AMBAKKAT v Minister for Immigration - [2011] FMCA 916

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AMBAKKAT v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 916

MIGRATION – Migration Review Tribunal – cancellation of student visa – applicant engaging in conduct not contemplated by the visa.

Education Services for Overseas Students Act 2000 s.20
Migration Act 1958 ss.116, 119, 120, 121, 348, 359A

Hossain v Minister for Immigration & Anor (2010) 183 FCR 157; (2010) 114 ALD 106; [2010] FCA 161
Lu & Anor v Minister for Immigration & Anor (2009) 235 FLR 257; (2009) 112 ALD 125; [2009] FMCA 891
Martinez v Minister for Immigration & Anor (2009) 177 FCR 337; (2009) 109 ALD 260; (2009) 256 ALR 32; [2009] FCA 528
Mo v Minister for Immigration & Anor [2010] FCA 162
Weerakoon v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 624
Zubair v Ministerfor Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; (2004) 80 ALD 534; (2004) 211 ALR 261; [2004] FCAFC 248

Applicant:

ANUP AMBAKKAT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 839 of 2011

Judgment of:

Riley FM

Hearing date:

8 November 2011

Date of last submission:

17 November 2011

Delivered at:

Melbourne

Delivered on:

30 November 2011

REPRESENTATION

Advocate for the Applicant:

Mr Fernandez

Solicitors for the Applicant:

T.A. Fernandez

Advocate for the First Respondent:

Ms Whittemore

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore

ORDERS

The application filed on 17 June 2011 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 839 of 2011

ANUP AMBAKKAT

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 of the delegate of the first respondent to cancel the applicant’s subclass 572 Vocational Education and Training Sector visa under s.116(1)(fa) of the Migration Act 1958 (“the Act”). That paragraph permits the Minister to cancel a visa if he or she is satisfied that:
(fa) in the case of a student visa:
(i)its holder is not, or is likely not to be, a genuine student; or
(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa….
The applicant is a citizen of India who arrived in Australia in August 2008. He completed a three month English course at Academia International. He than enrolled in a Diploma of Hospitality Management, also at Academia International. That enrolment was cancelled on 6 August 2009. The applicant enrolled at Australian National College in a Certificate III in Printing and Graphic Arts commencing on 27 July 2009 and a Diploma of Business commencing on 12 July 2010.
The Tribunal found that the applicant stopped attending the Certificate III course after about four or five months and found that he did not actually commence the Diploma of Business. The Tribunal found that the applicant’s enrolment at Australian National College was cancelled. The Tribunal found that the applicant had not engaged in any study in Australia after about December 2009.
On 14 January 2011, pursuant to s.119 of the Act, the applicant was issued with a notice of intention to consider cancellation on the grounds specified in s.116(1)(fa) of the Act. The delegate cancelled the applicant’s visa under that provision.
However, the Tribunal noted, correctly, that it was unclear whether the delegate’s cancellation was under s.116(1)(fa)(i) or (ii) of the Act. The Tribunal found that grounds existed for cancellation under s.116(1)(fa) of the Act. The Tribunal apparently relied upon s.116(1)(fa)(ii), namely, conduct not contemplated by the visa. That conduct consisted of not attending, and not being enrolled in, a course of study. The Tribunal considered the discretionary factors and then proceeded to affirm the cancellation.

