Isahak v Minister for Immigration - [2008] FMCA 613

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ISAHAK v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 613

MIGRATION – Migration Review Tribunal – student visa – alleged non-compliance with conditions – condition concerning contact hours whether exceptional circumstances on grounds of illness – medical certificates – whether Tribunal obliged to rely on medical reports where medical certificate completed without examination or after significant delay - whether failure to consider relevant consideration – condition concerning academic results certified by education provider – whether enforceable duty on education provider to provide certificate – whether condition capable of breach by visa holder – whether jurisdictional error.

Education Services for Overseas Students Act 2000 (Cth) s.20
Migration Act 1958 (Cth) ss.116(1)(b) and (3); 137, 353(2), 360, 363A, 359, 420(2)
Migration Regulations 1994 (Cth) regs 1.03, 2.43(2)(b) and (2)(b)(ii)(B)

Browne v Dunn (1893) 6 R 67
Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229
Craig v South Australia (1995) 184 CLR 163
Dai v Minister for Immigration & Citizenship [2007] FCAFC 199
Hatcher v Cohn [2004] FCA 1548
Jiang v Minister for Immigration & Anor [2007] FMCA 215
Jiang v Minister for Immigration & Anor [2007] FCA 907
M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247
Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Ndungu v Minister for Immigration & Anor (2007) 213 FLR; [2007] FMCA 217
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Quan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 764
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2
WAME v Minister for Immigration & Anor [2007] FMCA 1569
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248

Applicant:

IZZWAN DATUK ISAHAK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 132 of 2007

Judgment of:

Lucev FM

Hearing date:

3 December 2007

Date of Last Submission:

3 December 2007

Delivered at:

Perth

Delivered on:

13 June 2008

REPRESENTATION

Counsel for the Applicant:

Mr R K O’Connor QC

Solicitors for the Applicant:

Lily Chen & Associates

Counsel for the Respondent:

Mr P Macliver

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS AND DECLARATION

The Court makes the following Orders and Declaration:

That the Application in a case for amendment of the grounds of application to include proposed grounds 8 and 9 be dismissed.
The Application be upheld in part in relation to ground 4, but otherwise be dismissed.
Declares that the Tribunal had regard to an irrelevant consideration, namely, whether the Applicant provided academic results certified by the education provider.
That a writ of certiorari issue directing the Second Respondent to quash the decision made by it in relation to the Applicant and handed down on 5 June 2007.
That a writ of mandamus issue directing the Second Respondent to determine the Applicant’s application dated 28 February 2007 to the Second Respondent for review of the Delegate’s decision according to law.
That a writ of prohibition issue directed to the First Respondent preventing the First Respondent from acting on the Delegate’s decision of 26 February 2007 to cancel the Applicant’s visa.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 132 of 2007

IZZWAN DATUK ISAHAK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background facts

