MANI v Minister for Immigration
[2012] FMCA 457
•22 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 457 |
| MIGRATION – Subclass 573 Higher Education Sector visa – breach of condition 8202 – exceptional circumstances not established – cancellation of visa – review of decision of Migration Review Tribunal (“Tribunal”) to affirm cancellation. ADMINISTRATIVE LAW – Whether validity of Tribunal hearing affected by Tribunal’s consideration of the matters before it – nature of duty to give proper, genuine and realistic consideration to applicant’s claims – consequences of failure to give proper, genuine and realistic consideration to applicant’s claims – whether absence of evidence is information for the purposes of s.359A of the Migration Act 1958. |
| Migration Act 1958, ss.116, 348, 359A, 360, 415, 424A, 474, 499 Migration Regulations 1994, reg.2.43, cl.8202 of sch.8 Education Services for Overseas Students Act 2000, s.19 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 Tickner v Chapman (1995) 57 FCR 451 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 Swift v SAS Trustee Corporation [2010] NSWCA 182 Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SRIRAM MANI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2179 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 May 2012 |
| Date of Last Submission: | 28 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2179 of 2011
| SRIRAM MANI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India who was granted a Class TU subclass 573 Higher Education Sector visa on 14 April 2008. On 25 January 2011 a delegate of the first respondent (“Minister”) cancelled the applicant’s visa pursuant to s.116 of the Migration Act 1958 (“Act”) on the basis that he had not complied with one of its conditions. The applicant subsequently applied to the second respondent (“Tribunal”) for a review of that decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Amongst other conditions, subclass 573 visas are subject to condition 8202 which is found in sch.8 to the Migration Regulations 1994 (“Regulations”). It relevantly provides:
(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) …
(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; …
The consequences of breaching condition 8202 are set out in s.116 of the Act which relevantly states:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; …
(2) …
(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.
The prescribed circumstances referred to in s.116(3) are found in reg.2.43 of the Regulations. It relevantly provides:
2.43 Grounds for cancellation of visa (Act, s.116)
…
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) …
(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 combined effect of s.116 and reg.2.43(2)(b)(ii) is that if the Minister is satisfied that a 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, he must cancel the visa in question.
In considering whether non-compliance was due to exceptional circumstances beyond the visa holder’s control, the Minister is required to have regard to Direction No.38, being departmental guidelines made pursuant to s.499 of the Act about the performance of powers and functions under reg.2.43(2)(b)(ii)(B). Direction No.38 requires the Minister to have regard to:
a)policy advice from his department’s Director of Compliance Operational Support Section in respect of political upheaval or natural disaster in a particular country and whether it has affected a student’s ability to comply with condition 8202; and
b)advice from the Department of Education, Employment and Workplace Relations or an education provider that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting, including concerns in relation to the monitoring of the student, the complaints handling and appeals process and/or the certification and reporting process.
In determining a review the Tribunal has the same powers and discretions as the Minister: s.349 of the Act.
Background facts
As noted earlier, the applicant was granted a subclass 573 Higher Education Sector visa on 14 April 2008. On 18 November 2010 his education provider, Study Group Australia Pty Ltd (trading, relevantly, as Martin College), certified the applicant as not achieving satisfactory course progress in relation to his registered course of study, being a Diploma of Information Technology (Systems Administration).
By a Notice of Intention to Consider Cancellation (“NOICC”) dated 13 December 2010, the applicant was advised that the Minister’s department was considering cancelling his visa. On 24 December 2010 the applicant wrote to the department in response to its NOICC and made the following claims:
a)he transferred from TAFE to Martin College as the latter provided him with a pathway to enter university;
b)after commencing studies with Martin College in February 2010, he received news that his father had been in an accident and required knee reconstruction surgery. He wanted to defer his studies to be with his father in India but could not afford the trip so stayed in Sydney and continued studying. However, he became stressed and depressed and could not concentrate on his studies. He did not attend his classes;
c)in March 2010 his course co-ordinator at Martin College placed him on a study plan and told him that he would be monitored for the next four months. He was not asked about his problems or why he was not attending classes;
d)he had nobody to counsel or help him;
e)later, he received a call from his course co-ordinator who told him to come and see him. He did not go because he was unhappy with the college’s system;
f)his health deteriorated and he became sick. He developed a respiratory infection and had problems with his tonsils. He was in “total pain” and had his sister in India send him some medication;
g)he felt better when his father’s condition started to improve in August and began attending classes again. However, he could not do the assessments as he had fallen too far behind. For this reason, and because he was unhappy with the college’s monitoring system, he decided to change schools; and
h)he was in the process of making enquiries about different courses when he received notification from Martin College that he had been certified as not having achieved satisfactory course progress.
