Kumar v Minister for Immigration & Anor

[2011] FMCA 741

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 741

MIGRATION – Migration Review Tribunal – student visa – validity of certification for the purposes of condition 8202 – power of tribunal to go behind certificate of unsatisfactory attendance - exceptional circumstances.

Education Services for Overseas Students Act 2000, ss.19(2), 20
Migration Act 1958, ss.116(1)(b), 116(3), 137J(2)(a)-(b)
Migration Regulations 1994, reg. 2.43, 2.43(2)(b)(ii), cl8202, cl8202(3)(b)

Alsunaid v MIAC [2011] FMCA 238

Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356
Chen v MIMIA (2005) 142 FCR 257
Hatcher v Cohn (2004) 139 FCR 425
Hossain v Minister for Immigration and Citizenship [2010] FCA 161
Luo v Minister for Immigration [2011] FMCA 160
Manokian v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 632
Mazumder v Minister for Immigration & Anor [2010] FMCA 76
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Mo v MIAC [2009] FMCA 1026
R v Kelly (Edward) [2000] 1 QB 198
Singh v Minister for Immigration & Anor [2009] FMCA 1261
Wang v MIMIA [2005] FMCA 918

Applicant: DEEPAK KUMAR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 442 of 2011

Judgment of: Jarrett FM

Hearing date: 3 August 2011

Date of Last Submission: 3 August 2011

Delivered at: Brisbane

Delivered on: 30 September 2011

REPRESENTATION

Counsel for the Applicant: Mr Burrow

Solicitors for the Applicant: Rajesh Gopal

Counsel for the Respondents: Ms Wheatley

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 3 June, 2011 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of six thousand dollars ($6,000.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 442 of 2011

DEEPAK KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Indian born student studying in Australia. He was granted a student visa in 2009. The Minister cancelled that visa in October, 2010 pursuant to s.116(1)(b) of the Migration Act 1958 because the applicant’s education provider certified that his attendance was below the level required by a condition of his visa.

2. In practical terms, the applicant seeks that the tribunal’s decision be set aside and that the second respondent be required to reconsider the decision according to law.

3. The issue at the heart of this application is whether the tribunal impermissibly restricted itself from considering the validity of a certificate issued by the applicant’s education provider.  The certificate is important because it is the trigger for a process under the Act which ultimately led to the cancellation of the applicant’s student visa.

4. The applicant argues that the tribunal should have examined the circumstances in which the certificate came to be issued so that its validity could be assessed.  Failure to permit itself to do that, the applicant argues, is an error of jurisdiction and requires, independent of any other matter, that the decision the subject of this application be set aside.

5. Alternatively, the applicant argues that the tribunal failed to carry out its task because it did not properly assess the circumstances in which the relevant certificate came to be issued and thereby determine if the applicant’s failure to meet a condition of his visa was occasioned by exceptional circumstances beyond his control.

The statutory framework

1. Section 116(1)(b) of the Act authorises the Minister to cancel a visa where the visa holder has breached a condition of the visa. Section 116(3) of the Act requires that the Minister cancel a visa if there exists prescribed circumstances in which a visa must be cancelled.

2. Regulation 2.43 of the Migration Regulations 1994 sets out the prescribed circumstances referred to in s.116(3) of the Act. Relevantly, for the applicant’s visa, reg. 2.43(2)(b)(ii) provides that the Minister must cancel a visa if the Minister is satisfied that:

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

   b)that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

3. Condition 8202 (found in Schedule 8 to the Regulations) relevantly provides:

   8202        (1)    The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   …

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

   (a)     …

   (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 Service for Overseas Students Act 2000; and

   (ii)     Standard 10 of the National Code of Practice for registration Authorities and Providers of Education and Training to Overseas Students 2007.

4. Section 19(2) of the Education Services for Overseas Students Act 2000 (Cth) requires the applicant’s education provider to notify the Secretary of the Department of Immigration and Citizenship of any breach of a prescribed condition of the applicant’s visa. Section 20 of the ESOS Act requires the applicant’s education provider to send him written notice of any breach by him of a prescribed condition of his student visa.

