Kanjanasirirat v Minister for Immigration
[2008] FMCA 490
•17 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KANJANASIRIRAT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 490 |
| MIGRATION – Student visa – failure to meet attendance requirements. |
| Migration Act 1958, ss.348(1), 359A Education and Services for Overseas Students Act 2000, s.20 |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 Chan v MIMIA [2005] FCA 229 Wang v MIMIA [2005] FMCA 918 Hatcher v Cohn [2004] FCA 1548 Pradhan v Minister (1999) 94 FCR 91 Zhao v MIMIA [2000] FCA 1235 Quan v MIMIA [2004] FCA 764 |
| Applicant: | SEADTHAWYN KANJANASIRIRAT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 761 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 7 November 2007 |
| Date of last submission: | 7 November 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 17 April 2008 |
REPRESENTATION
| Solicitor for the Applicant: | Mr T A Fernandez |
| Solicitors for the Applicant: | T.A. Fernandez |
| Counsel for the First Respondent: | Ms S Burchell |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed 6 June 2007 be dismissed.
The applicant pay the respondent’s costs fixed at $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 761 of 2007
| SEADTHAWYN KANJANASIRIRAT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant applies for orders to set aside a decision of the Migration Review Tribunal of 1 May 2007 affirming a decision to cancel his student visa.
The grounds of the application are lengthy, and in the following terms:
“1. The sole ground on which the delegate cancelled the applicant’s visa, by decision dated 29/12/06, was that the applicant failed to attend 80% of the contact hours for semester 2 of 2006 which commenced on 26/06/06 and concluded on 30/09/06 and that the failure to attend was not due to exceptional circumstances beyond the applicant’s control. The Tribunal not only found that the applicant’s attendance was unsatisfactory in semester 2 of 2006, but also that the applicant’s academic results in semester 1 of 2006 and semester 2 of 2006 was unsatisfactory. The Tribunal erred in so doing, a breech (sic) of section 348(1) of the Act.
2. The Tribunal’s section 359A letter dated 08/03/07 (i.e sent on the day of the hearing) is an invalid letter for the following among other reasons:
· It seeks to introduce as a ground the applicant’s academic performance which did not form part of the delegate’s consideration and determination.
· It failed to explain to the applicant, apart from the correctness of contact hours, how the information that the Tribunal was to consider could be the reason or part of the reason for affirming the decision that was under review. It failed to explain to the applicant whether the reasons advanced by him regarding his attendance came within exceptional circumstances or no.
3. The Tribunal has failed to reach a state of satisfaction in respect of the percentage of the applicant’s attendance given the definition of contact hours in regulation 1.03 and the onus of establishing the facts which is on the Tribunal.
4. The Tribunal erred in placing reliance on MSI 382 (it does refer to cancellation under section 116 of the Act) to find that the review applicant’s poor attendance in semester 2 of 2006 was affected by his concerns for his family and also by his lack of interest in attending classes that he could not understand and that these circumstances were neither exceptional circumstances individually or taken together.
5. The applicant has been denied procedural fairness in the Tribunal failing to explain to him the import of the decisions it relied upon.
6. The Tribunal’s section 359(2) notice dated 08/03/07 is an invalid notice for the following among other reasons:
· Section 359 specifically says that ‘in conducting the review the Tribunal may get any information that it considers relevant’. In seeking information relating to the applicants academic results the Tribunal was attempting to seek information that was not only relevant but was not the subject of review and could never have been
7. In seeking to include the applicant’s academic performance and giving a finding, which the delegate did not do, the Tribunal has treated the applicant without procedural fairness and has contravened section 353 of the Act.
8. The applicant will seek to challenge the validity of the section 20 notice dated 02/10/06 in the light of Morsed v MIMIA 88 ALD 90, Uddin v MIMIA 2005 FMLA 841 & MIMIA v Zhou 152 FCR 115 & other relevant decisions.”
In support of these grounds the Applicant's solicitor provided the following written Contentions of Fact and Law:
“Contentions of fact
The applicant is a citizen of Thailand. The student visa relevant to this application for review was a sub-class 573 visa which was granted on 08/04/2005 and valid until 16/08/08. This visa was cancelled by the delegate on 29/12/06, on the sole ground of unsatisfactory attendance in semester 2 of 2006 i.e. (from 26/06/06 to 29/09/06). The tribunal not only affirmed this decision on review, but also found that the applicant’s academic results were unsatisfactory in semesters 1 and 2 of 2006 although the educational provider, MIBT, did not certify that his academic results in either semester 1 or 2 of 2006 were satisfactory. (CB162). The delegate did not cancel the applicant’s visa on this ground.
