Aldakhil v Minister for Immigration

[2007] FMCA 1305

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALDAKHIL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1305

MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – breach of condition 8202 in relation to attendance – institution dividing course year into 9 terms – applicant disputing that division – jurisdictional error by the Tribunal in failing to consider the applicant’s complaint as an exceptional circumstance.

Education Services for Overseas Students Act 2000, s.20
Migration Act 1958 (Cth), ss.116, 359A

Hatcher v Cohn (2004) 139 FCR 425
Humayun v Minister for Immigration [2006] FCAFC 35
Kang v Minister for Immigration [2006] FCA 788
Kweon & Ors v The Minister for Immigration [2007] FMCA 1221
Wang v The Minister for Immigration [2005] FMCA 918

Applicant: ALI ALDAKHIL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1521 of 2007

Judgment of: Driver FM

Hearing date: 7 August 2007

Delivered at: Sydney

Delivered on: 7 August 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms L Clegg

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal signed on 27 March 2007 and handed down on

   
   

   20 April 2007.

2. A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.

3. The first respondent is to pay to the applicant the filing fee he has paid and the setting down fee if paid.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1521 of 2007

ALI ALDAKHIL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”).  The decision was signed on 27 March 2007 and was handed down on 20 April 2007.  The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant's subclass 573 Higher Education Sector visa.  Relevant background relating to the matter before the Tribunal and the Tribunal's decision on it are set out in written submissions filed on behalf of the Minister on 2 August 2007.  I adopt as background with minor amendments paras.2 through to 13 of those written submissions. 

Facts

On 26 September 2006 the applicant received notification from a delegate of the Minister that she was considering cancelling the subclass 573 held by him.[1] The applicant had been attending the University of Newcastle endeavouring to complete an English language course.

[1] CB 1 (notice sent by education provider), 44 (notice by delegate)

On 26 September 2006 the delegate proceeded to cancel the visa on the ground that the applicant had breached condition 8202, on the basis that  he had failed to meet the 80% attendance requirement stipulated in  condition 8202(3)(a).[2]

[2] CB 49 – 55. An earlier decision which had stated that the visa would not be cancelled had clearly been revoked: CB 43.

On 28 September 2006 the Tribunal received an application for review of the delegate’s decision.[3]

[3] CB 56.

On 25 January 2007 a letter was sent by the Tribunal to the applicant inviting him to comment in writing on information before the Tribunal that the University of Newcastle had informed the Tribunal that the applicant’s attendance for several terms in 2005 and 2006 was below 80% and that his academic results were not satisfactory for several terms of the course. A letter dated 24 January 2007 from the University of Newcastle containing the information was attached to the Tribunal’s letter.

On 5 February 2007 the Tribunal received updated information from the University of Newcastle indicating that the applicant’s attendance for term 2, 2006 (taking into account and not including absences in respect of which medical certificates had been provided) was 82%.[4]

[4] CB 91 and also see confirmed at CB 98.

On 6 February 2007 the Tribunal wrote to the applicant inviting him to attend a hearing on 13 February 2007 (having been informed by the applicant that he wished to have the prescribed notice for a hearing invitation waived).[5]

[5] CB 87

On 13 February 2007 the applicant attended a hearing and gave oral evidence to the Tribunal.

On 27 March 2007 the Tribunal signed a decision, affirming the delegate’s decision. The decision was handed down on 20 April 2007.[6]

[6] CB 116, 117

On 14 May 2007 the applicant filed an application for judicial review in this Court. On 20 July 2007 the applicant filed an affidavit attaching what purports to be a transcript of the Tribunal hearing. No amended application has been filed.

Requirements for a Student (Temporary) (Class TU) subclass 573 visa

At court book (“CB”) 118 – 119 the Tribunal set out the law which contains relevant extracts of s.116 of the Migration Act 1958 (Cth) (“the Migration Act”) and condition 8202.

The Tribunal also set out a summary of the law which it considered to be relevant for the purposes of considering whether the applicant’s non compliance with condition 8202(3)(a) amounted to exceptional circumstances for the purposes of s.116 and Regulation 2.43(2)(b)(ii)(B).