5. If a s.20 notice is sent and the applicant fails to respond as required by s.137J(2)(a) or (b) of the Migration Act 1958, the relevant visa is automatically cancelled: s.137J(2). If the visa holder responds to the s.20 notice in accordance with s.137J(2)(a) or (b) of the Migration Act1958 automatic cancellation is avoided but:

   a)the visa might nonetheless be cancelled pursuant to s.116(1) of the Act; and

   b)must nonetheless be cancelled in certain circumstances pursuant to s.116(3) of the Act.

6. The tribunal correctly, in my view, summarised the relevant enquiry in this matter in the following terms:

   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.

The certificate and the tribunal’s decision

1. The tribunal’s reasons for decision show that cancellation of the applicant’s visa was based upon a certification by the education provider dated 23 April, 2010.  The terms of the certificate are:

   Certification for the purposes of subclass 8202(3) of Schedule 8 of the Migration Regulations 1994

   Metro College of Technology [02726A] on 23 April 2010 certifies Mr DEEPAK KUMAR, for course Certificate III in Food Processing (Retail Baking – Cake and Pastry), as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).

   Mr Johnson Oyelodi
   CEO (Principal Executive Officer)
   Metro College of Technology…

2. That notice set in motion subsequent steps by the Minister, the first of which was the issue of a Notice of Intention to Consider Cancellation of the applicant’s visa.  After providing the applicant with an opportunity to give reasons as to why his visa should not be cancelled, on 14 October, 2010 the Minister’s delegate cancelled the applicant’s visa under s.116 of the Act and notified him of that decision.  The visa was cancelled on the basis that the applicant had not, as the holder of a Student (Temporary) (Class TU) visa, complied with cl.8202, specifically cl.8202(3)(b), of Schedule 8 of the Regulations . 

3. The applicant applied to a migration review tribunal for review of the delegate’s decision.  After a hearing attended by the applicant, on

   
   

   3 May, 2011 the tribunal affirmed the delegate’s decision to cancel the applicant’s visa. 

4. The tribunal was satisfied that the applicant had not complied with condition 8202 and therefore a ground for cancellation existed pursuant to s.116(1)(b) of the Act. Further, the tribunal took the view that the non-compliance with condition 8202 was not due to exceptional circumstances beyond the applicant’s control and his visa was required to be cancelled pursuant to s.116(3) of the Act.

The first ground of review

1. Before the tribunal, the applicant contended that the certificate issued by his education provider was invalid because it was based upon information that was inaccurate or erroneous.  It was not contended before the tribunal or before me that the nature of the inaccuracies and errors were important.  What was important was that the tribunal did not recognise and exercise a power to examine the validity of the education provider’s certificate.  The tribunal held at [44] of the reasons for decision:

   The Tribunal is unable to look behind the certification by the education provider.

2. The application before me has been argued by both parties on the basis that what the tribunal meant by the above sentence was that it was unable, as a matter of law, to look behind the certification.  Indeed, read in context of the tribunal’s broader reasons, that is the only sensible interpretation.

3. The applicant contends that the tribunal can and should have inquired into the validity of the certificate in this case.  That is to say – it could have and should have looked behind the certificate.

4. The tribunal considered that two authorities informed its view that it was unable to look behind the certificate issued by the education provider.  The first was Mo v MIAC [2009] FMCA 1026; the other was Alsunaid v MIAC [2011] FMCA 238.

5. In Mo Raphael FM defined the relevant issue concerning an education provider’s certificate in that case as follows:

   21. Before examining the alleged non-compliance of the education provider, it is necessary to consider the effect that these breaches, if established, would have on the decision to automatically cancel the applicant’s visa under s.137J. The applicant submits that the Minister may only act under s.137J if a notice is validly sent under s.20 of the ESOS Act and a s.20 notice may only be issued if a valid certificate under condition 8202 has been made. The applicant argues that the certificate issued in this case was not valid on the basis that the education provider did not comply with the procedures set out in standard 10 of the National Code. However, this assumes that the issuing of a valid notice is an essential preliminary to the decision-making process under s.137J. Perhaps more critically, it assumes that the issuing of a certificate by an education provider which has followed the standard 10 procedures is an essential preliminary to the issuing of a s.20 notice. The respondent submits that this is incorrect.