The applicant’s amended application dates 17/08/07 particularises the applicants grounds in sufficient detail and the applicant will refrain from repeating them here. Suffice to say that all grounds are pursued.
The applicant is reluctantly compelled to draw to the courts attention the contents of the court book and particularly pages 66, 69-80, 82, 83, 85-102, 104-106, 108-145 which are either not in the English language, lacks clarity or contains results of medical procedures. (see CB145 for example).
Contentions of Law
Sections 348(1) and 349(1) of the Migration Act empowers the MRT to review a reviewable decision and invests the review authority to exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision. Clearly and unambiguously the MRT cannot make a decision that has not been made by the delegate. Consequently, the section 359A notice dated 8/03/07 is an invalid notice. Section 359A(1) refers to information ‘that the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review. Section 359 of the act says ‘in conducting a review’.
Condition 8202(3) says that ‘… the Minister is satisfied …’ and (ii) for a course that runs for at least a semester for each term and the semester of the course’. Given that definition of contact hours in regulation 1.03 and the letter from MIBT, the Tribunal has not explained as to how it reached a state of satisfaction that there was a breach of condition 8202 (3) and particularly 3(ii).
The Tribunal has not explained its interpretation of the medical evidence that was either not in the English language or otherwise to found a conclusion as it did. It has also not explained as to how it came to a finding that the applicant’s father did not experience any exacerbation of his condition in 2006 or suffered from any other serious illness in 2006. This latter finding appears to be in the absence of evidence.
Assuming but not conceding that it was within the Tribunals powers to consider the applicants academic progress, certification by the educational provider is the only sine quo non to find a breech (sic) of condition 8202(3)(b).
In all of the above circumstances the applicant has not been treated with procedural fairness.
The applicant seeks a remittal of this application to the MRT to be dealt with in accordance with the law.
A list of authorities will be provided prior to the hearing.”
No list of authorities was provided prior to the hearing, nor did the Applicant's solicitor seek to rely upon authorities.
Decision
The Tribunal in its decision found that the Applicant had not met the attendance requirement of his visa conditions. He had, on the Tribunal's findings, attended only 55 per cent of his contact hours, far less than the 80 per cent of contact hours required by the visa condition. The Tribunal also found that the Applicant had not met the academic progress requirements of his visa conditions in that he had not obtained academic results certified by the institution as at least "satisfactory". The Tribunal found that the Applicant had failed two of the three subjects he attempted in the third semester of 2005 and all of the three subjects that he attempted in the first semester of 2006 and in the second semester of 2006. The Applicant was excluded from the institution after failing all subjects in the first semester of 2006, however, as a result of an appeal was allowed to remain in the course on a conditional enrolment for the second semester, from which he was excluded a second time. The Applicant did not challenge the second exclusion.
The Tribunal went on to consider whether or not the breach of these conditions was “not due to exceptional circumstances beyond the visa holder’s control" as required by reg.2.43(2)(b). The Tribunal member in the decision lists in dot point form all of the significant factors the Applicant relied upon as follows:
· That the main reason for the review applicant’s poor academic results since commencing his diploma course in 2005 is that he had difficulty understanding the teachers and could not understand the subject matter of the course. The review applicant also stated that because he had trouble understanding the teachers and the subjects, he did not want to go to class;
· That his father was suffering from a heart condition for which he underwent surgery in 2004 and 2005, and for which he anticipated he would require further complicated surgery in 2006;
· That the review applicant was concerned that his father might die during the proposed surgery, which was due to take place in 2006, but which has not yet been scheduled;
· That the review applicant was concerned in 2006 that if his father died during surgery, or as a consequence of his heart condition, there would be no-one to run the real estate business or support the family or to provide financial support for the review applicant in Australia;
· That the review applicant’s younger brother had fallen in with a bad crowd and taken up smoking, and the review applicant felt guilty that he was not at home to give his brother some guidance.
The Tribunal then concluded:
“The Tribunal notes that the review applicant attempted to defer his studies in August 2006, but was advised that he was too late to withdraw from that semester. The Tribunal notes that the review applicant has failed eight out of the nine subjects attempted during his diploma course, which commenced in October 2005.