The Tribunal decision

The Tribunal:

a)   set out in its description of evidence, the range of evidence before it, including information received form the University of Newcastle, and medical certificates produced by the applicant;[7]

b)   set out the oral arguments made by the applicant during the hearing;[8] including that the Language Centre had not informed him that he needed to have an 80% attendance rate for each term and semester, but instead informed him that her needed an overall attendance rate of 80%;

c) noted the applicant’s written responses to the s.359A letter sent by the Tribunal;[9]

d)   in its findings and reasons, summed up the applicant’s arguments (that his overall attendance was above 80% and that there were exceptional circumstances applying to his case);[10]

e)   was satisfied that the applicant had not complied with condition 8202(3)(a) ‘in that he did not attend 80% of his contact hours in terms 8 and 9 in 2005 and term 1 of 2006’;[11]

f)    did not accept that there were exceptional circumstances beyond the control of the applicant, either when considered individually or cumulatively – reasoning that the matters raised by the applicant did not amount to exceptional circumstances (absences due to a return flight to his home country; his adherence to Ramadan; his need to find accommodation; visit the consulate in Canberra or his break-up with his fiancé). Rather, the Tribunal reasoned that these circumstances were ‘ordinary day-by-day’ life occurrences;[12]

g) concluded that the applicant has not complied with condition 8202 and that the ground for cancellation in s.116(1)(b) existed;

h)   further concluded that it was not satisfied that the non-compliance was due to exceptional circumstances beyond the control of the applicant; and[13]

i)   affirmed the delegate’s decision to cancel the visa.[14]

[7] CB 121

[8] CB 121 - 123

[9] CB  80 and 109

[10] CB 124

[11] CB 124.9

[12] CB 125.6

[13] CB 125.7

[14] CB 125.8

1. These proceedings began with a show cause application filed on 14 May 2007.  In that application the applicant asserted actual notification of the Tribunal decision on 27 April 2007.  On that basis I find that the application was filed within time.   The application sets out seven grounds of review: 

   1)The Migration Review Tribunal (the Tribunal) failed to take into consideration important information which confirms my attendance, such as letter faxed 9 February 2007, Friday 18.04pm, from the University of Newcastle confirming my attendance as being 81.8%.

   2)The Tribunal ignored my circumstances as leading to compelling, such is an error in law.

   3)There is no evidence that the Tribunal ever gave my situation legally adequate consideration before deciding to publish its decision.

   4)The Tribunal dealt with my case against the rules of procedural fairness. It ignored the behaviour of the Department Officer who originally decided not to cancel my visa, it ignored the achievement as evidence of completion of the course and my ability to communicate directly in English and to respond correctly to questions put to me.

   5)The written evidence and oral evidence are important elements in my history since my arrival in Australia, which the Tribunal failed to give proper consideration especially compelling circumstances. The Tribunal made a finding upon material misunderstanding of my claims. I gave details which were not properly understood and interpreted by the MRT member.

   6)The Tribunal constructively failed to exercise its jurisdiction to review the Delegate’s decision by reference to all the relevant material before it.

   7)A proper amended application and affidavit will be filed upon obtaining my documents.

2. The application was supported by an affidavit filed on the same day. 

   
   

   I did not receive that affidavit as evidence because it merely confirms who the applicant is and annexes a copy of the Tribunal decision.  The decision is reproduced in the court book filed on 8 June 2007 which I did receive as evidence.  I also received an affidavit by Maureen Laba Sarkis annexing a transcript of the hearing conducting by the Tribunal on 13 February 2007.  A further affidavit by the applicant was filed on 20 July 2007, which I received as a submission. 

3. The applicant also took the opportunity to make oral submissions.  Those submissions, although lengthy, essentially reviewed his academic history, the problems that he experienced at the University of Newcastle, the alleged confusion over his attendance obligation for the course he was undertaking and his personal circumstances which he was concerned were not given proper attention by the Tribunal.

4. The Minister's submissions relating to the grounds of review are set out in paras.14 through to 21 of the submissions filed on 2 August 2007:

The application for judicial review    

The Minster addresses the grounds raised in the attachment to the application as follows.

