Abulokwe v Minister for Immigration
[2010] FMCA 862
•5 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABULOKWE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 862 |
| MIGRATION – Migration Review Tribunal – subclass 573 Higher Education visa – breach of condition 8202(2)(a) – not enrolled in a registered course – not due to exceptional circumstances beyond the applicant’s control – no jurisdictional error demonstrated. |
| Migration Act 1958 (Cth), ss.116(1)(b), 359AA, 476 Migration Regulations 1984, reg.2.43(2) and schedule 8 condition 8202(2)(a) |
| Lui v MIMIA [2003] FCA 1170 Minister for Immigration v SZFDE (2006) 154 FCR 365 SZFDE v Minister for Immigration (2007) 232 CLR 189 Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 |
| Applicant: | PETER ONYEMAECHI FREDVIC ABULOKWE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 120 of 2010 |
| Judgment of: | Jarrett FM |
| Hearing date: | 26 October 2010 |
| Date of Last Submission: | 26 October 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 5 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 12 February, 2010 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 120 of 2010
| PETER ONYEMAECHI FREDVIC ABULOKWE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his application filed on 12 February, 2010 Mr Abulokwe seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of a migration review Tribunal. That decision affirmed a decision of the delegate of the Minister to cancel Mr Abulokwe’s subclass 573 Higher Education visa.
The central issue is whether the negligence or inadvertence of Mr Abulokwe’s advisers that caused material in support of his application for review to not be placed before the Tribunal before it made its decision, vitiates that decision. There are some other subsidiary issues.
Some background facts are necessary. The following facts appear in the Tribunal’s reasons for decision, the documents contained in the Bundle of Relevant Documents prepared by the first respondent’s solicitors for the purposes of this application and filed on 13 April, 2010 and an affidavit by Mr Abulokwe filed on 17 August, 2010. None of the facts appear controversial.
Mr Abulokwe is a citizen of Nigeria, born on 25 August, 1982. His subclass 573 visa was granted on 27 September 2007. He was issued with a Notice of Intention to Consider Cancellation of his visa under s.116 of the Act on 21 January, 2009. The basis of the notice was the failure by Mr Abulokwe to remain enrolled in a registered course with his educational institution. His enrolment lapsed because he did not pay the course fees.
Mr Abulokwe provided a written response to the Notice of Intention to Consider Cancellation on 4 February, 2009.
On 15 July 2009, a delegate of the Minister cancelled Mr Abulokwe's visa, under s.116 of the Act. The visa was cancelled on the basis that Mr Abulokwe had not complied with a condition of his visa, namely condition 8202(2)(a) set out in schedule 8 to the Migration Regulations 1984. That is to say, his visa was cancelled because he did not remain enrolled in a registered course.
On 3 August, 2009 Mr Abulokwe applied to a migration review tribunal for review of the delegate’s decision. On 15 September, 2009 Mr Abulokwe was invited to appear before the Tribunal at a hearing to be held on 12 October, 2009. On 28 September, 2009 Mr Abulokwe requested that the hearing be postponed to allow him to obtain some documents from overseas. On 29 September, 2009 the Tribunal wrote to Mr Abulokwe, advising that the request for postponement of the hearing had been declined and the hearing would take place as scheduled on 12 October, 2009.
On 12 October, 2009 the Tribunal conducted a hearing. At the conclusion of the hearing, and at Mr Abulokwe’s request, he was permitted until 30 October, 2009 to provide to the Tribunal any further documents that he wished.
On 11 November, 2009 Mr Abulokwe appointed a legal representative to act for him in the Tribunal proceedings. On that day that representative wrote to the Tribunal, requesting copies of certain documents, the tapes of the hearing, and advice as to whether there were any documents “pending” and the date for the delivery of those documents.
The recording of the hearing was provided on 13 November, 2009. On the same date a representative from the Tribunal telephoned Mr Abulokwe’s representative and told him that Mr Abulokwe had been given until 30 October, 2009 to provide any further material that he wished to provide. No further documents had been provided to the Tribunal by that date.
On 13 November, 2009 Mr Abulokwe’s representative wrote to the Tribunal and requested an extension of time to provide further material to the Tribunal. There was also a request for some further documents from the Tribunal. The requested documents were provided on the same day - 13 November, 2009. On 16 and 18 December, 2009 the Tribunal telephoned Mr Abulokwe’s representative to advise that the extension of time to provide the material would not be allowed.
However, the Tribunal indicated that any material received prior to making the decision would be considered. Mr Abulokwe’s representative advised the Tribunal that the documents Mr Abulokwe wished to place before the Tribunal had arrived and those documents and a further submission would be sent to the Tribunal the next day. Nothing, however, was received by the Tribunal on the next day, or at all until after it had given notice of its decision.
