Khan v Minister for Immigration and Anor

[2013] FCCA 1782

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1782

Catchwords:
MIGRATION – Student visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision was affected by jurisdictional error by reason that the Tribunal denied the applicant natural justice, failed to conduct a genuine review and failed to consider all the evidence before it.

Legislation:
Migration Act 1958, ss.116, 359A, 422B, 424A, 425, 474
Migration Regulations 1994, reg.2.43, condition 8202 of sch.8
Education Services for Overseas Students Act 2000, ss.19, 20

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: MUHAMMAD JAWWAD KHAN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 557 of 2013

Judgment of: Judge Cameron

Hearing date: 28 October 2013

Date of Last Submission: 28 October 2013

Delivered at: Sydney

Delivered on: 7 November 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 557 of 2013

MUHAMMAD JAWWAD KHAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Pakistan who was granted a Student (Class TU) Subclass 572 Vocational Education and Training Sector visa on 27 May 2010. On 14 October 2011 a delegate of the first respondent (“Minister”) cancelled that visa pursuant to s.116 of the Migration Act 1958 (“Act”) on the basis that the applicant had breached condition 8202(3)(b) of sch.8 to the Migration Regulations 1994 (“Regulations”) because of poor attendance. The applicant applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. Subclass 572 visas are subject to condition 8202 which is found in sch.8 to the Regulations. At the time the applicant was granted his visa condition 8202 relevantly provided:

   …

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   …

   (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance 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.…

2. Section 116(1)(b) of the Act gives the Minister the power to cancel a visa where the visa holder has not complied with a condition of the visa. It relevantly states:

   116   Power to cancel

   (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (b)its holder has not complied with a condition of the visa; or

   …

   (3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

3. Regulation 2.43 of the Regulations sets out the prescribed circumstances referred to in s.116(3). At the time the applicant’s visa was cancelled by the Department, reg.2.43 relevantly provided:

   2.43      Grounds for cancellation of visa (Act, s 116)

   …

   (2)For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:

   …

   (b)     in the case of a Student (Temporary) (Class TU) visa:

   …

   (ii)     that the Minister is satisfied that:

   (A)the visa holder has not complied with condition 8202; and

   (B)the non‑compliance was not due to exceptional circumstances beyond the visa holder’s control.

4. The combined effect of s.116(1)(b) and reg.2.43(2)(b)(ii) is that a visa must be cancelled if the Minister is satisfied that the visa holder has not complied with condition 8202 and that the non-compliance was not due to exceptional circumstances beyond the applicant’s control.

Background facts

1. On 30 August 2011 the applicant’s former education provider, the Australian Institute of Commerce and Language (AICL), certified that he had not achieved satisfactory course attendance for his Advanced Diploma of Accounting. On that date the applicant was sent a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) in relation to his unsatisfactory attendance.

2. On 26 September 2011 the Minister’s department (“Department”) sent the applicant a Notice of Intention to Consider Cancellation of his visa. In response, the applicant’s representative submitted that the applicant had enrolled in a Diploma of Information Technology after successfully completing an eight-week English course, that despite passing many subjects in the Diploma, he found it very difficult to understand and that at the time of the submission he was registered with Pacific College to undertake an Advanced Diploma of Accounting.  The applicant’s representative admitted that the applicant had breached his visa requirements but submitted that the breach had been due to exceptional circumstances beyond his control.  It was submitted that the applicant had suffered from “severe mental depression” and was “not in a state to run his daily business as normal person”.  It was further submitted that the applicant’s mother had suffered a heart attack and that, as the applicant was very close to her, her health was a major concern for him.  The applicant’s representative submitted that the applicant was also “going through a messy break up” with his girlfriend and that this had compounded his problems and resulted in him suffering “deep depression” which had had a very bad effect on his health.  The representative also contended that the applicant would face hardship in Pakistan should he be unable to continue his studies in Australia as his current studies would be insufficient for him to gain any meaningful employment upon his return.

