Ghosh v Minister for Immigration
[2010] FMCA 900
•18 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GHOSH v MINISTER FOR IMMIGRATION | [2010] FMCA 900 |
| MIGRATION – Interim Application seeking an injunction preventing the Minister, his agents or servants from removing the Applicant from Australia – claim that the decision to cancel the Applicant’s visa was not lawfully made under s.116 of the Migration Act 1958 (Cth) because the Applicant had not been properly notified of the Minister’s intention under s.119 of the Act – Interim Application dismissed. |
| Migration Act 1958 (Cth), ss.116, 118A, 119, 122, 124 Education Services for Overseas Students Act 2000, ss.19, 20 Migration Regulations 1994 (Cth), reg.2.43 |
| Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 |
| Applicant: | SAHEB GHOSH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2470 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 15 November 2010 |
| Date of Last Submission: | 15 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones |
| Solicitors for the Respondents: | Ms D Watson (Australian Government Solicitor) |
ORDERS
The Interim Application for an Injunction filed on 15 November 2010 is dismissed.
The Applicant is to pay the Respondent’s costs of and incidental to the Interim Application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2470 of 2010
| SAHEB GHOSH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The Applicant is an Indian citizen who held a Student (sub-class TU 573) visa which was granted in November 2008. The Applicant returned briefly to India in October 2010 for compassionate reasons relating to his mother’s death. He returned to Australia and arrived in Sydney on the evening of 11 November 2010. He was not immigration cleared at that time. Rather, his visa was cancelled and he was taken into detention at the Immigration Detention Centre at Villawood and he is seeking judicial review of the decision to cancel the visa on a number of grounds.
The application was initially filed late on Friday 12 November 2010. At the commencement of the hearing an Amended Application was filed with leave of the Court, without objection. Mr Jones informed the Court that his client was being held in immigration detention and the circumstances of his visa having been cancelled before he was immigration cleared means that he cannot be granted a bridging visa and consequently cannot be released. The amended application seeks the following orders:
1. A writ of certiorari removing into this Court to be quashed the decision of a delegate of the Minister to cancel a student visa held by the Applicant on 11 November 2010.
2. An order that the Respondent pay the Applicant’s costs.
3. An injunction preventing the Respondent, his agents or servants, from removing the Applicant from Australia until further order of this Court.
The Applicant’s Student (sub-class TU 573) visa, issued on 3 November 2008 was issued subject to conditions 8105, 8202, 8501, 8516, 8517, 8532 and 8533. To be eligible to hold such a visa, one must be enrolled in a registered course (visa condition 8202(2)(a)). The Applicant was studying a Bachelor of Information Technology from the University of Ballarat at IIBIT.
The Applicant’s student visa was due to expire in September 2011 which was the anticipated date of completion of his degree course. However, Mr Ghosh’s results for the first semester of this year were poor, resulting in the University sending him a notice indicating that because of his poor performance, he was excluded from the course. In August 2010, the Applicant’s Confirmation of Enrolment (“COE”) was cancelled by the University of Ballarat because he had not enrolled for the next semester, which commenced in July 2010, and also for the non-payment of enrolment fees.
In sworn testimony, the Applicant stated that he had attended an interview at the University where these issues were discussed and resolved resulting in the University reversing its decision to cancel his COE and treat his status as deferral with studies to be recommenced on 15 November 2010. These issues are more fully considered below in the consideration of Mr Ghosh’s evidence and cross examination.
The Applicant relies on the following grounds in support of the orders sought, which include:
1. The decision to cancel the visa was not lawfully made under s.116 of the Act because the Applicant had not been properly notified of the Minister’s intention under s.119 of the Act.
Particulars
The Applicant was given a purported notice of intention to consider cancellation which stated that the Department of Immigration & Citizenship, not the Minister, considered that there appeared to be grounds for cancellation of the visa.
2. The Applicant was denied natural justice by not being given a proper opportunity to answer the case against him.
Particulars
The Applicant was not given a reasonable opportunity to make submissions in respect of the cancellation before the visa was cancelled.
3. The decision maker did not properly address the requirement in reg.2.43(2)(b)(ii).
Particulars
The decision maker was required by reg 2.43(2)(b)(ii) to be satisfied that the breach of the visa condition was not due to exceptional circumstances beyond the visa holder’s control. The decision maker’s reasons show that she understood the requirement to mean that the visa holder had to satisfy her that there were such exceptional circumstances.
Evidence
Mr Jones tendered a bundle of documents which were marked Exhibit “A1”. The bundle contained a copy of the Department of Immigration & Citizenship Form 1111 – Notice of Intention to Consider Cancellation (“Notice”) with an attachment marked “A”. The attachment contains handwritten notes which are not relevant to these proceedings and are to be ignored.
Ms Watson tendered a bundle of documents which were marked Exhibit “R1”. The bundle contains a further complete set of the Form 1111 with attachment “A”.