The Tribunal accepts that the review applicant’s father suffers from a serious heart condition, but is not satisfied on the evidence before it that he suffered any exacerbation of this condition or suffered from any other serious medical condition in 2006 which prevented him from working. The Tribunal accepts that the review applicant was worried about his father and about his wayward younger brother, especially as the review applicant is the eldest son and he would assume responsibility for the family if his father is unable to remain as head of the family. The Tribunal does not accept, however, that the review applicant’s concerns about his family in 2006 were the main reason for his poor academic performance during that period. The Tribunal finds that the main reason for the review applicant’s poor academic results in semester 1 and semester 2 of 2006 was his inability to understand the subject material of the course, which he had expected to be easier for him. The Tribunal finds that the review applicant’s poor attendance in semester 2 of 2006 was affect by his concern for his family and also by his lack of interest in attending classes that he could not understand.
The Tribunal finds that none of these individual circumstances is exceptional in its own right and that all of these circumstances taken together are not what the Tribunal would consider to be exceptional circumstances beyond the review applicant’s control.”
Ground 1
Counsel for the Applicant argued that by considering the Applicant's academic results as an alternative ground for cancelling his visa (to that of the attendance requirements) the Tribunal acted in breach of s.348(1) of the Act. It was put on the basis that the Tribunal was limited to an inquiry about the Applicant's attendance as the basis for breach of the visa conditions and that the Tribunal could not look at alternative bases for cancellation of the visa.
It is apparent that the Tribunal is not limited by the way in which the delegate approached the proceedings. The Tribunal commences the decision-making process afresh and is to make its own findings as to the facts and circumstances. This was made clear by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 where the Court said:
“35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.”
The particular issue before the High Court in that case does not arise here as the Tribunal had sent a letter under s.359A giving the Applicant specific notice that it was also considering his academic performance as an alternative ground for the cancellation of the visa.
In these circumstances the Applicant was on clear notice that cancellation of his visa on either of the grounds available under condition 8202 was being contemplated. In any event, his visa would have been cancelled on either of these grounds. As such, even if the Tribunal erred in considering his academic record, it was still open to the Tribunal to cancel his visa on the basis of his failure to comply with the attendance requirements.
I therefore find that this ground is not made out.
Ground 2
The first part of ground 2 seeks to impugn the s.359A letter on the basis that it could not be sent as the Tribunal was not entitled to consider the issue of the Applicant's academic performance (an extension of ground 1). For the reasons as set out above, this ground must fail.
The second part of ground 2 is to the effect that the s.359A letter of 8 March 2007 was defective on the basis that the letter did not contain the statutory definition of "contact hours", therefore not making clear to the Applicant that contact hours were to be calculated by comparing the number of hours attended with the scheduled number of hours for teaching, course-related information session, supervised study sessions and examinations. The Applicant did not suggest that there were course-related information sessions, supervised study sessions or examinations that he attended, which were not taken into account in calculating his attendance rate of 55 per cent during the relevant period or that may bring him within the 80 per cent required for the visa condition.
In the circumstances of this case any lack of detail in the s.359A letter in this regard appears to me to be purely academic or theoretical. It does not appear that it affects the circumstances of this case, nor misled the Applicant. It appears to me that the invitation to comment makes plain that the condition requires 80 per cent attendance, that the statement of attendance from the institution indicated an attendance of only 55 per cent and that this was relevant because it tended to demonstrate that the Applicant had breached a relevant condition of his visa.
I therefore find that this ground has no merit.
Ground 3
This ground seeks to impugn the Tribunal decision on the basis that the Tribunal did not explore with the Applicant whether or not he had examination periods, supervised study sessions or course-related information sessions which may need to be taken into account in calculating the percentage of contact hours that he attended.
The Tribunal had before it a letter from the institution setting out the classes that the Applicant was to attend and the calculation of his attendance records.
The attendance issue was explored by the Tribunal with the Applicant at the hearing, as the transcript shows:
“MEMBER: The results I have – sorry the attendance record I have from MIBT tells me that you attended only 55 per cent of your classes in Semester 2 of 2006. I know you told the immigration officer in your interview that you marked as ‘absent’ for some days when you were late.
APPLICANT: Yes.
