Khan v Minister for Immigration
[2009] FMCA 867
•9 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 867 |
| MIGRATION – Visa – cancellation of Subclass 573 (Higher Education Sector) – Condition 8202 – contact hours – attendance records – jurisdictional fact – certiorari – mandamus. |
| Migration Act 1958 (Cth) ss.116, 476 Migration Regulations 1994 (Cth) Reg. 1.03, Schedule 8, subclause 8202(3)(a) |
| Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 Brar v Minister for Immigration & Anor [2008] FMCA 1026 Tongburin v Minister for Immigration & Anor [2008] FMCA 644 Qui v Minister for Immigration & Anor [2008] FMCA 787 Minister for Immigration & Citizenship v Brar [2009] FCAFC 53 followed |
| Applicant: | MOHAMMAD ADNAN KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2635 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 August 2009 |
| Date of Last Submission: | 18 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr Potts |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
An order in the nature of certiorari is to issue quashing the decision of the Migration Review Tribunal signed on 11 September 2008 and handed down on 12 September 2008 affirming the decision to cancel the Applicant’s Subclass 573 (Higher Education Sector) visa.
An order in the nature of mandamus is to issue requiring the Migration Review Tribunal to determine the Applicant’s application for review of the decision to cancel his Subclass 573 (Higher Education Sector) visa according to law.
The First Respondent is to pay the Applicant’s costs fixed in the sum of $6,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2635 of 2008
| MOHAMMAD ADNAN KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant in this case seeks judicial review of a decision of the Migration Review Tribunal signed on 11th September and handed down on 12th September 2008, affirming the decision of a delegate of the Minister to cancel the Applicant’s Subclass 573 (Higher Education Sector) visa.
By his amended application, filed on 26th November 2008, the Applicant seeks:
a)A writ of certiorari quashing the Migration Review Tribunal’s decision;
b)A writ of prohibition and/or an injunction to restrain the Minister from acting upon the Tribunal’s decision;
c)A writ of mandamus remitting the matter to the Tribunal for reconsideration and redetermination according to law; and
d)A declaration that sub-clause 8202(3)(a) of Schedule 8 of the Migration Regulations 1994, as that provision existed prior to 1 July 2007, does not apply to the Applicant.
Background
The Applicant, a citizen of India, arrived in Australia on 8th August 2005 on a Subclass 573 (Higher Education Sector) visa. He was granted a further visa of that type on 16th August 2005, which was valid until 31st August 2009.
The Applicant was enrolled in two courses with Insearch Limited (trading as Insearch UTS):
a)Foundation Studies Certificate IV in Design Architecture and Building; and
b)Academic English (Intermediate to Advanced).
On 20th March 2006 the Department of Immigration and Multicultural Affairs gave a Notice of Intention to Consider Cancellation to the Applicant, advising him:
It has come to the Department’s attention that there may be grounds for cancellation of your visa under section 116 of the Migration Act 1958 because you have failed to comply with condition 8202 on your Student Visa.[1]
[1] See Court Book at 9
The notice advised that the particulars of the breach were:
Failure to Meet 80% Attendance
The Insearch limited (trading as Insearch UTS) has determined that in the semester running from 20/02/2006 to 15/03/2006 you attended 0% of the contact hours scheduled. As a result, you have failed to comply with condition 8202(3)(a) of your student visa.[2]
[2] Court Book 10
The notice was reissued on 4th April 2006.
