Debnath v Minister for Immigration
[2006] FMCA 1030
•20 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEBNATH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1030 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – MRT finding that it had no discretion – regulations amended before the MRT decision to confer a discretion – amending regulations only applying to visas in force at the time of commencement of the amendments – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.116, 351 Migration Amendment Regulations 2005(No8) Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) Migration Regulations |
| Minister for Immigration v Hou [2002] FCA 574 Minister for Immigration v Nguyen [2002] FCA 460 |
| Applicant: | UTTAM KUMAR DEBNATH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG303 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 20 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms S McNaughton |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG303 of 2006
| UTTAM KUMAR DEBNATH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 4 January 2006. The decision was notified to the applicant through his migration agent, by letter dated the same day. The MRT affirmed a decision of a delegate of the Minister to cancel the applicant's Student (Temporary) (Class TU) visa. The background facts are adequately set out in written submissions prepared on behalf of the Minister and filed on 12 July 2006. I adopt, with minor amendments, paragraphs 2 to 4 of those submissions as background for the purposes of this judgment:
By an application dated 31 January 2006, the applicant applies for review of a decision made on 4 January 2006 by the MRT affirming the decision of a delegate to cancel a Student (Temporary) (Class TU) Visa Subclass 574. The applicant had been issued with this visa (his second) on 6 April 2004. It was due to expire on 10 May 2005. Attached to this visa was condition 8202. The visa was cancelled on 10 May 2005 as the applicant was not enrolled in a registered course. The effect of condition 8202(2)(a) is that the holder must be enrolled in a registered course. The applicant was not so enrolled.
The application for review of the delegate’s decision was made to the MRT on 19 May 2005: court book, page 33. On 22 September 2005, the MRT sent the applicant a letter inviting him to comment on information that the MRT considered would be the reason, or part of the reason for affirming the decision under review: court book, page 49.Although an extension of time to reply to this letter requested by the applicant’s adviser on 12 October 2005 (court book, page 53) was refused, the MRT allowed the applicant to submit any comments to the MRT on or before the MRT hearing (on 10 November 2005) which effectively gave the applicant seven weeks to respond.
The MRT’s approach
The MRT set out or referred to the relevant legislation, policy and case law. It identified the central issue for review at court book page 80 at [35] as being whether or not the applicant was enrolled in a registered course. It noted that whilst the applicant had provided reasons for not re-enrolling in March 2005, he was not enrolled in a registered course. It noted that the combined effect of s116(3), subregulation 2.43(2) and condition 8202 was to deny a discretion whether or not to cancel a visa condition 8202 was not complied with. That is, the MRT must affirm a decision to cancel if the condition was breached. The MRT also considered if the correct procedures relating to notification had been followed and was satisfied that they had been.
These proceedings began with a show cause application filed on 31 January 2006. That application asserted notification of the decision on 4 January 2006. I find that the application was filed within time. The applicant now relies upon an amended application which was filed in court by leave today. That application raises two grounds. The first is that:
The Tribunal failed to properly apply the test of “substantial compliance with visa conditions” to decide the review application.
Particulars
i)The Tribunal overlooked the circumstances, which compelled the Applicant to remain in a position of enrolment.
ii)The applicant received [an] offer letter from the respected Institutes and showed the Department and the Department did not provide the Applicant an opportunity to complete enrolment.
iii)The MRT affirmed the decision without any basis.
The second ground is that:
The Tribunal failed to exercise jurisdiction by considering the claims, evidence and arguments of the applicant.
Particulars
i)The Tribunal did not consider the prevailing documents in relation to the Applicant's mother's illness, which disrupted the Applicant's enrolment.
ii)The Applicant denied that he understood condition 8202 [attaching to his visa] and he was also denied that he said it to the Tribunal.
iii)The Tribunal failed to accord procedural fairness.
