KHAN v Minister for Immigration
[2009] FMCA 1185
•1 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1185 |
| MIGRATION – Migration Review Tribunal – cancellation of student visa – whether breach of s.359A – whether Tribunal was bound to make enquiries – whether Tribunal misconstrued or misapplied reg. 2.43(2)(b)(ii)(B) – whether Tribunal erred by applying condition 8202(3)(a) to the applicant – whether Tribunal failed to consider a relevant consideration – whether Tribunal denied the applicant a hearing. |
| Education Services for Overseas Students Act 2000 (Cth) Migration Act 1958 (Cth), s.359A |
| Minister for Immigration and Citizenship v Chamnan You [2008] FCA 241 Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 225 |
| Applicant: | MURAD KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 327 of 2008 |
| Judgment of: | Riley FM |
| Hearing date: | 8 September 2009 |
| Date of Last Submission: | 16 September 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 1 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Anthony Krohn |
| Solicitors for the Applicant: | Da Gama Pereira & Associates |
| Counsel for the Respondents: | Christopher Horan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 18 March 2009 and amended on 7 September 2009 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 327 of 2008
| MURAD KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal in which the Tribunal affirmed a decision of a delegate of the first respondent to cancel the applicant’s student visa. The applicant had undertaken a Certificate 2 in Hospitality (Kitchen Operations) at Kangan Batman Institute of TAFE. Kangan indicated that the applicant had breached the attendance requirements of his visa because he had attended only 29.7% of his scheduled contact hours in the semester running from 5 February 2007 to 22 June 2007 rather than at least 80% as required by condition 8202. In such circumstances, if the Tribunal found that the non-compliance was not due to exceptional circumstances beyond the applicant’s control, the Tribunal considered that cancellation of the applicant’s visa was mandatory. The Tribunal found that the non-compliance was not due to exceptional circumstances beyond the applicant’s control and affirmed the cancellation.
Ground 1(a)
The first ground of review in the amended application filed on
7 September 2009 is:
1.The decision of the Migration Review Tribunal (“The Tribunal”) was made without jurisdiction or is affected by error of law.
PARTICULARS
(a)The Tribunal breached section 359A of the Migration Act 1958 (“the Act”) by failing to give to the applicant particulars of his attendance records from Kangan Batman Institute of TAFE for comment in writing.
Section 359A of the Migration Act 1958 (“the Act”) provides as follows:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies – by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
Section 359A of the Act does not require the Tribunal to give particulars of documents such as attendance records. Subject to certain exceptions, s.359A requires the Tribunal to give an applicant particulars of certain information. Specifically, s.359A requires the Tribunal to give particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
Relevantly, the Tribunal said the following in relation to the applicant’s attendance:
33. The delegate cancelled the review applicant’s student visa for breach of the attendance requirement during the semester running from 5 February 2007 to 22 June 2007. In doing so, the delegate relied on information provided by the education provider that the review applicant’s actual attendance, excluding medical absences, during this period was 29.7%.
34. The review applicant corroborated his attendance records at the hearing. Having checked the attendance records for itself, and taking in to account evidence given by the review applicant, the Tribunal finds that the review applicant had an attendance rate of less than 80% during the relevant period in question.
35. Accordingly, the Tribunal finds that the review applicant has not achieved an attendance record of at least 80% in the relevant period. The Tribunal finds that the breach of subclause 8202(3)(a) is made out.
36. On the evidence before it, the Tribunal finds that the breach of condition 8202 is made out.
The information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review was specifically listed in paragraph 34 of its reasons. That information was:
a)the applicant corroborated his attendance records at the hearing;
b)the information contained in the applicant’s attendance records, which the Tribunal checked itself; and
c)the evidence given by the applicant at the Tribunal hearing.
The Tribunal set out at paragraphs 19 to 21 the evidence that the applicant gave at the hearing. Those paragraphs are as follows:
19. At the hearing the review applicant provided the Tribunal with a number of documents: a statement dated 9 January 2007 in which the review applicant described his circumstances; a bank statement to corroborate his change of address; a faxed copy of a death certificate for his grandfather of which he said the original is still with the family in Pakistan.
