KUMAR v Minister for Immigration
[2012] FMCA 365
•24 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 365 |
| MIGRATION – Review of Migration Review Tribunal – student visa – no matter of principle – application dismissed. |
| Migration Act 1958 (Cth), s. 116, 359A Migration Regulation 1994, r. 2.43 |
| Applicant: | RAKESH KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLC 1350 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 24 February 2012 |
| Date of Last Submission: | 24 February 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appearing in person |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the First Respondent: | Ms Symons of Counsel |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the Second Respondent |
ORDERS
The Applicant’s application for extension of time under section 477 of the Migration Act 1958 be refused and the matter be dismissed.
The Applicant pay the First Respondent’s costs fixed at $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1350 of 2011
| RAKESH KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(as revised from transcript)
This is an application for judicial review of a decision of the Migration Review Tribunal. The delegate of the Minister determined to cancel the applicant’s student subclass 573 visa under section 116 of the Migration Act. The visa had been granted on 18 December 2008. The cancellation occurred on 15 September 2010. The applicant sought a review of the Migration Review Tribunal’s decision of 22 July 2011 to dismiss his application. The relevant provisions are set out at paragraphs [6] and [7] of the review decision being contained in section 116 of the Act and regulation 2.43 of the Migration Regulations.
Under those regulations, a cancellation can only occur if the Minister is satisfied that the visa holder has not complied with condition 8202 and that non-compliance is due to exceptional circumstances beyond the visa holder’s control (see below):
2.43 [Grounds for cancellation of visa (Act, s 116)]
…
(2) …
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or
(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.
(emphasis added)
The facts of the case disclose that the applicant had missed a significant number of attendances at the course which he was undertaking, being a Certificate III course. On the provider’s evidence, his attendance was around 10 per cent. On the applicant’s own claims, his attendance was around 72 per cent. The Tribunal considered the evidence and made findings against the applicant on the facts with respect to his attendance.
The applicant also raised as a reason for his non-attendance a medical condition that he was suffering from (being piles or haemorrhoids). However, the Tribunal did not accept that that was sufficient to amount to exceptional circumstances.
The applicant seeks judicial review on three grounds, which are set out in his application:
1. The Tribunal failed to consider adequately or at all whether the alleged non compliance with condition 8202 was as a result of exceptional circumstances beyond [the applicant’s] control ie [the applicant’s] medical condition.
2. The Tribunal failed to investigate whether [the applicant’s] school was deficient in recording attendance percentage.
3. The Tribunal failed to accord [the applicant] procedural justice.
Ground 1
In this ground, the applicant alleges that the Tribunal failed to adequately consider, or to consider at all, his medical condition. It is difficult to see how such a submission can be made in light of the decision made by the Tribunal. The Tribunal clearly address this issue at paragraphs [50] to [51] of their decision where they say:
[50] The Tribunal has considered the applicant’s claim to have suffered from piles since about which he had consulted a doctor in India and for which he was prescribed medicines by that doctor. The applicant has claimed that his condition improved when he came to Australia but worsened in late 2009. He obtained medicines from India which helped but his condition again deteriorated. The evidence that the applicant suffered from the medical condition he described is limited: the prescriptions from India dated October and November 2008 and January 2009, barely legible, do not specify a medical condition; the medical certificate from Dr Anderson dated 13 April 2010 reported only what the applicant told the doctor making the certification that the applicant had been unfit from 2 February to 6 March 2010 of very limited evidentiary value; and the applicant has not taken up the opportunity provided to him to provide the Tribunal with further medical evidence.
[51] In light of all of the evidence, the Tribunal does not believe that the applicant suffered from piles to the degree he has claimed nor that it affected his attendance as he has described. The Tribunal considers that his medical condition has been invented or at best exaggerated. In coming to this view, the Tribunal has had regard to the applicant’s failure to provide further evidence about his condition. Even if the applicant suffered from piles, he has said that he did so for some years and was able to take medication to control the problem. This indicates that it was not exceptional nor beyond his control to address.
