Ghosh v Minister for Immigration (No.2)
[2011] FMCA 822
•21 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GHOSH v MINISTER FOR IMMIGRATION (No.2) | [2011] FMCA 822 |
| MIGRATION – Application to review the decision of a delegate of the Minister at Sydney International Airport – Applicant denied re-entry into Australia at Immigration Clearance - student visa cancellation – Certificate of Enrolment cancelled prior to departure from Australia – whether the Officer considering the non-compliance with condition 8202 erred in finding it was not due to exceptional circumstances beyond the visa holder’s control – application dismissed. |
| Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth), reg.2.43 |
| Ghosh v Minister for Immigration & Citizenship & Anor [2010] FMCA 900 Karmaker v Minister for Immigration & Anor [2011] FMCA 595 Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 |
| Applicant: | SAHEB GHOSH |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2470 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 February 2011 |
| Date of Last Submission: | 1 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones |
| Solicitors for the Respondents: | Ms D. Watson (Australian Government Solicitor) |
ORDERS
The Amended Application filed on 15 November 2010, is dismissed.
The Applicant is to pay the Respondent’s costs, of and incidental to the Application, fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2470 of 2010
| SAHEB GHOSH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Background
I refer to my earlier decision in this matter Ghosh v Minister for Immigration [2010] FMCA 900 (18 November 2010) which provides a useful background to the Applicant’s situation in this case.
1. 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.
2. 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.
3. 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 IIIBIT.
4. 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.
5. 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.
The proceedings
The Applicant relies on the following grounds in his Amended Application filed in Court on 15 November 2010 which state:
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.
At the time of the second hearing on 1 February 2011, Mr Jones indicated to the Court that grounds 1 and 2 were no longer pressed and the Applicant seeks to rely on ground 3 of the Amended Application (above).
Evidence
The only evidence that has been filed in this matter is:
a)Affidavit of Dale Jennifer Watson, sworn 18 November 2010 and filed in Court on 14 January 2011. The Affidavit contains the following attachments:
i)Annexure ‘A-1’ – a copy of the Transcript of the interview involving the Applicant and Ms O’Halloran on 11 November 2010;
ii)Annexure ‘A’ – print out of a database by the Department and maintained by the Department of Education, Employment and Workplace Relations containing an entry relating to the Applicant;
iii)Annexure ‘B’ – copy of a file note relating to a telephone conversation about the Applicant made at 5:30pm;
iv)Annexure ‘C’ – a copy of the Notice of Intention to Cancel and the decision record relating to the decision to cancel the Applicant’s visa made on 11 November 2010;
v)Annexure ‘D’ – the decision-maker’s report on the events which occurred relating to the Applicant on 11 November 2010 dated 12 November 2010;
vi)Annexure ‘E’ – an email received by the Department dated 15 November 2010 from Warren Obst, General Manager Operations concerning Mr Ghosh’s status with the University of Ballarat;
vii)Annexure ‘F’ – letter dated 12 November 2010 forwarded by email from Warren Obst to the Department on 15 November 2010.
Mr Jones raised objection to Annexures ‘E’ & ‘F’ on the basis that those documents were not before the decision-maker and therefore are not relevant to the decision that is being challenged. Mr Jones indicated that Ms Watson submits that they could be relevant to the question of an exercise of discretion whether to grant relief and in that case, the Applicant objects to them on the basis that they are hearsay and should have been filed on an affidavit sworn by the actual person who wrote those documents.
Ms Watson contends that these documents were included to meet any allegation of failure of a duty to enquire. These documents are produced to demonstrate the result of enquiries which were subsequently made and confirm the contents would not have made any difference to the decision. Ms Watson said they have been produced to determine what the result of that enquiry would be and should be allowed, subject to relevance.
The documents were allowed noting Mr Jones’ objection and the documents would ultimately be subject to relevance.
Submissions of the Applicant
Mr Jones submits that the Applicant’s visa cancellation is subject to s.116 of the Migration Act 1958 (“the Act”). He submits that s.116 is by default discretionary and refers to the use of the terms “may cancel” Fin s.116(1). He submits that only in the circumstances prescribed for the purposes of s.116(3) does the cancellation become mandatory.
Regulation 2.43(2)(b)(ii) stipulates that the Minister must cancel a student visa where he or she is satisfied that the visa holder:
A) 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, for the Applicant, submits that absent the Minister’s satisfaction as to (B) above, cancellation of the relevant visa remains discretionary. He submits that the structure of reg.2.43(2) is such that the presumption in favour of discretion remains. It is submitted that before the decision-maker can ignore all other considerations, he or she must reach a positive state of satisfaction that a breach of 8202 was not due to exceptional circumstances beyond the visa holder’s control.
