Kalvala v Minister for Immigration
[2009] FMCA 787
•18 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KALVALA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 787 |
| MIGRATION – Cancellation of training sector visa – failure to achieve 80% of contract hours at course of study – exceptional circumstances not established – application dismissed – “exceptional circumstances beyond visa applicant’s control” defined. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.116, 137L, 359A, 474, 476, 477 Migration Regulations 1994 (Cth), r.2.43, Schedule 8 Condition 8202 |
| Pradhan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 91 Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 Chen v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 29 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 S157/2002 v Commonwealth (2003) 211 CLR 476 Attorney-General (NSW) v Quin (1990) 170 CLR 1 NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66 Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (2003) 198 ALR 59 NBIO v Minister for Immigration and Multicultural Affairs [2006] FCA 1300 VWFP and VWFO v Minister for Immigration and Multicultural and Indigenous Affiars [2006] FCA 231 SZJMG v MIC & Anor [2008] FCA 1145 MZXHY v Minister for Immigration and Citizenship[2007] FCA 622 Servos v Repatriation Commission(1995) 56 FCR 377 Ozberk v Minister for Immigration and Multicultural Affairs(1998) 79 FCR 249 |
| Applicant: | RANDHEER KALVALA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 977 of 2008 |
| Judgment of: | Turner FM |
| Hearing date: | 16 July 2009 |
| Date of Last Submission: | 16 July 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 18 September 2009 |
REPRESENTATION
| The Applicant: | Appeared on his own behalf |
| Counsel for the Respondents: | Ms Ngo |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application filed on 11 August 2008 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 977 of 2008
| RANDHEER KALVALA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (the “MRT”) to affirm the decision of a Delegate of the Minister of Immigration and Citizenship to cancel the applicant’s Subclass 572 Vocational Education and Training Sector Visa, pursuant to s 116(1)(b) of the Migration Act 1958 (the “Act”).
Section 116 provides, as far as is relevant;
(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
(2)The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(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.”
The applicant was granted a Subclass 572 Visa on 30 November 2006. The applicant was notified that a Delegate to the Minister was considering cancelling his Subclass 572 Visa (CB 1) stating under possible grounds for cancellation;
“NMIT reported you to DIAC on 22/6/07 for failing to achieve 80% contact hours in the semester running 12/2/07 to 22/6/07. Your attendance was reported at 40%. Possible breach of 8202(3)(a).”
Condition 8202 appears in Schedule 8 to the Migration Regulations 1994 (the “Regulations”). The relevant version of condition 8202 is the version that was applicable at the time the Visa was granted Pradhan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 91 at [19]. The relevant version is as follows:
“8202
(1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student -- the holder is enrolled in a full‑time course of study or training.
(3)A holder meets the requirements of this subclause if:
(a)in the case of a holder whose education provider keeps attendance records – the Minster 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; and
(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; and
(ii)for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa -- the holder is enrolled in a full‑time course of study or training.”
The holder of a relevant visa meets the requirements of subclause (3) of condition 8202 if “the Minster is satisfied that the holder attends for at least 80% of the contact hours” for each term and semester of the course.
The Applicant was enrolled in the Certificate III Hospitality Commercial Cookery course at the Northern Melbourne Institute of TAFE (“NMIT”). He was reported to have attended 46.7 per cent of contact hours during Term 1, 2007 (12 February 2007 to 6 April 2007) and 31 per cent in Term 2 2007 (16 April 2007 to 22 June 2007) (CB 71.4).
The Applicant sent an email to “Marcus” at NMIT on 7 May 2007 explaining “iam (sic “I am”) not getting interest to attend or comming (sic “coming”) to college because of the tutor only.” The Court notes that there was no mention of his Hindu religion preventing him from eating pork being the reason for his non attendance as alleged in the hearing on 17 July 2009. The full text of the email is set out at CB 7 as follows:
“hi, marcus
This is randheer kumar kalvala studying in ur (sic “your”) campus. As I am studying commercial cookery iam (sic “I am”) facing many problems with the tutor ANALEISE. The problem is she showing much raceism (sic “racism”) in tje (sic “the”) class, she is very much rude with the students, if we come five minutes late also she will be sending out, if we call also she is sending out. i am a student of IT background, I don’t know much about the course, so it is she’s (sic “her”) duty to explain in detail and she will be (sic “has”) not explaining anything for me. She is telling only to study and with out (sic “without”) explaing (sic “explaining”) practically how can I learn anything. It’s the tutor duty to tell what we doesn’t (sic “don’t”) know but she is not responsible for that. SO, that is the main problem with the tutor. And iam (sic “I am”) very scared of the tutor, and iam (sic “I am”) not getting interest to attend or comming (sic “coming”) to college because of the tutor only. Is there any problem to change the course, I want to change the course immediately. So, I request u (sic “you”) to accept my problem iam (sic “I am”) facing in the campus.”
