KAUR v Minister for Immigration
[2013] FMCA 7
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 7 |
| MIGRATION – Student visa – subcl.8202(3) of Sch 8 Migration Regulations 1994 (Cth) – 80% attendance requirement – issue of notice under s 20 Education Services for Overseas Students Act 2000 (Cth) – whether Court required to look behind notice to ascertain whether certificate of non-attendance valid. |
| Education Services for Overseas Students Act 2000, s.20 |
| Cai v Minister for Immigration & Anor [2011] FMCA 922. Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168; (1995) 127 ALR 21; (1995) 29 ATR 644; (1995) 69 ALJR 223. Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199. Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436. Patel v Minister for Immigration and Citizenship [2012] FCA 958. Purohit v Minister for Immigration & Anor [2012] FMCA 477. R v Panel on Take-Overs & Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815; [1987] 1 All ER 564; [1987] 2 WLR 699; (1986) 2 BCC 99086. Singh v Minister for Immigration & Anor [2011] FMCA 972. |
| Applicant: | SUKHWINDER KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 216 of 2012 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 23 October 2012 |
| Date of Last Submission: | 23 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gipp |
| Solicitors for the Applicant: | JK Legal |
| Counsel for the Respondents: | Mr Richard Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 29 February 2012 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 216 of 2012
| SUKHWINDER KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant (and her husband and child) are citizens of India. She is 35 years of age and came to Australia to study, on a student visa. The Applicant appeals from a decision of the Migration Review Tribunal affirming the decision of a delegate of the Minister not to grant the Applicant a Student (Temporary)(Class TU) visa.
The Tribunal sets out a list of enrolments that the Applicant has had studying hairdressing:
22. According to Confirmations of Enrolment (CoEs) and other documents provided to the Department and the Tribunal the applicant is or has been enrolled in the following courses:
· Diploma of Hairdressing Salon Management (Box Hill Tafe) – course start date 16 January 2007.
· Diploma of Hairdressing Salon Management (MITC (Melbourne Institute Training College)) – course start date 21 January 2008.
· Diploma of Hairdressing Salon Management (Box Hill Tafe) – course start date 1 April 2008.
· Certificate III in Hairdressing (MITC), completed June 2008.
· Certificate IV in Hairdressing (MITC), course start date 20 June 2008.
· Diploma of Hairdressing Salon Management (MITC), course start date 20 October 2008.
· Diploma of Hairdressing Salon Management (MCHB (Melbourne College of Hair and Beauty)), course start date 6 April 2009.
· Diploma of Business (Princeton Institute of Education Limited), course start date 27 February 2012.
It appears that the Applicant had commenced at Box Hill Tafe and then changed to the Melbourne Institute Training College (MITC). She completed a Certificate III course at MITC but had not completed the Certificate IV course.
The Applicant was unable to obtain a visa as the education provider issued a certificate that indicated her attendance was less than was required in her visa conditions.
Grounds 1, 3 and 4
Ground 1 has been deleted by the Applicant in the Amended Application filed 23 August 2012.
Grounds 3 and 4
The education provider certified that the Applicant’s attendance had been unsatisfactory in a certificate and notice issued pursuant to ss.19 and 20 of the Education Services for Overseas Students Act 2000. The sections provide:
19. Giving information about accepted students
(1) A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:
(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student—the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of an accepted student’s studies (whether as a result of action by the student or the provider or otherwise) before the student’s course is completed;
(e) any change in the identity or duration of an accepted student’s course;
(f) any other prescribed matter relating to accepted students.
(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.
(2A) A registered provider must give particulars of a breach by a student under subsection (2) even if the student has ceased to be an accepted student of the provider.
(3) Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
Unincorporated registered providers
(4) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the Secretary the information as required under this section.
(5) A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(6) An offence under subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
20. Sending students notice of visa breaches
(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
(1A) A registered provider must send a notice to a student under subsection (1) even if the student has ceased to be an accepted student of the provider.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister’s Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.
Unincorporated registered providers
(5) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.
(6) A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(7) An offence under subsection (6) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
The effect of the certificate is set out in Condition 8202, which relevantly provides:
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 neither of the following applies:
(a) the education provider has certified that 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;
(b) the education provider has certified that 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 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
The Applicant’s case before the Tribunal was that she had good attendance at the education institution but that the certificate was wrongly issued by the institution. The Tribunal summarise her claims against the provider as follows:
28. The applicant said that for significant periods of time during 2008 there were not teachers and no classes at MITC. She was told by the principal of the College, a lady she called “Anna”, to engage in self-directed study via the Internet. The applicant said that she did that and did some assignments and practical work when available. She kept attending for that purpose. There were other students in the same situation that she was. She said that Anna assured her during that time that her attendance was good – because she was still paying fees. In a discussion with the applicant in 2008 Anna also told her that attendance records had been lost, yet she looked on her computer and said that the applicant’s attendance was satisfactory. Anna said that her attendance rate was 85%. Once – at the end of 2008 – she had said that it was as high as 89%. There was a similar discussion in 2009. The applicant submitted her assignment but at one stage (in September 2008, she thought it might have been) one of some new teachers at the College said that it was not the right one and that she needed to start the process again.
