Arroio v Minister for Immigration
[2006] FMCA 1458
•6 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ARROIO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1458 |
| MIGRATION – Student visa – Migration Review Tribunal – whether jurisdictional error – condition 8202 - attendance records inadequate – whether unreasonable finding – whether cancellation of visa mandatory upon breach of condition 8202. |
| Education Services for Overseas Students Act 2000, s.20 Migration Act 1958, ss.116, 116(3), 137J, 137K, 137L, 359A Migration Regulations 1994, reg.2.43(2) conditions 8202, 8202(3)(a) |
| Chan v Minister for Immigration and Ethnic affairs (1989) 169 CLR 379 Morsed v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCAFC 193 Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1484 Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1132 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 |
| Applicant: | ARTHUR RONALDO ARROIO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 249 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 14 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 6 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. J.R. Hamilton |
| Solicitors for the Applicant: | Goz Chambers Lawyers |
| Counsel for the First Respondent: | Mr. W. Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 249 of 2006
| ARTHUR RONALDO ARROIO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 23 January 2006. In its decision the Tribunal affirmed a delegate’s decision to cancel the Applicant's student (temporary) (class TU) visa.
The background in this application is not disputed. The Applicant is a citizen of Brazil. He entered Australia on 26 November 2004 on a student visa which was valid until 15 March 2007. The visa was subject to a number of conditions, including condition 8202 (enrolment and course requirements).
On 11 July 2005, Cambridge International College (“the education provider”) issued a noncompliance notice (“the s.20 notice”) pursuant to s.20 of the Education Services for Overseas Students Act 2000 (“the ESOS Act”).
The s.20 notice (Court Book page 17) states in part the following:
“This notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 because Cambridge International College (VIC) Pty Ltd (trading as Cambridge International College) has determined that you have breached condition 8202 of your student visa. Particulars of the breach are as follows:
8202(3)(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.
Particulars of the breach – failure to meet 80% attendance
Cambridge International College (VIC) Pty Ltd (trading as Cambridge International College) has determined that in the running from to, you attended % of the contact hours scheduled. As a result, you have failed to comply with condition 8202(3)(a) of your student visa.” (sic)
I have deliberately set out the content of the letter verbatim and it will be noticed that there are some typographical and/or omissions.
An issue which arose during the course of the hearing was whether the letter sets out sufficient particulars of the breach and it was submitted, and I accept, by the Second Respondent that reference to "failure to meet 80 % attendance" is sufficient, although the education provider unfortunately has not provided precise details as a direct consequence of the typographical errors and/or omissions. Presumably the author of the s.20 notice meant to include the dates between which the attendance was unsatisfactory and the accurate "percentage of the contact hours scheduled".
On 21 July 2005, the Applicant was handed a "Notice of Intention to Consider Cancellation (“the first s.116 notice)" pursuant to s.116 of the Migration Act 1958 (“the Migration Act”). In the first s.116 notice under Item 9 headed “Possible Grounds for Cancellation” the following appears:
“It has come to the Department's attention that there may be grounds for cancellation of your visa under section 116 of Migration Act 1958 for the following reasons:
on 11/7/05, Cambridge International
College reported you for non-
attendance of class in term 2'05.
possible breach of condition
8202(3)(a)”
The first s.116 notice referred to the relevant section and had circled the breach of condition "8202". In that notice, the Applicant was invited to attend an interview with a delegate of the First Respondent on 1 August 2005. On that date, the Applicant was given by hand another s.116 notice (“the s.116 notice”) (Court Book page 22) which provided further details in item 9 of "possible grounds for cancellation" as follows:
“On 11/07/2005, Cambridge
International College
reported you for non-attendance
at classes in term 2, 2005
(30/05/05 - 15/07/05). Your
attendance has fallen below 80 %
for that term and has been
reported at 63 %
The second s.116 notice also referred to the relevant section and condition 8202.
On 1 August 2005 during the course of an interview with the delegate of the First Respondent, the Applicant provided a copy of a handwritten letter from a physiotherapist (Court Book page 15) which stated:
“This is to certify that Ronaldo Arroio of ... sustained an injury to his lower back, the injury consistent with an L5-disc protrusion. He sustained the injury on 5/6/05 and sought my advice on 6/6/05.
