Gallage v Minister for Immigration

[2010] FMCA 1008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GALLAGE v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 1008

MIGRATION – Review of Migration Review Tribunal’s decision – student visa – cancellation of visa for breach of condition 8202 – cancellation pursuant to s.116 – consideration of “exceptional circumstances” – alleged faulty calculation of hours attended – cancellation pursuant to s.137J distinguished – no jurisdictional error established – review dismissed.

Migration Act 1958, ss.116, 137J
Migration Regulations, Schedule 8, Item 8202

Humayun v Minister for Immigration & Multicultural & Indigenous Affairs  [2006] FCAFC 35
Maan v Minister of Immigration and Citizenship (2009) FC 150
Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96
Shek v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 522

Applicant: PRAVEEN SAMPATH POLWATTHA GALLAGE

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 763 of 2010

Judgment of: O’Dwyer FM

Hearing date: 11 October 2010

Date of Last Submission: 11 October 2010

Delivered at: Melbourne

Delivered on: 11 October 2010

REPRESENTATION

The Applicant: In person

Solicitor for the First Respondent:

Mr Wee

DLA Phillips Fox, Lawyers

ORDERS

1. The application filed on 25 May 2010 is dismissed.

2. The Applicant pay the First Respondent’s costs of $5865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 763 of 2010

PRAVEEN SAMPATH POLWATTHA GALLAGE

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter comes before me today on an application by Mr Gallage seeking a review of a decision of the Migration Review Tribunal (the Tribunal), made on 28 April 2010; which decision affirmed an earlier decision made by the First Respondent’s delegate to cancel the Applicant’s Student (Temporary) (Class TU) Sub-class 573 (Higher Education Sector) visa. 

2. In his grounds set out in his application for the review, the Applicant has specified three.  The First ground is that the Tribunal failed to apply the relevant criteria in determining whether the Applicant’s circumstances were exceptional in nature.  That ground is relevant to condition 8202, which applied to the subject visa.

3. I am satisfied, on reading the Tribunal’s decision, that the Tribunal gave full consideration of the various circumstances the Applicant relies on to substantiate the exceptional circumstances.  They include his mother’s illness. In this regard, the Tribunal examined a late assertion by the Applicant that his mother’s illness was determinant of the exceptional circumstances he suffered that precluded him from attending, as required, 80 per cent of course time.  The Tribunal considered the merit of that and made findings to the effect that the mother’s illness was not pertinent to the non-attendance period, and was not relevant to substantiate the contention that there were exceptional circumstances.

4. The Tribunal also considered the Applicant’s contentions concerning a car accident that affected his capacity for attendance, his home-sickness and loneliness, and also the fact that he suffered depression and had difficulties with alcohol.  The Applicant comes here today and is aggrieved by the conduct of the First Respondent in cancelling the visa as he has addressed the issues associated with his depression and alcohol - particularly alcohol - and had got himself “back on track”.

   
   

   He is now ready, willing and able to attend the course. Be that as it may, the Tribunal, as it was required to do, considered the strengths and merits of the arguments that might justify a finding that there were exceptional circumstances and found that there were not. In doing so, it applied the law as set out in Maan v Minister of Immigration and Citizenship (2009) FC 150.  My review of the Tribunal’s determination on this issue leads me to the conclusion that the Tribunal had not erred in the findings that it had made, that it applied the correct law, and there is no jurisdictional error on the part of the Tribunal. 

5. The second ground that the Applicant relies on is that the Tribunal erred in its calculation of the contact hours required by the Applicant’s course. The Applicant today, from the bar table, reasserted his concerns about how that was done by the approved educational institution in that sometimes his attendances were pencilled in and at other times they were not.  The reality, however, is that in relation to this ground, the Tribunal found that the condition 8202 did not require the Tribunal to calculate the Applicant’s attendance, and in that regard the Tribunal, in my view, was correct, and the Tribunal applied the correct version of the condition set out in condition 8202.  That ground fails. 

6. The third and final ground, in essence, contends that the Tribunal’s decision was based on a defective notice issued by the Applicant’s education provider. The cancellation of the visa was pursuant to section 116 of the Migration Act 1958.  That is a significant aspect of this cancellation.  It was not an automatic cancellation, and therefore caught by those cases where there were defective notices.

7. The reality is that the section 116 cancellation is not constrained or affected by the cancellation power under section 137J, initiated by a section 20 notice, and in that regard, the subject Tribunal’s decision stands aside from those considered in Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35; Shek v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 522; and Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96.

8. For all of the above reasons, I am unable to find any error, let alone jurisdictional error, on the way the Tribunal conducted and determined the Applicant’s review application before it. Accordingly, the review application must be dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM.

Date:  11 October 2010