The Applicant is a Malaysian national.[1] The Applicant was granted a sub-class 572 student visa on 23 February 2006, valid until 15 March 2008, and subject to condition 8202.[2]
[1] Case Book 18 (“CB”).
[2] CB 99.
In 2006 the Applicant enrolled in a Diploma of Built and Natural Environment[3] at Curtin International College.[4]
[3] CB 3.
[4] “Curtin”.
Curtin issued a non-compliance notice to the Applicant under s.20 of the Education Services for Overseas Students Act 2000 (Cth)[5] on 1 February 2007.[6]
[5] “ESOS Act”.
[6] CB 19-23; “Section 20 Notice”.
The Section 20 Notice set out the particulars of breach in the following terms:
“Particulars of the breach
The particulars of the breach are set out below, after the text of subclause 8202(3)(a). Failure to meet the requirements of subclause 8202(3)(a) will lead to a breach of condition 8202.
Subclause 8202(3)(a)
In the case of a visa holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled.
Colleges of Business and Technology (WA) Pty Limited has determined that in the semester running from 16 October 2006 to 26 January 2007, you attended 46.00% of the contact hours scheduled. As a result, you have failed to comply with condition 8202(3)(a) of your student visa.”[7]
[7] CB 20. Curtin is the trading name for Colleges of Business and Technology (WA) Pty Limited.
On 15 February 2007 the Applicant was issued with a Notice of Intention to consider cancellation of his visa under s.116 of the Migration Act 1958 (Cth).[8]
[8] “Notice of Intention” and “Migration Act” respectively. CB 28-33, the Applicant’s acknowledgement of receipt of the Notice of Intention on 15 February 2007 being at point 14 at CB 30.
The Notice of Intention set out the possible grounds for cancellation as follows:
“You have been issued a section 20 notice by Colleges of Business and Technology (WA) Pty Ltd (trading as Curtin International College) dated 01/02/2007.
PARTICULARS OF BREACH:
Failure to meet 80% attendance during the period from 16/10/2006 to 26/01/2007 equalling 46% of contact hours scheduled.
This is a possible breach of Section 116(1)(b) and Section 116(3) of the Migration Act of 1958 and Regulation 2.43(2)(b). Breach of student visa condition 8202.”[9]
[9] CB 28.
The Applicant’s visa was cancelled by the delegate[10] of the Minister for Immigration and Citizenship[11] under s.116(1)(b) and (3) of the Migration Act, and reg.2.43(2)(b) of the Migration Regulations 1994 (Cth)[12] on 26 February 2007.[13]
[10] “Delegate”.
[11] “Minister”.
[12] “Migration Regulations”.
[13] CB 33-35.
The reasons for cancellation given by the Delegate are as follows:
“The client provided a medical document from his GP indicating the client constanting[14] suffered from severe reflux oesophagitis and was unable to attend his classes.
[14] Presumably meant to be “constantly”.
Client could not provide medical certificates for the dates where[15] he was absent from school. It is therefore unknown if client was sick on the days he did not attend school.”[16]
[15] Presumably meant to be “when”.
[16] CB 35.
The Applicant was notified of the Delegate’s decision on 26 February 2007.[17]
[17] CB 37-39.
The reason for the Delegate’s decision is given as a breach of s.116(1)(b) and (3) of the Migration Act, and reg.2.43(2)(b) of the Migration Regulations, being a breach of student visa condition 8202. This is based upon the failure to meet the 80% attendance requirement during the period 16 October 2006 to 26 January 2007, when it is said that the Applicant attended for only 46% of contact hours scheduled.[18]
[18] CB 37.
On 28 February 2007 the Applicant applied to the Migration Review Tribunal[19] for a review of the Delegate’s decision.[20]
[19] “Tribunal”.
[20] CB 40-47; “Review Application”.
On 2 April 2007 the Tribunal wrote to the Applicant.[21] The Information Invitation Letter invited the Applicant to comment in writing on the Section 20 Notice and a copy of a certificate of attendance[22] and the Tribunal advised the Applicant that that information about attendance might form part of the reason for affirming the Minister’s Delegate’s decision because it indicated that the Applicant may have breached attendance requirements under condition 8202 of his visa.[23]
[21] CB 56-57; “Information Invitation Letter”.
[22] CB 58-59. There are two certificates of attendance, one dated 1 February 2007 (CB 59) and a later certificate dated 13 February 2007 (CB 58).
[23] CB 56. The invitation to comment and provide further information was under ss.359A and 359(2) of the Migration Act.
The Information Invitation Letter also invited the Applicant to provide additional information to the Tribunal as follows:
“1) A copy of your academic transcript for all semesters of study during the period 23 February 2006 to 26 February 2007, including the legend explaining the grades;
2) A certification from Curtin International College that your academic results were at least satisfactory for each term or semester of study during the period 23 February 2006 to 26 February 2007; and
3) Information and supporting evidence that any non-compliance with condition 8202 was due to exceptional circumstances beyond your control (If you are claiming that this is the case)”.[24]
[24] CB 57.
The Information Invitation Letter requested that the comments and information be provided by 20 April 2007 and advised the Applicant that if the Tribunal did not receive any comments or the information requested it may make a decision without taking any further action to obtain the comments or information, and that the Applicant would lose any entitlement he might otherwise have to appear before the Tribunal to give evidence and present arguments.[25]
[25] CB 57. As to the loss of entitlement to appear before the Tribunal, the Information Invitation Letter referred to s.360 of the Migration Act.
On 3 April 2007 the Tribunal invited the Applicant to appear before the Tribunal on 10 May 2007 to present oral evidence and arguments.[26] The Hearing Invitation Letter noted that there had been no response to the Information Invitation Letter and that if a response was not received within the prescribed time the Tribunal may decide the matter without a hearing.[27]
[26] CB 62-63; “Hearing Invitation Letter”.
[27] CB 63; Migration Act s.360(3).
The Applicant provided no information or comment to the Tribunal by 20 April 2007.
The Applicant was contacted on 2 May 2007 by an officer attached to the Tribunal and advised that because he had not responded to the Information Invitation Letter the hearing scheduled for 10 May 2007 had been cancelled. The Applicant seemingly said he still wanted the hearing, but was informed, again, that it had been cancelled, but that the Tribunal would consider any correspondence received prior to handing down a decision.[28]
[28] CB 64.
A decision to affirm the Delegate’s decision to cancel the Applicant’s visa was made by the Tribunal on 3 May 2007.[29]
[29] CB 70; “First Tribunal Decision”.
The Applicant was invited by letter of 4 May 2007 to the handing down of the First Tribunal Decision on 23 May 2007.[30]
[30] CB 71-72; “First Tribunal Decision Invitation Letter”.
Solicitors for the Applicant wrote to the Tribunal. A letter purportedly dated 2 May 2007 was sent from the Applicant’s Solicitors to the Tribunal, but not received by the Tribunal until 9 May 2007.[31] The Applicant’s 2 May 2007 letter said that:
[31] CB 73-74 and 78; “Applicant’s 2 May 2007 Letter”.
a)the Applicant had not seen the notice from the Post Office and consequently did not collect the Information Invitation Letter and the Hearing Invitation Letter;[32] and
[32] CB 73.
b)the Applicant wanted to attend a hearing before the Tribunal and call two witnesses, his father and his Perth based guardian, as well as provide medical certificates.[33]
[33] CB 74.
On 9 May 2007 an officer of the Tribunal told the Applicant’s solicitor that the Applicant was not entitled to attend a hearing as he had not responded to the Hearing Invitation Letter. The Applicant’s Solicitor was however advised that the Tribunal would consider any information submitted to the Tribunal before the Tribunal’s decision was handed down.[34]
[34] CB 79-80.
On 21 May 2007 the Applicant’s Solicitors wrote to the Tribunal making a submission and submitting further documentation in support of the Applicant’s Review Application.[35] In summary, the submission:
[35] CB 83-94.
a)says that the Applicant did breach the 80% attendance requirement, but the breach was due to exceptional circumstances beyond his control, namely his gastroesophageal reflux;
b)says that the Applicant did not and could not obtain full medical certificates to prove the absences, but his symptoms and medical condition had been consistent from childhood;
c)outlines and explains the reasons for absences between October 2006 to January 2007 in a table attached to the Applicant’s solicitor’s letter;
d)submits that apart from approved absences with medical certificates there were valid reasons such as sickness and a car accident for other absences, and that they ought to be considered to be exceptional circumstances;
e)attaches medical certificates from a Malaysian doctor and from a doctor at Curtin University of Technology Health Service;
f)refers to a letter of support from Canning College where the Applicant was then studying showing that he had good standing with attendance and academic progress;
g)refers to the Applicant’s first two semester results at Curtin being enclosed and says that the only problem was with his third semester results during which time he suffered from sickness and consequently failed his attendance and academic performance;
h)says that the Applicant is “a nice, honest, gentle young man who did not realise the consequences of absences without medical approvals.”[36]
[36] CB 84-85; “Applicant’s Solicitor’s 21 May 2007 Letter” (submitted on 21 May 2007 by facsimile, but the actual letter is dated 17 May 2007).
Attached to the Applicant’s Solicitors 21 May 2007 Letter is an undated explanatory letter from the Applicant.[37] The Applicant’s Explanatory Letter says that:
[37] CB 86; “Applicant’s Explanatory Letter”.
a)absence from classes was due to his gastroesophageal reflux, the symptoms of which are aggravated by stress or late dining;
b)he had had this problem since he was a small boy;
c)for the first two semesters he was fine and healthy with an attendance percentage above 80%, and that he passed most of his subjects in the first and second semester;
d)in the third semester the problem with gastroesophageal reflux was recurring and getting worse and he could not get to class and he therefore started to fail subjects and his attendance dropped severely to 46%;
e)he found it hard to see a doctor at Curtin, and that “it is hard to obtain medical certificates compared to Malaysia. I have gathered a few medical certificates but it was not enough to meet the percentage of 80%.”;
f)he went back to Malaysia during the Christmas break to get immediate treatment and came back to Australia with a letter explaining his condition which was not accepted by Curtin or the Delegate; and
g)he considers it unfair that his visa was cancelled as it was his first time being reported without proper medical support.[38]
[38] CB 86.
The table[39] referred to in the Applicant’s Solicitors 21 May 2007 Letter is as follows:
[39] “Absence Table”.

“Month	Date	Day	Class	Reason for absence
October	15/10/06	Monday	BUS 104 CS 111	My enrolment was blocked due to the fees arriving late because of overseas bank transfers
PDR 25. PDR	20/10/06	Friday	BUS 105	Gastric pains started occurring and continued trough out the weekends.
PDR 25. PDR	30/10/06	Monday	CS 111	Still having pains and taking medication
November 26. PDR	03/11/06	Friday	BUS 105	Started having pains and taking medication
	06/11/06	Monday	BUS 104 CS 111	Approved absent due to car accident unapproved absent due to car accident
	20/11/06	Monday	CS 111	Approved medical certificate
	24/11/06	Friday	BUS 105	Approved medical certificate
	27/11/06	Monday	BUS 104 CS 111	Still having pains from Friday to Monday – Taking medication
December PDR PDR PDR PDR 27. MDR	01/12/06	Friday	BUS 105
	04/12/06	Monday	BUS 104 CS 111
	11/12/06	Monday	CS 111
	18/12/06	Monday	BUS 104 CS 111	Started vomiting and severe pain – Taking medication
	22/12/06 23/12/06	Friday Saturday	BUS 105	Went back to Malaysia to get treatment, condition worsened (Malaysian Medical Certificate)
January MDR	07/01/07 08/01/07	Sunday Monday	BUS 104 CS 111	Malaysian Medical Certificate
	15/1/07	Monday	BUS 104 CS 111	Approved medical certificate Approved medical certificate
	19/1/07	Friday	BUS 105	Approved medical certificate ”

