Jaisajja v Minister for Immigration - [2007] FMCA 1442

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAISAJJA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1442

MIGRATION – Visa – Class TU (Vocational Education and Training Sector) Subclass 572 Student visa – applicant is a citizen of Thailand – breach of condition 8202 – failure to attend 80% of contact hours – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116(1)(b), 116(3), 119, 120, 347, 348, 359A, 359C(1), 359C(2), 360, 425, 427, 474(2)
Migration Regulations 1994, reg.1.03
Education Services for Overseas Students Act 2000 (Cth), s.20

Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCA 333
Quan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 764
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 231 ALR 592
SZECD v Minister for Immigration & Multicultural Affairs [2006] 227 ALR 665
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 followed
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 277
Yi Yang v Minister for Immigration & Anor [2007] FMCA 38
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248

Applicant:

JARIN JAISAJJA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1031 of 2007

Judgment of:

Scarlett FM

Hearing date:	31 July 2007
Date of Last Submission:	31 July 2007

Delivered at:

Sydney

Delivered on:

31 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr Kumar

Solicitor for the Respondents:

Mr Cox

Solicitors for the Respondents:

DLA Phillips Fox Lawyers

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1031 of 2007

JARIN JAISAJJA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”). The decision was signed on the

13^th February 2007 and handed down on 5^th March 2007. The Tribunal affirmed the decision of a delegate of the Minister to cancel the applicant’s Subclass 572 (Vocational Education and Training Sector) Visa.
The applicant, by means of an application and an affidavit in support filed on 28^th March 2007, seeks judicial review of that decision.

The applicant, through his counsel, has filed an amended application which was filed in Court by leave on 7^th June 2007, the hearing date.
In that amended application, the applicant seeks the following orders:
a)A writ of certiorari removing the decision of the Tribunal into this Court to be quashed;
b)A writ of mandamus directing the second respondent, that is the Migration Review Tribunal to reconsider and re-determine the applicant’s visa cancellation according to law;
c)A writ of prohibition restraining the first respondent, his servants and agents from acting upon or giving effect to that decision; and
d)An order of costs.

Background

The background to this matter is that the applicant was granted a Subclass 572 (Vocational Education and Training Sector) Visa on

2^nd July 2005. He was notified that a delegate of the Minister was considering cancelling his visa and the decision to cancel that visa was made on 22^nd August 2006.
The delegate cancelled the applicant’s visa because the delegate found that the applicant had breached the attendance requirements of condition 8202.
On 30^th August 2006, the applicant applied to the Migration Review Tribunal for review of the delegate’s decision. The Tribunal decision record can be found in the Court Book at pages 82 through to 90.
The Tribunal noted the applicant’s claims of the evidence, pages 85 through to 87 of the Court Book. On 26^th September 2006, the Tribunal wrote to the applicant inviting him to comment in writing on information that the Tribunal considered to be part of the reason for reaffirming the decision under review.
The information was that the education provider, Sterling College had advised the Department that the applicant’s attendance in his course for Term 2, 2006, from 18^th April 2006 to 23^rd June 2006 was 46 per cent of scheduled contact hours and 66 per cent after medical certificates were taken into account.
Sterling College also advised that the applicant did not achieve satisfactory academic results for Term 2, 2006.
The applicant made submissions to the Tribunal on a number of factors that he claimed affected his attendance and results.
Before the hearing, the applicant also submitted further evidence, including medical certificates from Thailand for a consultation in January 2006, a letter from his legal guardian in Thailand regarding an accident that the applicant had had in January 2006, certificates from the Chinese and Herbal Centre in Sydney for the period 13^th to

15^th June and 19^th to 21^st June 2006 and certificates from the Surrey Hills Medical Centre for 5^th and 7^th June 2006 and 29^th May to

2^nd June 2006.
The applicant attended a hearing before the Tribunal on 5^th December 2006 where he gave evidence with the assistance of an interpreter in the Thai language. He was represented in relation to the review by his registered migration agent.
The applicant told the Tribunal that the certificates from the doctor of Chinese medicine had not been provided to his education provider, that is, Sterling College, because he had not found them until recently.

He went to the Chinese medicine doctor because he had got bad headaches after he suffered back pain and he wanted to seek alternative treatment because of the costs involved in going to the medical centre. He claimed that his pain had started in May 2006 when he fell in a bathroom and hit his back.
He said that he spoke to the college about his pain problems and arranged to keep doing assignments from home and was told that this would be in order, but was not told the results were of his assignments.
He had understood, from his discussions with one of the managers of the College, that there was no problem about his attendance.