In a facsimile message dated 22nd March 2006 Insearch advised the Department that the Applicant had attended 67.14% of the Foundation Studies course (allowing for medical certificates) and 68.75% of the English course.[3]
[3] Court Book 15
On 3rd May 2006 a delegate of the Minister cancelled the Applicant’s visa for these reasons:
I am satisfied you have breached Cond. 8202 by failing to maintain satisfactory attendance in Semester 3 (10/10/05 – 4/2/06) & by not achieving an academic result for Semester 3 that is certified by the education provider to be satisfactory.[4]
[4] Court Book 28
Application for Review to the Migration Review Tribunal
The Applicant applied to the Migration Review Tribunal on 8th May 2006 for review of the delegate’s decision.[5]
[5] Court Book 30-36
The Tribunal wrote to Insearch on 10th August 2006, requesting the provision of information about the Applicant’s attendance.[6] Insearch replied on 18th August 2006 with some 80 pages of material.[7]
[6] Court Book 59-60
[7] Court Book 62-146
The Tribunal made a decision on 26th September 2006, affirming the decision to cancel the Applicant’s Subclass 573 Higher Education Sector visa.[8]
[8] Court Book 168-178
The Applicant sought judicial review of that decision and on 11th April 2007 Raphael FM made orders by consent quashing the decision and issuing a writ of mandamus directed to the Tribunal requiring it to reconsider and determine the matter according to law.[9]
[9] Court Book 179
The Tribunal invited the Applicant to attend a second hearing and he gave evidence on 1st August 2007.[10]
[10] Court Book 212
On 24th August 2007 the Tribunal handed down a decision signed on 6th August, again affirming the decision to cancel the Applicant’s Subclass 573 visa.[11]
[11] Court Book 205-216
The Applicant again sought judicial review of the Tribunal decision in the Federal Magistrates Court and on 13th February 2008 I made orders by consent issuing writs of certiorari and mandamus, quashing the decision and directing the Tribunal to reconsider and determine the matter according to law.[12] A note to the consent orders stated:
The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error, having regard to the recent Full Court of the Federal Court decision in Dai v Minister for Immigration and Citizenship [2007] FCAFC 199.[13]
[12] Court Book 217
[13] Ibid
The Tribunal wrote to the Applicant on 6th March 2008, inviting him to attend a hearing on 14th April 2008.[14] The hearing was rescheduled to 30th April 2008[15] and the Applicant attended with his adviser and gave evidence.[16]
[14] Court Book 220
[15] Court Book 230
[16] Court Book 236
The Migration Review Tribunal Decision
The Tribunal signed its decision on 11th September 2008 and handed the decision down the following day. The Tribunal affirmed the decision to cancel the Applicant’s Subclass 573 (Higher Education Sector) visa.[17]
[17] Court Book 273
In its Findings and Reasons, the Tribunal began by stating that as a result of the decision in Dai v Minister for Immigration and Citizenship[18] “there is no power to cancel a student visa for a breach of condition 8202(3)(b) as it stood prior to 1 July 2007. The focus of this review is therefore on whether the Tribunal is satisfied that the applicant did not comply with condition 8202(3)(a) as it stood prior to 1 July 2007, relating to satisfactory attendance.[19]
[18] supra
[19] Court Book 284 at [54]
The Tribunal then considered recent decisions of this Court as to whether the reasoning in Dai v Minister for Immigration and Citizenship applied equally to condition 8202(3)(a) as it stood prior to 1 July 2007. It noted that in Brar v Minister for Immigration & Anor[20] Driver FM had held that it did but that in two earlier decisions, Tongburin v Minister for Immigration & Anor[21] and Qui v Minister for Immigration & Anor[22], Barnes FM and I had respectively decided to the contrary. The Tribunal decided to follow the decisions in Tongburin and Qui.[23]
[20] [2008] FMCA 1026
[21] [2008] FMCA 644
[22] [2008] FMCA 787
[23] Court Book 284 at [55]-[57]
In its Findings and Reasons the Tribunal found that what Insearch referred to as Term 7 of the Academic English course constituted a complete course for the purposes of condition 8202(3)(a). The Tribunal stated:
I find that Insearch kept attendance records as required by condition 8202(3)(a) although, as the applicant’s representative noted, those records were not as detailed for the Academic English course as they were for the Foundation Studies course. I accept on the basis of the information provided by Insearch that the applicant attended only 68.75 per cent of the contact hours scheduled for the course and that in calculating the applicant’s Insearch took into account the fact that the applicant had started the course a week late as it stated in its letter dated 18 August 2006. I therefore find that the applicant did not comply with condition 8202(3)(a) because he did not attend for at least 80 per cent of the ‘contact hours’ scheduled for the course.[24]
[24] Court Book 286 at [66]
The Tribunal then turned to the Foundation Studies course and accepted on the basis of the information provided by Insearch that the Applicant attended only 67.14 per cent of the contact hours scheduled for Semester 3 of that course. The Tribunal found “that the applicant did not comply with condition 8202(3)(a) because he did not attend for at least 80 per cent of the ‘contact hours’ scheduled for the Foundation Studies course.[25]
[25] Court Book 287 at [72]
For those reasons, the Tribunal found that there was a ground for cancellation of the Applicant’s visa in accordance with s.116(1)(b) of the Migration Act.[26]
[26] Ibid at [73]
Under the heading “Exceptional circumstances” the Tribunal then considered whether the Applicant’s non-compliance with condition 8202(3) was due to exceptional circumstances beyond his control. The Tribunal considered the following matters:
a)The Applicant’s argument that Insearch must have made an error in failing to take account of his late start to the course;[27]
b)The Applicant’s argument that his non-compliance with condition 8202(3)(a) in relation to the foundation Studies course was the result of his being wrongly advised by an academic adviser at Insearch;[28]
c)The Applicant’s statement that he had been “very upset and depressed” because of the accidental death of his fiancée in India;[29]
d)The evidence of the Applicant’s cousin at the first Tribunal hearing that the Applicant’s father had been ill;[30] and
e)The Applicant’s request that the Tribunal consider the hardship that it would cause his family if his visa were cancelled.[31]
[27] Court Book 288 at [74]
[28] Ibid at [75]
[29] Court Book 288-289 at [76]-[[80]
[30] Court Book 289 at [81]
[31] Ibid at [82]
The Tribunal was satisfied that the Applicant’s non-compliance with condition 8202(30(a) in relation to the Academic English course and the Foundation Studies course were not due to exceptional circumstances beyond the Applicant’s control.[32]
[32] Court Book 288 at [74] and 289 at [83]
The Tribunal found that the Applicant had not complied with condition 8202 and that the ground for cancellation in s.116(1)(b) of the Act existed and affirmed the decision to cancel the Applicant’s Subclass 573 (Higher Education Sector) visa.