On 15 January, 2010 the Tribunal advised that a decision had been made and a copy of the decision and the reasons for it were sent to Mr Abulokwe and his representative.
On 19 January, 2010 further material was received from Mr Abulokwe’s representative, under cover of a letter dated 11 January, 2010. On 21 January, 2010 Mr Abulokwe’s representative wrote to the Tribunal noting receipt of the decision on 15 January, 2010 and requesting that Tribunal reconsider the matter, based on the further material provided.
On 21 January, 2010 the Tribunal wrote to Mr Abulokwe's representative noting that the further material was received on 19 January, 2010 and that as a decision was made on 15 January, 2010 the matter was at an end.
The Tribunal’s file indicates that subsequently Mr Abulokwe telephoned the Tribunal and advised that he had provided the material to his advisor “weeks ago” and that it was not his fault that the representative had submitted them late. The Tribunal again advised that the decision had been made and therefore the matter was at an end.
The Tribunal’s decision
The Tribunal found that:
a)The delegate’s decision to cancel Mr Abulokwe’s visa was an Tribunal reviewable decision;
b)Mr Abulokwe’s application for review was validly made;
c)Mr Abulokwe had not complied with condition 8202(2)(a) of his visa because he had ceased to be enrolled in a registered course (applying Lui v MIMIA [2003] FCA 1170);
d)The non-compliance with condition 8202(2)(a) was not due to exceptional circumstances beyond the applicant’s control;
e)In the circumstances, the applicant’s visa must be cancelled.
The grounds of this application
An examination of the application reveals that Mr Abulokwe relies upon the following grounds:
a)The Tribunal failed to exercise jurisdiction or exceeded the authority or powers given to it under the Migration Act 1958, by determining that there was not sufficient evidence before the Tribunal to make a finding that “exceptional circumstances” existed so as to obviate cancellation of his visa;
b)The Tribunal failed to properly consider all of the available materials relevant to s.116(1)(b) of the Migration Act 1958, and reg.2.43(2) of the Migration Regulations 1994 and failed to provide Mr Abulokwe with a reasonable opportunity to provide the Tribunal with all relevant material pertinent to the making of a decision, in circumstances where the Tribunal was alerted to the existence of that relevant material.
c)In making its findings, the Tribunal failed to properly consider and apply Direction No 38 - Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202 (or for the review of such cancellation decisions) and for considering revocation of automatic cancellation of student visas (or for the review of decisions not to revoke such cancellations). In particular, the Tribunal made no reasonable enquiry and did not give due regard to the circumstances that gave rise to the Applicant's non-compliance with his visa conditions and whether he had been appropriately dealt with in the hands of his education provider.
d)In making its finding the Tribunal failed to provide Mr Abulokwe with an opportunity to fully ventilate his case having regard to various facts and factors that impacted on the carriage of proceedings. These included the denial of a further extension within which to secure relevant documents pertinent to the facts at issue and the concomitant time period in which to secure legal representation and allow for effective arguments to support such further materials.
e)In making its finding, the Tribunal failed to give due consideration to the submissions made by Mr Abulokwe to the Tribunal, in relation to his genuine attempts to comply with the various conditions pertaining to his visa and the exceptional circumstances that gave rise to his inability to pay his student fees.
In the circumstances, the Tribunal committed jurisdictional error arising out of a failure to properly exercise its powers under the Act, a failure to have regard to relevant considerations and a failure to provide Mr Abulokwe with an opportunity to be heard.
Despite a direction to do so, Mr Abulokwe did not deliver an outline of his argument for use in this Court. On 17 August, 2010, however, he filed an affidavit deposed by himself, wherein he raises a further ground of review, namely that because of the actions of his representative, his case was not properly put to the Tribunal and the Tribunal was deprived of the opportunity to properly consider his claims.
Consideration
Mr Abulokwe’s Student (Temporary) (Class TV) visa was cancelled pursuant to s.116 of the Act which relevantly provides:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
The prescribed circumstances for the purposes of s.116(3) are set out in reg.2.43(2), which relevantly provides as follows:
2.43 Grounds for cancellation of visa (Act, s 116)
…
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
...
(b) in the case of a Student (Temporary) (Class TV) visa;
(i) that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (If the condition applies to the visa); or
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control,
Condition 8202 provides:
8202 (1). The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or ·the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3);
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student - the holder is enrolled in full-time course of study or training.
(3) A holder meets the requirements of this subclause if neither of the following applies:
…
I will deal with Mr Abulokwe’s claim about the conduct of his representative first.