He presented with left sciatic pain, my advice was to avoid any bending or prolonged sitting for a period of two weeks from 6/6/05 until 8/7/05 to avoid aggravation of the disc.”
The word "sciatic" has been assumed to be the word in that extract, thought it is difficult to read and likewise, it is assumed the date of the restrictions ends on 8/7/05 although the "7" is not clear. Both parties agreed, however, that that appears to be an accurate reflection of the written report.
Certain observations can be made in relation to that written report which is relevant in this application. The report does not certify the Applicant as being unfit to attend classes for the relevant period.
The Applicant also produced to the delegate of the First Respondent a document purporting to be a report from a Brazilian orthopaedic clinic which had been translated with the English version appearing at Court Book page 19 where it states the following:
“ORTHOPAEDIC PHYSIOTHERAPY REPORT
RE: RONALDO ARTUR ARROIO
I declare that the above mentioned patient attended our clinic from September to October 2004, with complaints of acute lumbar sciatica pain, which was diagnosed as compressive discopathy that improved, but it is still subject to relapse with sudden physical efforts, being under "RPG" and physiotherapy treatment.”
At the conclusion of the interview on 1 August 2005, a delegate of the First Respondent cancelled the visa on the ground of breach of condition 8202(3)(a) of the Migration Regulations 1994 ("the Regulations").
The Applicant then applied for review of that decision in the Tribunal.
On 11 October 2005 (Court Book pages 60-64) the Tribunal invited the Applicant pursuant to s.359A of the Migration Act to comment on the information that in Term 2 of 2005 he failed to attend at least 80 per cent of scheduled contact hours in his course of study.
The same letter invited the Applicant to provide additional evidence that he did meet the requirements of condition 8202. The letter attached a certificate of attendance dated 1 August 2005 issued by the education provider. The certificate stated that for the period 30 May 2005 to 15 July 2005 "overall attendance was not satisfactory (60.5 per cent)".
By letter dated 27 October 2005 (Court Book page 68) addressed to the Tribunal the Applicant's lawyers responded to the invitation from the Tribunal in the Tribunal's letter dated 11 October 2005 to provide additional information pursuant to s.359A of the Migration Act.
The accuracy of the education provider certificate was disputed. Issues were raised concerning the education provider's attendance monitoring policies and whether the certificate complied with the requirements of condition 8202. An indication was given that a request for access to the education provider's records had received no response. It was submitted by the Applicant that the education provider's certificate of attendance is "constructively unreliable".
On 30 November 2005 the Tribunal conducted a hearing at which the Applicant gave oral evidence that he had suffered from chronic back pain and was unable to attend classes. It appears that the Tribunal obtained copies of attendance records from the education provider, as well as information regarding the education provider's attendance monitoring practices. The information was provided by correspondence from the education provider dated 15 December 2005 (Court Book page 48) where advice was given that the Applicant had attended 84 out of a total of 140 scheduled contact hours, equating to attendance of 60 per cent in the relevant second term from 30 May to 15 July 2005. In an email an officer on behalf of the Tribunal also requested information concerning whether any "allowance was made for the ‘medical certificate’ issued by (the) physiotherapist".
A response to that question was given that the education provider's policy "is not to include any medical certificates provided by students when calculating attendance as advised by DIMIA. No matter the reason of a student's absence, the student is marked absent on the roll".
After the hearing and in response to a further invitation by the Tribunal, the then solicitors for the Applicant, by letter dated 11 January 2006, further sought to challenge the calculation of contact hours and failure to take into account the student's attendance after roll call and/or the failure to take into account the medical certificates.
The attendance records were provided in the Court Book at pages 49-55. A number of observations may be made in relation to the attendance system which demonstrates that the records were, to say the least, unsatisfactorily maintained. The first observation is that the education providers own "completion key" provides for “X-present”, “0.5-late”, “0‑absent”. Yet in the records in the relevant weeks for the Applicant on a number of occasions what appears is a simple "/".
The symbol "X" does not appear to be used at all for any student, including the Applicant. In addition, another symbol, namely, "A" appears in the records. The education provider, in its response to the Tribunal, managed to draw conclusions from these poorly kept records.
