Kumar v Minister for Immigration & Citizenship
[2010] FMCA 614
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 614 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – Tribunal inviting the applicant to provide information and comment and also inviting the applicant to a hearing – Tribunal cancelling the hearing when the applicant responded to the invitation to comment and provide information three days after the due date – Tribunal finding that the Migration Act 1958 (Cth) required it to so act – whether the Tribunal misunderstood or misapplied the legislation considered – observations on the proper interpretation of visa condition 8202(3). |
| Education Services for Overseas Students Act 2000 (Cth), ss.19, 20 Migration Act 1958 (Cth), ss.116, 359, 359A, 359C, 360, 360A, 363 Migration Regulations 1994 (Cth) |
| Hasran v Minister for Immigration [2010] FCAFC 40 Hossain v Minister for Immigration [2010] FCA 161 M v Minister for Immigration (2006) 155 FCR 333 Mazumber v Minister for Immigration & Anor [2010] FMCA 76 Minister for Immigration v Sun & Anor (2005) 146 FCR 498 Mo v Minister for Immigration & Anor [2009] FMCA 1026 Mo v Minister for Immigration [2010] FCA 162 |
| Applicant: | VIKAS KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1280 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 12 August 2010 |
| Date of last submission: | 31 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms L Buchanan Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 21 May 2010.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.
The first respondent shall pay to the applicant the sum of $374 in respect of the application fee paid by him.
The first respondent shall pay to the Court the amount of $509 payable by the applicant but unpaid.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1280 of 2010
| VIKAS KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 21 May 2010. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s Vocational Education and Training Sector visa.
The following statement of background facts is derived from the Minister’s written submissions.
On 22 January 2009, the applicant, a citizen of India, was granted a Subclass 572 Vocational Education and Training Sector Student visa.
On 10 September 2009, the applicant's education provider, Meridian International Hotel School (Meridian), certified that the applicant had not achieved satisfactory course attendance:
for s.19 of the Education Services for Overseas Students Act 2000 (Cth) [“the ESOS Act”] and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007) [“the National Code”][1].
[1] Relevant Documents (“RD”) 2
On that date, the applicant was notified by the issuing of a notice pursuant to s.20 of the ESOS Act that Meridian had certified him as not achieving satisfactory course attendance in relation to the Diploma of Hospitality Management and therefore that he had breached a condition of his visa by failing to meet the requirements of subclause 8202(3) of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”)[2].
[2] RD 3-7
On 28 September 2009, the applicant attended the Department of Immigration and Citizenship (the Department) and was issued with a Notice of Intention to Consider Cancellation of his visa under s.116 of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant was invited to provide comments at an interview scheduled for 23 October 2009[3].
[3] RD 12-20
On 23 October 2009, the applicant attended an interview with a delegate of the Minister and provided the following statement[4]:
My studies was going well in college but as time was passing my father's health was not good those days and I was getting upset day by day and was not able to concentrate on my studies and was willing to go and see my father but due my studies I was not able to go India and meet my father as I was feeling homsesickness those days and not willing to go anywhere out from home and was just feeling uneasiness whole day.
This was the reason I did not attend the college regularly as I had no one supporting me morally and was feeling very stressed out those days. I had never cooked and did the household jobs back in India and here I had to do all this with my studies.
I have changed my education provider now and pursuing my studies with dedication and positive results as well.
Kindly excuse me shortcomings this time and I shall prove to be a more sincere student in future. My father's health is better now my family calls me regularly now to maintain my moral and emotional levels.
[4] RD 21
On 23 October 2009, the Department cancelled the applicant's visa under s.116(1)(b) of the Migration Act due to a breach of condition 8202(3)(b). Having considered the evidence before it, the delegate was satisfied that the applicant's non-compliance was not due to exceptional circumstances beyond his control and notified the applicant of this decision[5].
[5] RD 26 at [8] and see RD 24-33
Before the Tribunal
On 29 October 2009, the applicant applied to the Tribunal for review of the delegate's decision[6].
