Mani v Minister for Immigration and Citizenship
[2012] FCA 1313
•23 November 2012
FEDERAL COURT OF AUSTRALIA
Mani v Minister for Immigration and Citizenship [2012] FCA 1313
Citation: Mani v Minister for Immigration and Citizenship [2012] FCA 1313 Appeal from: Mani v Minister for Immigration [2012] FMCA 457 Parties: SRIRAM MANI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 963 of 2012 Judge: YATES J Date of judgment: 23 November 2012 Catchwords: MIGRATION – decision to cancel student visa – whether presiding Federal Magistrate failed to deal with contention advanced by appellant on application for judicial review – whether non‑existence of policy and written advice under Direction No. 38 constituted “information” that should have been provided to the appellant by the Migration Review Tribunal pursuant to s 359A of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Cases cited: Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609Date of hearing: 12 November 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 36 Solicitor for the Appellant: Mr R Turner of Turner Coulson Immigration Lawyers Solicitor for the First Respondent: Ms N Johnson of Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 963 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SRIRAM MANI
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
23 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 963 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SRIRAM MANI
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE:
23 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Magistrates Court of Australia (the Federal Magistrates Court) given on 22 June 2012 which dismissed the appellant’s application for judicial review of a decision of the Migration Review Tribunal (the Tribunal). The decision of the Tribunal was to affirm an earlier decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel the appellant’s Student (Temporary) (Class TU) 573 visa pursuant to s 116 of the Migration Act 1958 (Cth) (the Act).
Background
Section 116(3) of the Act provides that the Minister must cancel a visa in prescribed circumstances. For student visas in force on or after 8 October 2005 reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations) provides that, for the particular visa held by the appellant, the prescribed circumstances are that the Minister is satisfied that, first, the visa holder has not complied with condition 8202 and, secondly, that the non-compliance is not due to exceptional circumstances beyond the visa holder’s control. It is sufficient to note for the purposes of this matter that condition 8202 will not be complied with if the relevant education provider certifies that the student visa holder has not achieved satisfactory course progress or attendance. It is the issue of this certificate that constitutes the breach of condition, not the fact of unsatisfactory progress or attendance: Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at [44]-[45].
In order to be satisfied that the non-compliance is not due to exceptional circumstances beyond the visa holder’s control, decision-makers such as the Minister’s delegate and the Tribunal are required by the operation of s 499 of the Act to take into account directions given by the Minister. The relevant directions are contained in a document known as Direction No. 38. Direction No. 38 relevantly provides that decision‑makers must have due regard to, but are not limited to, the following matters:
· policy advice from the Director of Compliance Operational Support Section (or, if there is a restructure, from the Director of the relevant section that is the successor on each occasion) to give due regard to a political upheaval or natural disaster in a particular country. Decision-makers must give consideration to whether that country is the student’s home country and to whether the particular political upheaval or natural disaster has affected the student’s ability to comply with condition 8202;
· where DEST [the Department of Education, Science and Training] or an education provider states in writing that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and the reporting thereof. This may include concerns in relation to monitoring of the student, the complaints handling and appeals process and/or the certification and reporting process. In particular, decision-makers should give due regard to the following matters and make further inquiries as appropriate:
•if the education provider has failed to accurately monitor the student’s course progress or attendance;
•if the education provider has failed to give the student access to a complaints handling and appeals process as required under standard 8 of the National Code 2007.
The appellant is a citizen of India. He was born on 7 November 1987. He arrived in Australia on 18 September 2007 on a student visa granted on 28 August 2007. He left Australia on 27 November 2009 and returned on 24 January 2010. He has remained in Australia since then.
The appellant commenced studies with an education provider called Martin College in February 2010. At that time he was enrolled in a course leading to a Diploma of Information Technology (Systems Administration). On 18 November 2010 Martin College certified that the appellant was not achieving satisfactory progress in that course. On 25 January 2011 a delegate of the Minister cancelled the appellant’s visa.
