Alsunaid v MIAC
[2011] FMCA 238
•12 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALSUNAID v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 238 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether breach of condition 8202(3)(b) of Schedule 8 to the Migration Regulations 1994 (Cth) was effective to trigger cancellation of the applicant’s student visa – whether the Tribunal was obliged to investigate inaccuracies in the records of the applicant’s education provider – whether notice of the applicant’s breach of condition 8202(3)(b) by the applicant’s education provider was given to the Department as soon as practicable as required by section 19(2) of the Education Service for Overseas Students Act 2000 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116(1)(b), 116(3), 119; 474; pt.8 div.2, s.359AA Migration Regulations 1994 (Cth), regulation 2.43 Education Service for Overseas Students Act 2000 (Cth), ss.19; 20 |
| Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 Mo v Minister for Immigration and Citizenship & Anor [2009] FMCA 1026 |
| Applicant: | NAWAF ABDULRAHMAN SUNAID ALSUNAID |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2543 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 24 March 2011 |
| Date of Last Submission: | 24 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Cockburn |
| Solicitors for the Applicant: | Cambridge Law Group |
| Counsel for the Respondent: | Mr D Godwin |
| Solicitors for the Respondent: | Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2543 of 2010
| NAWAF ABDULRAHMAN SUNAID ALSUNAID |
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”) dated 27 October 2010 and handed down on 28 October 2010. The Tribunal affirmed a decision of a delegate of the first respondent to cancel the applicant’s Subclass 573 High Education Sector visa for breach of condition 8202(3)(b) of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”) to the Migration Act 1958 (Cth) (“the Act”) of the applicant’s visa.
The issues in this case are: whether breach of condition 8202(3)(b) was effected by notification to the Department of Immigration and Citizenship (the “Department”) by the applicant’s education provider; whether the Tribunal was obliged to investigate inaccuracies in the records of the applicant’s education provider; and, whether notice of the applicant’s breach of condition 8202(3)(b) was given to the Department as soon as practicable. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
On 29 January 2008 the applicant was granted a Subclass 573 High Education Sector visa.
On 24 June 2010, the applicant’s visa was cancelled by the Department pursuant to section 116(1)(b) of the Act on the basis that the applicant had breached condition 8202 of his visa.
On 2 July 2010, the applicant lodged an application for review of the Department’s decision with the Tribunal.
On 28 October 2010, The Tribunal affirmed the decision under review.
On 24 November 2010, the applicant filed an application in this Court for judicial review of the Tribunal’s decision.
The relevant law
Section 116(1)(b) of the Act authorises the Department to cancel a visa where the visa holder has breached a condition of the visa. Section 116(3) of the Act states that the Department must cancel a visa if there exists prescribed circumstances in which a visa must be cancelled.
Regulation 2.43 of the Regulations sets out the prescribed circumstances referred to in s.116(3) of the Act. Relevantly, for student visas in force on or after 8 October 2005, the Minister must cancel a visa if the Minister is satisfied that the visa holder has not complied with condition 8202 and that the non compliance was not due to exceptional circumstances beyond the visa holder’s control.
Condition 8202 of Schedule 8 to the Regulations relevantly provides that a holder of a student visa meets the requirements of condition 8202 if neither of the following applies:
“3 (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 Service for Overseas Students Act 2000; and
(ii)Standard 10 of the National Code of Practice for registration Authorities and Providers of Education and Training to Overseas Students 2007.”
Section 19(2) of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) requires the applicant’s education provider to notify the Secretary of the Department of any breach of a prescribed condition of the applicant’s visa. Section 19(2) of the ESOS Act states as follows:
“19(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.”
Section 20 of the ESOS Act requires the applicant’s education provider to send him written notice of any breach by him of a prescribed condition of his student visa.
Section 119 of the Act requires the first respondent to notify the applicant if the first respondent is considering cancelling the applicant’s visa under s.116 of the Act.
The tribunal’s decision
The Tribunal found that the applicant had not complied with condition 8202(3)(b) of his student visa in that the applicant’s education provider had certified that the applicant had not achieved satisfactory course attendance because his attendance had fallen below the required 80%.