[6] RD 35-42
On 1 April 2010, the Tribunal issued an invitation to the applicant, through his legal advisers, to comment on and provide information pursuant to ss.359A and 359 of the Migration Act[7]. That invitation sought a response by 12 April 2010.
[7] RD 48-51
On 7 April 2010, the Tribunal issued an invitation to appear before the Tribunal pursuant to s.360 of the Migration Act[8].
[8] RD 58-64
On 16 April 2010, the applicant's legal advisers faxed to the Tribunal a letter dated 13 April 2010[9] accepting the invitation to appear and advising that:
a)as Meridian had closed down there had been no opportunity for the applicant to “...verify with the College the accuracy of the information in respect of which the Section 20 notification was made”;
b)that, following the decision of the Federal Court in Hossain v Minister for Immigration [2010] FCA 161, the s.20 notice issued was invalid, and
c)in the absence of the Tribunal sighting the actual records of the College there was insufficient evidence for it to reach a conclusive adverse opinion.
[9] RD 65-67
On 23 April 2010, the Tribunal issued a further invitation to the applicant pursuant to s.359A inviting him to comment on information obtained from a computer database of the Department of Education, Employment and Workplace Relations (PRISMS) that, among other things, Meridian had complied with the National Code and was a “fit and proper” provider and that if the Tribunal found the applicant had not complied with condition 8202:
...then the processes followed by Meridian in certifying your non‑compliance, and Meridian's adherence to the National Code 2007, may be relevant to the Tribunal's considerations and state of satisfaction regarding whether or not the non-compliance was not due to exceptional circumstances beyond your control. The information above may suggest that Meridian's processes surrounding its certification on 10 September 2010 were compliant with the National Code.[10]
[10] RD 77 and at 78.5
Also on 23 April 2010, the Tribunal communicated with the applicant's legal advisers informing them that, as the Tribunal had not received a response to its s.359 request for additional information within the time limit specified of 12 April 2010, the Tribunal would proceed to make a decision without conducting a hearing.[11]
[11] RD 83-85
On 30 April 2010, the Tribunal received a copy of a letter from the applicant's legal advisers, addressed to the applicant, enclosing a copy of the Tribunal's invitation dated 23 April 2010 and informing the applicant that the hearing had been cancelled.[12] The applicant subsequently notified the Tribunal of a Change of Contact Details and provided a medical certificate from Dr R G Kumawat apparently relating to the applicant’s father.[13]
[12] RD 86
[13] RD 87-88 and see RD 92
On 21 May 2010, the Tribunal proceeded to make its decision on the evidence before it without conducting a hearing.
The Tribunal affirmed the delegate's decision to cancel the applicant's visa for the following reasons.[14]
[14] Commencing at RD 103
Failure to respond to invitation
The Tribunal found at [36] that, with reference to ss.360(3) and 363A, as the applicant had not responded to the s.359A invitation within the specified time, the applicant had lost his entitlement to appear before the Tribunal and the Tribunal had no discretion to offer a hearing[15].
[15] RD 103
Breach of condition 8202
The Tribunal was satisfied that the applicant had not complied with condition 8202(3)(b) of his visa: at [41] to [43].
In relation to the applicant’s submission that the s.20 notice was invalidly issued by Meridian after the applicant had ceased to be enrolled, the Tribunal found that:
a)the applicant’s reliance on the Federal Court decision of Hossain was unhelpful and of no relevance because it dealt with non-revocation of an automatic cancellation under s.137J, being a provision which is triggered only if a valid notice is sent; and
b)if there was a relevant certification, there was a breach of the condition, irrespective of what may or may not have occurred for the purpose of s.20 and further that it is well established that an invalid s.20 notice does not invalidate a s.116 cancellation decision: at [42].
