Grewal v Minister for Immigration
[2007] FMCA 887
•31 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GREWAL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 887 |
| MIGRATION – Review of Migration Review Tribunal – where applicant enrolled in college course – where Tribunal cancelled visa for failure to maintain attendance – where cancellation was mandatory – whether Tribunal required to take into account any particular or exceptional circumstances – whether calculation of attendance made correctly – application dismissed. |
| Education Services for Overseas Students Act 2000 (Cth) Migration Amendment Regulation 2005 (Cth) |
| Minister for Immigration v SZHOU [2006] FCAFC 96 |
| Applicant: | SHIVJOT TALVINDER SINGH GREWAL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 132 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 31 May 2007 |
| Date of last submission: | 31 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2007 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,250.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 132 of 2006
| SHIVJOT TALVINDER SINGH GREWAL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings seeks review of a decision of the Migration Review Tribunal made on 19 December 2005, in which the Tribunal determined to affirm the decision of a delegate to cancel the applicant’s student visa because of his failure to comply with the provisions of Condition 8202 contained in the visa, by not attending for at least 80 per cent of the contact hours scheduled for his course.
Mr Grewal was enrolled in a packaged course at Martin College. It was a 45-week Diploma of Information Technology (Systems Administration) course which started on 22 March 2004 and was due to finish on 4 February 2005. Very shortly after Mr Grewal commenced the course, his father tragically died at a young age. This upset Mr Grewal who was also having problems with the course itself. He has made it clear to the delegate, the Tribunal and to myself that Information Technology was not a course to which he was suited.
Martin College agreed with Mr Grewal to extend the completion date of his course from 4 February 2005 to 9 September 2005. The information contained in the court book and in particular at [CB30]-[31] indicates that the reason for this extension was Mr Grewal’s failure to complete more than 38 per cent of the modules successfully. It would have been very easy for a determination to have been made that the applicant had not achieved an academic result that was certified by the education provider to be at least satisfactory. But that was not done.
After Mr Grewal had completed 53 weeks of the extended course, he left the country, apparently for India. He did not inform the education provider. The education provider determined to terminate the course and on the day that that was done it sent a notice to the Department of Immigration and the applicant under s.20 of the Education Services for Overseas Students Act 2000 (Cth) [CB1]. On 10 August 2005 the Department requested certain information from the education provider. A notice of intention to consider cancellation under s.116 of the Migration Act 1958 (Cth) (“the Act”) was issued on 10 August 2005 and on the same day a decision was made to cancel the visa for breach of Condition 8202: failure to maintain at least 80 per cent attendance.
It is fair to say that the applicant has never denied the attendance record. He sought to explain the situation as arising from the combination of the unfortunate death of his father and the unsuitability of the course. He sought to pray in aid the satisfactory completion of another course for which he had enrolled. This may have been of some use to him had the cancellation taken place slightly later than August 2005 because whilst at that time a cancellation for a failure to comply with Condition 8202 was mandatory, it no longer is since reg.2.43(2)(b)(ii)(B) as amended by the Migration Amendment Regulation 2005 (No.8, Sch.5) commenced on 8 October 2005.
In cases where the cancellation was mandatory, there is no provision permitting the MRT to take into account any particular or exceptional circumstances; Minister for Immigration v SZHOU [2006] FCAFC 96 at [44]. The only ground upon which it seems to me that the applicant has any argument was whether the calculation of his attendance and the length of the course might be said not to fall within the provisions of condition 8202. That relevant part of that condition is in the following form:
“(3) The holder meets the requirements in this subclause if:
(a) in the case of a holder whose education provider keeps attendance records, the Minister is satisfied that the holder attends for at least 80 per cent of the contact hours schedule:
(i)for a course that runs less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term and semester of the course ...”
It seems to me open to argument that in the circumstances of this particular case, the calculation should be made in relation to the whole course because there are no terms or semesters. There may be facts which would indicate natural breaks in the course which would indicate a term or semester but that evidence is not forthcoming. Unfortunately for the applicant I do not believe that this argument would carry any weight in the particular circumstances of his case. The reason for that is that his course was completed by virtue of it being terminated by the education provider and so the calculation of 70 per cent which was done by the education provider was done for the whole of the course.
In those circumstances neither the delegate nor the Tribunal had any option but to cancel the visa as was done. There being no error of law in relation to the cancellation, I am unable to provide the applicant with the review that he seeks. I dismiss his application. I order that he pay the respondent’s costs which I assess in the sum of $3,250.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
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