3. The following documents were provided as part of that submission:

   a)a copy of a certificate indicating that the applicant had completed an eight-week English for Academic Purposes course between 26 July 2010 and 24 September 2010 and a certificate indicating that his attendance at the course had been eighty per cent;

   b)a Confirmation of Enrolment from Pacific College for an Advanced Diploma of Accounting, commencing on 12 September 2011 and ending on 12 September 2013; and

   c)a psychologist’s report dated 26 September 2011 which stated that the applicant had a close relationship with his mother and had been considerably upset by her heart attack.  The report stated that he had been unable to visit his mother in Pakistan because of his financial circumstances and his mental condition was exacerbated when his relationship ended in April 2011.  The report also stated that after his mother’s heart attack the applicant began developing symptoms of depression and anxiety.  It stated that he stopped attending classes and when he received letters from his college he was too depressed to read them.

4. At the Department’s request, AICL provided documentary evidence indicating that the applicant’s attendance for his Advanced Diploma of Information Technology had been 48.75% for the fourth term of 2010 and 38.89% for the first term of 2011.  His attendance for the Advanced Diploma of Accounting had been 4.4% for the second term of 2011 and he had not attended at all in the third term of 2011.  AICL also provided copies of warning letters it sent to the applicant on 1 February 2011, 30 May 2011, 22 June 2011, 12 July 2011 and 28 July 2011.

Proceedings before the Tribunal

1. Immediately before the Tribunal hearing the applicant provided a statement in which he made the following additional submissions:

   a)at the end of February 2011 he spoke with the head of the academic section at AICL and told him that he wanted to study accounting instead of information technology;

   b)after his mother’s heart attack on 22 March 2011, he became very sad and suffered dizziness and poor appetite.  Because of financial difficulties he could not return to Pakistan;

   c)after his relationship with his former girlfriend broke down he felt very low, weak, hopeless and had trouble sleeping.  His friend had tried to help him after he received a letter from the college on 30 August 2011 but he felt depressed and had “sickness feelings”;

   d)on 20 September 2011, his friend took him to a psychologist and then to a solicitor.  The solicitor told him that he should pursue an appeal because he was a genuine student;

   e)he was then admitted to Pacific College; and

   f)at the time of the hearing his was studying a Certificate IV in Accounting at Australis College.

2. The applicant also provided a letter, dated 25 April 2011, stating that his mother was being treated for heart problems, hypertension and diabetes and a statement from Australis College (dated 12 December 2012) stating that he was enrolled in a Certificate IV in Accounting and that his current attendance was satisfactory.

3. The applicant appeared before the Tribunal on 17 December 2012 and provided the following additional evidence:

   a)his mother was hospitalised for about two and a half months after her heart attack, during which time she had an operation on her heart valves.  He wanted to go back to Pakistan to see his mother but was told by his brother that he should concentrate on his studies.  The family was also experiencing financial hardship;

   b)he had not liked the information technology course but started it because his mother and brother wanted him to do it so he could assist in the family’s business.  His attendance was low before his mother’s heart attack because he had had difficulties understanding the content as well as problems doing the assignments;

   c)he did not speak to anyone at the college at the time of his mother’s heart attack because it occurred before the start of the next session.  He also did not speak to anyone at the school about his mother’s health problems because he was too upset, he felt sick, he had had a “breakdown” and he had not been able to think properly;

   d)he did not see a doctor, counsellor or a psychologist between April and September 2011 because he had not been in a position to discuss his problems with anyone;

   e)his friends had supported him but they did not contact his education provider on his behalf. After he received the s.20 notice he got some advice from his friends. After receiving the notice, he was taken by one of his friends to see a doctor because he had no other option;

   f)he did not bother to read AICL’s warning letters properly because his mental condition had not been satisfactory;

   g)he could not attend his course at Pacific College because he could not concentrate and his mental condition was unstable.  He also could not work.  His friend tried to motivate him and took him to one or two classes but he could not concentrate;

   h)he attended a psychologist once only because he wanted to move on and continue with his studies in Australia.  His mother and brother wanted him to finalise his studies in Australia and return to work in the family business; and

   i)his relationship with his girlfriend broke down because his depression changed his behaviour towards her.

4. Following its hearing, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to comment on or respond to information relating to his unsatisfactory course attendance prior to his mother’s heart attack and his failure to respond to the warning letters sent to him. In a submission dated 1 February 2013, the applicant’s representative submitted that the applicant had been suffering from depression because of his personal circumstances and that exceptional circumstances beyond his control caused the breach of condition 8202.