The court book contains documents that are referred to therein, such as the medical certificate from a doctor in Queensland stating that the applicant was “unfit for duty” between 2 February and 6 March. The certificate does not set out what the actual extent of the difficulties were other than describing it as “bleeding haemorrhoids” and whether or not that would make him unable to attend classes of two days a week that he was scheduled for as opposed to being unfit for duty in a job that might require eight hours a day manual work.
The Tribunal sought clarification from the doctor and was advised (as it appears at court book page 153) that the doctor’s certificate was not actually the doctor’s opinion as appears on the face of the certificate but what the doctor had been told by the applicant (that is, the doctor had not witnessed the symptoms himself). In any event, the material of the doctor does not explain sufficient absences to allow the applicant to succeed in his case. The applicant also provided some limited material from India which is discussed by the Tribunal and provides no real assistance.
In these circumstances, I am not able to see how it can be said that the Tribunal failed to consider adequately, or at all, the issues surrounding the applicant’s medical condition.
At the hearing before me the applicant tendered a number of further documents which were notes from clinics or doctors in India, largely surrounding his medical condition in 2008. There are a number of difficulties with this. First, the process of judicial review is not a merits review. It is not for me to review facts of the case. Secondly, it does not seem that these documents, of themselves, bear directly on the issue that the Tribunal had to determine which related to his medical condition during the timeframes of the absences. For these reasons, I am not satisfied that those documents are, in fact, admissible before me on a judicial review proceedings and, even if they were, that they would demonstrate error on the part of the Tribunal.
Ground 2
The second ground claims that the Tribunal failed to investigate the claims by the education provider as to the attendance records of the applicant in his automotive mechanical technology (light vehicles) course. It is clear that the Tribunal raised this as a significant issue and focused upon it in their decision. The Tribunal said:
[52] The applicant has stated that he attended 72% of classes in the first semester and that he was told this by the college receptionist. He said he had attended a lot of classes and signed in at the beginning and out at the end although he was sometimes late. The applicant claims that he informed the college about his medical condition in February 2010 and that he tried to attend when he could. This evidence from the applicant is not readily reconciled with information from the college which states that the applicant attended 10% of classes in 2009 (the reporting period was between 17 August to 5 December 2009) and no classes in 2010 (the reporting period was 1 to 27 February). Attendance records were put to the applicant pursuant to s.359A of the Act and again he stated that he attended far more often that the college records show. Apart from the applicant’s assertion that he did so, there is no evidence that he provided any information to the college about his medical condition and its impact on his attendance.
[53] The Tribunal found it significant that the applicant was unable to recall the days on which his classes in the Automotive Mechanical Engineering course took place. Vocational Studies - Australia’s records of the applicant’s attendance showed that classes took place on Thursdays and Fridays. The applicant said classes were on three days a week: Tuesdays, Wednesdays and Thursdays. When the Tribunal informed the applicant that it was its understanding that classes took place on Thursdays and Fridays, he said that Tuesdays were tutoring classes and Thursdays were practical classes which he always attended and that he sometimes went on to Friday and that practical classes took place on Fridays for two or three hours. When the Tribunal put to him information it had about the weekly schedule of classes, the applicant said he had forgotten but that he had always attended Tuesday classes.
[54] Having regard to the college’s records and the applicant’s inability to recall the days on which classes took place, the Tribunal considers that the weight of evidence is against the applicant’s account of his attendance record at Vocational Studies – Australia between August 2009 and February 2010. The Tribunal does not believe he attended much more often that the records show as he has claimed.
This is not a case where the Tribunal have simply accepted a written claim on its face from the education provider but, indeed, have sought clarification and confirmation from the education provider as appears at various pages in the court book (court book, pages 164, 171, 172, 216 and 219). The Tribunal had also put these matters to the applicant to enable him to squarely answer them if he saw fit. Notably, the process of compiling attendance records by this institution, as appears at page 219 of the court book, was that students were required to sign in and sign out each training session.
