Ahmad v Minister for Immigration - [2009] FMCA 687

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AHMAD v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 687

MIGRATION – Migration Review Tribunal – cancellation of student visa – condition 8202 – breach of attendance requirements.

Education Services for Overseas Students Act 2000 (Cth), ss.19, 20, 33
Migration Act 1958 (Cth), ss.116, 119
Migration Regulations 1994 (Cth), condition 8202 of Sch. 8, reg.2.43(2)(b)(ii)

Kim vMinister for Immigration and Citizenship (2008) 167 FCR 578
Minister for Immigration Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115

Applicant:

ADNAN AHMAD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG1560 of 2008

Judgment of:

Riley FM

Hearing date:

30 April 2009

Date of Last Submission:

30 April 2009

Delivered at:

Melbourne

Delivered on:

30 July 2009

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents:

Stephen Donaghue

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 17 December 2008 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1560 of 2008

ADNAN AHMAD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Migration Review Tribunal. The Tribunal affirmed a decision to cancel the applicant's subclass 572 vocational education and training sector visa. The Tribunal found that the education provider had certified that the applicant had not achieved satisfactory course attendance for s.19 of the Education Services for Overseas Students Act 2000 (“the ESOSA”) and for Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (“the National Code”). The Tribunal concluded that the applicant breached condition 8202(3)(b) of schedule 8 to the Migration Regulations 1994 for semester 2 of 2007 which ran from 9 July 2007 to 21 November 2007. The Tribunal considered that the breach was not the result of exceptional circumstances beyond the control of the applicant.

Legislative provisions

Section 116 of the Migration Act 1958 relevantly provides that:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) …
(b) its holder has not complied with a condition of the visa; …
…
(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.
Regulation 2.43(2)(b)(ii) of the Migration Regulations 1994 provides that:
(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 TU) visa:
…
(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 relevantly provided, at the time in issue:
(1)    The holder … must meet the requirements of subclauses (2) and (3).
(2)    …
(3)   A holder meets the requirements of this subclause if neither of the following applies:
(a)    …
(b)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000 ; and
(ii)    standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

Grounds of Application

On 24 March 2009, the applicant filed a document headed amended application. It is in the nature of a written submission. The applicant confirmed at the hearing before this court that he relied on that document as a written submission and relied on his application filed on 17 December 2008 as his application.

Exceptional circumstances beyond the applicant's control

The first ground set out in the application filed on 17 December 2008 is:
That the Respondents have committed the juridictional error coupled with the legal error by cancelling the student visa of the applicant , the decision to cancell the applicants visa 572, the student visa under section 116(1)(b) was wrong as they have failed to consider the circumstances of the applicant which were beyond the applicants reach (sic)
In this ground the applicant is alleging that the Tribunal failed to consider whether there were exceptional circumstances beyond his control which led to his non-compliance with condition 8202 during semester 2 of 2007. That semester ran from 9 July 2007 to

21 November 2007
. The Tribunal considered the question of exceptional circumstances beyond the applicant's control in paragraphs 26 to 37 of its reasons for decision.
In particular, the Tribunal noted that paragraphs 33 of its reasons for decision that the applicant had a medical certificate for a sore throat from 23 July 2007 to 25 July 2007. The Tribunal considered that the three days of the applicant’s illness would not have impacted dramatically on his attendance rate of 58.75%.
The Tribunal noted in paragraph 35 of its reasons for decision that the applicant claimed that during September 2007 to November 2007 he was very concerned about his father who was having heart problems. The Tribunal accepted that the applicant may have suffered some anxiety as a result. However, the Tribunal also noted that the applicant had not demonstrated how such anxiety might have led him not to achieve satisfactory attendance. Moreover, the Tribunal noted that the applicant did not appear to have taken any steps to assist him with overcoming his anxiety so as to ensure his compliance with condition 8202. The Tribunal concluded that the applicant's father's illness did not constitute exceptional circumstances beyond the applicant's control.
The Tribunal noted that the applicant raised various other matters ostensibly connected with whether there were exceptional circumstances beyond his control that resulted in his breach of condition 8202. However, those matters did not in fact go to the question of whether there were exceptional circumstances beyond the applicant's control that resulted in his breach of condition 8202 in semester 2 of 2007.
I consider that the Tribunal did in fact consider the question of whether there were exceptional circumstances beyond the applicant's control that led to his breach of condition 8202. This ground is not made out.