The decision-maker in this case, it is submitted, erred by standing the requirement of reg.2.43(2)(b)(ii)(B) on its head. In doing so, it is submitted that the decision-maker was misled by the wording of the Department’s standard decision recording form, which at point 12 in the Affidavit of Ms Watson at p.32, directs her to “explain whether or not you are satisfied that the breach was due to exceptional circumstances beyond the visa holder’s control”. Mr Jones submits that the decision-maker merely states “client did not present any exceptional circumstances beyond his control”. Mr Jones submits that the Applicant did raise with the decision-maker the issue that the education provider may have made a mistake in cancelling his reenrolment, or at least in not reinstating him, because he said that his “exclusion” from the university had been “overturned”. Mr Jones submits that at no point did the decision-maker discount this as an exceptional circumstance beyond his control, rather she shifted the onus onto the Applicant to prove his claims.
It is further submitted that the decision-maker’s explanation to the Applicant as to why his visa was being cancelled, under the heading “decision” on page 21 of Ms Watson’s affidavit, indicates that the decision-maker misunderstood the legislation concerning whether the visa cancellation is mandatory. There is no mention made of the exceptional circumstance. It is submitted that the decision-maker reversed the onus set up by reg.2.43(2)(b)(ii) and in doing so, fell into jurisdictional error.
Mr Jones indicated to the Court that it is not submitted or suggested that the Applicant was not in breach of condition 8202, para.2(a) in that he was not, at the relevant time on 11 November 2010, enrolled in a registered course. That issue is not challenged before this Court and it was not challenged by the Applicant. Mr Jones contends that Ms Watson’s submissions on this seems to be based on the assumption that he was asserting, in the time he was at the airport leading up to the cancellation, that he was enrolled. Mr Jones’ submission is that the Applicant did not make that assertion.
Mr Jones then referred the Court to the transcript of the interview between the immigration officer Ms O’Halloran (MO) and the Applicant (SG) on 11 November 2010 (Affidavit of Ms Watson, Annexure ‘A-1’ – page 10).
(MO) – We have got information from the university and I want to remind you of that last, that very first statement that I read to you before about telling you the truth, right? Because like I said it can make the situation worse for you.
(SG) – Whatever I say I say the truth
(MO) – It says that you have not studied since 1 July 2010. Your COE has been cancelled on 13 August 2010.
(SG) – Yea I know that.
Mr Jones submits that it is quite clear that the Applicant is aware that his enrolment has been cancelled and he is not attempting to argue the case that it had not been cancelled. Mr Jones contends that the following discussion between the Applicant and the delegate is crucial to the Applicant’s case. The transcript continues:
(MO) – The COE [was] cancelled due to non-commencement of the course.
(SG) – But the thing is –
(MO) – But the non- payment of the fee is a breach of condition 8202. You need that enrolment fee to be paid. You have not done it.
(SG) – No, no, no – the thing was that like I paid for two subjects so they have given me, like, that like that a stage one exclusion from the university. So I received that letter first. Then like I have been asked to send a letter to the university that for my exclusion. Then second time, I had like an interview with the university at IIBIT from their – there was a counselling university like just an interview then I cleared that one. Then I –
(MO) – Slow down, where did you do all of this?
Mr Jones indicated that it was clear from the transcript that the Applicant does not have English as a first language and was also very anxious and concerned which made it somewhat difficult to follow what he is saying. The transcript then continues:
(SG) – This all happened in September, like this September.
(MO) – This all happened.. you have not been there since July [the COE] was cancelled in August, OK so what you are telling me is…
(SG) – I am telling you what happened. This is that like I had received a letter which shows like I have been excluded but I am in the stage one of exclusion.
(MO) – Where is that letter?
(SG) – It’s in the university. Because they have taken that letter, like they have kept in the file.
(MO) – Alright, so you are saying that the university contact you by letter but you don’t have the letter?
(SG) – No.
(MO) – Where is the letter?
(SG) –it is in the …
(MO) – So if they gave you a letter, you should have the letter.
(SG) – No Maam, they gave me the letter. Then I have to take the letter and then I have to attend the course coordinator in the university and she is going to send the letter to the university.
(MO) – So the university contacted you by letter saying what?
(SG) – Saying that I am in the first stage of my exclusion but by the time you are not supposed to leave your this things studies. But due to my financial problem I couldn’t like..
(MO) “I am in the first stage of exclusion from my course.” so they basically gave you a letter to say that you were going to be out, to be excluded.