Therefore, this was not a record kept primarily by a lecture or a tutor ticking off a class roll. A student had an obligation to sign in and sign out. In submissions before me, it appears that the applicant accepted that the Tribunal’s finding of fact relating to his 10 per cent attendance was, in fact, correct despite his claim of 72 per cent attendance before the Tribunal. Regardless of that, however, the Tribunal have clearly turned their mind to the issue, they have made reasonable inquiries and have given the applicant a proper opportunity to be heard.
In these circumstances, I am not persuaded that the Tribunal failed to investigate the attendance issue nor that what they did do was inadequate in a way that would attract judicial review. Indeed, it seems to me that they have taken more than reasonable steps in the circumstances of this case to have material before them.
Ground 3
The applicant alleges that the Tribunal failed to accord him “natural justice”. In this case, the Tribunal clearly identified issues to the applicant in a s.359A letter, a copy of which appears in the court book at page 238. This letter is lengthy and sets out in detail the material and information that may be relevant. It addresses the medical condition, the attendance rates and even issues about whether or not the education provider’s warning letters to the applicant had reached him. The applicant sought an extension of time within which to respond and was granted this. It appears at court book pages 270 and 279.
The extension letter was in the most general terms and I see no error on the part of the Tribunal for granting only a limited extension in those circumstances. The applicant, today, raised an argument that he wanted to get more medical material from India. His extension letter did not identify that to the Tribunal nor a reasonable timeframe in which he would have that material. I see no error by the Tribunal in this regard.
Other matters
Counsel for the Minister, no doubt mindful of the obligations to be a model litigant, points out that paragraph [9] of the decision is in less than exact terms, from a lawyer’s perspective, compared to the actual regulations. Paragraph [9] says:
[9] In broad terms, the questions that arise for consideration under r.2.43(2)(b)(ii) are (A) whether the applicant failed to comply with condition 8202; and if so (B) whether the non-compliance was due to exceptional circumstances beyond the applicant’s control. (emphasis added)
The actual wording of the section is somewhat more convoluted as set out above. It seems to me that the Tribunal member was simply attempting to identify the broad nature of the key issues (and in fact, the paragraph begins with “in broad terms”) and put what is a difficult section to read into somewhat plainer English. However, when coming to actually determine the matter and consider the precise tests to be applied, it is clear that the Tribunal member focused on the exact legal terms in the regulations. This appears, firstly, at paragraph [14] where the Tribunal member says:
[14] If the Tribunal is satisfied that the applicant did not comply with condition 8202, the issue that arises under r.2.43(2)(b)(ii)(B) is whether it is satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. This requires a positive state of mind on the part of the decision maker that there are no relevant exceptional circumstances: Khant v MIAC [2009] FCA 1247 at [70]. (emphasis added)
And later when the Tribunal member makes their ultimate finding, at paragraph [57]:
[57] For the reasons given above, the Tribunal is satisfied that the applicant has not complied with condition 8202 and the ground for cancellation in s.116(1)(b) therefore exists. The Tribunal is further satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. In accordance with s.116(3) of the Act such circumstances are prescribed circumstances in which the visa must be cancelled. (emphasis added)
When viewing the Tribunal decision as a whole, I am not persuaded that the Tribunal erred in applying the appropriate test in this case, given the statements that were made later in the decision. I, therefore, find that this is not a basis upon which the applicant can succeed.
Conclusion
Having regard to my findings with respect to the substantive matter, there is no prospect of the applicant succeeding in his application for judicial review. In these circumstances, as his application was filed out of time and he requires an extension of time, it seems to me that there is no point in granting such an extension. Therefore, I refuse his application for an extension and dismiss the proceedings.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 2 May 2012
0
1
2