Chen v Minister for Immigration
[2012] FMCA 912
•30 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 912 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of student visa – breach of condition on visa – unsatisfactory course attendance – consideration of exceptional circumstances – whether the Tribunal breached s.359A of the Migration Act 1958 (Cth), applied the wrong test, failed to carry out its statutory duty, or made an irrational finding or failed to consider an integer of the applicant’s claims considered. |
| Acts Interpretation Act1901 (Cth), s.2C Education Services for Overseas Student Act 2000 (Cth), ss.19, 20 Migration Act 1958 (Cth), ss.116, 359A, 359AA |
| Alsunaid v Minister for Immigration & Anor [2011] FMCA 238 Minister for Immigration v SZMDS (2010) 266 ALR 367 Mo v Minister for Immigration & Anor [2009] FMCA 1026 |
| Applicant: | YIQIAN CHEN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 886 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 28 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
ORDERS
The application as amended on 26 June 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 886 of 2012
| YIQIAN CHEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (the Tribunal). The decision was made on 4 April 2012. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s (Ms Chen) subclass 571 Schools Sector visa. The following statement of background facts is derived from the submissions of the parties.
Ms Chen is a 25 year old citizen of Singapore who arrived in Australia on 27 January 2010 as the holder of a Subclass 571 Student visa. Prior to her arrival, she enrolled in a Foundation Year certificate at the University of New South Wales (the education provider).
On 12 May 2011, the education provider sent Ms Chen a written notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) informing her that she had not complied with condition 8202(3)(b) attached to her Subclass 571 visa (namely, failed to achieve satisfactory course attendance)[1].
[1] court book (CB) 1-7
Included with the s.20 notice was a s.19 certificate from Ms Chen’s education provider that certified to the Secretary of the Department of Education, Employment and Workplace Relations (DEEWR) (the Secretary) that Ms Chen had failed to achieve satisfactory course progress for the purposes of the ESOS Act. Section 19(2) of the ESOS Act requires a registered provider to give the Secretary particulars of any breach by an “accepted student” of a prescribed condition of a student visa as soon as practicable after it occurs.
On 26 May 2011, Ms Chen was issued with a notice of intention to consider cancellation under s.116(1)(b) and s.116(3) of the Migration Act 1958 (Cth) (the Migration Act)[2].
[2] CB 10-18
On 10 June 2011, a delegate of the Minister wrote to Ms Chen’s education provider requesting further information[3]. The delegate received a response to that request on the same day[4].
[3] CB 24
[4] CB 25-35
On 15 June 2011, Ms Chen provided written submissions and supporting documents to the delegate seeking to explain the circumstances in which the s.20 notice was issued and asking that her visa not be cancelled[5].
[5] CB 39-111
The delegate’s decision
On 23 June 2011, the delegate cancelled Ms Chen’s visa on the basis that she had failed to achieve satisfactory course attendance and had breached condition 8202. The delegate was satisfied that the breach of condition 8202 was not due to exceptional circumstances beyond her control[6].
[6] CB 117-121
The Tribunal proceedings
On 28 June 2011, Ms Chen lodged an application with the Tribunal to review the delegate’s decision[7]. Ms Chen also appointed a migration agent as her authorised recipient for the purposes of the review[8].
[7] CB 122-128
[8] CB 125
By letter dated 14 February 2012, the Tribunal invited Ms Chen to appear at a hearing on 30 March 2012[9].
[9] CB 138-140
In a letter dated and sent by email on 15 February 2012, the Tribunal wrote to Ms Chen’s education provider requesting additional information, including her attendance record[10]. The Tribunal received a response to that request on 20 February 2012[11].
[10] CB 141-142
[11] CB 147-149
On 22 March 2010, Ms Chen’s representative provided a written submission to the Tribunal with a number of attachments[12]. Ms Chen effectively claimed before the Tribunal that there was no breach of visa condition 8202 because her education provider had failed to comply with its obligations under Standard 11 of the National Code by improperly recording her attendance. Ms Chen also claimed that her course attendance was: (1) adversely affected by her medical condition (asthma exacerbated by bouts of tonsillitis); (2) the death of her great aunt which caused her to become depressed; (3) her late enrolment in the course and (4) the difficulties she faced in organising herself to attend classes. Ms Chen also submitted evidence that she had a better attendance record at another education provider with whom she had subsequently enrolled.
[12] CB 150-166
In a letter dated and sent by email on 27 March 2012, the Tribunal wrote to Ms Chen’s education provider requesting additional information, namely “a copy of any policy or information provided to students warning them that being late to class would mean they would be marked as absent”[13]. The Tribunal received a response to that request on the same day which included a link to the relevant section of the UNSW Student Handbook which contained information about the education provider’s policy[14].
[13] CB 141-142
[14] CB 169-171
Ms Chen attended the scheduled hearing on 30 March 2012[15]. The Tribunal embarked on a course of oral disclosure of information at the Tribunal hearing pursuant to s.359AA[16]. Relevantly, s.359A(3) of the Migration Act provides that the Tribunal is not obliged to give the applicant particulars of information that would be the reason, or a part of the reason for affirming the delegate’s decision pursuant to s.359A(1), if it gives the applicant clear particulars of the information under s.359AA.