The Tribunal ignored the overall 81.8 % attendance rate

The Tribunal’s statement of reasons makes it very clear that the Tribunal was aware of the University of Newcastle’s’ re-calculation (taking into account medical certificates received from the applicant) of an overall 81.8% attendance rate: CB 122.5, 123.6. However, the clear terms of condition 8202(3)(a) compelled the Tribunal to be satisfied that there was an attendance rate of 80% or above for each term or semester of the relevant course: CB 123.6.[15]

It is clear that the Tribunal was aware of the overall attendance rate and took this into account. However on the material before it was compelled to its finding that it did not satisfy the terms of condition 8202(3)(a). That is because the applicant ‘did not attend 80% of his scheduled contact hours in terms 8 and 9 in 2005 and term 1 of 2006’.[16] There would not appear to be any dispute by the applicant about this finding.

Failure to take into account compelling circumstances (grounds 2 and 5)

The Tribunal directly addressed the ‘compelling’ circumstances raised by the applicant in the material provided to the Tribunal and at the hearing. The Tribunal did not take the view that the circumstances (directly referred to by the Tribunal at CB 121 – 123 and in the Findings and Reasons at CB 123.3) fell within s 116(1)(b).

The Tribunal concluded that the matters put forward by the applicant as constituting exceptional circumstances were ‘ordinary day by [day] life occurrences’. It was open to the Tribunal to make that finding. The applicant’s attempt to cavil with that conclusion amounts to an attempt to re-agitate the merits of his case.

Legally inadequate consideration and constructive failure to consider the delegate’s decision (grounds 3 and 6)

No particulars have been provided in respect of these grounds of review. It is trite to submit in reply that the Tribunal did in fact give all of the applicant’s claims and circumstances consideration.

To the extent that the applicant complains about the delegate’s alleged earlier decision not to cancel his visa (CB 43 and see applicant’s letter at CB 99.4) the delegate’s adverse decision cancelling the applicant’s visa under s 116 of the Act was the decision that was reviewed by the Tribunal. The delegate’s apparent earlier decision not to cancel the visa was not the subject of the Tribunal’s review. The Tribunal had no jurisdiction to review that decision or the conduct giving rise to it:[17] Section 338(3) and see Tribunal’s finding at CB 118.2.

[15] See also Kang v MIMIA [2006] FCA 788 per Siopis J.

[16] CB 124.9

[17] The Tribunal is not required to address any alleged denial of procedural fairness before the delegate: Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 at [30]. See also Kang at footnote 15 above at [31] – [34].

‘Ground 7’ does not reveal an error of law.

1. In my view, the outcome of this case turns upon two questions.  The first is whether the Tribunal was correct in its assessment of whether the applicant had in fact or law breached the condition attached to his visa.  The second is whether the Tribunal erred in law in considering, or failing to consider, exceptional circumstances. 

2. Relevantly, the applicant was required to meet condition 8202 attached to his visa.  The particular terms of condition 8202 are set out on page 119 of the court book:

   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 a full‑time course of study or training.

   (3)   A holder meets the requirements of this subclause if:

   (a)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

   (b)in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

   (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 or semester (whichever is
        shorter) of the course

3. It appears from the court book that there was some confusion whether the applicant was required to maintain an 80 per cent attendance rate for the whole of his course or for particular terms. A notice sent under s.20 of the Education Services for Overseas Students Act 2000 at page 1 of the court book appears, on its face, to suggest that the issue was the applicant's attendance for the course as a whole.

4. The document on page 5 of the court book is an inconclusive one in terms of listing the applicant's attendance for particular periods of his course.  The document on page 13 of the court book is more specific and lists term dates over five week periods.  A further calculation appears on page 30 of the court book by reference to the same time periods.  A further calculation is on page 82 and page 83 of the court book.