The Applicant clearly sets out that he is “not getting interest to attend or comming (sic “coming”) to college because of the tutor only.”
(CB 7.3)
The Applicant was invited to provide comments on the Department’s intention to cancel his Visa at the interview held on 5 September 2007 (CB 3.5).
A Compliance Notification (NCN) Letter dated 22 June 2007 was sent to the Applicant (CB 5). That letter specified the breach of condition 8202 as being “Northern Melbourne Institute of TAFE has determined that in the semester running from 12 February 2007 to 22 June 2007, you attended 40.00% of the contact hours scheduled. As a result, you have failed to comply with condition 8202(3)(a) of your student visa.” (CB 5.6).
A record was kept of the interview with the Applicant on 7 September 2007 (CB 9–14). The Applicant alleges that the tutor in all his subjects marked him absent if “he did not meet the requirements during class” or “didn’t make the dish nicely” or “if you don’t keep quiet.” The Applicant also stated that he had a “wrist problem.” The Court notes that in the email from Wendy Temminghoff (CB 22) she records that the Applicant was “absent from theory classes … even though he did not have any difficulty with these particular teachers” (CB 22.7) (see post).
The Applicant moved to Cambridge International College, Melbourne and enrolled in a Diploma of Community Welfare Work from 27 July 2007 (CB 17). The Court notes that he achieved an attendance rate of 96% at that course as at 6 September 2007 (CB 17).
The Applicant produced medical certificates stating that on 28 June 2007 he was suffering from “right wrist pains and Quervains Tenosynovitis” and consulted a doctor on 31 May and 28 June 2007 (CB 18 and 19). He also produced a report from Central Melbourne Medical Imaging recording a request for a wrist x-ray (CB 21).
Wendy Temminghoff, the program coordinator of the Hospitality Department at NMIT sent an email to the International office of NMIT on 10 September 2007 regarding the Applicant as follows”
Robyn Ratcliffe
International Office
Collingwood Campus
NMIT
CRICOS Provider No: 00724G
Email: [email protected]
Phone: (03) 9263 1664
Fax: (03) 9269 1669
>>> Wendy Temminghoff 7/09/2007 3:57 pm >>>
Dear Robyn
Mr. Randheer Kalvala was enrolled at the Collingwood campus in the Certificate III in Hospitality – Commercial Cookery February 2007 intake. His attendance in term 1 of the semester was poor and was consequently reported to the International Office.
He came to me in May to discuss the reason for his poor attendance. That being, that he had difficulties with the teacher of his practical class. He was also concerned that he would not pass. I assured him that if he returned to class and did not miss any further classes he would be able to catch up the missed lessons and in all likelihood be able to pass. He agreed to do so.
As he was not the only student having difficulties with this particular teacher, I also told him that I would speak to her and monitor the classes. I made a point of visiting the class on a regular basis for the following weeks. Mr Kalvala was not in attendance.
I will note here that the practical sessions were not the only classes that he was absent from. He was also absent from his theory classes though he did not have any difficulties with these particular teachers.
For any further information regarding Mr. Kalvala please do not hesitate to contact me on my email or telephone 9263 1539.
Regards
Wendy Temminghoff
Program Co-ordinator
Hospitality Department”
The Court notes that the applicant was absent from theory classes “even though he did not have any particular difficulty with these teachers.” Also, being theory classes, it is doubtful that the applicant left the classes when he was required to eat pork or beef that he had cooked as stated to the Court on 16 July 2009.
The applicant was sent a Notification of decision dated 11 September 2007 (CB 23). The reasons for decision are as follows:
“I have established that you breached condition 8202 of your visa and am satisfied that your non-compliance was not due to exceptional circumstances beyond your control.
The decision to cancel under section 116 (1) (b) and (3) and regulation 2.43(2)(b) is mandatory.” (CB 23.4)
Section 116(1)(b) and (3) provides:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(b)its holder had not complied with a condition of the visa
(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 provides in part:
(1)For the purposes of paragraph 116 (1) (g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
(a)that the Foreign Minister has personally determined that:
(i)in the case of a visa other than a relevant visa -- the holder of the visa is a person whose presence in Australia:
(A)is, or would be, contrary to Australia's foreign policy interests; or
(B) may be directly or indirectly associated
with the proliferation of weapons of mass destruction; or…(2)For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:
(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.”