Consideration of exceptional circumstances beyond the visa holder's control
The Tribunal addressed the applicant’s reasons for his breach of condition 8202(3)(b) as follows (at [44]-[51]):
a)the Tribunal placed little weight on the medical certificate as there was no independent evidence linking the patient to the applicant. The Tribunal could not be ‘fully satisfied’ that the applicant’s father was ill during the relevant time, nor of the exact nature or seriousness of any illness that may have been suffered, or its impact if any on the applicant;
b)while the Tribunal accepted that the applicant may have had some difficulty adjusting to life in Australia away from his family, the Tribunal considered such factors arose in the ordinary course of undertaking study outside a person’s home country. The Tribunal was not satisfied that the circumstances, taken either singularly or cumulatively, revealed exceptional circumstances beyond the applicant’s control;
c)the applicant had not disputed that his attendance was unsatisfactory, stating only that the information could not be verified by Meridian because of its closure. While the Tribunal accepted that Meridian was placed into voluntary administration in November 2009, there was no evidence before the Tribunal linking its administration to any breaches of the National Code or to any matter which may have contributed to the applicant’s non-compliance. On the contrary the evidence before the Tribunal was that Meridian tried to contact and offer counselling to the applicant for his attendance, consistent with its documented policy and procedures. The Tribunal was satisfied that Meridian acted in accordance with the National Code 2007 in administering the process leading to the certification and was satisfied that nothing exceptional arose from that process.
Having considered the applicant’s claims and the issues set out in Ministerial Direction no. 38, the Tribunal was satisfied that the applicant’s non-compliance was not due to exceptional circumstances beyond his control.
The application, evidence and submissions
The applicant relies upon his show cause application filed on 10 June 2010 which asserts that the certification issued by Meridian College was not valid because the “requirement of standard 10 were not followed”. The applicant relies upon his affidavit filed with that application, which I received as a submission. In that affidavit, Mr Kumar reaffirms the alleged exceptional circumstances which he considers should have led the Tribunal to revoke cancellation of his visa. In relation to that, the Minister submits:
Standard 10 of the National Code relates to visa condition 8202(3)(a), namely the condition relating to course progress which does not apply in this case. Rather, the requirements for the monitoring of course attendance by education providers are contained in Standard 11 of the National Code.
Insofar as the applicant is asserting that the education provider failed to comply with Standard 11 of the National Code, the first respondent submits that, from the evidence before it and obtained from the PRISMS database, it was open to the Tribunal to conclude that the education provider had complied with the National Code. The content of this information was provided to the applicant for comment in accordance with s 359A in the letter dated 23 April 2010 in relation to which no relevant response was received.
I received the book of relevant documents as evidence.
During the course of argument I raised with the parties two additional issues. The first was the assertion made by the solicitors representing the applicant before the Tribunal that the s.20 notice was invalid because the applicant had changed educational institutions by the time the notice was issued and he was no longer an “accepted student” at the education provider[16]. The applicant responded that he did not think his decision to change education providers was a relevant factor. His concern relates to his personal circumstances due to the illness of his father. The Minister submits that the assertion by the solicitors was misguided because Mr Kumar did not cancel his enrolment at Meridian College.
[16] RD 46
Secondly, I raised with the parties the issue of whether the Tribunal was correct in stating in [36] of its reasons[17]:
The Tribunal finds that, by letter dated 1 April 2010 the applicant was sent an invitation to comment on information under section 359A and 359(2) of the Act. The invitation was sent to the applicant at the last address for service provided by the applicant in connection with his application for review and required the applicant to provide his written response by 12 April 2010. The Tribunal is satisfied that the invitation was properly sent to the applicant by one of the methods specified by section 379A of the Act. An examination of the Tribunal’s file shows that the applicant provided his written comments to the Tribunal by facsimile dated 13 April 2010, received by the Tribunal on 16 April 2010. The Tribunal finds that the review applicant failed to provide his written response or to request an extension of time within the prescribed period. Accordingly, the Tribunal finds that the applicant lost his entitlement to appear before the Tribunal: s.360(3). The Tribunal also finds that it has no discretion to offer a hearing to an applicant who is not entitled to a hearing: s.363A.
[17] RD 103
In the present case, the Tribunal proceeded on the basis that it was required to cancel a hearing to which an applicant had already been invited because of his late response to the Tribunal’s request for information and comment. I invited further submissions on the question of whether the prohibition on the Tribunal inviting an applicant to a hearing where an applicant loses an entitlement to a hearing also requires the Tribunal to cancel a hearing to which the applicant has already been invited.
