Ali Shareef v Minister for Immigration
[2006] FMCA 1726
•12 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHAREEF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1726 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a Student (Subclass 572) (Vocational Educational and Training Sector) visa – no reviewable error – application dismissed. |
| Education Services for Overseas Students Act 2000 (Cth), s.20 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 359A, 483A |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Chand v Minister for Immigration [1997] FCA 1198 Cheng v Minister for Immigration [2006] FCA 1028 Humayun v Minister for Immigration [2006] FCAFC 35 Minister for Immigration v Awan [2003] FCAFC 140 Minister for Immigration v Hou [2002] FCA 574 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v Nguyen [2002] FCA 460 Minister for Immigration v Zhou [2006] FCAFC 96 Paramananthan v Minister for Immigration (1998) 160 ALR 24 SAAP v Minister for Immigration [2005] HCA 24 SZEEU v Minister for Immigration [2006] FCAFC 2 Tian v Minister for Immigration [2004] FCAFC 238 |
| Applicant: | AHMED ALI SHAREEF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1330 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 8 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person |
| Counsel for the Respondents: | Ms S A Sirtes |
| Solicitors for the Respondents: | Ms K Hooper of Phillips Fox |
ORDERS
The Migration Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 23 May 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1330 of 2005
| AHMED ALI SHAREEF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 23 May 2005 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 26 April 2005, affirming a decision of the delegate of the first respondent made on 6 September 2004, refusing to grant the applicant a Student (Subclass 572) (Vocational Educational and Training Sector) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Rachel Creek, reference N04/05313, sets out under the heading ‘Evidence’ the background material in respect of this application. I adopt paragraphs 12 to 18 for the purpose of this judgment:
12. The review applicant first entered Australia as a student on 21 October 1998 on a Student (Temporary) (Class TU) visa, subclass 560 which was granted on 7 October 1998 and which expired on 21 July 1999. He was granted another Subclass 560 visa on 21 July 1999 which ceased on 18 September2001. The review applicant next applied for a subclass 572 visa which was issued on 18 September 2001 and expired on 30 September 2002. He was then granted another Subclass 572 visa valid until 27 April 2004. On 27 April 2004 he was issued another Subclass 572 visa which was due to expire on 30 October 2005. Attached to this visa was condition 8202 (‘Enrolment and course requirements’). The Visa was cancelled on 6 September2004 for failure to meet course requirements.
13.The review applicant was studying an Advance Diploma of Hospitality (Management) at ACTH Management He commenced the course on 19 April 2004 and is due to complete the course on 30 September 2005.
14. On 2 August2004, the delegate issued to the review applicant a written notice of intention to cancel the visa, stating that the education provider had informed the Department that the review applicant may have breached condition 8202. The review applicant failed to maintain an attendance rate of at least 80% and/or failed to make satisfactory academic progress for each semester/term of study.
15.The review applicant was interviewed by the delegate on 6 September 2004. According to Part B of Form 1099, the review applicant said he had not been attending class because be had been sick and provided medical certificates. He was in a car accident and injured his neck and was admitted to Canterbury Hospital. Medical certificates were provided.
16. The review applicant provided medical certificates for the following dates:
• 10 April 2004 to 24 April 2004
• 5 May 2004 to 6 May 2004
• 25 May 2004 to 8 June 2004
• 1 June 2004 to 3 June 2004
• 4 June 2004 to 8 June 2004
17. An email from the education provider stated that taking into consideration medical certificates, the review applicant’s attendance rate for Term 2 2004 was 73%.
18. On 6 September 2004, the delegate proceeded to cancel the review applicant’s student visa, on the ground that the delegate was satisfied that the review applicant had failed to maintain an attendance rate of at least 80%.(Court Book (“CB”) 63-64)
Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s reasons was contained in the first respondent’s written submissions prepared by Ms Sirtes and I adopt paragraphs 6 to 9 of those submissions:
6.On 3 November 2004 the Tribunal sent to the applicant (and primarily his appointed representative) an invitation to comment on information which it considered would be the reason or part of the reason for affirming the decision on review, pursuant to section 359A of the Migration Act 1958 (“Act”) (CB). The Tribunal later granted an extension for the provision of information at the applicant’s request. The information the subject of the request was:
“Your education provider, ACTH, informed the Department that your attendance rate for Term 2, 2004 was 73% (including medical certificates).”
7. On 14 December 2004 the applicant by his appointed representative, replied to the invitation to comment (CB 46 to 47). That reply did not dispute the information provided by the Education Provider and the subject of the section 359A request but instead sought to provide explanation for the non-attendance.