6. His Honour moved on to hold:

   24.    ... The legislative scheme has been designed so that education providers are responsible for collecting and reporting information relevant to the administration of the law relating to student visas; s.4A ESOS Act. The intention is to place the responsibility for monitoring students’ compliance with visa conditions on the education providers who are in the best position to do so. To suggest that the Minister should “go behind” a 8202(3) certificate is counter-productive to this purpose. The only task of the Minister is to determine that a certificate, on its face, is of a kind that engages condition 8202(3); Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356, Sackville J at [373].  The Minister was not required to enquire into the validity of either the certificate or the s.20 notice in order to exercise his power under s.137J.

7. The decision in Mo was reversed upon appeal, but not in a way that impugned anything set out in the above two paragraphs.  In the appeal, – Mo v Minister for Immigration and Citizenship [2010] FCA 162, and a related appeal Hossain v Minister for Immigration and Citizenship [2010] FCA 161 the issue was whether a breach of student visa condition 8202 engaged the notification provision set out in s.20(1) of the ESOS Act in light of the relevant legislation as it then stood. The consequence of a positive answer to that enquiry was that s.137J of the Migration Act1958 applied with the possibility of automatic cancellation of the relevant visa.  The primary decisions in both Mo and Hossain decided that s.20(1) of the ESOS Act was engaged in the circumstances. On appeal it was decided that it was not so engaged. But the decision on appeal in Mo said nothing of the passages to which I have referred above. The reasoning in the appeal was directed to the efficacy of the notice given pursuant to s.20 of the ESOS Act and not the certificate issued by the education provider pursuant to visa condition 8202.

8. At first instance in Mo, Raphael FM drew upon Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356 to reach his conclusion that: “The only task of the Minister is to determine that a certificate, on its face, is of a kind that engages condition 8202(3)”.  Bellaiche in turn drew upon Manokian v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 632. That case concerned an application for an aged parent visa which included the applicant’s son who had health problems. The application was refused on the basis that the son failed to meet the necessary health criteria. The applicant applied for review of that decision. The review was dismissed by the Immigration Review Tribunal. The applicant sought judicial review on the basis that the opinion of the Commonwealth Medical Officers (CMO) (upon which the failure to meet the necessary health criteria was adjudged) amounted to a decision that was reviewable by the tribunal. The judicial review application was dismissed. In reaching that result, Davies J explained:

   When the matter came before the tribunal for decision, two reports from Commonwealth Medical Officers (CMO) were before it.  In the opinion of both CMOs Mr Topalian did not satisfy the health criteria prescribed in cl 4005.

   The tribunal considered that it did not have power to review the opinion of the CMOs. The tribunal referred to earlier cases decided by the tribunal; Re Nelson, Re Papiannou and Re Doussa and it took the view that, in respect of the expressed opinions of the CMOs, “The tribunal is unable to go behind this decision”. The tribunal went on to hold, therefore, that it had no option but to affirm the primary decision.

   In my opinion, the approach taken by the tribunal was correct. The subject matter of the proceedings before the review officer and before the tribunal was a decision to refuse to grant a non-citizen a visa. In my view, the opinions of the CMOs, which I would accept to be decisions for the purposes of legislation such as the Act and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act), were not decisions refusing to grant a visa.

   Counsel for the applicant, Mr J R Young, put the submission that, in a case such as the present, the decision to refuse to grant a visa involves the making of two decisions, one by a CMO and one by an officer of the department and that both the officer of the department and the CMO participated in the making of the decision to refuse to grant a visa.

   In my opinion, however, the opinion of the CMOs cannot be given that categorisation. The function of CMOs is to determine whether certain health criteria which are specified in the public interest criteria of the regulations is satisfied. Their decision is not a decision refusing to grant a visa. The visa was refused in a decision made by the officer of the department. It was his powers which the review officer and subsequently the tribunal could exercise. The primary decision-maker had no power to go behind the certificate of the CMO that was before him, and in my opinion the Act gave no further power to the review officer or the tribunal to go behind that certificate.

9. In Alsunaid, the issues were described by Emmett FM as whether a breach of condition 8202(3)(b) was effected by notification to the Department by the applicant’s education provider that he had failed to meet attendance requirements, whether the Tribunal was obliged to investigate inaccuracies in the records of the applicant’s education provider and, whether notice of the applicant’s breach of condition 8202(3)(b) was given to the Department as soon as practicable.  The way in which her Honour dealt with the first two of those three issues is relevant in the application before me.