Ground 1

The first ground of review in the application filed on 17 June 2011 is:
The Tribunal has contravened section 348 of the Migration Act 1958 in that it did not review a decision of the delegate when “it is unclear from the delegate’s reasons as to whether the delegate relied on section 116(1) (fa) (i) and/or (ii) in cancelling the visa”.
Section 348 of the Act requires the Tribunal to review certain decisions. The applicant contended that the Tribunal did not review the delegate’s decision in this case because the Tribunal did not specify whether it affirmed the delegate’s cancellation under s.116(1)(fa)(i) or (ii). The applicant said that Weerakoon v Minister for Immigrationand Multicultural and Indigenous Affairs [2005] FMCA 624 at [8] made it abundantly clear that s.116(1)(fa)(i) and (ii) provide two distinct grounds of cancellation.
It is true that the Tribunal did not expressly state which subparagraph of s.116(1)(fa) it relied upon. However, it is clear from paragraphs 29 and 30 of its reasons for decision that the Tribunal implicitly found that the ground in s.116(1)(fa)(ii) existed. The Tribunal there said:
29. …The Tribunal considers that this amounts to conduct (by omission) not contemplated by the visa, namely not attending or not being enrolled in a course of study.
30.For the reasons given above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) exists. …
That is, the Tribunal in paragraph 29 used the precise words from s.116(1)(fa)(ii). The Tribunal then immediately said it was satisfied that the ground in s.116(1)(fa) existed. There is an implicit reliance on the ground in s.116(1)(fa)(ii).
Additionally, in relation to ground 1, the applicant made oral submissions to the effect that the Tribunal had erred by not making a finding about a notice under s.20 of the Education Services for Overseas Students Act 2000 (“the ESOS Act”), when the applicant’s adviser had raised the s.20 notice in his response to the delegate following receipt of the s.119 notice.
The applicant was sent a s.20 notice on 24 August 2009. However, the delegate’s decision notes that the s.20 notice was deemed to be invalid on 16 March 2010, following the decisions in Hossain v Minister for Immigration & Anor (2010) 183 FCR 157; (2010) 114 ALD 106; [2010] FCA 161 and Mo v Minister for Immigration & Anor [2010] FCA 162. The delegate’s decision was not made pursuant to s.20 of the ESOS Act. It was made under s.116 of the Act. It does not appear that the applicant’s adviser made any submissions about the s.20 notice to the Tribunal. In these circumstances, it was unnecessary for the Tribunal to address that question.
Consequently, this ground is not made out.

Ground 2

The second ground of review in the application filed on 17 June 2011 is:
The Tribunal has incorrectly ( legally) interpreted documents to find as to when the applicant was no longer enrolled with “ACADEMIA INTERNATIONAL” and among other things contradicts the finding in paragraph 29 of its decision.
The applicant argued that he was not a student at Academia International when the s.119 notice was sent to him, but the s.119 notice presupposed that he was. The s.119 notice relevantly stated:
Evidence in the form of electronic enrolment records in Provider Registration International Student Management System (PRISMS), which is the system used by education providers to record the enrolment details of international students, suggest that you are not enrolled in a registered course.
PRISMS also suggests that the last date of study was 06 August 2009 at Academia International where you were enrolled to study a Diploma of Hospitality Management with a course start date of 26 January 2009 and a course end date of 02 February 2011. That education provider cancelled your enrolment on 06 August 2009 for non-payment of course fees and it appears that you have not undertaken any studies in Australia since.
Since 06 August 2009, records indicate that you:
· did not commence a Diploma of Business, confirmation of enrolment ID 374BCC76, course start date 12 July 2010, course end date 27 June 2011.
No further Confirmations of Enrolment (COE) have been issued to you since 06 August 2009 and records indicate that you have not undertaken any studies in Australia since that date.
The applicant argued that the s.119 notice was factually incorrect, because it did not acknowledge that the applicant had in fact enrolled in and commenced a Certificate III in Printing and Graphic Arts which commenced on 27 July 2009.
This ground of review concerned paragraphs 29 and 30 of the Tribunal’s reasons for decision. Those paragraphs provided as follows:
29.The Tribunal accepts from the documents submitted by the applicant that he subsequently enrolled in a Certificate III in Printing and Graphic Arts at ANC with a start date of 27 July 2009, as well as a combined Diploma of Business at ANC with a start date of 12 July 2010. However, based on the relevant COE submitted by the applicant indicating that the COEs for these two course were cancelled, combined with the applicant’s evidence that he did not pay the balance of the fees owing on these courses, he stopped attending the Certificate III course after approximately 4 or 5 months and he has not been attending any classes since that time and never commenced his Diploma or Business, the Tribunal finds that the applicant ceased being engaged in any form of study in Australia since approximately December 2009 at the latest. The Tribunal considers that this amounts to conduct (by omission) not contemplated by the visa, namely not attending or not being enrolled in a course of study.
30.For the reasons given above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) exists. As the Tribunal has decided that a ground for cancellation exists, and that ground does not involve circumstances that require cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consequently, it can be seen that the Tribunal considered that:
a)the applicant was no longer enrolled at Academia International from 6 August 2009;
b)he was enrolled at Australian National College in courses starting in July 2009;
c)he ceased to be engaged in any form of study in Australia in or before December 2009.
One of the evident purposes of a s.119 notice is to give a visa holder an opportunity to give the sender of the notice information that corrects any misapprehension of the facts that the sender of the notice may have had. If the sender of the notice was under a minor misapprehension, which did not substantially alter the thrust of the issues raised in the notice, there does not seem to be any reason that the sender of the notice, and in due course, the Tribunal, could not rely on the same notice to cancel, or affirm the cancellation of, a visa, provided that the procedures specified in s.119 to s.121 of the Act are complied with.
In the present case, whether the applicant stopped studying in August 2009 or December 2009 was neither here nor there, in the context of the applicant, on any view, not having studied for over a year at the time the s.119 notice was sent.
The applicant also argued that the Tribunal made the same mistake as the delegate when the Tribunal said that:
the Tribunal accepts that the applicant was no longer enrolled at Academia International from this date [being 6 August 2009].
However, unlike the understanding of the facts set out in the s.119 notice, the Tribunal clearly accepted that the applicant enrolled in the Certificate III course and may in fact have attended classes up until about December 2009. The Tribunal was correct to find that the applicant had not been enrolled at Academia International from