20. At the hearing the review applicant corroborated his arrival in Australia, his academic history and enrolment, and that his attendance was about 30% of the scheduled contact hours. He said the Institute had given him “only one” warning about his attendance, he had been to a meeting in April 2007 with the Institute at which he had agreed to improve his attendance. He said that in his culture the elders of the family make the importance decisions, such as requiring him to stay with a family in Australia who lived a long way from the Institute. Also, when his grandfather died, his father instructed him not to return for the funeral but to continue studying. He had been working Saturdays and Sundays. He had pre-existing back pain which was aggravated by his activity, he took tablets but did not see a doctor. He stayed home from classes, sometimes he had back pain.
21. The review applicant agreed that the circumstances which led him to miss classes were that his family required him to stay with a family they knew who lived a long way from the Institute; that it took a long time to travel from home to the Institute; the Institute was not helpful when he tried to find more suitable accommodation; he felt sad when his grandfather died and he was unable to return for the funeral; he had adjustment problems because he had never been to an Institute (tertiary education) before; he had some difficulty settling down in Australia; he felt homesick; and there were marked cultural differences between living in Australia and living in Pakistan.
Section 359A(4)(b) of the Act provides that the section does not apply to information that the applicant gave for the purposes of the application for review. If the relevant information was provided by the applicant, but was also obtained by the Tribunal from another source, s.359A(4)(b) would mean that the Tribunal was not required to provide that information to the applicant.
In the present case, the Tribunal noted at paragraph 18 of its decision that, when lodging his application for review with the Tribunal, the applicant provided a copy of the delegate’s decision. The applicant did not dispute that fact. The delegate’s decision is contained in the court book at page 25. It stated that Kangan reported that the applicant attended 29.7% of contact hours scheduled during semester 1 of 2007 which ran from 5 February 2007 to 22 June 2007.
The Tribunal noted in paragraph 33 of its reasons for decision that the delegate relied on information provided by Kangan that the applicant’s attendance during the relevant period was 29.7%. If the Tribunal had relied only on that information, that would have been the end of the matter.[1] However, the Tribunal went on in paragraph 34 to note, and rely upon, the information that the applicant corroborated his attendance records at the hearing before the Tribunal, and the information in the attendance records themselves which the Tribunal said it had checked for itself.
[1] Minister for Immigration and Citizenship v Chamnan You [2008] FCA 241 at [16] per Sundberg J
The applicant argued that he did not actually corroborate his attendance records. He noted that the transcript of the Tribunal hearing (which was filed on 8 July 2009) records the following exchange at page 4:
Tribunal: The institute said that you attended for 29.7% - less than 30% anyway, of the scheduled contact hours. Is that right?
Applicant: Yes
The applicant submitted that this exchange simply recorded his agreement that Kangan had said that he attended for 29.7% of scheduled contact hours, and not his agreement that he had in fact only attended for 29.7% of scheduled contact hours. The applicant submitted that the Tribunal misunderstood the applicant’s evidence.
There was no evidence about the applicant’s actual understanding of the question that was put to him and his answer. However, the issue for present purposes is whether the interpretation now advanced by the applicant is a reasonable one, or whether it was reasonable for the Tribunal to understand the evidence as it did.
I consider that the interpretation now advanced by the applicant is not reasonable. It seems to me that the reasonable interpretation of the applicant’s evidence was that he agreed that he had attended 29.7% of scheduled contact hours. That interpretation is consistent with the remainder of the transcript, in which the applicant acknowledged that Kangan had warned him about his inadequate attendance, asked him to attend the office, told him his attendance was short, told him he needed to have full attendance and required him to sign a paper.
The applicant identified for the Tribunal the paper he had signed and agreed that he had signed it on 12 April 2007. The applicant acknowledged that the paper said that the applicant understood that his attendance was below 80% and he agreed to attend 100% of his classes for the next 31 days. The applicant made it clear to the Tribunal that after signing that paper, he did not attend all of his classes. He said that, when he missed classes, he stayed at home in bed because he was depressed after his grandfather died in March, Kangan was two hours by public transport from where he was living, he had back pain, he had difficulty adjusting to college life and there were cultural differences between Australia and Pakistan.
When the Tribunal said to the applicant that it was fairly clear that he had not attended 80% of his scheduled classes and the question then was whether there were exceptional circumstances beyond his control, the applicant said, “Ah huh.” At no stage did the applicant tell the Tribunal that Kangan had miscalculated his attendance, or that he had in fact attended more than 80% of scheduled contact hours or even more than 30% of scheduled contact hours.
