Hernandez v Minister for Immigration
[2011] FMCA 752
•30 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HERNANDEZ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 752 |
| MIGRATION – Migration Review Tribunal – student visa – exceptional circumstances. |
| Migration Act 1958, s.116(3) Migration Regulations 1994, regs.2.43, 2.43(2)(b)(ii), cl 8202, 8202(3)(b) |
| Applicant: | DAVID ERNESTO PINZON HERNANDEZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 173 of 2010 |
| Judgment of: | Jarrett FM |
| Hearing date: | 9 June 2010 |
| Date of Last Submission: | 9 June 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 30 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | No Borders Legal Advocates |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 2 February, 2010 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of six thousand two hundred and forty dollars ($6,240.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 173 of 2010
| DAVID ERNESTO PINZON HERNANDEZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Hernandez came to Australia from Columbia, his country of origin. He was granted a Student (Temporary) (Class TU) visa (subclass 572) in October, 2008. The visa was cancelled in July, 2009 pursuant to s.116(3) of the Migration Act 1958 for reasons more fully set out below. A migration review tribunal affirmed the decision of the Minister’s delegate to cancel Mr Hernandez’s visa by a decision made on 22 January, 2010.
Mr Hernandez argues that the tribunal’s decision ought to be set aside because the tribunal fell into jurisdictional error in two ways, namely:
a)it failed to take into account a relevant consideration – in particular clauses 11.1, 11.3, 11.6and 11.9 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
b)it took into account an irrelevant consideration – that Mr Hernandez’s education provider might not have issued a certificate of unsatisfactory attendance if he had told it about certain matters.
For reasons that appear below, the above two alleged errors are related.
The application
In his application Mr Hernandez specifies his grounds of complaint as follows:
1. The MRT failed to properly interpret Reg 2.43(2)(b)(ii) of the Migration Regulations 1994 and as such committed a jurisdictional error.
2. Further and/or in the alternative, the certification by the International College of Queensland Australia ("the ICQA ") under condition 8202 was not valid. Hence there was an absence of a jurisdictional fact thus disabling the delegate of the first respondent from making a valid decision to cancel the applicant's student visa. It follows that the delegate had no jurisdiction to make that decision. The second respondent standing in the shoes of the delegate ought to have appreciated that it did not have jurisdiction to confirm the cancellation of the applicant's student visa. Its decision therefore was an error of jurisdiction.
3. Further and/or in the alternative the MRT failed to give a proper, genuine and realistic consideration to the matters before it on review. Its decision therefore was an error of jurisdiction.
4. The MRT committed jurisdictional error by taking into account irrelevant circumstances, namely:
(a) that the ICQA ought to have been told about the domestic violence situation at home and that his parents had stopped sending him money, when there was no legal obligation to do so or no, advantage to be had if the applicant had done so;
(b) ICQA had power not to issue the 'certification' whereas under Standard 11.8 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007, ICQA had to report the applicant for breach of the course attendance requirements if the attendance was below 70% (assuming the applicant's attendance was below 70% which is not admitted).
5. Further and/or in the alternative, the MRT committed a jurisdictional error by not making the correct or preferable decision,
6. Further and/or in the alternative, the MRT committed a jurisdictional error in that its decision was unreasonable.
7, Further and/or in the alternative, the MRT failed to make proper findings on the material be/ore and there/ore wrongly denied itself jurisdiction;
8. Further and/or in the alternative, the MRT did no/ properly apply the law to the facts available and hence failed to properly exercise jurisdiction.
At the commencement of the hearing of this application Mr Hernandez sought and was granted leave to add an additional ground to his application, namely:
4A. Further and/or in the alternative, the MRT failed to take a relevant circumstance into account, namely that the National Code in clause 11.9 gave ICQA no option but to report the applicant to the first respondent for breaching the 80% attendance requirement once the applicant's attendance fell below 70% and as a consequence the MRT committed jurisdictional error.
At the hearing of the application, Mr Hernandez’s submissions focussed upon grounds 4 and 4A. There was no attempt to articulate any additional matters that related to any of the other more general grounds, although those grounds were not abandoned.
The statutory framework
Section 116(1)(b) of the Act authorises the Minister to cancel a visa where the visa holder has breached a condition of the visa. Section 116(3) of the Act requires that the Minister cancel a visa if there exists prescribed circumstances in which a visa must be cancelled.
Regulation 2.43 of the Migration Regulations 1994 sets out the prescribed circumstances referred to in s.116(3) of the Act. Relevantly, for Mr Hernandez’s visa, reg. 2.43(2)(b)(ii) provides that the Minister must cancel a visa if the Minister is satisfied that:
a)the visa holder has not complied with condition 8202; and
b)that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Condition 8202 (found in Schedule 8 to the Migrations Regulations and in the terms extant at the relevant time) provides:
8202 (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
…
(3) A holder meets the requirements of this subclause if neither of the following applies:
(a) …
(b) The education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) Section 19 of the Education Service for Overseas Students Act 2000; and
(ii) Standard 10 of the National Code of Practice for registration Authorities and Providers of Education and Training to Overseas Students 2007.