The Tribunal identified the question before it as follows:
“In broad terms, the questions that arise for consideration under r.2.43(2)(b)(ii) are (A) whether the applicant failed to comply with condition 8202 and if so (B) whether the non compliance was due to exceptional circumstances beyond the applicant’s control.”
The Tribunal found that it was the certification by the education provider as to the applicant’s breach of its course attendance policy that constituted the breach of condition 8202(3)(b), rather than the unsatisfactory attendance itself. The Tribunal referred to Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at 590 (“Maan”). The Tribunal noted that its task was to determine that a certificate is of a kind that engages condition 8202(3). The Tribunal found that it was not required to inquire into the validity of the certificate. In support of that finding, the Tribunal referred to Singh v Minister for Immigration and Citizenship & Anor [2009] FMCA 1261 and Mazumder v Minister for Immigration and Citizenship & Anor [2010] FMCA 76.
The Tribunal was not satisfied that any failure to comply with condition 8202 was due to exceptional circumstances beyond the applicant’s control.
The Tribunal was satisfied that the certification by the applicant’s education provider of the applicant’s breach of condition 8202(3)(b) gave rise to a ground for cancellation under s.116(1)(b) of the Act.
Accordingly, the Tribunal found that prescribed circumstances existed such that the applicant’s visa must be cancelled pursuant to s.116(3) of the Act.
The proceeding before this court
The applicant was represented by Mr Cockburn, of counsel.
At the commencement of the hearing, Mr Cockburn confirmed that the applicant relied on an amended application filed on 12 January 2011. The amended application is a document of 15 pages identifying some 18 grounds. The grounds include statements of law and submissions. The grounds of complaint are difficult to identify. They are expressed in a dense and unclear manner. However, having heard from
Mr Cockburn, they essentially all arise from the same complaints which Mr Cockburn helpfully agreed could be distilled briefly into 3 complaints as follows:
(i)That condition 8202(3)(b) of Schedule 8 to the Regulations was not capable of compliance by the applicant because the applicant had no control as to whether or not a certificate was provided by his education provider;
(ii)That the Tribunal should have investigated the applicant’s assertion that there were inaccuracies in the records of the education provider; and
(iii)That the notice given by the applicant’s education provider to the Department pursuant to s.19(2) of the ESOS Act was deficient because it was not given as soon as practicable after the applicant’s alleged breach of condition 8202(3)(b).
(i) - Condition 8202 was not capable of compliance by the applicant and therefore a breach of condition 8202 could not trigger cancellation of the applicant’s student visa
Mr Cockburn submitted that condition 8202(3)(b) was not capable of compliance by the applicant because the applicant had no control as to whether or not a certificate was provided by his education provider. Mr Cockburn submitted that the Tribunal had failed to appreciate that compliance with condition 8202(3)(b) was dependant alone on certification by the education provider and no act of the visa holder was involved.
In support of that proposition, Mr Cockburn referred to Dai v Minister for Immigration and Citizenship & Anor (2007) 165 FCR 458 (“Dai”).
In Dai, North J found that s.116(3) of the Act was not engaged where an earlier version of condition 8202 required certification by the education provider that satisfactory course attendance and progress be provided in order to satisfy the version of condition 8202 in force at that time. North J found that there was no act of the visa holder which could satisfy the requirement of condition 8202 in that no matter what the student did or did not do the absence of a certificate would be fatal. He also found that there was no statutory right conferred on the visa holder to compel the education provider to furnish a certificate for the purposes of that version of condition 8202.
However, since Dai, the Full Court of the Federal Court in Maan has unanimously held that the present form of condition 8202(3) has the result that the mere fact of certification by the education provider constitutes “non compliance by the (applicant) with his visa conditions”
The Full Court in Maan at 590 stated that it was not the actual non attendance by the appellant that was a breach of condition 8202(3). Rather, it was the receipt by the Department of the certification from the education provider as to the appellant’s unsatisfactory course attendance. The Full Court held that the Migration Review Tribunal had been correct to find that the certification constituted non compliance by the appellant with condition 8202(3).