At interview the applicant agreed that his attendance during the reported period was less than 80% (CB 25.7). The applicant alleged that his teacher would mark him absent when he did not meet academic requirements during classes (CB 27.4). The head of the Hospitality Department at NMIT stated that NMIT staff “do not mark student attendance this way” (CB 27.4). At interview the applicant stated “that he slept at home during the periods when he was required to attend class” (CB 27.6).
The Notification of decision had an attachment ‘1’ which recorded the finding that the applicant’s non-compliance was not due to exceptional circumstances beyond his control (CB 29.2).
The applicant applied to the MRT for a review of the decision of the Delegate (CB 30). On 5 November 2007, a letter was sent to the applicant inviting him to attend a hearing on 4 December 2007 to give oral evidence and present arguments (CB 42.5). The applicants’ migration agent applied “for an extension for the hearing as applicant is not prepared for the hearing on 4 December 2007, he is gathering for few more evidences (sic “more evidence”) (CB 41). The MRT wrote to the applicant’s migration agent on 21 November 2007 granting an extension to 5 February 2008 (CB 42). On 21 January 2008 the applicant’s agent applied for a further extension to 5 April 2008 (CB 44). The MRT replied on 22 January 2008 refusing the further extension (CB 45).
The applicant appeared at the hearing on 5 February 2008 with the aid of an interpreter and of his migration agent (CB 74.1).
The MRT sent a s.359A letter to the applicant on 3 March 2008 (CB 53) inviting the applicant to “comment on/respond to information that the Tribunal considered would, subject to any comments/response you make, be the reason, or part of the reason, for affirming the decision that is under review.” (CB 53.5). The applicant was given until 11 March 2008 to provide his comments.
The applicant’s agent wrote to the MRT on 14 March 2008 seeking an extension of 28 days (CB 55.5).
The MRT responded on 19 March 2008 and agreed to grant an extension until 8 April 2008 (CB 56.6). A case note dated 11 April 2008 reads that the applicant’s agent sent a facsimile to the MRT on 8 April 2008 requesting access to documents but had not requested a further extension to respond to the s.359 letter (CB 57.5). The agent said that he would apply for an extension “next week”. The agent sent an application for a further extension of 2 to 3 weeks by letter dated 8 April 2008, which is recorded as having been transmitted to the MRT at 18:23 on 11 April 2008 (CB 58). The MRT responded on
17 April 2008, and granted an extension to 24 April 2008 (CB 59.6). The agent sent a facsimile to the MRT on 17 April 2008 setting out submissions for the applicant. The submissions stated (CB 60.8):
·That the applicant was not attending the course due to his teacher/tutors behaviour and manners towards international students.
·That the applicant “had requested to change the teacher”.
·That Ms Temminghoff has confirmed with DIAC that most of the students had problems with the teacher.
The MRT sent a further s.359A letter to the applicant’s agent on
30 May 2008 (CB 62) seeking the applicant’s comments on the Tribunal’s calculations that even allowing for the periods covered by the Doctors Certificates he attended 119 contact hours out of 298 contact hours, being 40% (CB 62.6). His comments were also sought on the email from Wendy Temminghoff dated 10 September 2007 (supra and CB 22). The comments were required by 6 June 2008 (CB 63). The agent replied on 4 June 2008 stating that he will provide evidence in 2 to 3 weeks (CB 64.5). The MRT replied on 6 June 2008 granting an extension until 16 June 2008 (CB 65.6).
The MRT’s decision was signed on 15 July 2008, (CB 70) which affirmed the decision of the Delegate.
The applicant lodged an application for judicial review by the Court on 11 August 2008 with a supporting affidavit.
The applicant sought an extension of time for lodging his application. Section 477 of the Act provides that an application for review under s.476 must be made to the Court within 35 days of the date of the migration decision. The decision is dated 15 July 2008. The application for judicial review was lodged on 11 August 2008, which means that an extension of time is not necessary.
The application states the only ground for review as “student visa application refused by DIAC and MRT”. The applicant made submissions to the Court in support of his application. In summary he said that the students all had trouble with their tutor, who was racist and difficult, and that because of his Hindu religion which prohibited him eating pork or beef he had to leave practical classes when he was required to eat pork or beef that he had cooked.
