ATIF v Minister for Immigration and Anor
[2013] FCCA 1796
•7 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATIF v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1796 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider whether a notice under s.20 of the Education Services for Overseas Students Act 2000 had been validly issued and found that the applicant had been an accepted student of a particular education provider. WORDS AND PHRASES – “Accepted student”. |
| Legislation: Migration Act 1958, ss.137J, 137K, 137L, 359A Migration Regulations 1994, condition 8202 of sch.8 Education Services for Overseas Students Act 2000, ss.5, 19, 20 |
| Cases cited: Hossain v Minister for Immigration & Citizenship (2010) 183 FCR 157 Ding v Minister for Immigration & Citizenship (2012) 266 FLR 196 |
| Applicant: | MUHAMMAD ATIF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 525 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 21 October 2013 |
| Date of Last Submission: | 21 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 525 of 2013
| MUHAMMAD ATIF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan who was granted a Student (Class TU) Subclass 572 Vocational Education and Training Sector visa on 7 April 2010. On 2 November 2011 that visa was cancelled automatically pursuant to s.137J of the Migration Act 1958 (“Act”). On 14 November 2011 the applicant applied to the first respondent (“Minister”) for revocation of the cancellation of his visa but on 20 December 2011 a delegate of the Minister decided not to revoke it. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Subclass 572 visas are subject to condition 8202 which is found in sch.8 to the Migration Regulations 1994 (“Regulations”). At the time the applicant was granted his visa condition 8202 relevantly provided:
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services 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;…
The provisions relating to the automatic cancellation of student visas are found in subdiv.GB of div.3 of pt.2 of the Act. The relevant sections of the Act relevantly provide:
137J Non‑complying students may have their visas automatically cancelled
(1)This section applies if a notice is sent to a non‑citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non‑citizen (even if the non‑citizen never receives the notice).
(2)The non‑citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non‑citizen complies with the notice; or
(b)the non‑citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;
makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.
137K Applying for revocation of cancellation
(1)A non‑citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation. …
137L Dealing with the application
(1)On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
…
(b)that the breach was due to exceptional circumstances beyond the non‑citizen’s control; …
(2)However, the Minister must not revoke the cancellation on the ground that the non‑citizen was unaware of the notice or of the effect of section 137J. …
On 4 October 2011 s.19 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) relevantly provided:
19 Giving information about accepted students
...
(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 5 of the ESOS Act defines “accepted student” as:
accepted student of a registered provider means a student (whether within or outside Australia):
(a)who is accepted for enrolment, or enrolled, in a course provided by the provider; and
(b)who is, or will be, required to hold a student visa to undertake or continue the course.
Section 20 of the ESOS Act requires an education provider to send an accepted student a written notice if the student has breached a prescribed condition of his or her student visa. On 4 October 2011 it relevantly provided:
20 Sending students notice of visa breaches
(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
…
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and
…
(d) set out the effect of sections 137J and 137K of that Act.
…
Background facts
Department
On 7 April 2010 the applicant was granted a Student (Class TU) Subclass 572 Vocational Education and Training visa and first travelled to Australia on 24 April 2010. On 4 October 2011 the applicant’s education provider, Group Colleges Australia Pty Ltd (“Group Colleges”), certified that he had not achieved satisfactory course progress in his Diploma of Information Technology (“IT”) (General) as required by s.19 of the ESOS Act and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (“National Code”). On the same day Group Colleges issued the applicant with a written notice under s.20 of the ESOS Act and invited him to attend an office of the Minister’s department (“Department”). As the applicant did not attend on the Department within the prescribed period, his visa was automatically cancelled under s.137J of the Act on 3 August 2011.
On 14 November 2011 the applicant submitted a request for revocation of the automatic cancellation of his visa. He stated in his request that he had had some mental problems and could not achieve good progress in his studies.
On 15 November 2011 the Department wrote to Group Colleges seeking information about the applicant’s studies. Group Colleges replied stating that the applicant’s enrolment had been cancelled for poor academic progress as he had failed half of his subjects and/or half of his subjects in two consecutive terms. Group Colleges enclosed a copy of a Notice of Intention to Report dated 20 July 2011 which had been sent to the applicant, the applicant’s academic record, two warning letters sent to the applicant and information about the applicant’s attendance which indicated that it had fallen from seventy-six per cent in late 2010 to twenty-six per cent in mid-2011.
On 17 November 2011 the applicant provided a submission to the delegate stating that he was enrolled in a “Certificate IV in Business Management” course at Grand Academy. He submitted that Group Colleges had cancelled his enrolment without notifying him and that it had been Grand Academy who informed him that his visa had been cancelled.
On 20 December 2011 the delegate decided not to revoke the cancellation of the applicant’s visa and on 27 December 2011 the applicant sought review of that decision.