The conclusions of the education provider are set out in paragraph 23 of the Tribunal's decision as follows:
“23.On 15 December 2005, the provider responded (T1,ff. 43-50), enclosing the review applicant’s attendance records for the semester in question, and answers to specific questions posted by the Tribunal. The provider advised that:
(a) the semester ran from 30 May to 15 July 2005;
(b)the review applicant was required to attend 20 scheduled contact hours weekly – 09.00 to 11.00 and 11.15 to 13.15 Monday to Friday. There is an optional extra class in the afternoon, which is not included in the review applicant’s “scheduled contact hours”;
(c)the review applicant attended 84 out of a total of 140 scheduled contact hours in that semester;
(d)in calculating the review applicant’s attendance rate, the dates referred to in the letter from the physiotherapist (D1, f.17) were not included as attendances;
(e)teachers call the roll at the start of each of the two morning se3ssions, and students are marked absent if they are more than 30 minutes late. When the review applicant claimed that the roll was not called after lunch, he was assumed to be referring to the afternoon sessions, at which attendance is optional.”
Relevant Legislation
The relevant legislation has been conveniently set out in the contentions of the First Respondent as follows:
“15. Section 116(1) provides, insofar as is relevant, that:
‘Subject to subsections (2) and (3) the Minister may cancel a visa if he or she is satisfied that:
…
(b)its holder has not complied with a condition of the visa;’
16. Section 116(3) provides, insofar as is relevant, that:
‘If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.’
17.Section 119(1) of the Act provides that the Minister when considering cancelling a visa under s116:
‘… must notify the holder that there appear to be grounds for cancelling it and:
(a)give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.’
18.Regulation 2.43(2) prescribes the circumstances in which the Minister must cancel a visa for the purposes of s116(3). The regulation provides, insofar as is relevant, that:
‘For subsection 116(3) of the Act, the circumstances in which the Minister much cancel a visa are:
(b)in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
…
(ii) condition 8202.’
19.At the time of grant of the applicant’s visa, condition 8202 provided, insofar as is relevant, that:
‘(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
…”
The Tribunal Decision
The Tribunal identified its task as one where it was required to decide whether there was a breach of condition 8202(3)(a) by the Applicant during term 2 of 2005 (from 30 May to 15 July 2005). It then relevantly made the following findings:
“35. The review applicant has claimed that the provider’s calculations are incorrect, pointing to the fact that its records show that there were no classes on 14 and 17 June 2005, but that in calculating the total number of scheduled contact hours, the provider assumed that there were five teaching days (each of 4 hours’ duration) in each of the 7 weeks of the term. As a result, the provider claimed that the term comprised 140 scheduled contact hours, rather than 132 hours (6 weeks @ 20 hours/week plus 1 week @ 12 hours). The Tribunal accepts that the provider erred in calculating the number of scheduled contact hours in the relevant term, but notes that is calculation of the review applicant’s attendance did not replicate that error. On that basis, the Tribunal calculates that he attended 63.6% of scheduled contact hours in the relevant period, well below the 80% threshold required by condition 8202(3)(a).
36. The review applicant has claimed that the provider has improperly failed to take account of what he has termed a “medical certificate” issued by a physiotherapist. Whilst the Tribunal considers that absences covered by bona fide medical certificates should properly be included as attendances (per Kan), it does not accept the review applicant’s claim, noting that the “certificate” is in fact simply a letter which indicates that the review applicant should avoid bending or sitting for extended periods in the period from 6 June to 8 July 2005. It does not specifically declare him unfit to attend classes in that period.
37. The review applicant has claimed that the provider did not always mark the roll in the afternoon sessions. The Tribunal attached no significance to that claim, noting that these sessions were optional, and were not included in the compulsory scheduled contact hours for the course.
38. Finally, the review applicant has claimed that the provider did not mark students as present when they were late for class. The Tribunal gives little weight to that claim, noting that the review applicant did not claim to have been late4, and therefore to have been personally disadvantaged by the alleged practice. The Tribunal also notes that whilst the provider’s response to the Tribunal’s enquiries indicate that students were marked absent if they were more than 30 minutes late, the actual attendance records themselves show that this is not the case: the roll makes provisions for latecomers, and there are a number of notations indicating the students were late to class.