As noted earlier, a delegate of the Minister cancelled the applicant’s subclass 573 visa on 25 January 2011. The delegate was not satisfied that the applicant’s breach of condition 8202 was due to exceptional circumstances beyond his control.
On 2 August 2011 the applicant provided the Tribunal with a number of documents including medical certificates from his father’s treating doctors in Bangalore. Also included was a medical certificate dated 21 April 2010 from a doctor in Bangalore indicating that the applicant had had a cold and a fever for two days and had been prescribed various medications.
The applicant appeared before the Tribunal on 31 August 2011 and essentially repeated the claims he had made in his letter of 24 December 2010. He also claimed that:
a)he had not sought medical help for the stress he was feeling as he did not have enough money to see a doctor;
b)he did not seek help from anyone at Martin College. He spoke to his course co-ordinator in March 2010 but was not given an opportunity to explain the reason for his poor attendance. He did not go to his next appointment as he had not been satisfied with the first one; and
c)he was sick with a respiratory condition for about two to three weeks in April 2010. He saw a doctor but as he was not happy with the diagnosis and treatment he contacted his sister in India who arranged medication for him.
The Tribunal’s decision and reasons
The Tribunal was satisfied that the applicant had breached condition 8202(3)(a) of his subclass 573 visa as his education provider, Study Group Australia Pty Ltd trading as Martin College, certified on 18 November 2010 that he had not achieved satisfactory course progress for s.19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. The issue which the Tribunal then had to consider was whether the breach of condition 8202 was due to exceptional circumstances beyond the applicant’s control.
The Tribunal was not satisfied that the applicant’s mental stress and lack of concentration resulting from his father’s accident and injury was an exceptional circumstance beyond the applicant’s control, noting that:
a)there was no information before the Tribunal to indicate that the applicant had been diagnosed with depression. It found that that term had been used by the applicant to describe his feelings rather than as a medical assessment. Consequently, the Tribunal was not satisfied that the applicant was suffering from depression at the relevant time;
b)there was no medical information as to how the applicant’s reaction to his father’s illness impacted on his ability to attend classes and cope with his study. From this, the Tribunal found that the applicant had not been suffering from any mental condition which would have adversely affected his capacity to attend classes; and
c)the applicant did not seek any help with his problem, whether from Martin College or a doctor. The Tribunal was of the view that the applicant could have sought help to cope with and lessen the effects of his reaction to his father’s accident.
The applicant claimed that he was sick with a respiratory tract infection for two to three weeks which caused him to miss classes. However, the medical certificate he had provided indicated that he had been ill for two days and was based on what the applicant’s sister had said to the doctor, not on a consultation with the applicant. In the circumstances, the Tribunal was not satisfied that the applicant’s respiratory tract infection of two days’ duration was an exceptional circumstance beyond his control which led him to breach condition 8202.
The Tribunal was of the view that the applicant could have explained his situation to the appropriate person at Martin College. The applicant claimed that at the meeting with his course co-ordinator in March 2010 he was not asked about the reasons for his non-attendance; he was simply told that he was going to be monitored. The Tribunal noted that the meeting had been arranged specifically to discuss the applicant’s attendance and there was nothing to indicate that he could not have provided an explanation. The Tribunal also noted that the applicant chose not to attend the next scheduled interview. The Tribunal was therefore satisfied that any lack of questioning of the applicant by Martin College at those interviews was not an exceptional circumstance beyond the applicant’s control.
The Tribunal had regard to Direction No.38 and noted that there was no information before it to indicate that there was policy advice from the department’s Director of Compliance Operational Support Section to give due regard to political upheaval or natural disaster in India. Nor was there advice from the Department of Education, Employment and Workplace Relations or an education provider that they had concerns about errors and/or inappropriate actions or omissions in the process leading up to the applicant’s non-compliance and subsequent reporting.