Also attached to the Applicant’s Solicitors 21 May 2007 Letter were the following:
a)a short letter dated 10 October 2006 from Dr Nayagam from a Kuala Lumpur clinic saying that the Applicant had intermittently recurring gastroesophageal reflux and that treatment for that condition:
i)had been “started”;
ii)“may be long term as symptom can be aggravated on stress and change in diet.”[40]
b)a medical certificate dated 7 January 2007 from Dr Nayagam indicating that the Applicant was unfit for two days, being 7 and 8 January 2007;[41] and
c)a medical certificate dated 22 December 2006 indicating that the Applicant was unfit for two days, namely 22 and 23 December 2006;[42]
d)a medical certificate dated 9 March 2007 from Dr Lim at Curtin University of Technology Health Service indicating that a medical certificate was issued to the Applicant on 24 November 2006 indicating that he was unfit for study for one day, and that the Applicant had returned to the health service on 9 March 2007 and stated that “in fact he continued to be unwell from 24/11/2007 (sic) to 27/11/2007 (sic) inclusive, thus he was unable to attend his classes then.”[43]
[40] CB 88; “10 October 2006 Letter”.
[41] CB 89; “7 January 2007 Medical Certificate”.
[42] CB 90; “22 December 2006 Medical Certificate”.
[43] CB 93; “Health Service Certificate”. Presumably “then” refers to 24/11/2006 to 27/11/2006 inclusive.
The Tribunal had intended to hand down its decision on 13 May 2007 but in light of the further submissions from the Applicant the handing down of the decision was deferred.[44]
[44] CB 94-95.
On 25 May 2007 the Applicant was invited to the handing down of the Tribunal’s decision on 5 June 2007.[45]
[45] CB 96-97; “Second Tribunal Decision Invitation Letter”.
The Tribunal’s Decision, which had been signed on 25 May 2007,[46] was handed down on 5 June 2007.[47]
[46] CB 98-107; “Tribunal’s Decision”.
[47] CB 106-108.

Tribunal’s Decision

The Tribunal’s Decision sets out the history of the matter. That history is in very similar terms to the background facts set out above.[48]
[48] Tribunal Decision, CB 99-102.
The Tribunal’s findings and reasons first note that the Applicant did not respond to the Information Invitation Letter and that the Tribunal therefore determined the matter on the basis that the information and written submissions before it without a hearing, and cited the relevant sections of the Migration Act in relation to its right to do so.[49]
[49] Migration Act, ss.360(3) and 363A
The Tribunal also referred to M v Minister for Immigration & Multicultural Affairs.[50] The Tribunal noted that the review process applicable was full merits review.[51]
[50] [2006] FCA 1247.
[51] CB 102, referring to Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248.

The Tribunal then set out the relevant law, namely s.116(1)(b) and (3) and the Migration Act, reg.2.43(2) of the Migration Regulations and Condition 8202.[52]
[52] CB 102-102.
The Tribunal then turned to the issues of attendance, academic performance and what is meant by “exceptional circumstances”.
In relation to attendance the Tribunal took into account and considered:
a)the Section 20 Notice said to indicate that the Applicant had attended 46% of the contact hours scheduled;
b)the Certificate of Attendance, indicating that after taking into account approved absences and medical certificates, the Applicant’s attendance was 58.97% of scheduled contact hours;[53]
c)the Absence Table compiled by the Applicant;[54]
d)the fact that Curtin had given the Applicant the benefit of doubt with respect to approved absences for scheduled contact hours on 6 November 2006, 20 November 2006, 24 November 2006, 15 and 19 January 2007;[55]
e)that there were no medical certificates for absences on 20 and 30 October 2006, 3 and 27 November 2006, 1, 4, 11 and 18 December 2006 but that in respect of 27 November 2006 there was the Health Service Certificate indicating that some months later the Applicant had indicated to the doctor that he was unwell on 27 November 2006;[56]
f)that with respect to the 22 December 2006 Medical Certificate that there was no independent evidence before the Tribunal that the Applicant was in Malaysia on that date;[57]
g)letters from medical practitioners dated 15 February 2007 and October 2006, but noting that they did not enable the Tribunal to make a finding that the Applicant may not have been able to attend classes so as to increase scheduled contact hours.[58]
[53] CB 103.
[54] CB 103.
[55] CB 103, thus enabling the Applicant’s attendance percentage to be elevated to 58.97% of scheduled contact hours.
[56] CB 103-104.
[57] CB 104.
[58] CB 104.
The Tribunal having taken into account the various medical certificates also took into account the fact that the Applicant’s Solicitors 21 May 2007 Letter acknowledged that the Applicant had breached the attendance requirements of Condition 8202 in the relevant semester.[59]
[59] CB 104.
On the basis of the foregoing the Tribunal satisfied itself that the Applicant had breached the attendance requirements of Condition 8202 in semester three of 2006.
The Tribunal then turned to the issue of academic performance. It noted that it was the education provider (in this case, Curtin) which determined whether academic results were at least satisfactory.[60] The Tribunal had requested that the Applicant provide Academic Certification from Curtin, and the Applicant had failed to do so. The Applicant did however provide a copy of his academic transcript. Both Academic Certification and the academic transcript had been requested under s.359(2) of the Migration Act. Without provision of the Academic Certification the Tribunal found that it was not satisfied that the Applicant met the academic performance requirements of Condition 8202, specifically Condition 8202(3)(b).[61]
[60] CB 104; “Academic Certification”. Condition 8202(3)(b) provides that the holder of a visa meets the requirements of the sub-clause if the holder achieves an academic result “that is certified by the education provider to be at least satisfactory”.
[61] CB 104.
The Tribunal then turned to consider whether or not there were “exceptional circumstances” justifying any non-compliance with Condition 8202.[62]
[62] Regulation 2.43(2)(b)(ii)(B) provides that where a person has not complied with a condition of a visa the Minister must cancel a visa unless the Minister is satisfied that the non-compliance was due to exceptional circumstances beyond the visa holder’s control.
The Tribunal considered cases dealing with the meaning of “exceptional circumstances” as meaning unusual or out of the ordinary, but also having a wide operation to include factors affecting a person and setting them apart from other persons in a comparable situation, or circumstances which were unusual and not of the Applicant’s own making, but beyond the person’s control.[63]
[63] CB 104-105 referring to Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918; Hatcher v Cohn [2004] FCA 1548; Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229.
The Tribunal also considered whether there were any relevant policy guidelines concerning interpretation of reg.2.43(2)(b)(ii)(B) of the Migration Regulations, and noted that there were none. It did however note other policy guidelines in relation to another section of the Migration Act[64] giving numerous examples of what constituted exceptional circumstances, including “serious illness”. The Tribunal noted that it retained a wide discretion to decide what constituted “exceptional circumstances” and the individual circumstances of particular cases and that it did not follow policy where policy was not consistent with the law.[65]
[64] Migration Act, s.137.
[65] CB 105.
The Tribunal then considered the Applicant’s absences. In so doing, the Tribunal accepted that the Applicant suffered from gastroesophageal reflux, and that he was unable to attend classes on dates covered by medical certificates “because of a medical condition”.[66] The Tribunal noted that after taking the medical certificates into account the Applicant’s attendance was still only 58.97% of scheduled contact hours, being substantially less than the required 80%.[67] The Tribunal also noted that:
a)there was no independent evidence that the Applicant was precluded from attending classes on 16 October 2006 because of late payment of fees; and
b)that Curtin approved the Applicant’s absence on 6 November 2006, said to be due to a car accident (although the absence was in fact approved for only one of two classes that day).[68]
[66] CB 105. It is not clear whether the Tribunal was equating “medical condition” with gastroesophageal reflux, or simply accepting that “a medical condition” prevented the Applicant from attending on those dates.
[67] CB 105.
[68] CB 105.
In relation to the various medical reports the Tribunal took into account the information contained in them.[69] The Tribunal specifically noted a letter of 15 February 2007 from Dr Sak Punyanitya[70] in South Perth contained no information concerning the history of the Applicant’s consultations or treatment.[71] The Tribunal also considered “the medical information from Malaysia.”[72] Again, it noted that no information was given regarding the history of the Applicant’s consultations, treatment and as to when a diagnosis was made.[73]
[69] CB 106.
[70] CB 32.
[71] CB 105.
[72] CB 105. As with the phrase “medical condition” (see footnote 66 above) it is not immediately clear what is meant by the phrase “the medical information from Malaysia”.
[73] CB 105-106.
The Tribunal again noted that taking into account the medical certificates for which credit had been given to the Applicant that his attendance for scheduled contact hours still fell substantially below the required 80%, and was in fact only 58.97%.[74]
[74] CB 106.
The Tribunal affirmed the decision to cancel the Applicant’s visa saying that it had taken “all matters into account”.[75]
[75] CB 106.

