Atta v Minister for Immigration
[2012] FMCA 758
•6 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ATTA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 758 |
| MIGRATION – MRT decision – cancellation of student visa – failure to achieve attendance requirements – effect of certificate of education provider – whether non‑compliance was due to exceptional circumstances beyond the visa holder’s control – no error of law revealed in Tribunal’s reasoning – application dismissed. |
| Migration Act 1958 (Cth), ss.116, 116(1)(b), 116(3) Migration Regulations 1994 (Cth), regs.2.43(2), 2.43(2)(b), 2.43(2)(b)(ii), Sch.8 item 8202 |
| Asif v Minister for Immigration & Citizenship (2011) 197 FCR 235, [2011] FCA 1104 Leung v Minister for Immigration & Citizenship (2010) 114 ALD 255, [2010] FCA 268 Maan v Minister for Immigration & Citizenship (2009) 179 FCR 581, [2009] FCAFC 150 Minister for Immigration & Citizenship v Brar (2009) 175 FCR 432, [2009] FCAFC 53 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 Suh v Minister for Immigration & Citizenship (2009) 175 FCR 515, [2009] FCAFC 42 SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487, [2008] FCAFC 91 |
| Applicant: | WASIF ATTA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 338 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 21 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr H P T Bevan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 338 of 2012
| WASIF ATTA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This judgment explains why I have not found grounds for setting aside a decision of the Tribunal, which affirmed the cancellation of Mr Atta’s student visa under s.116 of the Migration Act 1958 (Cth). The visa had been issued on 28 April 2009, and was cancelled on 22 September 2010. The visa was due to expire on 30 August 2012, which has now passed. However, the adverse decision may affect Mr Atta’s eligibility for future visas, and the Minister does not dispute that there is continuing utility in a consideration of the validity of the cancellation decision.
Mr Atta was assisted by a solicitor to file his application for judicial review on 15 February 2012, and the solicitor remained on the record until filing a notice of withdrawal on 10 August 2012, having given notice to Mr Atta of an intention to do this on 3 August 2012. Neither the solicitor nor Mr Atta has filed an amended application or written submissions, although directions allowing these steps were given at the first court date on 15 March 2012, when the matter was listed for hearing on 21 August 2012.
At the start of the hearing, Mr Atta applied to adjourn the matter to allow him to look for another solicitor, but I refused his application. I considered that he had been given sufficient time to find and fund appropriate legal representation for a hearing of which he had been aware for many months.
Mr Atta’s class TU subclass 573 visa was issued subject to a condition that he ‘meet course requirements’ in terms of condition 8202. Relevantly, this included the condition:
8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)…
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)…
(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 Services for Overseas Students Act 2000;
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
(4)…
Mr Atta enrolled in a 15 week ‘mixed English and Academic program’ at Griffith University lasting from 22 June 2009 until 10 October 2009. He did not attend during the orientation first week, and his actual attendance during the program was calculated by the University under its attendance rules and policies as “67% over 14 weeks” or 76% after taking into account two medical certificates. After being given a series of warning letters and rights of appeal, the University issued a certificate on 2 November 2009 in the following terms:
Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migration Regulations 1994
Griffith University (GU [00233E] (trading as Griffith University) on 2 November 2009 certifies Mr Wasif ATTA, for course Mixed English and Academic Program, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).
The statutory notice to which this was attached warned Mr Atta that there would be an automatic cancellation of his visa unless he attended an office of the Department of Immigration to explain his breach of his visa conditions. Mr Atta did this, but on 4 November 2009 he was given notice that the Department might cancel his visa under s.116(1)(b) and (3) of the Migration Act. After receiving his submissions, such a decision was made on 22 September 2010.
Mr Atta then sought review by the Tribunal. He explained his poor attendance record at a hearing of the Tribunal held on 24 November 2011, and in subsequent responses to an invitation to comment on information obtained by the Tribunal from the University. The Tribunal then made a decision on 17 January 2012, which affirmed the cancellation.