MEMBER: But I need to tell you that MIBT have written to the department, and said their policy is to always mark students as ‘present’ when they are late. That there is a special way of marking the roll for students who are late, with an ‘H’. So students who turn up late get marked as ‘H’, students who turn up on time get marked as ‘present’. Students who don’t turn up at all for the four hour session for each class are marked as ‘absent’. All right, so what do you say to me about your attendance? This 55 per cent attendance in Term 2 of 2006? Do you agree that that is correct?
APPLICANT: (Through interpreter) Yes.
MEMBER: Are you in fact saying that the teachers sometimes marked you as ‘absent’ when you were in fact only late.
APPLICANT: I didn’t know what a ‘H’ means – if it – what ‘H’ means – I thought it was absent.
MEMBER: So you accept that the 55 per cent figure is correct.
APPLICANT: Yes.”
At the hearing the Applicant advised the Tribunal that he accepted the advice from the institution as to the extent of his attendances. In these circumstances, it does not appear to me that the Tribunal was obliged to go further as the Applicant accepted his attendances were below the 80 per cent mark required by the condition. In any event, it is difficult to see how examination sessions or course-related information sessions could amount to such a large amount of time as to bring his attendance rate from 55 per cent to 80 per cent. There is no suggestion that he had supervised study sessions on any regular basis. I reject this ground.
Ground 4
The Applicant complains that the Tribunal referred to Migration Series Instruction 382, which deals with the question of exceptional circumstances under s.137J of the Act. It is not a breach of procedural fairness or an error of law by the Tribunal to refer to policy. The Tribunal makes clear that it is taking into account the matters listed in this instruction, but that it was not limited to those matters in assessing whether the breach in this case was not due to exceptional circumstances beyond the review applicant's control. Indeed it is apparent that the Tribunal turned their mind to the question in the context of this case by clearly identifying in dot point form all of the significant factors raised, and in ultimately making a decision in the terms required by reg.2.43, rather than in the terms required by s.137J (the onus of proof being different for each of those tests).
In the absence of submissions that a specific factor was taken into account that should not have been taken into account, or that a relevant factor was ignored, it does not appear to me to be an error for the Tribunal to explore the way in which a particular phrase operates under different provisions of the Act as part of determining the meaning of a section, before turning to examine the facts and circumstances relevant to this case. Indeed this is an established legal method which allows consistency of interpretation and provides decision-makers with much assistance in ensuring that they have considered all of the factors that might have been considered relevant. I find no merit in this ground.
Ground 5
The Applicant's ground 5 is to the effect that the Tribunal failed to explain to the Applicant the import of decisions that it relied upon. In this case the Tribunal explored a number of decisions relating to the meaning of "exceptional circumstances": Chan v MIMIA [2005] FCA 229; Wang v MIMIA [2005] FMCA 918; Hatcher v Cohn [2004] FCA 1548 and Pradhan v Minister (1999) 94 FCR 91; Zhao v MIMIA [2000] FCA 1235; Quan v MIMIA [2004] FCA 764. The Tribunal is not required to discuss with the Applicant every authority that it refers to or relies upon to explain its understanding of the law or application of the law to the particular circumstances of the case.
The Tribunal is obliged to make the Applicant aware of the issues, which it clearly did in its letter to the Applicant. To suggest that the Tribunal must explain each and every authority that it is intending to rely upon to an Applicant would take the hearings outside of what is obviously contemplated by the legislative scheme. In particular cases it may be that it is important for the Tribunal to explain the principle from the authorities if that is necessary to ensure that the Applicant is aware of the issues in the case. An argument of this type was not developed here.
I find no merit in this ground.
Grounds 6 and 7
Ground 6 is a further attempt to impugn the s.359A notice for the same reasons outlined in ground 1 and must fail for the same reasons.
Similarly, ground 7 seeks to rely upon the same substantive matters as ground 1 and must fail for the same reasons.
Ground 8
The Applicant did not pursue a challenge to the notice under s.20 of the Education and Services for Overseas Students Act 2000. Whether the notice was valid or not, the Applicant received a notice of intention to cancel his visa when attending upon the Department which was the basis upon which the delegate and Tribunal acted. In these circumstances, the issue raised in this ground is not relevant to the proceedings before the Tribunal.
As the Applicant has not established any ground for judicial review,
I therefore dismiss the Applicant's application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date: 16 April 2008
0
7
2