(SG) – But also in that letter it was written like this.
(MO) – What course?
(SG) – Bachelor of Technology.
(MO) – Alright, so then what?
(SG) – Then on that letter it was also written that during but this is not bad that you have to leave your course until the decision is made.
(MO) – The letter stated what?
(SG) – It stated like this is just a letter that had been given to you but..
(MO) - … it is a notice until a decision is made? This letter is all about because mainly you have not paid the fee.
(SG) – No, no – because I have failed the two subjects. Because of my subject. There was nothing in the letter about the fees, like only $1000 had to be paid.
(MO) – Right, then what.
(SG) – I have to attend like a counselling interview at the university then after that.
(MO) – When did you have this counselling interview?
(SG) – This was interview happened in August. Not in August, mum. In September. But before this counselling I have received a letter that I had been excluded by the university because I have not sent a letter to them. From the university because I have not sent any reply to them. But I have already sent them a reply and I have that letter. And I have sent by speed post by Australia post and I had the receipt and that had been kept by the university in IIBIT and I can give you my course coordinator name to sort it out.
(MO) – Who did you have a counselling session with?
(SG) – (name not recorded) she is course coordinator.
(MO) – OK. (name not recorded) course coordinator. Then you received a letter saying that you had been excluded.
(SG) – No, no, no. after the counselling happened, within five days I have receive a call from the university and they told me like that I can continue like from my studies from the next semester for this … session. Then I received a call from them.
(MO) – But university would have gone back in October.
(SG) – Yea, October.
(MO) – But you have been overseas.
(SG) – Yes, I have been overseas because until that time like, July session, was going to end on October. So because I have not enrolled on that semester so that I couldn’t give my…
Mr Jones indicates that we have got the Applicant saying in a somewhat broken, roundabout way, that he has been told that he has been excluded from the course and indeed he was aware that the COE was actually cancelled in August. Further, he had been advised that he would be able to continue his studies from the next semester. Then there is some discussion about when the next semester would commence. The Applicant was saying that the next semester commenced in November but because of his counselling session in September after the cancellation of his COE he had been advised that he would be able to attend that session commencing in November.
Mr Jones submits that, in summarising the situation, the Applicant is essentially putting to the delegate that he was not currently enrolled because there was a dispute between himself and the college which led to the cancellation of his enrolment in August. However, that dispute was resolved in his favour and he was advised that his enrolment would be reinstated at the next scheduled semester commencing in November. Mr Jones argues that is not a claim that he was enrolled, rather it was an admission that he was in breach of his visa condition because he was not currently enrolled for reasons that the Applicant believed amounted to an exceptional circumstance beyond his control. The Applicant’s argument is that due to exceptional circumstances they cancelled his enrolment and he appealed against it, resulting in an agreement to overturn the cancellation. He submits that it was not possible to do this at that time because he had already missed the commencement of the course and had to wait until November to recommence his studies.
Mr Jones argues this is what the Applicant is putting as the exceptional circumstance and quite contrary to the claim by the delegate that he put forward in the argument that could constitute an exceptional circumstance relating to the non-compliance. Mr Jones contends that the thinking of the delegate is demonstrated by what she says when writing up her decision which appears in the Immigration Inspectors Report (Affidavit of Ms Watson – Annexure ‘D’ p.39):
As the delegate I was satisfied that in accordance with s.116(1)(B) and s.116(3) and reg.2.43(2)(B) (student breach of condition 8202) of the Act there were grounds for cancellation of the client’s visa on the basis that his Confirmation of Enrolment had been cancelled by his provider.
PAX [Passenger] did not present any exceptional circumstance beyond his control to explain the breach of condition 8202.
Therefore the cancellation is mandatory.
Mr Jones submits that it is the delegate’s position that no circumstances were put forward, no argument was made by the Applicant as to what exceptional circumstances might exist that would explain the fact that he did not have a current COE. He submits that the delegate failed to consider a very important explanation that was put by the Applicant could have constituted an exceptional circumstance beyond his control. Mr Jones suggested that he has tried to put this argument in as many different ways as he can but this is essentially the point of his case.
He submits that the delegate has not seen what is before her and it is not a question for her to say, “well, yes, I have considered these arguments and I don’t think they are exceptional circumstances beyond his control”. She has not reached that point of exercising the discretion.
Mr Jones argues that the delegate has not seen the case that the Applicant has put to her and she has not considered whether that would be an exceptional circumstance beyond the Applicant’s control.