39. Having carefully considered all of the evidence, including the contents of the NCN and the NOICC and the submissions and evidence of the review applicant, the Tribunal finds that the review applicant failed to attend at least 80% of scheduled contact hours during term 2 of 2005. The Tribunal therefore finds that the review applicant breached condition 8202(3)(a) of his subclass 572 student visa during that period.
40. The Tribunal is therefore satisfied that the grounds for cancellation of the review applicant’s visa exist. In light of this finding, subsection 116(3) and paragraph 2.43(2)(b) of the Regulations require that the review applicant’s visa must be cancelled. On the basis of the reasoning in Nguyen and Hou, the Tribunal does not have any discretion in this matter.”
Applicant's Submissions
The Applicant submitted that the Tribunal decision was affected by jurisdictional error. First it was argued that the Tribunal finding in paragraph 36 of its decision (set out above) was a finding so unreasonable that no reasonable person could make it (see Chan v Minister for Immigration and Ethnic affairs (1989) 169 CLR 379).
It was submitted that having regard to the perceived defect in the "medical certificate" produced from the physiotherapist was part of the reason for dismissing the Applicant's claim. The Tribunal was obliged to provide information to the Applicant pursuant to s.359A of the Migration Act and failed to do so.
Secondly, it was submitted that the s.20 notice was misleading and "possibly even deceptive" in its advice to the Applicant, that it clearly implies that if the Applicant reports to the Department and is able to satisfactorily explain the reasons for the breach of condition 8202 the visa would not be cancelled. It was argued they did not tell the Applicant that due to the mandatory operation under the Migration Act that the visa would be cancelled regardless of the explanation offered. The notice, it was claimed, was also misleading or deceptive by omission in that it did not advise the Applicant that if the s.20 notice is ignored automatic cancellation under s.137J of the Migration Act allows for revocation or cancellation under s.137K where, in accordance with s.137L, there are 'exceptional circumstances'. It was argued the s.20 notice is unfair or procedurally unfair (see Morsed v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA FC 193).
The First Respondent's Submissions
It was submitted by the First Respondent in relation to the physiotherapist's letter that there is no jurisdictional error arising from the finding by the Tribunal in relation to that letter. It was submitted that the letter went no further than indicating the Applicant should avoid bending or sitting for extended periods during the period stated. It did not claim the Applicant was unfit for class during the relevant period. This was clearly a matter of fact and any challenge to the merits of the decision should not be permitted.
It was further submitted, in any event, that the Applicant's reasons for non-attendance and failure to attain the required 80 per cent of contact hours scheduled were ultimately not relevant. Once the prescribed circumstances in s.116(3) and r.2.43(2) exists, then it was submitted no discretion exists.
Reference was made to the decision of the Federal Court of Bennett J in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1484, where in that case the Court found that the Tribunal had failed to consider the Applicant's medical reasons for not meeting the 80 per cent requirement, that those reasons were not relevant. The Court in that case relied upon the Full Court Decision in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA FC 238 at [22] - [24].
It was also submitted for and on behalf of the First Respondent that the decision of Barnes FM in Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1132 comprehensively reviewed the relevant authorities on the construction of condition 8202. Specific reference was made to the following paragraphs from Her Honour's decision:
“36. I am bound to follow the decision of the Full Court of the Federal Court in Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238. In that case the Full Court considered the same version of condition 8202 as is applicable in this case, although paragraph 8202(3)(b) (achieving an academic result that was certified by the education provider to be at least satisfactory) was in issue. The Court rejected an argument that the visa holder needed only to comply substantially with condition 8202 (as had been suggested in Shrestha). The Full Court pointed out at [59] that Shrestha was based upon a different statutory regime which no longer applied. In Tian (as in this case) it appears that the automatic cancellation that occurs under s.137J of the Migration Act 1958 if the applicant does not comply with the S20 ESOS notice (in particular by attending at an office of the Department) did not arise as the Department proceeded to cancel the applicant’s visa under s.116.
37. Their Honours referred to decisions contrary to Shrestha (such as Hou and Liu) and drew a distinction between a cancellation pursuant to s.116(1) of the Migration Act 1958 and a cancellation to which s.116(3) applied. Section 116(1) provides that the Minister “may” cancel a visa and in exercising that discretion:
The Minister would have regard to all of the surrounding circumstances to determine whether it is appropriate to cancel a visa for any of the reasons in that subsection” (Tian at [65]).