Grounds of Application and Orders Sought

The Application filed on 3 July 2007 listed the following Grounds of Application:
“1. The Migration Review Tribunal did not properly consider the Applicant’s claim of “exceptional circumstances”.
2. The Migration Review Tribunal did not properly consider under “exceptional circumstances” that the Applicant’s illness of is that the severe gastrointestinal reflux was beyond his control.
3. The Migration Review Tribunal failed to consider that on some days the Applicant was so unwell with severe gastrointestinal reflux that it could not attend classes and did not obtain a medical certificate for those days.
4. The Migration Review Tribunal did not give proper consideration to the Applicant’s medical certificates and the combined effect of all of his medical certificates together with his absence from classes on days when he did not have medical certificates that claimed that he was ill with severe gastrointestinal reflux.
5. If the Migration Review Tribunal had taken into account that on 20 October 2006, 30 October 2006, 3 November 2006, 27 November 2006, 1 December 2006, 4 December 2006, 11 December 2006 and 18 December 2006 that the Applicant who has been diagnosed as suffering from severe gastrointestinal reflux had that illness on those days and could not attend classes then his attendance together with his justifiable absences on medical grounds award meet the required 80% level. [NO MENTION OF 8/1/07]
6. The Migration Review Tribunal failed to take into account that the Applicant’s absence from class on 16 October 2006 was due to the late payment of fees.
7. If the Migration Review Tribunal had taken into account the Applicant’s absence from class for non-payment of fees together with those days on which he did not have a medical certificate but it is consistent with his diagnosis that he had severe gastrointestinal reflux and could not attend classes on those days, then his attendance at classes would meet the required 80% level.”[76]
[76] Application Under Migration Act filed 3 July 2007 (transcribed from the original without amendment).
The relevant orders then sought by the Applicant were as follows:
“1. The decision of the 1^st and 2^nd Respondents be quashed and the matter be remitted to the 2^nd Respondent;

2. The 2^nd Respondent make decision pursuant to the orders of this Court; and

3 Any other orders as this Honourable Court considers appropriate.”[77]
[77] Application Under Migration Act filed 3 July 2007 (transcribed from the original without amendment).

Application to amend grounds of application

By an Application in the Case filed on 27 November 2007 the Applicant sought to amend the grounds of application to include the following:
“8.    The Migration Review Tribunal erred in law by failing to apply the reasoning in the rule in Brown v Dunn in relation to -

(a)    requiring “independent evidence” regarding the presence of the Applicant of the Applicant in Malaysia on 22 December 2006; and

(b)    requiring “independent evidence” regarding precluding from attending on 16 October 2007 because of late payment of fees;and

(c)     the content of the letter of 15 February 2007 from Dr Sak Punyanitya.

9. The Migration Review Tribunal erred in fact and in law in its conclusion that the content of the letter of 15 February 2007 from Dr Sak Punyanitya was not sufficient to meet the statutory requirement of exceptional circumstances beyond the Applicant’s control.”[78]
[78] Application in a Case filed 27 November 2007.
Both parties were content to allow the Court to hear argument on the proposed amended grounds and for the Court to determine the Application in the Case for amendment, and then, if necessary, the merits of any amended grounds, as part of its determination.

Jurisdictional error

The Tribunal’s Decision can only be set aside if it involves jurisdictional error.[79]
[79] Migration Act, ss.474(1) and 476(1) and (2); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para. 76 per Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ (“S157/2002”).
Jurisdictional error occurs where the decision maker (in this case the Tribunal):
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in a way affecting the exercise of power by the decision maker, resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[80]
[80] Minister for Immigration and Multicultural Affairs & Ors v Yusuf & Ors (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para. 82 per McHugh, Gummow and Hayne JJ; Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; WAME v Minister for Immigration & Anor [2007] FMCA 1569 at paras. 13-14 per Lucev FM.
Determination of whether a decision involves jurisdictional error requires an examination of the limitations and restraints found in the Migration Act, and an attempt, through statutory construction, to reconcile any relevant limitations and restraints with s.474 of the Migration Act, so as to ascertain whether failure to observe procedural or other requirements in the Migration Act constitute an error resulting in the decision maker’s failure to exercise, or exceeding, jurisdiction.[81]

Legislation

[81] S157/2002 CLR at 506-607 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; HCA at paras. 76-78 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Ndungu v Minister for Immigration & Anor (2007) 213 FLR 123 at 143 per Lucev FM; [2007] FMCA 217 at para. 57 per Lucev FM.

Section 116

Section 116 gives the Minister power to cancel a visa where the visa holder has not complied with a condition of the visa. It relevantly states:
(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(b)    its holder has not complied with a condition of the visa; or

…
(3)    If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

Regulation 2.43

Regulation 2.43 of the Migration Regulations sets out the prescribed circumstances referred to in section 116(3) of the Migration Act. For student visas in force on or after 8 October 2005, reg. 2.43(2) relevantly provides:
(2)    For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

…

(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 conditions 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.