If the applicant had actually meant simply that Kangan had said that he had only attended 29.7% of contact hours, it is to be expected that his answer to the question “Is that right?” would have been something like, “Yes, well that is what they said but they were wrong. I actually attended X% of scheduled contact hours.”
Accordingly, I consider that, as the Tribunal said, the applicant corroborated his attendance record as it was summarised in the delegate’s decision.
The next question is whether the information provided by the applicant to the Tribunal when he gave the Tribunal a copy of the delegate’s decision, and the information that he gave the Tribunal during the hearing before the Tribunal, was materially the same as the information contained in the attendance records.
The parties accepted that the document referred to by the Tribunal as the applicant’s attendance records was the document contained at page 20 of the court book. It is arguably not an attendance record, because it does not state each date and time when the applicant was required to attend and state whether the applicant did or did not attend. Rather, it contains a month by month summary of how many hours the applicant was required to attend for each subject, and how many hours he did attend. For example, the record states that in February, the applicant attended zero out of three hours for the subject, Work with Colleagues and Customers, and two out of four hours for the subject, Follow Workplace Hygiene Procedures.
In any event, the “attendance record” contains a good deal more information than the conclusion that the applicant attended 29.7% of contact hours. However, the requirement in s.359A of the Act is to give “clear particulars” of the relevant information. Section 359A does not require every detail of the relevant information to be given to the applicant. It requires the gravamen of the information to be given to the applicant.
In the present case, the gravamen of the information in the “attendance record” was that the applicant had attended for 29.7% of scheduled contact hours. The applicant provided that information to the Tribunal himself. Therefore, the Tribunal was not required to give the applicant that information, under either s.359A or s.359AA of the Act.
The situation may have been different if the applicant had actually disputed his attendance. In that case, it may have been necessary for the Tribunal to give the applicant details of the dates and times of his scheduled attendance and actual attendance. However, that level of detail was not required in the circumstances of the present case.
Ground 1(d)
Grounds 1(b) and 1(c) in the amended application filed on
7 September 2009 were abandoned. Accordingly, the second ground of review in the amended application filed on 7 September 2009 is:
1.The decision of the Migration Review Tribunal (“The Tribunal”) was made without jurisdiction or is affected by error of law.
PARTICULARS
(d)The Tribunal breached section 359 of the Act in failing to make enquiries in respect of the applicant’s pre-existing back condition and in failing to obtain a qualified professional’s report in relation to the impact of the applicant’s grandfather’s death on his ability to attend classes between March and June 2007 and any clinical depression suffered in circumstances where the applicant was self-represented.
It is well established that it is for an applicant to make out his own case. The Tribunal is not obliged to make an enquiry that might assist an applicant unless the enquiry would be straightforward and would produce information that appeared to be readily available and relevant to a critical issue. In those circumstances, it would be unreasonable in the Wednesbury sense to fail to make such an enquiry.[2]
[2] Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 at [79].
The applicant argued the Tribunal should have obtained medical evidence about his back and psychological evidence about the impact of his grandfather’s death on the applicant’s ability to attend classes.
In relation to his back, the Tribunal asked the applicant if he had been to see a doctor: page 7 of the transcript. The applicant said:
a)initially, he did not know how to go and see a doctor;
b)there was one doctor who was very busy;
c)actually, it was the friend with whom the applicant was staying who was very busy; and
d)the applicant would take pain killers from Safeway.
From this evidence, it is by no means apparent that the applicant saw a doctor at the relevant time, such that there may have been contemporaneous medical records relating to his back. If the Tribunal had asked the applicant to see a doctor subsequently, it is not apparent that useful medical information could have been obtained about the state of the applicant’s back in semester 1 of 2007. I note that the Tribunal hearing took place on 9 January 2008. In the circumstances, I do not consider that there was readily available material relevant to a critical issue that would have been produced by a straightforward enquiry in relation to the applicant’s back.
In relation to the impact of his grandfather’s death in March 2007, the applicant acknowledged that he did not see a psychologist during semester 1 of 2007, being the time when his attendance was considered to be unsatisfactory. However, the applicant did see a psychologist, Mr Efremidis, on 10 and 22 April 2008. That was after the Tribunal handed down its decision on 29 January 2008.