8. The applicant accepted the Tribunal’s invitation to attend a hearing of the Tribunal (CB 48 to 51). Following the hearing the applicant sought time, and an extension of that time to provide a further doctor’s certificate.
9. The Tribunal:
(a) set out the applicant visa history (CB 63 to 64 at [11] to [21]);
(b) noted the effect of the decisions of MIMA v Hou [2002] FCA 574 and MIMA v Nguyen [2002] FCA 460 in respect of the Tribunal’s non-discretion to set aside a cancellation where the breach of Condition 8202 has been established.
(c) noted that the Department had considered the MSI 368 policy guidelines.
(d) found that the applicant had breached condition 8202 and that it did not have a discretion to go beyond that breach or take into consideration compelling or compassionate reasons for the breach.
(e) found that a doctor’s certificate provided later by the applicant was not specific enough to clarify details of when the applicant had allegedly been ill and did not explain the days upon which the applicant claimed to be ill but had not attended the doctor. The Tribunal found that it was therefore not possible to review the applicant’s attendance on that basis.
Application for Review of the Tribunal Decision
On 23 May 2005, the applicant filed an application in this Court for review under s.39B of the Judiciary Act. On 23 August 2005, the applicant filed an amended application which contained the following grounds:
1.The Tribunal denied the Applicant procedural fairness and, in so doing, made a jurisdictional error.
Particulars
1. The Tribunal found that the letters, referred to at page 14, 16, 18 and 22 facsimile from DIMIA to education provider requesting applicant’s academic details. Facsimile from the education provider to DIMIA re; applicant’s academic details, enclosing; Copies of medical certificates and Copies of Academic Records were credible and significant evidences to make the Tribunal decision;
2. The Tribunal relied on the only information provided by the education provider
3. The Tribunal failed to afford the applicant’s to deal with adverse information, contained in the applicant’s academic records provided by the ACTH Management.
4. The Tribunal relied on information, referred to at Book, which suggest that;
a. the applicant average attendance were 36%
b. that the applicant fail to attends for at least 80% of the contact schedule for a course that runs for less than a semester- for the course; or
c. or a course that runs for at least a semester — for each term and semester of the course; and
d. any case - the holder achieves and academic result that is certified by the education provider to be at least satisfactory.
2.The Tribunal should not be relied on the wrong information provided by the ACTH Management to the DIMIA ( Minister to cancel my Student ( Temporary)( Class TU) Visa. As the ACTH Management failed provide the correct attendants information to the DIMIA. The ACTH Management sent deferent attendants which fluctuate the actual information in respect a 80% minimum attendants. The ACTH Management sent first 32%, then 36% finally 73%. In contrary to my own estimation my attendance accede 80% of the minimum requirement.
Particulars
1. That the Tribunal denied the applicant procedural fairness and, in so doing made a jurisdictional error;
2. That the procedure that were required by the Migration Act and Regulation to be observed in connection with the making of the decision were not observed.
3. That the Tribunal ignored the merits of the claim and the Tribunal give decision on the unreliable information without any investigation in regards of my submission that I submitted to the Tribunal.
4. That the Tribunal should be taken my plea of taking doctor advise in not to physically affairs to the doctor as I was unable to move or work caused by my injuries of accident.
5. That the Tribunal should also take into consideration that the ACTH Management failed to provide sickness information to the Minister which effectuated from 27 -30 April 2004 for one week.
6. That the on 27 April 2004 at 9 am the applicant’s phoned to the Family Doctor and informed about sudden pain to the knee, then the doctor advised by phone and to take rest and continued to the pain killer tablets.
7. On 27 Apr 2004 at about 9.30 rang to the Education Provider ACT TH Managemet and told about the reason of absence from class.
8. That the tribunal failed to take account of this reason as relevant consideration in exercising its power to determine as genuine student.
9. That the Tribunal decision was unjust and made without taking in to account the full gravity of the circumstances and consequences of the applicant’s Review Application.
10. That the Tribunal decision is not justifiable by evidences used in the decision. The used documents have indicated to clear violation of the Migration Act and Migration Regulations.
11. That the decision was an improper exercise of the power confirmed by this Act or the Regulation and I was deprived to attain natural justice by the MRT Member.
12. That the Tribunal made an error of law to making its decision relying on the wrong information by the education provider. (copied without alteration or correction)
Submissions
The applicant appeared as a self-represented litigant. He filed an outline of submissions the day before the final hearing. In those submissions the applicant set out a brief history of the various visas he had been granted since entering Australia as a student on 21 October 1998. The applicant stated that from October 1998 to August 2004, being a period of almost six years, he had complied with visa requirements. The applicant stated that he had a genuine medical condition which was beyond his control and therefore he did not attending his classes. He claims this was supported by evidence which was not considered by the Tribunal.