Mr Jones submits that relief could only be denied in this situation if there would be no lawful way for the delegate to have exercised the discretion in the Applicant’s favour but the Court should find that the delegate has not exercised the discretion then there has been a jurisdictional error and the decision should be overturned.
Submissions on behalf of the Respondent
It is submitted that there is no dispute that the Applicant had not complied with condition 8202, although, before the delegate, the Applicant made the assertion that he was enrolled in an appropriate tertiary course and that the cancellation of his enrolment had been overturned by the university and he thus had not breached condition 8202.
Ms Watson submits that at the time of the decision, the delegate had before her information from the education provider which unequivocally stated that the Applicant was not enrolled in a course of study and had his certificate of enrolment cancelled (affidavit of D. Watson, Annexure ‘A’, p.24, Annexure ‘B’ p.27, Annexure ‘C’ p.36-37). In making her decision, it is submitted that the delegate was entitled to reject the claim of the Applicant that he was enrolled, this being a factual finding open on the material before her.
Ms Watson submits that on a fair reading of the transcript of the interview between the Applicant and the delegate demonstrates that the Applicant was not purporting to present any exceptional circumstances as to why his visa should not be cancelled. Rather, he was asserting that there was no basis for cancelling his visa because the decision to cancel his Certificate of Enrolment had been overturned. He requests on a number of occasions to be given the opportunity to go to his house to obtain the relevant documentation which would support this assertion. It is submitted that the Applicant was not presenting any exceptional circumstances for the delegate to consider.
Ms Watson submits that even if the Applicant was suggesting that his assertion that his enrolment had not been cancelled did constitute exceptional circumstances, faced with the clear evidence to the contrary, the delegate was entitled to find that no exceptional circumstances had been presented. Faced with an Applicant who was asserting a scenario which the delegate chose to reject, and in the absence of any other material which may have caused the delegate to consider that special circumstances may exist which she would need to further consider, the delegate quite properly achieved the state of satisfaction required by reg.2.43(2)(b)(ii) and, in accordance with s.116(1)(g) and s.116(3) of the Act the Applicant’s visa must be cancelled.
It is submitted that taking into account the circumstances surrounding the making of the decision, in that it was an urgent decision made at the airport, the notes of the delegate when recording her decision clearly evidence that she had considered that no exceptional circumstances existed (affidavit of Ms Watson – Annexure ‘D’ p.39 – p.40 – Immigration Inspector’s Report). Having made that finding, no further inquiry was required. This is not a situation where some overarching duty to inquire by a delegate may be inferred: Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25]. Any information in relation to the existence of any ‘exceptional circumstances beyond the visa holder’s control’ need to be raised by the visa holder (or those acting on his behalf) for the delegate to consider. There is no ‘obvious enquiry’ about a ‘critical fact’ in the present case which might lead a Court to find there has been a failure to exercise jurisdiction. In the submissions advanced on behalf of the Applicant, the reference to a ‘reverse onus’ is a misconceived attempt to assert some duty to inquire on the delegate where none exists.
Ms Watson indicated that she wished to continue a little further in the transcript to demonstrate that what has been said in the Respondent’s submissions is in fact to the contrary of what it is submitted the Applicant was attempting to present to the delegate. Continuing in Annexure ‘A1’ at p.15:
(MO) – Ok, so you received a call from them saying what, that you, that what?
(SG) – They, they, they said to me like they have sent me a letter for the exclusion that has been overturned so I can join my university from like I can start my semester from summer semester from the month of November.
(MO) – They are telling you by phone that they have sent you a letter?
(SG) – Yeah, they have sent me a letter, they told me like they, they, they, told me like now the decision has been overturned.
(MO) – Hmm…
(SG) – The exclusion decision has been overturned. They told me that one.
(MO) – You are saying that they told you over the phone that they have sent you a letter saying…
(SG) – Saying that
(MO) – The exclusion has been overturned?
(SG) – The exclusion has been overturned yeah.
(MO) – Where is that letter?
(SG) – It’s in my house.
(MO) – Can. Is there any way anybody can get that letter and bring it to the airport?
(SG) – Ahh, no.
(MO) – Hmm… why?
(SG) – I don’t know because no one is there in my house.
(MO) - Ok.
The interview then turns to a discussion regarding the financial position of the Applicant and his inability to pay fees for his enrolment when requested by the university. However, the Applicant indicated that this situation had changed as his father had advanced him monies. The transcript continues:
(MO) – Yes, that’s not so much the problem. The problem is we are going on the information from the university, ok? And to us its you have go no…
(SG) – No right?
(MO) – No COE. You’ve paid no fees.