Failure to allow internal review

The second ground set out in the application filed on 17 December 2008 is:
The facts were not taken in to the considerations that the applicant was not given a chance of the internal review process , the act of cancelling the applicants visa without giving him the opportunity to appeal was a wrongfull act committed by the respondents . The applicant did complied with the visa condiations 8202, the reference of the regulations r.2.43(2)(b)(ii)(B) are not applicable in the case of the applicant (sic).
This ground relates to Standard 8 of the National Code which requires the relevant educational institution to notify the student that he or she may appeal against a notice of intention to report the student to the Department of Immigration. The applicant requested the Department of Education, Science and Training to review the educational institution’s processes in relation to him. In his request (CB25), the applicant said:
a)he had been informed in writing of his education provider's intention to report him;
b)he had been informed by his education provider of his right to appeal the decision to report him;
c)he did not lodge an appeal or formal complaint with his education provider.
The Department of Education, Employment and Workplace Relations (“DEEWR”) investigated the matter and concluded that the education provider had complied with the relevant standards of the National Code. In particular, DEEWR noted that the education provider gave the applicant:
a)warning notices dated 17 August 2007 and 7 September 2007 which invited him to attend counselling; and
b)a notice of intention to report dated 12 November 2007 which invited him to lodge an appeal.
DEEWR noted that the applicant did not lodge an appeal. DEEWR noted that the applicant went overseas but did not notify the education provider of his change of address. DEEWR advised that the education provider had complied with the relevant standards in the National Code. The Tribunal accepted that advice.
The applicant seemed to suggest that he did not receive the letter of

12 November 2007
because he was overseas visiting his sick father at the time. The Tribunal noted that the applicant told DEEWR that he was overseas from 8 January 2008 to 17 February 2008. However, in his submission to this court, the applicant said that he was in Pakistan from 5 January 2008 to 16 February 2008. In any event, the Tribunal noted at paragraph 29 of its reasons for decision that the applicant was overseas in early 2008. The Tribunal said that, in those circumstances, it was unclear how his travel overseas had disadvantaged the applicant in relation to the notice issued on 12 November 2007.
The Tribunal found that the applicant was properly notified of his right to appeal against his education provider’s intention to report him to the Department of Immigration. I am unable to discern any jurisdictional error in that finding. This ground is not made out.

Failure to take into account relevant considerations

The third ground set out in the application filed on 17 December 2008 is:
The the respondents did not gave cogent reason of the applicants evidence , the applicant has submitted a bundle of the evidence by way of his medical certificates , the medical certificates issued by the doctors regardinf his father deadly illness coupled with other evidence .The Respondent MRT did not applied their mind towards the illgal cancellation to the applicants visa , they were confused , as at the same time they refer the applicant as an Indian student , the combnied the applicant case with other student who is from India , this fact is available on the file . Both the respondents have committed the jurisdictional ,and legal errors . (sic)
This ground appears to be that the Tribunal did not take into account certain integers of the claim when assessing whether there were exceptional circumstances beyond the applicant's control which led to him breaching condition 8202 in semester 2 of 2007.
The applicant provided to the delegate a medical certificate showing that his father had ischemic heart disease from September 2007 to February 2008 and a number of prescriptions for the applicant's father. As discussed above, the Tribunal did in fact take into account the illness of the applicant's father and its effect on the applicant.
The applicant also provided to the delegate a medical certificate indicating that he was unfit for school from 23 July 2007 until 25 July 2007. As discussed above, the Tribunal did take into account the applicant's illness on those days.
In relation to the claim that the decision maker confused the applicant with an Indian student, the notification of the delegate's decision (CB34) refers to the applicant in one place as Mr Sharma rather than as Mr Ahmad, and the delegate's summary of the documents submitted by the applicant states that the prescriptions relating to the applicant's father were from a hospital in India rather than Pakistan. The Tribunal noted these errors in the delegate's decision at paragraph 37 of its own decision. The Tribunal considered that the error in the applicant's name was typographical. The Tribunal concluded that both errors were unfortunate but were not so significant as to render the decision to cancel the visa invalid.
The errors in the delegate's decision did not affect the substance of the issues under consideration by the delegate. The delegate clearly applied his mind to the pertinent facts of the applicant’s case. His name and nationality did not bear on his rate of attendance. I do not consider that there was any jurisdictional error in the Tribunal's handling of this matter.
It appears that it is the matters discussed above that the applicant was referring to when he said that the Tribunal did not apply its mind to the illegal decision to cancel his visa. However, as discussed above, I consider that the Tribunal did apply its mind to those matters, and, for the reasons given by the Tribunal, the matters raised by the applicant did not result in the decision to cancel his visa being illegal. This ground is not made out.