Counsel for the first respondent, Ms Francois, submitted that the decision by the Full Court in Maan is binding on this Court. I accept that submission.
In the circumstances, the Tribunal was correct to find that the applicant had breached condition 8202(3)(b) of his student visa upon receipt by the Department of the certification from his education provider that he had failed to achieve satisfactory course attendance in his General English course in that the applicant attended less than the minimum requirement of 80%. The applicant does not suggest that he attended more than 80% of his General English course. Indeed, the bundle of documents identified as “Court Book”, filed on 21 December 2010 and marked Exhibit 1A, contained a letter dated 22 January 2009 from the applicant acknowledging that his attendance had fallen below 80% in respect of his General English course.
Further, the Tribunal was correct to find that breach of condition 8202(3)(b) was a breach of a prescribed circumstance requiring mandatory cancellation of the applicant’s student visa pursuant to s116(3) of the Act.
There was no jurisdictional error on the part of the Tribunal in making those findings.
Accordingly, there was no error in the cancellation of the applicant’s student visa for breach of condition 8202(3)(b) of the Regulations and the applicant’s first complaint is not made out.
(ii) - Tribunal failed to investigate inaccuracies in the records of the applicant’s education provider
The second complaint made by Mr Cockburn was that the applicant had been denied procedural fairness by the Tribunal because it had not investigated the applicant’s migration agent’s assertion that there were inaccuracies in the records of the education provider.
The Tribunal’s decision record notes that at the hearing the applicant’s migration agent disputed records from the applicant’s education provider that indicated that the applicant’s General English course ran from 11 February 2008 to 23 January 2009. The Tribunal noted that the migration agent submitted that the applicant’s progress reports indicated that the actual duration of the course was from 11 February 2008 until 3 October 2008. The Tribunal accepted that submission and proceeded to deal with the application with the review on the basis that the course ended on 3 October 2008, this being the most favourable approach to the applicant.
Moreover, the Tribunal put to the applicant, in accordance with s.359AA of the Act, that on 20 July 2009 the Department received certification from the applicant’s education provider that he had not achieved satisfactory course attendance in relation to his General English course. The Tribunal told the applicant that the information was relevant as it indicated that he had failed to comply with condition 8202(3)(b) of his student visa and therefore had breached condition 8202 of his student visa. The Tribunal noted that it advised the applicant that he was entitled to request further time to comment if he wished. The Tribunal noted that the applicant did not comment on this issue.
However, the Tribunal noted that the applicant’s agent provided the Tribunal with written submissions, dated 20 October 2010. The submissions stated that the education provider had previously incorrectly issued a notice on 30 June 2009, in respect of the applicant’s enrolment in the Foundation Programs. That notice asserted that the applicant had failed to achieve satisfactory attendance at those Foundation Programs.
The Applicant’s agent submitted that the further notice sent to the applicant on 20 July 2009 asserting unsatisfactory attendance by the applicant at his General English course, was sent only after the Department realised that the earlier notice, dated 30 June 2009, had been sent in error. The submissions asserted that the notices were invalid.
However, it was open to the Tribunal to reject the applicant’s migration agent’s submission relating to the invalidity of the notices sent by the applicant’s education provider. The Tribunal referred to Mo v Minister for Immigration and Citizenship & Anor [2009] FMCA 1026 (“Mo”). In Mo, the Court found w the only task for the decision maker was to determine whether a certificate from an education provider on its face engaged condition 8202 and that there was no requirement to “go behind” a condition 8202(3) certificate or to enquire into its validity. The Tribunal noted that the Court in Mo was considering the question specifically in the context of s.20 of the ESOS Act and s.137J of the Migration Act. However, the Tribunal found that the Court’s remarks would appear to be equally applicable in relation to the operation of condition 8202(3) or generally. There is no error in the manner in which the Tribunal applied those principles in its review.