[15] CB 173-175, 185-188, [38]-[56]
[16] CB 185-187, [40], [48]
The information put to Ms Chen pursuant to s.359AA was information obtained from the education provider that she:
a)was certified as not achieving satisfactory attendance;
b)had been warned about her poor attendance on four occasions;
c)had only provided medical certificates for four days;
d)did not start attending class until 14 February 2011;
e)had failed to provide documentation following her absence for a funeral;
f)had only attended 45 per cent of classes when her explained absences were taken into account and
g)had been provided with a student handbook which set out the education provider’s attendance policy.
The Tribunal explained that the information was relevant as it could lead it to find that Ms Chen had breached condition 8202 and that the breach was not due to exceptional circumstances beyond her control. The Tribunal’s decision indicates that Ms Chen did not seek additional time to respond to the information but chose to respond orally at the hearing[17]. It is part of the Minister’s case that the Tribunal complied with the requirements of s.359AA in relation to the information from the education provider, so that the exception in s.359A(3) applies.
[17] CB 186, [41]; CB 187-188, [49]-[53]
The Tribunal’s decision
In a decision made on 4 April 2012, the Tribunal affirmed the delegate’s decision to cancel Ms Chen’s visa[18].
[18] CB 178-192
The Tribunal undertook a detailed analysis of the relevant law and found that regulation 2.43(2)(b)(ii) of the Migration Regulations 1994 (Cth) (the Regulations) required the applicant’s visa to be cancelled under s.116(3) of the Migration Act if the visa holder had failed to comply with condition 8202[19]. Regulation 2.43(2)(b)(ii) provides that a breach of condition 8202 amounts to a “prescribed circumstance” for the purposes of s.116(3).
[19] CB 179-181, [6]-[13]
The Tribunal found on the evidence before it that Ms Chen had been certified by her education provider as failing to achieve satisfactory course attendance. It found as a consequence that Ms Chen had not complied with condition 8202(3)(b) and that, accordingly, a ground for cancellation under s.116(1)(b) of the Migration Act existed[20]. In reaching this conclusion, the Tribunal found that it was not required to “go behind” the certification to determine the accuracy of the education provider’s attendance records for Ms Chen[21].
[20] CB 189, [62]
[21] CB 189, [61]. Patel v Minister for Immigration & Anor [2011] FMCA 112; Mo v Minister for Immigration & Anor [2009] FMCA 1026; Singh v Minister for Immigration & Anor [2009] FMCA 1261; Kumar v Minister for Immigration & Citizenship [2011] FMCA 741 at [32]
In light of its finding that there had been a breach of 8202(3)(b), the Tribunal proceeded to consider on the evidence before it whether there were “exceptional circumstances” beyond Ms Chen’s control for that breach[22]. The Tribunal was required to turn its mind to this issue by regulation 2.43(2)(b)(ii)(B).
[22] CB 189, [63]
The Tribunal undertook a detailed analysis of Ms Chen’s explanations for her unsatisfactory course attendance but found they did not amount to “exceptional circumstances” beyond her control[23]. It is part of the Minister’s case that the Tribunal’s findings in this regard were findings of fact for the Tribunal and are not subject to judicial review[24].
[23] CB 189-191, [67]-[74]
[24] Maan v Minister for Immigration [2009] FCAFC 150 at [52]
First, the Tribunal noted that there was no material before it relevant to the matters set out in Ministerial Direction No 38[25]. Secondly, the Tribunal did not accept Ms Chen’s claim that there were errors by the education provider in the monitoring of her attendance. The Tribunal found it was open to the education provider to record a non-attendance when Ms Chen was late to class and that she had been made aware of this policy[26].
[25] CB 189, [64]
[26] CB 189-190, [67]-[68]
Thirdly, whilst the Tribunal accepted on the basis of the medical evidence provided by Ms Chen that she suffered from asthma and tonsillitis, it found that her attendance rate would still have been only 45 per cent when the medical certificates were taken into account. Accordingly, the Tribunal did not accept that Ms Chen’s medical condition (or her attendance at a funeral) accounted for her non-compliance[27]. Nor did the Tribunal accept that Ms Chen’s attendance at the funeral of her great aunt, her difficulties in adjusting to university and organising herself or her late enrolment and arrival in Australia constituted “exceptional circumstances” beyond her control[28].
[27] CB 190, [69]
[28] CB 190, [69]-[71]
Finally, the Tribunal did not accept that Ms Chen suffered from depression following the death of her great aunt because she did not raise that she was feeling depressed during this period despite consulting a doctor many times for tonsillitis and being counselled by her education provider for her poor attendance. It also found that it was within Ms Chen’s control to have sought assistance from her education provider following the death of her great aunt but she did not do this. Moreover, at the time Ms Chen learned of her aunt’s death Ms Chen’s attendance record was only 31 per cent. Accordingly, the Tribunal did not accept that the death of her aunt accounted for her non-compliance with condition 8202[29].
[29] CB 190, [72]
The Tribunal was therefore satisfied that Ms Chen’s non-compliance with condition 8202 was not due to “exceptional circumstances” beyond her control and that her visa must be cancelled in accordance with s.116(3)[30].