Section 19(2) of the Education Services for Overseas Students Act 2000 (Cth) requires Mr Hernandez’s education provider to notify the Secretary of the Department of Immigration and Citizenship of any breach of a prescribed condition of the applicant’s visa. Section 20 of the ESOS Act requires Mr Hernandez’s education provider to send him written notice of any breach by him of a prescribed condition of his student visa.
If a s.20 notice is sent and the applicant fails to respond as required by s.137J(2)(a) or (b) of the Migration Act1958, the relevant visa is automatically cancelled: s.137J(2). If the visa holder responds to the s.20 notice in accordance with s.137J(2)(a) or (b) of the Migration Act1958 automatic cancellation is avoided but:
a)the visa might nonetheless be cancelled pursuant to s.116(1) of the Act; and
b)must nonetheless be cancelled in certain circumstances pursuant to s.116(3) of the Act.
The tribunal correctly, in my view, summarised the relevant enquiry in this matter in the following terms:
9. In broad terms, the questions that arise for consideration under regulation 2.43(2)(b)(ii) are (A) whether the applicant failed to comply with condition 8202; and if so (B) whether the non-compliance was due to exceptional circumstances beyond the applicant’s control.
The Tribunal’s decision
The validity of the Mr Hernandez’s education providers’ certification was not in issue before the tribunal (or in these proceedings before me).
The tribunal was called upon to examine and make a determination as to whether Mr Hernandez’s failure to comply with visa condition 8202 was not due to exceptional circumstances beyond Mr Hernandez’s control. In that regard, Mr Hernandez pointed to a number of circumstances as relevant to a determination that the non-compliance with condition 8202 was due to circumstances of an exceptional nature beyond his control. The tribunal summarised his claims as follows:
The review applicant has claimed a number of exceptional circumstances as to why his attendance at ICQA was not satisfactory including: his health as evidence (sic) by the medical certificates; an on going problem with his sister's ex-spouse; location of his accommodation; his grandmother’s illness and death; his parents’ loss of shares in a company; his break up with his girlfriend; his night shift work; a dental appointment; and reporting his wallet stolen to the police.
It was not suggested that the tribunal wrongly stated the matters relied upon by Mr Hernandez in that regard. The tribunal found against Mr Hernandez in respect of each matter relied upon by him, but for different reasons.
The argument before me centred upon the tribunal’s treatment of Mr Hernandez’s claims that he could not attend his course with his education provider because of threats of violence and actual violence against him and his sister from his sister’s ex-spouse. At the tribunal hearing of 18 December, 2009 Mr Hernandez’s case on this point consisted of the following allegations:
a)When he came to Australia, he came with his sister and at that time she had an ex-spouse;
b)His sister’s ex-spouse lived with them for three months from April, 2008 to August 2008;
c)Around May, 2008 the ex-spouse became aggressive to his sister;
d)The ex-spouse threatened “them” both physically and psychologically;
e)Around the end of April, 2008 the ex-spouse attacked Mr Hernandez and his sister. He damaged where they lived including breaking all of the windows;
f)Mr Hernandez and his sister sought a temporary protection order from a state court on 2 May, 2008;
g)A few days after the court attendance, the ex-spouse threatened Mr Hernandez and his sister by stating that he had bought a pistol;
h)The ex-spouse continued to live in the same house as Mr Hernandez and his sister, but was removed by the police at the end of August, 2008;
i)Mr Hernandez told his education provider (specifically a Ms Ellis) about the ex-spouse’s violent behaviour but all she said was to go to the police;
j)After August, 2008 the ex-spouse still came to Mr Hernandez’s house looking for he and his sister and he went to Mr Hernandez’s work;
k)After August, 2008 Mr Hernandez and his sister could not stay at the house because the ex-spouse was continually looking for them so he moved to a home in “zone 3;”
l)Many times Mr Hernandez’s sister’s ex-spouse waited for him at his college and they had many confrontations in front of the college. The ex-spouse would wait for Mr Hernandez with a number of friends;
m)On many occasions when they came into contact or called him, the ex-spouse threatened Mr Hernandez with his life;
n)On many occasions the ex-spouse would hit Mr Hernandez in the street;
o)Mr Hernandez did not go to the police because his sisters ex-spouse told him that if he made trouble for him with the law then the ex-spouse would threaten Mr Hernandez’s family in Columbia;
p)Mr Hernandez did tell Ms Ellis that his sister’s ex-spouse was hitting him and he had problems and she told him that she could do nothing and he should go to the police;
q)The problems with the ex-spouse slowed down and the last contact with him was in February 2009.