The applicant made no further submissions. The Minister filed additional submissions on 31 August 2010 relevantly as follows:
The construction and application of s.363A and the related provisions of Part 5 of Division 5 of the Act were explained by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Sun & Anor (2005) 146 FCR 498 ("Sun") and affirmed by Tracey J in M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 ("M"). These decisions were affirmed by the decision of the Full Court of the Federal Court in Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
In Sun, the Full Court said at [50]:
Section 360(3) disentitles a visa applicant from appearing before the Tribunal if any of the circumstances in s 360(2) apply, relevantly here if s 359C(2) applies to the first respondent. Consequently, s 363A would appear to disempower the Tribunal from allowing the first respondent to appear before the Tribunal in the present circumstances.
Similarly, in M, Tracey J stated at [46]:
Section 363A of the Act operates to remove any residual discretion the Tribunal may have had to permit an applicant to appear notwithstanding his or her loss of an entitlement to do so.
Applying the Courts' reasoning to the present case, the applicant's failure to respond to the first s.359A letter within the prescribed time resulted in his being a person to whom s.359C(2) applied. That being the case, s.360(3) was attracted, such that the applicant was not entitled to appear before the Tribunal. This in turn attracted s.363A, such that the Tribunal was not empowered to permit the applicant to appear at a hearing.
The loss of the applicant's entitlement to an oral hearing was unaffected by the Tribunal's letter dated 7 April 2010 inviting him to a hearing under s.360(1). Once the applicant became a person to whom s.359C(2) applied, then s.360(2)(c) was enlivened, which specifically states that s.360(1) does not apply. In turn, once s.360(2) was engaged, then s.360(3) operated to disentitle the applicant from appearing before the Tribunal, and it is immaterial that he had previously been sent a hearing invitation. Section 363A then operated to prevent the Tribunal from offering the applicant a hearing.
In addition, the operation of the Act referred to at paragraph 7 above was not affected by the second s.359A letter. The applicant responded to the first s.359A letter, albeit outside the prescribed time; the second s.359A letter requested the applicant's comment on or response to additional information. It did not create any right to a new hearing, the applicant having lost that right when he failed to respond to the first s.359A letter within the required time. In Sun, the Full Court said at [49]:
Indeed the Tribunal may be obliged to give two or more notices under s.359A of the Act. It is not uncommon for information which would be the reason or part of the reason for affirming the decision under review to emerge at different times, and from different sources…The need to give a second or subsequent notice under s.359A would not however remove from a visa applicant the status of being a person to whom s.359C(2) applies, if the visa applicant had failed to respond to an earlier notice under s.359A or had done so outside the prescribed time.
For these reasons, the first respondent submits that the reasoning of the Tribunal at paragraph 36 of its reasons, set out at paragraph 6 of these submissions, was correct.
Consideration
Were a valid certification and notice issued under ss.19 and 20 of the ESOS Act and, if so, did that have any effect on the power to cancel Mr Kumar’s visa?
Sections 19 and 20 of the ESOS Act provide:
19(1) A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:
(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student--the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of an accepted student's studies (whether as a result of action by the student or the provider or otherwise) before the student's course is completed;
(e) any change in the identity or duration of an accepted student's course;
(f) any other prescribed matter relating to accepted students.
(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.
(3) Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
Unincorporated registered providers
(4) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the Secretary the information as required under this section.
20(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958 ) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.
Unincorporated registered providers
(5) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.
As was found by the Tribunal at [6][18], s.116(1)(b) gives the Minister power to cancel a visa where the visa holder has not complied with a condition of the visa. It relevantly states:
[18] RD 97
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) any circumstances which permitted the grant of the visa no longer exist; or
(b) its holder has not complied with a condition of the visa; or
(c) another person required to comply with a condition of the visa has not complied with that condition; or
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or
(f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa) in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student; or
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g) a prescribed ground for cancelling a visa applies to the holder.
…
(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.
As was also found by the Tribunal at [7][19] regulation 2.43 of the Migration Regulations set out the prescribed circumstances referred to in s.116(3). For student visas which were in force on or after 8 October 2005, regulation 2.43(2) relevantly provides:
(2) For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:
[19] RD 97
…
(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.