[30] CB 191, [74]-[75]
The judicial review application
These proceedings began with a show cause application filed on 23 April 2012. Ms Chen now relies upon an amended application filed on 26 June 2012. The grounds in that application are:
1. The Tribunal failed to comply with its statutory Duty.
Particulars
a) The Tribunal is required by the Migration Act 1958 s.359A to provide to the Applicant any adverse information which could be the reason, or part of the reason for affirming the decision, explaining why it is relevant and give the Applicant an opportunity to comment upon it.
b) The Tribunal did not have before it:
i. Policy advice from the Departments Director of Compliance and Operational Support Section; and
ii. Written advice from the Department of Education, Employment and Workplace Relations.
c) The lack of these documents was information which was adverse to the Applicant and part of the reason for affirming the decision.
d) The Tribunal did not give particulars of its information to the Applicant and, therefore, failed to carry out its statutory duty under the Migration Act 1958 s.359A.
2. The Tribunal applied the wrong test.
Particulars
a) The Tribunal accepted that the education [provider] had correctly recorded the Applicant’s attendance because it had done so in accordance with its policy.
The correct test, which was not applied by the Tribunal, was whether the Applicant’s attendance had been correctly recorded in accordance with standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. (the Code)
3. The Tribunal failed to carry out its statutory duty.
Particulars
a. Direction 38 (the Direction) (CB 14) is made pursuant to the Migration Act 1958 s.499 and is, therefore, binding on the Tribunal and requires the Tribunal to have due regard to, and make appropriate enquiries in relation to, “if the education provider has failed to accurately record the [student’s] course progress or attendance.”
b. The Tribunal, by simply accepting that the education [provider’s] records were accurate because they were in accordance with its policy, failed to have due regard to the accuracy of the education provider’s records in relation to the code.
c. The Tribunal was obliged by the Direction to consider all exceptional circumstances including, but not limited to, the misreporting of the Applicant’s attendance by the education provider.
By failing to apply the proper test to the reporting of the education provider, the Tribunal failed to consider all exceptional circumstances beyond the Applicant’s control.
4. The Tribunal’s decision was irrational and illogical.
Particulars
a. The Tribunal’s finding that [68], CB190
“The Tribunal does not accept that the education provider failed to accurately record the applicant’s attendance when she was late. The applicant admitted she knew the education provider’s attendance policy was to record a non-attendance if she the (sic) late and she was spoken to about it. The Tribunal does not accept that such recording is inaccurate and accepts that it is not unreasonable for education providers to have such attendance policies…”
b. To accept that the attendance recording was accurate simply because it was in accordance with the education provider’s policy and the Applicant knew of that policy is illogical and/or irrational.
[5]. The Tribunal failed to consider all integers of the Applicant’s claim
Particulars
(a) The Applicant submitted that although her attendance was below 80% in the relevant course, her attendance in courses immediately before and immediately after the relevant course were at or above 80%.
(b) [T]he Applicant further submitted that this attendance supported her claim that her poor attendance was the result of one or more exceptional circumstances.
(c) [T]he Tribunal failed to consider this integer of the Applicant’s claim.
I received as evidence the court book filed on 17 May 2012. I also received the affidavit of Sue Archer made on 23 April 2012, to which is annexed a transcript of the Tribunal hearing held on 30 March 2012.
Both parties made written and oral submissions. Ms Chen contends that the Tribunal fell into jurisdictional error because it failed to comply with its statutory duty, applied the wrong test, made a decision which was irrational and illogical and failed to consider all integers or elements of her claims. The Minister denies the Tribunal committed the asserted errors.
Consideration
Did the Tribunal breach its obligation of disclosure?
Section 359A of the Migration Act provides:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies – by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
Ms Chen contends that the Tribunal had the following “information” which was the reason, or part of the reason, for affirming the decision before it:
a)the lack of policy advice from the Director of the Compliance Operation Support Section[31];
b)the lack of written advice from the Department of Education, Science and Training or an education advice that it has concerns about errors or inappropriate actions or omission in the process leading to the non-compliance and subsequent reporting[32].
[31] CB189 [64]
[32] CB189 [64]
Ms Chen contends that s.359A(4) does not apply to information from government departments and education providers as they are included as “another person” by operation s.2C of the Acts Interpretation Act1901 (Cth). She contends that the Tribunal was in possession of material information from the education provider[33].
[33] CB 190, [72]
Ms Chen complains that the Tribunal failed to give any written particulars to her of this “information”.
Section 359AA of the Migration Act provides:
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so – the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The Tribunal said, at the commencement of the hearing[34]:
Okay? All right. And again what I’ll do throughout the hearing is I’ll put to you information and concerns I might have, and that’s not because I’ve made up my mind, that’s because I would like you to be aware of what my concerns are so that then you can respond to those.[35]
Okay? All right. And sometimes I have to put that to you in a formal manner because that’s what’s required by the legislation.[36]
....So what I’ll need to do is put to you again information in a formal manner, and that is I have information that would be the reason or part of the reason for affirming the decision under review. Affirming means agreeing with. And I’ll explain the relevance of that information and you can seek additional time to respond if you wish.[37]
[34] Affidavit of Sue Archer (SA) affirmed 23 April 2012
[35] SA page 3
[36] SA page 3
[37] SA page 3
The Tribunal then gave particulars of visas granted and notices given[38].
[38] SA page 3, line 25
The Tribunal then went on to question Ms Chen about:
a)her late arrival at the university;
b)appealing to the university[39];
c)her attendance record[40].
