Khan v Minister for Immigration and Border Protection

[2014] FCA 168

FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration and Border Protection

[2014] FCA 168

Citation:	Khan v Minister for Immigration and Border Protection [2014] FCA 168
Appeal from:	Khan v Minister for Immigration & Anor [2013] FCCA 1782
Parties:	MUHAMMAD JAWWAD KHAN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number(s):	NSD 2346 of 2013
Judge(s):	WIGNEY J
Date of judgment:	6 March 2014
Legislation:	Migration Act 1958 Migration Regulations 1994 Education Services for Overseas Students Act 2000
Cases cited:	Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
Date of hearing:	14 February 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	33
Appellant:	The appellant appeared in person.
Counsel for the First Respondent:	A B Douglas-Baker
Solicitor for the First Respondent:	DLA Piper
Second Respondent:	The second respondent filed a submitting notice save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2346 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MUHAMMAD JAWWAD KHAN
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	6 MARCH 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2346 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MUHAMMAD JAWWAD KHAN
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE:	6 MARCH 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Until relatively recently, Mr Muhammad Jawwad Khan, a citizen of Pakistan, was able to reside in Australia by reason of his holding a valid student visa.  As with most visas issued under the Migration Act 1958 (the Act), Mr Khan’s visa was subject to various conditions.  In October 2011, the Minister for Immigration and Border Protection (Minister) cancelled Mr Khan’s visa on the basis that he had failed to meet a particular condition.  That came about as a result of Mr Khan’s education provider certifying that he had not achieved satisfactory course attendance.  Mr Khan unsuccessfully applied to the Migration Review Tribunal (Tribunal) for a review of the decision to cancel his visa.  He then commenced proceedings in the Federal Magistrates Court, now the Federal Circuit Court, alleging jurisdictional error on the part of the Tribunal.  It is against the dismissal of this application by a judge of the Federal Circuit Court on 7 November 2003 (Judgment) that Mr Khan now appeals to this Court. 

2. For the reasons that follow Mr Khan’s appeal must be dismissed.

   Facts and Relevant Statutory Provisions

3. The particular visa that was held by Mr Khan was a Student (Temporary) Class TU Subclass 572 Vocational Educational and Training Sector visa.  Subclass 572 visas were at the relevant time subject to the conditions set out in the Migration Regulations 1994 (Regulations).  One of the conditions was condition 8202 which, as set out in Schedule 8 of the Regulations at the time, relevantly provided as follows:

   (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 …

4. 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 provides as follows:

   116Power 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.

5. The prescribed circumstances referred to in s 116(3) are set out in regulation 2.43 of the Regulations. At the relevant time, regulation 2.43(2)(b)(ii) of the Regulations provided that a circumstance in which the Minister must cancel a Student (Temporary) Class TU visa was if the Minister was satisfied that the visa holder had not complied with condition 8202 and the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

6. On 30 August 2011, Mr Khan’s education provider certified that he was not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act2000 (ESOS Act).  On the same day the education provider wrote to Mr Khan and advised him of this certification and of various options available to him should he wish to avoid the cancellation of his visa.  It does not appear that Mr Khan availed himself of any of these options.

7. On 26 September 2011, the Department of Immigration and Citizenship (Department) sent Mr Khan a notice advising him of the intention to cancel his visa by reason of his failure to comply with condition 8202 arising from the education provider’s certification.  The notice gave Mr Khan the opportunity to respond and give reasons why his visa should not be cancelled.

8. Mr Khan availed himself of the opportunity to respond to the notice and make submissions why his visa should not be cancelled.  He consulted a migration agent who sent a letter to the Department on 26 September 2011 that set out various reasons why Mr Khan’s visa should not be cancelled.  The letter enclosed various documents that supposedly supported or corroborated those reasons.

9. Despite the submissions made on Mr Khan’s behalf, on 14 October 2011 a delegate of the Minister decided to cancel Mr Khan’s visa.  The delegate notified Mr Khan accordingly.  In his decision record, the delegate indicated that he was satisfied that Mr Khan had not complied with condition 8202 and that he was not satisfied that non-compliance was due to exceptional circumstances beyond Mr Khan’s control.