38. However in relation to a cancellation to which s.116(3) applies their Honours stated at [66]:
Section 116(3) does not permit the Minister to exercise any discretion at all. If the proscribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the proscribed circumstances referred to in s.116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a proscribed circumstance and obliges the Minister to cancel the visa.
39. There is nothing to warrant limiting this approach to s.116(3) to circumstances where the failure to comply with condition 8202 relates (as in Tian) to results rather than attendance. If the delegate (or Tribunal) is satisfied that there has been non-compliance with condition 8202, cancellation is mandatory under s.116(3) and not a matter of discretion. Hence any reasons for non-attendance (or failure to achieve an academic result that is certified by the education provider to be at least satisfactory under condition 8202(3)(b)) are not relevant. Nor can it be said that on the true construction of condition 8202 the applicant needed only to comply substantially with the condition.
40. The applicant contended that Tian did not mean that the Tribunal was relieved from the obligation to follow “proper procedures”. While this is so, it cannot be said that as part of such procedures it was necessary fro the Tribunal to consider any reasons for non-attendance or medical evidence in that regard.
41. The consequence of the authorities is that in a case such as the present the only stage at which a “discretion” arises would be when the delegate determined whether to issue a s.119 notice. As indicated above, such a decision is not reviewable by the Tribunal, even if it appears that an applicant has a legitimate medical explanation for non-attendance which, for whatever reason, was not such as to persuade the delegate not to issue a s.119 notice (cf a decision under s.137L not to revoke a cancellation which is reviewable under s.338(3A)). Indeed, as pointed out in Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 (also see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561) even if the delegate failed to complete the procedural steps under s.119 such failure would not deprive the Tribunal of authority to review the cancellation decision and to “cure” such defect.
42. In the exercise of the cancellation power under s.116 the decision-maker cannot take into account a student’s reasons for non-attendance, however legitimate, in determining whether the particular student had complied with condition 8202 (in particular in determining whether he or she meets the 80 per cent attendance requirement). Nor can the Tribunal take such reasons into account in reviewing a decision to cancel a visa on this basis. As recognised by Bennett J in Chen at [26] this may have potentially draconian consequences in a situation in which a legitimate student affected by clearly documented ill-health, accident or injury, achieves a satisfactory academic result but nonetheless fails to comply with condition 8202 simply because his or her actual attendance is not at least 80 per cent of the contact hours scheduled. However the Federal Court has considered but rejected the purposive construction of condition 8202 which Madgwick J adopted in Shrestha in relation to an earlier statutory regime. (See Tian at [58]-[59]). Hence there is no room for an inquiry by the Tribunal as to whether there has been substantial compliance with the condition or, indeed, whether the circumstances were reasonably beyond the student's control. On the authorities above, the clear words of condition 8202(3)(a) (which require the Minister to be satisfied that the holder “attends” for at least 80 per cent of the contact hours scheduled) do not import or allow for any notion of deemed attendance if the decision-maker is satisfied that the circumstances for non-attendance are reasonably beyond the student's control (or exceptional). If the delegate or Tribunal is not satisfied that the holder actually attended for the requisite 80 per cent of contact hours scheduled then the prescribed circumstances exist and the visa must be cancelled.
43. In this case, because the applicant attended at an Immigration office in accordance with the notice under s.20 of the ESOS Act, automatic cancellation of his visa under s.137J was prevented. Had he not done so, while his visa would have been automatically cancelled he would have been able to seek revocation of the cancellation (one ground for which is that the breach was due to exceptional circumstances beyond his control (s.137L(i)(b)). Instead, because an automatic cancellation did not occur, it was for the Department to determine whether to issue a notice of intention to consider cancellation under s.119. It did so. The visa was cancelled. In carrying out its review the Tribunal had to be satisfied that condition 8202 was in fact breached. Thereafter, because of the operation of s.116(3) and Regulation 2.43(2), the Tribunal had no discretion as to whether or not to affirm the cancellation of the visa because of the circumstances of the applicant or reasons for breach. In light of this conclusion I turn to the specific grounds in the amended application.
