Le v Minister for Immigration
[2010] FMCA 460
•16 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 460 |
| MIGRATION – Migration Review Tribunal – student visa – condition 8202 – Attendance requirement – cancellation. MIGRATION – Migration Review Tribunal – notice under s.359A – detail of attendance records. |
| Migration Act 1958, ss.116(3), 359A Migration Regulations 1994, rr.2.43(2)(b)(i) and (ii) |
| Brar v The Minister [2008] FMCA 1026; (2008) 220 FLR 9 Isahak v The Minister [2008] FMCA 613 Khan v The Minister for Immigration [2009] FMCA 1185 Khergamwala v The Minister [2007] FMCA 690 Tongburin v The Minister [2008] FMCA 644; (2008) 218 FLR 93 |
| Applicant: | HOANG NAM LE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 159 of 2010 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 31 May 2010 |
| Date of Last Submission: | 31 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 16 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thapliyal |
| Solicitors for the Applicant: | Challenge Legal Lawyers |
| Counsel for the Respondents: | Mr Horan |
| Solicitors for the Respondents: | DLA Philips Fox |
ORDERS
That a writ of Certiorari issue quashing the decision of the Second Respondent made on 30 December 2009.
That a writ of Mandamus issue requiring the Second Respondent to hear and determine the application according to law.
That the First Respondent pay the costs of the Applicant fixed in the sum of $5865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 159 of 2010
| HOANG NAM LE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Vietnam. He came to Australia on 23 August 2007 on a sub-class 573 higher education sector visa (a student visa). The applicant was to commence a course at Deakin University on 24 August 2007. On April 2008 Deakin University certified that the applicant had not achieved satisfactory course attendance for the purposes of one of the conditions of his visa. He was given notice of intention to cancel his visa on this ground on 1 May 2008. On 4 August 2008 a delegate of the Minister cancelled the applicant’s visa. On 21 August 2008 the applicant applied to the Migration Review Tribunal for a review of the delegate’ decision.
On 30 December 2009 the tribunal confirmed the decision of the delegate, finding that the applicant had not complied with the course attendance requirement of his visa and that the non-compliance was not due to exceptional circumstances beyond his control, as referred to in s.116(3) of the Migration Act 1958 and reg.2.43(2)(b)(i) and (ii) of the Regulations. The applicant then sought judicial review on 2 February 2010 in the Federal Magistrates Court.
The tribunal, in their decision, recount the relevant law and proceed to set out in full the various documents provided and the various letters provided by the applicant to the tribunal setting out the applicant’s circumstances and, in particular, the facts and circumstances relied upon by him to attempt to establish exceptional circumstances beyond his control as the explanation for his failure to meet the attendance requirement. At paragraph 44 of the decision, the tribunal say:
44. The Tribunal questioned the applicant about his attendance in the initial five-week English course in which his schedule was for three hours of classes each morning and two hours of classes each afternoon. In the first two weeks he was absent for 37 of the 50 scheduled hours, that is he had attended for 13 hours.
The tribunal said at paragraphs, 46, 57 and 58:
46. The applicant confirmed his address at the time but claimed he had not received any letters after the conclusion of his EAP course. He told the Tribunal it was not until he voluntarily attended the University that he was advised of his attendance problems and of the appeals process.
…
57. The Tribunal put to the applicant the information on file regarding his attendance namely:
Week 1 (N/A = No attendance/Absent)
Monday Morning Attend Afternoon N/A
Tuesday Morning N/A Afternoon N/A
Wednesday Morning Attend Afternoon Attend
Thursday Morning Attend Afternoon N/A
Friday Morning N/A Afternoon N/A
Week 2
Monday Morning N/A Afternoon N/A
Tuesday Morning N/A Afternoon N/A
Wednesday Morning N/A Afternoon N/A
Thursday Morning Attend 50% Afternoon N/A
Friday Morning N/A Afternoon N/A
58. The Tribunal asked the applicant how he could reconcile this attendance in the first two weeks with his claim that he got ill and started to get into difficulties after two weeks.
The tribunal recounted that during the course of the interview:
63. The Tribunal asked the applicant whether he considered there were any exceptional circumstances that contributed to his failure to achieve satisfactory attendance levels. The applicant provided no response.