10. Mr Khan then applied, as he was entitled to do, to the Tribunal for a review of the delegate’s decision.

11. Before the Tribunal, Mr Khan provided a written statement containing information and submissions.  In due course he gave oral evidence at a hearing convened by the Tribunal.  The information, evidence and submissions Mr Khan gave to the Tribunal were almost entirely directed to satisfying the Tribunal that his non-compliance with condition 8202 was due to exceptional circumstances beyond his control.  It is unnecessary to recite Mr Khan’s evidence and submissions in any detail.  His claims are set out in great detail at paragraphs [40]-[60] of the Tribunal’s reasons and are summarised at paragraphs [12]-[14] of the Judgment.  In very general terms Mr Khan claimed that his poor attendance was initially explicable by the fact that he did not like and was having difficulties understanding the Information Technology course he was initially enrolled in.  His later poor attendance record was explained by a period of mental anguish and psychological problems he claimed he experienced after his mother suffered a heart condition and following the breakdown of his relationship with his girlfriend.

12. Following the Tribunal hearing, the Tribunal wrote to Mr Khan and advised him of some information that the Tribunal considered may, subject to Mr Khan’s response, be part of the reason for affirming the decision under review. That information related to information provided by Mr Khan’s education provider concerning his course attendance, including the sending of warning letters and other matters. Whilst the letter does not say so in terms, the clear purpose of the letter was to ensure that the Tribunal complied with s 359A of the Act. Mr Khan, through his representative, responded to this letter and provided further submissions and a statement. There was further post-hearing correspondence between the Tribunal and Mr Khan’s representative concerning the taking of evidence from a witness. The Tribunal indicated that it would convene a further hearing if required to take that evidence. In response, Mr Khan, through his representative, provided a statutory declaration from the witness. He did not ask the Tribunal to convene another hearing.

13. Unfortunately for Mr Khan the Tribunal did not accept that the evidence given and tendered by him provided a true or satisfactory explanation for his poor attendance and

    
    

    non-compliance with condition 8202.  The Tribunal provided detailed and logical reasons for not accepting much of what Mr Khan had put forwarded as an explanation for his poor attendance.  It followed from the Tribunal’s findings of fact in relation to Mr Khan’s evidence and explanations that the Tribunal was not satisfied that Mr Khan’s breach of condition 8202 was due to exceptional circumstances beyond his control.  The Tribunal accordingly affirmed that delegate’s decision.

14. Mr Khan then commenced proceedings in the Federal Circuit Court alleging jurisdictional error on the part of the Tribunal in arriving at its decision.  In his application he set out twelve grounds said to constitute jurisdictional error by the Tribunal.  The grounds are lengthy, discursive and in some cases difficult to understand.  That is not intended to be a criticism of Mr Khan.  It is no doubt a product of the fact that he was not legally represented at this stage.

15. Two of the grounds relied on by Mr Khan in the Federal Circuit Court alleged that he was denied procedural fairness (grounds 1 and 4).  No particulars of the alleged denial of procedural fairness were provided by Mr Khan.  Other grounds alleged, in substance, that the Tribunal did not exercise its jurisdiction because it simply accepted or echoed the delegate’s decision and reasons (grounds 2, 7 and 9) or failed to consider evidence that was before it (grounds 3, 5 and 7) or acted arbitrarily (ground 11).  Other grounds (grounds 6, 8, 10 and 12) were either unintelligible or, however interpreted, either did not raise matters capable of amounting to jurisdictional error (even if accepted) or simply criticised the Tribunal’s findings of fact or the merits of its decision. 

16. The learned primary judge who heard Mr Khan’s application found that there had been no jurisdictional error on the part of the Tribunal and dismissed the application. 

17. In relation to the allegations of denial of procedural fairness, the primary judge observed that the common law duty of the Tribunal to provide procedural fairness to an applicant had been codified by provisions in the Act. Regrettably, the primary judge referred to sections in Division 4 of Part 7 of the Act that relate to the procedure to be adopted by the Refugee Review Tribunal. The corresponding provisions relating to the conduct of review by the Tribunal are found in Division 5 of Part 5 of the Act. They are in identical terms. The primary judge found that the relevant provisions and procedures set out in the Act for the conduct of reviews by the Tribunal had been complied with.