[39] SA, page 4, line 45
[40] SA, page 10, line 25
The Tribunal then went on[41] to put particulars of the information, explain why it was relevant and give an opportunity for time to respond.
[41] SA, page 15, line 50
In Ms Chen’s submission, the Tribunal was required to put particulars of the information, explain why t was relevant and give an opportunity for time to respond prior to discussing the matters with Ms Chen.
In this instance, the information was discussed by the Tribunal before it gave the particulars of it to Ms Chen. She complains that the Tribunal therefore failed to comply with s.359AA of the Migration Act, leading to it failing to comply with s.359A of the Migration Act.
I prefer the Minister’s submissions on Ground 1. As noted above, this ground relates to the Tribunal’s findings that Ministerial Direction No 38 had no relevant application to Ms Chen as there was “no information” before it to indicate that there was policy advice from the Director of Compliance Operational Support Section to give due regard to a political upheaval or natural disaster in Ms Chen’s home country. Similarly, the Tribunal found there was “no written advice” from DEEWR or an education provider that they had concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and the subsequent reporting[42].
[42] CB 189, [64]
Generally, an absence of information is not “information” for the purposes of s.359A(1). Further, in order for the Tribunal to be required to disclose information, it must be adverse information, ie information which tends to undermine an applicant’s claims. In the present case, I agree with the Minister that the “lack of advice” cannot constitute “information” for the purpose of s.359A(1)[43].
[43] Mani v Minister or Immigration & Anor [2012] FMCA 457 at [34]-[37]
The Tribunal observed[44] that it was obliged by s.499 of the Migration Act to have regard to Ministerial Direction No 38 in considering whether Ms Chen’s non-compliance with condition 8202 was due to exceptional circumstances beyond her control. The Tribunal relevantly found there was no evidence of any policy advice about problems in Singapore or written advice about the processes leading to the education provider finding non compliance and subsequent reporting[45]. It also appreciated that the matters in the Direction were not exhaustive and that it had to consider all the facts of the case[46]. In that regard, Ms Chen had not claimed that there were general problems in Singapore that had affected her attendance. Her problems were personal. Secondly, while Ms Chen had concerns about the education provider’s attendance recording policy, she was not concerned about the University’s administrative process that resulted in the certificate being issued.
[44] at [19]-[21] of its decision
[45] CB 189, [64]
[46] CB 189, [65]
The Tribunal did not rely on undisclosed information (or an absence of information) to affirm the decision under review, but considered (as it was bound to do) whether there was any material of the type contemplated by Direction No 38 so as to require it to apply those policy provisions. The Tribunal’s findings that Direction No 38 had no relevant application were the Tribunal’s conclusions made after assessing the evidence and material before it against applicable policy requirements. As the High Court stated in SZBYRv Minister for Immigration[47], the word “information” for the purpose of s.359A (and s.424A):
does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence (emphasis added).
[47] (2007) 235 ALR 609 at [18], citing with approval, VAF v Minister for Immigration (2004) 206 ALR 471 per Finn and Stone JJ at 476-477
Accordingly, this was not “information” for the purposes of engaging the Tribunal’s obligations under s.359A.
The Minister notes that, although not pleaded in the amended application, Ms Chen’s submissions also allege that the Tribunal breached s.359AA and hence s.359A in relation to information from Ms Chen’s education provider which was raised with Ms Chen at the Tribunal hearing[48]. Ms Chen takes issue with the order in which the Tribunal put matters to her at the Tribunal hearing, alleging that the Tribunal erred because it “discussed” the information with Ms Chen before it gave particulars of that information to her. I agree that this allegation is misconceived.
[48] referred to at CB 190, [72]
In my view, Ms Chen’s submission introduces into s.359AA an obligation on the Tribunal to meet all of the requirements under the section at the earliest possible moment in a hearing. I do not accept that contention. The Tribunal may be uncertain about the significance of information until the presiding member has discussed it with the applicant. It is only when the Tribunal is satisfied that there is information requiring disclosure pursuant to s.359A that it needs to give attention to its obligations under s.359AA if it wishes to take advantage of that provision. There is no error in the Tribunal warning of the possible need for disclosure early in the hearing, and then after a process of questioning, telling the applicant what she needs to know in order to address the Tribunal’s concerns that have become clear as a consequence of the questioning. The presiding member may come into a hearing with preliminary views, and may wish to voice those views (including for the purpose of providing a fair hearing opportunity) but there is nothing wrong in the Tribunal discussing potentially adverse information with an applicant (which will generally help in clarifying the Tribunal’s views) before giving disclosure as required by s.359AA. Hypothetically, the discussion may overcome the Tribunal’s initial concerns, so that no disclosure is required. Conversely, the Tribunal may conclude that the circumstances require a written invitation after the hearing.
As the Tribunal complied with the requirements of s.359AA(a) and s.359AA(b)(i)-(iii), the exception in s.359A(3) applied and the Tribunal was under no obligation to comply with s.359A(1). This ground fails.
Did the Tribunal otherwise breach its statutory duty?
Direction 38 (the Direction)[49], is made pursuant to s.499 of the Migration Act and is, therefore, binding on the Tribunal. It requires the Tribunal to have due regard to, and make appropriate enquiries in relation to, whether “the education provider has failed to accurately record the student’s course progress or attendance.”