Of that evidence, the tribunal accepted that at least until 13 May 2008, Mr Hernandez had problems with his sister’s ex-spouse being violent to both he and his sister and that violence lead to them obtaining a temporary protection order against the ex-spouse. There was no evidence before the tribunal as to whether the temporary protection order was made final.
The tribunal took the view (at paragraph 89 of the reasons for decision) that Mr Hernandez’s evidence that the ex-spouse remained living with Mr Hernandez and his sister until August 2008 was inconsistent with Mr Hernandez’s evidence that the ex-spouse threatened him and his sister by stating that he brought a pistol a few days after the court appearance in May 2008. I am not so sure that those two propositions are inconsistent with each other, but it is, of course, a matter for the tribunal as to what it makes of the evidence.
The tribunal put to Mr Hernandez that it had difficulty and concerns about his evidence in relation to the violence from the ex-spouse alleged to have occurred after May, 2008. The tribunal’s concerns stemmed from the fact that the records from Mr Hernandez’s education provider did not indicate that he had raised the issues concerning the ex-spouse with his education provider on any occasion. The tribunal took the view that the records from the education provider were thorough and there were many handwritten notes about what Mr Hernandez had said to Ms Ellis about the reasons for him not being able to attend the college.
The matters recorded by Ms Ellis as explanations for Mr Hernandez’s poor attendance included “matters far less serious than the review applicant being assaulted and threatened by the ex-spouse.” (paragraph 89 of the reasons for decision). The tribunal took the view that given the thoroughness of the notes kept by the education provider (and in particular Ms Ellis) it was unlikely that Mr Hernandez had mentioned any of the difficulties he claims to have had with his sister’s ex-spouse after May, 2008. The tribunal formed the view that had those difficulties been mentioned they would have been recorded in the education provider’s notes. The tribunal recorded that Mr Hernandez was given considerable time to provide information and supporting documentation to his education provider explaining his absences.
For other reasons, the tribunal had grave difficulty with Mr Hernandez’s credibility. Those difficulties stemmed from Mr Hernandez’s production of certain medical certificates to explain some of his absences from college. The medical certificates he tendered turned out to be false and Mr Hernandez admitted as such in a response he provided to the tribunal on 22 December, 2009. The tribunal was entitled to be sceptical of Mr Hernandez’s credit.
The tribunal did not accept “that the review applicant continued to have problems with the ex-spouse including the ex-spouse hitting and threatening him, his sister and his family during the time he was studying at ICQA.” (paragraph 89 of the reasons for decision). That finding by the tribunal is significant because Mr Hernandez’s period of study at ICQA spanned September, 2008 – December, 2008. So, even though the tribunal was satisfied that there were difficulties with Mr Hernandez’s sister’s ex-spouse up to and including May, 2008 it did not accept that those problems were extant during the time of his attendance at college.
The tribunal made the following observations in the course of the reasons for decision:
Hearing
75 ..... The Tribunal also stated that it was within his control about what he told ICQA and if he had told ICQA about the threats then ICQA may not have issued the certification. ...
79 ... The Tribunal stated that it had concerns about that the review applicant had told the Tribunal in relation to the ex-spouse because that issue is so important the Tribunal would have expected the review applicant to have told ICQA about it and ICQA would have made a note of it. The Tribunal stated that it was the review applicant's choice not to tell ICQA and was not something beyond his control. Another way of expressing that was that the review applicant may have been able to change the certification of ICQA if he had told ICQA about his problems with the ex-spouse. The review applicant stated that he told ICQA about his problems with the ex-spouse. The review applicant stated that he informed ICQA in relation to his problems with the ex-spouse that he did so on many occasions and Ms Ellis said that she could not do anything and all he could do was go to the police.
…
Findings and Reasons
90. Further, as discussed at the hearing the actual breach of condition 8202 was ICQA certifying in the section 20 notice that the review applicant as not having satisfactory course attendance for section 19 of the ESOS Act and standard 10 of the Code. The review applicant did not claim that he had concerns or issues in relation to ICQA’s policies or procedures in relation to monitoring attendance or procedures in relation to students whose attendance is not satisfactory. For the reason set out above in relation to these circumstances, and the Tribunal’s credibility finding, the Tribunal is not satisfied that the applicant raised with ICQA the circumstances of his problems with the ex-spouse or that the company in which his parents held shares had ceased trading and his parents had stopped sending him money and that failure to do so was not beyond his control. As discussed with the review applicant at the hearing it was not beyond his control to raise these issues with ICAQ and if he had then the breach of 8202, that is ICQA’s certification, may not have occurred.