18. In relation to those grounds alleging that the Tribunal had not exercised its jurisdiction but had simply accepted or echoed the delegate’s decision and reasons, the primary judge found that the Tribunal had performed its own analysis of the evidence, including evidence which had not been before the delegate, and reached its own conclusion.  There was no reason or basis for finding other than that the Tribunal had conducted a bona fide and conscientious review of the decision made by the delegate.

19. The primary judge also rejected those grounds that alleged that the Tribunal had failed to have regard to evidence or had acted arbitrarily.  His Honour found that the Tribunal did have regard to all of the evidence that was before it.  Mr Khan had not proved otherwise.

20. In this Court Mr Khan relies on eleven grounds of appeal.  Regrettably, though again understandably given that Mr Khan remains unrepresented, those grounds are lengthy, discursive and not always easy to comprehend.  Many of them largely replicate grounds relied on by Mr Khan before the Federal Circuit Court.  Mr Khan also relies on an affidavit that he filed on the same day as his notice of appeal.  This affidavit contains submissions and argument relating to his grounds of appeal.  It contains no evidence, in the sense of fresh evidence, relevant to the appeal.  At the hearing of the matter Mr Khan confirmed that the affidavit should be read as his submissions and that it contains no fresh evidence.  Mr Khan also supplemented the submissions contained in his affidavit with oral submissions made at the hearing. 

21. Mr Khan’s notice of appeal contains grounds again asserting that the Tribunal denied him procedural fairness or natural justice (grounds 1, 2 and 9).  This assertion is repeated in Mr Khan’s affidavit.  Ground 1 of the appeal contends, in effect, that the Federal Circuit Court failed to address the issue whether he was denied natural justice.

22. Unfortunately, as was the case in the Federal Circuit Court, neither the notice of appeal nor Mr Khan’s affidavit shed any light on exactly how Mr Khan contends that the Tribunal failed to afford him procedural fairness or natural justice.  At the hearing Mr Khan was asked to specify how he says he was denied procedural fairness and to point to any evidence in support of his allegation.  In response, Mr Khan simply said that he had put everything in writing in his notice of appeal and affidavit.

23. The primary judge did deal with the question of procedural fairness in his judgments. The primary judge pointed out, correctly, that the Act codified the requirements of natural justice relating to the conduct of reviews by the Tribunal. As already indicated, however, the primary judge did so by erroneously referring to the provisions relating to reviews by the Refugee Review Tribunal, not the Tribunal. That error, whilst regrettable, is immaterial to the outcome of the appeal. That is because the provisions dealing with the conduct of reviews by the Tribunal and the provisions dealing with the conduct of reviews by the Refugee Review Tribunal that are referred to by the primary judge in the Judgment are identical. There is no authority or basis for any suggestion that Division 5 of Part 5 of the Act should be construed differently to Division 4 of Part 7 of the Act. Such authority as there is clearly indicates otherwise: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [60]-[70].

24. Perhaps more significantly, there is no basis whatsoever for any suggestion that there was any failure by the Tribunal to comply with any of the provisions in Division 5 of Part 5 of the Act. Indeed, Mr Khan did not allege any specific non-compliance with any of the provisions in Division 5 or any other provisions of the Act. What is more, even if the provisions of Division 5 of Part 5 did not effectively provide an exhaustive statement of the requirements of natural justice in respect of the conduct of reviews by the Tribunal, there is no basis for finding that any common law requirement of natural justice or procedural fairness was not met by the Tribunal in conducting the review in this matter. Indeed, the post-hearing correspondence between the Tribunal and Mr Khan’s advisors and the detailed reasons provided by the Tribunal demonstrate that the Tribunal conducted the review with scrupulous fairness.

25. Mr Khan’s grounds of appeal and submissions also repeat his contention, advanced in the Federal Circuit Court, that the Tribunal simply adopted or echoed the delegate’s decision and reasons (grounds 3, 4 and 10) and therefore failed to exercise its jurisdiction.  The grounds and submissions also repeat the contention and argument, also made below, that the Tribunal ignored evidence relied on by Mr Khan and otherwise acted arbitrarily (grounds 6 and 7).