He wished to continue studies in Australia.
His representative pointed to a number of inconsistencies in the information provided by Sterling College regarding the applicant’s attendance. For example, in one certificate the attendance was 61 per cent with medical certificates, but in the advice from the Department it was 66 per cent.
After the hearing, the applicant was given time to submit any further evidence and on 22^nd December 2006, the applicant made further submissions in which he stated that his illness had affected his attendance and academic results but he was still able to complete the requirements for a Diploma from Sterling College.
He claimed that the College’s records in respect of attendance were poor and rules relating to role calls had been changed without notice.
He submitted that he had sought medical assistance from a doctor of Chinese medicine and said certificates from the doctor should be accepted and provided a copy of a card identifying the name of Professor Watson Zhu, from the Chinese Medicine and Herbal Centre of Sydney, as the person that he saw in June 2006.
The Tribunal’s findings and reasons are set out on pages 87 to 89 of the Court Book. The Tribunal approached its task by determining whether the grounds for cancellation under s.116 of the Migration Act 1958 (Cth) (“the Act”) identified by the delegate had been made out.
The Tribunal noted that the applicant’s visa was cancelled on the basis of the failure to comply with a condition of the visa, (see s.116(1)(b) of the Act).
The relevant condition was condition 8202, and the delegate found that the applicant did not comply with condition 8202 because he had not attended for at least 80 per cent of the scheduled contact hours in the second term 2006.
The Tribunal stated at page 87 of the Court Book that it was satisfied that the applicant had not complied with the condition of the visa and set out its reasons.
The Tribunal referred to the definition of contact hours in regulation 1.03 of the Migration Regulations 1994 and said,
“In order for the Tribunal to reach a state of satisfaction as to whether the applicant has been in attendance for 80 per cent of the contact hours, it must have regard to the total number of hours in the term for which the applicant, as an enrolled student, was scheduled to attend the school for the four different periods set out in regulation 1.03. A percentage figure based on the proportion of the total number of days attended at the school bears the total number of days of the term does not meet the definition of ‘contact hours’. Quan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 764, at [32] to [33].”[1]
[1] See Court Book page 87
Tribunal found from the material before it that there were 20 scheduled contact hours in each week of the course in the second term, 2006.

The term covered 10 weeks which would normally give 200 scheduled contact hours. The Tribunal was satisfied it should subtract four hours from week 1 and four hours from weeks 2 and 9 because of public holidays and the fact that the course did not begin until Tuesday,