The Tribunals Decision
The MRT concluded correctly that the effect of s116 and reg 22.43(2)(b)(ii) is that if the Minister is satisfied that the visa holder has not complied with condition 8202, and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control, the Minister must cancel the visa (CB 72.3)
The MRT stated “There is no power to cancel a student visa under s116 of the Act for a breach of the condition 8202(3)(b) relating to satisfactory academic performance as it stood prior to 1 July 2007” Dai v Minister for Immigration and Citizenship [2007] FCAFC 199” (CB73.9). The cancellation here was by notice dated 11 September 2007 (CB26). Power to cancel therefore existed under s.116.
Once a breach of condition 8202 is established the Minister must cancel the visa (s116(3), reg 2.43(2)) unless the non-compliance was not due to exceptional circumstances beyond the visa holder’s control reg 2.43(2)(b)(ii)B.
The MRT considered the meaning of the words “exceptional circumstances beyond the non-citizen’s control” in the context of s.137L(1)(b) of the Act as being “unusual and not of the applicants own making, but beyond the applicants control” Chen v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 29 Lander J at (111) (CB 72.6) that “exceptional circumstances” in general terms are those circumstances which are unusual or out of the ordinary.
NMIT provided the Department with advice on 22 June 2007 that the applicant did not satisfy the attendance performance requirements of his visa, as his attendance was 46.7% of the contact hours for term 1 2007 running from 12 February 2007 to 6 April 2007, and 31% in term 2, 2007 running from 16 April 2007 to 22 June 2007. Advice from NMIT dated 2 August 2007 stated that his total attendance record as at 15 June 2007 was 40% (CB 74.2). Condition 8202(3)(a)(ii) requires attendance for at least 80% of the contact hours scheduled for each term and semester of the course.
At the interview on 7 September 2007 the applicant claimed that the attendance figures were not correct as the teacher would mark him absent if he did not meet the requirements during the class, or did not make the dishes nicely or didn’t keep quiet (CB 74.3). The applicant claimed also that the teacher would mark him absent if he didn’t do or complete an assignment or his cooking was not up to standard (CB 74.7). He claimed that if his attendance record had been marked correctly he would have attended more than 80% of the contact hours. The MRT also considered his claim that his wrist injury and the fact that his father was suffering from heart failure had an effect on his attendance (CB 74.6).
The MRT was correct in concluding that to calculate whether the applicant had attended 80% of the contact hours, it must have regard to the total number of hours in the semester or course, which the applicant was scheduled to attend as a student, compared with the hours he attended (CB 76.3).
The MRT found that the applicant did not comply with condition 8202 for the reasons it set out at (CB 76.5–77.2), including that he reached a total attendance of 40% of the contact hours for the two terms as at
15 June 2007 (CB 76.5). That corresponds with the figure calculated by NMIT (CB 74.2). Allowing for the time covered by the doctors certificate the MRT calculated the total at 49% (CB 76.5). That finding of fact was properly open to the MRT on the material before it and is not open to review
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”.
The MRT cited evidence contrary to the applicants claim that teachers mark students absent if they didn’t make the dishes nicely or keep quiet in class (76.5).
The MRT questioned why the applicant did not go to see his father when he was ill (CB 76.6).
The MRT recorded that the complaint by the applicant about racism as being:
“The teacher was not competent enough in clearing the doubts for the student, always insisting to read the books, cookery is not the same for all nationalities in regards with taste or cultural difference” (CB 76.7)
The MRT did not consider that showing preference to a girl was “sufficient to claim that the teacher was racist or that the applicant suffered racial discrimination because of that” (CB 76.9).
The applicants’ agent did not address the reason for the applicant not attending theory classes, when the applicant did not have any difficulties with these particular teachers (CB 77.1).
The MRT accepted that the wrist injury would have caused the applicant problems but was not satisfied that this was an exceptional circumstance that prevented the applicant attending 80% of the scheduled contact hours, as the applicant claimed that he first experienced wrist pain in July 2006 but did not see a doctor until nearly a year later on 31 May 2007 (CB 77.2). Whether that is a finding of fact or law, it has not been shown to be in error.
The MRT found that the non compliance was not due to exceptional circumstances beyond the applicants control (CB 77.4). The MRT did not reject the evidence of the applicant but considered all of it and concluded that the non compliance was not due to exceptional circumstances beyond the applicants’ control. That conclusion was properly open to the MRT on the material before it and no error of law or reviewable error of fact has been shown.
At the hearing on 16 July 2009 the applicant sought an extension of time to enable him to put documents to the Court that were not put before the MRT (Transcript page 4 line 10). The Court refused an extension.
An applicant for judicial review is confined to the material put before the Tribunal see SZJMG v MIC & Anor [2008] FCA 1145 per McKerracher J at [27]:
“27 An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:
It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.”
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application is dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Eyal D’vier
Date: 18 September 2009
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