29. In early 2009 the applicant asked MITC for a new CoE but that was refused and so she left. This was after she received the section 20 notice on 16 February. She received the section 20 notice by email and later by post. By that time she had submitted her assignment but she was told that more was required. She argued with that, saying that her teachers had previously told her that it was all right. She asked for her file and said she would “go to Immigration”. Anna then told her that if she did that they would “do something” to her. At the time the applicant didn’t know what Anna meant by that. After she received the section 20 notice she confronted Anna who said that she, the applicant, had argued with her and that she, Anna, did not like people who argued with her. The applicant said that four or five other students were treated in the same way.
30. The applicant discontinued study with MITC but did not put this in writing. She went to another College, MCHB, in April 2009.
31. The applicant told the Tribunal that she believed that her attendance rate was actually higher than 85%. She received no warning that there would be a section 20 notice. She did say, though, that at one stage she was given what was described as a “third warning letter” regarding non-payment of fees. She handed the letter back with payment and the letter was destroyed. She recalled that the letter also said that her attendance was “short”. There had been no prior letter like that. She thought that the letter said nothing about any 20 day period to respond, or about any appeal rights.
32. The applicant said that the statement regarding her attendance that was contained in the certificate MITC gave the Department was untrue.
The Applicant’s husband also gave evidence before the Tribunal, summarised by the Tribunal as:
37. When the applicant’s husband gave evidence he could not say what the applicant’s course attendance requirements were but said essentially that she attended for the majority of the time. He said that was 75% of the time. She was home to care for him after an injury, in November 2008, but even then she went to the College regularly. He was unaware of allegations by MITC about the applicant’s attendance, or anything else. He said that he could not remember any specific problem she had with the quality or availability of teachers. The section 20 letter came as a shock to the applicant because her attendance had been normal. He and she thought it related to the time she was away from the College when he was injured. He also said that she was being punished because of complaints she made. He was unaware of any prior warning letter. He said that the applicant left MITC because they would not help her.
38. Asked to comment on her husband’s evidence, the applicant said that Anna did not say that the section 20 notice had anything to do with the time her husband was injured.
The Applicant argued before the Tribunal that the Tribunal ought not to accept the certificate issued by the education provider. Ultimately the Tribunal concluded that it was not open to the Tribunal to look behind the certificate, but also considered the Applicant’s claims, saying:
54. The applicant’s representative said that he understood that MIC and MITC were related entities. It is not necessary to explore that issue. The Tribunal is satisfied at least that MITC was closed soon after the section 20 notice and certification were issued. The circumstances of MITC’s closure may or may not have reflected well on the proprietor of that business. It would be another matter to conclude that the applicant’s evidence should be preferred to what the education provider said in the notice and certification. There was the applicant’s evidence, but only her evidence, about discussions with the principal and other personnel. There were allegations about the education provider’s conduct towards other students and general comments about MITC’s notoriety. There were also some letters by MITC later in 2009 that, accepting the applicant’s evidence about having withdrawn from her course, raise doubts about statements that it made. On the other hand there was not what might have been the most helpful evidence such as the applicant’s attendance records (helpful, that is, if the issue for the Tribunal was what the applicant’s actual attendance [was]). Obviously, if proper records were ever kept, such records may now be unavailable. All this highlights the essential reason for the Regulations operating in such a way that the Tribunal is not required to look behind the certification.
55. The Tribunal will return to the last point. The Tribunal will also make some comments on the applicant’s credibility although, for reasons to be given, that is not determinative of the matters that the Tribunal must determine. The Tribunal first expresses its view that while the evidence supports a finding that at all material times the applicant resided at her current address (being an address other than the one contained in the section 20 notice), the evidence would actually not support a finding that she did not receive any warning letter prior to the issue of the notice, or that she was not enrolled at MITC as at the date of the notice. A copy of a standard form Residential Tenancy Agreement commencing on 1 August 2008 that the applicant provided to the Tribunal supported her evidence about her address. On the other hand, as was acknowledged in the submission dated 8 December, the applicant disclosed at the hearing that she received a letter from the school about her attendance, though, as the Tribunal understood the submission, there was no evidence, and there were no records, of the letters that were formally required. A number of documents – and statements made by the applicant in her visa application about her intended course of study – nevertheless indicate that she was enrolled at MITC when the section 20 notice was issued, and the Tribunal so finds.