10. In the course of dealing with the first issue, her Honour pointed out:

    25.    However, since Dai, the Full Court of the Federal Court in [Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581] has unanimously held that the present form of condition 8202(3) has the result that the mere fact of certification by the education provider constitutes “non compliance by the (applicant) with his visa conditions”

    26.    The Full Court in Maan at 590 stated that it was not the actual non attendance by the appellant that was a breach of condition 8202(3).  Rather, it was the receipt by the Department of the certification from the education provider as to the appellant’s unsatisfactory course attendance.  The Full Court held that the Migration Review Tribunal had been correct to find that the certification constituted non compliance by the appellant with condition 8202(3).

    …

    28.    In the circumstances, the Tribunal was correct to find that the applicant had breached condition 8202(3)(b) of his student visa upon receipt by the Department of the certification from his education provider that he had failed to achieve satisfactory course attendance in his General English course in that the applicant attended less than the minimum requirement of 80%.  The applicant does not suggest that he attended more than 80% of his General English course.  Indeed, the bundle of documents identified as “Court Book”, filed on 21 December 2010 and marked Exhibit 1A, contained a letter dated 22 January 2009 from the applicant acknowledging that his attendance had fallen below 80% in respect of his General English course. 

11. It is clear enough from the decision in Mann  that it is the receipt by the Department of the certificate from the education provider as to the applicant’s unsatisfactory course attendance that causes Schedule 8, cl.8208(3)(b) of the Regulations to apply to the applicant.  Once that clause applies, the applicant no longer meets the requirements of Schedule 8, cl.8202 and for the purposes of reg.2.43(2)(b)(ii)(A) “has not complied with condition 8202”.

12. Both the decision in Mo (at first instance) and Alsunaid demonstrate that there is no requirement upon the tribunal to investigate the efficacy of the certificate issued by the education provider.  The remarks of Raphael FM in paragraph 24 of his Honour’s reasons set out above concerning the obligations on education providers find resonance in the judgment in Mann where the Full Court said:

    45.    The fact that it is the certification by the educational institution as to breach of its attendance policies which constitutes the breach by the student of the visa clearly imposes substantial responsibilities on the educational institutions. These responsibilities are reinforced by the criminal liability imposed on individuals for providing false or misleading information in relation to visa holders pursuant to s 19 and s 20 of the ESOS Act: s 108 ESOS Act.

1. Responsibility for certification clearly rests with the education provider.  The only task for a decision maker (the Minister or a tribunal) is to determine that a certificate, on its face, is of a kind that engages condition 8202(3).  The existence of the facts which underlie the certificate do not need to be determined by the tribunal. Were it to be otherwise, the certification process would become irrelevant and ineffective.  The inquiry by the Minister for the purposes of ss.116(1) or 116(3) and reg. 2.43(2) would become a broad ranging and perhaps cumbersome examination of the visa holder’s attendances and insofar as condition 8202(3)(a) is concerned, satisfactory academic performance.  It is apparent that the Legislature has intended to leave judgments about those matters to education providers.

2. The applicant argues that the above authorities, and in particular Mo, stand for the proposition that the tribunal is not required to go behind an education provider’s certificate, but may do so if the facts before it warrant such a course.  Indeed, the submission goes further to suggest that the tribunal must inquire into the circumstances of the issue of a certification if the applicant raises questions about the validity of a particular certificate.  To the extent that the submission suggests that there is discretion vested it the tribunal to examine the validity of an education provider’s certificate in any given case, I think the proposition is not sustainable on the authorities.

3. Moreover, as the first respondent points out, there is a consistent line of authority that a tribunal is not required to generally inquire into the circumstances of a visa applicant’s claims.  In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ pointed out at [24] – [25]:

   It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law …

   It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.

4. Here there is no failure to inquire into a critical fact.  The critical fact was not in issue.  That there had been certification by the applicant’s education provider, which on its face was of a kind that engaged condition 8202(3) was never in doubt.

5. Mo has been consistently followed in this Court on a number of occasions: Singh v Minister for Immigration & Anor [2009] FMCA 1261; Mazumder v Minister for Immigration & Anor [2010] FMCA 76 and Luo v Minister for Immigration [2011] FMCA 160. Insofar as the applicant submits that Mo and Alsunaid were wrongly decided and should not be followed, it has not been established that those decisions were clearly wrong.  I ought to follow Mo, Alsunaid, Singh, Mazunder and Luo unless it is demonstrated that those decisions are clearly wrong.  I am not persuaded that they are wrong, let alone clearly wrong.