The Tribunal
In its decision record, the Tribunal provided the following summary of the appellant’s claims based on a statement given by him on 24 December 2010:
28.… the applicant said that he went to India on 27 November 2009. Before then he decided that he wanted to change his course from TAFE Ultimo to another university. His agent changed his course to Martin College, which is a pathway into Charles Sturt University. He started this course on 16 February 2010. Then in the mid-week of May he got the news that his father had met with a tragic accident and needed knee reconstruction surgery. The applicant wanted to defer his study and return to India but he could not afford the trip. He decided to stay in Sydney and continue his study. However, he could not concentrate as he was stressed and depressed and not attending classes. Then in the final week of March 2010 the college sent him an email stating he had to meet his IT coordinator, which he did. The coordinator did not ask why he was not attending his classes, but put him on a study plan and said they would be monitoring him for the next four months. The applicant was unhappy because he still wanted to be with his father. He had no-one to counsel him or help him; he was staying at home disappointed and depressed. He did not go to another appointment with the IT coordinator because he was unhappy with the system and he was stressed because he had not spoken to his father since the day of his surgery and his mother told him his father was in terrible pain.
29.The applicant was sick and when he went to the doctor he found he had some respiratory infection and the GP have him a medicine which did not fix the infection. His tonsils were also a problem. He talked to his sister in India who sent him some medicines which fixed the problems in a week.
30.By the end of August his father was improving, the applicant felt better and he started attending classes. He was behind but he did not respond to a contact from the IT coordinator. He was getting emails about his attendance. He then decided to change his university because he could not complete the required subjects in the time he had and he was not happy with the way his progress was monitored. However, before he could change his university he got a letter about his appeal which he decided not to do. He made enquiries about different courses then got the section 20 notice.
[As in original]
After referring to some other material that the appellant had placed before it, the Tribunal made a number of findings of fact (at [51]-[55]) which can be summarised as follows:
·The appellant’s father suffered major injuries in a car accident in India in February 2010 and his recovery was slow, taking until August 2010.
·The appellant was upset, stressed and concerned by his father’s accident.
·The appellant had also used the term “depressed” to describe his feelings at that time, but there was no information before the Tribunal to indicate that the appellant was diagnosed with depression. Therefore, the term “depressed” was no more than a description of the appellant’s feelings. It was not a medical assessment.
·Apart from his description, there was no other information as to how his reaction to his father’s illness affected the appellant’s ability to attend classes and cope with his study. There was no medical information as to how the appellant’s mental condition “impacted on his study”.
·The appellant is not and was not suffering from any mental condition which adversely affected his capacity to attend classes.
·The appellant did not seek any help with his problem. He could have sought help to lessen the effect of his reaction to his father’s accident but failed to do so.
At [56] of its decision record, the Tribunal expressed the following conclusion following these findings of fact:
… the Tribunal is satisfied that the applicant’s mental stress and lack of concentration resulting from his father’s accident and injury is not an exceptional circumstance beyond the applicant’s control which led to the breach of condition 8202.
The Tribunal then went on to consider various other aspects of the appellant’s claims. It concluded that none of the following constituted an exceptional circumstance beyond the appellant’s control:
·The appellant’s respiratory tract infection of two days duration: see at [57]-[58].
·Any lack of questioning of the appellant by staff at Martin College about the appellant’s lack of attendance: see at [59]-[61].
The Tribunal also considered the requirements of Direction No. 38 and noted (at [63]‑[64]) that there was no relevant policy advice from the Department’s Director of Compliance Operational Support Section to give due regard to a political upheaval or natural disaster in India, and no written advice from the Department of Education, Employment and Workplace Relations (previously, DEST) or an education provider that they had 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 monitoring of the appellant, the complaints handling and appeals process and/or the certification and reporting process.
The Tribunal concluded (at [65]) as follows:
For the reasons given above, the Tribunal is satisfied that the applicant has not complied with condition 8202 and the ground for cancellation in s.116(1)(b) therefore exists. The Tribunal is further satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. In accordance with s.116(3) of the Act such circumstances are prescribed circumstances in which the visa must be cancelled.
The Tribunal therefore affirmed the delegate’s decision to cancel the appellant’s visa.
The Federal Magistrates Court
In the Federal Magistrates Court the appellant raised one ground of review, namely that “(t)he Tribunal failed to carry out its statutory duty”. This ground was supported by three paragraphs of particulars. The first two paragraphs were directed to a contention that the Tribunal failed to give any genuine and realistic consideration to the appellant’s claim. Those paragraphs were expressed as follows:
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.