Tribunal
On 7 January 2013 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to provide information which might support a revocation of the visa cancellation and to comment on or respond to information that it considered would be the reason or part of the reason for affirming the delegate’s decision. The applicant replied on 22 January 2013 and, amongst other things, submitted that he had been unable to achieve satisfactory attendance in his original course because he had suffered from depression and home sickness. He submitted that his non-compliance with condition 8202 had been caused by exceptional circumstances beyond his control.
The applicant appeared before the Tribunal on 11 February 2013 and gave the following evidence:
a)after arriving in Australia he completed an English course and was then admitted to an IT course. At first the IT course was easy but later it became beyond him. He initially stated that he could not understand his course because of his depression and tension but later said that he suffered from depression because he could not understand his course;
b)he had not wanted to study IT but his father had insisted he do so. Because he did not understand his classes, he became depressed and did not feel like leaving his house, which led to the decline in his attendance;
c)he received two warning letters from Group Colleges. After receiving the first one he spoke to them to explain his difficulties with the course and his depression. He spoke to a teacher two or three times about his difficulties;
d)Group Colleges told him to see a doctor and get a medical report but he saw a pharmacist instead. He did not see a doctor about his depression because it took two or three months to get an appointment;
e)after receiving the second warning letter, he decided that if he changed courses, his depression would disappear. He spoke to his father who allowed him to change courses. As Group Colleges did not offer business courses, in July or August 2011 he changed to a business course at a different college;
f)his new college told him that they would inform Group Colleges and the Department of his move and that his old Confirmation of Enrolment would be cancelled once he received his new one. He told Group Colleges that he was transferring to another college but did not receive a release letter from them; and
g)his visa was cancelled after he had been at the new college for three or four months.
The Tribunal’s decision and reasons
The Tribunal found that the applicant had breached condition 8202. In this regard, the Tribunal referred to the 4 October 2011 certification that the applicant had not achieved satisfactory course progress for the Diploma of Information Technology (General) pursuant to s.19 of the ESOS Act and standard 10 of the National Code. It did not accept that Group Colleges had failed to provide the applicant with notice of the cancellation of his enrolment or that the applicant had not known about the cancellation. In this connection, the Tribunal referred to the correspondence which Group Colleges sent to the applicant and his confirmation that he had received the two warning letters before changing education providers.
Having considered the applicant’s claims individually and in combination, the Tribunal was not satisfied that his breach of condition 8202 had been caused by exceptional circumstances beyond his control. In this regard:
a)the Tribunal referred to the applicant’s complaints about the teaching methods at Group Colleges but did not accept that his dissatisfaction with them prevented him from making satisfactory academic progress or from attending the course;
b)in the absence of documentary evidence, the Tribunal did not accept that the applicant had suffered from depression or home sickness or that such illness had affected his academic progress. In this connection, it noted that Group Colleges had asked the applicant to provide medical evidence and that he had not done so despite receiving two warning letters and being aware of the possibility of being reported to the Department. It also did not accept his explanation of why he had not sought professional help. In the Tribunal’s view, if the applicant had suffered mental health problems or depression, he would have sought professional support, even if it took him two months to get an appointment;
c)the Tribunal accepted the applicant’s evidence that he had found the IT subjects difficult to understand and that the course had been unsuitable. It also accepted that the applicant had enrolled in the course because his father wanted him to study IT and that after failing the subjects in one semester he thought he would have one more try. It found that the applicant’s lack of attendance and dislike of the course were the real reasons for his unsatisfactory course progress but did not accept that this dislike or lack of understanding of the course resulted in him developing depression. Further, the Tribunal did not consider that the difficult or unsuitability of the course had been an exceptional circumstance; and
d)the Tribunal considered the applicant’s evidence that at the time of the certification he had commenced study with another provider but had not obtained a release letter from Group Colleges before transferring. It found that until the applicant was released by Group Colleges and no longer enrolled in its course, he was required to maintain satisfactory course progress and attendance in his IT course.
Proceedings in this Court
In his amended application, the applicant alleged:
1.The Tribunal misdirected itself as to the applicable law.
Particulars
The Tribunal considered that it could not question the validity of the purported s 20 notice and thus failed to properly consider whether the Applicant was an accepted student of the education provider at the time the notice was sent, and the consequences in law of a finding that he was not an accepted student at that time.
2.If the Tribunal did make a finding that the Applicant was an accepted student of the education provider at the time the s 20 notice was sent, then it erred in law in making that finding.
Particulars
The Tribunal considered that the only consideration in determining whether the Applicant was an accepted student of the provider at the relevant time was whether or not the provider had issued a “release letter”. There was no legal basis for restricting the Tribunal’s consideration of the question in this way.