…
57. With regard to credibility, the Tribunal notes its view that they endeavoured to give truthful evidence even if there was some disparity between their evidence. The applicant’s husband’s estimate of the applicant’s attendance was somewhat below her own, but the Tribunal did not consider that he was attempting to be precise about that. Of more concern is that he had so little knowledge of what the applicant said were problems between her and MITC. It is reasonably to be expected that he would know more about that, even if now a couple of years had passed, given the unfairness of what MITC’s principal was alleged to have done.
58. In summary, the applicant’s evidence was essentially that the education provider acted maliciously towards her, but the evidence overall would not enable the Tribunal to determine that issue in the applicant’s favour, were it required that the Tribunal determine that issue.
Grounds 1 and 3
In this Court it was argued that the Tribunal were required to consider the validity of the s.19 certificate. The Applicant argued that fraud, bad faith or improper purpose would vitiate the exercise of public power: see Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168; (1995) 127 ALR 21; (1995) 29 ATR 644; (1995) 69 ALJR 223. It was also argued that the provider had not complied with the code of conduct.
The question of whether or not a certificate such as the s.19 certificate is open to a collateral challenge before a Court or Tribunal raises complex and difficult questions, as are discussed in Aronson, “Criteria for Restricting Collateral Challenge”, (1998) 9 Public Law Review 237.
However the issue in this case has already been considered on appeal in Patel v Minister for Immigration and Citizenship [2012] FCA 958, where Collier, J stated:
[74]Placing to one side the point that the ground of appeal to which this submission relates is not readily apparent, and the fact that the validity of the certificate was not actually raised by the appellant in the Tribunal, in my view the question posed by the appellant is misconceived. The Tribunal did not “give itself jurisdiction” “to affirm the cancellation” of Mr Patel’s visa “by finding there was a valid certification by Griffith University”. The Tribunal decision was limited to reviewing the decision of the Minister’s delegate that Mr Patel had breached condition 8202 of his visa, where the decision was made following consideration of a notice and certificate in respect of his attendance. A decision, reviewable by the Tribunal, had been made by the delegate. It was not the role of the Tribunal to find that there was a valid certification by Griffith University – 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 the notice.
In light of her Honour’s decision, being a decision on appeal from a Federal Magistrate, it appears to me that the issue, at least at first instance, is now foreclosed by the appeal judgment.
In this case the Tribunal clearly accepted the certificate as valid on its face. In accordance with the decision of Collier, J in Patel’s case, it was not open to the Tribunal to look behind that certificate.
This disposes of Grounds 3 and 4, both of which attempt to mount a collateral attack on the s.20 notice.
In any event, it appears that on the facts the Tribunal did not accept the Applicant’s evidence about the education provider. This finding by the Tribunal is unsurprising given the nature of the evidence, in particular the difference between the evidence of the Applicant and the Applicant’s husband, as set out above.
In argument, issues were also raised as to the extent to which it would have been open to the Applicant to seek judicial review of the decision to issue the s.20 notice by the education provider and importantly, the question of whether R v Panel on Take-Overs & Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815; [1987] 1 All ER 564; [1987] 2 WLR 699; (1986) 2 BCC 99086 applies in Australia, and in particular to this type of decision. These issues are discussed by Kyrou, J in “Judicial review of decisions of non-governmental bodies exercising governmental powers: Is Datafin part of Australian law?” (2012) 86(1) Australian Law Journal 20. This issue does not need to be determined in this matter in that there are no proceedings pending before me seeking review of the s.19 certificate or the s.20 notice.
Grounds 2 and 5
Grounds 2 and 5 of the application sought judicial review on the basis that the Tribunal concluded that condition 8202(3) could not be substantially complied with, in that the Tribunal in this case did not consider whether or not there was substantial compliance with the condition.
In Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199, the Full Court of the Federal Court concluded that substantial compliance could not be achieved for a condition that required a specific percentage of attendance. In an earlier version of condition 8202 the decision-maker was required to make a factual finding as to whether or not class attendance was satisfactory, which was amenable to the concept of substantial compliance: see Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436.
In a number of decisions from the Federal Magistrates Court it has been found that there is no ambit for substantial compliance: see: Cai v Minister for Immigration & Anor [2011] FMCA 922; Singh v Minister for Immigration & Anor [2011] FMCA 972; Purohit v Minister for Immigration & Anor [2012] FMCA 477. Likewise, the decisions in Casse & Ors v Minister for Immigration & Anor [2012] FMCA 1113 and Singh v Minister for Immigration & Anor [2012] FMCA 1005 come to similar conclusions.
In the present case, on the relevant form of condition 8202 the only factual issue for the decision-maker is to determine whether or not a certificate exists.
It appears to me that it is appropriate to follow the existing decisions. In these circumstances I am not persuaded that the Tribunal ought to have considered whether or not there was substantial compliance.
I therefore dismiss the current application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 29 January 2013
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