The third paragraph was directed to a contention that the Tribunal failed to comply with s 359A of the Act. This paragraph was expressed as follows:
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.
The presiding Federal Magistrate (at [22]) recorded the appellant’s submissions arising under paragraphs (a) and (b) of the particulars to be as follows:
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.
Section 360(1) of the Act provides:
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.
His Honour observed that, although the appellant’s submission was couched in terms of a breach of s 360 of the Act, the substance of his complaint was not about the conduct of the hearing before the Tribunal but the reasoning process adopted by the Tribunal, such that there had been a failure to conduct the review required by s 348 of the Act. In that connection, s 348(1) of the Act relevantly provides:
… if an application is properly made under section 347 for review of an MRT‑reviewable decision, the Tribunal must review the decision.
His Honour reasoned (at [30]) that a submission that the Tribunal failed “to give proper, realistic and genuine consideration” to an applicant’s claims, in the context of a review such as that required by s 348 of the Act, “runs the risk of obscuring the real argument which is being advanced”. At [31] his Honour said:
The arguments made in this case … 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.
His Honour noted that it had not been submitted by the appellant that there was no evidence available to the Tribunal upon which a rational or logical decision-maker could base a decision that the appellant’s condition did not amount to “exceptional circumstances”. His Honour found, in that connection, that the appellant had not demonstrated that there was any illogicality, irrationality or unreasonableness in the Tribunal’s decision in the sense discussed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. His Honour found that the Tribunal assessed the evidence before it and, based on that assessment, concluded that the appellant 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. His Honour found that, on the evidence, it was open to the Tribunal to conclude that there was “nothing exceptional” in the appellant’s situation.
In respect of the appellant’s submissions arising under paragraph (c) of the particulars, s 359A(1) relevantly provides:
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.
His Honour rejected the appellant’s submission that the fact that there was no relevant policy advice or written advice from the sources identified in Direction No. 38 constituted “information” which should have been supplied to the appellant. In so doing his Honour relied on SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. In that case the plurality (at [18]) said:
… 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…
This observation was made with respect to s 424A(1) of the Act in relation to the conduct of a review by the Refugee Review Tribunal. Section 359A(1) of the Act, dealing with the conduct of a review by the Tribunal, is in materially the same terms. There is no reason to doubt that the same observation applies to s 359A(1).
The presiding Federal Magistrate concluded that the appellant had not established jurisdictional error on the part of the Tribunal and, as a consequence, dismissed the application with costs.
The appeal
The appellant’s notice of appeal in this Court raises one ground, expressed as follows:
The Migration Review Tribunal failed to carry out its statutory duty under the Migration Act 1958 ss. 348 360, 359A
So expressed, the ground of appeal does not identify any error on the part of the Federal Magistrates Court. The appellant’s written outline of submissions did not advance matters much further. The written outline simply repeated the arguments that had been raised in the Federal Magistrates Court and asserted that the presiding Federal Magistrate erred in the conclusions to which he had come.
When asked in the course of oral argument to identify error in the presiding Federal Magistrate’s rejection of the contention that the Tribunal failed to give any genuine and realistic consideration to the appellant’s claim, the appellant’s solicitor submitted that the presiding Federal Magistrate had impermissibly converted the appellant’s contention that the Tribunal had breached s 360 of the Act into a contention dealing with whether the Tribunal’s decision was rational or logical. The suggestion in that submission is that his Honour failed to deal with the contention that the appellant had actually advanced.
I do not accept that submission. His Honour set out the appellant’s contention in [22] of the reasons. The appellant does not suggest that his Honour failed to adequately or accurately encapsulate the contention. Indeed, the same contention was advanced in this appeal. It is implicit in his Honour’s reasoning that he rejected the contention. His Honour did not err in doing so. It is plain from the Tribunal’s decision record that it did invite the appellant to appear before it to give evidence and to present arguments relating to the issues arising in relation to the decision under review and that the appellant was given a full opportunity to place before the Tribunal all the material that he considered relevant and appropriate to the Tribunal’s task. The contention that the Tribunal breached s 360 cannot be sustained.