The submissions also attached a series of progress reports in relation to the applicant’s General English course. Those progress reports indicated that the applicant’s attendance remained above 80% until at least 11 July 2008 but that his attendance had fallen to 68% by
3 October 2008.
It is clear that the applicant was given every opportunity to meet the concerns expressed by the Tribunal about the applicant’s failure to comply with condition 8202(3)(b) of his visa. That information was given to the applicant in accordance with s.351AA of the Act. The applicant chose not to comment on that information.
In relation to the inaccuracy of the progress reports, the Tribunal accepted that the applicant’s course ended on 3 October 2008, as submitted by the applicant’s migration agent, and did so on the basis that this was the most favourable approach with regard to the applicant.
It is well established that the Tribunal is not under a duty to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In any event, there was no need for the Tribunal to conduct any investigation in circumstances where it accepted the dates as submitted by the applicant’s migration agent and did so on the basis that they provided the most favourable approach with regard to the applicant in considering whether or not the applicant was in breach of condition 8202(3)(b) of his student visa.
In the circumstances, there was no obligation on the Tribunal to consider further the accuracy or otherwise of the certificate from the applicant’s education provider, dated 20 July 2009.
Further, and in any event, if the allegation of a denial of procedural fairness is intended to be directed more to the Department’s decision rather than the Tribunal’s decision, any such error is cured by the Tribunal’s decision, where that decision is otherwise unaffected by jurisdictional error. (Zubair v MIMIA (2004) 139 FCR 344 at [32] and Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116).
Accordingly, the second complaint is not made out and has not established any jurisdictional error on the part of the Tribunal.
(iii) - Certification by education provider not given to the Department as soon as practicable after the applicant’s alleged breach of condition 8202
The third complaint made by Mr Cockburn was that the notice given to the Department by the applicant’s education provider of the applicant’s breach of condition 8202(3)(b) was deficient because it was not given as soon as practicable after the applicant’s alleged breach of condition 8202. At the heart of this complaint by the applicant, is an assertion that the breach occurred on the 3 October 2008, yet notice of cancellation of the applicant’s student visa was not given to the applicant by the Department until 17 August 2009.
The history of notification to the applicant of his breach of condition 8202(3)(b) is as follows.
On 30 June 2009, the Department received certification from the applicant’s education provider stating that the Applicant had not achieved satisfactory attendance for his General English course.
A letter was sent to the applicant on the same date particularising the breach alleged by the applicant’s education provider of his course attendance requirements in respect of the Foundation Programs.
On 17 July 2009, the Department wrote to the applicant informing him that the information in the letter dated 30 June 2009 was in error in that it referred to the applicant’s Foundation Programs as a course. However, the letter went on to say that the education provider had confirmed that the education provider would be reporting the applicant to the Department for unsatisfactory attendance in relation to his General English course the following week. The letter confirmed that, in the interim, the applicant’s visa would not be cancelled in relation to the reported breach in respect of his attendance at the Foundation Programs. The letter stated that once the applicant was reported by the Department for unsatisfactory attendance in relation to his General English course, he would need to present to the Department within 28 days to avoid the automatic cancellation of his student visa.
On 20 July 2009, the Department received a certification by the applicant’s education provider that the applicant had failed to achieve satisfactory attendance at his General English course in that his attendance was less than the required minimum of 80%. On 20 July 2009, the Department notified the applicant of its receipt of the certification by his education provider and giving the applicant particulars of the alleged breach.
On 17 August 2009, pursuant to s.119 of the Act, a Notice of Intention to Consider Cancellation under s.116 of the Act was sent to the applicant referring to the certification received from his education provider on 20 July 2009. That notice also informed the applicant that he had not achieved satisfactory course attendance in relation to his General English course because his attendance had been less than the required minimum of 80%.
On 24 June 2010, the Department notified the applicant of the cancellation of his visa under s.116 of the Act. The letter referred to the earlier notification, dated 17 August 2009, of the intention to consider cancellation of his visa.