Mr Efremidis provided a report, apparently for the purposes of these proceedings. The report is contained in the supplementary court book. The first respondent objected to the report being received in evidence on the ground that the report was evidence that was not before the Tribunal. The applicant said it was merely illustrative of the psychological evidence that the Tribunal could have obtained if it had made the appropriate enquiry.
The Tribunal did not know what any psychological report it might have sought would have said. Therefore, the fact that the applicant has now obtained a strongly favourable report is irrelevant to the question of whether it was unreasonable for the Tribunal to fail to seek one. Of course the Tribunal could have obtained a psychological report if it had asked for one. The question is whether the Tribunal’s failure to do so was so unreasonable that it fell into jurisdictional error.
The applicant did not ask the Tribunal to obtain a report. Accordingly, this is not a case where there was relevant and readily obtainable information which was identified by an applicant and which the applicant asked the Tribunal to obtain. However, the applicant argued that, because he was unrepresented before the Tribunal, the Tribunal had greater obligations towards him than towards a represented applicant. I do not accept that submission. The courts have said repeatedly that being unrepresented is not a privilege. However, I accept that the fact that the applicant was unrepresented is one of the matters to be taken into account in determining whether the Tribunal’s failure to make enquiries was reasonable.
At page 8 of the transcript of the Tribunal hearing, the applicant is recorded as saying that he felt “really, really depressed” and “was not well at all” after his grandfather died. However, at page 7 of the transcript, after speaking of his grandfather’s death and his other problems, the applicant said, “but now, I’m better.” The effect of this evidence was that the applicant no longer had any psychological problems.
That being so, it is difficult to see how a referral to a psychologist, at about the time of the Tribunal hearing, would have produced readily available information relevant to a critical issue. On the evidence before the Tribunal, any referral to a psychologist at that stage would have produced the information that the applicant was psychologically sound. At most, a psychologist could at that stage have said that the applicant reported having had various symptoms at an earlier time. The benefit of that evidence would have been negligible.
Accordingly, I do not consider that it was unreasonable, in the Wednesbury sense, for the Tribunal to have not made enquiries about the impact of the applicant’s grandfather’s death or the applicant’s back on the applicant’s ability to attend classes in semester 1 of 2007. Why Mr Efremidis was able to say that the applicant had a chronic major depressive disorder in April 2008, when the applicant had told the Tribunal a few months earlier that he was better, is a mystery.
Ground 1(e)
The third ground of review in the amended application filed on
7 September 2009 is:
1.The decision of the Migration Review Tribunal (“The Tribunal”) was made without jurisdiction or is affected by error of law.
PARTICULARS
(e)The Tribunal wrongly construed Regulation 2.43(2)(b)(ii)(B) or alternatively misapplied and/or asked itself the wrong question by not asking itself whether the Applicant’s non-compliance was not due to exceptional circumstances beyond his control.
Regulation 2.43(2)(b)(ii)(B) of the Migration Regulations 1994 requires the Minister to cancel a visa if the Minister is satisfied that non-compliance with condition 8202 was not due to exceptional circumstances beyond the applicant’s control.
The applicant noted that the Tribunal set out the correct test under regulation 2.43(2)(b)(ii)(B) of the regulations at [37] and [55] of its reasons for decision. In the first of those passages, the Tribunal said it must be satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. In the second, it said that it was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. The Tribunal repeated that statement in its conclusion at [57] of its reasons for decision.
However, the applicant noted that at [38] of its reasons for decision, the Tribunal said the test is whether the non-compliance was due to exceptional circumstances beyond the applicant’s control. The applicant also noted that at [54] of its reasons for decision, the Tribunal said that it was not satisfied that the circumstances put forward by the applicant constituted exceptional circumstances beyond the applicant’s control.
The applicant argued that the Tribunal thereby misunderstood or misapplied the test. The applicant argued that the passages at [38] and [54] of the Tribunal’s reasons for decision showed that the Tribunal erroneously required the applicant to positively satisfy the Tribunal that there were exceptional circumstances beyond his control. Alternatively, the applicant argued that the passages at [38] and [54] showed that the Tribunal erroneously regarded the Tribunal being satisfied that there were not exceptional circumstances beyond the applicant’s control as being the same thing as being not satisfied that there were exceptional circumstances beyond the applicant’s control.