Evidence of the Applicant
Mr Ghosh was called to give evidence under oath. In his evidence in chief, he indicated that he had attended a counselling session at the University in the last week of August or the first week of September this year, after being excluded from his course. During that interview he indicated to the female conducting the session the nature of his personal stress he was suffering due to concerns about his mother’s health, who is a diabetic and is suffering from a frozen shoulder. The interviewer indicated that he would receive a letter from the University administration in a week notifying him of the decision. The letter indicated that the exclusion had been overturned. Mr Ghosh also stated that he received a telephone call from the course coordinator, Ms Sortie informing him that he could continue his studies for this semester commencing on 15 November 2010.
When Mr Ghosh was asked what his understanding was of his position with regard to his enrolment, he indicated that in July he had lodged an appeal with the University seeking a late enrolment in that month. He indicated that he was instructed to lodge an application with the University seeking a late enrolment but he was subsequently notified that the application was too late and that he should recommence his studies after the current semester. Then the following question was asked:
Mr Jones: Did you ever receive a notice from the University stating that your enrolment had been cancelled?
Mr Ghosh: No, not at all.
Mr Jones: Never?
Mr Ghosh: Nothing, nothing not even an email.
Mr Ghosh confirmed that he left Australia on 13 October 2010 to return to Kolkata, India to visit his mother and to follow up on the medical treatment that she was receiving.
Mr Ghosh indicated that he left India to return to Australia on 10 November at 11.55pm and landed in Sydney at approximately 9pm on the evening of 11 November. He indicated that he presented his passport with his immigration form to immigration clearance. During the clearance procedure he was directed to an immigration officer. That officer inquired as to what University he was attending and what course of study he was undertaking. Shortly after the immigration officer advised Mr Ghosh that his COE had been cancelled in August. The immigration officer who identified himself as William advised Mr Ghosh that he had received notification that afternoon that the COE was cancelled in August 2010.
Mr Ghosh indicated that he was directed to collect his luggage and go to an interview room where an immigration officer would conduct an interview.
The immigration officer (Maggie O’Halloran) conducted a brief interview and advised Mr Ghosh that she would prepare and provide him with a letter in approximately ten minutes. At approximately 11.30pm Mr Ghosh was provided with a letter that was identified as attachment “A”. This document was contained in the tender bundle marked Exhibit “A1”. Mr Ghosh confirmed that this was a document handed to him by Ms O’Halloran. The following evidence was then given:
Mr Jones: Now, so she gave these to you at 11.30 and said, “you have 10 minutes”?
Mr Ghosh: Yes
Mr Jones: After those 10 minutes passed, what happened?
Mr Ghosh: Then, again, she came inside and she asked me, like, would you like to say anything about your visa cancellation? And I told her yes, that I just seek for one day’s permission. Like, I think there is a miscommunication between me and with the University. Just I seek for one day permission, just give me, just send me – send along with me one more officer so that I can go and I can do whatever I can do with the – because I don’t have any support to – like, any evidence to support myself. Then she told me, “anything you want to say?” I said, yes. You know, like, for studying here my parents have to do a lot of hardship. I told her about my family, everything, then after the, like – there was a radio. There’s a tape, she was recording my voice or something like that. Then she said “OK, that’s it”? And I said yes, then after a few minutes, again she went away, and went back, and came back and she told me that, “your visa was cancelled”.
Mr Jones: She said your visa was cancelled?
Mr Ghosh: Yes
Mr Jones: I see. And what happened then?
Mr Ghosh: Then I have to wait until 1:00. She told me, like, tomorrow – most probably tomorrow if there’s an available flight, I’ll send you back home. And then I told, like – then she told me like, if you take my advice it’s not going to work, you can’t agree on that so you have to deport from here. Then – and on the 2:00 and 3:00 they have sent me to Villawood.
Mr Ghosh confirmed that during the interview with the officer of the Department of Immigration he indicated that the last time he attended University was in June 2010 and that the semester was actually due to finish in July. He confirmed that he had told the officer that he was aware that he had been in the first stage of exclusion from the University. However after he had attended the counselling session, the University had advised him by letter that the exclusion had been overturned and the telephone call from the course coordinator informed him that he could continue with his studies from this semester. He was also informed that there was no imposition as the scheduled recommencement date was 15 November. Mr Ghosh also confirmed that he had informed the officer that he had been excluded from the course on 13 August of this year for the reason that he had failed to enrol and the non payment of fees.
The cross examination then addressed the following issue:
Ms Watson: Do you further agree that when you were being interviewed by the lady from immigration that you told her that you hadn’t told the University that you were going overseas?
Mr Ghosh: No, no.
Ms Watson: ...do you agree – or I’ll put it to you that other than referring to financial difficulties you didn’t mention any other difficulties to the lady from immigration?
Mr Ghosh: I told her like, I went to India because of my parents, this thing. I told him about that. Because I told her, like, if my COE was cancelled and everything that has happened, certainly, I would have spoken with immigration, because, like, if I knew that from August it was cancelled, then I certainly would have went to immigration, solved this problem, then went back to India because I was not concerned about that, because my COE was cancelled.
