JEYABALAN v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 1171
•5 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JEYABALAN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1171 |
| MIGRATION – Migration Review Tribunal – cancellation of student visa – review of decision – whether Tribunal able to go behind issue of cancellation notice by education provider. |
| Migration Act 1958 (Cth), ss.116, 474, 476, & 477 Commonwealth Constitution, s.75(v) Migration Regulations 1994, reg.2.43 |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Craig v The State of South Australia [1995] HCA 58 Kumar v Minister for Immigration & Anor [2011] FMCA 741 Mo v MIAC [2009] FMCA 1026 Alsunaid v MIAC [2011] FMCA 238 Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 Hassan v Minister for Immigration and Citizenship [2012] FMCA 155 Hassan v Minister for Immigration and Citizenship [2012] FCA 816 Kim v Minister for Immigration and Citizenship and Another [2011] FMCA 780 |
| Applicant: | YOGAEESWARAN JEYABALAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 178 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 5 December 2012 |
| Date of Last Submission: | 5 December 2012 |
| Delivered at: | Perth |
| Delivered on: | 5 December 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr L. Nguyen |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That pursuant to s.477(2) of the Migration Act 1958 the time for the filing of this application is extended to the date upon which it was filed.
That the application filed on 24 July 2012 is dismissed.
That the applicant pay the respondents’ costs of and incidental to the proceedings fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 178 of 2012
| YOGAEESWARAN JEYABALAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (“the Act”) in which the applicant invites the Court to exercise its jurisdiction in relation to judicial review relating to a decision of the Migration Review Tribunal (“the Tribunal”) on 15 June 2012, in which the Tribunal affirmed the decision of the delegate of the Minister to cancel the applicant’s class 573 student visa.
This Court has the same jurisdiction as the High Court has under paragraph 75(v) of the Commonwealth Constitution but only in relation to migration decisions, as those decisions are defined in the Act and essentially, that means, subject to some minor exceptions not relevant to the circumstances of this case, we are confining ourselves to privative clause decisions or purported privative clause decisions.
The decision of the Tribunal is a privative clause decision and therefore, it will only be possible to allow a review if I am persuaded that the Tribunal went about its business in a way that demonstrated an excess of or want of jurisdiction or in other words, if its decision is vitiated by jurisdictional error. That concept has been explained in respect of decisions under the Act in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 and more generally, in decisions of the High Court such as Craig v The State of South Australia [1995] HCA 58.
The applicant, in fact, filed his application outside of the time limit prescribed by s.477 of the Act. He seeks an extension of time under subsection (2) of that section. He has made that application in writing. He indicates the reasons for the delay. They are, prima facie, plausible reasons. It is not a significant period of time, some 14 days or so that he is out of time. It is not possible to identify any prejudice to the respondent in permitting the application to be filed and I propose to grant his application for an extension of time.
In terms of grounds, the applicant has not told us much at all. The grounds of application say, firstly:
(1) To review the decision made by the Migration Tribunal.
That is not even the articulation of a ground, so we can put that to one side.
Ground 2 says this:
Was already enrolled at another university when I was lodged by my ex university to the immigration.
The Minister’s legal representatives have, in their outline of submission, fairly speculated about what those words might be construed as arguing and I will come to that in a moment.
Perhaps I should say a word about the scheme of the Act in relation to the cancellation of visas. The power is given under the Act to the Minister to cancel a visa by s.116 of the Act. The Minister may cancel a visa if he is satisfied that the holder has not complied with a condition of the visa and subsection (3) goes on to say that:
If the Minister may cancel a visa under subsection (1), the Minister must do so if there exists prescribed circumstances in which a visa must be cancelled.
As to what those prescribed circumstances are, we need to go to the regulations under the Act and in particular, regulation 2.43(2)(b)(ii), and that provides that the circumstances in which the Minister must cancel a visa are, in the case of a visa of this class, if 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 is found in Schedule 8 to the Regulations and provides, in subitem 3, that:
A holder meets the requirements of this subclause -
– that is, the category of visa the applicant had –
if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000 ; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
That is in relation to course progress and then there is a similar provision in (b) for course attendance. So if that certificate is issued, then the prescribed circumstances for the mandatory cancellation of the visa will exist unless, under Regulation 2.432(b)(ii)(B), the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Now, as to what Ground 2 might mean, if interpreted generously, I agree that the first meaning it might have is that the enrolment at another course at the time of the issue of the notice was just such an exceptional circumstance as I have referred to. Following the speculation through, it might be taken to be the suggestion that the Tribunal fell into jurisdictional error by not regarding the circumstance of enrolment in another course at that time as an exceptional circumstance.
But the Tribunal gave careful consideration as to what the expression “exceptional circumstance” meant. There is reference to a number of decisions at [14] to [17] of the Tribunal’s decision. It did not misunderstand the nature of the expression “exceptional circumstances” and I do not think it is, in any sense, reasonably arguable that the applicant’s voluntary decision to enrol in another course when he was in difficulties with the course in which he was previously enrolled ,can constitute an exceptional circumstance.
More broadly, the view the Tribunal came to in relation to the non-existence of exceptional circumstances, in my view, was surely right. Especially telling against the applicant in that regard was the information that was available to the Tribunal from the Provider Registration and International Student Management System or PRISMS, which is described at [57] of the Tribunal’s reasons and indicates a number of warnings given to the applicant of an intention to issue the notice.