Application to the Federal Magistrates Court
The Applicant commenced proceedings by filing an application and an affidavit in support on 13th October 2008. He filed an amended application on 26th November 2008. The hearing of the application was adjourned by consent on several occasions. The application was heard on a final basis on 18th August 2009.
In his amended application, the Applicant relies on this ground, which is in effect two grounds:
The second respondent erred in finding that sub clause 8202(3)(a) of Schedule 8 of the Migration Regulations 1994…, as that provision existed prior to 1 July 2007, applied to the applicant.
Particulars
(a)Sub clause 8202(3)(a) did not apply to the applicant because it was invalid.
(b)Alternatively, sub clause 8202(3)(a) did not apply to the applicant because:
(i) The provision only applied if the relevant education provider kept records of all contact hours scheduled for a course, or a term or semester of a course, and
(ii) The applicant’s education provider only kept partial records.
Submissions on behalf of the Applicant
Mr Karp of counsel appeared for the Applicant. He restricted his submission on Ground 1(a), that subclause 8202(3)(a) as it stood was invalid, to a formal submission that the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v Brar[33] is wrongly decided. That is not a matter that this Court can consider, as it is a decision on appeal from the Federal Magistrates Court and therefore binding on this Court.
[33] [2009] FCAFC 53
However, Mr Karp maintained the claim in Ground 1(b), that sub clause 8202(3)(a) is inapplicable to the Applicant because the Applicant’s education provider only kept partial records of attendance. The keeping of attendance records is necessary for subclause 8202(3)(a) to apply. Whether or not the education provider keeps attendance records is a “jurisdictional fact”.
It is further submitted that the Minister’s satisfaction depends on whether or not the visa holder attended 80% of the scheduled contact hours. The definition of “contact” hours in Reg. 1.03 encompasses all classes, including lectures, supervised study sessions and examinations set down for a course.
It follows, he submitted, that the education provider could not calculate attendance during contact hours if it did not keep full records of attendance. Thus, the Minister could not be satisfied that the Applicant had or not met the mandatory attendance requirement.
Submissions on behalf of the First Respondent
Mr Potts of counsel appeared for the Minister, the First Respondent. He submitted that the Court should not reach the conclusion that Insearch did not keep complete attendance records for all contact hours and therefore condition 8202(3)(a) was incapable of applying.
Mr Potts submitted that on 21st March 2006 the Department of Immigration and Citizenship requested that Insearch provide a percentage attendance rate for each term or semester as well as the total cumulative attendance.[34] Insearch did this, advising that the attendance for the Foundation Studies Course was 60% without medical certificates and 67.14% with medical certificates, and 68.75% for the English course.[35] If that had been the only evidence, the Tribunal would have been perfectly entitled to conclude that Insearch kept attendance records and to rely on those percentages.
[34] Court Book 13
[35] Court Book 15
The Tribunal wrote to Insearch on 10th August 2006, seeking additional information.[36] Insearch replied on 18th August 2006.[37] This response contained the statement upon which the Applicant now relies:
· During the period in question it was Insearch policy to record student attendance at tutorial sessions only.[38]
[36] Court Book 59-60
[37] Court Book 62-146
[38] Court Book 63 (number obscured)
Mr Potts submitted that the Applicant’s solicitors wrote to Insearch on 13th May 2008, seeking further details about attendance records.[39] Despite being given time to do so, the Applicant never provided any further material to the Tribunal as a result of those inquiries. (The Tribunal said in its Decision Record:
50.The Tribunal received no response from the applicant or his representatives. The Tribunal contacted the applicant’s representatives on 18 July and again on 21 July 2008 to check if such a response had been sent (in case it had gone astray in the mail). The applicant’s representatives said that a response would be sent the following day, 22 July 2008. No response having been received, the Tribunal again contacted the applicant’s representatives on 30 July 2008 and was told that they would respond that day. Once again no response was received…
51.In a submission handed to the Tribunal on 10 September 2008 the applicant’s representatives said that the applicant was very distressed and disappointed about his visa issues and that he believed that the Tribunal had believed what Insearch had provided rather than what he had said…
52.The applicant’s representatives did not refer in this context to the letter which they said they had faxed to Insearch on 13 May 2008 nor did they refer to any response which they had received from Insearch or any further correspondence or other communications which they might have engaged in with Insearch in an attempt to obtain a response to the letter faxed on 13 May 2008.[40])
[39] Court Book 247-252
[40] Court Book 283 at [50]-[52]
It was submitted on behalf of the Minister that the Tribunal ultimately concluded that, in respect of the English course, the Tribunal kept attendance records.[41] That was a conclusion open on the evidence. It is far from clear that the statement on which the Applicant relies was intended to apply to the English course. Even if it did, the statement is entirely ambiguous, such that it did not, in and of itself, prevent the Tribunal from being able to conclude on the evidence that Insearch kept attendance records.