…
45. In this case the Tribunal may be said to have failed to have regard to the medical evidence the applicant offered to the Tribunal. However such medical evidence (even that part of it that related to the semester in question) while purporting to provide a reason or excuse for non-attendance, was not “relevant” to the Tribunal's decision to affirm the decision of the delegate. (Chen at [22]). No medical evidence could have brought his attendance to a higher level than his actual attendance for the purposes of condition 8202. Further, contrary to the applicant’s contention, the Tribunal did not find that the medical certificates presented to it (as distinct from those submitted to AIT and the Department) were or may be bogus. Nor did it affirm the cancellation on that basis. It found that the certificates accepted by AIT were found to be bogus as was admitted by the applicant. It did not specifically address the genuineness of the certificates presented to it. It is not clear on the material before the Court that any of the certificates presented to the Tribunal (such as the stamped medical certificates from Dr L) had also been presented to AIT so that the Tribunal could be said to have regarded such certificates as bogus.
…
47. Nor did the Tribunal fall into jurisdictional error by an “emphasis” on the presentation of bogus documents. The Department did not cancel the applicant's visa under the section pertaining to “bogus” documents. The Tribunal did refer to the applicant’s admissions about “bogus” documents. However even if this part of the Tribunal's reasons for decision left open the possibility that it may have regarded the existence of genuine medical documents as potentially relevant to a consideration of whether condition 8202 was breached (as there is no clear statement to the contrary), the critical part of its reasons for decision, in which no error has been established, is its satisfaction that the applicant's level of attendance in the relevant semester was 56%, thus that condition 8202 was breached and that cancellation was mandatory. In these circumstances no unreasonableness has been established in the manner contended. Hence it is not necessary to determine the extent to which “unreasonableness” may give rise to a jurisdictional error. Ground 1 in the amended application does not establish jurisdictional error.
…
53. However, while I accept that there was such an exchange, it does not establish that the Tribunal ignored relevant considerations as contended. As explained above, the medical evidence offered by the applicant was not relevant to the only issue for the Tribunal, which was whether the applicant had achieved actual 80% attendance in the semester in issue. In those circumstances it was not necessary for the Tribunal to recognise or to investigate the “validity” or genuineness of the documents provided to it. Nor was it necessary for the Tribunal to have regard to the applicant’s personal circumstances as contended.”
It was submitted, having regard to that authority, that the Tribunal was not required to have regard to the medical evidence as it was not a relevant consideration and therefore it is not a basis upon which the Applicant can claim jurisdictional error. It was further submitted that the issue of "unreasonableness" simply does arise (see Zhang per Barnes FM at [45] and [47]).
In relation to the further argument concerning denial of procedural fairness arising out the physiotherapist's letter or a requirement to comply with s.359A of the Migration Act it was submitted that the findings in relation to the letter were simply part of the reasoning, conclusions and determinations of the Tribunal and could not be properly regarded as "information". Reliance was placed upon the decision of the Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 where Finn and Stone JJ state at [24] the following:-
“[24] As to the first of these, there is now a considerable body of case law concerned with the compass of the term “information” in its s 424A(1) setting. The following propositions emerge from it:
…
(iii) the word does not encompass the tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; BC200107472 at [25]; approved [2002] FCAFC 120; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282–4 [26]–[29].
[25] In the present matter, the tribunal made reference to two factual matters each of which involved an omission on the part of the appellant to take a particular course of action. Those matters were that: (i) he did not seek assistance from contacts either at the conference he attended or at his meeting with the Trades and Labour Council; and (ii) he did not apply for a protection visa until after he had attended the conference and only when his temporary business visa had expired. The tribunal found “this behaviour of significance”, its significance being that it was “not the behaviour of a person who fears persecution in his country of citizenship”.
[26] The matters seem obviously to have been referred to because of their perceived relevance to the ultimate question before the tribunal, hence the significance it attributed to the appellant’s “behaviour”. In our view, the knowledge of that behaviour which the tribunal derived from what had been provided to it, or done (in the case of the visa application) by, the appellant was properly characterised as information. It was knowledge acquired about circumstances having a particular factual character (that is they were circumstances involving inaction on the appellant’s part).[27] In Paul’s case Allsop J observed (Heerey J agreeing) that (at FCR 428 [95]; ALD 317):
… I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural Affairs …that the information of which particulars must be provided is information or knowledge that has come to or been gained by the tribunal and is not the subjective appraisal or thought process of the tribunal … However, the distinction can become very fine. If the subjective thought processes of the tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of s 424A(1)(b)) of information (for s 424A(1)(a)), requiring the tribunal to give particulars of that information and to explain its relevance.