18^th April. That left 188 scheduled contact hours.
The Tribunal found from the College’s summary of attendance that the applicant submitted that the education provider, Sterling College, had accepted absences totalling 40 hours in weeks 7 and 8. However, the Tribunal expressed some concern about evidence from the Chinese Medicine and Herbal Centre.
The Tribunal did, however, accept the applicant’s evidence that he had attended the centre because he was suffering from headaches after he had fallen and experienced back pain.
The Tribunal accepted, on the basis of the additional certificates, that the applicant was unable to attend the college for an additional 32 hours in weeks 9 and 10. The Tribunal considered that it should subtract 72 hours for medical absences from the total of 188 scheduled contact hours.
It accepted the applicant’s evidence that in the first week when he fell in the bathroom and hurt his back from 22^nd to 26^th May 2006, he was unable to attend school but did not see a doctor.
The Tribunal subtracted a further 20 hours in week 6 from the total scheduled contact hours and then calculated that a total of 96 scheduled contact hours formed the basis of the Tribunal’s calculation of attendance.
The Tribunal found times when the applicant was absent for 28 hours and found they were not found by medical certificates.
The Tribunal considered the applicant’s evidence about poor record-keeping by the education provider and confusion about recording evidence of self-study sessions.
Nevertheless, the Tribunal was not satisfied that the applicant had established that the Tribunal should not include the absences on those days in calculating his attendance.
It took into account the evidence that he had had a fall in Thailand in January 2006, but was not satisfied that the evidence established that the applicant was unfit to attend classes for specified days in term 2.
The Tribunal found that the applicant attended for 68 hours out of the total of 96 scheduled contact hours and found that that attendance came to 70.8 per cent.
Accordingly, the Tribunal found that the applicant had not attended his course for at least 80 per cent of the contact hours scheduled for term 2, 2006 and found the applicant, therefore, had not complied with condition 8202(3)(a).
The Tribunal referred to the decision of Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [55] and [56] where the Full Court of the Federal Court said,
The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification.
The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).
On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.”
The Tribunal was satisfied that the education provider had advised the Department that the applicant did not achieve satisfactory academic results in term 2, 2006 and, therefore, the Tribunal found the applicant had not achieved an academic result that had been certified by the education provider to be satisfactory for term 2, 2006. This, of course, has, therefore, not complied with condition 8202(3)(b).
The Tribunal considered the applicant’s evidence about factors that had affected his attendance, was not satisfied that the applicant had established that a fall that he had had in January 2006 meant that he was unfit to attend school in April and May, other than that covered by the evidence.
The Tribunal did not accept that the additional absences were a result of exceptional circumstances beyond the applicant’s control and was satisfied that the breach of condition 8202(3)(a) was not due to exception of circumstances beyond the applicant’s control.
The Tribunal went on to find it was not satisfied that the evidence established that the applicant was not in a position to achieve satisfactory academic results because of his back pain and considers that if the applicant was able to undertake homework and assignments from home he would have been able to find out the results and take action to ensure that he was keeping up with academic requirements.
The Tribunal was satisfied that the applicant had not complied with condition 8202 and the ground for cancellation in s.116(1)(b) exists.
The Tribunal was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control and in accordance with s.116(3) of the Migration Act the prescribed circumstances in which the visa must be cancelled so the Tribunal affirmed the decision to cancel the applicant’s Subclass 572 (Vocational Education and Training Sector) Visa.
In the applicant’s amended application filed in on Court on 7^th June 2007, the applicant set out four grounds:-
a)The Tribunal misapprehended its task and thereby erred in law and misapprehended the evidence to be taken into account; and
b)The Tribunal misapprehended and ought to have found that there was a breach of ss.119 and 120 by the delegate; the Tribunal breached s.359A by failing to provide particulars of the breach of condition 8202 and erred in interpreting the condition 8202 in regulations;
c)Further, the applicant claimed that the Tribunal committed serious jurisdictional error by erring in the application of exceptional circumstances when the events were beyond the student’s control and had been unduly harsh and unfair in the interpretation of condition 8202; and
d)The Tribunal should have found there was a breach of ss.347, 348 and 360 of the Migration Act.
The applicant was represented at the hearing by Mr Kumar of counsel. In respect of the first ground, that the Tribunal misapprehended its task and further, in law, misapprehended the evidence to be taken into account, the particulars claim that the Tribunal misapplied the law when it construed the contact hours and misinterpreted the evidence in relation to the applicant’s attendance.
The applicant provided a schedule of contact hours prepared by his counsel showing, in table 1, the Tribunal’s calculation of the applicant’s term 2 attendance and showed, in table 2, the correct calculation.
The applicant submitted that the actual attendance was, in fact, greater than 80 per cent and the Tribunal erred in that finding and that the correct attendance was at least 86 per cent of the contact hours.
The submission is that the Tribunal correctly stated the law in relation to contact hours at page 87 of the Court Book but erred in the application of the law to the applicant’s circumstances by erroneously deducting the absence was due to sickness for the contact hours.
It is further submitted that that reduction of the contact hours was erroneous in law and there was no requirement to reduce the contact hours by the explained absence.
The Tribunal, it is submitted, erred in reducing contact hours to 96 hours from the contact hours of at least 188 hours.
The submission is that this is grossly erroneous on the part of the Tribunal and the Tribunal misapprehended the task it was carrying out and, therefore, arrived at the incorrect conclusion.
In my view, this claim appears to be no more than a challenge to the Tribunal’s factual findings and it is an invitation to the Court to carry out a merits review.
Even if the applicant had shown the finding of fact was erroneous, that does not constitute jurisdictional error.
I am of the view, therefore, no jurisdictional error has been made out.
The second ground relates to a breach of ss.119, 120 and 359A of the Act. The submission is that, whilst the Tribunal wrote to the applicant on 26^th September 2006, a copy of which letter is found at pages 46 and 47 of the Court book, that it failed to put all the information to the applicant.
The complaint is that the s.120 notice only related to breach of attendance requirements but the Tribunal also made a finding that the applicant had not achieved an academic result that was at least satisfactory. That was not an issue in the s.120 notice and submitted cancellation was only due to the applicant’s failure to meet attendance requirements.
The applicant submitted that the failure to give the precise particulars to address the breach and the information sought to comment did not comply with s.359A of the Act.
The applicant also submitted that the 359A notice is defective and vague as it attempts to raise an issue about satisfactory completion in the letter which otherwise relates to the issue of attendance.
The applicant submits the s.359A letter was neither particular nor adequate, that the information put to the applicant for his comment was inadequate, that if failed to seek any information in relation to the applicant’s difficulties and the precise nature of the difficulties.
The applicant submitted that the Tribunal was under an obligation to seek comments from the applicant in relation to the breach and submits the Tribunal failed to do so.
There is a reference to an obligation to rectify inadequate information under s.20 of the Education Services for Overseas Students Act pursuant to s.359A of the Act. This claim was not pressed.
In respect of the exceptional circumstances claim, the applicant submitted that the Tribunal failed to properly apply the test of exceptional circumstances and submitted that proper inquiries had not been made by the Tribunal of the applicant’s ability to attend at least 80 per cent of the contact hours. He submitted that the applicant had been ill and proper medical certificates had been provided.
He submitted that the Tribunal failed to address the issue of exceptional circumstances of the applicant and erred to the decision of Yi Yang v Minister for Immigration & Anor [2007] FMCA 38 at [42]. He said,
“The circumstances in which the applicant did not comply ought to be taken from all the circumstances of the case and the proper inference available to the Tribunal based on the earlier evidence.”
It was also claimed that the Tribunal failed to comply with s.425 of the Act in that the Tribunal erred and failed to put the issue of satisfactory completion to any hearing or providing any opportunity for the applicant post-hearing to make submissions on this point.