(SG) – Yes, but the thing is like, if you want then I can show you my COE which I have that’s in my friend’s house where I left my luggage. Inside that I have my COE. My Confirmation of Enrolment.
(MO) – Where is it?
(SG) – It’s in my house, like eh… I left it in my house. It’s in my like…
(MO) – Can someone bring it here?
(SG) – If I can call them they can bring it.
(MO) – Hmmm. Ok.
(SG) – the COE, the old one when I …
(MO) – No, no, no – not the old one. I want the new one.
(SG) – I have only one. Yep. The new one…
(MO) – Yes, see that’s the problem. You haven’t got a new one.
(SG) – No, no, no, not a new one.
(MO) – OK. Immigration has started to interview people on arrival now OK. The people that are in your situation OK? Because you have breached conditions, OK? You are in Australia without the condition that you need for that visa. It no longer exists because you haven’t got it. You haven’t got the COE. OK. I don’t understand why you don’t tell your education provider that you weren’t going… that you were going overseas.
(SG) – like the, Maam, when I received the call that I can join then I went back to India. I thought like I can come and join my, I can start my like, my semester.
(MO) – OK.
(SG) – so I didn’t, I didn’t like, I just went to university and asked them when the enrolment was going to start.
(MO) – hmmm… hmmm…
(SG) – they told me from 8-12 is enrolment. From 15 November like the classes is going to start.
(MO) – what have you done since July?
(SG) – I was like, I was in this thing, like I have to go… I have to go to university then I like for the coordinator… to call me for this thing why you are not, like, for my exclusion letter I have to go, like, I’ve got three letter from them. Like first stage, was the first stage, then it was the second stage, then on the second stage I had like an interview, then after that everything is… then they told me yes, you can, your exclusion has been overturned and you can start your course.
This is followed by a discussion of when the course is going to start, which is followed by the following discussion:
(MO) – Can you go in and fix that up in one day?
(SG) – Yes, Maam. I went there, I asked them ‘can I start my course?’. They told me it’s too late and also you have been like in your course… exclusion so what you have to do like is if you are satisfied, like if you qualify in your this thing, on your exclusion letter then you use your… start a new semester from July from November. They just told me that one.
(MO) – Hmm… hmmm…
(SG) – And the, the thing is that from July the semester started at that time I received that letter. And it was too late.
(MO) – Hmmm. But you can’t get the letter to me to prove?
(SG) – No but the thing is like I can’t give you now, but like tomorrow morning I can get from the university.
(MO) – Mmm…
(SG) – Like I can go but if you can get information from the university.
(MO) – Hmmm…well the university, we have been talking to the university today. OK and they tell me that they haven’t been communicating with you. OK? That’s what they tell us. Today.
(SG) – Well I have spoken with them and I have this thing. I have all of the documents with them.
(MO) – Well that’s not what they are saying and this is what we go on. OK. We go on the university.
Ms Watson submits that there is essentially a dispute between the Applicant about what the university has told the Department of Immigration. This is followed up because when the decision-maker provided him with a Notice of Intention to Cancel, the decision-maker read out the various provisions and directed the Applicant to the fact that she believes that there are grounds for cancellation of the visa. After approximately a half-hour adjournment, the delegate returned to the interview room and made the following statement:
(MO) – It has come to the Department of Immigration and Citizenship, the Department’s attention, that there appears to be grounds for the cancellation of your sub-class TU 573 which was granted on 3 November 2008.
The Migration… just let me read this to you because I am serving you with a Notice. The Migration Act gives you an opportunity to comment on the intention to cancel your visa and give reasons why your visa should not be cancelled. Your comments could include why grounds for cancellation do not or why your visa should not be cancelled. You are invited to provide comments at interview. If you choose not to comment the delegate may make his or her decision based on the information available to them. If a decision is made to cancel your visa you will be refused immigration clearance and removed as soon as practicable. The visa. Are you haven’t got any documents. OK. If your visa is cancelled you may become subject to an exclusion period, an exclusion period means that you are prevented from being granted a further visa to come to Australia, up to three years. OK?
I have written out the actual attachment of why I am serving you a notice. OK. On your arrival in Sydney Airport today, 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 cancellation of your TU 573 visa granted on 3 November 2008 under s.116 of the Migration Act for the following reasons:
Your visa TU 573 has a condition 8202 attached to that visa. 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 the first of July 2010. The Confirmation of Enrolment, your COE was cancelled by your provider in August 2010 because you did not enrol in the next semester commencing July 2010 and also for non-payment of enrolment fees. You therefore have failed to meet requirements of sub-class 8202(2)(a) and have breached condition 8202.