Mr Hernandez argues that these paragraphs demonstrate that the tribunal took into account an irrelevant consideration and did not take into account relevant considerations. His argument turns on the tribunal’s statement that “as discussed with the review applicant at the hearing it was not beyond his control to raise these issues with ICAQ and if he had then the breach of 8202, that is ICQA’s certification, may not have occurred.” Mr Hernandez argues that that statement indicates that the tribunal did not appreciate that his education provider had no option but to certify his unsatisfactory attendance pursuant to clause 11.6 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (“the Code”). Had the tribunal taken into account the terms of the Code, it would not have misled itself in the way in which it appears to have done. That is to say, it would not have taken an irrelevant consideration into account.
Relevantly, clauses 11.6 and 11.9 of the Code provide:
11.6 Where the registered provider has assessed the student as not achieving satisfactory attendance for the courses identified in 11.1, the registered provider must notify the student in writing of its intention to report the student for not achieving satisfactory attendance. The written notice must inform the student that he or she is able to access the registered provider’s complaints and appeals process as per Standard 8 (Complaints and appeals) and that the student has 20 working days in which to do so.
11.9 For the ELICOS …, the registered provider may only decide not to report a student for breaching the 80 per cent attendance requirement where:
a. the student produces documentary evidence clearly demonstrating that compassionate or compelling circumstances (e.g. illness where a medical certificate states that the student is unable to attend classes) apply, and
b. that decision is consistent with its documented attendance policies and procedures; and
c. the registered provider confirms that the student is attending at least 70 per cent of the scheduled course contact hours for the course in which he or she is enrolled.
The tribunal reasons, in my view, do not indicate that it has fallen into the error asserted by Mr Hernandez. The statements extracted above from the tribunal’s reasons do indicate that the tribunal took the view that the education provider may not have certified Mr Hernandez’s unsatisfactory performance if he had provided to the education provider details of the difficulties that he was claiming to be experiencing with his sister’s ex-spouse. No doubt, the tribunal was influenced in its views about that by the correspondence sent from Mr Hernandez’s education provider to him inviting him to provide explanations for his unsatisfactory attendance. The evidence reveals when the first two warning letters were sent to Mr Hernandez, his overall attendance was still above 70%. As clause 11.9 of the Code makes clear, however, provided the student’s attendance does not fall below 70% of the scheduled course contact hours for the course in which he or she is enrolled then the education provider may decide not to report a student for breaching the 80% attendance requirement where the student produces documentary evidence clearly demonstrating that compassionate or compelling circumstances apply.
When Mr Hernandez received the first two warning letters (to which he responded on each occasion) his attendance was above 70%. In those circumstances, his education provider was not obliged to certify his unsatisfactory attendance in accordance with cl.11.9 of the Code.
It was able to take into account compassionate or compelling circumstances that might be brought to its attention by Mr Hernandez. It was thus highly relevant to consider that Mr Hernandez did not mention the alleged difficulties with his sister’s ex-spouse. That he did not do so, but rather chose to refer to other more minor matters was important.
However, even if the tribunal was in error to consider that Mr Hernandez’s failure to report his problems with his sister’s ex-spouse was important, the tribunal’s error does not affect the outcome of the decision. In paragraph 89 of the tribunal’s reasons, the tribunal made a very clear finding that it did not accept Mr Hernandez’s evidence about the difficulties experienced from his sister’s ex-spouse after May, 2008. It was not suggested in the course of argument for Mr Hernandez, that it was not open to the tribunal to make that finding. The finding was clearly opened on the evidence. In those circumstances, the tribunal reached its own conclusion about whether Mr Hernandez’s compliance with condition 8202 was not due to exceptional circumstances beyond his control. Having made the determination of fact, to which I have just referred, and having regard to the other findings of fact made by the tribunal in relation to the other matters relied upon by Mr Hernandez as constituting exceptional circumstances beyond his control, the tribunal had no option but to affirm the decision under review.
Conclusion
I accept Mr Hernandez’s submissions that the issue of violence from his sister’s ex-spouse was very relevant for the tribunal in determining whether exceptional circumstances existed for not cancelling his visa. As explained above, the tribunal was not satisfied as to the truth of the claims about domestic violence post May, 2008. Those facts were found against Mr Hernandez. It is this failure by the tribunal to accept Mr Hernandez’s assertions that was the primary reason for his failure before the tribunal.
Although many grounds of review were identified in the amended application filed by Mr Hernandez at the hearing, no particulars were given in relation to grounds 1, 3, 5, 7 or 8. As I have earlier indicated, his argument was confined to ground 4 and 4A.
In my view, no jurisdictional error is demonstrated in the reasons of the tribunal and the application must be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate:
Date: 30 September 2011
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