Ms Watson: If I can suggest to you that you refer to the fact that your parents have spent a lot of money on your studies?
Mr Ghosh: Yes I told them.
Ms Watson: Is that the only reference you made to your parents and the problems you were having?
Mr Ghosh: No no. When, like, 11.40 when there was the last interview with the immigration officer, I told the officer like “the thing is, like, I already studied – I already studied so much. Now only a few semesters left for me to complete my course. Now, if I go back to India, then I have to start again. So from during this time my parents have got a lot of hardship because they have to spend a lot of money on me, they were struggling. My father was not there, my family was alone, and my mother was alone. Then suddenly she had to like, fallen stick. And I told them everything about that.
The cross examination then focused on the letter issued by the University revoking the cancellation.
Ms Watson: So is anyone living at the address in Chalmers Street…have you got flatmates?
Mr Ghosh: At present, no, because working with me they have gone to their own country.
Ms Watson: …are you able to get anyone to access your apartment to obtain the letter that you say you have from the University?
Mr Ghosh: I don’t think so, no.
Ms Watson: Do you know where the letter is that you say says that you can continue on with your studies?
Mr Ghosh: It’s in the University because the thing is that…
Ms Watson: It’s at the University?
Mr Ghosh: At the University because the thing is that, like, that there every time, like – when the first letter is here from the University they have to there was written on the letter that he had to apply within 21 days against this letter. So I’ve sent this letter and I also have the document to send with Australia Post, the docket, also that is in the University.
Ms Watson: Now you know the condition that is attached to your visa that says that you must be enrolled?
Mr Ghosh: Yes I must be enrolled.
Ms Watson: …in a University course?
Mr Ghosh: Yes
Ms Watson: Did you think it would be important that when you came back into Australia you need some sort of proof that you actually were continuing on? Because it sounds to me that you’re suggesting that your studies have been deferred for six months?
Mr Ghosh: Yes, yes.
Consideration
Applicant’s submissions
Ground one
Mr Jones submits that s.116 of the Migration Act 1958 (Cth) (“the Act”) gives the Minister the power to cancel a visa if he or she is satisfied on one of a number of matters that are set out in the section and the relevant Regulations applicable to that section. However, before the Minister can exercise their power there is a procedure that has to be followed. Commencing at s.124:
… the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:
(a) the holder responds to the notice;
(b) the holder tells the Minister that the holder does not wish to respond;
(c) the time for responding to the notice passes.
Mr Jones submits that it is clear that a decision to cancel a visa cannot be made until notice has been given under s.119 which states:
Notice of proposed cancellation
(1) Subject to Subdivision F (non‑citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
The details of the contents on the invitation are contained in s.121 which states:
Invitation to give comments etc.
(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
The next sub-section deals with a period that a person is supposed to be given for a response and subsection (3) states:
(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
Mr Jones informed the Court that in s.122 there is a statement that the Migration Regulations 1994 (Cth) (“the Regulations”) can prescribe a period or other time limit relating to a step taken in considering the cancellation of a visa. However, there is nothing specified in the Regulations about what period of time a person is to be given in relation to a Notice under s.119 where the response is to be given at an interview. Consequently, the situation is that a person has to be given a reasonable period as specified as s.121(3)(b).
Mr Jones referred the Court to Exhibit “A1” which were faxed copies of the documents given to the Applicant at the airport on Thursday evening, 11 November 2010. The first document is the standard Notice under s.116 of the Act for use in immigration clearance. In Part A – Notice of Intention to Consider Cancellation of Visa, the Applicant’s full name: “Ghosh Saheb” appears.
At point 2 the following words appear:
It has come to the Department of Immigration & Citizenship (the Department) attention that appears to be grounds for cancellation of your subclass TU573 visa granted on 3 Nov 2008 under s.116 of the Migration Act for the following reasons.
See attachment A.
Attachment “A” is a typed document that was handed to the Applicant which states:
On your arrival at Sydney Airport on 11/11/10 you agreed to engage in an interview with an immigration officer. It has come to the Department’s attention that there may be grounds for the cancellation of your TU573 granted on 3.11.2008 under 116 of the Migration Act for the following reasons:
- Your visa TU573 has a condition 8202 attached.
- Paragraph 8202(2)(a) requires that “the holder is enrolled in a registered course.
- Records held by the Department indicate that you have not been enrolled in a registered course of study since 01.07.2010. Your Confirmation of Enrolment (COE) was cancelled by your provider in August 2010 because you did not enrol for the next semester commencing July 2010, and also for the non-payment of enrolment fees.
- You therefore have failed to meet requirements of subclause 8202(2)(a) and have breached condition 8202.
In this is the case, your visa may be cancelled under section 116(1)(b) and section 116(3) and Regulation 2.43(2)(b) (breach of condition 8202).