The Immigration Officer gave the Applicant ten minutes to consider and then asked him to respond. The Applicant’s response was as follows:
(SG) – the thing is that, at the present, like the present moment I do not have any documentation to support myself. Like I have… Like just the thing is. Just give me one day, like from tomorrow morning, like so that I can get all my documents from the university and I can support that my like I was like not have been cancelled by COE as has not been cancelled by the university. I have all the documents in the university and like I just need like just one more chance like I one day like you know Maam this depends on my future because I have already completed few of my semesters and my parents have already wasted a lot of money on me, they have lots of hardship. So I just want one day tomorrow, I will go to my university like from the time being I can leave all my documents in immigration tomorrow, I just like if any of the officers go with me I can go to my university and take all the documents from there and I can support like I have not been informed about my cancellation on my COE and also I can make sure I can tell them like I can make the officer understand with the proof of evidence like they have got me, a like, a… letter and also like my COE has not been cancelled and I can start my course this semester, November.
Ms Watson submits that on the basis of the above response the Applicant was not attempting to state, as Mr Jones asserts, that he accepted that there had been a cancellation and that the university had indicated after some counselling sessions that he could enrol.
Ms Watson submits that rather, what he was asserting was there had been no cancellation, and the university was essentially providing the wrong information to the Department of Immigration. He was saying that there was no breach, “My COE has not been cancelled”. That was a matter of fact that the delegate ultimately determined not in his favour on the basis that she had clear information from the education provider and is recorded in a file note as follows:
At approximately 5:30pm I spoke to a lady by the name of Celeste at IIBIT campus Sydney who advised that the COE was cancelled in August 2010 due to the client not enrolling in July 2010 for the next semester. Celeste advised that the COE was also cancelled due to non-payment of fees. I asked whether Mr Ghosh applied for any leave of absence from the university or given them any explanation as to why he had not been studying and she advised that she had not.
They also advised me that Mr Ghosh had not studied at their campus since June 2010.
William Khodeir
SKSA – Shift Supervisor
(Affidavit of Ms Watson – Annexure ‘B’ – p.27).
Ms Watson submits that there are two pieces of evidence that were before the decision-maker that were completely contrary to the story that the Applicant was telling the decision-maker. This was that there had been communications with the university, that the university after counselling had decided that he could re-enrol with the university, and more importantly as was asserted that the cancellation decision had been overturned. Ms Watson contends that what the Applicant was clearly doing was not raising any exceptional circumstances but rather was raising or cavilling with the issues as to whether or not the cancellation decision had been overturned.
Consideration
The visa holder’s visa must be cancelled if the decision-maker was positively satisfied that he had failed to comply with condition 8202 and that non compliance was not due to exceptional circumstances beyond his control. The wording of reg.2.43(2)(b)(ii)(A) & (B) states:
(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.
Those words direct the delegate’s attention to the circumstances leading to the breach of condition 8202. The argument being advanced on behalf of the Applicant was “yes, I breached condition 8202. My certificate was cancelled, but then all these things happened afterwards which meant that it was no longer cancelled.”
While the decision-maker was obliged to have regard to whether there were exceptional circumstances, the concept of whether there were exceptional circumstances in reg.2.43 is an extremely broad concept, commonly used to give a decision-maker the power to identify circumstances or reasons which are to apply as a qualification on some other statutory provision. What the decision-maker was considering under reg.2.43(2) was not just whether there were exceptional circumstances beyond the Applicant’s control, but also whether the decision-maker was positively satisfied that the non-compliance was not due to such circumstances. In such a context, the scope of potentially ‘relevant’ considerations are unconfined beyond the fact that what is in question in any suggested circumstances is whether it is an exceptional circumstance beyond the Applicant’s control that has caused the non-compliance in issue: Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.
In Karmaker v Minister for Immigration & Anor [2011] FMCA 595 per Barnes FM at [60] her Honour addresses the issue in respect of irrelevant considerations in the context of reg.2.43(2) or as to how one determines whether the decision-maker has taken into account an irrelevant consideration in the context of such a statutory provision. Her Honour states:
[60] There is a helpful elucidation of applicable principles by Smith FM in Kim v Minister for Immigration and Citizenship [2008] FMCA 1577. An appeal from that decision was dismissed in Bo Hyung Kim v Minister for Immigration and Citizenship [2009] FCA 161. While Smith FM was considering a provision that involved a dispensation from the normal rule where there were exceptional reasons for the grant of a visa (which is not exactly the same concept or context as here), it is nonetheless relevant that his Honour proceeded on the basis that the Migration Act would allow the making of a regulation that conferred an unconfined discretion in that respect. On that basis the decision-maker could give effect to any rational reasons (at [15]). Further, Keifel J accepted in Hatcher v Cohn (a case referred to by the Tribunal) at [50] that a formulation such as “exceptional circumstances” (like “special circumstances”) “is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition” (emphasis added) (Baker v R (2004) 223 CLR 513 ; [2004] HCA 45 at [13] per Gleeson CJ).