As the decision in SZFDE v Minister for Immigration (2007) 232 CLR 189 demonstrates, in a case such as the present the question for determination is the effect of conduct complained of, characterised in that case as fraud, upon the Tribunal’s decision making process for which the Parliament has provided in Part 7 of the Act: SZFDE at 47 and see also The Minister for Immigration v SZFDE (2006) 154 FCR 365 at 399. If it can be concluded that the relevant conduct had the consequence of stultifying the legislative scheme to afford natural justice to an applicant, then in law, any resultant decision is no decision at all: SZFDE at 52.
The quality or the characterisation of the conduct seems less important than the effect of the conduct upon the Tribunal’s processes under the Act. It seems not as important to be able to label the relevant conduct as “fraud” as it is to be able to determine that the conduct has “disabled [the Tribunal] from the due discharge of its imperative statutory functions with respect to the conduct of the review.”: SZFDE at 51. However, as the Court pointed out in SZFDE at [53]:
The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative Tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.
(my emphasis, footnotes omitted)
Subsequent authorities also make it clear that something more than negligence or inadvertence on the part of an applicant’s representative or adviser is necessary. In Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17, the Full Court of the Federal Court of Australia considered an appeal against a decision of a Federal Magistrate that held that the failure of an unregistered immigration agent to inform a visa applicant of a date for a Tribunal hearing came within the SZFDE principle. After determining that some of the findings of fact made by the Federal Magistrate were not open on the limited evidence before him, the Full Court said:
33 The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.
(my emphasis)
On the basis of the facts before me, I can make no finding that the conduct of Mr Abulokwe’s representative was fraudulent. As in SZLIX it is equally possible (indeed, I think more likely probable) that the relevant conduct in this case was inadvertent or negligent. That is not enough to permit a finding that the processes of the Tribunal have been subverted in the way necessary to attract relief from this court.
I turn to the grounds articulated in the application.
First (ground numbered 3 in the application), it is argued that the Tribunal failed to exercise its jurisdiction, or exceeded its authorities or powers, by determining that there was not sufficient evidence to make a finding that “exceptional circumstances” existed for the purposes of condition 8202(2)(b).
The evidence relied upon by Mr Abulokwe to establish “exceptional circumstances” was that:
a)In July 2008 he changed from a course that he was not happy with to the relevant course at the University of the Sunshine Coast;
b)When he did so, he was without sufficient funds to meet the course costs. He intended to rely upon his father to meet his costs as he had done in the past;
c)His father, however, had become ill and was unable to work and therefore was unable to meet the course costs. Once recovered his father, who was a merchant seaman, went to sea and was unable to help out for sometime.
d)Separately from the above, Mr Abulokwe’s brother was killed in civil unrest in Nigeria and the grief from which Mr Abulokwe suffered as a result impaired his ability to meet payment of the course fees.
The relevant finding of the Tribunal was in the following terms:
The evidence in this case leads the Tribunal to the view that the claimed circumstances were not exceptional in that they evidently form a pattern with circumstances arising in the course of the applicant’s compliance with past visas. There was a previous problem with the payment of fees. The Applicant had continued to study for several years without completing a course. He also gave evidence to the effect that his father’s long absences at sea were a regular aspect of his family’s life, so his father’s absence from shore as a factor in the recent breach cannot reasonably be regarded as exceptional.
The Tribunal considered the matters relied upon by Mr Abulokwe to establish exceptional circumstances. It considered the relevant authorities that bear on how the phrase “exceptional circumstances” should be interpreted. It applied those authorities to the facts as found by the Tribunal and determined that the circumstances leading to the non-payment of course fees where not beyond Mr Abulokwe’s control, but were rather within his control. It determined that the circumstances relied upon by Mr Abulokwe were not “exceptional” because:
a)Mr Abulokwe had a choice about changing courses that he positively exercised;
b)When Mr Abulokwe enrolled in the new course, he did so knowing that his father had been sick for the preceding 12 months or so, could not provide the funds to meet the course fees and was not able to afford to do so;
c)There had been problems with the payment of fees in the past in respect of the other course;
d)Mr Abulokwe had changed courses a number of times and was yet to complete any course of study even after several years; and
e)His father’s long absences at sea were a regular occurrence in his family and could not, therefore be regarded as exceptional.
The matters set out above are matters of weight for the Tribunal. A determination as to the weight to be given to various matters relied upon by a visa applicant is not generally amenable to judicial review.
The Tribunal found that Mr Abulokwe’s claims about his father’s illness and inability to provide funds for course fees was unsupported by any evidence other than Mr Abulokwe’s evidence. Documentary evidence to support the claims was promised, but not received by the Tribunal at the time it made its decision. That was a significant factor in the Tribunal’s fact finding. Because the material was said to exist, and Mr Abulokwe promised to send it to the Tribunal, but it was not received by the Tribunal, Mr Abulokwe was not given the benefit of the doubt that his claims were true – see paragraph 61 of the Tribunal’s reasons for decision. The Tribunal found that the claimed facts concerning Mr Abulokwe’s father’s illness and recovery time – essential parts of Mr Abulokwe’s claim to exceptional circumstances – did not exist. That finding was open to the Tribunal on the material before it.