26. These grounds and Mr Khan’s submissions in support of that have no merit.  They were correctly rejected by the primary judge for the reasons given in the Judgment.  A fair reading of the Tribunal’s decision reveals that the Tribunal carefully considered and addressed all the evidence relied on by Mr Khan, including evidence and other material that was not before the delegate.  The Tribunal’s treatment and analysis of the evidence and its findings and reasons are anything but arbitrary.  Whilst the Tribunal affirmed the delegate’s decision, there is no basis for the contention that it simply echoed or reflected the delegate’s reasons.

27. At the hearing of the appeal, Mr Khan specifically alleged that the Tribunal failed to consider the medical certificate relating to his mother’s heart condition and the evidence contained in the statutory declaration of his friend.  It is, however, clear from the Tribunal’s reasons, in particular paragraph [65], that the Tribunal did consider this evidence.  It just did not accept that it provided a reasonable and plausible explanation for Mr Khan’s poor attendance record.  Whilst Mr Khan’s notice of appeal and submissions are addressed in terms of the Tribunal ignoring or not considering evidence, in truth his contentions and submissions in relation to these matters, as well as the matters referred to in grounds 6 and 7 of the notice of appeal, amount to no more than complaints about findings of fact and the merits of the Tribunal’s decision.  The primary judge was correct to reject such arguments on the basis that even if they had any merit they did not in any event establish jurisdictional error on the part of the Tribunal. 

28. Appeal grounds 2 and 4 appear to allege that the cancellation by the delegate of Mr Khan’s visa occurred in circumstances where Mr Khan had been given no notice of the cancellation and no opportunity to comment.  This does not appear to have been an argument advanced below.  In any event, it has no merit.  The documentary evidence before the Federal Circuit Court plainly demonstrated that Mr Khan was sent a notice of intention to cancel his visa by letter dated 26 September 2011 and that Mr Khan’s representatives provided detailed written responses to the notice.

29. Appeal ground 4 also appears to allege that the relevant power to cancel Mr Khan’s visa was discretionary. To the extent that this argument is advanced by Mr Khan, it is incorrect and based on an erroneous construction of the combined effect of s 116(3) of the Act and regulation 2.43(2)(b)(ii) of the Regulation. As the primary judge correctly found (at [7] of the Judgment) the combined effect of these provisions 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. The Minister and the Tribunal on review were satisfied that there had been non-compliance with condition 8202 by Mr Khan and that this was not due to exceptional circumstances. As a result they were required to cancel the visa. There was no discretion involved.

1. Appeal ground 5, which appears to allege that the notice sent to Mr Khan by his education provider under s 20 of the ESOS Act was “without any legal force” was also not advanced below and also has no merit. Mr Khan advances no reasons why this notice was invalid. Nor does he indicate how the invalidity of this notice, even if made out, would affect the Tribunal’s decision. The breach of condition 8202 is founded on the certification by the education provider under s 19 of the ESOS Act. Mr Khan does not contend that the certification was invalid. Nor is there anything in the materials that would provide any basis for any such contention.

2. Finally, appeal grounds 8 and 11, to the extent they are able to be understood, do not allege any relevant error on the part of the primary judge or, for that matter, the Tribunal.  They provide no basis for any finding of error on the part of the primary judge.

3. A fair reading of the Tribunal’s decision and reasons and the material before it reveals that the Tribunal correctly construed and applied the relevant provisions of the Act and Regulations, considered the evidence and submissions advanced by Mr Khan, made findings open to it on the materials before it and otherwise exercised its jurisdiction as provided for and required under the Act. Mr Khan has not demonstrated that the Tribunal made any error, let alone any error that went to the exercise of its jurisdiction. The primary judge was correct to dismiss Mr Khan’s application as not revealing any jurisdictional error on the part of the Tribunal. Mr Khan’s appeal accordingly must be dismissed.

4. Mr Khan has not advanced any reasons why he, as the unsuccessful appellant in this matter, should not be required to pay the Minister’s costs.  Nor do there appear to be any such reasons.  Accordingly, Mr Khan should pay the Minister’s costs in relation to the appeal.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:

Dated:       6 March 2014