The relevant provisions of the Act and Regulations were accurately recited and explained by the Tribunal at the start of its statement of reasons:
RELEVANT LAW
6.Section 116(1)(b) gives the Minister power to cancel a visa where the visa holder has not complied with a condition of the visa. It relevantly states:
116 Power to cancel
(1)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; or
…
(3)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.
7.Regulation 2.43 of the Migration Regulations 1994 (the Regulations) sets out the prescribed circumstances referred to in s.116(3). For Student visas which were in force on or after 8 October 2005, r.2.43(2) relevantly provides:
2.43 Grounds for cancellation of visa (Act, s116)
…
(2)For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b) in the case of a Student (Temporary) (Class TU) visa:
(i)that the Minister is satisfied that the visa holder has not complied with conditions 8104 or 8105 (if the condition applies to the visa); or
(ii)that the Minister is satisfied that:
(A)the visa holder has not complied with condition 8202; and
(B)the non‑compliance was not due to exceptional circumstances beyond the visa holder’s control.
8.The effect of s.116(1)(b) and r.2.43(2)(b)(ii) is that the visa must be cancelled if the Tribunal is satisfied 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.
9.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 accurately identified relevant jurisprudence on these provisions in their application to the formulation of condition 8208 which applied to Mr Atta. Previous versions of the condition had given rise to debate about legislative validity and the extent to which decision‑makers could ‘go behind’ the certificate of the education‑provider (c.f. Minister for Immigration & Citizenship v Brar (2009) 175 FCR 432, [2009] FCAFC 53). However, the effect of the presently relevant version was established by the Full Court in Maan v Minister for Immigration & Citizenship (2009) 179 FCR 581, [2009] FCAFC 150:
44It follows from an ordinary reading of Sch 8, cl 8202(3) of the Migration Regulations that the Tribunal was correct in finding that the VIT certification constituted non‑compliance by the appellant with his visa conditions. In so finding, the Tribunal (and the Federal Magistrate) correctly applied Sch 8, cl 8202(3) of the Migration Regulations.
45The fact that it is the certification by the educational institution as to breach of its attendance policies which constitutes the breach by the student of the visa clearly imposes substantial responsibilities on the educational institutions. These responsibilities are reinforced by the criminal liability imposed on individuals for providing false or misleading information in relation to visa holders pursuant to ss 19 and 20 of the ESOS Act: s 108 of the ESOS Act.
Their Honours also provided guidance on the test of whether a breach was due to exceptional circumstances:
51Although the expression “exceptional circumstances” is not defined in the Migration Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly [2000] QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
(cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]‑[25]).
The Tribunal also noted a binding direction given by the Minister. This required decision‑makers “to have due regard” to any policy advice from a specified section of the Department of Immigration about political upheaval or natural disaster in a particular country, and to any “written advice” from the Department of Education or an education provider indicating concerns about the process leading to the issuing of the certificate of breach. In the present case, there was no such advice relating to Mr Atta’s circumstances. However, the Tribunal recognised that the direction also allowed the exercise of an unfettered power to apply the language of reg.2.43(2)(b)(ii) according to its ordinary language. The relevant paragraph of the Minister’s direction was:
6.Decision‑makers must consider all of the facts of a case in total. The weight to be given to relevant matters is a matter for decision‑makers. Decision‑makers must come to their own view as to whether they are satisfied that the non‑compliance was not due to exceptional circumstances beyond the visa holder’s control.
The Tribunal also accurately noted the effect of the double negative used in the regulation:
22.If the Tribunal is satisfied that the applicant did not comply with condition 8202, but is not satisfied that it was not due to exceptional circumstances beyond the applicant’s control, the prescribed circumstances under which the visa must be cancelled under s.116(3) do not exist. The absence of prescribed circumstances leaves intact the power in s.116(1), under which the Tribunal may cancel the visa. This requires the Tribunal to decide whether to cancel the visa having regard to all the circumstances.
(emphasis in original)
Turning to the evidence in the present case, the Tribunal gave short reasons for deciding that Mr Atta had not complied with the visa condition. It said:
51.The Tribunal finds that on 2 November 2009, the applicant’s education provider certified that he had not achieved satisfactory course attendance in the Mixed English and Academic Program course. On the basis of the certification from the education provider, the Tribunal finds that the applicant did not comply with condition 8202(3)(b). Therefore, the Tribunal finds that he has breached condition 8202.