Condition 8202

Condition 8202 relevantly provides as follows:
(3) A holder meets the requirements of this subclause if:
(a) in the case of a holder whose education provider keeps attendances records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i)     for a course that runs for 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; and
(b)    in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)     for a course that runs for less than a semester – for the course; or
(ii)    for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.

Compliance with Condition 8202 – contact hours

The Applicant has admitted that he failed to attend for at least 80% of the contact hours scheduled. That admission is contained in the Applicant’s Solicitor’s 21 May 2007 Letter:
“Isahak breached Condition 8202, namely, his attendance did not achieve 80% as requested by the Regulations”[82]
and in the Applicant’s Explanatory Letter:
“but in the third semester…my attendance dropped severely to 46%.”[83]
[82] CB 84.
[83] CB 86.
But for the admission made by the Applicant there may have been an argument that the Tribunal failed to have regard to a relevant consideration, namely the definition of “contact hours” in reg. 1.03 of the Migration Regulations, which is not the same as days, sessions or classes actually attended.[84] In this case, the admission of fact alleviates the necessity to consider that issue, at least in relation to simple non-compliance.

Consideration of the grounds of application

[84] Migration Regulations, reg.1.03; Quan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 764 at paras. 32-33 per Jacobson J (”Quan”).

Ground 1

The Tribunal considered what might constitute exceptional circumstances, having regard to:
a)Federal Court authorities;
b)the Migration Regulations;
c)policy considerations, and even though there was no relevant policy, considered other policy guidelines, and noted that “serious illness” was under another policy a matter which might constitute exceptional circumstances; and
d)the residual and final discretion vested in the Tribunal.
There can be no criticism of the Tribunal’s reasoning in this respect, and there was no failure on its part to appreciate what might constitute “exceptional circumstances”.
The Tribunal took into account numerous relevant considerations when determining whether the Applicant had complied with the 80% attendance requirement, namely:
a)the Section 20 Notice;[85]
b)the Certificates of Attendance;[86]
c)by allowing for approved absences and medical certificates (about which there was no dispute and in respect of which the Tribunal gave the Applicant the benefit of the doubt), to determine that actual attendance was 58.97% of scheduled contact hours, and not the 46% alleged in the Section 20 Notice;[87]
d)the Absence Table;[88]
e)the fact that there were no medical certificates for 20 and 30 October 2006, 3 and 27 November 2006, and 1, 4, 11 and 18 December 2006 (but acknowledging the Health Service Certificate concerning the Applicant’s condition on 27 November 2006);[89]
f)the 22 December 2006 Medical Certificate (but noting that there was no independent evidence that the Applicant was in Malaysia on that date);[90]
g)the 15 February 2007 Letter and October 2006 Undated Letter, noting that the Tribunal was unable to make a finding regarding additional scheduled contact hours that the Applicant may not have been able to attend classes on the basis of these medical certificates;[91]
h)the medical certificates generally;[92] and
i)the Applicant’s acknowledgement that he was in breach of the attendance requirements of Condition 8202.[93]
[85] CB 103.
[86] CB 103.
[87] CB 103-104.
[88] CB 104.
[89] CB 104.
[90] CB 104.
[91] CB 104.
[92] CB 104.
[93] CB 104.
The information relied upon by the Tribunal was more than sufficient to establish that there had been a breach of Condition 8202.
In considering whether there were exceptional circumstances that could be established by the Applicant, the Tribunal:
a)considered the Applicant’s absence of 16 October 2006, noting that no independent evidence from Curtin had been obtained indicating that the Applicant was precluded from attendance by reason of late payment of fees as alleged;[94]
b)considered that Curtin had approved the absence (albeit partial from one class only) on 6 November 2006 said to be because of a car accident;
c)accepted that the Applicant suffered from gastroesophageal reflux;
d)accepted that the Applicant was unable to attend on the dates covered “by his medical certificates because of a medical condition”, but notes that even then his attendance was only 58.97% of scheduled contact hours;[95]
e)considered the 15 February 2007 Letter, noting that “no information regarding the history of the Applicant’s consultation and treatment” is given in that letter;[96]
f)considered the “medical information from Malaysia” about which there was “no information regarding the history of the applicant’s consultations, treatment and as to when the diagnosis was made”;[97] and
g)considered the “information in the medical reports.”[98]
[94] CB 105-106.
[95] CB 105-106.
[96] CB 105.
[97] CB 105 and 106.
[98] CB 106.

Having regard to the:
a)manner in which; and
b)material before,
the Tribunal, in its consideration of the Applicant’s claim of exceptional circumstances, the Court does not consider that Ground 1 can be made out in the global way in which it is framed. The Tribunal approached the task correctly the consideration of what constitutes exceptional circumstances. No jurisdictional error in relation to ground 1 is established.

Ground 2

The Tribunal acknowledged receipt of the Applicant’s Solicitors 21 May 2007 Letter in which is was submitted that the gastroesophageal reflux was an exceptional circumstance “beyond his [the Applicant’s] control”.[99] The Tribunal accepted that the Applicant suffered from gastroesophageal reflux, and that for days on which he was absent because of that medical condition that he was unable to attend classes. It seems axiomatic that the Tribunal accepted the gastroesophageal reflux was beyond the Applicant’s control, and that had the Applicant had contemporaneous medical certificates obtained on the day or days he says he was ill with gastroesophageal reflux these would have been accepted by the Tribunal as approved absences due to illness, and hence an exceptional circumstance. The Tribunal did so with respect to the medical certificates for 20 and 24 November 2006 and 15 and 19 January 2007 which were counted as part of approved absences so as to bring the Applicant’s attendance record up to 58.97%.[100] If not axiomatic, it can certainly be implied that the Tribunal accepted that the gastroesophageal reflux was an illness beyond the Applicant’s control, by reason of the acceptance of the medical certificates of 20 and 24 November 2006 and 15 and 19 January 2007 as evidencing approved absences. The Court also notes that the Tribunal says that it took all matters into account in determining that the Applicant’s breach of Condition 8202 was not due to exceptional circumstances “beyond the applicant’s control.”[101]
[99] CB 101 at last dot point.
[100] CB 103-104.
[101] CB 106.
The real issue in this case and the Tribunal’s approach highlights it, is whether there was evidence or sufficient evidence for the Tribunal to be satisfied that the Applicant was ill with gastroesophageal reflux (and therefore the subject of an exceptional circumstance beyond his control) on days he claims he was ill with gastroesophageal reflux, but for which he did not have contemporaneous medical certificates. That issue is different to the ground alleged in Ground 2, in relation to which, the Court is satisfied that the Tribunal did consider the question of whether the Applicant’s gastroesophageal reflux was beyond his control. In that regard, the Tribunal dealt with the correct issue and had regard to relevant material that was before it. Therefore, in relation to Ground 2, no jurisdictional error is established.