5. On 12 February 2013, in response to an invitation from the Tribunal, the applicant submitted a statutory declaration dated 8 February 2013 declared by one of his friends. His friend declared that he had known the applicant since he began living with him in the first week of July 2010. He declared that the applicant commenced a course in Network Security after completing an eight week English course. He declared that the applicant told him in the middle of the term that he could not understand the course because he was not interested in studying network security. The applicant told him in February 2011 that he was going to change to an accounting course. He declared that the applicant’s mother had a heart attack on 22 March 2011 and the applicant was “really sad”. He tried to make the applicant happy but he became worse and worse and behaved like someone who did not have any idea what was going on around him. He declared that the applicant’s brother in Pakistan asked him to take care of the applicant. After the applicant’s condition worsened, the applicant’s relationship with his girlfriend ended. He declared that he took the applicant to a psychologist after receiving the s.20 letter and then to a lawyer to lodge an appeal.

The Tribunal’s decision and reasons

1. The Tribunal found that the applicant had breached condition 8202(3)(b). The Tribunal referred in this regard to AICL’s 30 August 2011 certification that the applicant had not achieved satisfactory course progress in the Advanced Diploma of Accounting pursuant to s.19 of the ESOS Act and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

2. Having considered the applicant’s claims individually and in combination, the Tribunal was not satisfied that the breach of condition 8202 was caused by the factors the applicant propounded or that those factors amounted to exceptional circumstances beyond his control.  In this regard:

   a)the Tribunal was of the view that the applicant’s failure to contact AICL to explain his non-attendance at any time prior to the certification was indicative of the fact that his mother’s heart attack and/or his break up with his girlfriend were not the cause of his non-compliance with condition 8202(3)(b). In this connection, the Tribunal considered the applicant’s claims about his mental health but was not satisfied that he had explained adequately why he did not contact AICL. The Tribunal considered that it was evident that the applicant had been on notice prior to his mother’s heart attack that his attendance was considered problematic. It also considered that had the applicant’s condition been as he had claimed, his friends would have helped him to notify AICL. The Tribunal also referred to the psychologist’s report provided by the applicant but did not accept that it satisfactorily explained why the applicant, either by himself or with the assistance of friends, was unable to telephone AICL to explain his situation. It also noted that the report was obtained several months after his mother’s heart attack and after he had been reported to the Department. It also did not accept that the statement from the applicant’s friend established that he was unable to assist the applicant earlier than he had and that he had only been able to do so after the s.20 notice issued;

   b)the Tribunal considered the evidence before it to indicate that the applicant had, before his mother’s heart attack and for a considerable time after, exhibited a pattern of poor attendance which indicated that his attendance problems were not caused by his mother’s heart attack and/or his break up with his girlfriend.  It considered that the applicant’s poor attendance whilst undertaking the Advanced Diploma of Accounting with AICL was typical of a pattern of behaviour both before and after those studies.  It accepted that the applicant might not have been interested in the subject matter of the Advanced Diploma of Information Technology and found it difficult but it did not accept that that provided a basis for him to not attend that course until he changed to a different one, given that he was in Australia on a visa with conditions requiring satisfactory attendance.  The Tribunal also noted the applicant’s poor attendance at Pacific College and did not accept that he had provided a satisfactory explanation for it;

   c)the Tribunal also had regard to the psychologist’s report submitted by the applicant which was obtained some six months after his mother’s heart attack and also after the s.20 notice issued. Whilst the Tribunal had regard to the submission of the applicant’s representative that a person might suffer from mental problems and only realise it later, it did not accept that the applicant could not have sought psychological assistance considerably earlier than he had, that he had had no support in Australia and that it was only several months after his mother’s heart attack that his friends had been willing to help him. Whilst the Tribunal accepted that the applicant would have been saddened and distressed by his mother’s heart attack and his inability to visit her, it considered that the evidence indicated a pattern of poor attendance prior to his Advanced Diploma of Accounting studies and that this had continued for some time after the cancellation. It did not accept that the psychologist’s report, obtained on the basis of one visit and on the basis of the applicant’s account of the problems from which he had suffered several months earlier, established that he was suffering from severe depression or psychological problems at the time of his non-compliance. In this connection, it also did not accept the assertions of the applicant’s friend concerning the applicant’s mental health which were contained in the statutory declaration submitted to it after the hearing; and

   d)whilst the Tribunal accepted that the applicant was then enrolled in a course, that his attendance was satisfactory, that he was pursuing his studies and that he might be disappointed by the effect of the cancellation on his future studies and prospects, the Tribunal was not satisfied that those factors caused the applicant’s non-compliance with condition 8202(3)(b). 