The tribunal also heard from the applicant’s sister who recounted many of his claims relating to his difficulty in adapting to the weather in Melbourne, his concerns with respect to the language barrier he faces, his criticisms of his teachers, his claims of lack of assistance in counselling from the institution, his personal family circumstances and his discomfort at being placed in a class where there were not other Vietnamese students with whom he would be able to communicate in Vietnamese. The tribunal concluded:
82. The applicant provided medical certificates for the Monday and Tuesday of the second week of his course. The tribunal does not consider sinusitis requiring two visits to the doctor to constitute exceptional circumstances and therefore finds the applicant’s health was not an exceptional circumstance that contributed to the breach of his visa application.
83. The Tribunal notes that in the first week of his course, the applicant attended the Monday morning, but did not return for afternoon classes on the first day. He did not attend at all on the second day and then returned on Wednesday and Thursday morning before failing to attend Thursday afternoon or at any classes on the Friday. While he provided medical certificates for the Monday and Tuesday of the second week, he failed to attend any classes in the second week other than half the morning on the Thursday.
84. The tribunal finds that the applicant’s failure to attend classes was the major contributing factor to his difficulties in coping with the course in which he was enrolled.
After this finding, the tribunal concluded:
85. Having considered the applicant’s claims individually and collectively, the tribunal finds there were no exceptional circumstances beyond his control that contributed to the applicant’s breach of visa condition 8202.
Ground One
The applicant argues that s.359A of the Migration Act was engaged in this case with respect to the information from the education provider as to the specifics of his course attendance in the first two weeks. The applicant argues that this is information that ought to have been provided to him under s.359A as it formed part of the reason for affirming the decision under review. As the applicant’s counsel sets out in his outline:
2. The second respondent failed to give any notice to the applicant under Section 359A with respect to the applicant’s alleged record of course evidence during the first two weeks of his course at Deakin University. (It is noted that this information, whilst apparently on the Tribunal file, does not form part of the first respondent’s Court book).
3. In terms of Section 359(A) the said record of attendance is:
(a) Information;
(b) That was part of the reason for affirming the decision under review;
(c) That is specifically about the applicant;
(d) That was not provided by the applicant and is not non-disclosable information.
(e) Information that was not provided to the applicant pursuant to s. 359 of the Act.
4. The second respondent utilised the information (record of course attendance) to:
(a)Reject the assertion by the applicant that exceptional circumstances for his non attendance were constituted by the fact that the high level of the English class was beyond his proficiency and that the attitude of his teachers and the ethnic configuration of his classmates were also factors that alienated him and caused him to miss classes. (See applicant’s statutory declaration at p 56 of court book); and
(b) In doing so make findings of credit adverse to the inference which were in turn used as a process of reasoning to reject other claims made by the applicant as constituting exceptional circumstances.
The case is not dissimilar to one decided by Riley FM in Khergamwala v The Minister [2007] FMCA 690. In that case her Honour had to consider whether or not an applicant had established exceptional circumstances with respect to non-attendance at a university course. On the facts of that case, the applicant had come close to meeting the minimum attendance requirement of 80 per cent and had a medical certificate to explain an absence. As a result, the tribunal considered the detail of the attendance record and the medical evidence in order to determine whether or not, but for medical issues, the applicant would have attended the minimum required hours. Her Honour concluded:
[46.] I do not accept the first respondent's argument that the Tribunal did not use the information in the attendance records because its calculation of the contact hours was a matter of its own thought processes. It is well established that the Tribunal's own thought processes are not information within the meaning of s.359A. A calculation is a thought process. However, in this particular case, the calculation had to have been a calculation based on how many contact hours there were in term one, how many contact hours the applicant had missed, how many contact hours there were on the day covered by the medical certificate and what percentage of the total contact hours for term one were missed or not covered by the medical certificate. That calculation could only have been made on the basis of the information in the attendance record. Accordingly, that information was part of the Tribunal’s reasons for affirming the decision and was information within the meaning of s.359A of the Act.
[47.] As a result, the Tribunal was required to give the applicant particulars of the information contained in the attendance record. The Tribunal frequently does this by furnishing a photocopy of the attendance record. It is not an onerous obligation. The Tribunal in this case failed to give the applicant any particulars of the information contained in the attendance record. Therefore, the Tribunal failed to give adequate particulars of information that was part of the reason for its decision. The Tribunal thus breached s.359A of the Act and accordingly fell into jurisdictional error.