The Notice then continues:
If this is the case, your visa may be cancelled under
116(1)(b) and s.116(3) and reg.2.43(2)(b)
(Student breach of condition …or 8202).
Mr Jones submits that the above document purports to be the Notice and the first ground of challenge is that the Notice is invalid because it does not comply with the requirements of a Notice as stipulated in the Act. In support of ground one, the Applicant relied upon Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218 which dealt with whether a s.119 Notice effectively cancelled the student visa. Mr Jones acknowledges that the majority of Wilox and Branson JJ dismissed the appeal but on a ground that is not relevant in this matter.
Mr Jones referred the Court to the Department’s form 1111 and argued that it is clear that the document is not worded in a way that also would not be accepted as it was analogous to the reasoning of their Honours in Uddin where they stated that it is quite clear from the legislation that it is important that it be the Minister who was considering the cancellation. Mr Jones acknowledged that the Minister may have a delegate but it is certainly not the case that the Department as such can be the delegate of the Minister so if it is the Department’s attention that this possibility has come to its attention then that is not what the Act requires.
In Form 1111 the following words appear:
There appears to be grounds.
Nevertheless attachment “A” the wording appears:
It has come to the Department’s attention that there may be grounds.
The speculative error that their Honours identified in Uddin appears at least in the attachment if not in Form 1111. Consequently Mr Jones argues that this document does not meet the requirements of s.119 of the Act and for that reason the whole process leading up to the cancellation stalls because s.124 states that the cancellation cannot occur until the notice has been given and then responded to. If the notice is not valid as was found by their Honours in Uddin it is not a valid notice.
Ms Watson indicated that the position of the Minister is that there is no arguable case raised in relation to the document entitled “Notice of Intention to Consider Cancellation”. Ms Watson submitted that the Full Court decision in Uddin ultimately turned on the issue of whether or not the Migration Review Tribunal had the power to review a decision to cancel in circumstances where the Full Court considered that a Notice was defective and therefore invalid. Ms Watson acknowledged the submissions made by Mr Jones and indicated that she wished to draw the Court’s attention to paragraph [39] where the Court says:
For this reason, it is regrettable that paragraph 9 of form 1099 is drawn in terms of “the Department” rather than “the Minister”.
Ms Watson makes the observation that what the Court does not then go on to say “therefore the notice is invalid for that reason”. What it says is:
Use of the term “the Department” may, as we think it did in this case distract attention from the obligation imposed on the decision maker by s.199 and s.124.
The judgment then proceeds to deal with other aspects of Mr Jones’ argument:
Further, the expression ‘there may be grounds’ contained in form 1099 is not the equivalent of the statutory phrase ‘there appears to be grounds’.
The judgment does not present a finding in relation to the form of the Notice. Rather, the Court comments on the content of the Notice at para [41] where it states:
We turn now to matters touching on the contents of s.119 notice as opposed to its form.
So there has been no finding that the Notice is invalid based on the reasoning discussed thus far. Uddin deals with the required particulars in a Notice as grounds for considering cancellation. In particular there is a reference to the breach of condition 8202 and in the concluding lines:
It appears to have breached condition 8105 and 8202 of your student visa.
At para. [43] – [44], after considering the various matters in para [42] which were identified as the grounds for considering cancellation in particular that there had been non compliance with condition 8202(2) the Court says:
[43] As is mentioned above, s.119 notice did not notify the Applicant that there appears to be grounds for cancelling his visa. It did not notify the appellant that any person was satisfied, even on a provisional basis, that he complied with condition 8202(2) of his visa. He did not notify the Applicant that reliance was being placed on the notice stated 11 April 2003, given to him by the University of Ballarat.
[44] And that was the other underlying basis upon which there considered to be a ground of cancellation. We conclude that, for the purposes of s.124 of the Act the notice about the cancellation on the ground that the Minister was satisfied because of the notice dated 11 April 2003 given to the Applicant by the University of Ballarat the Applicant had not complied with condition 8202 of his visa, was not given, under s.119 by s.119 notice.
Ms Watson submits that the basis for the Full Court concluding that valid notice had not been given under s.119 was the failure to provide particulars. While noting that the wording of the form was unfortunate and perhaps distracted the attention of the delegate from the task which the delegate had to undertake, this did not form the basis of finding, ultimately by the Court, that the notice was invalid. Ms Watson’s submission was that ground one does not raise an arguable ground for review for finding that the s.119 notice was invalid.
Observations in Respect of Ground One
The argument advanced by Mr Jones was that the notice give to his client by a delegate of the respondent (“the Minister”) pursuant to s.119 of the Act, was invalid. Consequently, the entire procedure set out in “Subdivision E – Procedure fro cancelling visa under Subdivision D in or outside Australia” became inoperative because of the invalidity of the notice. In other words, the whole process leading up to the cancellation stalls because of s.124 states that the cancelation cannot occur while the notice has been given and then responded to.