[49] CB 14
The ESOS Act provides that the Minister may make a “National Code” by legislative instrument.
The National Code at Standard 11 provides:
11.1The Registered provider must record the attendance of each student for the scheduled course contact hours in which the student is enrolled. (emphasis added)
The Tribunal found[50]:
The Tribunal does not accept that the education provider failed to accurately record the applicant’s attendance when she was late. The applicant admitted she knew the education provider’s attendance policy was to record a non-attendance if the late (sic) and she was spoken to about it. The Tribunal does not accept that such recording is inaccurate and accepts that it is not unreasonable for education providers to have such attendance policies. The Tribunal does not accept there were any errors by the education provider in attendance monitoring or recording or the process.
[50] CB 90 [68]
The Direction sets out[51]:
...In particular, decision makers should give due regard to the following matters and make further inquiries as appropriate:
•if the education provider has failed to accurately monitor the student’s course progress or attendance.
[51] at CB 16, [4], 2nd dot point
Standard 11 of the National Code requires an education provider to record “the attendance of each student for the scheduled course contact hours.” Ms Chen contends that there was a failure by the education provider to accurately record her attendance which was squarely raised with the Tribunal[52]. She contends that the Tribunal was, therefore, required to consider the recording of the attendance and a failure of it to so do amounts to a failure to carry out its statutory duty.
[52] CB 156
The Minister points out difficulties with the contention that the Tribunal failed to carry out its statutory duty by failing to make “appropriate enquiries” in relation to whether the education provider had failed to accurately record the student’s course progress or attendance. Neither the amended application nor Ms Chen’s submissions identify what “appropriate enquiries” should have been made. Furthermore, Ms Chen fails to acknowledge that the Tribunal did make enquiries in this regard by requesting a copy of her attendance record and a copy of the education provider’s policy for recording attendance from the education provider. Given that the National Code required Ms Chen’s attendance to be assessed against the education provider’s policy, these were appropriate enquiries for the Tribunal to make. The Tribunal went on to make findings as to whether the education provider had accurately recorded Ms Chen’s attendance.
The Tribunal’s obligation was to have regard to the Direction and the National Code. It did so. The Tribunal was entitled to find, on the material before it, that there was no issue of non compliance with the National Code by the education provider. More difficult questions would have arisen if the Tribunal had found otherwise.
There is potentially a difficulty confronting the Tribunal in applying the visa criteria by reference to the Direction and the National Code. The Tribunal dealt with the problem in the following way[53]:
As to the determination of whether there is a relevant certification, there is conflicting authority as to the scope of the Tribunal’s task. The Tribunal has considered the decisions in Mo v MIAC & Anor [2009] FMCA 1026, Singh v MIAC & Anor [2009] FMCA 1261, Mazumder v MIAC & Anor [2010] FMCA 76, Kumar v MIAC & Anor [2010] FMCA 614, Luo v MIAC & Anor [2011] FMCA 160, Alsunaid v MIAC & Anor [2011] FMCA 238, Patel v MIAC & Anor [2011] FMCA 112 and Karki v MIAC [2011] FMCA 369. Notwithstanding the contrary view of the Court in Kumar, the Tribunal considers that the weight of authority supports the view that the Tribunal is not required to look behind a certificate that on its face engaged condition 8202(3). This approach has recently been confirmed in Kim where Jarrett FM held that a certification made by an education provider under s.8202(3)(a) is not within s.338 of the Act or the regulations that prescribe certain decisions as MRT-reviewable decisions for the purposes of the Act and as such is not reviewable by the Tribunal.
The Tribunal concludes that its only task is to determine that a certificate, on its face, is of a kind that engages condition 8202(3). The mere fact of certification gives rise to a ground for cancellation under s.116(1)(b) of the Act.
The Tribunal has considered: the certification dated 12 May 2011 issued by the education provider and the applicant’s submissions to the Department of Immigration. The Tribunal has considered the agent’s submissions regarding accurate attendance monitoring but does not accept the attendance records were inaccurate as the attendance policy explains that lateness would be marked as non-attendance. In any event the Tribunal is not required to look behind the certificate.
[53] CB 188-189 [59]-[61]
In Kumar (referred to by the Tribunal in its reasons) I said at [36]-[42]:
The Tribunal was correct in finding that a valid notice under s.20 of the ESOS Act is not a condition precedent to the exercise of power under s.116 of the Migration Act. To that extent, the Tribunal was correct in distinguishing the decision of the Federal Court in Hossain. However, the other cases relied upon by the Tribunal at [42] all pre-date the current form of condition 8202(3)(b), which only came into force on 1 July 2007 and accordingly, those decisions need to be treated with caution. While the Tribunal has a discretion to cancel a visa under s.116 of the Migration Act whether or not a notice under s.20 of the ESOS Act was validly issued, it does not follow that the validity of a certificate under s.19 of the ESOS Act is irrelevant to the application of the visa condition. It would be a strange result if the mere fact of the purported certification by an educational institution of unsatisfactory attendance established a breach of the visa condition, regardless of the circumstances of the issuing of it. To take an extreme example, if an educational institution sought unsuccessfully to extort money from a student and, as a simple act of revenge, falsely certified unsatisfactory attendance, it would seem a very harsh outcome that by reason of that criminal act by the education provider, the visa holder was in breach of his or her visa. It might be said that in such a circumstance the visa holder could, without difficulty, establish exceptional circumstances beyond his or her control but, in my view, that consideration only arises where a certificate is properly provided pursuant to s.19 of the ESOS Act.
