Kagitha v Minister for Immigration

[2013] FCCA 1381

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAGITHA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1381

Catchwords:
MIGRATION – Review of decision by the Migration Review Tribunal – failure to achieve satisfactory course progress – no exceptional circumstances beyond the Applicant’s control – application dismissed.

Legislation:  

Educational Services for Overseas Student Act 2000
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(3)(a)
National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students, Standard 10

Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384

Applicant: GANESH GOUDA KAGITHA

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: LNG 13 of 2013

Judgment of: Judge Whelan

Hearing date: 28 August 2013

Date of Last Submission: 28 August 2013

Delivered at: Melbourne

Delivered on: 28 August 2013

REPRESENTATION

Counsel for the Applicant: Applicant appeared in person

Counsel for the First Respondent: Mr Wilson

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS:

1. The name of the First Respondent be amended to

   
   

   “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The Application filed by the Applicant on 7 May 2013 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

LNG 13 of 2013

GANESH GOUDA KAGITHA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an Application for judicial review of a decision of the

   
   

   Migration Review Tribunal (“the Tribunal”) of 3 April 2013.

   
   

   The Tribunal affirmed a decision of a delegate of the Minister to cancel the Applicant’s Subclass 573 Higher Education Sector visa.

   
   

   The Applicant now seeks an order that the decision of the Tribunal be quashed and a Writ of Mandamus be directed to the Tribunal requiring it to determine this Application according to law.

Background

1. For the most part, the facts in this matter are not in dispute.

   
   

   The Applicant is an Indian national who arrived in Australia on

   
   

   9 July 2009 as the holder of a student class TU Subclass 573 Higher Education Sector visa. That visa was subject to a number of conditions including, for the purposes of this matter, condition 8202 which is set out in Schedule 8 of the Migration Regulations1994

   
   

   (“the Regulations”).

2. On 29 March 2012, the Applicant’s education provider, the

   
   

   University of Tasmania (“the University”), certified that for the purposes of s.19 of the Educational Services for Overseas Student Act 2000 (“the ESOS Act”) and Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (“the Code”), the Applicant had not achieved satisfactory course progress in his course for a Master of Applied Science in Agricultural Science.

3. On the same day, the education provider sent the Applicant a notice pursuant to s.20 of the ESOS Act. On 30 March 2012, the Applicant was given a Notice of Intention to Consider Cancellation of his visa and he responded to that Notice acknowledging that he had not passed any courses in 2010 and 2011 and providing reasons as to why his visa should not be cancelled.

4. On 11 April 2012, the delegate determined that the Applicant’s visa should be cancelled due to a breach of condition 8202 of the Regulations. On 18 April 2012, the Applicant then applied to the Tribunal for a review of the delegate’s decision. He attended a hearing before the Tribunal on 3 April 2013 and on the same day, the Tribunal made a decision affirming the delegate’s decision to cancel the Applicant’s visa.

The Tribunal’s decision

1. The Tribunal was satisfied that the Applicant had failed to comply with condition 8202(3)(a) of the Regulations as it applied to his visa. In particular, the Tribunal found that the Applicant’s education provider had certified that the Applicant had not achieved satisfactory course progress and further, that the non-compliance was not due to exceptional circumstances beyond the Applicant’s control.

2. The Tribunal found that the Applicant’s particular circumstances did not amount to circumstances that are exceptional and not of the Applicant’s own making, and there was no persuasive evidence to support the assertion that the Applicant’s circumstances impacted adversely on his ability to concentrate or pass his subjects.

Grounds of review

1. The Applicant, in his grounds for review, provides two grounds:

   1.  Not considered my exceptional circumstances according to the law.

   2.  In law it says conditions affecting on the study during course is also considered if the student not acheving (sic) satisfactory progress.[1]

   [1] Application of Ganesh Gouda Kagitha filed on 7 May 2013, at p.3.

2. In oral submissions today, the Applicant referred to his circumstances at the time and since then, but did not raise any question in relation to any jurisdictional error on the part of the Tribunal.

The First Respondent’s submissions

1. The First Respondent submits that there was no jurisdictional error on the part of the Tribunal and that the findings that it made were open to it and took into account all the relevant circumstances. The Minister has power to cancel a visa where the visa holder has not complied with the condition of the visa and the Minister must cancel a visa if the prescribed circumstances in which a visa must be cancelled are in existence.

2. The circumstances in which the Minister must cancel a visa are where the Minister is satisfied that the visa holder has not complied with the condition, in this case condition 8202 of the Regulations, and the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.[2] In this case, the Tribunal found that the education provider had certified the Applicant as not achieving satisfactory course progress and, after considering the circumstances relied upon by the Applicant, also found that the second part of that test, the non-compliance, was not due to exceptional circumstances beyond the Applicant’s control.

