the MRT, there would be no basis upon which the MRT should be directed by this Court to proceed further with a review of a decision of each delegate which had no consequence for the existence or duration of the visa of either appellant. I therefore invited the parties to consider whether I should refrain from making such an order, but make a declaration that the appellants did not cease to be the holders of their visas as a result of the notices sent to them purportedly under s 20 of the ESOS Act. 6 I have taken submissions about those matters this morning. It seems apparent that the Minister very properly is prepared to act so that no artificial barriers are presented to the appellants should they choose to make further applications for student visas. It may be that the Minister retains discretions under the Act which might be utilised in a way which would be of assistance to the appellants. However, I do not need to explore those matters because the orders which I should make are only those which, it seems to me, represent the proper exercise of this Court's jurisdiction. That jurisdiction, in my view, does not extend to all the orders which were sought. 7 The most that can be done in vindication of the rights which were argued and decided in the earlier judgments is to make declarations or other appropriate orders which give effect to the conclusions which I stated in the judgments. Those orders do not extend, in my view, to directing the MRT to deal further with the applications for review which were before it. The parties appear to take the view that there may be some independent obligation under the Migration Act for the MRT to give further consideration to the matters which were before it, but that is an obligation which will not arise, in terms, from the orders which I propose to make. 8 The fact that those orders do not guarantee the appellants an opportunity to make effective applications for further student visas is the result of the operation of the Migration Act, the restrictions within it and the regulations made under it. 9 [NOTE: Although it did not form part of the reasons which I delivered ex tempore the following might be noted. When relief against jurisdictional error is sought against a Commonwealth administrative tribunal or a federal court, certiorari is normally granted as a remedy ancillary to, but not independently of, either mandamus or prohibition but that is not universally true (see Re McBain; ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 per Kirby J at [176], per Hayne J at [265]). 10 I have explained why it would not be appropriate to order mandamus against the MRT. Prohibition against the MRT or the Minister from proceeding further on the decisions of the MRT is not necessary because no action will be available in reliance on the decisions it made, having regard to the terms of the declarations I propose to make. It is not necessary, in the present cases, to otherwise prevent the MRT from further consideration of the position if it, or the parties, think that desirable.] 11 The orders which I will make are as follows: Mr Hossain 1. The appeal is allowed. 2. The appellant's costs of the appeal are to be paid by the first respondent, such costs to be taxed if not agreed. 3. The orders made by the Federal Magistrates Court on 20 October 2009 are set aside and in lieu thereof the following orders are made: (1) It is declared that the notice sent to the applicant on 15 September 2008 was ineffective for the purposes of s 20 of the Education Services for Overseas Students Act 2000 (Cth) and s 137J of the Migration Act 1958 (Cth). (2) It is declared that the applicant did not cease to be the holder of a Subclass 571 Schools Sector visa consequent upon the issue of the purported notice sent to the applicant on 15 September 2008. (3) There be issued an order in the nature of certiorari to quash the decision of the second respondent made on 23 April 2009. (4) The first respondent pay the applicant's costs. Ms Mo 1. The appeal is allowed. 2. The appellant's costs of the appeal are to be paid by the first respondent, such costs to be taxed if not agreed. 3. The orders made by the Federal Magistrates Court on 23 October 2009 are set aside and in lieu thereof the following orders are made: (1) It is declared that the notice sent to the applicant on 11 February 2008 was ineffective for the purposes of s 20 of the Education Services for Overseas Students Act 2000 (Cth) and s 137J of the Migration Act 1958 (Cth). (2) It is declared that the applicant did not cease to be the holder of a Subclass 573 Higher Education Sector visa consequent upon the issue of the purported notice sent to the applicant on 11 February 2008. (3) There be issued an order in the nature of certiorari to quash the decision of the second respondent made on 17 April 2009. (4) The first respondent pay the applicant's costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 26 March 2010