The written notice (Exhibit R1) was given to Mr Ghosh by immigration officer Maggie O’Halleran at about 11:30pm of Thursday 11 November 2010. The notice is identified as “Attachment A” in the exhibit bundles.
The question that arises is whether the particulars set out in that notice satisfy the requirements of s.119 of the Act. Compared with notice under consideration in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (supra) the notice issued to Ghosh did contain the essential information required. In Uddin at [26] their Honours state:
[26] The language of s 119 makes plain, in our view, that a notification given under s 119 must, amongst other things:
(a) notify the holder of the relevant visa that there appears to be grounds for cancelling it;
(b) give the visa holder particulars of those grounds; and
(c) give the visa holder particulars of the information (not being non-disclosable information) because of which the grounds appear to exist.
That is, s 119 draws a distinction between grounds of cancellation, particulars of grounds of cancellation and particulars of information because of which grounds of cancellation appear to exist. The purpose of the notification to be given as required by the section is that indicated by para 119(1)(b). It is to provide the visa holder with an opportunity to show, if he or she can, that the identified grounds for cancellation do not exist or that there is a reason why the visa should not be cancelled.
In respect of requirement (a) above, the notice states:
Your (TU-573) granted on 03.11.2008
In respect of (b) and (c), the particulars are set out at paragraph [22] above.
Consequently, I am satisfied that the s.119 notice is valid and that ground 1 cannot be sustained.
Ground two
Section 118A provides for an exhaustive statement of the natural justice hearing rule. Mr Jones submits that if the procedures outlined in this section are not followed a breach of natural justice is enlivened.
Mr Jones submits that the Applicant was given ten minutes to respond to matters that he had previously been completely unaware of, particularly that his enrolment had been cancelled. It was submitted that the Applicant had received communications from the University that would have led him to believe that his enrolment had not been cancelled. It was submitted that he was told that his enrolment had been cancelled in August and yet he had had correspondence and oral communications with the University in September advising him that his exclusion had been overturned and that he was welcome to re-enrol in November. These were matters that he brought to the attention of the immigration officer and asked for 24 hours to find evidence to support his claim, a request which it is submitted was quite reasonable in the circumstances. However, this request was completely ignored.
The officer after ten minutes had expired then left the interview room for another 16 minutes during which time she presumably typed up the document cancelling the visa. Mr Jones argues that this does not accord with the requirements of the Act as he was not given a proper opportunity to respond and put their case within a reasonable time period. A reasonable period must be reasonable within the circumstances of the case. In the circumstances where the person is at the airport at 11.30pm at night advises the interviewing officer that he can get evidence in 24 hours, it is certainly not reasonable to at least wait until the next day when it might be possible for the person to obtain that evidence. Mr Jones submits that not granting the Applicant this time was unreasonable in the circumstances and that therefore the requirements of the Act were not complied with.
Ms Watson acknowledges the allegation that the Applicant was denied natural justice. However, on the evidence that has been provided during oral testimony, the Applicant was given an opportunity to provide an explanation as to why he was not presently enrolled in a course of study. A delegate put to Mr Ghosh the details that had been provided by the education provider which was that he was not presently enrolled in a registered course. He was advised the records held by the Department indicate that he had not been enrolled in a registered course of study since 1 July 2010.
Your confirmation of enrolment was cancelled by your provider in August 2010, because you did not enrol for the next semester commencing July 2010 and also for the non payment of enrolment fees. You therefore have failed to meet the requirements of sub clause 8202(2)(a) and breached condition 8202.
It is clear from his sworn evidence that he was aware that the Department had been informed that he was no longer enrolled and his COE had been cancelled. He provided a response to that. Ultimately the delegate chose to prefer the information that had been provided by the education provider rather than the suggestion by the Applicant that he had received correspondence to the contrary of what had been advised. Ms Watson submits it is a question for the decision maker as to whether or not one version is to be believed or another.
The argument advanced by Mr Jones is that there has been a denial of natural justice as Mr Ghosh was not given further time to provide documentary evidence to support his version of events. However, he was given the opportunity to provide a version of events of what the complaint really is but he was not allowed to provide further evidence to support it. In circumstances like these where there are conflicting pieces of information, it is a question for the decision maker as to which evidence is preferred. This is not territory for the Applicant to suggest that he was hampered in providing an explanation.
Observations in respect of ground two
The recent High Court decision in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 considered the operation of the natural justice hearing rule in respect of procedural fairness. In the judgment of French CJ, Gummow, Hayne, Crennan and Keifel JJ their Honours stated:
(i) The implication of the principles of natural justice in a statute is arrived at by a process of construction, such that principles of natural justice regulate the exercise of a power to destroy or prejudice a person’s rights or interests conferred by statute unless parliament clearly expressed its intention to depart from that position: at [11]–[15].
Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 ; 209 ALR 116 ; [2004] HCA 40; Annetts v McCann (1990) 170 CLR 596 ; 97 ALR 177 ; 21 ALD 651 ; [1990] HCA 57; Kioa v West (1985) 159 CLR 550 ; 62 ALR 321 ; [1985] HCA 81; Commissioner of Police v Tanos (1958) 98 CLR 383 ; [1958] HCA 6, applied
(ii) The insertion of s 51A was a response to the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ; 179 ALR 238 ; [2001] HCA 22, such that parliament intended to exclude the common law natural justice requirements other than the rule against bias: at [16]–[30].
[2] The terms of s 51A are not directed to all requirements of natural justice. They are expressed to apply to the requirements of the natural justice hearing rule. The concern of that rule is that procedural fairness be applied in the process of decision-making in circumstances where a person’s rights or interests may be affected by the decision. Applied to a case such as this, the rule requires that an opportunity be given to a person to deal with adverse information that is credible, relevant and significant to the decision to be made.2 It reflects a fundamental principle of natural justice.
…
[10] Subdivision AB concerns how an application for a visa is dealt with after it is lodged and before a decision is made. Section 52 provides for the way in which a visa applicant may communicate with the minister after lodging an application. Sections 54 and 55 require the minister to have regard to information forming part of the application, or which is provided subsequently, but prior to a decision being made. Sections 56 and 57, which assume importance on the appeal and are set out below, provide, respectively, that further information may be sought from a visa applicant and that certain information received by the minister must be provided to a visa applicant for comment. Section 58 makes provision for how the additional information, invited under s 56, or the comment on relevant information, invited under s 57, may be given. Section 63 provides for the time when a decision may be made, having regard to whether invitations for information or comment are outstanding.
[11] In Annetts v McCann11 it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power.12 Brennan J in Kioa v West13 explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:
[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that “the justice of the common law will supply the omission of the legislature”. The true intention of the legislation is thus ascertained.
…
[13] Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa.15 A failure to fulfil that condition means that the exercise of the power is inefficacious.16 A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid.17
It is noted that although in Saeed s.51A was the subject of the hearing, the wording of s.51A is identical to s.118A which is relevant to the matter before this Court.
Unfortunately the evidence on oath of Mr Ghosh was that he had been notified of the university’s intention to exclude him because of his poor academic performance during the first semester this year. He subsequently attended an interview with a counsellor to explain his poor performance and was advised that he would be notified of the review process by letter in approximately one week. Subsequently, that letter advised that the university had reversed the decision to exclude him and that he was welcome to re-enrol. Mr Ghosh then described the steps he had taken to seek a late enrolment int eh current semester but this was unsuccessful. Further steps were taken by Mr Ghosh to re-enrol and provision was apparently made to enable him to do this in November 2010, commencing lectures on 15 November 2010.
Significantly, the re-enrolment step does not appear to have happened. The university complied with its obligations under s.19 of the Education Services for Overseas Students Act 2000 (the “ESOS Act”) and notified the Secretary of the Department under subsection 1(d) of any termination of an accepted student’s studies (whether as a result of action by the student on the procedure or otherwise) before the student’s course is completed.
If Mr Ghosh had re-enrolled at Ballarat University he would again have achieved the status of “accepted student” and the Secretary of the Department should have been notified within 14 days of this event. On the material before the Court and on hiw own evidence, this has not occurred and consequently fails to satisfy the requirement of condition 8202.
The argument advanced on behalf of Mr Ghosh seeking a greater time in which to respond to the s.119 notice could not have been satisfied by the production of the university letter granting him the opportunity to re-enrol. In the circumstances, ground two cannot be sustained.
Ground three
Mr Jones submits that ground three is a matter of strict statutory construction. He referred the Court to s.116(3) of the Act which states:
(3) If the Minister may cancel a visa under subsection (1),
Mr Jones acknowledges that sub-section (1) does clearly state that the Minister may cancel a visa. So this is a discretionary power. However sub-section (3) continues:
…the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Reg. 2.43(2) of the Migration Regulations 1994 (Cth) (“the Regulations”) states:
(2) For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) in the case of a visa other than a relevant visa -- each of the circumstances comprising the grounds set out in:
(i) sub-subparagraphs (1) (a) (i) (A) and (B); and
(ii) paragraph (1) (b) ; and
(aa) in the case of a relevant visa -- the circumstance comprising the grounds set out in subparagraph (1) (a) (ii); and
Reg 2.43(2)(b) states:
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder's control.
Mr Jones contends that if the Minister or a delegate has properly reached a state of satisfaction that the visa holder has not complied with condition 8202 and has also reached the state of satisfaction that the non compliance was not due to exceptional circumstances beyond the visa holder’s control, then the Minister must cancel the visa. If the Minister is not satisfied of those two requirements, then the decision to cancel the visa is at the Minister’s discretion.
In the matter before this Court in the Department’s form headed ‘Decision’ Part B – reasons of the decision maker whether to cancel visa. At item 10 the following appears:
Decision whether to cancel (this question does not need to be completed if decided at question 4 that no grounds for cancellation exist).
What is the delegate’s assessment of the relevant factors?