The matters specifically relied upon before the Tribunal by the applicant as constituting exceptional circumstances were matters such as difficulties with his girlfriend back in Malaysia; problems associated with the time he had to devote to playing soccer; distance he had to travel to get to his course from where he lived. None of those matters can be taken to constitute exceptional circumstances. They are, to a very large extent, normal incidents of student life and neither does our looking at the aggregate effect of those circumstances constitute exceptional circumstances either.
So even applying that generous interpretation to Ground 2, in my view, no jurisdictional error can be identified in the way the Tribunal went about its business.
I think, though, Mr Nguyen is right that we can approach the matter with a generous interpretation in considering that there might be another contention implicit in what the applicant has said in Ground 2 and that is that the notice itself issued by the education institution was invalid because he was no longer a student of that institution.
My understanding of the matter is that he had, by the date of the issue of the notice, been terminated as a student at that institution and the applicant might be taken to be suggesting that there is, in that circumstance, some matter that goes to the validity of the notice. The principal difficulty the applicant has in making such a submission, if indeed that is what he is doing, is that there is a long list of authority since the amendments to these provisions of the Act were made in 2007 for the proposition that it is not appropriate for the Tribunal to go behind the certificate.
Probably the most articulate expression of this is by Jarrett FM in Kumar v Minister for Immigration & Anor [2011] FMCA 741, where his Honour there refers to some earlier decisions, in particular the decision of Mo v MIAC [2009] FMCA 1026, a decision of Raphael FM, the decision of Alsunaid v MIAC [2011] FMCA 238, a decision of Emmett FM and the Full Court of the Federal Court decision in Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 to come to these conclusions, expressed at firstly, [26] of his judgment he says:
It is clear enough from the decision in Maan that it is the receipt by the Department of the certificate from the education provider as to the applicant’s unsatisfactory course attendance and causes schedule 8, cl.8208(3)(b) of the Regulations to apply to the applicant. Once that clause applies, the applicant no longer meets the requirements of Schedule 8, cl.8202 and for the purposes of reg.2.43(2)(b)(ii)(A) “has not complied with condition 8202”.
He goes on, in [27]:
Both the decision in Mo (at first instance) and Alsunaid demonstrate that there is no requirement upon the tribunal to investigate the efficacy of the certificate issued by the education provider.
And at [28]:
Responsibility for certification clearly rests with the education provider. The only task for a decision maker (the Minister or a tribunal) is to determine that a certificate, on its face, is of a kind that engages condition 8202(3). The existence of the facts which underlie the certificate do not need to be determined by the tribunal. Were it to be otherwise, the certification process would become irrelevant and ineffective. The inquiry by the Minister for the purposes of ss.116(1) or 116(3) and reg.2.43(2) would become a broad ranging and perhaps cumbersome examination of the visa holder’s attendances and insofar as condition 8202(3)(a) is considered, satisfactory academic performance. It is apparent that the Legislature has intended to leave judgments about those matters to education providers.
The decision of Hassan v Minister for Immigration and Citizenship [2012] FMCA 155, a decision of Nicholls FM, was to the same effect. That was upheld on appeal by Cowdroy J in Hassan v Minister for Immigration and Citizenship [2012] FCA 816 and at [44] and [45] of that appeal judgment, it is noted that:
the appellant, relies upon his enrolment at TAFE Queensland to establish that he was no longer an ‘accepted student’, at Hibernia,
– Hibernia was the institution which had issued the certificate in that case –
such fact is irrelevant since at the time the s 19 certification was issued by Hibernia, the appellant remained an ‘accepted student’ at Hibernia.
So, on the facts of that case, the situation did not arise but it is clear that it is not a circumstance that troubled Nicholls FM; even if there had been a change of educational institution effected prior to the issue of the notice, it is not a matter that would have been a material consideration in terms of the validity of the notice.
Were it otherwise, of course, then simply by changing educational institutions, the whole effect of the scheme that was introduced in 2007, giving responsibility for cancellation to the education providers, would become unworkable.
The matter before me is a challenge to the decision of the Migration Review Tribunal. There is no application before me which asks the Court, in the exercise of its jurisdiction under s.476, to examine the circumstances of the issue of the certificate itself.
In Kim v Minister for Immigration and Citizenship and Another [2011] FMCA 780, Jarrett FM was of the view that a certification is a migration decision in terms of the Act. His Honour says at [34]:
The certification issued by Ms Kim’s education provider pursuant to clause 8202(3)(a) of Sch 8 to the Migration Regulations is, in my view, a decision made under a regulation made under a regulation of the Migration Act.
He formed the view that the giving of the certificate for the purposes of s.474(2)(b) of the Act and was a privative clause decision but as I have indicated, there is no application before me in this Court’s original jurisdiction relating to the issue of the notice by the education provider.
There may be circumstances in which, even though the notice itself is not the subject matter of a review application, and where the application relates only to the Tribunal’s decision, there may be some factual circumstances where it will be appropriate to look at that decision, as it were, on the basis of a collateral attack on it in the context of the review application but there would have to be a significantly different set of facts than is available here. There is nothing about the certification itself in the facts of this case that would suggest jurisdictional error and of course, in this case, the jurisdictional error said to exist in the Tribunal’s decision, has itself barely been articulated.
Even giving that second generous interpretation of the meaning of Ground 2, it seems to me, quite clearly, that there is no valid basis for a suggestion that the Tribunal’s decision was vitiated by jurisdictional error.
In those circumstances, the application will be dismissed. It is appropriate there be an order for costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 7 December 2012
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