The second ground agitated by Mr Abulokwe in his application (numbered 4 and 6 in his application) is that the Tribunal failed to provide him with a reasonable opportunity to provide it with all relevant material pertinent to the decision the Tribunal had to make.
I accept the first respondent’s submission that in essence this complaint is that Mr Abulokwe was not accorded procedural fairness.
In my opinion, the following facts reveal that this claim cannot succeed:
a)The Tribunal did allow Mr Abulokwe further time after the oral hearing (until 30 October 2009) to obtain and submit further material, including documents;
b)As the first respondent submits, this was not an oral invitation to comment on or respond to information under s.359AA of the Act. There was no information in respect of which Mr Abulokwe had requested additional time upon which to comment or respond. I accept that there was no request of any kind by the Tribunal, but an allowance for Mr Abulokwe to provide anything further by 30 October, 2009;
c)Nothing further was received from Mr Abulokwe by 30 October, 2009. Mr Abulokwe’s representative advised the Tribunal of his appointment on 11 November, 2009 and advised on 18 December, 2009 that a submission was being prepared, which should be with the Tribunal the next day;
d)The Tribunal communicated to Mr Abulokwe’s advisers that, notwithstanding that the time for the provision of documents had passed, it would consider any material received by it prior to a decision being made on the application;
e)Nothing was received prior to the Tribunal delivering its decision on 15 January, 2010. However, an additional submission was received on 19 January, 2010, in an envelope stamped 18 January, 2010 under cover of letter dated 11 January, 2010.
I accept the submission that Mr Abulokwe was given ample opportunity to provide any further material he wished to the Tribunal, but that no material was provided prior to the Tribunal making its decision. I accept the submission that no jurisdictional error is demonstrated by the Tribunal acting upon the evidence and information as it stood at the date of its decision.
The third ground as set out in Mr Abulokwe’s application (numbered 5) alleges that the Tribunal did not properly consider and apply “Direction 38.35 – Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202 (or for the review of such cancellation decisions)”. More particularly it is suggested that the Tribunal “made no reasonable enquiry and did not give due regard to the circumstances that gave rise to the Applicant’s non-compliance with his visa conditions and whether he had been appropriately dealt with in the hands of his education provider”.
I accept the first respondent’s submission that there was no suggestion by Mr Abulokwe that the University of the Sunshine Coast was deficient, or that there were any other relevant matters to be considered under Direction 38.35.
Moreover, the first respondent points out that generally speaking the Tribunal is not under any positive duty to make any particular inquires. I was referred by counsel for the first respondent to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39:
1. The functions, powers and duties of the Refugee Review Tribunal ("the Tribunal") are set out in Pt 7 of the Migration Act 1958 (Cth) ("the Migration Act"). When the Tribunal receives a valid application for the review of an "RRT-reviewable decision" under the Migration Act, it must review that decision. The class of "RRT-reviewable decisions" includes decisions by delegates of the Minister for Immigration and Citizenship ("the Minister") refusing the grant of protection visas. In the exercise of its review function, the Tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act. Even if there is some duty to make an obvious inquiry about a critical fact, which could easily ascertained those requirements are not satisfied in the circumstances of this case.
It was not suggested that the position is any different in respect of a Migration Review Tribunal. In my view it is not.
In my view, the Tribunal considered the matters it was directed to consider by Direction 38.35. As I have referred to above, in my view the Tribunal correctly identified the approach to determining whether “exceptional circumstances” existed and properly considered the claims of Mr Abulokwe.
Finally, the last ground relied upon (numbered 7 in the application):
In making its finding, the Second Respondent failed to give due consideration to the submissions made by the Applicant to the Tribunal, in relation to his genuine attempts to comply with the various conditions pertaining to his visa and the exceptional circumstances that gave rise to the Applicant’s inability to pay his student fees.
does nothing more than attempt an impermissible merits review of the Tribunal’s decision. The non-compliance in issue was non-compliance with condition 8202(2)(a) – not being enrolled in a registered course. That non-compliance was not in dispute. The issue was whether the non-compliance was not due to exceptional circumstances beyond Mr Abulokwe’s control. His challenges to the Tribunal’s finding that the non-compliance was not due to exceptional circumstances beyond Mr Abulokwe’s control fail for the reasons set out above.
Conclusion
In the circumstances, no jurisdictional error is demonstrated in the decision of the Tribunal. The Tribunal’s decision is a privative clause decision and this application must be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 5 November 2010
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