   [2] Submissions of the First Respondent filed 14 August 2013, p.3 at para.21.

3. The First Respondent also relies on the fact that once the Tribunal had made a finding that the Applicant’s education provider had certified for the purpose of condition 8202 of the Regulations that the Applicant’s course progress had not been satisfactory, the Tribunal would have to be satisfied that there had been a breach of condition 8202 of the Regulations. That is because the certification of itself constitutes non-compliance with the visa condition.[3]

   [3] Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384.

4. The Tribunal considered the Applicant’s evidence, found that the Applicant’s particular circumstances did not amount to circumstances that are exceptional and found no evidence to support an assertion that the Applicant’s particular circumstances impacted adversely on his ability to concentrate or pass his unit subjects for his course.

   
   

   The Tribunal also had regard to Ministerial Direction No.38 and found that none of the circumstances of the Applicant’s case fell within the matters to be considered under that Direction.

5. The First Respondent submits that the Tribunal properly considered all of the Applicant’s evidence in determining whether it was satisfied that non-compliance was not due to exceptional circumstances beyond the Applicant’s control and in oral submissions, Mr Wilson for the

   
   

   First Respondent took the Court to the reasons that had been given by the Applicant as set out in the reasons for decision of the Tribunal and how the Tribunal dealt with those.

Conclusions

1. The Applicant in this matter seeks judicial review of a decision by the Tribunal to uphold the delegate’s decision to cancel his student visa.

   
   

   It is a requirement of that visa that a student meet the conditions set out in condition 8202 of Schedule 8 of the Regulations. It is uncontested that the Applicant failed to pass any units of the course for which he was enrolled in 2010 or 2011.

2. On 29 March 2012, the education provider certified the Applicant as not achieving satisfactory course progress. The certification by the education provider constitutes a breach of condition 8202 of the Regulations by the visa holder. The Tribunal is not required to look behind that certificate and must accept the validity of that certificate and the First Respondent, quite rightly, referred the Court to the matter of Patel & Minister for Immigration and Citizenship (2012) FCR 384 where Collier J held that:

   The act of notification pursuant to Standards 10 and 11 of the National Code and s 19 of the ESOS Act to notify the Secretary constitutes a certification, which itself constitutes the breach of condition 8202 by the holder of the visa.

3. It was not the role of the Tribunal to find that there was a valid certification. Once the evidence established that a notice and certificate had been issued by the University, which was valid on its face, there was no role for the Tribunal in looking behind that notice.

4. The Tribunal was then required to consider whether the

   
   

   non-compliance with the requirements of condition 8202 of the Regulations was not due to exceptional circumstances beyond the Applicant’s control. At paragraphs [13] to [16][5] of the Statement of Decision, the Tribunal considered the case law with respect to the term

   
   

   ‘exceptional circumstances’ and referred to a number of decisions which, in essence, required the Tribunal to consider whether the circumstances were out of the ordinary, were unusual, were ones which were not of the Applicant’s own making and also beyond the Applicant’s control.

   [5] Court Book, at pp.75 – 76.

5. At paragraph [19],[6] the Tribunal also considered Ministerial Direction No.38 in relation to the consideration of whether there had been a

   
   

   non-compliance with condition 8202 of the Regulations. At paragraphs [35] to [39][7] of the reasons, the Tribunal referred to the reasons given at the hearing by the Applicant with respect to what he claimed to be the exceptional circumstances upon which he relied and those are set out in full in the reasons for decision.

   [6] Ibid, at p.76.

   [7] Ibid, at pp.78 – 79.

6. At paragraphs [40] to [42],[8] the Tribunal considered those matters and in paragraph [44][9] found that, on the evidence, the Tribunal was satisfied that the non-compliance with condition 8202 of the Regulations was not due to exceptional circumstances beyond the Applicant’s control.

   [8] Court Book, at p.79.

   [9] Ibid, at p.80.

7. A judicial review of a decision by the Tribunal is not a reconsideration of the merit of the Applicant’s claim. The Applicant must show that in carrying out its statutory function, the Tribunal made a jurisdictional error.

8. Having read the reasons for decision and heard what the Applicant has had to say by reference to the grounds, I can find no error in how the Tribunal approached its task in this matter. Contrary to the Applicant’s claim that the Tribunal did not consider the exceptional circumstances according to law, I am satisfied, on the basis of the reasons given, that the Tribunal did consider whether there were exceptional circumstances and correctly applied the law in finding against the Applicant.

9. For those reasons the Application must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  17 September 2013

[4] (2012) 206 FCR 384 at 403.