For these reasons, the Tribunal was satisfied that the applicant’s non-compliance with condition 8202 was not due to exceptional circumstances beyond his control. Consequently, and in accordance with s.116(3) of the Act, the Tribunal affirmed the decision of the delegate to cancel the applicant’s subclass 573 visa.
Proceedings in this Court
In his application commencing these proceedings the applicant alleged:
1.The Tribunal failed to carry out its statutory duty.
Particulars
a.The Tribunal, by only being prepared to accept that the Applicant suffered from depression, failed to give any genuine and realistic consideration to the Applicant’s claim that he failed to attend classes because he was depressed following his father’s car accident, resulting operation and convalescence.
b.The Tribunal, by dismissing the Applicant’s claim because he did not seek any help with his problem, failed to give genuine and realistic consideration to that claim.
c.The Tribunal failed to comply with the Migration Act 1958 s.359A
(i) The Tribunal found, at para.63, that there was no Policy Advice from the Department’s Director of Compliance Operational Support Section in relation to political upheaval or natural disasters in India.
(ii) The Tribunal found, at para.64, that there is no written advice from the Department of Education, Employment and Workplace Relations or an education provider that there were concerns about errors and/or inappropriate actions or omissions in the process leading to non-compliance and subsequent reporting, including concerns in relation to monitoring of the Applicant, the complaints handling and appeals process and/or the certification and reporting process.
(iii) As the Tribunal failed to give the applicant notice of the lack of such advice, explain why it was relevant and give him an opportunity to comment on it, the Tribunal failed to carry out its statutory duty.
Failure to give genuine and realistic consideration to the applicant’s claims
In his written submissions the applicant argued that the relevant obligation imposed on the Tribunal by s.360, that it invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, requires the Tribunal to give an applicant a meaningful invitation to a real hearing where issues are properly considered. He submitted that if the Tribunal places the evidentiary bar too high it fails to carry out that statutory obligation to provide a real and meaningful review of the decision. The applicant argued that by failing to accept that he had been affected by depression, simply because there was no independent evidence of it and because he had failed to seek help for it, the evidentiary bar had been set too high with the result that the Tribunal failed to give any real consideration to this aspect of his claim.
The first observation to make in relation to the applicant’s submissions is that they confuse and conflate the Tribunal’s obligation to provide an applicant with a real and meaningfully hearing, in the sense discussed by Perram J in Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575 at 595-597 [75]-[82], and its obligation to have regard to all the evidence and arguments submitted by an applicant in support of his or her claim to be entitled to a visa. Although by conducting a hearing contrary to its obligations under s.360 the Tribunal may deny itself evidence and arguments which an applicant is entitled to place before it, and may reach a decision which objectively is factually or logically unsound as a consequence, the error is the Tribunal’s denial to the applicant of his or her right to give evidence and present arguments.
The applicant does not allege that an error of that sort affects the review presently under consideration. Rather, he alleges that error is to be found in the Tribunal’s reasoning process and, in particular, in what he says was the Tribunal’s failure to give proper consideration to the case he made to it. The question he really raises is not whether the Tribunal breached its obligation under s.360 but, at least ostensibly, whether its consideration of the evidence and arguments was deficient such that it thereby failed to conduct the review required by s.348 of the Act: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at 15-16 [48]-[49].
In respect of that latter obligation, it has been said that a decision-maker such as the Tribunal must engage in an active intellectual process in respect of the case advanced by the applicant. In Tickner v Chapman (1995) 57 FCR 451 Black CJ said:
The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary (2nd ed) as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission. (at 462)
In NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 Madgwick J said, Conti J agreeing:
… given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to “have regard” to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [58], a “decision-maker may be aware of information without paying any attention to it or giving it any consideration”. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration — had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in “an active intellectual process” in relation to the letter — yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so. (at 92-93 [212])
This obligation to consider matters raised by an applicant has also been expressed as an obligation to give “proper, genuine and realistic consideration” to those matters. In this regard, Gummow J said in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470:
The appellants also referred to s 425. In certain circumstances, including those of this case, s 425(1) obliged the RRT to “give the applicant an opportunity to appear before it to give evidence”. Counsel for the Minister accepted that it is implicit in the reference in s 425 to a hearing where evidence may be given that the challenge to the decision under review by the RRT be given a proper, genuine and realistic consideration in the decision to be subsequently made by the RRT. (reference omitted) (at 482-183 [37])
However, as Basten JA said in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], Allsop P agreeing:
The language of “proper, genuine and realistic consideration” was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethic Affairs (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 at [79].