The applicant stated that the Tribunal made the following findings without asking him to comment or provide an explanation:
23. The review applicant is enrolled in a registered course. The education provider informed the Department that the review applicant’s attendance for Term 2, 2004 was 36%.
35.Following the hearing, the review applicant’s representative forwarded a letter from Doctor Qidwai dated 9 March 2005 stating that the student is known to him as is his medical conditions. He stated that he was aware that the student was sick and did not attend the college and was also unable to see me on some occasion in June 2004 (T1, f.52). The representative claims that if this is taken into account, the applicant’s attendance in the college will be over 80%. The Tribunal believe that the doctor’s certificate is not specific, it does not state days or the week in which the visa applicant was ill and does not clarify any details regarding the illness on the days the student did not attend the doctor. It is therefore not possible to review the attendance on this basis.(CB 64-65 and 68)
The applicant then referred to the Notice of Intention to Consider Cancellation, in particular to the delegate’s decision which states:
Mr Shareef has been reported by ACTH Management for breach of visa condition 8202 – failed to maintain 80% attendance record Term 2 of 2004 – 32%. Mr Shareef has stated that his attendance is low because he has been sick and has provided medical certificates stating his illness and absence from his course. Mr Shareef also stated that he was in a car accident and injured his neck and was admitted to Canterbury Hospital with medical certificates provided. Contacted school attendance recalculated with medicals 73%.(CB 9)
Mr Shareef then referred to paragraph 23 of the Tribunal decision, part of which is quoted above at [7]. The Tribunal recorded the applicant’s attendance in the relevant term as 36% with an adjustment to 73% with medical certificates. Mr Shareef highlighted the 4% difference in the figure which appears in the Notice compared to the Tribunal decision at paragraph 23. Mr Shareef argued that the figure of 73% should be amended to include the 4% difference and an additional two days covered by medical certificates issued by Dr Qidwai. These relate to when the applicant attended Dr Qidwai’s rooms in May and June 2004.(CB 55) Mr Shareef argues that these amendments mean that he satisfies condition 8202 of the Regulations. Mr Shareef argues that the Tribunal failed to consider these and that its Invitation to Comment dated 3 November 2004 did not properly inform him about such information.(CB 42-43) Consequently, the Tribunal failed to comply with its obligations regarding information adverse to the applicant, which was the reason or part of the reasons for its decision.
Mr Shareef referred to Minister for Immigration v Awan [2003] FCAFC 140; SZEEU v Minister for Immigration [2006] FCAFC 2; SAAP v Minister for Immigration and Paramananthan v Minister for Immigration (1998) 160 ALR 24.
In oral submissions, Mr Shareef drew the Court’s attention to the critical elements of a letter sent by his migration agent to the Tribunal on 14 December 2004:
• As Mr Shareef wanted to get into business marketing career, he took admission in the same college in Diploma of Marketing which he commenced in September 2002 until March of 2004.
•In April 2003 in consultation with his family Mr Shareef decided to pursue a trade course in Commercial Cookery and took admission in Certificate 111 in Commercial Cookery at Australian College of Tourism and Hospitality in Sydney. He approached the DIMIA for their advice on change of course and visa situation. The DIMIA officer advised him that he can not change his course because of 8206 condition which does not allow him to change the course for 1 year. He was advised to continue his Marketing course at SCBT which he did.
• After he completed his Marketing course at SCBT he took admission in trade course of Cookery at ACTH in March 2003 and approached DIMIA again for extension. At this time he was informed that he could have applied earlier as 8206 condition was not applicable to him. Mr Shareef became very frustrated by the incorrect information given to him and because of which he lost almost a year of time.
•He started his course at ACTH but unfortunately he met with an accident and could not attend classes. He submitted medical reports and other medical certificates to the college and DIMIA. He didn’t submit medical certificate for all days of his absence as he didn’t go to the doctors every time. As a result he is short of attendance (including medicals) though he was medically unfit on occasions for which he does not have medicals.(CB 46-47)
Mr Shareef stated that despite his problems he completed his information technology/marketing course before enrolling in a trade cooking course. His situation had been further complicated by the loss of his father and that he did not have the right to work while in Australia.