The Tribunal correctly found at [8] and [9][20] that the effect of s.116(1)(b) and regulation 2.43(2)(b)(ii) is that the visa must be cancelled if the decision maker 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 visa holder’s control.
[20] RD 98
As the Tribunal correctly stated at [12][21]:
[21] RD 98-99
Condition 8202 is found at Item 8202 of Schedule 8 to the Regulations. The relevant version of condition 8202 that applies in this case reads as follows:
(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).
(2)A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student -- the holder is enrolled in a full-time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services 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 ;
(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)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa -- the holder is enrolled in a full-time course of study or training.
Condition 8202(3)(b), as it applied from 1 July 2007, relevantly specifies that a visa holder will meet the attendance requirements unless the education provider has certified, in respect of a registered course undertaken by the visa holder, that the visa holder has not achieved a satisfactory course attendance for s.19 of the ESOS Act, and standard 11 of the National Code 2007.
The Tribunal found at [42][22]:
In relation to the applicant’s submissions that: the s.20 notice was invalidly issued by Meridian after the applicant ceased to be enrolled at the College; the principles set out in Tribunal case number 0907648, which the applicant argues was decided in the applicant’s favour on the basis of an invalidly issued s.20 notice, should be applied in the current case, as should the principles enounced in the Federal Court case of Hossain, the Tribunal makes the following findings. The Tribunal finds that both the MRT case 0907648 and the Federal Court case of Hossain are cases dealing with non-revocation of an automatic cancellation under s137J of the Act, being a provision of the Act which is triggered only if a valid notice is sent to a non-citizen under section 20 of the ESOS Act. These cases are unhelpful and of no relevance to the present case which involves cancellation under s.116 of the Act. The reason for this is that the issuing of a s.20 notice is not a precondition for cancellation under s.116(1)(b). The only question arising under s.116(1)(b) and (3) and r.2.43(2)(b) is whether there has been a breach of visa condition 8202. condition 8202(3) is breached if the provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for s.19 of the ESOS Act and standard 10 of the National Code. Thus, if there is a relevant certification, there is a breach of the condition, irrespective of what may or may not have occurred for the purposes of s.20 of the ESOS Act. It is well established that an invalid s.20 notice does not invalidate a s.116 cancellation decision and does not affect the power to cancel a visa under s.116 (MIMIA v Zhou (2006) 152 FCR 15 at [43] accepting and applying the reasons of the Full Courts in MIMIA v Yu (2004) 141 FCR 448 at [37]-[40], Gerhard v MIMIA [2003] FCA 495 at [17], and Humayun v MIMIA (2006) 149 FCR 558). The Tribunal is also satisfied that the certification was issued by the College on 10 September 2009, covering the applicant’s attendance from 16 February 2009 to 9 June 2009.
[22] RD 104
The Tribunal was correct in finding that a valid notice under s.20 of the ESOS Act is not a condition precedent to the exercise of power under s.116 of the Migration Act. To that extent, the Tribunal was correct in distinguishing the decision of the Federal Court in Hossain. However, the other cases relied upon by the Tribunal at [42] all pre-date the current form of condition 8202(3)(b), which only came into force on 1 July 2007 and accordingly, those decisions need to be treated with caution. While the Tribunal has a discretion to cancel a visa under s.116 of the Migration Act whether or not a notice under s.20 of the ESOS Act was validly issued, it does not follow that the validity of a certificate under s.19 of the ESOS Act is irrelevant to the application of the visa condition. It would be a strange result if the mere fact of the purported certification by an educational institution of unsatisfactory attendance established a breach of the visa condition, regardless of the circumstances of the issuing of it. To take an extreme example, if an educational institution sought unsuccessfully to extort money from a student and, as a simple act of revenge, falsely certified unsatisfactory attendance, it would seem a very harsh outcome that by reason of that criminal act by the education provider[23], the visa holder was in breach of his or her visa. It might be said that in such a circumstance the visa holder could, without difficulty, establish exceptional circumstances beyond his or her control but, in my view, that consideration only arises where a certificate is properly provided pursuant to s.19 of the ESOS Act.