His Honour continued:
If it is demonstrated in a particular case that an administrative decision-maker has failed to address a claim properly made, or has failed to identify the statutory power under which the claim should properly be disposed of, there will be a constructive failure to exercise jurisdiction. Relief will be available accordingly. Thus, “to fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord [the applicant] natural justice”: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ, Hayne J agreeing) and [86]–[88] Kirby J), applied by this court in Spanos v Lazaris [2008] NSWCA 74 at [19], in my judgment, Beazley and Bell JJA agreeing. Where a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so “properly” or “genuinely”, or “realistically” may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process.
Indeed, that was relevantly the burden of the High Court’s judgment in Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 where it was held that the Federal Court, as intermediate court of appeal, had employed the language of “proper, genuine and realistic consideration” to register its response to a weighing of the evidence with which it disagreed. The High Court held that the Tribunal’s decision had been open to it on the evidence and, contrary to the conclusion reached by the Federal Court based on its disagreement with the Tribunal’s assessment of certain factual matters, did not manifest jurisdictional error.
Further, a submission that the Tribunal has failed to give proper, realistic and genuine consideration to a matter runs the risk of obscuring the real argument which is being advanced. It may be that the applicant argues that a claim, an item of evidence or an argument was overlooked, or given mere lip service, which reflects the true nature of the requirement to give consideration to matters raised by an applicant, or it may be an argument that such consideration as the Tribunal did give to a claim, item of evidence or argument was illogical, irrational or unreasonable, something with which the requirement is not concerned.
The arguments made in this case fall into the latter category and invite the Court to find that the Tribunal made itself too hard to convince that the applicant was sufficiently depressed or downhearted that he was burdened by exceptional circumstances beyond his control which excused his breach of condition 8202 of his visa. The applicant submitted in this regard that the Tribunal was, in effect, unreasonable because it required medical evidence before accepting that he was depressed. Seen in that way, what the applicant really seeks from these proceedings is a finding that the Tribunal should have accepted his evidence as sufficient to demonstrate exceptional circumstances. The Court has no power in judicial review proceedings such as these to set the Tribunal’s decision aside on the basis that it disagrees with the Tribunal’s factual conclusions. Consequently, this argument cannot succeed.
Significantly, the applicant did not submit that there was no evidence available to the Tribunal upon which a rational or logical decision-maker could base a decision that his condition did not amount to the exceptional circumstances referred to in the Regulations. As a result, the applicant has not demonstrated that there was any illogicality, irrationality or unreasonableness in the relevant sense as discussed in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 and explained in SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58.
Moreover, in the absence of any expert medical evidence identifying the applicant’s condition as a form of illness and, in particular a debilitating one, the Tribunal did not err by not making a finding that it had that character. The Tribunal assessed the evidence before it and, based on that assessment, concluded that the applicant had done no more than describe his feelings, feelings which would not have prevented him from seeking help from Martin College or from a doctor. On the evidence, it was open to the Tribunal to conclude that that was the case and that there was nothing exceptional, for the purpose of reg.2.43(2)(b)(ii)(B), in the applicant’s situation.
Breach of s.359A
Section 359A of the Act relevantly provides:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
The applicant submitted that in reaching its decision on the review the Tribunal relied upon the fact that there was no policy advice from the Director of Compliance or written advice from the Department of Education, Employment and Workplace Relations, a reference to the relevant requirement under Direction No.38 referred to above at [8]. The applicant submitted that the fact that there was no advice available from these sources was information which should have been supplied to him, if only so that he could perform his own research into whether there had been any errors or omissions in the process leading to the finding that he had not complied with his visa conditions.
Notwithstanding the arguments advanced in support of this proposition, it is clear that the fact that such advice did not exist was not “information” in the sense that word is used in s.359A. In this regard, in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 the High Court said in relation to s.424A, the Refugee Review Tribunal analogue of s.359A:
… Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. … (reference omitted) (per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at 1196 [18])
For this reason, the Tribunal did not breach s.359A as alleged.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 22 June 2012
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