[48.]
I should also add that there is an air of unreality about this ground. The court book shows that there were letters from Monash College in March and April 2006 advising the applicant that he could view his attendance records at a particular web address. I infer from that fact that the detail of the applicant’s attendance was readily available to him. I also note that the applicant argued that if he had been given the dates and times of his absences by the Tribunal, he could have made submissions about exceptional circumstances relating to those dates and times. However, the applicant did in fact make a submission on
20 September 2006 after he presumably had received the details of the attendance records. He made no submissions about exceptional circumstances beyond his control on any particular date. Nevertheless, compliance with s.359A is a strict requirement the breach of which results in jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592.
It is difficult to distinguish the circumstances of the two cases as a matter of principle. Whilst, in this case, medical certificates would not have been sufficient to explain the number of absences that the applicant incurred, the issue remained one of reliance upon the detail of the attendance history as a basis for rejecting the applicant’s claim that he had established exceptional circumstances. That is, an acceptance of the truth of the detail of the actual attendance history resulted in a rejection of the claim for exceptional circumstances based upon the other information provided by the applicant.
In Khan v The Minister for Immigration [2009] FMCA 1185, Riley FM considered a case with similar facts, including specific reliance upon attendance records. In that case her Honour noted that during the course of the hearing the applicant had agreed that the attendance records were correct and the tribunal, in its decision, had recounted that the applicant had “corroborated his arrival in Australia, his academic history and enrolment, and that his attendance was about 30% of the scheduled contact hours.” As a result, her Honour concluded:
[19] The next question is whether the information provided by the applicant to the Tribunal when he gave the Tribunal a copy of the delegate’s decision, and the information that he gave the Tribunal during the hearing before the Tribunal, was materially the same as the information contained in the attendance records.
[20] The parties accepted that the document referred to by the Tribunal as the applicant’s attendance records was the document contained at page 20 of the court book. It is arguably not an attendance record, because it does not state each date and time when the applicant was required to attend and state whether the applicant did or did not attend. Rather, it contains a month by month summary of how many hours the applicant was required to attend for each subject, and how many hours he did attend. For example, the record states that in February, the applicant attended zero out of three hours for the subject, Work with Colleagues and Customers, and two out of four hours for the subject, Follow Workplace Hygiene Procedures.
[21] In any event, the “attendance record” contains a good deal more information than the conclusion that the applicant attended 29.7% of contact hours. However, the requirement in s.359A of the Act is to give “clear particulars” of the relevant information. Section 359A does not require every detail of the relevant information to be given to the applicant. It requires the gravamen of the information to be given to the applicant.
[22] In the present case, the gravamen of the information in the “attendance record” was that the applicant had attended for 29.7% of scheduled contact hours. The applicant provided that information to the Tribunal himself. Therefore, the Tribunal was not required to give the applicant that information, under either s.359A or s.359AA of the Act.
[23] The situation may have been different if the applicant had actually disputed his attendance. In that case, it may have been necessary for the Tribunal to give the applicant details of the dates and times of his scheduled attendance and actual attendance. However, that level of detail was not required in the circumstances of the present case.
The Federal Magistrates Court of Australia decisions with respect to student attendance records from the New South Wales registry indicates that the tribunal in that state appears to have a practice of forwarding the specific attendance records under section 359A (see, for example: Brar v The Minister [2008] FMCA 1026; (2008) 220 FLR 9 and Tongburin v The Minister [2008] FMCA 644); (2008) 218 FLR 93. In other cases there is no question that the detail of attendance was provided to the tribunal by the applicant: see for example, Isahak v The Minister [2008] FMCA 613.
The two decisions of Riley FM indicate that a fine technical distinction arises in cases of this type between the reliance upon the information provided by the educational institution (in this case, the particulars of the non-attendance), and information provided by an applicant in circumstances where it is the applicant’s admission or agreement that the attendance by the applicant was as alleged in the documents from the institution. It appears that it was on this distinction that the two decisions of Riley FM turned.
In the current case, the tribunal do not recount in their decision that the applicant admitted that his attendance was as detailed by the education provider. It therefore appears to have relied on the information in the records.
As with the decision of Riley FM in Khergamwala, this case also has an air of unreality given the overall facts and circumstances. It is also clear that if the common law rules with respect to procedural fairness were the relevant law, the tribunal member would not, in my view, have erred. However, as her Honour points out in Khergamwala, the tribunal is required to comply with the very technical statutory requirements of s.359A.