That, of course, is the wrong section, s.425 applies to the Refugee Review Tribunal.
As to the applicant’s second ground alleging a breach of ss.119, 120 and 359A, I am satisfied that there is no statutory obligation upon the Migration Review Tribunal to go behind the communication received from the education provider and assess the progress of the applicant itself, and I am referred to Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCA 333.
Even if there had been a breach of ss.119, 120 and that the notice was defective, any defect would be cured on merits review (see SZECD v Minister for Immigration & Multicultural Affairs [2006] 227 ALR 665 at [25]).
Also in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, the Court concluded that whilst a breach of s.119 was sufficiently serious to vitiate the delegate’s decision, the statutory review function of the Migration Review Tribunal operates on both valid and invalid decisions.
As far as the s.359A letter written to the applicant is concerned, it did raise the issue that the applicant did not obtain a result that was at least satisfactory.
I note in the letter at page 46 of the Court Book that the Tribunal said,
“The Department’s file indicates that Sterling College sent you a warning letter about your attendance on 16 June 2006 and a warning letter about your academic progress of 5 June 2006.
The information is relevant to the review as it may allude the Tribunal to find that you have breached condition 8202 of your Student Visa with respect to attendance and/or academic results. Condition 8202, copy attached, requires, among other things, that for a course that runs for at least a semester you achieve academic results certified by the education provider to be at least satisfactory for each term or semester of the course and that you attend for at least 80 per cent of the contact hours scheduled for each semester of the course.” See Court Book, page 46.
The applicant’s second ground fails.
Turning to the third ground, the applicant’s exceptional circumstances ground, the applicant, as I said, submitted the Tribunal failed to apply the exceptional circumstances test. In my view, the Tribunal properly turned its mind to the question of whether it was satisfied that the breaches of condition 8202 were not due to exceptional circumstances beyond the applicant’s control.
Whilst the applicant stated that the Tribunal had not made proper inquiries, about the applicant’s ability to attend at least 80 per cent of his classes, it is for the applicant to show that there were exceptional circumstances to explain why he was unable to attend 80 per cent of classes.
Whilst the applicant submits the Tribunal failed to address the exceptional circumstances in his favour in accordance with Yi Yang v Minister for Immigration & Multicultural & Indigenous Affairs (supra), the fact is, in my view, that the Tribunal did consider the exceptional circumstances. The applicant, therefore, is seeking to challenge the Tribunal’s facts and findings; in other words, he is inviting the Court to embark on a course of merits review which is unavailable.
In any event, the Tribunal has no duty to inquire, (see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 277 at [24] to [26]) where the Court held that the equivalent section in relation to the Refugee Review Tribunal, namely, s.427, did not impose any legal obligation on the Tribunal to make inquiries.
As to the claim that the Tribunal failed to comply with s.425 of the Act, I have already mentioned that s.425 is the wrong section.
The equivalent section applicable is to the Migration Review Tribunal is s.360, which requires the Tribunal to invite the applicant to attend a hearing and give oral evidence on the issues that arise.
Section 360 of the Act says,
“(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
I note that s.359C(1) relates says,
“(1) If a person:
(a)is invited under s.359 to give additional information; and
(b)does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the additional information.
Sub-s.359C(2) says,
“(2)If the applicant:
(a)is invited under section 359A to comment on or respond to information; and
(b)does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.”
In this case, the Tribunal did invite the applicant to attend a hearing, the applicant attended and gave oral evidence. An applicant should, of course, be given the opportunity to give evidence on the determinative issues that arise in relation to the review, (see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 231 ALR 592). In this case the applicant was given that opportunity in relation to the issues that arose.
The determinative issues were:
a)The applicant’s failure to attend 80 per cent of his contact hours in term 2 of 2006;
b)The applicant achieving a result in that term that was not satisfactory; and
c)The lack of exceptional circumstances.
The s.359A letter of 26^th September 2006 properly brought those issues to the attention of the applicant and, in my view, no procedural unfairness arises. I am satisfied that the applicant’s grounds must fail and no jurisdictional error has been made out.
Accordingly, the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Act and, as such, it is not subject to orders in the nature of certiorari, mandamus or a writ of prohibition.
The application will be dismissed with costs. The amount sought by the first respondent is the sum of $4,200.00, which I consider to be appropriate in the circumstances.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 20 August 2007