Ground 3

Ground 3 proceeds on the basis that the Tribunal ought to have considered that on days that the Applicant suffered from gastroesophageal reflux, and for which he did not have contemporaneous medical certificates, that he was so unwell that he could not attend classes “and did not obtain a medical certificate for those days”.
The Tribunal did consider whether the Applicant was able to attend classes on those days and whether he had medical certificates in relation to those days. It is fair to say that the Tribunal came to the view that the lack of information in relation to non-contemporaneous medical certificates and letters was such that it was not able to conclude, “taking all matters into account”,[102] that the Applicant’s absence was due to exceptional circumstances beyond the Applicant’s control. Thus the Tribunal considered the question whether or not the Applicant was able to attend classes and came to the view that there was insufficient evidence to establish that fact. Having had regard to all the evidence before it in reaching that view on a question in issue in the matter, it is not the function of this Court on a judicial review application to review the Tribunal’s finding of fact in the circumstances outlined.
[102] CB 106.
Insofar as Ground 3 asserts that the Applicant “did not obtain a medical certificate for those days” (that is those days for which he did not have contemporaneous medical certificates and was absent) that is axiomatic, and does not constitute a valid ground for judicial review. It is simply stating what is obvious on the evidence. It cannot be said that the Tribunal failed to consider that fact, or the Applicant’s health on those days which he did not have a medical certificate.
If it be asserted that what was intended by this ground was that the Applicant was so unwell that he could not obtain the medical certificates, then that is a matter of fact for the Tribunal to have considered if that was what was argued before it. It was not. What the Applicant indicated was that it was “not always easy to make appointments with the doctor in Curtin” and that “I find it very hard to see a doctor here therefore it is hard to obtain medical certificates compared to Malaysia.”[103] Apart from bald assertion, no particulars of any attempts on any occasions by the Applicant to make successful appointments were provided to the Tribunal. The Tribunal did have evidence before it of occasions on which the Applicant had gastroesophageal reflux but still managed to attend before a doctor to obtain a medical certificate. In the circumstances, the question of whether the Applicant was so unwell with gastroesophageal reflux that he could not attend classes, and did not or could not obtain a medical certificate for particular days, was a matter of fact to be found by the Tribunal. Again, the Tribunal considered the issue having regard to all relevant material put before it, and taking into account the contemporaneous medical certificates only (which it was entitled to do) found, as a matter of fact, that the Applicant breached Condition 8202, and that that breach was not due to exceptional circumstances beyond the Applicant’s control.[104] That was the Tribunal’s proper function, and Ground 3 does not establish a basis for judicial review of that function properly exercised. There is no jurisdictional error established by Ground 3.

Ground 4

[103] Applicant’s Explanatory Letter, CB 85.

[104] CB 105-106.

The Tribunal referred to various of the medical certificate or letters from medical practitioners provided to it (or the Delegate) by the Applicant. In particular:
a)it refers to the October 2006 Undated Letter which in general terms relates to the Applicant suffering from gastroesophageal reflux, but in relation to which the Tribunal notes that the pain caused “may interfere with daily chores” and may be “usually aggravated by stress”;[105]
b)medical certificates for 20 and 24 November 2006 and 15 and 19 January 2007 which were accepted by Curtin;[106]
c)the 22 December 2006 Medical Certificate and the 7 January 2007 Medical Certificate;[107]
d)the Health Service Certificate indicating that the Applicant was unfit for class on 24 November 2006, and indicating that the Applicant had claimed, on his return to the clinic three months later, that he continued to be unwell until 27 November 2006;[108]
e)the 15 February 2007 Letter the terms of which are as follows:
“This is to certify that this man suffers from severe reflux esophagitis and unable to attend his class during the time of illness. He get very severe pain which stop him from being able to get to his class and concentrate there. All his absentee are due to his medical illness. He’s been advised to obtain medical certificate for future illness.”
[105] CB 100.
[106] CB 101 at first dot point.
[107] CB 101 at third dot point.
[108] CB 101 at second dot point.
In reaching views as to the breach of the attendance requirements of Condition 8202 and the exceptional circumstances requirement the Tribunal did not specifically advert to the October 2006 Undated Letter or the 10 October 2006 Letter. It probably did not need to because that letter was in general terms and said nothing about a specific absence. Further, the Tribunal in any event accepted that the Applicant had gastroesophageal reflux.
The Tribunal accepted that there were approved medical certificates for 20 and 24 November 2006 and 15 and 19 January 2007.
The Tribunal noted that there were no medical certificates for 20 and 30 October 2006 and 3 and 27 November 2006, and 1, 4, 11 and 18 December 2006.[110] The Tribunal did consider the Health Service Certificate in relation to 27 November 2006, which indicated no more than that the Applicant said that he was unwell. In determining that there was a breach of the attendance requirements of Condition 8202 the Tribunal took this information into account (that is, that there were no medical certificates for these dates), but the Tribunal did not make any specific findings with respect to these absences and whether or not these absences, taken together with the approved medical certificates, might constitute an exceptional circumstance. The Tribunal did however accept that the Applicant was unable to attend classes on the dates covered by medical certificates because of a medical condition,[111] and it can from that be inferred that it has given consideration to the dates for which there are no medical certificates, and by implication not accepted that the Applicant was unable to attend classes on those dates. That was a finding open to the Tribunal on the basis of the lack of medical evidence, by way of medical certificates, put before the Tribunal by the Applicant. In short, it was open for the Tribunal not to be satisfied that the Applicant had not attended classes on those days by reason of a medical illness, and that therefore there were no exceptional circumstances.
[110] CB 104.
[111] CB 105.
It is apparent from the Tribunal’s decision that the Tribunal took into account those medical certificates that elevated the Applicant’s attendance to 58.97% of scheduled contact hours.[112] This means that the Tribunal did not take into account, for the purpose of assessing scheduled contact hours, the:
a)22 December 2006 Medical Certificate; and
b)7 January 2007 Medical Certificate.
[112] CB 106. Namely the certificates referred to in para. 72(b) above.
The Tribunal found that there was “no independent evidence” before it that the Applicant was in Malaysia on 22 December 2006 when a Malaysian medical practitioner purported to issue the 22 December 2006 Medical Certificate covering two days (22 and 23 December 2006).[113] The Applicant’s movement details, which were evidently before the Tribunal, indicated that he did not depart Australia until 24 December 2006.[114] It would therefore have been impossible for a Malaysian medical practitioner “to certify” that the Applicant had been “examined” by the medical practitioner.[115] That was done here, and the medical practitioner was wrong to do so. It is evident from the Tribunal’s decision that it disregarded the 22 December 2006 Medical Certificate because the Applicant was not in Malaysia on the relevant date. It was open to the Tribunal to do so in circumstances where the Malaysian medical practitioner could not have seen the Applicant on the date specified in the 22 December 2006 Medical Certificate. Whilst the conclusion of the Tribunal is somewhat obtusely expressed, it is clear what is meant, but it would have been preferable had the Tribunal said what it meant in simple terms.
[113] CB 104. The certificate is at CB 90.
[114] CB 54.
[115] CB 90.
The Tribunal also referred to the 15 February 2007 Letter the terms of which are set out above. The Tribunal found that it was “unable to make a finding regarding any additional scheduled contact hours when the applicant may not have been able to attend classes” on the basis of that letter.[116] When considering whether the letter constituted exceptional circumstances the Tribunal said that it had considered the letter, but that it contained “no information regarding the history of the applicant’s consultations and treatment” and “no information regarding the history of the applicant’s consultations, treatment and as to when the diagnosis was made.”[117] Clearly, the Tribunal has considered the 15 February 2007 Letter, and whilst the Tribunal has not expressly said so, it is implicit that it has rejected it for the purpose of the Applicant establishing that there were exceptional circumstances. The finding that the 15 February 2007 Letter did not constitute exceptional circumstances was open to the Tribunal by reason of the lack of information contained therein. Moreover, the Tribunal might have been entitled to treat the 15 February 2007 letter with some suspicion in circumstances where:
a)the letter was only obtained on the morning of the Applicant’s appointment with the Delegate to advise the Applicant of the Notice of Intention (to cancel his visa);[118]
b)there is no indication that the particular doctor had seen the Applicant in the past;
c)the assertion by the doctor that all of the Applicant’s absences were “due to his medical illness” is simply not true on the Applicant’s own version of events; and
d)where the illnesses were between one and four months before the letter was written.
[116] CB 104.
[117] CB 105-106.
[118] See the 15 February 2007 letter at CB 32, and the decision indicating that the Applicant had received the Notice of Intention to Consider cancelling the visa on 15 February 2007 and had presented “a medical document from his GP indicating that client constanting [sic] suffered from severe reflux oesophagitis and was unable to attend his classes”: CB 33.
The Applicant also had the 7 January 2007 Medical Certificate covering two days, being 7 and 8 January 2007. That certificate was from the same medical clinic that had dated the 22 December 2006 Medical Certificate at a time when the Applicant was not in Malaysia. However, it is evident from the movement records that the Applicant was in Malaysia on 7 January 2007 (at some time) and that he flew to Australia at some time on that day.[119] Unlike each other medical certificate and medical report or letter before the Tribunal, the Tribunal having referred to the existence of the 7 January 2007 Medical Certificate,[120] does not expressly refer to it again either in relation to compliance with the attendance requirements of Condition 8202, or in its examination of whether or not there were exceptional circumstances. In relation to the former the Tribunal indicates that it took into account “the medical certificates”[121] and “all matters”.[122] However it makes no finding, express or implied, with respect to the 7 January 2007 Medical Certificate (unlike the 22 December 2006 Medical Certificate). Further, in relation to medical certificates it is apparent that the Tribunal in considering exceptional circumstances took into account those medical certificates “which as discussed,” meant “that the applicant can be taken to have an attendance of 58.97% of scheduled contact hours”.[123] That does not include the 7 January 2007 medical certificate.
[119] CB 54.
[120] CB 101.
[121] CB 104.
[122] CB 106.
[123] CB 106.
It is not apparent from the Tribunal’s decision whether the Tribunal has taken into account the 7 January 2007 Medical Certificate, and the absence of the Applicant on Monday 8 January 2007 from his classes, seemingly due to the illness referred to in that certificate.
Given that the Tribunal was prepared to give credit for approved medical certificates to raise the Applicant’s attendance record from 46% to 58.97%, it is apparent that if the Tribunal had considered the 7 January 2007 medical certificate, that that percentage might have been raised higher, by reason of the Applicant arguably having an exceptional circumstance for not attending his classes on 8 January 2007. Alternatively, the Tribunal might have considered reasons why it did not consider that the 7 January 2007 Medical Certificate ought to be disregarded. The Tribunal would, for example, have been entitled to explore the fact that the certificate was seemingly given on the same day that the Applicant flew to Perth, but did not render him too ill to fly. Given the false date on the 22 December 2006 Medical Certificate the Tribunal would have been entitled to explore whether the 7 January 2007 Medical Certificate was given as a result of a consultation on that day: it being both a Sunday and the day on which the Applicant flew back to Perth.[124] The Tribunal failed to have regard for the possible permutations arising from the 7 January 2007 Medical Certificate, and in particular those possibly favourable to the Applicant, and therefore failed to have regard to a relevant consideration or considerations. That failure is jurisdictional error. At least in relation to this limited part of Ground 4 jurisdictional error has therefore been established.
[124] CB 54.