The Tribunal then addressed the reasons for Mr Atta’s breach. It summarised his evidence about this, in a manner which is sufficient for the purposes of the present judgment:
54.The applicant claims that his non‑compliance with condition 8202 was due to a combination of factors. He states that initially, he felt homesick and had trouble adapting to a new environment. He was often late for class and he was not aware of how this affected his attendance. He claims he had migraines and headaches because of stress. He was worried about his family in Pakistan following the floods that occurred there. He also claims his education provider did not follow the proper processes, in that: it did not accurately monitor his course attendance; did not adequately warn him about his unsatisfactory attendance; did not provide him with counselling or opportunities to correct his attendance. The Tribunal considers each of these claims in turn.
The Tribunal then considered the separate strands of Mr Atta’s claims, and made the following findings:
·It found that Mr Atta’s homesickness and difficulty in adapting to a new environment was not an “exceptional circumstance”, and also said “to a large extent, they are within the control of the applicant” (paragraph 55).
·It found that Mr Atta’s lateness in arriving for class was “within the applicant’s control” (paragraph 56).
·It found that Mr Atta’s worry about his family in Pakistan during flooding and instability there in 2009 was not “an exceptional circumstance beyond the applicant’s control”, because “it is a natural consequence of the decision to study overseas that the applicant would not be near his family if they had difficulties” (paragraph 57).
·It did not accept that Mr Atta’s non‑compliance with attendance requirements “was caused by a medical condition beyond his control”, taking into account “the insufficient medical evidence and the applicant’s own evidence about what he was able to do” (paragraphs 58‑61).
·It did not accept that there was a failure by the education provider to follow “the proper processes”. In this respect it found that the available medical evidence had been considered, that Mr Atta had been given three warning letters and notice of an intention to report, that Mr Atta had been allowed an opportunity to appeal and his submissions had been considered, that Mr Atta had been given sufficient information about how his attendance would be calculated and on his ongoing attendance figures, that it had been within Mr Atta’s control to have obtained more information by attending the orientation session, and that the education provider had not made any error by sending its intention to report letter before the end of the course term (paragraphs 60‑69).
·The Tribunal expressly considered Mr Atta’s allegation that his attendances had been miscalculated by the University, and said:
69.Finally, the applicant claims that his attendance was over 80% but he has provided no further evidence to support this claim. The Tribunal prefers the more detailed evidence from the education provider about the applicant’s attendance and how it was calculated. The applicant has not been able to identify any verifiable errors in how the education provider calculated his attendance.
The Tribunal concluded:
71.The Tribunal has considered the applicant’s claims individually and in combination as to why he did not achieve satisfactory course attendance. On the evidence before it, the Tribunal is satisfied that the applicant’s breach of condition 8202 was not due to exceptional circumstances beyond his control.
72.The Tribunal is satisfied that the applicant has not complied with condition 8202 and the ground for cancellation in s.116(1)(b) therefore exists. The Tribunal is further satisfied that the non‑compliance was not due to exceptional circumstances beyond the applicant’s control. In accordance with s.116(3) of the Act such circumstances are prescribed circumstances in which the visa must be cancelled. The Tribunal affirms the decision under review to cancel the applicant’s Subclass 573 visa.
Mr Atta’s grounds for seeking judicial review were contained in his application filed with the assistance of his former solicitor:
1.The Tribunal failed to exercise jurisdiction.
Particulars
(a)The Tribunal failed to have regard to evidence provided by the applicant to it in relation to his attendance.
(b)The Tribunal failed to make appropriate enquiries of his education provider.
2.The Tribunal misapplied the law in assessing the appeal.
Particulars
(a)The Tribunal failed to comply with its obligation under Policy Direction No.38 issued pursuant to Section 499 of the Act.
I do not consider that Ground 1 is established in either of its wings.