At [43] of its reasons the Tribunal stated:
The task before the Tribunal is to determine that a certificate, on its face, is of a kind that engages condition 8202(3). The Tribunal is not required to enquire into the validity of the certificate: see Singh v MIAC & Anor [2009] FMCA 1261 and Mazumder v MIAC & Anor [2010] FMCA 76. Accordingly, the Tribunal finds that the education provider has certified the applicant as not achieving satisfactory course attendance for s.19 of the ESOS Act and standard 11 of the National Code, and therefore that the applicant has not complied with condition 8202(3)(b).
Singh was a case in which an asserted breach of the National Code was not established on the facts. Raphael FM in that case at [9] followed his earlier decision in Mo v Minister for Immigration & Anor [2009] FMCA 1026 at [24] where he said:
The respondent submits that the effect of this is that any failure to comply with the National Code is not intended to go to the validity of any act or step taken, or failed to be taken, by an education provider. The legislative scheme has been designed so that education providers are responsible for collecting and reporting information relevant to the administration of the law relating to student visas; s.4A ESOS Act. The intention is to place the responsibility for monitoring students’ compliance with visa conditions on the education providers who are in the best position to do so. To suggest that the Minister should “go behind” a 8202(3) certificate is counter-productive to this purpose. The only task of the Minister is to determine that a certificate, on its face, is of a kind that engages condition 8202(3); Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356, Sackville J at [373]. The Minister was not required to enquire into the validity of either the certificate or the s.20 notice in order to exercise his power under s.137J.
In Mazumber v Minister for Immigration & Anor [2010] FMCA 76 Cameron FM also relied upon the statement above from Mo. That decision was overturned on appeal: Mo v Minister for Immigration [2010] FCA 162. The Tribunal cannot rely on any statement of principle derived from the decision of this Court in that case.
The authoritative statements of principle concerning the form of certification in relation to the application of condition 8202(3)(b) were made by the Full Federal Court in Maan v Minister for Immigration [2009] FCAFC 150 at [41]-[47] where the Court said:
The ordinary meaning of Visa Condition 8202(3) is that the holder of a relevant visa will be in breach of the visa following certification by the educational institution as to a visa holder’s non-attendance, and provision of that certification to the Department by the institution. As has already been noted, Visa Condition 8202(3) clearly imposes responsibility on the educational institution to develop attendance policies in light of the requirements of s 19 of the ESOS Act and Standard 11 of the Code.
Section 19(2) of the ESOS Act requires the educational institution to provide the Department with particulars of any breach by a student of a prescribed condition of a student visa. In relation to the appellant, the particulars provided by VIT to the Department in the certification of 24 September 2007 were as follows:
Particulars of the breach
The particulars of the breach are set out below. Failure to meet the requirements of subclause 8202(3) is a breach of condition 8202. A visa holder meets the requirements of subclause 8203(3) if neither (a) or (b) applies. Paragraph 8202(3)(b) provides: 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 (National Code 2007)
Victorian Institute of Technology Pty Ltd on 24 September 2007 has certified you as not achieving satisfactory course attendance in relation to Advanced Diploma of Hospitality Management (THH60202). Paragraph 8202(3)(b) applies to you. Therefore, you have failed to meet the requirements of subclause 8202(3) and have breached condition 8202.
While perhaps these particulars could have been more informative and referred to the period of non-attendance of the appellant and VIT’s own post-1 July 2007 attendance policies in greater detail, the Tribunal found that as a consequence of this certification the appellant did not comply with Visa Condition 8202.
It 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.
The 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 s 19 and s 20 of the ESOS Act: s 108 ESOS Act.
As the Federal Magistrate found, the absence of reference to a specific period of time in the certification does not impact on the validity of the certification.
During submissions the appellant also referred to factual errors made by VIT in relation to preparing his attendance record, including a claim that he had attended more than 27% of the classes in the relevant term. Notwithstanding the fact that, before the Tribunal, the appellant said that he believed he had attended only around 50% of classes – which is obviously considerably less than the 80% required by VIT – it is clear that:
• VIT’s notice to the appellant dated 8 August 2007 alerted the appellant to appeal processes of which the appellant could take advantage. Any errors in calculation of the appellant’s attendance could have been remedied by the appellant pursuing such processes; and
• In any event, the actual attendance by the appellant is a factual issue which was raised before the Tribunal. Even if the Tribunal had made a factual error in respect of this issue, it is not an issue which goes to jurisdiction of the Tribunal and enlivens the authority of this Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35–36].
It follows, in my view, from that decision that, while in general terms a certificate issued under s.19 of the ESOS Act may be said to speak for itself, the Tribunal is not free to blindly accept whatever the certificate says. The Tribunal must satisfy itself that the certificate engages condition 8202(3). Among other things, the certificate must be issued “for” s.19 of the ESOS Act and either standard 10 or standard 11 of the National Code.