Exceptional circumstances

1. The phrase exceptional circumstances is not defined in the Migration Act1958 or the Migration Regulations 1994. In Maan v Minister for Immigration the Full Court endorsed the following passage from Lord Bingham in R v Kelly (Edward) [2000] 1 QB 198 at 208 dealing with the phrase exceptional circumstances:

   "We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstances need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. "

2. The tribunal directed itself to the above passage, as well as other authorities of assistance on the construction of the phrase exceptional circumstances: Wang v MIMIA [2005] FMCA 918; Hatcher v Cohn (2004) 139 FCR 425 and Chen v MIMIA (2005) 142 FCR 257

3. In relation to the second ground of review the applicant argues that the tribunal’s decision “could not have been reasonably made that no exceptional circumstances existed given the contrary evidence, and absence of evidence against the Applicant’s evidence.  The evidence that was not properly taken into account was the certification of having completed the course requirements, the medical evidence, and the College and Departmental records.”

4. The applicant’s written and oral submissions reveal that there are two aspects to this ground of review. 

5. The first is that contrary to the approach with respect to the certificate issued by the education provider, the Minister and subsequently the tribunal gave no weight to “medical certificates or evidence associated with them, even where a reasonable explanation was provided to explain the actual application of those certificates”.

6. The applicant argues that the tribunal appeared to directly discount the validity or relevance of certain medical certificates provided by the applicant to the tribunal “on the basis that the applicant gave evidence that he did not take all days covered by the medical certificate off”.  
   He argues that the tribunal relied on no evidence to support its “peculiar” view that a student could not either, take only part of a day off, or could, regardless of illness, still attend class.

7. As to these matters, the Tribunal explained:

   51. The applicant provided the Department with 5 medical certificates covering, relevantly, 28 working days.  However, the applicant was adamant that he was prevented from attending his course due to illness for only a fraction of this period.  The Tribunal gave the applicant several opportunities to amend his evidence, and even went so far as to suggest to the applicant that minimising his non-attendance could have an adverse effect on his case.  The applicant continued to maintain that he had missed only 5 full days of his course and part of a further 7 or 8 days.  The information relating to the applicant’s absences from classes contained in the medical certificates is inconsistent with the applicant’s own evidence, and the Tribunal does not accept that the applicant was absent to the extent set out in the medical certificates.

   52. The Tribunal is unable to accept that the 5 full days and 7 or 8 part days that the applicant claims to have missed were all due to ill health.  The letter from the education provider provided by the applicant dated 4 February 2010 indicates that, as at that date, the applicant’s attendance from the term commencing on 20 January 2010 had fallen to 84.55%.  The period from 20 January 2010 to 4 February 2010 does not purport to be covered by any of the medical certificates.  This suggests that there was non-attendance by the applicant for reasons other than ill health.

   53. The applicant was unable to provide the dates that he missed due to illness, and the Tribunal has therefore not been able to correlate these dates with the dates set out in any of the medical certificates.  The Tribunal is therefore unable to be satisfied that any of the 5 full days and 7 or 8 part days missed by the applicant were due to illness.  This leads the Tribunal to conclude that the applicant’s attendance fell below 80% for reasons other than ill health.

8. The first respondent argues that this complaint by the applicant seeks only to attack the findings of the tribunal and the merits of its decision – ordinarily an impermissible course on this type of application.  Matters of weight and a consideration of the evidence are matters for the tribunal as the arbiter of fact.

9. I accept the first respondent’s submission that the tribunal considered the medical evidence in some detail (in addition to the passage extracted above) and weighed it against the applicant’s own evidence about his absences.  The tribunal considered the medical evidence, together with the applicant’s own evidence that he was not absent on every day for which he held medical certificates.  The tribunal accepted that the applicant was not absent to the extent set out in the medical certificates, as the applicant argued to the tribunal.   

10. The above reasons demonstrate that the tribunal attempted to reconcile the applicant’s evidence with the medical certificates and other evidence as to his absences but was unable to do so.  It is not to the point that another decision maker might have come to a different conclusion on the facts.  The tribunal concluded that the absences were for another reason, not illness. I accept the first respondent’s submissions that this finding was open to the tribunal.