Proceedings in this Court

1. In his application commencing these proceedings the applicant alleged:

   1.RRT has erred in their decision, as given on 18/02/2013 As the applicants matter was not dealt in accordance with the principles of the natural justice, the learned member of the MRT did not apply the principles of procedural fairness.

   2.That the MRT has only addressed the issue which was raised by the DIAC regarding the criteria in Cl.8202(3)(b). MRT has not applied its own mind in this particular clause and as such the decision made by the MRT is wrong and without jurisdiction.

   3.MRT was bound to see the other circumstances and facts such as the applicants evidence which is available on the record as the applicant had undergone multiple kinds of the mental agony, the applicants mother had heart attack, which left a scar on the applicants life, the applicant produced all the evidence before the Tribunal by of the applicants evidence, no importance was given to all the material evidence placed by the applicant on the record.

   4.The applicant laid down all the sentimental and emotional breakdown as it happened with the applicant during the whole period, the applicants matter was not dealt in accordance with the principals of the natural justice, although the applicant has successfully completed some of his courses, the applicant has a zeal to get education from Australia, so as the applicant back in home earn a successful life with the all the ambitions ‘the applicant has still in his future eyes. The argue of studying the required education is within the hope of the applicant for a better prospective and future of the applicant life back in country of origin Pakistan.

   5.The Learned member of the MRT had due regard to the applicants psychologists reports, however, the learned member did not took in to considerations to all the documentary evidence, although all these different pieces of the evidence were not relied upon, whereas all the material evidence was and is important for the determination of the applicants  matter, applicant was entitled for a student visa the cancellation of the student visa in the circumstances of the case is very important, as this pertains to the future of the applicant. The applicant met almost all the criteria’s of not cancelling the applicants student visa. The cancellation of the applicants student visa was dealt in a very harsh manners. The cancellation of the student visa, calls for the application of the principals of the natural justice keeping in view the evidences of the applicant, the applicant appeared before the Tribunal and gave all the explanations, but the explanations and  all other materials were not taken in to the considerations, the applicant also submitted a  submission before the DIAC, the applicants submissions were brushed asided by the DIAC. The refusal by the DIAC is absolutely uncalled for and further the orders made by the MRT in this matter are absolutely unaddressed to the basic issue of meeting a requirement for resting by the MRT a student visa.

   6.The applicant had already applied for another course but the only fact remain that the applicant was not guided properly as the applicant had no legal assistance.

   7.However the applicant is fully entitled to take the advantage of the submissions made by the applicant before the DIAC and also the considerations were also required by the MRT, the MRT, only relies upon the information’s and the findings of the DIAC.  In the case of the applicant there were and there are so many important matters, the MRT did not addressed those issues. There was no bar in the resetting of the applicants student visa. The applicant has a arguable case, the cancellation of the applicants student visa has resulted, in the future of the applicant, the MRT as submitted above should have restore the applicants student visa. The cancellation of the student visa is therefore null and void as such the applicant requests that the applicant matter is arguable, and the judicial interference may kindly be allowed. The member of the MRT was bound to go into these questions of law and facts.

   8.There was no obstacle in the way of the granting visa/recalling the decision of the DIAC to cancel the student visa.

   9.That the MRT has only endorsed the DIAC delegate of the minister and failed to give their own reasoning’s and comprehensive findings on a question of law. Whereas it was pertinent on the part of the MRT to consider all these facts and circumstances.

   10.As per many Para of the MRT decision it is very interesting by noting down that the limiting exceptions not relevant to the above clauses/criteria are referred in the decision of the MRT.

   11.These clauses should have been discussed at large but the MRT in an arbitrary manner disposed of the review petition of the applicant.

   12.The applicant has an arguable case in this judicial review and the applicant requests that the honourable court may kindly interfere in this matter and applicant be given a chance to study and a visa may kindly be granted. The application for judicial review may kindly be accepted and the direction to issue DIAC to reconsider the applicants application for grant of a student visa.

1. At the hearing of this application the applicant also alleged that the Tribunal had not considered the psychologist’s report or the statutory declaration of his friend which he had submitted.

Ground 1

1. The common law duty to provide procedural fairness is, in the context of Tribunal reviews, codified by s.422B of the Act in the provisions found in div.4 of pt.7 of the Act of which ss.424A and 425 are arguably relevant to this case. Respectively, they relevantly provide:

   424AInformation and invitation given in writing by Tribunal

   (1)     Subject to subsections (2A) 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.