Note: It is not acceptable to mandatory cancellation under reg.2.43(2) go to question 11.
These factors include, but are not limited to, the following:
The delegate should consider any relevant factor.
Claimed purpose to travel to and stay in Australia - client claims to return to Australia to resume studies.
Compliance or non compliance with visa conditions - client is in breach of condition 8202 attached to his TU-573.
The degree of hardship which may be caused to the visa holder, their family members and others if the visa is cancelled -no hardship was raised during his interview at SKSA.
Circumstances in which grounds of cancellation arose if the information obtained from DIAC database
-information obtained from clients provided by telephone.
-information provided by client during interview at SKSA.
visa holders behaviour in relation to the Department now and on any previous occasion.
-calm and cooperative.
Then at point 11 of the form the following appears:
Other relevant factors (if applicable)
eg exceptional circumstances under reg.2.43(2)(b)(ii)(B) -there is no exceptional circumstance beyond the visa holders control presented to DIAC by client during interview.
Under item 12 – Decision:
In weighing up the grounds for cancellation the response to the visa holder’s evidence available and other factors do the reasons for cancelling the visa outweigh the reasons not to cancel?
(where reg.2.43(2) applies (mandatory calculation), no statement about the weighing up of the grounds for cancellation, evidence and reasons is necessary).
for breaches of condition 8202 explain whether or not you are satisfied that the breach was due to exceptional circumstances beyond the visa holder’s control –yes is ticked
give reasons - grounds for calculation of the client TU 573 exists. Refer to item 9 on form 1111.
client did not present any exceptional circumstances beyond his control to explain the breach of condition 8202.
this ground made the visa cancellation mandatory under Migration Act s.116(3).
Mr Jones submits that what the decision maker is saying is that it was up to the Applicant to put forward any exceptional circumstances beyond his control that might explain the breach, and because the decision maker says that he did not do that the decision maker says:
Therefore the visa must be cancelled.
Mr Jones submits that the decision maker is clearly misunderstanding the function of reg.2.43(2)(b)(ii)(B) which requires her, in this case, as a delegate, to positively satisfy that the non compliance was not due to any exceptional circumstances beyond the visa holder’s control Mr Jones submits that in a situation where a delegate has nothing before them, they may form the view “oh well are there any exceptional circumstances”. The decision maker may read that state of satisfaction that there were none but in this case, the decision maker had not approached it from that point of view. The decision maker said “well the Applicant did not put forward any exceptional circumstances although we did not suggest that he did but therefore it is not up to me to see if there are any others”.
Mr Jones argues that the Departmental officer did not her responsibility to inquire as to whether there were any exceptional circumstances. Mr Jones acknowledges the difficulty with the legislation but it does relate to a very serious consequence for his client because it results in his visa being automatically cancelled without there being any discretion on the part of the decision maker to look at other circumstances. The wording says that the client did not present any exceptional circumstances beyond his role. This is clearly incorrect. The document itself contains the following comment:
Client claimed that he currently has no documentary evidence to support himself and would like one more day to obtain documents from the University.
The necessary inference is that the Applicant has told the officer that he does have evidence that would show that there were some exceptional circumstances. When the decision maker says that he did not present any exceptional circumstances beyond his control, it is not only that she applied the wrong test but she actually misstated the evidence before her.
Ms Watson submits that the Applicant has referred to, in his evidence today some additional issues which are not reflected in the documents that are currently before the Court. However, the Applicant is asserting that he advised the delegate of these issues. Ms Watson indicated that she was not in a position at this stage to cavil with that assertion for the purposes of the interlocutory proceedings. However, the additional matters which have been led into evidence are essentially, that he was depressed about the situation with his family overseas and he was not in a position to continue with his studies for both that reason and also for financial reasons. He sought a deferral of his studies and he was allowed that deferral by his University as opposed to the University advising the Department that he had his enrolment cancelled.
Ms Watson advances the argument that even if those matters were referred to during the course of the interview they do not amount to matters of non-compliance which one might see as exceptional circumstances beyond the visa holder’s control. The reality is that he is not presently enrolled and he has conceded that there are some financial issues in relation to that. There is nothing which has been put forward to suggest that the reason why he finds himself in the present position is not something that the delegate would be compelled to consider or would amount to an exceptional circumstance. The delegate having considered all of the matters that the Applicant provided during the course of the hearing, has come to the conclusion that there were no exceptional circumstances.