The applicant failed before the MRT, as he did before the delegate, because of the strict application of condition 8202 which attached to the applicant's visa. Condition 8202 relevantly required that the applicant be enrolled in a registered course. He ceased to be enrolled in a registered course and sought to explain the extenuating circumstances which gave rise to that position. The MRT found that it had no option but to affirm the delegate's decision cancelling the applicant's visa. In paragraph 28 of her reasons on page 79 of the court book the presiding member said:
The Tribunal must therefore consider whether, at the time of the cancellation, it was possible to make a decision concerning non‑compliance with condition 8202 as it appears in Item 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 from 21 December 2000 onwards. This requires that the applicant be enrolled in a registered course; that the applicant attain an attendance record of at least 80% for the course or the term or semester of the course if the course is structured in such a way; that the applicant achieve an academic result that is certified by the education provider as being at least satisfactory.
The presiding member went on at paragraphs 29 and 30:
The review applicant is not enrolled in a registered course. This information suggests on the face of it that the review applicant has not complied with condition 8202 of their visa and is, therefore, liable for cancellation pursuant to s116(1)(b) and s116(3) of the Act.
Following the decisions of the Federal Court in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 the Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. Once non-compliance with the condition is established the Tribunal is bound, by the operation of s116(3), to affirm the visa cancellation.
The real question in this case is whether that finding by the MRT was right. Mr Debnath did not and does not dispute that he was not enrolled in a course at the time relevant to the visa cancellation and to that extent does not dispute non-compliance with condition 8202. He seeks to rely on extenuating circumstances. The MRT found itself unable to consider those circumstances.
In addition to the material available to the MRT, I have the benefit of a medical opinion from Dr Richard Gray dated 7 June 2006. This became exhibit A1 in this proceeding. Relevantly, the doctor opines that Mr Debnath suffers from chronic schizophrenia which was untreated prior to his consultation with Dr Gray. Dr Gray opines that the schizophrenia affects Mr Debnath's thinking processes and his ability to plan, organise and sequence his activities. Mr Debnath's mental disability, coupled with the personal difficulties which he informed the MRT about, may well have constituted exceptional circumstances warranting a continuation of his student visa notwithstanding his failure to comply with condition 8202. However, the MRT considered it was not open to it to consider exceptional circumstances.
It has in recent years been an unfortunate feature of the Migration Regulations relating to the cancellation of student visas that there was little, if any, room for the exercise of discretion by decision makers. In relation to the class of visa held by Mr Debnath the situation has been addressed in the Migration Amendment Regulations 2005(No8), made on 6 October 2005. Relevantly, paragraph 2.43 of the regulations is amended in relation to condition 8202 so that decision makers are henceforth permitted to consider whether the non‑compliance with condition 8202 was or was not due to exceptional circumstances beyond the visa holder's control. The regulations contain transitional provisions. The explanatory statement accompanying the amendment regulations states in relation to regulation 7 in the transitional provisions:
This regulation provides that the amendment made by Schedule 5 applies in relation to all Student (Temporary) (Class TU) visas in force on or after the day on which these Regulations commence, whether or not a breach of condition 8202 occurred before Schedule 5 commences.
It is plain on the face of the amending regulations that they seek to address the unfortunate consequences which have flowed from the absence of a discretion vested in decision makers. It is also plain that the transitional provisions are intended to give some retrospective operation to the amendments in that decision makers are to take into account exceptional circumstances whether or not the relevant breach of condition 8202 occurred before or after the amendment.
The difficulty which Mr Debnath faces is that the transitional provision also makes clear that the amendment only applies in relation to visas in force on or after the day on which the regulations commence. Mr Debnath's visa was cancelled well before that day.
Accordingly, the MRT was correct in finding that it had no discretion in the matter and was not entitled to take into account exceptional circumstances. The result is an unsatisfactory one for Mr Debnath. It is open to the Minister to consider intervention pursuant to s.351 of the Migration Act 1958 (Cth). That is a matter for her.
The outcome in this proceeding is that I find that the MRT decision is free from jurisdictional error and is therefore a privative clause decision. The application before the court must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. Ordinarily, following a final hearing of a show cause application costs in the sum of $5,000 would be payable. Ms McNaughton has properly sought a lesser amount having assessed the Minister's party and party costs. The Minister seeks the sum of $4,500. Mr Debnath was concerned to ensure that he would have the opportunity to discuss the issue of costs with the Minister's lawyers or her Department but did not otherwise wish to make submissions on costs.
I accept the Minister's assessment of costs and will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 July 2006
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