Ms Sirtes, appearing for the respondents, filed written submissions prior to the hearing which addressed the issues raised in the amended application. In respect of the first ground of review, which alleges a denial of procedural fairness, the particulars allege that the Tribunal relied upon information (the applicant’s academic records) provided by the educational provider and did not afford him an opportunity to deal with adverse information contained in those records. Ms Sirtes submits that it is unclear whether this complaint refers to the attendance or the academic result component of the academic records. It is submitted that any event, this ground is directed towards the attendance component of the applicant’s records, which was specifically addressed by the Invitation to Comment letter issued by the Department on 3 November 2004 and addressed to both the applicant and his migration adviser.(CB 42-43) On 18 November 2004, the migration agent requested an extension of time to respond to that invitation.(CB 44) The Tribunal granted an extension of time by letter dated 30 November 2004.(CB 45) On 14 December 2004, the agent responded on the applicant’s behalf which responded to the issues raised in the s.359A letter.
Ms Sirtes submits that if the complaint is directed instead towards adverse findings made in respect of the applicant’s academic achievements, this was not in issue in these proceedings. The Tribunal did not, nor was it required to, make a finding in this respect. There was no requirement for certification from the education provider in respect of academic achievement.
Ms Sirtes, in support of her submissions, referred the Court to Tian v Minister for Immigration [2004] FCAFC 238 at [55] to [56] per Ryan, Jacobson and Lander JJ:
55A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subclause (3)(a). The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).
56 On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.
The Tribunal noted in its decision that it did not have the discretion to set aside a visa cancellation where there has been a substantial breach of condition 8202. Once non-compliance with the condition is established, the Tribunal is bound by s.116(3) of the Act to affirm the visa cancellation: Minister for Immigration v Hou [2002] FCA 574; Minister for Immigration v Nguyen [2002] FCA 460. This approach was affirmed by the Full Federal Court in Minister for Immigration v Zhou [2006] FCAFC 96 when it stated that there was no legal inter-relationship between s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) and s.116 of the Act. In this matter, the applicant’s visa was cancelled under s.116 of the Act on the ground that he had breached condition 8202 of his visa. Section 116 gives the first respondent power to cancel a visa if she is satisfied that the visa holder has not complied with a condition of the visa: Cheng v Minister for Immigration [2006] FCA 1028. The applicant’s argument of a defect in the s.20 notice has been considered in a number of recent cases and such a defect was held as not affecting the power to cancel under s.116: Humayun v Minister for Immigration [2006] FCAFC 35; Minister for Immigration v Zhou. I accept the submissions by Ms Sirtes that this ground cannot be sustained.
In respect of the second ground of review, Ms Sirtes submits in her written submissions that the pleadings contain a variety of particulars in support of the contention that the Tribunal relied on “wrong information provided by the ACTH Management to DIMIA”. It is submitted that the education provider records the applicant as having attended 73% of classes, as opposed to his own estimation of 80%. The Tribunal was presented with two versions of attendance, one being the record from the education provider, the other being the applicant’s own calculations based upon a medical certificate. Ms Sirtes submits that the certificate was not contemporaneous to the alleged attendances but was prepared and produced for the Tribunal hearing. Ms Sirtes contends that the Tribunal was clearly entitled to prefer one set of information over the other.
Ms Sirtes submits that the attribution of weight to evidence is something which an administrative tribunal is entitled to do.
The failure to accord weight to certain evidence is not a matter which gives rise to jurisdictional error, see Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [197] per Gummow and Hayne JJ:
…In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. extract
See also Chand v Minister for Immigration [1997] FCA 1198 per Von Doussa, Moore and Sackville JJ, which cited Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
Ms Sirtes submits that the Tribunal set out its reasons in light of its finding that the generality of the recent medical certificate did not make a review of the applicant’s attendance possible. The Tribunal reasoning reveals that it was clearly aware of the purpose for which the certificate was provided, ie. to review the applicant’s attendance. However, it was not able to do so by reason of the quality of the evidence. This clearly shows that the Tribunal was aware of the affect of the document and that it asked itself the right question that the evidence itself was deficient. It is submitted there is no error of the kind alleged. Ms Sirtes submits that the Tribunal did not err in its task. It neither failed to directly undertake its task, nor fail to accord the applicant procedural fairness.
I accept the submissions of Ms Sirtes and agree with the analysis that the Tribunal undertook its obligation to review each of the certificates supplied by the medical practitioners indicating that the applicant had consultations with them on the relevant dates. The Tribunal did not accept those certificates as evidence which would support the applicant’s claims. The evaluation of such documents and the allocation of relevant weight compared to the balance of the evidence is a task that can only be undertaken by the Tribunal. I accept that the Tribunal has done so and the second ground cannot be sustained.
Conclusion
The applicant appeared at the hearing as a self-represented litigant. I am satisfied that none of the grounds identified can be sustained. Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 7 December 2006
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