Bernard v Minister for Immigration
[2011] FMCA 333
•10 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BERNARD v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 333 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal considered all claims made of exceptional circumstances beyond the Applicant’s control – whether the Migration Review Tribunal conducted a meaningful hearing in circumstances where the total hearing time was 47 minutes. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116(1)(b); 116(3); 360; 474 Migration Regulations 1994 (Cth), condition 8202(2)(a) of Schedule 8 Education Services for Overseas Students Act 2000 (Cth), s.20 |
| NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1 ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | MARY AGNIS BERNARD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 384 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 10 May 2011 |
| Date of Last Submission: | 10 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Turner (Turner Coulson) |
| Counsel for the Respondent: | Mr Kaplan |
| Solicitors for the Respondent: | Ms Whittemore (Sparke Helmore) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 384 of 2011
| MARY AGNIS BERNARD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) dated and handed down 8 February 2011. The Tribunal affirmed a decision of a delegate of the first respondent (“the Delegate”) to cancel the applicant’s Subclass 573 visa under s.116(1)(b) of the Migration Act 1958 (Cth) (“the Act”) for breach of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”) of the applicant’s visa.
The applicant is a citizen of India. The applicant was granted a Subclass 573 visa on 2 December 2008 and was enrolled at a registered education provider as a student (“the Applicant”).
Background
The Applicant arrived in Australia on 25 December 2008, having departed legally from India on a passport issued in her own name and a Subclass 573 Higher Education Sector visa, issued on 2 December 2008.
On 2 September 2010, the Delegate completed a Form 1099 – Notice of Intention to Consider Cancellation alleging a breach of condition 8202(2)(a) of her visa. This form was signed by the Applicant verifying that notice had been received on 2 September 2010. The Applicant provided an undated letter to the Department in response to the Notice of Intention to Consider Cancellation in which she alleged various exceptional circumstances beyond her control as the reasons for her breach of condition 8202(2)(a).
On 16 September 2010, the Applicant’s visa was cancelled by the Delegate on the basis that the Applicant had breached condition 8202(2)(a).
On 24 September 2010, the Applicant applied to the Migration Review Tribunal for a review of the Delegate’s decision.
On 8 February, the Tribunal affirmed the decision of the Delegate to cancel the Subclass 573 Higher Education Sector visa.
On 7 March 2011, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Relevant Law
Section 116(1)(b) of the Act authorises the Department to cancel a visa where the visa holder has breached a condition of the visa. Section 116(3) of the Act states that the Department must cancel a visa if there exists prescribed circumstances in which a visa must be cancelled.
Regulation 2.43 of the Regulations sets out the prescribed circumstances referred to in s.116(3) of the Act. Relevantly, for student visas in force on or after 8 October 2005, the Minister must cancel a visa if the Minister is satisfied that the visa holder has not complied with condition 8202 and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
The applicable version of condition 8202 of Schedule 8 to the Regulations relevantly provides that:
“(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course;”
Section 119 of the Act requires the first respondent to notify the Applicant if the first respondent is considering cancelling the Applicant’s visa under s.116 of the Act.
The Tribunal’s review and decision
On 17 November 2010, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 24 January 2011 to give oral evidence and present arguments.
On 24 January 2011, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal identified the relevant law, particularity in relation to the expression “exceptional circumstances” and whether or not they were beyond the Applicant’s control.
The Applicant conceded that she was not enrolled in a registered course as was required by condition 8202(2)(a) of her visa.
Accordingly, the issue before the Tribunal was whether the Applicant’s breach of condition 8202(2)(a) was due to exceptional circumstances beyond her control.
The Tribunal referred to the Applicant’s undated letter to the Department in response to the Notice of Intention to Consider Cancellation dated 2 September 2010.
The Applicant’s letter set out the various circumstances upon which she relied.
The Tribunal’s decision record set out its consideration of the Applicant’s claims as it understood them to be. The Tribunal put to the Applicant matters of concern it had about her evidence, and noted her responses.
The Tribunal noted that the Applicant had informed the Tribunal at the conclusion of the hearing that she was satisfied that the Tribunal had covered all the issues relating to the reasons for her non-enrolment.
The Tribunal noted that the Applicant’s representative requested 14 days in which to provide additional documentary evidence.
The Tribunal allowed that request. However, the Tribunal noted that no further evidence was provided.
The Tribunal did not accept that the Applicant’s mother’s hysterectomy in January 2010 in India caused the Applicant difficulties following the Applicant’s return to Australia, on 9 March 2010, on the basis that the Tribunal was satisfied, on the Applicant’s evidence, that her mother had “got well”.
The Tribunal did not accept that the Applicant had suffered depression as a result of her mother’s illness or for any other reason on the basis of the absence of any medical evidence.
The Tribunal did not accept that the Applicant’s education provider attempted to charge her $18,000, rather than $12,000, based on the absence of any written evidence, such as an invoice, for the higher amount.