Other matters raised by the applicant

The applicant made some other submissions that do not fit neatly within the grounds of the application. The applicant referred to his academic results and various statements by his education provider to the effect that his attendance and academic progress were satisfactory.
In particular, the education provider by letter dated 6 March 2008 (CB22) stated that the applicant's “academic progress and attendance this term are such that I have no reason to believe he will not successfully complete the course in November 2008.” (emphasis added) Of course, this document concerned term 1 of 2008 rather than semester 2 of 2007 which is the period concerned in the cancellation of the applicant’s visa. It is therefore irrelevant for present purposes.
The applicant also referred to a certificate from his education provider dated 18 September 2007 (CB24) which stated that:
This is to certify that Adnan Ahmad has had an attendance of satisfactory from 5 February 2007 - 27 September 2007
and is signed by the Head of Studies of the course undertaken by the applicant. That certificate covers part of the period in question, namely, semester 2 of 2007 which ran from 9 July 2007 to 21 November 2007. The certificate in itself does not mean that the applicant had satisfactory attendance for the relevant period.
The applicant referred to a session absence report (“the first session absence report”) in relation to him which said, Start Date 5 February 2007, End Date 21 November 2008 (CB48). It showed that the applicant had a periodic attendance of 88% and recorded absences only on 12 February 2008, 14 February 2008 15 February 2008 and 4 April 2008. The Tribunal queried this document with the education provider (CB58). The education provider replied by letter dated 28 October 2007 saying the first session absence report was actually only for the period 12 February 2008 to 4 April 2008 (CB61).
The education provider enclosed a second session absence report (“the second session absence report”) (CB62). It also said, Start Date

5 February 2007, End Date 21 November 2008. However, it had an additional line in the heading which had been omitted from the first session absence report. That line said, Reporting period: July 9 to Nov. 25, 2007. It is not clear why that line was omitted from the first session absence report. It seems that the start date and the end date might refer to the period of the course rather than the period covered by the report. In any event, the second session absence report indicated that for the period 9 July 2007 to 25 November 2007 the applicant had a periodic attendance of 58.75%.
At paragraph 23 of its reasons for decision, the Tribunal accepted that the second session absence report applied to the relevant period. The Tribunal also accepted that the first session absence report only applied to a different period to that in relation to which the breach occurred.

I do not consider that there was any jurisdictional error in the Tribunal preferring the evidence given by the education provider in its letter dated 28 October 2007 to the evidence contained in the first session absence report.
The applicant also relied on various statements of his academic results which showed that he was progressing well academically. However, the question of academic progress is quite separate from the question of course attendance. Condition 8202 required that the applicant met both Standard 10 and Standard 11 of the National Code. Standard 10 concerns academic progress and Standard 11 concerns course attendance. Condition 8202 required that the applicant had satisfactory course attendance irrespective of his academic results. The Tribunal was not required to consider the applicant's academic results when considering whether his breach of the course attendance requirements was due to exceptional circumstances beyond his control.
All in all, I do not consider that any of the other matters raised by the applicant indicate that the Tribunal made a jurisdictional error in this case.

