CHANDAN v Minister for Immigration
[2012] FMCA 721
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHANDAN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 721 |
| MIGRATION – Judicial review of decision of the Migration Review Tribunal – automatic cancellation of Student (Class TU) Subclass 572 visa – no error of law – application dismissed. |
| Education Services for Overseas Students Act 2000 (Cth), ss.19, 20 Education Services for Overseas Students Regulations 2001 (Cth), reg.3.03A Migration Act 1958 (Cth), ss.137J, 137K, 137L, 499 Migration Regulations 1994 (Cth), sch.8 |
| Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | PARTIK CHANDAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 320 of 2012 |
| Judgment of: | Hartnett FM |
| Hearing date: | 6 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 6 August 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Gangemi |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE COURT ORDERS THAT:
The Application filed 22 March
20132012 is dismissed.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA ATMELBOURNE |
MLG 320 of 2012
| PARTIK CHANDAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings commenced upon the applicant filing an application on 22 March 2012 seeking review of a decision of the Migration Review Tribunal (‘the Tribunal’) handed down on 23 February 2012. By that decision the Tribunal affirmed the decision of a Delegate of the first respondent, the Minister for Immigration and Citizenship (‘the Delegate’) not to revoke the automatic cancellation of the applicant’s Student (Class TU) Subclass 572 visa.
In his application filed 22 March 2012, which was accompanied by an affidavit sworn by him on 22 March 2012, the applicant set out the following grounds of application:
“(1) My visa was cancelled due to the reason that I did not attend my classes which the college claimed but I am sure of having my attendance to satisfy the course needs. I wasn’t even aware when my college (Ashmark) put section 20. I HAVE PAID ALL MY COLLEGE FEES BEING UNAWARE OF WHAT COLLEGE HAVE DONE. By the time I realised about section 20, it was too late for me to take action.”
The applicant is a citizen of India who entered Australia on 5 January 2009 as the holder of a Student (Class TU) Subclass 572 visa which had been granted on 17 November 2008 and was valid to 25 April 2011. The visa was subject to condition 8202 of Sch.8 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Condition 8202 as it applies in these proceedings is as follows:
“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) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student -- the holder is enrolled in a full-time course of study or training.
(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 ;
(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 ; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 .
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa -- the holder is enrolled in a full-time course of study or training.”
Section 137J of the Migration Act 1958 (Cth) (‘the Act’) applies if a notice is sent to a non-citizen under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’). Section 20 of the ESOS Act requires a registered education provider to send a student a written notice if the student has breached the prescribed condition of a student visa. Pursuant to Reg.3.03A of Education Services for Overseas Students Regulations 2001 (Cth) (‘the ESOS Regulations’), as amended on 17 December 2009, the prescribed condition for these purposes is condition 8202 (as set out in Sch.8 to the Regulations) and relates to course enrolment progress and attendance. If a non-citizen who holds a student visa is sent a notice pursuant to s.20 of the ESOS Act and he or she fails to respond in the prescribed manner within the prescribed time, then at the end of the 28 days after the day that the s.20 (of the ESOS Act) notice specifies, the non-citizen’s visa is automatically cancelled (s.137J of the Act). In relation to condition 8202(3), it is the certification by the education provider as to the breach of its course progress or attendance policies that constitutes the breach of condition, and not the unsatisfactory progress or attendance itself (Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 at 44 to 45).
The applicant undertook classes at the Ashmark Institute of Australia (‘Ashmark’). On 8 July 2010 and 30 July 2010, the applicant received warning letters from Ashmark about his unsatisfactory course attendance. On 23 August 2010, Ashmark notified the applicant of its intention to report his non-compliance with the attendance requirements of his visa. The applicant was notified in the same letter of his right to appeal Ashmark’s decision.
On 27 September 2010, Ashmark issued to the applicant a written notice under s.20 of the ESOS Act. The notice certified the applicant, for the course diploma of management, was not achieving satisfactory course attendance for s.19 of the ESOS Act and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training for Overseas Students (‘the National Code’). The applicant was simultaneously notified of the breach pursuant to s.20 of the ESOS Act and informed that his visa would be automatically cancelled 28 days after the date of the letter unless he attended upon a Department of Immigration and Citizenship (‘the Department’) office.
The applicant did not comply with the notice or otherwise attend an office of the Department within 28 days of the date of the notice and accordingly on 26 October 2010 and pursuant to s.137J of the Act, the applicant’s Student (Class TU) Subclass 572 visa was automatically cancelled.
On 28 October 2010, the applicant wrote to the Minister for Immigration and Citizenship (‘the Minister’) seeking revocation of the automatic cancellation of his Student (Class TU) Subclass 572 visa. On 28 April 2011, the Delegate decided not to revoke the cancellation under s.137L of the Act because the applicant had breached a condition of his student visa and such breach was not due to circumstances beyond his control.