In my view, in considering whether to cancel a visa under s.116 of the Migration Act for breach of condition 8202(3), a decision maker must satisfy himself of herself that a certificate has been issued in accordance with s.19 of the ESOS Act and the relevant standard of the National Code. The certificate must be what it purports to be. If the requirements of s.19 have not been met, or the relevant standard of the National Code has not been complied with, then there will have been no breach of the visa condition. (footnotes omitted)
The question was considered in detail by the Federal Court (Collier J) in Patel v Minister for Immigration [2012] FCA 958, in particular at [47]-[70]. At [57]-[58] her Honour said:
This is not a case where the underlying decision of the University is susceptible to review by the Tribunal, and the Minister is required to go behind the certificate, or be on notice as to the nature of delegations and proper lines of authority within the education provider (compare by way of analogy comments of Davies J in Manokian v Minister for Immigration and Ethnic Affairs (1997) 48 ALD 632 at p 633; Moore J in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333; [2004] 141 FCR 448 at [30]; and Blanchard, McGrath and William Young JJ in the Supreme Court of New Zealand in McNamara v Auckland City Council [2012] NZSC 34 at [155]-[156]).
Compliance with the National Code is required of the education providers, not the Minister. Further, Standard 8 of the National Code requires education providers to have an internal complaints handling and appeals process for overseas students, and education providers are also required to advise students of their right to access an external complaint and appeals process if they are not satisfied with an internal complaint process or outcome. It is this process with which the student must engage if he or she has a complaint about the policies and practices of the education provider, including the manner in which certificates are notified to the Secretary.
At [74] her Honour concluded:
Placing to one side the point that the ground of appeal to which this submission relates is not readily apparent, and the fact that the validity of the certificate was not actually raised by the appellant in the Tribunal, in my view the question posed by the appellant is misconceived. The Tribunal did not “give itself jurisdiction” “to affirm the cancellation” of Mr Patel’s visa “by finding there was a valid certification by Griffith University”. The Tribunal decision was limited to reviewing the decision of the Minister’s delegate that Mr Patel had breached condition 8202 of his visa, where the decision was made following consideration of a notice and certificate in respect of his attendance. A decision, reviewable by the Tribunal, had been made by the delegate. It was not the role of the Tribunal to find that there was a valid certification by Griffith University – once the evidence established that a notice and certificate had been issued by the University which was valid on its face, there was no role for the Tribunal in looking behind the notice.
I am bound by the decision of the Federal Court on appeal from this Court.
The consequence is that, on the authorities, the Tribunal is not required to go behind a certificate issued pursuant to s.19 of the ESOS Act (or a notice issued pursuant to s.20 of that Act). The only questions for the Minister, and the Tribunal, are whether condition 8202 has been breached by reason of the issuing of a certificate in the terms described in clause (3) of the condition and whether, if the condition on the visa has been breached, that breach was the result of exceptional circumstances beyond the visa holder’s control. Nevertheless, the Direction and the National Code may make relevant in that consideration whether an education provider has a policy for the recording of attendance, what the policy is, and whether the education provider records attendance accurately or at all. It may also be relevant to consider whether the process leading to the issuing of the certificate under s.19 of the ESOS Act was a fair one. The difficulty is that if the Tribunal does not look behind a certificate, those issues are only relevant to the consideration of exceptional circumstances. If, as here, an educational institution chooses to record punctuality rather than attendance by reference to contact hours, that is not an exceptional circumstance.
It is left up to education providers to decide what they will record and how they will record it. There is a hopeful assumption underlying the current regime for assessing course attendance that education providers will generally conform to the National Code. So long as departures from that Code are exceptional, the Minister, and the Tribunal, can deal with them as exceptional circumstances. If, however, departures were to become commonplace, they could not do so because what is commonplace cannot be exceptional[54]. That suggests to me a potential weakness in the framing of the visa condition and the policy documents supporting it. It is left to education providers to monitor attendance, to record attendance as they see fit and to notify unsatisfactory attendance. It is left to the Minister, and the Tribunal, to operate a “safety valve” where exceptional circumstances can be demonstrated. The effectiveness of that safety valve depends ultimately upon the maintenance of standards by education providers in conformity with the National Code. If that hopeful assumption were proven to be misplaced there would seem to me to be no alternative to either looking behind s.19 certificates or reframing the visa criteria.
[54] See R v Kelly (Edward) [2000] 1 QB 198 at 208
This ground is not made out on the facts of the case.
Did the Tribunal apply the wrong test?
Ground 2 alleges that the Tribunal applied the “wrong test” in finding that Ms Chen’s attendance had been correctly recorded because it was made in accordance with the education provider’s policy. Ms Chen contends that the correct test was whether her attendance had been correctly recorded in accordance with standard 11 of the National Code.
The Minister contends that this ground is misconceived. Standard 11 of the National Code expressly provides that it is the responsibility of the education provider to monitor attendance for its courses by having and implementing an appropriate documented attendance policy for each course. On that view, the only “standard” against which Ms Chen’s attendance was to be assessed was against the education provider’s policy. That approach may be open to criticism on the basis that education providers’ policies may vary significantly. Nevertheless, that is the standard that has been put in place. If, hypothetically, the education provider’s policy was one that was wholly inconsistent with any rational basis of recording attendance then the Minister and the Tribunal might have cause to look behind the s.19 certificate. While decision makers have no obligation to look behind a certificate, they are not expressly precluded from doing so.