Other matters raised by the court

Following the hearing in this matter, the court invited the parties to file written submissions on whether there may have been a jurisdictional error in the circumstances that:
a)the original certificate from the education provider did not specify the period during which the applicant did not have satisfactory attendance;
b)the current version of condition 8202, s.19 of the ESOSA and Standard 11 of the National Code do not on their face require a student to have satisfactory attendance for each semester of the relevant course.
The notice to the applicant under s.20 of the ESOSA dated 29 January 2008 was required to give the applicant particulars of the breach. Under the heading, particulars of the breach, the s.20 notice said:
The particulars of the breach are set out below. Failure to meet the requirements of subclause 8202(3) is a breach of condition 8202. A visa holder meets the requirements of subclause 8203(3) if neither (a) or (b) applies.
Paragraph 8202(3)(b) provides:
the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
i. section 19 of the Education Services for Overseas Students Act 2000; and
ii. standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National code 2007).
Cambridge International College (VIC) Pty Ltd on 29 January 2008 has certified you is not achieving satisfactory course attendance in relation to Diploma of Community Welfare Work (CHC50702).
Paragraph 8202(3)(b) applies to you. Therefore, you have failed to meet the requirements of subclause 8202(3) and breached condition 8202.
The s.20 notice did not specify the period during which the applicant had failed to achieve satisfactory course attendance. I consider that to be an essential particular that should have been included in the particulars of the breach. Obviously, the question of whether there were exceptional circumstances beyond the student’s control that led to the breach can only be answered by reference to the period during which the breach occurred. For this reason, I consider that the s.20 notice was probably invalid.
However, that does not mean that there was a jurisdictional error on the part of the Tribunal. It was established by the Full Federal Court in Minister for Immigration Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115 that defects in a s.20 notice are not material to whether a cancellation under s.116 of the Migration Act 1958 (“the Act”) is valid. The validity of the cancellation process under the Act is separate and distinct from the validity of the s.20 notice.
The cancellation process under the Act requires the Minister under s.119 of the Act to give notice of intention to consider cancellation. That notice must include particulars of the grounds for cancelling the visa and particulars of “the information … because of which those grounds appear to exist”. I consider that the particulars that should be given in the notice of intention to consider cancellation of a student visa for unsatisfactory course attendance include the period during which the student is said to have had unsatisfactory attendance. That is because the question of whether there were exceptional circumstances beyond the student’s control that led to the breach can only be answered by reference to the period during which the breach occurred.

In the present case, the s.119 notice did not include those particulars. The notice simply said that the education provider had certified on