In the circumstances of this case I am therefore persuaded that the applicant has shown an error of law with respect to Ground One.
Grounds Two and Three
Ground 2 provides:
The decision of the Second Respondent was affected by jurisdictional error because it constructively failed to exercise its jurisdiction in that, in determining whether the Applicant’s non compliance with visa condition 8202(2)(a) was due to exceptional circumstances beyond his control, the Tribunal asked itself the wrong questions and failed to take into account relevant considerations.
Particulars – Wrong Question
(a) The Second Respondent found that because the Applicant was of Vietnamese descent and was confronted by “climactic differences that can provide significant challenges”, that these significant challenges could not constitute exceptional circumstances because “all Vietnamese students” must deal with the same challenges. The correct question to ask was whether the effect of the climactic differences and significant challenges faced by the Applicant constituted exceptional circumstances in the case of the Applicant.
Particulars – Failure to take into account relevant considerations.
(b) The Second respondent failed to consider whether the reasons given by the Applicant as to why he did not comply with condition 8202(2)(a) collectively constituted exceptional circumstances.
Following on from the second ground, the applicant says that the tribunal asked itself the wrong question when considering the effect of climate change from the applicant where it said:
77. The tribunal accepts that international students particularly those coming from tropical climates to southern Australia are confronted by climatic differences that can provide significant challenges. However, the fact that all Vietnamese students must deal with the same challenges means that they are the norm, rather than the exception. The tribunal therefore finds that the applicant’s need to acclimatise to Australia’s weather does not constitute an exceptional circumstance that contributed to the breach of his visa condition.
This paragraph reflects an infelicitous turn of phrase, however it appears clear that the reasoning exposed by the paragraph is that the effects of climatic changes for students coming from tropical environments to Melbourne is not of itself an exceptional circumstance as very large numbers of foreign students (or indeed, one would expect students from northern Australia) must cope with this reality of life in Melbourne. The Tribunal does not appear to have limited itself to the general proposition, but also considered its effect on this particular applicant. The reasoning in paragraph 77 is not to the effect that the tribunal has not taken it into account when considering the claims collectively as the tribunal said:
85. Having considered the applicant’s claims individually and collectively, the tribunal finds there were no exceptional circumstances beyond his control that contributed to the applicant’s breach of visa condition 8202.
In the circumstances, I am not satisfied that this ground is made out.
Ground Four
The final ground by the applicant is described in his counsel’s written outline as follows:
· There is no evidence within the tribunal’s reasons that there has been any consideration of the matters raised by the applicant as constituting exceptional circumstances on a collective basis.
· The following matters raised by the applicant are not even mentioned in the reasons second respondent’s for judgment:
- The attitude of his teacher at Deakin when asked for help.
- The language barrier he faced.
- The lack of assistance and Counsel received from staff at Deakin.
- His personal family circumstances and lack of any support network.
- Problems within the classroom with the predominantly Chinese students.
If the second respondent did not consider these matters to be material then it is submitted that it fell into further jurisdictional error in failing to take these relevant considerations into account.
· Further, the reasons for decision do not disclose any process of reasoning by which the second respondent has considered the various claims made by the applicant on a collective basis and found against these claims on a collective basis.
· Further, or alternatively, the applicant submits that the reasons of the second respondent do not reveal, either expressly or by necessary inference, the path of reasoning that lead to the conclusion that all of the factors raised by the applicant did not collectively constitute exceptional circumstances. The reasons do not enable the applicant to know why his claims of exceptional circumstances of a collective basis were rejected and the inadequacy of reasons in such circumstances constitutes jurisdictional error.
In this case there is no question that all of the matters that the applicant argues the tribunal failed to have regard to, are set out either in the body of the decision or in material from the applicant which is quoted in the decision of the tribunal. The tribunal’s ultimate conclusion is set out at paragraph 85 (see above). It is difficult to see how it can be said that the tribunal failed to have regard to various aspects of the facts and circumstances of the applicant seen to amount to exceptional circumstances when the tribunal had recounted them in their decision. In the circumstances I do not find that this ground has been made out.
Conclusion
As I have found that a ground has been made out, albeit on a very technical basis, I am obliged to issue constitutional writs to quash the decision.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 15 September 2010
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