Further, or in the alternative, the Minister contends that the actual attendance by Ms Chen was a factual question solely for the Tribunal to determine.[55] There was no statutory “test” that the Tribunal was required to apply in reaching these findings. The Tribunal’s finding that Ms Chen’s education provider did accurately record her attendance was a finding of fact open to it on the evidence before it.
[55] Maan v Minister for Immigration op. cit., at [47]
I am not persuaded that the Tribunal asked itself the wrong question. The Tribunal correctly addressed the legal framework within which the review must be determined. The Tribunal gave proper consideration to national standards bearing upon its consideration of exceptional circumstances. The Tribunal was not persuaded that exceptional circumstances were demonstrated in this case by reason of the attendance policy adopted by the education provider. I see no error in the approach taken by the Tribunal. This ground fails.
Was the Tribunal decision irrational or illogical?
In Minister for Immigration v SGLB[56] Gummow & Hayne JJ stated:
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds[57].
[56] (2004) 207 ALR 12
[57] Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at 1172 [37], 1175 [52], 1194 [173]; cf at 1168 [9]; [2003] HCA 30; 198 ALR 59 at 67, 71, 98; cf at 62
Further, in SZOOR v Minister for Immigration[58] Rares J stated at [15]:
The approach of irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of jurisdictional error.
[58] [2012] FCAFC 58 (27 April 2012)See also SZDTZ v Minister for Immigration [2007] FCA 1824
In this matter, the fact was that if a student was late for a lecture or tutorial, irrespective of the degree of lateness, they would be marked absent for the whole lecture or tutorial.
As noted above, Standard 11 required that:
The registered provider must record the attendance of each student for the scheduled course contact hours. (emphasis added)
The Tribunal found[59]:
....The Tribunal does not accept that there were any errors by the education provider in attendance monitoring or recording or the process.
[59] CB 190 [68]
Ms Chen submits that no competent decision maker could take the facts in this matter and arrive at the same conclusion as the Tribunal. I disagree.
Ms Chen’s complaint is that the Tribunal’s finding that the attendance records were accurate because the education provider adhered to its own policy in this regard was irrational and illogical. The Tribunal’s finding that Ms Chen’s education provider did accurately record her attendance was a finding of fact open to it on the evidence before it, including the information contained in the education provider’s policy and Ms Chen’s own evidence that she knew about the policy.
This is not a case where there was no probative evidence at all to support the Tribunal’s findings or one where it could be said that reasonable minds might not reach the same conclusion on the body of evidence before the decision-maker.[60] Ms Chen’s description of the Tribunal’s reasoning as being “illogical” should be viewed as merely an emphatic way of expressing disagreement with it.[61] As I have made clear above, the problem, such as it is, derives not from the Tribunal’s reasoning but rather from the regulatory regime within which decisions must be made.
[60] Minister for Immigration v SZMDS (2010) 266 ALR 367 at [131] per Crennan and Bell JJ
[61] Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J
Did the Tribunal fail to consider all elements or integers of the applicant’s claim?
Ms Chen claimed that although her attendance in the relevant course was below 80 per cent, her attendance in courses immediately before and after the relevant course was at or above 80 per cent[62].
[62] CB 151
Ms Chen claimed that this attendance supported her claim that her low attendance in the relevant course was due to exceptional circumstances beyond her control[63].
[63] CB 151
Ms Chen contends that the Tribunal has not considered this integer of Ms Chen’s claim in its “Findings and Reasons”. Ms Chen, therefore, submits that the Tribunal failed to take account or consider that claim.
I accept the Minister’s submissions on this point. To succeed on this ground Ms Chen would have to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw the inference. That is, Ms Chen must demonstrate, on the balance of probabilities, that the Tribunal did not consider the evidence in issue.[64] This complaint fails on the facts, however, as the Tribunal expressly referred to Ms Chen’s submission on this issue[65]. The Tribunal asserted that Ms Chen’s contentions were considered[66].
[64] SZDXZ v Minister for Immigration [2008] FCAFC 109 at [25]; Minister for Immigration v SZNCR [2011] FCA 369 at [50]-[53]
[65] CB 185, [36(g)]
[66] CB 189 [66]
In any event, the task for the Tribunal was to determine whether it was satisfied that Ms Chen’s non-compliance with condition 8202 was not due to exceptional circumstances beyond her control. That is, the Tribunal was required to consider the matters put forward by Ms Chen to explain her failure to comply with condition 8202 and determine whether those matters amounted to exceptional circumstances.
Ms Chen did not claim that the fact of her attendance at courses immediately before and after the relevant course were at or above 80 per cent was a reason for her non-compliance with condition 8202 and it could not possibly be so. Accordingly, there was no obligation on the Tribunal to consider whether Ms Chen’s attendance at other courses constituted an exceptional circumstance. It is hard to imagine how better performance in other courses could ever be an exceptional circumstance beyond a student’s control. The Tribunal’s finding that Ms Chen’s circumstances did not amount to “exceptional circumstances” was in any event a finding of fact for the Tribunal to make and is not subject to judicial review.[67] This ground fails.
[67] Maan v Minister for Immigration and Citizenship op. cit., at [52]
Conclusion
Ms Chen has failed to demonstrate any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 30 October 2012
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