The Tribunal did not accept that the Applicant lacked the necessary financial support from her husband or elsewhere. Based on the Applicant’s evidence, her father had no financial problems and was ready to meet her financial requirements.
The Tribunal found that any emotional impact on the Applicant from the separation of her husband in January 2009 would have dissipated by the time of the cancellation on September 2010.
The Tribunal did not accept the Applicant’s claim that she was refused entry to two other colleges in July 2010 because her education provider refused to provide her with a release letter. The Tribunal noted that the Applicant took no steps to pursue her request for a release letter following her initial request in March 2010.
The Tribunal noted that it considered the Applicant’s claims individually and in combination and was satisfied that her breach of condition 8202(2)(a) was not due to exceptional circumstances beyond her control.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was represented before this Court by her solicitor,
Mr Turner.
At the commencement of the hearing, by consent, the Applicant was granted leave to rely upon an Amended Application filed on 28 April 2011 in the following terms:
“1. The Tribunal failed to consider all integers of the Applicant’s claims
Particulars
a. The Applicant claimed that she had been harassed by the College
b. The Tribunal failed to consider this claim
2. The Tribunal failed to carry out its statutory duty
Particulars
a. The Tribunal failed to understand the relevant law and apply it to the facts as found
(i) it was clear on the facts as found that a Letter of Release was not required
(ii) the Tribunal proceeded on the basis of a Letter of Release being required
b. The Tribunal failed to conduct a meaningful hearing
(i) the total time taken for the hearing, including formal segments, was 47 minutes
(ii) the Tribunal failed to consider all the claims made by the Applicant”
Mr Turner sought leave to read an affidavit annexing an alleged transcript of the Tribunal hearing. Leave was opposed on the basis that the affidavit did not verify the accuracy of the transcript and therefore the Court could place little weight on it. Mr Turner confirmed that the Applicant did not assert any particular inaccuracy in the Tribunal’s decision record and did not identify an issue to which the transcript or any part of it was directly relevant. In the circumstances, leave was refused to the Applicant to read the affidavit annexing an alleged transcript of the Tribunal hearing.
Ground 1
In support of ground 1, Mr Turner submitted that one of the exceptional circumstances on which the Applicant relied was harassment by her education provider and that the Tribunal had failed to consider that claim.
Mr Turner submitted that the Applicant first made her claim of harassment in her undated letter in response to receipt by her of the Notice of Intention to Consider Cancellation in which she stated as follows:
“Thirdly, the harassment from the college. This college is spoiling the careers of students. They are not following any kinds of rules or regulations. If so then why they never provide the attendance record to Immigration??? Why they never inform the students about absenteeism??? They just want money from students. They have opened the college not for providing education to students but only for money and harassing the students in every manner. If they could have provide me with a release letter then I could have started my college long time before. But this college has totally spoiled my career.”
In her evidence before the Tribunal, the Applicant stated that the education provider required her to pay $18,000 in fees rather than the $12,000 listed on her confirmation of enrolment. However, the Applicant had no written evidence to support this allegation.
The Tribunal noted that it indicated to her that it may have doubts about whether the education provider had in fact required her to pay $18,000 in fees, in the absence of written evidence such as an invoice. The Tribunal noted the Applicant’s response that the education provider was famous for taking money from students.
There was no further written particularisation of the harassment allegation.
Ultimately, the Tribunal did not accept that the Applicant’s education provider had attempted to charge her $18,000 for the course rather than $12,000, in the absence of any written evidence in support.
The Tribunal did not accept that the fees would have been changed from $12,000 to $18,000 on the basis only of an oral demand.
That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
The Tribunal noted that the Applicant said that she was not enrolled in another course because her education provider would not provide her with a release letter. The Applicant said she first asked for a release letter in early March 2010. She said she lodged applications forms at two other colleges in July 2010 but was refused entry because she did not have a release letter. The Tribunal noted that it had doubts about whether she was refused enrolment at other colleges in the absence of written evidence in support. The Tribunal noted the Applicant’ response that she had sought evidence from the colleges but that they had declined due to privacy considerations.
The Tribunal did not accept that the Applicant was unable to obtain enrolment in another course because her education provider had refused to give her a release letter. The Tribunal was not satisfied that any such application was made by her to any other college.
The Tribunal found that, even if the education provider had failed to give her a release letter and that such a circumstance was beyond her control, having regard to the elapse of six months between the time when the Applicant first asked for the release letter in Mach 2010, and the cancellation of the Applicant’s visa in September 2010, the Applicant took no step to pursue the problem.
Again, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
The only particulars in support of the Applicant’s claim of harassment by the education provider were her claim that her education provider required her to pay $18,000 in fees, rather than the $12,000 listed on the confirmation of enrolment; and, the failure by her education provider to give her a release letter to enable her to enrol at another college.
