Chandi v Minister for Immigration
[2006] FMCA 123
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHANDI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 123 |
| MIGRATION – VISA – Migration Review Tribunal – application for review of decision to refuse an application for a business visa – condition that Applicant has complied substantially with the conditions that applied to the last of any substantive visas held – whether Applicant complied with Condition 8202 of Student visa. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.137K, 359A
Education Services for Overseas Students Act 2000, s.20
Minister for Immigration & Multicultural & Indigenous Affairs v Uddin [2005] FCAFC 218
Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436
| Applicant: | HARVINDER SINGH CHANDI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File No: | SYG 1070 of 2005 |
| Delivered on: | 31 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 31 January 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Newman |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave to join the Migration Review Tribunal as Second Respondent.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs in the sum of $3,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1070 of 2005
| HARVINDER SINGH CHANDI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application to review a decision of the Migration Review Tribunal that was made on 30th March 2005. The Tribunal affirmed the decision of a delegate of the Minister, finding that the Visa Applicant was not entitled to the grant of a Temporary Business Entry (Class UC) visa.
Background
The Applicant is a citizen of India who originally held a Student visa which was subject to Condition 8202. That condition relates to satisfactory attendance at the institution at which the Applicant is undertaking a course of study and satisfactory academic progress.
The situation is that the Applicant was struggling in his course and was failing most of his subjects. He reached the stage that he realised that the course was too difficult for him and decided to withdraw. He then applied for a Business visa under Subclass 457, a Business (Long Stay) visa, and had obtained sponsorship to work as a cook in a restaurant. He applied for that visa but the visa was refused. The reason for the refusal is that one of the conditions, and in fact a necessary criterion for a Subclass 457 Business (Long Stay) visa, is clause 457.221. That clause provides:
If the applicant is in Australia at the time of application, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
In respect of the Applicant, the last of his substantive visas was his Student visa, a Subclass 573 visa. That visa had Condition 8202 attached to it, and there are two reasons, as I said, or two ways in which a holder of that visa can fail to comply: either by not attending for at least 80 per cent of the contact hours scheduled for the course or by not achieving an academic result that is certified by the education provider to be at least satisfactory. In this case it is not in issue that the Applicant failed seven out of his eight subjects. The delegate refused his application for a visa and accordingly the Applicant applied to the Tribunal, which found at paragraph 28 on page 72 of the Court Book that:
The Tribunal found that the Applicant had performed a significant breach of Condition 8202 by not achieving the required academic performance at his university exams and thus having his student visa cancelled. The Tribunal found that he therefore failed to meet the criterion in clause 457.221 of his proposed Business visa. The Tribunal found, first, that the Review Applicant did not substantially comply with Condition 8202 attached to his previous substantive visa, and second, that the Review Applicant did not meet clause 457.221. The conclusion that the Tribunal came to was that it had no alternative but to affirm the decision under review.
The issue when set out in that form sounds simple but the way in which it seems to have been approached by the Applicant, and perhaps his migration adviser, seems to make it less simple than that. First of all, there was a letter written to the Applicant on 14th November 2003 which was written to him care of the educational institution at which he was studying at the time. That letter indicated that:
In view of his unsatisfactory progress, the information technology and mathematical sciences school courses committee has decided to exclude him from the course for a period of two years. He was given an opportunity to show cause why he should not be excluded from that course. He was asked to prepare a written submission in dot point form explaining why he should not be excluded from the course, including reasons for his poor performance and the ways his circumstances have improved to avoid a repetition.
The Applicant has always maintained that he never received that letter. There is no issue as to the fact that he did receive the next piece of correspondence, which was a Notice under s.20 of the Education Services for Overseas Students Act 2000. That was dated 12th January 2004 and was written to the Applicant at his home address. That letter informed him that he had breached a condition of his Student visa relating to satisfactory academic performance in the course in which he had been enrolled. Particulars of breach were given as:
Student failed to make any satisfactory academic progress.
The Notice required the Applicant to report personally to a compliance officer at the Department of Immigration & Multicultural & Indigenous Affairs. In my view, the notice under s.20 of the Education Services for Overseas Students Act 2000 does not comply with the provisions of s.137J of the Migration Act 1958 and for the reasons set out in the decision in Minister for Immigration & Multicultural & Indigenous Affairs v Uddin [2005] FCAFC 218, that is not to my mind an issue which decides this particular case, which is a very unusual case and it relies very heavily on its own facts. The reality is that the Applicant had already decided that study in this particular discipline was beyond his academic ability.
