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

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

The application filed on 3 June, 2011 be dismissed.
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

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.
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.
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.
The applicant argues that the tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 741
Decision Date: 30 September 2011

CaseChat Overview and Summary

Deepak Kumar brought an application in the Federal Circuit Court of Australia, seeking to overturn a decision of the Migration Review Tribunal that had upheld the cancellation of his student visa. The tribunal's decision was that Kumar had failed to meet the attendance requirements of his course, which was a ground for cancelling his visa under the Migration Act 1958. Kumar argued that the certificate issued by his education provider was based on inaccurate information, but the tribunal had declined to examine the validity of the certificate. The question for the court was whether the tribunal had an obligation to inquire into the validity of the certificate, and if so, whether it had failed to do so in this case.

The court held that the tribunal had an obligation to examine the validity of the certificate, but it had not failed to do so in this case. The tribunal had correctly identified that it did not have the power to look behind the certification by the education provider, as a matter of law. The court held that the tribunal's reasons for decision demonstrated that it had considered the issue of the validity of the certificate and had concluded that it was not necessary to inquire into it. The court held that the tribunal's decision was not flawed on the basis that it had failed to examine the validity of the certificate.

The applicant’s application was dismissed. The court ordered that the applicant pay the first respondent’s costs, fixed in the sum of six thousand dollars ($6,000.00).

Orders

Orders of the court

The application filed on 3 June, 2011 be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 OyelodiCEO (Principal Executive Officer)Metro College of Technology… 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 . 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. 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. 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. 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. 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.