29 January 2008
that the applicant had not achieved satisfactory course attendance in relation to his Diploma of Community Welfare Work and he had accordingly breached condition 8202. Accordingly, I consider that the section 119 notice was probably invalid.
However, that does not mean that there was a jurisdictional error on the part of the Tribunal. The Full Federal Court said in Kim vMinister for Immigration and Citizenship (2008) 167 FCR 578 at [29] that:
a failure to comply with s.119 does not deprive the Tribunal of jurisdiction to review a decision of the delegate on the merits.
That is, although the delegate's decision may have been flawed, the Tribunal on review, by following a correct process, is able to overcome those defects and deal with the matter on the merits. In the present case, by letter dated 28 October 2008 from the education provider, the Tribunal was alerted to the fact that the education provider had determined that the applicant was in breach of condition 8202 only for semester 2 of 2007. The Tribunal drew that matter to the applicant's attention by letter dated 31 October 2008. In this way, the previous inadequacies in the procedure were overcome.
The more substantive question is whether there can be a breach of condition 8202 where the unsatisfactory attendance occurred only in a single semester of the course. The current version of condition 8202, s.19 of the ESOSA and Standard 11 of the National Code do not on their face require a student to have satisfactory attendance for each semester of the relevant course. The relevant part of condition 8202 is:
(1)    The holder … must meet the requirements of subclauses (2) and (3).
(2)    …
(3)   A holder meets the requirements of this subclause if neither of the following applies:
(a)    …
(b)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000 ; and
(ii)    standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
Subsection 19(2) of the ESOSA provides that the education provider must give the Secretary particulars of any breach by a student of a prescribed condition of the student visa as soon as practicable after the breach occurs. The National Code is a legislative instrument under s.33(1) of the ESOSA. Standard 11 of the National Code concerns the monitoring of the attendance of students by education providers. Standard 11.3 requires education providers to have documented attendance policies which must be provided to staff and students and which must specify the requirements for achieving satisfactory attendance. At a minimum, for overseas students, those requirements must include the requirement to attend it least 80% of scheduled course contact hours.
Standard 11 also requires education providers to have policies for assessing satisfactory attendance and counselling students who are at risk of not attending for it least 80% of scheduled course contact hours. Standard 11.6 provides that where an education provider has assessed a student as not achieving satisfactory attendance, the education provider must notify the student in writing of its intention to report the student and notify the student of the process by which he or she may appeal within 20 working days against the decision to report the student.
Standard 11.7 provides that, upon completion of the appeals process, and if it confirms that the student has not had satisfactory attendance, the education provider must report the student to the Department of Employment, Science and Training as soon as practicable. For certain courses, Standards 11.8 and 11.9 permit the education provider not to report a student if his or her attendance is at least 70% of scheduled course contact hours and, variously, the student is maintaining satisfactory course progress or the student demonstrates compassionate and compelling circumstances. Standard 11 of the National Code does not require that a student must have satisfactory attendance for each semester of the course.
The explanatory statement for Select Legislative Instrument 2007 No. 190, which introduced the current version of condition 8202, says that:
This proposed amendment to student visa condition 8202 reflects changes … [that] were made after a comprehensive evaluation was undertaken by the Department of Education, Science and Training (DEST) in consultation with the Department of Immigration and Citizenship (the Department) and other industry stakeholders. The evaluation found that the issue of a student's course progress and attendance is more appropriately handled by DEST and education providers and that the Department’s role should be limited to migration matters.
This change will mean that the Minister will no longer be required to assess whether a student is meeting their attendance requirements.
If an education provider certifies that is student has not achieved satisfactory course progress or attendance and reports the student, the DIAC delegate will be required to initiate cancellation action of the visa, unless exceptional circumstances can be demonstrated that the visa should not be cancelled. These exceptional circumstances will be outlined in a section 499 direction.
It seems to me that it would be open to an education provider to require that its students have 80% attendance for each semester of the course. If the education provider properly documented that requirement, and provided copies to its staff and students as required by Standard 11.3 of the National Code, and otherwise complied with the requirements of Standard 11 of the National Code, it would then be open to the education provider in appropriate circumstances to certify that a particular student had failed to achieve satisfactory course attendance when the student had failed to achieve satisfactory course attendance for a particular semester of the course. I have no reason to doubt that the appropriate policies were documented and complied with in this case. Although the issue was raised with both parties, the applicant has not suggested that his education provider did not require satisfactory attendance in each semester of his course.
It appears that the current version of condition 8202 is connected with a substantial body of policy and legislation which imposes detailed requirements on education providers. They are required to have transparent policies and procedures relating to the monitoring of student attendance and they are required to provide a formal internal review process. In addition to the internal process, there is the possibility of review by DEEWR, as this case demonstrates.
All that condition 8202 now requires is a certificate from the education provider that the student has not achieved satisfactory course attendance for s.19 of the ESOSA and for Standard 11 of the National Code. It is up to the education provider to determine what amounts to satisfactory course attendance.
It seems to me, however, that if the course attendance was only unsatisfactory for a particular period, the student should be given notice of that fact. Moreover, the period during which the student’s attendance has been unsatisfactory must be made known to the student and to anyone deciding whether the student’s visa should be cancelled. That period is clearly relevant to the question of whether there were exceptional circumstances beyond the student’s control that led to the breach of condition 8202.
In the present case, the Tribunal was alerted to the fact that the applicant's attendance was unsatisfactory for semester 2 of 2007 by the education provider's letter dated 28 October 2008. The applicant was alerted to that fact by the Tribunal's letter dated 31 October 2008.
I have taken note of the applicant’s post-hearing written submissions. In most part, they repeat arguments made previously. On the issue now in question, they do not add anything of substance.
In the circumstances of this case, I do not consider that any of the matters raised indicate that there was a jurisdictional error in the Tribunal's decision. Accordingly, the application must be dismissed with costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: Rhonda Soans

Date: 30 July 2009