The Tribunal’s Findings and Reasons
The Tribunal was deciding whether the Applicant should receive a Subclass 457 Business (Long Stay) visa. At page 68 of the Court Book the Tribunal noted that the Applicant pointed out that he had never seen the letter dated 14th November 2003, being the show cause letter. The particular paragraph says:
The Tribunal examined the documents on the Department file and confirmed that the address to which it was sent was the campus in Sydney which the Review Applicant was attending. The Visa Applicant pointed out that he had never seen the letter and it was not posted to his proper address. He stated all he had received was a letter from the Department informing him he was to be cancelled for breach of Condition 8202.
The Tribunal went on to say at page 69 of the Court Book:
The Visa Applicant insisted that his failure was beyond his control and the first that he knew that he would be excluded was the s.20 letter. The University had not counselled him, nor suggested he do a short course or some other way to remedy his academic failure. They went straight to the Department.
The Tribunal in its reasons and findings referred to the show cause letter, saying at page 71:
The University wrote to the Visa Applicant on 14 November 2003 stating that due to his unsatisfactory performance in the course, he had been excluded form -
it should be "from" -
from the course for a period of two years. The Visa Applicant was invited to present a written submission to show cause as to why he should not be excluded from the course. There is no evidence on the files currently before the Tribunal that the Visa Applicant responded to this request. He has subsequently claimed in the hearing never to have received the information.
I would comment that there is no evidence that the Visa Applicant did receive the invitation. A letter sent to a student at a tertiary institution addressed only to him at the tertiary institution is not to my mind guaranteed to be delivered, as opposed to a letter sent to a person's home address or address for correspondence. One can only imagine the likelihood of delivery of letters being sent to a student at, say, the University of Sydney or the University of Melbourne.
The Tribunal went on to refer to the fact that the Visa Applicant was issued a Notice by the University on 12th January 2004 stating that he had breached a condition of his visa regarding satisfactory academic performance and that the visa would cease on the 28th day after the Notice unless the Visa Applicant reported to a compliance officer. The Visa Applicant did so report. The Tribunal at paragraph 28 makes a finding about the show cause letter or about the s.20 Notice, it is difficult to tell entirely which, which is clearly and palpably unjustified by the evidence. The Tribunal says:
He claims to not have received a letter from the University informing him that by failing seven out of eight subjects he was liable for breach of Condition 8202(3)(b) and exclusion from the University but this claim does not hold water. This claim is in fact contradicted by his adviser's own submission on the Department file which claims that the University did notify both him and the Department. The Tribunal finds that the Visa Applicant has performed a significant breach of Condition 8202.
Well, that statement is in fact not supported by the evidence. The Applicant did not ever claim that he had failed to receive the letter claiming that he was liable for a breach of Condition 8202 by failing out of eight seven subjects. That is quite clearly the s.20 Notice sent to the Applicant on 12th January 2004. The Applicant admitted that he had received that Notice.
In fact the Applicant said it was the first Notice that he had received. The letter of 14th November 2003, which the Applicant said he did not receive, which was the letter sent to him care of the educational institution, makes no reference to Condition 8202. The Applicant's adviser's submission does not say that the Applicant did not receive the s.20 Notice. What the submission says at page 33 of the Court Book is this:
The Applicant was advised by the University that he does not have satisfactory level of achievement in the course and similarly the Department was also notified.
Well, now, the letter of 14th November 2003 is not a letter that would have been forwarded to the Department. However, a s.20 Notice under the Education Services for Overseas Students Act is quite clearly a letter that is sent both to the Applicant and to the Department and it is that letter that uses the phrase "student failed to make satisfactory academic progress". That is the letter that the Applicant always said that he received. The letter of 14th November is the letter that the Applicant always said that he never received and it would appear that the Tribunal's rather critical claim in paragraph 28 of the decision is just wrong. With respect, it appears that the Tribunal Member may have confused the two letters.
That is not the end of the story, however, because whether or not the Applicant received the letter of 14th November 2003 is not an integral part of the Tribunal's decision. Whether or not the Tribunal was wrong in arriving at the conclusion that the Applicant did receive that letter is not a matter that goes to whether the Tribunal acted within jurisdiction or not. The letter was a show cause letter and invited the Applicant, had he ever received it, to show ways that his poor performance could have been explained and what he was doing to fix it up. The Applicant's adviser's submission to which I have previously referred makes a statement of the sanguinary obvious when it says on page 33:
The Applicant breached the visa condition due to his poor performance. If he had better results the Condition 8202 would have been satisfied, but since he had poor results he could not satisfy that.