Ground 5

Ground 5 is argumentative, and effectively asks the Court to take into account matters that the Applicant says were not taken into account, namely his absences on days when he was suffering from gastroesophageal reflux and did not attend classes and did not obtain a contemporaneous medical certificate, on the basis that if that is done, the Applicant’s “justifiable absences on medical grounds…meet the required 80% level.”
Ground 5 is posited on the assumption that one or all of Grounds 1 to 4 are successful. Therefore, to the extent that the prior grounds have not been successful Ground 5 cannot be successful, and vice versa. As such it does not add anything to the grounds, and does not establish jurisdictional error.

Grounds 6 and 7

The Absence Table was attached to the Applicant’s Explanatory Letter which was itself attached to the Applicant’s Solicitor’s 21 May 2007 Letter. The Applicant’s Explanatory Letter did not refer to the absence on 16 October 2006 or the reason for that absence. The Applicant’s Solicitor’s 21 May 2007 Letter says that the reason for the absences between October 2006 to January 2007 are outlined by the Applicant in the Absence Table. It then goes on to say that:
“From the table one can see that apart from the approved absences that have medical certificates, they [sic] were valid reasons (considered by the law as exceptional circumstance [sic]) such as sickness and car accident.”[125]
[125] CB 84.
Apart from the reference in the Absence Table there is no express reference to the absence on 16 October 2006 or the reason for that absence.
What the Tribunal had before it was an assertion by the Applicant, unsupported by any other evidence, that his enrolment was blocked due to fees arriving late because of overseas bank transfers.
The Tribunal considered whether or not that constituted an exceptional circumstance. It indicated that there was no independent evidence from Curtin that the Applicant was precluded from attending because of late payment of fees as the Applicant claimed.[126]
[126] CB 105.
The Tribunal specifically refers to the Absence Table and the claim of enrolment being blocked “due to the payment of late fees.”[127] Thus, the Tribunal considered the bald assertion made by the Applicant, unsupported by any corroborating evidence, and came to the view, taking all matters into account, that the breach of Condition 8202 was not due to exceptional circumstances beyond the Applicant’s control.[128] The Tribunal is entitled to come to the view based on a lack of material put before it by the Applicant that it is not satisfied that the absence was for the reason put forward. It is for the Applicant to satisfy the Tribunal about these matters, not for the Tribunal to go in search of what is not presented to it by the Applicant. Thus, Ground 6 does not establish any jurisdictional error.
[127] CB 101.
[128] CB 106.

Ground 7 does not establish jurisdictional error because of the failure of Ground 6 upon which it is premised.