Ms Watson submits that what the delegate has essentially done, having presented the Applicant with the Notice of Intention to Consider Cancellation, that having conducted an interview with the Applicant and attempting to ascertain how the Applicant came into the situation, there is no suggestion led that the Applicant was prevented from providing any reasons or was unable to explain why he was in the position he was. The delegate is entitled to form a view that there were no exceptional circumstances which were before her and nor is there any suggestion that there were any exceptional circumstances which the delegate should have considered over and above what is presently before her. That being the case, she was entitled to form the view that she was not satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Observation in respect of Ground Three
I note the argument advanced by Mr Jones however, without the benefit of the decision maker giving evidence on the tapes of the interview, I am unable to determine what detailed steps the decision maker took during the relevant points of the process and why she came to her conclusion. I do not believe that the argument that the decision maker did not adequately pursue the investigation of exceptional circumstances can be sustained in the absence of specific evidence. Mr Ghosh has recounted his version of events however his evidence does not address this issue. Even if Mr Ghosh had in his possession the document upon which he relies, on the information that is before the Court the contents would not have been sufficient to reach the threshold to establish an exceptional circumstance. In the circumstances, I am satisfied that this ground cannot be sustained.
Conclusion
In oral evidence given by Mr Ghosh he confirmed that he understood that a condition of his TU573 visa was condition 8202 which required his enrolment in a registered course, in his case his Bachelor of Information Technology at the University of Ballarat. Mr Ghosh also confirmed that he had not attended lectures since June of this year. He indicated that due to concerns he had about his mother’s health, he was depressed and performed poorly in his studies. He indicated that the university sent him a notice. Although Mr Ghosh did not identify this document it would normally be a s.20 Notice issued under the provision of the ESOS Act. Mr Ghosh stated that he received the document in July. A s.20 notice is required for resolution within 28 days, reasons for its issue and the consequences on his visa. This resulted in the University issuing him a notice indicating his exclusion. Mr Ghosh acknowledges that the university cancelled his COE. In August 2010, the University of Ballarat notified the Secretary of the Department in accordance with its obligations under s.19 of the Education Services for Overseas Students Act 2000 (the “ESOS Act”), indicating that Mr Ghosh was not enrolled for the next semester, which commenced in July 2010 and also for the non-payment of enrolment fees.
After attending a counselling session, the university issued Mr Ghosh with a letter indicating that the decision to exclude him from his course had been overturned and that he could re-enrol. Mr Ghosh gave some confused evidence in respect to steps he had taken to pursue late enrolment which had been denied, however some alternative arrangement had been reached for him to recommence studies on 15 November 2010.
Mr Ghosh essentially relies on the letter issued by the university indicating that his exclusion had been overturned. That document is not before the Court and under cross-examination Mr Ghosh stated that the letter was no longer in his possession or at his normal residence in Chalmers St, Sydney. He indicates that the document had been returned to the university, attached to documentation submitted to comply with the university requirement to respond within 21 days of the decision letter. This evidence was also confused but the issue was not fully explored in re-examination or cross-examination.
Significantly, by oversight, misunderstanding or mistaken decision, Mr Ghosh has not undertaken the essential steps to re-enrol. A specific explanation for this action was not addressed in evidence-in-chief, or pursued in cross-examination. However, there is nothing before the Court to indicate that the necessary steps to re-enrol at Ballarat University at the current or the next semester of which Mr Ghosh is eligible to undertake, has occurred. I am satisfied this is the situation as the university has not informed the Secretary of the Department that it has accepted enrolment for Mr Ghosh and issued him with a current Certificate of Enrolment. As the university has 14 days in which to comply with this requirement under the ESOS Act, the inference must be that this has not occurred. Mr Ghosh, in evidence-in-chief confirmed that he left Australia on 13 October 2010 and was returning on 11 November 2010 when he was held in immigration clearance. The denial by Mr Ghosh of any knowledge that his COE had been cancelled by the university and the Secretary of the Department being notified of this action on 14 August of this year, would appear to be inconsistent with the balance of the evidence before the Court.
Significantly, the immigration officer who conducted the interview with Mr Ghosh at Sydney Kingsford Smith Airport on 11 November 2010, had access to the Department’s records indicating cancellation of the COE on 11 August 2010, which had been confirmed by telephone with the university earlier that evening. Mr Ghosh’s explanation in respect of his situation relied upon the production of the university letter indicating that his exclusion from the course had been overturned and that he was eligible to re-enrol. Even if Mr Ghosh had a copy of that letter in his possession and it contained the information which he has indicated was in that letter, his circumstances would not have changed. He is not enrolled in any “registered course” as required by condition 8202 and consequently does not hold a valid COE.
The thrust of this Interim Application is that the interviewing officer, when exercising her discretion in determining the period of time in which Mr Ghosh was given to respond to the contents of the s.119 notice was insufficient, before proceeding with the decision process. No complaint has been raised before this Court by Mr Ghosh indicating that during the interview with the officer he was denied the opportunity to fully explain his situation. Ms Watson has indicated that the interview was recorded and this was acknowledged by Mr Ghosh in sworn testimony. Further, the immigration officer who conducted the interview could be called to give evidence. In the circumstances I believe this is unnecessary as the sworn testimony of Mr Ghosh and submissions made by Mr Jones do not canvass or suggest that Mr Ghosh had undertaken the necessary steps to re-enrol in order to obtain a valid COE. Without this having occurred, Mr Ghosh cannot satisfy the requirements of his Student TU- 573 Visa.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 18 November 2010
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