6 August 2009.
The applicant argued that the Tribunal had failed to review the delegate’s decision, as required by s.348 of the Act, because the Tribunal had not made a finding about the factual error made by the delegate. However, that submission misapprehends the nature of the review performed by the Tribunal. The Tribunal is required to conduct a hearing de novo, and make the correct or preferable decision based on the material before it. The Tribunal is not required to assess whether the delegate made the correct or preferable decision on the material before him or her.
The applicant referred to the decisions in Zubair v Ministerfor Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; (2004) 80 ALD 534; (2004) 211 ALR 261; [2004] FCAFC 248 at [24] to [35], Lu & Anor v Minister for Immigration & Anor (2009) 235 FLR 257; (2009) 112 ALD 125; [2009] FMCA 891 at [67] to [69] and Martinez v Minister for Immigration & Anor (2009) 177 FCR 337; (2009) 109 ALD 260; (2009) 256 ALR 32; [2009] FCA 528 at [32], [43] and [44]. There is nothing in those decisions which alters the conclusions expressed above.
The applicant argued that the delegate had not followed the procedures contained in s.119 to s.121 of the Act. The applicant did not say which procedures were allegedly not followed. Broadly, those sections require the s.119 notice to state the grounds for the proposed cancellation and the information by reason of which those grounds appear to exist. Section 120 of the Act requires the delegate to give the visa holder information that:
(a)would be the reason, or a part of the reason, for cancelling a visa; and
(b)is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c)was not given by the holder; and
(d)was not disclosed to the holder in the notification under section 119.
The delegate gave the applicant, in the s.119 notice, the information that the delegate relied upon. The delegate was not required to give the applicant any other information.
The Tribunal relied on somewhat different information in making its decision. That information was provided by the applicant in written submissions to the Tribunal and in the applicant’s oral evidence before the Tribunal. The information concerned where the applicant was enrolled and when. The Tribunal apparently accepted that information. Because the information was provided by the applicant, the Tribunal was not required to give the information back to the applicant: s.120(1) and s.359A(4) of the Act.
I am unable to detect any procedure required by s.119 to s.121 of the Act that was not followed in this case. Ground 2 is not made out.

Ground 3

The third ground of review in the application filed on 17 June 2011 is:
The finding in paragraph 30 as to the tribunal’s satisfaction that the ground for cancellation pursuant to section 116(1) (fa) is not supported by evidence and is in the nature of a hypothetical finding.
The applicant did not advance any submissions in support of this ground. He simply relied on the submissions made as indicated above, saying in effect, that the grounds were all interrelated. For the reasons given above, I am not persuaded by those submissions. Moreover, there was clear evidence before the Tribunal supporting its findings. Most of that evidence was given by the applicant himself. This ground is not made out.

Ground 4

The fourth ground of review in the application filed on 17 June 2011 is:
The finding of the Tribunal are invalid finding as to its failure to specify which particular subsection of section 116(1) (fa) is relied upon.
The applicant did not advance any submissions in support of this ground. He simply relied on the submissions made as indicated above, saying in effect, that the grounds were all interrelated. For the reasons given above, I am not persuaded by those submissions. Moreover, the particular subparagraph of s.116(1)(fa) that the Tribunal relied upon was stated implicitly, but nevertheless clearly. This ground is not made out.

Ground 5

The fifth ground of review in the application filed on 17 June 2011 was abandoned at the hearing before this court.

Conclusion

As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Riley FM

Date: 30 November 2011