[61] In Hatcher v Cohn Kiefel J applied such an approach in relation to the concept of “exceptional circumstances” in the Migration Act, indicating that this concept “may apply to a variety of circumstances and no definition which limits their application should be adopted unless the limitation appears from the words of the relevant statutory provision” (at [50]).
[62] As a matter of statutory construction there is nothing in the language of reg 2.43(2) or in the context of the legislation to indicate that there is some limitation on factors the Tribunal can take into account in proceeding to consider whether it is satisfied that non-compliance with condition 8202 was not due to exceptional circumstances beyond the applicant’s control, other than the question which it had to ask itself. Reading the Tribunal fairly and as a whole, that it precisely what the Tribunal proceeded to do.
The nexus of the competing argument being advanced in this matter ranges from the approach being advanced on the part of the Minister that the exceptional circumstances are confined to the circumstances leading to the cancellation of the Applicant’s visa, whereas the argument being advanced on behalf of the Applicant is that the exceptional circumstances are focused on the situation that the Applicant finds himself in at Immigration Clearance at Sydney International Airport.
He provides no explanation as to exceptional circumstances which should be taken into account which lead to the Certificate of Enrolment being cancelled. He acknowledged that he had not been attending courses because of his exclusion. He had not paid his fees and had not sought leave or notified the university that he was returning to India due to a family tragedy.
The usual argument advanced in cases challenging this regulation are in the form that where there was a cancellation, it was due to a particular circumstance which was outside the visa holder’s control. However, in this matter, there is nothing that the Applicant has advanced along these lines. Rather, what he is cavilling with is what has happened after the breach has occurred and after the certificate has been cancelled.
In summary, the material before the decision-maker was that the Applicant’s COE was cancelled which was an essential pre-condition for his Student visa. The COE cancellation was confirmed by an officer of IIBIT and the institution had not been notified that the Applicant was returning to India on compassionate grounds. The Applicant had not been present at lectures since July 2010 which was the commencement of the second half year, with no enrolment in the second half of the semester and consequently no payment of fees for this period. His COE was cancelled in August 2010 due to a failure to enrol by July 2010 for the next semester. All of this information was verifiable from parties other than the Applicant himself. The information provided by the Applicant which was not available from any other source is that he had attended a counselling session with a member of the institution’s academic body resulting in a reversal in his course exclusion, accompanied by an indication that he was entitled to reenrol in November for the non-compulsory summer semester, commencing on 15 November 2010.
I acknowledge the above details provided by the Applicant are not necessarily coherent and concise and that this should be accepted in circumstances where English is not the Applicant’s first language and the stressful situation that he suddenly finds himself in on arrival at Immigration Clearance. I also ignore the Applicant’s cavilling with the precise nature of the documentation that he claims is at his home or at the university in respect to the status of his COE. There appears to be some understandable confusion probably brought about by correspondence indicating that his exclusion had been waived and his entitlement to reenrol with that of a current COE.
Similarly, there is a question of whether the Applicant was putting forward an explanation as to why he was currently without an enrolment or whether he was actually claiming that the reversal of his exclusion reinstated his COE. The words he was using at the end of the interview were fairly desperate and seem to suggest that he is claiming that the COE was not cancelled. However, in the body of the interview, when being asked whether he was aware that the COE had been cancelled, he quite clearly says he was aware that it was cancelled.
Importantly, in the case being advanced on behalf of the Applicant, it appears that the Court is being asked to infer that the Applicant was putting forward an exceptional circumstance as an explanation without specifically making that claim. Essentially, the decision making process can be divided appropriately into three distinct components. Firstly, there is the issue of the COE which has been cancelled. This is a straight forward statutory requirement that where a student ceases to have a valid enrolment in a registered course, then the institution must cancel the COE. That is clearly established and there is no dispute between the parties that that is the current status in respect of the Applicant.