11. The second aspect of this ground of review relates to alleged irregularities in the circumstance in which the education provider’s certificate was issued.  The irregularities asserted were:

    a.  That the applicant had been advised that the notice was in error;

    b.  That the applicant was advised to keep studying;

    c.  That the applicant kept studying;

    d.  That the education provider continued to permit the applicant to keep studying;

    e.  That the applicant had been certified as having completed the course;

    f.   By letter dated 4 February 2010, the Applicant’s attendance between 20/1/10 – 02/04/10 stating that his attendance for that latter period was 84.55% (sic);

    g.  The DIAC report clearly states the incorrect course details as having started ‘13/3/2010 with the last day as 25/3/2010' and the student having attendance at 64%. The report indicates further knowledge that the student had still been attending in April;

    h.  The PRISMS report indicates the incorrect dates and notes a variation;

    i.   It is in respect of the variation record, commencing 13/3/2010 and going to 4/6/2010, that 64.87% is listed (as at 23/4/2010) - and incorrectly states the student's last day of study as 25/3/2010;

1. The applicant argues that on their face, the records are inconsistent.  
   He argues that the conduct of the college is inconsistent with inadequate attendance.  He further argues that the tribunal ought to have accepted that these factors amounted to exceptional circumstances – the certificate was issued in circumstances in which it ought not to have been and over which he had no control.

2. The difficulty with this argument, however, is that:

   a)The certificate was issued on 23 April, 2010;

   b)The tribunal expressly rejected the applicant’s claim that he had been told the certificate had been issued in error;

   c)The letter dated 4 February, 2010 could not be evidence that for the period 20 January, 2010 to 2 April, 2010 the applicant’s attendance rate was 84.55%, given the date on which it was written or sent.  At best its evidential value in relation to the issue to be decided was neutral;

   d)The tribunal did not accept that simply because the applicant completed the relevant course of study, his attendance must have been at a level that was more than that required for the purposes of cl.8202(3)(b).  As the letter of 4 February, 2010 demonstrates, a particular rate of attendance may not be required for purposes other than visa conditions.  There was no other evidence before the tribunal about the attendance requirements of the course undertaken by the applicant.

3. The tribunal pointed out:

   "[49] The Tribunal does not accept as a matter of fact that the applicant was not warned about his attendance levels . ...

   [50] The Tribunal does not accept that the certificate was issued in error as claimed by the applicant. The applicant has provided no evidence from the education provider to this effect. The mere fact that the applicant completed the course does not prove that his attendance was greater than 80%. .....

4. Further, the tribunal’s reasons for decision record that at the hearing the applicant’s migration agent disputed that the records from the applicant’s education provider were accurate. As set out above, there were documents that indicated that his course ran from 13 March 2010 to 25 March 2010. There were records that indicated that his course ran from 13 March 2010 to 4 June,2010, and records that showed that his course ran from 13 July 2009 to 12 March 2010. The applicant’s original confirmation of enrolment indicated that his course started on 13 July 2010. There was a variation that took the finish date from 12 March 2010 to 23 July 2010. The tribunal dealt with the application on the basis that the course ended on 23 July 2010: see the tribunal’s reasons at [41].

5. I accept the first respondent’s submissions that insofar as anomalies in the above information are alleged to amount to exceptional circumstances, the tribunal considered those matters and rejected them. 

6. In this case, having rejected the applicant’s evidence that he had been told that the certificate and s.20 notice had been issued in error, and having rejected the argument that completion of the relevant course led inferentially to the conclusion that he had not fallen below the relevant 80% attendance threshold, the tribunal was entitled to come to the view that there were no relevant exceptional circumstances. Whilst there were anomalies in some of the records before the tribunal, there were no records that explicitly dealt with the applicant’s attendance and so, nothing that would suggest to the tribunal that there were exceptional circumstances. The applicant could have secured further evidence from his education provider to assist his case, but for reasons that do not appear, did not do so. As pointed out above, there is no duty upon the tribunal to make its own inquiries about those matters.

Conclusion

1. The applicant has not demonstrated that the tribunal’s decision is affected by jurisdictional error.  The application must be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: 

Date:  30 September 2011