[23] See s.108 of the ESOS Act
At [43] of its reasons[24] the Tribunal stated:
The task before the Tribunal is to determine that a certificate, on its face, is of a kind that engages condition 8202(3). The Tribunal is not required to enquire into the validity of the certificate: see Singh v MIAC & Anor [2009] FMCA 1261 and Mazumder v MIAC & Anor [2010] FMCA 76. Accordingly, the Tribunal finds that the education provider has certified the applicant as not achieving satisfactory course attendance for s.19 of the ESOS Act and standard 11 of the National Code, and therefore that the applicant has not complied with condition 8202(3)(b).
[24] RD 104
Singh was a case in which an asserted breach of the National Code was not established on the facts. Raphael FM in that case at [9] followed his earlier decision in Mo v Minister for Immigration & Anor [2009] FMCA 1026 at [24] where he said:
The respondent submits that the effect of this is that any failure to comply with the National Code is not intended to go to the validity of any act or step taken, or failed to be taken, by an education provider. 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.
In Mazumber v Minister for Immigration & Anor [2010] FMCA 76 Cameron FM also relied upon the statement above from Mo. That decision was overturned on appeal: Mo v Minister for Immigration [2010] FCA 162. The Tribunal cannot rely on any statement of principle derived from the decision of this Court in that case.
The authoritative statements of principle concerning the form of certification in relation to the application of condition 8202(3)(b) were made by the Full Federal Court in Maan v Minister for Immigration [2009] FCAFC 150 at [41]-[47] where the Court said:
The ordinary meaning of Visa Condition 8202(3) is that the holder of a relevant visa will be in breach of the visa following certification by the educational institution as to a visa holder’s non-attendance, and provision of that certification to the Department by the institution. As has already been noted, Visa Condition 8202(3) clearly imposes responsibility on the educational institution to develop attendance policies in light of the requirements of s 19 of the ESOS Act and Standard 11 of the Code.
Section 19(2) of the ESOS Act requires the educational institution to provide the Department with particulars of any breach by a student of a prescribed condition of a student visa. In relation to the appellant, the particulars provided by VIT to the Department in the certification of 24 September 2007 were as follows:
Particulars of the breach
The particulars of the breach are set out below. Failure to meet the requirements of subclause 8202(3) is a breach of condition 8202. A visa holder meets the requirements of subclause 8203(3) if neither (a) or (b) applies. Paragraph 8202(3)(b) provides: 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 (National Code 2007)
Victorian Institute of Technology Pty Ltd on 24 September 2007 has certified you as not achieving satisfactory course attendance in relation to Advanced Diploma of Hospitality Management (THH60202). Paragraph 8202(3)(b) applies to you. Therefore, you have failed to meet the requirements of subclause 8202(3) and have breached condition 8202.
While perhaps these particulars could have been more informative and referred to the period of non-attendance of the appellant and VIT’s own post-1 July 2007 attendance policies in greater detail, the Tribunal found that as a consequence of this certification the appellant did not comply with Visa Condition 8202.
It follows from an ordinary reading of Sch 8 cl 8202(3) of the Migration Regulations that the Tribunal was correct in finding that the VIT certification constituted non-compliance by the appellant with his visa conditions. In so finding, the Tribunal (and the Federal Magistrate) correctly applied Sch 8 cl 8202(3) of the Migration Regulations.
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.
As the Federal Magistrate found, the absence of reference to a specific period of time in the certification does not impact on the validity of the certification.
During submissions the appellant also referred to factual errors made by VIT in relation to preparing his attendance record, including a claim that he had attended more than 27% of the classes in the relevant term. Notwithstanding the fact that, before the Tribunal, the appellant said that he believed he had attended only around 50% of classes – which is obviously considerably less than the 80% required by VIT – it is clear that:
• VIT’s notice to the appellant dated 8 August 2007 alerted the appellant to appeal processes of which the appellant could take advantage. Any errors in calculation of the appellant’s attendance could have been remedied by the appellant pursuing such processes; and
• In any event, the actual attendance by the appellant is a factual issue which was raised before the Tribunal. Even if the Tribunal had made a factual error in respect of this issue, it is not an issue which goes to jurisdiction of the Tribunal and enlivens the authority of this Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35–36].