I am not satisfied that the Tribunal failed to have regard to Mr Atta’s claims that the University miscalculated his attendance record. In his oral submissions, Mr Atta criticised the Tribunal’s reasoning at paragraph 51 for failing to do this before finding that breach of condition 8202 was established. However, the Tribunal was bound by the language of the condition, as interpreted in Maan, to find that a breach was conclusively established by the University’s certificate. Mr Atta had not raised any challenge to its formal validity, and I can see no basis allowing the Tribunal to ‘go behind’ the certificate before making its finding of breach of condition for the purposes of reg.2.43(2)(b)(i).
The Tribunal did examine Mr Atta’s contentions of miscalculation by the University in the course of considering whether it followed ‘proper processes’ in the course of applying reg.2.43(2)(b)(ii). It indicated briefly at paragraph 69 that it preferred the “more detailed evidence” from the University about his attendance and how it had been calculated. I am unable to detect any material error of fact, law or jurisdiction, affecting this part of its reasoning.
The contention in the second particular of Ground 1, that the Tribunal failed to make “appropriate enquiries” of the University, is unexplained, and I am unable to give it any substance. The Tribunal showed earlier in its statement of reasons that it had considered the information it obtained, and I am unable to discern anything which could give rise to an exceptional obligation to make further inquiries (c.f. confirmed Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 at [1] and [25], Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [1], [20] and [86]). No specific additional inquiry was requested by Mr Atta or his migration agent, and Mr Atta has not pointed to anything which it should have discovered by undertaking a further inquiry.
I am therefore unpersuaded by Ground 1.
Ground 2 is not established, in terms of its particulars. The Tribunal did have regard to the Minister’s binding direction. It correctly noted the absence of either of the specific types of advice to which it was required to have ‘due regard’. It also correctly noted that the direction expected that a decision‑maker not at the primary level would have a general duty to consider all the facts of the case, and to arrive at its own view as to satisfaction in terms of reg.2.43(2)(b)(ii). The Tribunal then considered all of Mr Atta’s claimed circumstances, and was positively satisfied that they did not come within that provision. I can detect no error of law by reason of its following this course.
Although not raised by Mr Atta, counsel for the Minister drew my attention to a difference of opinion in the Federal Court. In Leung v Minister for Immigration & Citizenship (2010) 114 ALD 255, [2010] FCA 268, Lander J said:
30Assuming that the MRT did proceed upon the unstated assumption that the appellant’s grandmother’s illness and later death, and the effect upon the appellant’s health were exceptional circumstances, the MRT needed to consider whether the appellant’s non‑compliance with Condition 8202 was due to those exceptional circumstances and, if it was, whether the exceptional circumstances were beyond the appellant’s control.
31The MRT has not made any finding as to whether the non‑compliance with Condition 8202 was due to the exceptional circumstances. It proceeded, as I have said after accepting the appellant’s claims, to consider the question of control.
32Mr Markus, who appeared for the respondent, contended that the MRT proceeded in the way that it did upon the most beneficial view to the appellant. That might be so. However, the MRT should have made findings as to whether it accepted that the appellant had made out “exceptional circumstances”; and whether it accepted that the appellant’s non‑compliance with Condition 8202 was due to those exceptional circumstances. Lastly, it should have addressed the question of control.
33It is necessary to proceed in that logical fashion because each finding informs the issues that follow. A finding needs to be made whether the circumstances are exceptional. Next, a finding needs to be made whether those exceptional circumstances were the reason why the visa holder failed to comply with Condition 8202 and the particular failure. Once those findings are made the MRT can address the final issue, which is whether the non‑compliance was due to exceptional circumstances beyond the visa holder’s control in the light of its previous findings of facts.
In a later case, Asif v Minister for Immigration & Citizenship (2011) 197 FCR 235, [2011] FCA 1104, Gray J disagreed:
33In the present case, the Tribunal did all three of those things. First, it summarised the circumstances relied on by the appellant, made its findings as to whether they existed or not and determined that only one of those circumstances was exceptional. That circumstance was the civil unrest in the appellant’s home town in Pakistan. The Tribunal then found that this circumstance was beyond the appellant’s control. It then determined that the sole exceptional circumstance was not a cause of the appellant’s failure to comply with condition 8202, because his failure to re‑enrol was caused by other intervening factors that were within his control.