5. Ultimately, the Tribunal proceeded upon the basis that the applicant was required to meet the 80 per cent attendance requirement for each term of his course as specified by the educational institution.  It is noteworthy that in this case the institution specified nine terms over an academic year.  The applicant asserted (apparently correctly) that he had met the 80 per cent requirement for the whole of the course but, notwithstanding various recalculations and reconsiderations, he was unable to demonstrate that he met the attendance requirement in term 8 and term 9 of 2005 and term 1 of 2006.His attendance for those periods was 76 per cent, 75 per cent and 75 per cent respectively. 

6. The word “term” in condition 8202 is undefined.  I proceeded on the basis that the word carries its ordinary meaning.  The third edition of the Concise  Macquarie Dictionary in its fifth alternative definition of the word, defines the term as each of certain stated periods of the year into which instruction is regularly organised for students or pupils in universities, colleges and  schools.  It is apparent from that definition that a term may constitute any period of time within an academic calendar.

7. In Kweon & Ors v The Minister for Immigration & Anor [2007] FMCA 1221 Riley FM considered the meaning of the word "semester" in condition 8202. She found that it was not a period of 26 weeks but a particular period specified by the relevant academic institution in its calendar as a semester or, in the absence of any such specification, either the first or second half of the year. She found that in the case before her that a term at the relevant institution consisted of 10 week periods between breaks.

8. If anything the generality of the word "term" as compared to the word "semester", which is generally understood to relate to half of an academic year, creates opportunities for uncertainty and confusion.  In addition, sub-cl.3(a)(ii) requires students for a course that runs for at least a semester meet the 80 per cent requirement for each term and semester of the course which suggests that courses consist of both semesters and terms.  That may not necessarily be the case.  In this instance where there were nine terms over the academic year it is hard to see how those divided into semesters.

9. The Tribunal did not attempt to decide whether the applicant met the 80 per cent requirement for any semester of his course and I doubt that it would have been able to on the material before it.  There may, indeed, be no semester divisions in the course.   That adds to the problematic application of the condition.

10. I accept the Minister's submissions that the Tribunal was bound by the institution's determination of what its terms were.  Once the institution had advised the Tribunal that there were nine terms in the course of a year and the applicant had failed to meet the 80 per cent attendance requirement in respect of three terms the Tribunal was bound to conclude that the applicant failed to meet condition 8202 in respect of those terms.  However, the matter did not end there.  The Tribunal was aware of the applicant's asserted confusion as between the course as a whole and particular terms.

11. As I have already noted that confusion is reflected to some extent in the documents in the court book.  Plainly, the more terms there are the more opportunities there are for a student to fail to meet the attendance requirement.  The applicant asserted, apparently with justification, that overall he met the attendance requirement in the course although he faced particular problems during three terms.

12. The Tribunal wrote to the applicant pursuant to s.359A of the Migration Act seeking comments on the issue of his attendance. By letter dated 12 February 2007 appearing on pages 99 and 100 of the court book the applicant provided comments, although these are not specified to be in response to that letter. Relevantly the applicant said:

    Despite the fact that I had less than 80% in some sessions due to my psychological and physical illness (refer to medical and counsellor reports) it is very clear I was required to maintain overall attendance of 80% not the single session.  According to the University's record I had maintained overall attendance of 81.8 %.  [emphasis retained]

1. The applicant also disputed the university's approach to the division of the academic year and its calculations at the Tribunal hearing.  This is reflected both in the transcript and in the Tribunal decision.  The Tribunal had cause to seek clarification from the university on several occasions. The Tribunal decision records on page 121 of the court book that on 17 January 2007 the Tribunal wrote to the University of Newcastle Language Programme seeking information and clarification of the applicant's attendance record.  On page 122 of the court book the presiding member records that on 5 February 2007 the Tribunal received further correspondence from the Language Centre of the University of Newcastle indicating that the applicant had contacted them and provided further medical evidence, which resulted in a further recalculation.  Also on page 122 of the court book the presiding member records:

   The Tribunal discussed with the applicant his attendance record.  The applicant disputed the breakdown of the terms in the language programme. He stated that the language program ran for 45 weeks in total consisting of 10 weeks of an elementary English course, followed by 10 weeks of intermediate, followed by a further 10 weeks of upper Intermediate and 9 - 10 weeks of dedicated academic English.  He stated that he did not agree with the further breakdown of the programme into four week terms.