Like the presiding Federal Magistrate, I can only see the appellant’s contention as being directed, as a matter of substance, to a separate and different question, namely the soundness of the Tribunal’s reasoning process and whether, by reference to that reasoning process, it carried out a review of the delegate’s decision as it was required to do under s 348 of the Act. Indeed, the fact that the ground of appeal in this Court references s 348 of the Act indicates that the appellant himself considers that provision to be implicated in the contention he sought to advance in the Federal Magistrates Court.
His Honour considered the substance of the appellant’s contention, namely whether the Tribunal had given genuine and realistic consideration to his claims as identified in paragraphs (a) and (b) of the particulars. His Honour rejected that contention. No error has been shown in his Honour’s conclusion. In my view it is plain on reading the Tribunal’s decision record that it gave genuine and realistic consideration to the appellant’s claims as identified in the particulars. His Honour’s reference, in the course of considering that question, to whether the Tribunal’s decision was illogical, irrational or unreasonable – propositions which his Honour rejected – was simply by way of explication that the decision to which the Tribunal came was one that was open to it on the evidence.
The appellant’s real complaint is that the Tribunal was wrong to find that the appellant’s non-compliance with his visa conditions was not due to exceptional circumstances beyond his control. In short, the appellant was really inviting the Federal Magistrates Court to engage in merits review under the guise of a ground of judicial review. It seems to me that the appellant’s contention that the Tribunal set the evidentiary bar too high amounts to no more than a submission that, on the material before it, the Tribunal ought to have found that the appellant’s concerns and feelings about his father’s illness, as he described them to be, should have been sufficient to persuade the Tribunal that exceptional circumstances existed in the present case. The presiding Federal Magistrate was not in error in rejecting that approach. Like his Honour, I am of the view that the decision to which the Tribunal came in that regard was one that was open to it on the evidence. As no error has been demonstrated on the part of the presiding Federal Magistrate, this aspect of the appeal must fail.
In my view the second aspect of the appeal fails as well. The presiding Federal Magistrate did not err in concluding that the non-existence of policy advice and written advice of the kind identified in Direction No. 38 was not “information” for the purposes of s 359A of the Act. Furthermore, as the Minister correctly points out, at least part of this “information” (as the appellant contends it to be) – namely, the absence of policy advice about political upheaval or natural disaster in a particular country – is not specifically about the appellant; it is just about a class of persons of which the appellant is a member: see s 359A(4)(a) of the Act. Section 359A does not apply to “information” of that character.
In the course of the appeal the appellant advanced the submission that, had he been informed of this “information”, it is possible (the matter was not put any higher) that he might have conducted the hearing before the Tribunal differently. A somewhat similar submission was advanced in the Federal Magistrates Court. The submission was that the appellant might have conducted 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.
In my view that submission is without merit. On 13 December 2010 the appellant was provided with a copy of Direction No. 38 by the Department of Immigration and Citizenship in the letter in which he was given formal notice that consideration would be given to cancelling his visa. The letter contained the following invitation:
In preparing your comments, please read fully and carefully the contents of the Direction. You should address in particular the matters set out in paragraph 4 of Part A of the Direction which you feel apply to you or are relevant to your circumstances. You may also provide any further information, apart from those considerations found in the Direction, that you feel the Minister or delegate ought to be aware of and take into account.
Paragraph 4 of Part A of the Direction sets out the requirement that the decision‑maker is to have due regard to, but is not limited to, the policy advice and written advice that I have quoted in [3] above. The appellant raised no matter touching upon those issues, notwithstanding the invitation that had been given to him to do so. If he had genuinely thought that there had been or might have been errors or omissions in the process leading to the finding that he had not complied with his visa conditions, it can be expected that he would have raised those matters, or any concerns he had about them, at that time. When the delegate subsequently cancelled the appellant’s visa on 25 January 2011, he made clear in his decision record that there was no relevant policy advice or statement in writing of the kind identified in Direction No. 38. The appellant cannot genuinely claim that he was not aware, well before the proceeding in the Tribunal, that there was no relevant policy advice or written advice or that, had he been aware of that fact, he might have conducted himself differently before the Tribunal.
Disposition
In the end result, I am not persuaded that the presiding Federal Magistrate erred in concluding that the appellant had failed to identify jurisdictional error on the part of the Tribunal.
The appeal should be dismissed with costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 23 November 2012
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