34The only thing that the Tribunal did not do in the present case was to express its findings in the order suggested by Lander J in Leung. As his Honour put it, the second step should have been a determination as to causation and the third step should have been concerned with control.
35I confess to having difficulty following the reasoning of Lander J in Leung. It is not apparent to me why his Honour considered it necessary to deal with the elements in the order he set out, or how it is that each finding informs the issues that follow. There are three issues for determination. If the Tribunal is not satisfied as to any one of those three issues, the decision‑maker is bound to cancel the visa. On this basis, it would be open to the Tribunal to adopt the course of going directly to the issue of control. If, on the facts of a particular case, the Tribunal determined that none of the circumstances was beyond the control of the visa holder, it would be unnecessary to determine whether any of the circumstances was exceptional, or whether any causal relationship existed between any of the circumstances and the failure to comply with condition 8202. Alternatively, in an appropriate case, the Tribunal might just as well go to the question of causation first, to determine what were the circumstances that caused the failure to comply with condition 8202, before deciding which of those circumstances were beyond the control of the visa holder and then looking at the question whether any of those circumstances was exceptional. In my view, it is not possible to dictate to the Tribunal the order in which it should consider the elements raised by reg 2.43(2)(b)(ii)(B) of the Migration Regulations. The order in which the Tribunal determines those elements will be a matter for it, in the circumstances of the particular case.
(emphasis added)
Both of these judgments were given in the exercise of the Federal Court’s appellate jurisdiction, and I am bound to apply the most recent opinions of Gray J (see SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487, [2008] FCAFC 91 at [42], and Suh v Minister for Immigration & Citizenship (2009) 175 FCR 515, [2009] FCAFC 42 at [29]).
Moreover, the flexibility recognised by Gray J in the application of the composite expression “not due to exceptional circumstances beyond the visa holder’s control” appears to me to accord with the variety of cases in which decision‑makers might be required to apply reg.2.43(2)(b)(ii), and the rolled up manner in which the regulation has been formulated. In my opinion, I am bound to uphold reasoning by a Tribunal which has achieved satisfaction in terms of the regulation by reference to any one or more of the elements in this test, and not to find material error of law because other elements might not have been explicitly and separately addressed in a particular sequence before arriving at that satisfaction.
In the present case, a fair reading of the Tribunal’s statement of reasons shows that, in effect, it dealt with the claimed circumstances in three different ways:
i)The Tribunal was satisfied as to the existence of reasons for Mr Atta’s deficiencies in attendance relating to his mental upsets resulting from separation from his family and home environment, but regarded these circumstances as not “exceptional”, “in the sense of being out of the ordinary course, unusual, special or uncommon” in the range of difficulties faced by international students in Australia. It also thought that they were within his control, in the sense that they were the consequence of his deciding to come to Australia for study.
ii)The Tribunal separately considered Mr Atta’s absences due to late attendance and medical conditions. Its acceptance of the claimed circumstances was qualified by the absence of evidence, but, to the extent that they existed, the Tribunal found that they were not beyond his control.
iii)The Tribunal separately considered Mr Atta’s complaints about various aspects of the University’s processes, and was not satisfied that they were established. It did not accept “that there were any problems with the process leading to the non‑compliance”, thereby excluding any causal elements. It also, perhaps consequently, thought that the University’s processes did not provide “exceptional circumstance beyond the applicant’s control”.
In my opinion, this reasoning did not reveal any error of law in the application of reg.2.43(2)(b)(ii), when considered in the light of the language of the regulation and judicial opinion binding upon me.
I have therefore found no jurisdictional error affecting the decision of the Tribunal, and have no power to set aside the decision and to remit the matter.
I have no powers to address various other concerns expressed by Mr Atta, including the effect of the cancellation on his plans for further study and residence in Australia. These are matters upon which he should take further advice from a migration agent.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 6 September 2012
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