It follows, in my view, from that decision that, while in general terms a certificate issued under s.19 of the ESOS Act may be said to speak for itself, the Tribunal is not free to blindly accept whatever the certificate says. The Tribunal must satisfy itself that the certificate engages condition 8202(3). Among other things, the certificate must be issued “for” s.19 of the ESOS Act and either standard 10 or standard 11 of the National Code.
In my view, in considering whether to cancel a visa under s.116 of the Migration Act for breach of condition 8202(3), a decision maker must satisfy himself of herself that a certificate has been issued in accordance with s.19 of the ESOS Act and the relevant standard of the National Code. The certificate must be what it purports to be. If the requirements of s.19 have not been met, or the relevant standard of the National Code has not been complied with, then there will have been no breach of the visa condition.
In the present case, if the applicant had withdrawn from his course at Meridian College in order to commence alternative education then a certification in respect of the period after his withdrawal would not relate to a “course undertaken by the visa holder” and the certification would not be properly made. However, at the hearing before me, the applicant said he placed no significance on his change of institutions and the Minister asserted that the applicant had not cancelled his enrolment at Meridian. Further, the Tribunal was entitled to find as it did that Meridian had complied with standard 11 of the National Code. There is, on the facts of this case, no basis to disturb the Tribunal’s finding that the applicant had breached 8202(3)(b).
In my view, this finding by the Tribunal was free from error on the basis of the information available to the Tribunal.
Was the Tribunal correct to cancel the hearing to which the applicant had been invited?
Sections 360 and 363A of the Migration Act provide as follows:
360(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) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
363A If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
It is common ground that Mr Kumar did not respond to the Tribunal’s invitation to comment and request for further information within the time prescribed by the Tribunal. On the authority of Sun and M relied upon by the Minister the Tribunal was not able to invite the applicant to a hearing following that failure to respond within time. However, in the present case, Mr Kumar was invited to a hearing before the time for response to the Tribunal’s invitation and request had expired. The question is, whether by reason of Mr Kumar’s failure to respond to that request and invitation within time, the Tribunal was required to cancel the hearing to which he had been invited. The Tribunal’s invitation to attend the hearing was validly issued at the time it was issued.
There is no doubt that s.360(3) disentitles an applicant to appear before the Tribunal if either ss.360(2)(a), (b) or (c), applies to the applicant. However, those paragraphs cannot be read in isolation. The opening words of s.360(2) specify the non application of s.360(1) if either of the three paragraphs in s.360(2) apply. Section 360(1) deals with the hearing invitation, not the conduct of the hearing. Section 360(2)(a) did not apply because, at the time the hearing invitation was issued, the Tribunal did not consider that it should decide the review in Mr Kumar’s favour. Indeed, it had issued an invitation to comment and request in circumstances that indicated that the Tribunal might well decide the review against him. The hearing invitation itself specified that the Tribunal was unable to make a favourable decision on the papers. Section 360(2)(b) did not apply because Mr Kumar did not consent to the Tribunal proceeding without a hearing.
Section 359C provides:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.
It is noteworthy that the consequence of a failure to give information or comments or respond to a written invitation is that the Tribunal may make a decision without taking any further action to obtain the applicant’s views on the information. The section does not authorise the Tribunal to make a decision without having regard to action already taken to obtain the applicant’s views on the information. In the present case the action already taken comprised the issuing of the request for information and invitation to comment as well as the invitation to attend the hearing.
It is true that s.360(3) states that an applicant is not entitled to appear before the Tribunal if s.360(2) applies. However, as I have already noted, s.360(2) bears on the obligation to the Tribunal to invite an applicant to a hearing, not on any power or obligation to conduct a hearing to which an applicant is invited. It is also true that s.363A provides that the Tribunal does not have the power to permit a person to do something that he or she is not entitled to do. It follows that if the Tribunal is not authorised to issue a hearing invitation, and an applicant is not entitled to attend the hearing, then the Tribunal has no discretion to issue an invitation or permit such attendance. It does not follow, however, in my view that an applicant is not entitled to attend a hearing to which he or she has been lawfully invited. The Tribunal was required to issue the hearing invitation at the time it was issued because the Tribunal had determined that it could not make a favourable decision on the papers. At the time the hearing invitation was issued s.360(2) did not apply. That was because, at that time, the time for responding to the invitation to comment and request for information had not expired.