I do not accept this submission. The Tribunal began and ended with the correct test. The looseness of language along the way does not amount to jurisdictional error.[3] The Tribunal did not impose an onus on the applicant. The Tribunal simply concluded that there were no exceptional circumstances beyond the applicant’s control that led to his unsatisfactory attendance rate. It followed that the Tribunal was not satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control.
[3] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and NABB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 225 at [21] – [25].
Ground 2
The fourth ground of review in the amended application filed on
7 September 2009 is:
2.The Tribunal acted without jurisdiction in that it had no material on which to base its exercise of power or its decision.
PARTICULARS
The Tribunal based its decision on the assumption that the applicant had to meet Condition 8202(3)(a) but that (sic) applicant was not required to do so because there was no evidence from which the Tribunal could conclude that the education provider kept attendance records.
Condition 8202(3)(a) in Schedule 8 to the Regulations provided at the relevant time that a visa holder whose education provider keeps attendance records must attend for at least 80% of scheduled contact hours for each term and semester of the course.
The applicant argued that the supposed attendance record at CB20 was not an attendance record because it did not specify the dates, times or durations of the various classes the applicant was scheduled to attend. There was no other document before the Tribunal that constituted an attendance record. Therefore, the applicant argued, the Tribunal could not have been satisfied that the applicant’s education provider did keep attendance records and therefore there was no basis on which the Tribunal could have required the applicant to comply with condition 8202.
I do not accept this submission. Obviously, the Tribunal is entitled to draw inferences. The Tribunal was entitled to infer from the existence of the document at CB20 that Kangan kept the primary documents that constituted attendance records and that enabled Kangan to prepare the summary that appears at CB20. The Tribunal was also entitled to infer from the fact that Kangan had sent the applicant a notice under s.20 of the Education Services for Overseas Students Act 2000 (CB6) stating that he was in breach of condition 8202(3)(a) and had attended only 29.7% of the contact hours scheduled that Kangan kept attendance records that enabled the calculation to be made. The Tribunal was also entitled to infer from the email at CB15 from Kangan to the applicant, which states that “attendance records provided by the Hospitality Department” showed the applicant’s low attendance rate, that Kangan did in fact keep attendance records. The Tribunal was also entitled to infer from the document signed by applicant dated 12 April 2007 in which he states that he understands that his attendance was below 80% (CB17) that Kangan kept attendance records.
Of course, the Tribunal could not have properly drawn such inferences if there was cogent evidence to the contrary. But there was not. The applicant never alleged that Kangan did not keep attendance records.
I consider that the Tribunal was correct to proceed on the basis that Kangan kept attendance records, even though those attendance records were not placed before the Tribunal.
Ground 3
The fifth ground of review in the amended application filed on
7 September 2009 is:
3.The Tribunal acted without jurisdiction in that it failed to have regard to relevant material or considerations.
PARTICULARS
The applicant gave evidence to the Tribunal that he was “depressed” by his grandfather’s death (Transcript (“T”) page 4, line 18; II. 7, 17; p. 9, II. 1-7). Despite this the Tribunal failed to consider and to determine whether the applicant was clinically depressed, and thus debilitated in such a way as to amount to “exceptional circumstances beyond the visa holder’s control” within the meaning of Regulation 2.43 (2)(b)(ii)(B). It thus failed to consider and to determine a potentially determinative relevant matter, an integer of the applicant’s claim, a substantive issue arising on the evidence and material before it. It thus failed to act within and to discharge its jurisdiction.
The Tribunal patently did consider the applicant’s claim to have been depressed. It said at [52] of its reasons for decision that policy indicated that exceptional circumstances beyond an applicant’s control did not include depression that was not clinically diagnosed by a qualified professional. The Tribunal considered that it was appropriate to apply the policy in this case. There was no evidence in this case that the applicant had been clinically diagnosed with depression by a qualified professional.
The applicant made some further submissions, ostensibly under this ground, to the effect that the applicant was denied a hearing because the Tribunal did not tell him he was entitled to challenge the evidence about his level of attendance and entitled to present evidence and arguments about the interrelationship between his reaction to his grandfather’s death and his level of attendance.
The fact that the Tribunal did not tell the applicant that he had the rights mentioned does not mean that he did not have an adequate hearing.
Conclusion
None of the applicant’s grounds has been made out. Accordingly, the application must be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Ashika Kanhai
Date: 1 December 2009
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