The submission, however, went on to make a submission which clearly seemed to attract the Tribunal's wrath by claiming in the final paragraph on page 33:
The Student visa that the Applicant was holding was cancelled because of a factor beyond the Applicant's control. Not able to perform satisfactorily is the factor that is not in the control of the Applicant. The Applicant tried his best and attended classes regularly and attended exams regularly, paid the fee in time and the University has no complaint with the student at all. The only thing that he could not do is perform satisfactorily in the exams.
Regrettably, performing satisfactorily in exams was exactly what the Applicant was required to do under Condition 8202. As I indicated earlier, it is a situation that an applicant either makes it or an applicant does not. Applicants who fail their exams, unless they have a reason beyond their control, do not comply with Condition 8202. Now, lacking the academic or intellectual ability to pass one's exams may well in the literal sense be a factor beyond one's control.
It is perhaps misleading to refer to the conditions referred to by Katz J in the decision in Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 quoting from a decision of Sackville J in Kim referred to at page 70 of the Court Book, a consideration being "whether or not the Applicant deliberately flouted the condition". An applicant could deliberately flout Condition 8202 by not attending the required amount of lectures or study required by the course, which of course is 80 per cent, and as a result of not attending the required amount of the course an applicant could therefore fail his or her exams and not achieve satisfactory academic progress. That could well be a case of deliberately flouting the condition.
It is incorrect and unfair to say that a person who, whilst making an effort to be a good student, fails the course because he or she just does not have the ability is deliberately flouting the condition. The person is not. The Applicant certainly tried his best but he just did not have the ability to complete the course. That is what the adviser meant by “circumstances beyond his control”.
There is of course the more specialised meaning that applies in matters of this nature and the Tribunal touched on it in paragraph 27:
The Delegate had suggested that poor performance is not a matter outside the Visa Applicant's control. The Tribunal does not agree with the suggestion unilaterally, as sometimes health and family issues may impact on a student's academic success and may be factors beyond their control. Nevertheless, the Visa Applicant has not indicated any substantial factor beyond his control other than lack of academic success.
That to my mind is a correct indication of what factors beyond a student's control can mean in dealing with academic success or the lack of it under Condition 8202. To my mind, the language used in paragraph 28 by the Tribunal Member of straight academic failure as a factor beyond the Applicant's control to be "a preposterous suggestion" and a suggestion that the University was under some obligation to "correct his abject failure is risible" is an unnecessarily peremptory way of dismissing a submission.
The fact is that the Applicant, clearly not deliberately, breached Condition 8202 of his Student visa by not achieving the appropriate academic performance at his exams. As a result, his Student visa was cancelled.
The Tribunal found correctly that because the Applicant had failed to comply substantially with Condition 8202 of his Student visa, he did not then meet the criterion in clause 457.221 of his proposed Business visa. The Tribunal has given its reasons and indeed the findings in paragraph 29:
First, that the Review Applicant did not substantially comply with Condition 8202 attached to his previous substantive visa, and second, the Review Applicant does not meet clause 457.221 -
succinctly sums up the reasons why the Applicant's application for a visa was refused and why the Tribunal affirmed the delegate's decision that the Applicant is not entitled to the grant of a Temporary Business Entry (Class UC) visa. There is no jurisdictional error. The decision therefore is a privative clause decision. The application must therefore be dismissed.
It does seem to me that this is an appropriate matter where there should be an order for costs in favour of a successful Respondent, being the First Respondent Minister. The amount of $3,600.00, which is inclusive of counsel's fees, is in my view an appropriate figure and well and truly within the scale envisaged by the Federal Magistrates Court Rules. It is a moderate costs figure and I have no hesitation in ordering that the Applicant is to pay the First Respondent's costs fixed in the sum of $3,600.00.
I note that the Applicant did not name the Migration Review Tribunal as a party to the proceedings. In order to comply with the High Court's ruling in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, I grant leave to join the Migration Review Tribunal as Second Respondent and the Migration Review Tribunal is joined as second respondent to the application. The application is removed from the list of cases awaiting finalisation.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 2 February 2006
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