   …

   (3)     This section does not apply to information:

   …

   (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; …

   425Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

2. The information upon which the Tribunal relied in reaching its decision was in large part information which the applicant had supplied in writing to the Department or to the Tribunal for the purposes of the review and which therefore fell within the exceptions to the operation of s.424A(1) found in s.424A(3)(b) and (ba). To the extent that it was not, the Tribunal put such information to the applicant in a letter dated 29 January 2013 which complied with the requirements of s.424A(1). Consequently, no breach of s.424A is apparent.

3. As to s.425, the applicant was invited to a Tribunal hearing, which he attended. Further, matters relevant to the determination of the review, such as whether the applicant’s mother’s heart attack and the break-up of his relationship with his girlfriend caused his non-compliance with condition 8202, and whether exceptional circumstances beyond his control caused his non-compliance, were clearly in issue before the Tribunal. In the circumstances, no breach of s.425 has been made out.

4. It is not apparent that any of the other sections of the Act found in div.4 of pt.7 are relevant to this matter.

5. For the above reasons, the first ground of the application does not disclose jurisdictional error on the Tribunal’s part.

Ground 2

1. The allegation made in the second ground of the application, that the Tribunal did not conduct a review but simply echoed the delegate’s conclusions, is not made out on the facts.  As the summary of the Tribunal’s hearing and subsequent reasons set out above at [11]-[17] makes plain, it performed its own analysis of the evidence, which included evidence which had not been before the delegate, and reached a conclusion based on that consideration.  I am not persuaded that there is any reason to conclude that the Tribunal did anything other than conduct a bona fide and conscientious review of the delegate’s decision.

Ground 3

1. The third ground of the application alleged that the Tribunal failed to consider all the evidence before it.  The evidence to which the applicant referred in this allegation was, contrary to that allegation, considered by the Tribunal.  As the applicant did not identify any information which the Tribunal did not take into account, this allegation is not made out.

Ground 4

1. The fourth ground of the application alleged a denial of natural justice which, for the reasons given in relation to the first ground of the application, is not made out.

Ground 5

1. In the fifth ground of the application the applicant alleged that the Tribunal failed to have regard to all the evidence before it.  For the reasons already given, this allegation is not made out.

2. The fifth ground of the application also criticised the conclusion on the review reached by the Tribunal.  As noted earlier in these reasons, the Court is not empowered to review the merits of the applicant’s application to set aside his visa cancellation and for that reason this element of the fifth ground of the application does not disclose a basis upon which the Tribunal’s decision might be set aside.

Ground 6

1. The sixth ground of the application refers to the fact that at some point the applicant had no legal assistance.  This is not a basis upon which the Tribunal’s decision may be reviewed.

Ground 7

1. The seventh ground of the application appears to allege that the matters considered by the Tribunal were different or narrower than those considered by the delegate.  The summary of the issues addressed to the delegate and subsequently considered by the Tribunal, set out earlier in these reasons, demonstrates that this is not correct.  Consequently, the seventh ground of the application does not disclose jurisdictional error on the Tribunal’s part.

Ground 8

1. The eighth ground of the application made no substantive allegation against the Tribunal.

Ground 9

1. The matters raised in the ninth ground of the application have been considered earlier in these reasons and do not demonstrate that the Tribunal erred.

Ground 10

1. The tenth ground of the application alleged that the Tribunal referred to “limiting exceptions” which were not relevant to the applicant’s matter.  The applicant did not identify what these exceptions were or how reference to them by the Tribunal might have amounted to jurisdictional error.  Consequently, this ground discloses no basis upon which the Tribunal’s decision should be set aside.

Ground 11

1. The eleventh ground of the application alleged that the Tribunal dealt with the review in an arbitrary manner.  For the reasons given earlier in relation with the second ground of the application, this ground too is not made out.

Ground 12

1. The twelfth ground of the application made no allegation of error on the Tribunal’s part.

Submissions at hearing

1. Contrary to the applicant’s allegation at the hearing, the Tribunal did consider the statutory declaration of his friend which he had submitted to it and the psychologist’s report which he had submitted to the Department.  That discussion appeared in paras.68 and 69 of the Tribunal’s reasons and is relevantly summarised above at [17(c)].  This allegation is not made out on the facts.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 7 November 2013