On 9 May 2011, the applicant lodged an application for review of the Delegate’s decision. A copy of the decision record in respect of the decision not to revoke the cancellation of the applicant’s Student (Class TU) Subclass 572 visa was provided as part of the application for review.
The applicant appeared before the Tribunal on 27 September 2011 to give evidence and present arguments. The Tribunal also received oral evidence from fellow students, Amitoj Singh and Manpreet Singh. The applicant was represented in relation to the review by his registered migration agent. The representative attended the tribunal hearing. In a decision dated 23 February 2012, the Delegate’s decision was affirmed.
Consideration
A student can apply for an automatic cancellation to be revoked pursuant to s.137K of the Act. The Minister or a delegate of the Minister may only revoke the cancellation if satisfied that the non-citizen did not in fact breach the visa condition (s.137L(1)(a)) or the breach was due to exceptional circumstances beyond the student’s control (s.137L(1)(b)).
The applicant confirmed before the Tribunal that he had received the s.20 (of the ESOS Act) notice but claimed that he had not done anything about the notice because he believed that his attendance was satisfactory. The Tribunal noted to him that this was inconsistent with the evidence from Ashmark which indicated that it had written to him noting that his attendance was unsatisfactory. The applicant maintained that he had attended all classes but was marked as absent as he had not paid his fees.
The applicant confirmed, however, that he did not have proof that he had continued to attend classes. The Tribunal asked him why he had submitted medical certificates to explain an absence that had not occurred. The applicant said he had made a mistake to do this. The applicant said that the medical certificate submitted by him was not genuine and he had submitted false documentation to the Department. The Tribunal told the applicant that such action raised concerns about his credibility.
Two of the applicant’s class mates, Mr Manpreet Singh and Mr Amitoj Singh gave evidence to the Tribunal about the applicant’s attendance at classes. Mr Manpreet Singh said he had attended all classes with the applicant. Mr Amitoj Singh said that the applicant would have attended most classes but that he had been removed from classes because he had not paid his fees.
The Tribunal decision
In affirming the decision under review the Tribunal was satisfied that:
a)The applicant was sent and received a s.20 (of the ESOS Act) notice;
b)Ashmark certified under s.19 of the ESOS Act and standard 11 of the National Code that the applicant had not achieved satisfactory course attendance and had breached condition 8202 for the purpose of s.137L(1)(a) of the Act;
c)In considering whether the non-compliance with condition 8202 was due to exceptional circumstances beyond the visa holder’s control the Tribunal had due regard to the matters set out in Direction No 38 — Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202 (or for the review of such cancellation decisions) and for considering revocation of automatic cancellation of student visas (or for the review of decisions not to revoke such cancellations) made pursuant to s.499 of the Act.
The Tribunal found nothing before it to suggest that there was any political upheaval or natural disaster in the applicant’s home country of India, nor any written advice from the Department of Education, Employment and Workplace Relations or an education provider identifying concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting. In fact, on the basis of the evidence of the applicant the Tribunal was not satisfied that Ashmark failed to monitor the applicant’s course attendance. The Tribunal was also not satisfied that Ashmark failed to give the applicant access to complaints handling process as required under standard 8 of the National Code.
While the Tribunal outlined to the applicant that exceptional circumstances could include the application by Ashmark of incorrect policies or procedures that led to the issue of the s.20 (of the ESOS Act) notice, the Tribunal found that the applicant had been unable to provide independent evidence of his claim. Further, that his claims were inconsistent with his failure to take any steps after receiving the warning letters, non-compliance letter and s.20 (of the ESOS Act) notice. The Tribunal concluded on the evidence before it the policies and procedures used by Ashmark in monitoring the applicant’s attendance reflected its obligations under the ESOS Act and the National Code and did not explain the applicant’s breach of the attendance requirement of his student visa.
The Tribunal was not satisfied that the breach of condition 8202 was due to exceptional circumstances beyond the applicant’s control and affirmed the automatic cancellation of his Student (Class TU) Subclass 572 visa.
The application before the Court for judicial review does not raise any error of law on the part of the Tribunal. The applicant seeks to engage the Court in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Each of the findings of the Tribunal were open to it on the evidence before it. The applicant, himself, confirmed to the Tribunal he had received the s.20 (of the ESOS Act) notice addressed to him and the Tribunal was satisfied that he had failed to comply with it and further had failed to attend in person at a Department office within the prescribed time to make submissions about the breach and the circumstances that led to the breach.
The Tribunal’s finding that the applicant had not complied with condition 8202(3)(b) was open to it on the evidence before it and the Tribunal properly gave consideration to whether the applicant’s non-compliance with condition 8202 was due to exceptional circumstances and made a finding of fact that there were no exceptional circumstances open to it on the evidence before it. The Tribunal rejected the oral evidence of the applicant’s two witnesses which was open to the Tribunal in the circumstances.
The application should be dismissed with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 17 August 2012
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