Ground 1
In para.6 of its reasons the Tribunal said:
The issue for the Tribunal’s consideration under s.137L(1) of the Act is whether, on the assumption that the applicant’s visa was cancelled under s.137J, the cancellation should be revoked; questions as to the validity or otherwise of the s.20 notice are not part of that task …
The applicant submitted that that statement was too broad and that although it was true that the Tribunal could not question the factual basis of the condition 8202 certification, it was nevertheless obliged to consider whether he had been an “accepted student” of Group Colleges when that provider sent the notice under s.20 of the ESOS Act on 4 October 2011. The applicant submitted that the validity of the s.20 notice, on which the validity of the cancellation of his visa rested, depended on him having been an accepted student of Group Colleges at the time the notice was given and that the Tribunal erred by not considering whether he had been.
If the notice of 4 October 2011 was not an effective notice under s.20 of the ESOS Act, then the applicant’s visa was not automatically cancelled: Hossain v Minister for Immigration & Citizenship (2010) 183 FCR 157 at 162 [28]. Whether a person is an “accepted student” of an education provider for the purposes of a notice under s.20 of the ESOS Act is determined as at the date of that notice: Ding v Minister for Immigration & Citizenship (2012) 266 FLR 196 at 202 [24]. Whether at any given point a person meets the criteria for “accepted student” of a particular education provider is a matter of fact for the Tribunal to determine.
The Tribunal did not expressly consider whether the applicant had been an “accepted student” of the relevant education provider when the s.20 notice issued, as it had in Ding’s case, and if its statement quoted above at [18] suggested that it could not consider whether the applicant had been an “accepted student” of Group Colleges at the time of the s.20 notice, it was in error. However, I am not persuaded that the Tribunal did mean that. In para.48 of its reasons the Tribunal said:
The applicant claims that by the time of the certification, he was studying with another education provider. However, he also informed the Tribunal that he did not obtain the release letter from the college before transferring to another course. The Tribunal finds that until the applicant was released by his education provider and no longer enrolled in that course, he was required to maintain satisfactory course progress and attendance with respect to the IT course.
The inference to be drawn from that statement is that the Tribunal considered that the applicant was still an “accepted student” of Group Colleges on 4 October 2011, albeit that it did not say that in so many words. The Tribunal should be understood to have been saying that the applicant remained an “accepted student” of Group Colleges until his enrolment in the Diploma of Information Technology (General) course ceased.
There was no issue before the Tribunal that the applicant was anything other than an “accepted student” of Group Colleges in 2010 and the first half of 2011 and no evidence to suggest that, as far as Group Colleges was concerned, as at 4 October 2011 he was no longer enrolled in the Diploma of Information Technology (General) course and not an “accepted student”. The applicant did not suggest that he could not have continued to study at Group Colleges in the second half of 2011 if he had wanted to, notwithstanding his lack of progress and poor attendance. Indeed Group Colleges’ letter to the applicant dated 20 July 2011, which advised him that he should continue studying even if he were to pursue an appeal against their decision to report him to the Department, indicates that he remained enrolled in the course even if had not taken any particular subject.
I therefore conclude that the Tribunal’s statement quoted above at [18] was intended to refer only to the factual basis of the condition 8202 certification and did not represent a failure to consider whether the applicant was still an “accepted student” of Global Colleges on 4 October 2011. I conclude that that issue was addressed correctly, if implicitly, in para.48 of the Tribunal’s reasons.
Ground 2
The applicant’s other argument was that if the Tribunal had concluded that he remained an “accepted student” because there had been no “release letter”, it erred. He referred in this regard to the statement at para.48 of the Tribunal’s reasons quoted above at [21].
Contrary to the allegation in this ground of the application, the Tribunal was not of the view that “that the only consideration in determining whether the Applicant was an accepted student of [Group Colleges] at the relevant time was whether or not [Group Colleges] had issued a ‘release letter’”. Rather, it referred to the applicant remaining enrolled with Group Colleges until he was released from the course, which was no more than a reference to the situation of Group Colleges terminating the enrolment and thereby releasing the applicant from further obligations in respect of it.
The applicant suggested that he was not an “accepted student” of Group Colleges in the second half of 2011 because he had enrolled at Grand Academy. Although it would appear not to be the intention of the system of which the ESOS Act is a part, the applicant did not identify why it was not possible for a student to be enrolled in courses with more than one education provider and thus be an “accepted student” of more than one provider. Nor did he identify why a provider’s enrolment of a student could be terminated without any action on its part. In those circumstances I do not infer that the applicant’s enrolment with Grand Academy had the effect of terminating his enrolment with Group Colleges and thus his status of “accepted student” with the latter institution. The Tribunal was therefore correct to proceed on the basis that the applicant’s enrolment at Grand Academy did not terminate his enrolment at Group Colleges and that something more was required.
That being so, and given that there was no evidence before it that the applicant had himself terminated his enrolment with Group Colleges, the Tribunal’s implicit conclusion, that on 4 October 2011 the applicant was still an “accepted student” of Group Colleges because that provider had not terminated his enrolment, was a finding of fact which was open to it. As such, it is not reviewable in these judicial review proceedings.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 7 November 2013
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