[28] In the present case the tribunal’s subjective thought processes explain both why it isolated and referred to the evidence concerning the appellant’s behaviour and why it attributed to that evidence the significance it did. It was perceived to be relevant to the decision it had to make. Those thought processes, though, did not rob the tribunal’s knowledge of the appellant’s behaviour of its character as “information”. Rather, as Allsop J suggested in the above passage, those processes indicated why the information was considered relevant.
[29] This conclusion brings into focus the second of the s 424A(1) requirements: “Was the information the reason or a part of the reason for its decision?” We cast the matter in this fashion because we agree with the majority view in Paul’s case that, though the subsection addresses the matter prospectively (that is “the tribunal considers would be the reason etc”), the question of compliance with s 424A(1)(a) is to be judged retrospectively in light of the tribunal’s actual decision: see Paul at FCR 427–8 [94]; and cf Beaton-Wells, “Disclosure of Adverse Information to Applicants under the Migration Act 1958” (2004) 11(2) AJ Admin L 61 at 64–5.”
Reference was also made to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.
It was further argued in the alternative that s.359A does not apply to information that the Applicant gave for the purpose of the application. Reliance was placed upon the decision of Heerey J in SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42] and [43] where the court states:
“42 Even if the "information" here were caught by s 424A(1), the exception in s 424A(3)(b) would apply. If the "information" is given by the applicant at the Tribunal hearing, it is excluded from the operation of subs (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said:
"While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal’s reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source."
This construction is consistent with the purpose of providing procedural fairness in Tribunal reviews (albeit in exclusively statutory form: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61) which underlies Div 4 of Pt 7. If an applicant "gave" the "information" for the purpose of the Tribunal review application (in contrast to SAAP, where the Tribunal had obtained the information from a witness other than the applicant) that is something necessarily within the knowledge of the applicant himself. It is not unfair for the Tribunal to then make such use of the information as it thinks fit.
43 To conclude that an applicant "gave" information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant. Information is equally given if it comes in response to questioning by the Tribunal.”
Reasoning
In my view the First Respondent's submissions are correct.
I accept and apply the helpful summary of the relevant authorities set out by Barnes FM in Zhang. Further, and in the alternative, in any event I am not satisfied there is any jurisdictional error arising from the manner in which the Tribunal dealt with the medical certificate, nor indeed in the manner in which it undertook, albeit perhaps unnecessarily, the task of analysing the somewhat inadequate records provided by the education provider. The Tribunal, it could well be argued, has probably gone further than it needed to do as a matter of law, having regard to the relevant authorities. Nevertheless, by doing so it has not committed jurisdictional error.
Further, the conclusion of the Tribunal in relation to the purported "medical certificate" was free of error. The document did no more than suggest certain limitations and did not provide a basis upon which the Applicant could be absent or receive special consideration as a result of an illness.
Applying the authorities to which reference has been made by the First Respondent and in particular SZEEU and SZCJD, I am satisfied that the Tribunal, when considering the certificate, was merely considering information the Applicant gave for the purpose of the application before the Tribunal.
As it happens, the Applicant in any event, in response to a further invitation under s.359A of the Migration Act, made reference to the medical certificates which had been previously provided.
As indicated earlier in this judgment, I do not see any defect in the s.20 notice, and I am satisfied that there is no other basis for a finding of jurisdictional error. In any event, I note and apply the reasoning of the Full Court of the Federal Court in the recent decision of Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 at [39] - [44].
In this case the decision is a decision of the Tribunal to affirm a cancellation pursuant to s.116 of the Migration Act and even if there was an invalidity in the s.20 notice, it would not give rise to any basis upon which this court could find jurisdictional error in the exercise of the Tribunal's powers when considering cancellation of the visa under s.116 of the Migration Act.
Applying that authority to the present application, I am satisfied there is no lawful basis upon which the court may find jurisdictional error based upon any claimed suggestion that the s.20 notice was misleading or deceptive.
It follows therefore the application should be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 6 October 2006
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