Clearly the Tribunal made findings on both these matters, as referred to above. The consequence of those findings was a rejection of the Applicant’s claim of harassment by the college for those reasons.
To the extent that the Applicant alleged that an exceptional circumstance beyond her control was harassment by the college for those reasons, the Applicant’s allegation that the Tribunal failed to consider her claim of harassment is not made out.
A fair reading of the Tribunal’s decision record does not suggest that there was any other claim of harassment by the Applicant’s education provider that was squarely raised on the material available to the Tribunal. There is no further claim of harassment particularised by the Applicant in her undated letter. Nor is there any other articulated claim of harassment on the face of the Tribunal’s decision record that arose on the evidence and material before it (see NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1 at [55]).
Moreover, the Tribunal noted that it considered the Applicant’ claims individually and in combination in considering whether the Applicant’s breach of condition 8202(2)(a) was due to exceptional circumstances beyond her control.
Accordingly, ground 1 is not made out.
Ground 2(a)
Ground 2(a) asserts that the Tribunal failed to understand that a letter of release from the Applicant’s education provider was not required and that the Tribunal erroneously proceeded on the basis that such a letter of release was required.
A fair reading of the Tribunal’s decision record makes clear that this allegation is not made out.
Nowhere in the decision record does the Tribunal suggest that the Applicant’s education provider was required to provide a letter of release.
In light of the Applicant’s claim that she was unable to enrol in another college because she did not have a letter of release from her education provider, the Tribunal considered and rejected her evidence on this point.
In considering further, whether any failure by the Applicant’s education provider to provide her with a release letter, constituted a circumstance beyond the Applicant’s control, the Tribunal accepted that she may have made such a request in March 2010. However, having regard to the elapse of six months from that date to the cancellation of her visa in September 2010, the Tribunal found that even if the education provider’s initial refusal may have been beyond her control, the Applicant’s ongoing failure to address the issue was not.
As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
I reject the Applicant’s assertion in ground 2(a) that the Tribunal based its findings on an understanding that a letter of release was required by the Applicant. The Tribunal was doing no more than considering the Applicant’s claim of her request for a release letter from her education provider and her assertion that she was unable to enrol at another college without it.
Accordingly, ground 2(a) is not made out.
Ground 2(b)
Ground 2(b) asserts that the Tribunal failed to conduct a meaningful hearing in accordance with s.360 of the Act, because the duration of the hearing, including formal segments, was no more than 47 minutes.
There is nothing on the face of the Tribunal’s decision record to suggest that the Applicant or her representative had any further evidence to provide to the Tribunal in support of her claims which they were denied an opportunity to provide. There is no evidence before this court, of nay such request made or made and refused by the Tribunal.
Indeed, as stated above, the Tribunal’s decision record stated that the Applicant told the Tribunal that she was satisfied that the Tribunal had covered all the issues relating to her non enrolment. Moreover, the Tribunal granted the Applicant’s representatives a request for a further 14 days in which to provide additional documentary evidence. However, no further evidence was provided. Neither is there any evidence before this Court to suggest that any such request for an extension of time was made or made and refused by the Tribunal.
As stated above, it was no part of the Applicant’s case that the Tribunal’s decision record was inaccurate or incomplete.
In any event, at the directions hearing on 23 March 2011, the Applicant was directed to file and serve any evidence including any evidence of the transcript of the hearing by 29 April 2011. The directions made clear that any transcript to be relied upon must be verified by affidavit. The Applicant was also directed to give notice to the first respondent and the Court if she wished to rely on recordings of the hearing. However, no such notice was given. As stated above, an unverified transcript of the Tribunal hearing was tendered and rejected by the Applicant at the commencement of the hearing. However, as stated above, there is no allegation in the Amended Application of any inaccuracy in the Tribunal’s decision record, and Mr Turner was not able to identify a particular issue which made the transcript relevant beyond the decision record.
In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant, explored those claims with the Applicant at the hearing, and had regard to the Applicant’s material provided in support. The Tribunal’s decision record makes clear that the Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. There is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal did not properly explore the Applicant’s claims as articulated in her undated letter in response to the Notice of Intention to Consider Cancellation and her evidence given to the Tribunal. Indeed, Mr Turner agreed that his only complaint was the manner in which the Tribunal dealt with the Applicant’s claim of harassment by her education provider. Those complaints are dealt with above.
In the circumstances, there was no failure by the Tribunal to conduct a meaningful hearing merely because the time taken for the hearing, including formal segments, was 47 minutes.
Otherwise, the Tribunal wrote the Applicant on 17 November 2010, informing her that it had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising under the review. The letter of invitation was given in accordance with s.360 of the Act.
The Tribunal considered all claims made by the Applicant.
The Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
Accordingly ground 2(b) is not made out.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 10 May 2011
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