2. The transcript at page 18 verifies that discussion with the presiding member concluding in these terms:

   I mean they are the two issues. First whether or not your argument about the terms and I can see that its sort of something to be considered weather [sic] the difficulty with the law on 8202 says the course that runs at least a semester you have to get 80% for each term, I take your point that these are very short terms.

3. The applicant then asked if he could say something and the presiding member continued:

   Yes, so that’s [sic] one I’ll look at and the other is exceptional circumstances 

4. In its decision the Tribunal considered the matters specifically advanced by the applicant as being exceptional circumstances.  These were matters of some substance including an ongoing serious medical condition, a personal relationship breakdown, a need to attend the Saudi Embassy in Canberra and travel difficulties.  None of those were accepted by the Tribunal as exceptional circumstances. 

5. The applicant complains that the Tribunal did not take into account medical reports appearing on pages 77 and 89 of the court book but there is no doubt that the Tribunal considered the applicant's medical condition as evidenced by those reports.  While no doubt a different Tribunal may have made a different decision on those issues the Tribunal's view on them does not point to jurisdictional error. 

6. The difficulty, as I see it, lies in the failure by the Tribunal to consider the term structure employed by the institution as itself an exceptional circumstance.  This was put in issue by the applicant in his correspondence and at the hearing.  It is true that the applicant did not specifically raise it as an exceptional circumstance but it was clear that he was disputing the break-down by the university.  The presiding member recognised that nine terms in a year is a very large number of terms.  It was an unusual circumstance.

7. The Tribunal referred to the decision of Walters FM in Wang v The Minister for Immigration [2005] FMCA 918 where his Honour considered the meaning of exceptional circumstances and said, referring to a quote from Keifel J in Hatcher v Cohn (2004) 139 FCR 425:

   ‘[e]xceptional’ circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation.  Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances… The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless their application appears from the relevant statutory provision.

8. The Tribunal appeared to proceed on the basis of that interpretation.  In my view it is not an essential element of an exceptional circumstance that it be personal to an applicant.  It may relate to a class of persons including the applicant. For present purposes that class of persons is persons enrolled in the English language course.  Where, as here, the educational institution chooses to adopt very short term divisions which the Tribunal has no option but to accept, with resulting confusion and the potential for injustice to students, and where on the material that injustice is clearly put in issue by an applicant, the Tribunal should consider whether the unusual division of the academic year or the application of it in the particular case amounts to an exceptional circumstance.  It was certainly a circumstance beyond the applicant’s control.[18]

   [18] See Migration Regulations 1994 (2.43(2)(b)(ii)B)

9. The Tribunal made no such consideration in this case although the presiding member gave the applicant to understand from the passage I have read from the transcript that she would give consideration to his concern about the university's division of terms.  The Tribunal proceeded on the basis not only that it was bound by the university's specification of what the terms were but that the question of exceptional circumstances was separate from that issue.

10. The applicant having raised the, issue the Tribunal should have considered whether the university's division of the year into very short terms, or its application of that policy to the applicant, gave rise to an exceptional circumstance.  That was the only basis on which that element of the applicant’s claims could be considered.  The consideration was needed because, in the absence of doing so the application of condition 8202 can lead to injustice where institutions adopt peculiar or unusual term periods.

11. There was no consideration of the term periods adopted by the University of Newcastle as an exceptional circumstance in this case.  In failing to consider the issue as an exceptional circumstance the Tribunal fell into jurisdictional error warranting the provision of relief to the applicant in the form of constitutional writs of certiorari and mandamus.

12. I will order that a writ of certiorari shall issue quashing the decision of the Migration Review Tribunal signed on 27 March 2007 and handed down on 20 April 2007.  A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.

13. The applicant has not incurred any professional legal costs in this matter.  He has paid a filing fee with his application and he has received a final notice for a setting down fee which has not yet been paid but which the applicant has undertaken to the Court to either pay or seek a waiver of within 7 days. I will order that the first respondent is to pay to the applicant the filing fee he has paid and the setting down fee, if paid.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate: 

Date:  13 August 2007