The hearing opportunity afforded by s.360 (and in the case of the Refugee Review Tribunal, s.425) is the central element of the review process. It is a fundamental guarantee of procedural fairness. By depriving the applicant of a hearing, the Tribunal caused actual unfairness because Mr Kumar was deprived of the opportunity of persuading the Tribunal that there existed exceptional circumstances bearing on the discretion to cancel his visa. In particular, the Tribunal said at [46][25]:
The Tribunal has considered the applicant’s submissions to the Department, as set out in paragraph 27 above. In relation to the applicant’s submission that his father was unwell and the handwritten note on the letterhead of a Doctor’s clinic referring to the patient’s breathlessness, chest pain and periods of hospitalisation in May and June 2009, the Tribunal is concerned that there is no independent documentary evidence before the Tribunal linking the patient named to the applicant. Accordingly, the Tribunal cannot be fully satisfied that the applicant’s father was ill during the relevant time, nor of the exact nature or seriousness of any illness he may have suffered, or its impact, if any, on the applicant. Accordingly, the Tribunal places little weight on this aspect of the applicant’s evidence in assessing the circumstances surrounding the relevant non-compliance.
[25] RD 105
A hearing would have provided the applicant with the opportunity to persuade the Tribunal that the medical information he had submitted related to his father and that it had a significant bearing on his assertion of exceptional circumstances.
Sections 360(3), 359C and 363A read in combination are a punitive restriction on a fundamental element of the review process. Having that character, the sections should be interpreted strictly. In my view, on a strict reading of those sections, the Tribunal is not prevented from issuing a hearing invitation before the time for compliance with an invitation to comment or request for information has expired, and after that period has expired, while the Tribunal would be prevented from issuing a further hearing invitation, it is not required to cancel a hearing to which an applicant had already lawfully been invited.
I would imagine that the circumstances of this case would be unusual. Generally, I would imagine that the Tribunal would be unable or unwilling to conclude that it could not make a favourable decision on the papers before seeing what information was provided by or on behalf of an applicant in response to an invitation to comment or request for further information. However, this case demonstrates that such a situation, though unusual, can arise. In such circumstances, where it must be anticipated that an applicant’s written response would not support a favourable decision, the only means of obtaining a favourable outcome is through a hearing, and the Migration Act does not, and should not, preclude that possibility.
I conclude that the Tribunal was in error in finding that it was required to cancel the hearing to which Mr Kumar was invited and the cancellation of the hearing was a breach of s.360, because it frustrated the process of review that was a consequence of the lawful invitation. I distinguish the Federal Court decisions in Sun, M and Hasran on the basis that those cases all concerned the inability of the Tribunal to invite an applicant to attend a hearing where there had been a failure to respond to an invitation within the prescribed period. That issue was conclusively resolved by the Full Federal Court in Hasran. However, in that case at [6] the Court noted that no hearing invitation had been issued. Neither could an invitation be issued after the operation of s.360(3) was attracted. However, in the unusual circumstances of this case, the Tribunal invited the applicant to a hearing before the operation of s.360(3) was attracted because the Tribunal had determined that it could not make a favourable decision on the papers. It followed that the hearing to which the applicant was invited was the only means by which the applicant could obtain a favourable outcome and the Migration Act did not operate to deprive him of the benefit of the invitation lawfully extended to him. The invitation and request for more written material only served to augment what the Tribunal had decided was the essential element of the review process (ie the hearing).
The applicant should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
As to costs, the applicant was self represented and has not incurred any legal costs. He has incurred a disbursement in the form of the application fee of $374. I note that he was also required to pay a setting down fee of $509 by 2 August 2010 but he has not done so. That fee should be paid to the Court by the Minister.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 19 November 2010
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