[41] Court Book 286 at [66]
It was further submitted that in relation to the Foundation Studies course the Applicant had said before the Tribunal that his low attendance was because he had had to stop attending classes in two of his subjects.[42] He did not suggest that it was because of some record keeping issue.
[42] Ibid at [68]
Further, Mr Potts submitted that the passage in the facsimile from Insearch dated 18th August 2008, which is relied upon by the Applicant, is entirely ambiguous. It did not unequivocally establish that Insearch only kept partial records in the relevant period. Thus, it was submitted, the Tribunal was entitled, on the basis of the evidence before it, to conclude that Insearch kept attendance records and that the Applicant had only attended 67.14% of the contact hours for Semester 3 of the Foundation Studies course.
Accordingly, it was submitted on behalf of the Minister that this ground should be rejected and that the application should be dismissed with costs.
Conclusions
Clearly, the Applicant’s first ground, Ground 1(a), cannot succeed. The Applicant submitted that Subclause 8202(3)(a) did not apply to the Applicant because it was invalid. The Full Court held in Minister for Immigration & Citizenship v Brar[43] that subclause 8202(3)(a) was severable from subclause 8202(3)(b) and not invalid (per Stone J (with whom Greenwood and Besanko JJ agreed) at [17]).
[43] [2009] FCAFC 53
The Applicant has formally submitted that Minister for Immigration & Citizenship v Brar is wrongly decided, but that is not a matter for this Court. The decision is binding on the Federal Magistrates Court.
The Applicant’s Ground 1(a) must fail.
Ground 1(b) claims that subclause 8202(3)(a) did not apply to the Applicant because:
i)The provision only applied if the relevant education provider kept records of all contact hours scheduled for a course, or a term or semester of a course, and
ii)The Applicant’s education provider only kept partial records.
The statement from Insearch on which the Applicant relies is contained in the letter to the Tribunal dated 18th August 2008. The letter refers in its first bullet point to the Applicant’s attendance in Term 7 of the Academic English course and in its second to the Applicant’s attendance in the first semester of the Foundation Studies course.
The paragraph at the third bullet point says:
· During the period in question it was Insearch policy to record student attendance at tutorial sessions only.[44]
[44] Court Book 63
With respect, this statement is not ambiguous at all. The clear English meaning of that statement is that it refers to the two previous paragraphs, which cover a time period of 1st August to 2nd September 2005 and October 2005.
“Contact hours” are defined in Regulation 1.03:
contact hours, for a course for a period, means the total number of hours in the period for which students enrolled in the course are scheduled to attend classes for teaching purposes, course-related information sessions, supervised study sessions and examinations.
Thus, the statement by Insearch has the meaning that attendance at tutorial sessions only was recorded, which can only be taken to mean that attendance was recorded for only a part of the time. If it meant otherwise, what was the point of making the statement at all?
Subclause 8202(3)(a) as it stood at the time said:
A holder meets the requirements of this subclause of:
(a)in the case of a holder whose education provider keeps attendance records – the Minister 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; or
(ii)for a course that runs for at least a semester – for each term and semester of the course;
The keeping of attendance records for only a part of the course cannot allow a calculation of 80% of “contact hours” as defined. I agree with the submission that whether or not the education provider kept attendance records at the relevant time is a “jurisdictional fact”, an expression used to identify a criterion the satisfaction of which enlivens the statutory power or discretion in question. If the criterion not be satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required by the decision maker.
I respectfully agree with the submission by counsel for the Applicant that Insearch’s advice that its attendance records related to tutorials only does not bring it within the provisions of subclause 8202(3)(a) as it then was, which means that the provision cannot apply to the Applicant. Thus, the Tribunal’s decision was made without the necessary statutory authority.
I find that there is a jurisdictional error for that reason. The application will be granted.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 3 September 2009
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