Proposed Ground 8

In Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002[129] the High Court of Australia considered the applicability of the rule in Browne v Dunn[130] to proceedings before the Refugee Review Tribunal.
[129] (2003) 77 ALJR 1909; [2003] HCA 60 (“S154”).
[130] (1893) 6 R 67.
In S154 the High Court was considering s.420(2) of the Migration Act which states:
“The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.”
Section 420(2) of the Migration Act relates to the manner of operation of the Refugee Review Tribunal. Section 353(2) of the Migration Act which is in identical terms relates to the operation of the Tribunal. For relevant purposes there is no distinction to be made between the manner of operation of s.420(2) of the Migration Act to the Refugee Review Tribunal and s.353(2) of the Migration Act to the Tribunal.
In S154 the High Court held that the rule in Browne v Dunn “has no application to proceedings in the Tribunal.”[131] The High Court further observed that:
“Those proceedings are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by the applicant. The Tribunal Member conducting the enquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. …It was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the Tribunal to decide whether her claim had been made out; it was not part of the function of the Tribunal to seek to damage the credibility of the prosecutrix’ story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.”[132]
and further that:
“The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.”[133]
[131] S154 ALJR at 1918 per Gummow and Heydon JJ; HCA at paras. 56-57 per Gummow and Heydon JJ (with whom Gleeson CJ agreed: ALJR at 1910; HCA at para. 1).
[132] S154 ALJR at 1918-1919 per Gummow and Heydon JJ; HCA at para. 57 per Gummow and Heydon JJ.
[133] S154 ALJR at 1919 per Gummow and Heydon JJ; HCA at para. 58 per Gummow and Heydon JJ.
Thus, this ground, which relates solely to the failure to apply the reasoning in the rule in Browne v Dunn, could never succeed because the Tribunal is not obliged to apply that rule. For that reason, leave will not be granted to amend the Application to include Ground 8, as it would be futile to do so.

Ground 9

The 15 February 2007 letter has been dealt with above.[134] For the reasons expressed above the Court is of the view that the Tribunal did not err in fact or law in its conclusion that the content of the letter was not sufficient to establish exceptional circumstances. Therefore, leave will not be granted to amend the Application to include Ground 9. In any event, Ground 9 could not establish jurisdictional error for the reasons set out in paragraph 78 above.
[134] See para. 78 above.

Compliance with Condition 8202 – academic certification

The Tribunal requested the Applicant to provide a copy of Academic Certification from Curtin.[135] The Applicant did not provide the requested Academic Certification.
[135] Information Invitation Letter, CB 57.
The Tribunal therefore found that it was satisfied that the Applicant had not met the academic performance requirements of Condition 8202.[136]
[136] CB 104.
At hearing, Counsel for the First Respondent relied upon the Tribunal’s Decision, insofar as it found that it was not satisfied that the requirements of Condition 8202 had been met by reason of the Applicant’s failure to provide the Academic Certification, as an alternative reason why this Court ought to dismiss the application. Counsel for the First Respondent properly pointed out to the Court that the issue of whether an applicant’s failure to provide academic certification upon request was a failure to meet the requirement of Condition 8202 was then a matter before the Full Court of the Federal Court of Australia.
The judgment of the Full Court of the Federal Court of Australia in Dai v Minister for Immigration & Citizenship[137] was handed down after the hearing of this matter. By majority, the Full Court determined that Condition 8202 conferred no statutory right on a visa holder allowing the visa holder to compel the eduction provider to furnish certification for the purpose of Condition 8202. It was not therefore possible for the Minister to be satisfied that the visa holder had not complied with Condition 8202 in circumstances where the visa holder had been requested to, and had failed, to provide the requisite academic certification.[138]
[137] [2007] FCAFC 199 (“Dai”).
[138] Dai at paras. 18 and 20 per North J; paras. 30-33 per Gyles J. Gyles J also found that Condition 8202 was ultra vires, s116 of the Migration Act: at para. 34, but was the only member of the Full Court to do so, and it is unnecessary for the purposes of these Reasons for Judgment to further consider that question.
It follows that in having regard to the Applicant’s failure to provide Academic Certification from Curtin, and relying upon that consideration to find that the Applicant did not meet the requirements of Condition 8202, the Tribunal had regard to an irrelevant consideration. It was not for the Applicant to provide the required certification as there was not statutory obligation on him to do so. The Tribunal therefore committed jurisdictional error in this regard. Although it was not a ground of the Application, it was a matter relied upon by the First Respondent in the alternative, and in those circumstances, the Court considers it appropriate to make a declaration that the Tribunal had regard to an irrelevant consideration in relying upon the Applicant’s failure to provide Academic Certification as requested.

Conclusion re jurisdictional error

The Applicant has established jurisdictional error by the Tribunal in relation to Ground 4.
The Tribunal also committed jurisdictional error by requiring the Applicant to provide a certified copy of his academic results.
The Court must therefore give consideration to what relief ought to be afforded to the Applicant.

Relief

Having established jurisdictional error, the Applicant is, on the face of it, entitled to prerogative relief, unless the “grant of relief would lack utility”[139] or “be an exercise in futility.”[140]
[139] SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at 265 per Allsop J; [2006] FCAFC 2 at para. 232 per Allsop J.
[140] Jiang v Minister for Immigration & Anor [2007] FMCA 215 at para. 31 per Lucev FM, upheld on appeal: Jiang v Minister for Immigration & Anor [2007] FCA 907 at para. 30 per Bennett J.
As indicated above,[141] there may have been an argument that the Tribunal failed to have regard to a relevant consideration, namely the definition of contact hours in reg 1.03 of the Migration Regulations, which is not the same as days, sessions or classes actually attended.[142] Although that was not a ground of application in this matter, it is relevant to the relief sought. Because the Tribunal did not examine what contact hours the Applicant was required to attend for each class for which he as absent on each day for which he was absent, it is not now possible for the Court to consider that question with a view to determining whether the finding in relation to Ground 4 would enable the Applicant to meet the 80% attendance requirement. The Court is not in a position to determine how many hours the Applicant might be given credit for under the exceptional circumstances exception for the classes on 8 January 2007 which he did not attend. The Certificates of Attendance do not record contact hours as such. Rather, they record absences by multiplying the number of sessions per week by the number of weeks in a semester and calculate the absence rate by the number of sessions that the Applicant did not attend. There is no reference whatsoever to hours, and in this regard no means by which the Court can consider whether the non attendance on 8 January 2007 would or would not make a difference to the Applicant meeting the 80% attendance requirement. Whilst the Court strongly suspects that it might not, the Court can not speculate on this matter for the purposes of determining relief, and in particular whether it would be futile to grant relief. The matter must therefore be remitted to the Tribunal for it to give proper consideration to a relevant consideration, namely the 7 January 2007 medical certificate. Further, and although it was not a ground of application in this application, it will be necessary for the Tribunal to determine levels of attendance and absence on the basis of the definition of contact hours in reg 1.03 of the Migration Regulations.[143]
[141] See para. 59 above.
[142] Quan at paras. 32-33 per Jacobsen J.
[143] Quan at paras. 32-33 per Jacobsen J.
Likewise the taking into account of an irrelevant consideration, namely the Applicant’s failure to provide Academic Certification as requested, and the fact that that certification was not provided (directly by the Applicant or indirectly by Curtin) means that there is no proper information before the Court on which to make any finding concerning the futility, or otherwise, of any relief. Therefore, the matter must be remitted to the Tribunal.

Orders and Costs

There will be an order granting prerogative relief, by way of writs of certiorari and mandamus directed to the Second Respondent and a writ of prohibition directed to the First Respondent, and a declaration as indicated.
The Court will hear the parties as to costs.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Lucev FM

Acting Associate: S. Gough

Date: 13 June 2008

[109] CB 32 (transcribed from copy of the original without alteration).