Mr Cockburn’s submission appeared to be centred around the delay from 3 October 2008, when the applicant’s attendance rate fell below 80%, to the notice of cancellation sent to the applicant on 17 August 2009.
Section 19(2) of the ESOS Act required the applicant’s education provider to give to the Secretary particulars of any breach of a prescribed condition of the applicant’s student visa as soon as practicable after the breach occurred. Mr Cockburn submitted that the education provider did not give notice to the Department as soon as practicable after the breach occurred where that time delay was from
3 October 2008 to 17 August 2009.
Mr Cockburn submitted that a failure by the applicant’s education provider to notify the Department as soon as practicable after the applicant’s breach was a failure by the education provider to comply with s.19(2) of the ESOS Act which thereby affected the validity of the Department’s notice to the applicant that it had received certification from his education provider of his breach of condition 8202(3)(b). In support of that proposition, Mr Cockburn referred the Court to the Full Court of the Federal Court in SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91 where the Court stated at [13] “the construction of an act will generally assume compliance by the executive by the terms of that Act and other laws of the parliament.”
As I understand Mr Cockburn’s argument, it was that the notice given under s.119 on 17 August 2009 was not given in accordance with law because it was predicated on the failure by the education provider to comply with s.19(2) of the ESOS Act because the education provider did not give particulars of the applicant’s breach of condition 8202 as soon as practicable after the breach occurred.
Mr Cockburn submitted that the applicant was thereby somehow denied natural justice by that delay. I do not understand what the denial of natural justice could have been to the applicant. The applicant was able to continue with his studies. The applicant was given a full opportunity to be heard by a delegate of the Department who did not make its decision until some 10 months later.
There was plainly no relevant delay on the part of the Department in that, immediately upon receipt of certification from the applicant’s education provider on 30 June 2009, albeit inaccurate, the Department notified the applicant of its receipt of the notification. It then informed the applicant on 17 July 2009, that the notification was inaccurate. However, the letter also forewarned the applicant that the Department was expecting certification from his education provider the following week in respect of the applicant’s unsatisfactory attendance at his General English course.
When the certification from the applicant’s education provider was received on 20 July 2009 by the Department, the Department immediately wrote to the applicant on the same day notifying him of receipt of the certification. Thereafter, there was some correspondence from the applicant to the Department. As stated above, a Notice of Intention to Consider Cancellation under s116 of the Act was then sent to the applicant on 17 August 2009.
I do not accept that there has been any relevant delay by the Department in its communication with the applicant and the issuing of its various notices upon receipt by it of the correct certification from the applicant’s education provider.
In relation to the delay by the education provider in giving any such certification, there is no evidence before me whatsoever of any reason for that delay that would support an assertion that such delay was unreasonable. In any event, even if notice was not given to the Secretary as soon as practicable, I accept the submissions of the first respondent that there has been no relevant denial of procedural fairness or offence to the rules of natural justice to the applicant in circumstances where the applicant was otherwise able to continue with his studies and was given every opportunity to address the breaches once notified.
In the circumstances, I am not satisfied that there has been any relevant breach of s.19(2) of the ESOS Act
Accordingly the third complaint by the applicant is not made out and does not establish jurisdictional error on the part of the Tribunal.
Conclusion
Mr Cockburn agreed that the 18 grounds referred to in the amended application were various formulations of the above complaints. Formally, Mr Cockburn withdrew reliance on ground 6 of the application. Otherwise, Mr Cockburn pressed all the complaints made in the other grounds. Most of the grounds relied on the same particulars. The particulars were a mixture of assertions of error, statements of law, and submissions. The amended application and the written submissions in support appeared to seek to characterise the allegations of error considered above in any possible way capable of identifying a jurisdictional error.
I am satisfied that I have dealt with all relevant complaints relied on by the applicant as best I could understand them. As stated above,
Mr Cockburn confirmed on several occasions that the three complaints that I have identified and dealt with above were the complaints upon which the applicant relied.
In the circumstances, I am satisfied that the Tribunal has complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decisions. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The proceedings before this Court should be dismissed with Costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 12 April 2011
6
13
4