Secondly, the decision-maker, under the provisions of reg.2.43(2) must decide whether any evidence of an exceptional circumstance beyond the visa holder’s control has been advanced. This obligation to advance this evidence lies with the Applicant. This requirement is specifically brought to the Applicant’s attention when was provided both orally and in writing, with notice (Form IIII – Notice of Intention to Consider Cancellation – under s.116 of the Migration Act 1958 for use in Immigration Clearance) (Affidavit of Ms Watson – Annexure ‘C’ p.29 – 34). On a fair reading of the delegate’s decision no exceptional circumstance has been articulated by the Applicant. After the Notice is handed to the Applicant, a period of ten minutes is provided for the Applicant to consider any response that he wishes to make. The Applicant’s response reproduced from the transcript is set out at [31] above. That response is not totally coherent but essentially deals with what steps he would take to recover documentation in his attempt to satisfy the immigration officer. Nothing within that statement would suggest a direct attempt to provide a clear statement as to any claimed exceptional circumstance.
Thirdly, there is the issue of the inference of an exceptional circumstance. I am not satisfied that any inference has been articulated on his behalf and I draw this from the submissions made by Mr Jones in that the situation that the Applicant finds himself in at Immigration Clearance are both exceptional and beyond his control. On the material available, the Applicant currently does not satisfy statutory requirements of a Student (Subclass TU 573) visa which have seven conditions that must be complied with prior to issue. Condition 8202 can only be satisfied when the Applicant reenrols which was not available until November once he has made and the payment of relevant fees. Clearly the Applicant is in hiatus as his last enrolment finished in July 2010 and he was unable to reenrol until 8 November 2010. Despite being faced with this problem, the Applicant has failed to indicate that he took any steps to rectify his position or sought any advice from the university student advisors or the Department as to his immigration status. Instead he departed the country based on the assumption that he would be able to re-enter on 11 November 2010 and pursue his reenrolment steps. The Applicant’s situation is not enhanced because he had previously been thorough procedures seeking a student visa and was aware of the requirement that he needed to satisfy the conditions of the visa.
Consequently, the delegate was entitled to find that no exceptional circumstances had been presented by the Applicant. Furthermore, in the absence of any exceptional circumstances, there is only one decision that the delegate could have made. In order to allow the discretion available under this regulation to be exercised, there at least has to be something for the delegate to consider that the Applicant has put forward as a reason why the breach occurred in order for the delegate to consider whether that explanation amounts to an exceptional circumstance beyond the visa holder’s control.
In this matter, that threshold has not been reached because all that has been advanced on behalf of the Applicant was argument cavilling with the fact that the university had misinformed the Department and in fact the Applicant’s exclusion decision had been overturned. Consequently, the delegate found that no exceptional circumstances were present.
In cases of this nature, there can be something raised before a delegate which may cause the delegate to undertake further inquiry. This obligation is discussed in the High Court decision of Minister for Immigration and Citizenship v SZIAI (supra) in the majority decision of French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ at [25] where their Honours stated:
[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. 35 Re Patterson; Ex parte Taylor (2001) 207 CLR 391
There is nothing of this nature that arises in this matter. In those circumstances, the delegate was entitled to come to the conclusion that she did and therefore there is no error in the way in which she ultimately dealt with the decision.
Mr Jones indicated that he entirely disagreed with the argument advanced by Ms Watson that the exceptional circumstances had to relate to the actual cancellation of the enrolment in the first place, whereas the argument advanced on behalf of the Applicant is that what the delegate had to consider was whether the non-compliance was not due to exceptional circumstances and is reflected in the wording of the relevant regulations. In reg.2.43(2)(b)(ii) states:
(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.
Condition 8202 states (relevantly for the purposes of this argument):
the holder… must meet the requirements of sub-clause (2)…
(2) the holder meets the requirements of this sub-clause if:
(a) the holder is enrolled in a registered course; or
(b)…
Mr Jones argues that the term non-compliance refers to the Applicant’s current situation. That is, why is he is not currently enrolled in a registered course. So any exceptional circumstances would relate to why he is not now enrolled and not why a previous enrolment had been cancelled. Mr Jones advances the argument that the interpretation advanced on behalf of the Minister, being, that the Applicant needs an argument why the COE was cancelled in the first place, is quite wrong because that is not the way the legislation has to be interpreted.
I do not agree with Mr Jones’ submission relating to the cancellation of the COE as that cancellation is an automatic statutory step required by the educational institution and is not subject to any discretion of the decision-maker. The decision-maker is operating under reg.2.43 and is addressing the circumstances of the visa cancellation of which the absence of condition 8202 is only the first limb of that decision making process. The second limb has not been articulated by the Applicant during the cancellation process nor can any inference be drawn from what the Applicant has said, taking into consideration that English is a second language and he was in a stressful situation in immigration clearance.
Accordingly, taking into consideration all of these circumstances, I am satisfied that the Application should be dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 21 October 2011
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