Mazumdar v Minister for Immigration
[2012] FMCA 1170
•18 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAZUMDAR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1170 |
| MIGRATION – MRT decision – application for further student visa – whether applicant complied substantially with conditions on previous visa – applicant claimed that he ceased to study due to mental stress – Tribunal not satisfied that the criterion was met – no error of law or procedure established – application for judicial review dismissed. |
| Migration Act 1958 (Cth), ss.116(3), 359A, 359AA, 476 Migration Regulations 1994 (Cth), reg.2.43(2)(b), Sch.2 cl.572.231 & 572.235, Sch.8 cl.8202 |
| Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379 Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507, [2009] HCA 31 Minister for Immigration & Multicultural Affairs v Applicant A125 (2007) 163 FCR 285 Minister for Immigration & Multicultural Affairs v Modi (2001) 116 FCR 496 Musapeta v Minister for Immigration & Citizenship [2007] FMCA 729 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419, [2006] FCAFC 195 Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 Yu v Minister for Immigration & Citizenship [2009] FMCA 1161 |
| Applicant: | MOHAMMAD KOUSHIK IQBAL MAZUMDAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1623 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 26 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Jones |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Ms R Francois with Mr H Jewell |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs set in the amount of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1623 of 2012
| MOHAMMAD KOUSHIK IQBAL MAZUMDAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Mazumdar seeks judicial review of a decision of the Tribunal made on 26 June 2012, which affirmed a decision of a delegate of the Minister made on 23 January 2012. The delegate refused an application lodged by Mr Mazumdar’s solicitor on 16 October 2009, seeking a student visa, subclass 572. Both the delegate and the Tribunal based their decisions on their lack of satisfaction as to the criterion in Sch.2 cl.572.235 of the Migration Regulations 1994 (Cth) that “the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant”. Mr Mazumdar now contends that the Tribunal made jurisdictional errors when failing to be so satisfied.
The delays in the above decision-making resulted from an intervening decision and appeal to the Tribunal, during which Mr Mazumdar was able to establish satisfaction of a criterion requiring a level of English proficiency. The delays had the curious effect that, by the time that the Tribunal made its second decision on the 2009 visa application, the period of the new courses which Mr Mazumdar had proposed to study between November 2009 and January 2012 had fully elapsed. The Tribunal accepted that it could still grant a new student visa on the 2009 application, but drew Mr Mazumdar’s attention to the requirement in Sch.2 cl.572.231 that at the time of its decision in 2012 he would need to establish that he was “enrolled in, or is the subject of a current offer of enrolment in” a relevant future course of study. In its decision, the Tribunal noted that Mr Mazumdar never submitted evidence to show this, and it said that there was therefore another ground for refusing the visa. Mr Mazumdar now also contends that a procedural defect attended this part of the Tribunal’s decision.
For the reasons which follow, I have concluded that all of his grounds for judicial review should be rejected.
The conditions applying to the last substantive visa
Mr Mazumdar came to Australia in 2003 on a student visa, and remained here on a series of further student visas. His last ‘substantive visa’ before making his 2009 application was a subclass 572 ‘Vocational and Education Training Sector’ visa, which was granted on 25 February 2008 and was valid until 15 October 2009 (‘the 2008 visa’).
The grant of the 2008 visa was based upon the submission to the Department by Mr Mazumdar of three numbered forms of ‘Overseas Student Confirmation-of-Enrolment’ (known as ‘CoEs’), which had been created on 28 December 2007, and were recorded in the Commonwealth Department of Education’s PRISMS database. One of the CoEs indicated that Mr Mazumdar had been accepted by Sydney Institute of Tertiary Education Pty Ltd trading as Uniworld Business College (‘Uniworld’) for enrolment in a ‘Certificate IV in Business Management’ course from 14 February 2008 until 14 August 2008, and that he had pre-paid half of the total course fee. The other two CoEs indicated that he had been accepted at the same time by Uniworld for enrolment in a ‘Diploma of Business Management’ course from 15 August 2008 until 15 August 2009, and that he had not pre-paid any course fees. I shall refer to these as ‘the 2007 CoEs’. In effect, in my opinion, they provided confirmation showing that there existed in December 2007 offers by Uniworld to accept future enrolments by Mr Mazumdar in the two courses which he proposed to undertake during 2008 and 2009 if granted another visa. The subsequent grant of the 2008 visa on 25 February 2008 allows an implication that these offers of enrolment probably were probably still open as at that date.
The 2008 visa was subject to the conditions found in Sch.8 item 8202, which relevantly provided:
8202
(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.
The decisions of the present delegate and Tribunal were based upon their lack of satisfaction that Mr Mazumdar had complied substantially with the enrolment condition in item 8202(2), by actually enrolling in the two proposed courses and continuing to be so enrolled throughout the full duration of the two courses. Mr Mazumdar did not dispute before the Tribunal or the Court that the enrolment condition required continuous enrolment over the period of the visa, and this interpretation of the condition has been established on several authorities, including those cited by myself in Yu v Minister for Immigration & Citizenship [2009] FMCA 1161.
The combined effect of condition 8202(2) and criterion 572.235, was that Mr Mazumdar could only qualify for a further visa on his 2009 application, if he could positively satisfy the decision-makers that he had ‘complied substantially’ with this condition on his 2008 visa, by being enrolled in relevant courses continuously throughout the period of his 2008 visa. In that sense, the onus of persuasion was on Mr Mazumdar to show that he had been continuously enrolled during 2008 and 2009, or at least that he had ‘complied substantially’ with the condition requiring this. Criterion 572.235 also required him to show substantial compliance with every other condition found within item 8202, but the decision-makers could base their adverse decisions purely upon dissatisfaction as to substantial compliance with only this condition (see Musapeta v Minister for Immigration & Citizenship [2007] FMCA 729 at [31]).
The legal effect of a test of ‘substantial compliance’ with a visa condition has been the subject of a number of Federal Court judgments, including a line of authority, which was referred to by the Full Court in Minister for Immigration & Multicultural Affairs v Modi (2001) 116 FCR 496, and was cited by the present Tribunal. In Modi, the Court said:
12.In reaching its decision, the Tribunal applied Baidakova v MIMA [1998] FCA 1436, a case concerning the same issue of whether the applicant had complied with course requirements. In that case, Katz J cited with agreement a passage in the decision of Sackville J in Kim v Witton (1995) 59 FCR 258 at 271 in which Sackville J set out considerations relevant to the determination of the issue of substantial compliance with a visa condition. At the commencement of the passage that Katz J cited, Sackville J said:
"[I]n determining whether an applicant has complied substantially with a condition imposing a prohibition, the Tribunal should consider the relevant circumstances of the case"
Sackville J then went on to say that those circumstances included "whether or not the applicant deliberately flouted the condition".
13.Sackville J was careful to say that the list of considerations and circumstances was not intended to be exhaustive and that, in general, it was a matter for the Tribunal to assess the weight to be accorded to such factors, having regard to the circumstances of the case. He added (at 271):
The mere fact that an applicant did not appreciate that his or her conduct breached a condition does not necessarily establish that he or she had complied substantially with that condition.
14. We should note that on the hearing of the appeal it was common ground that, consistently with Baidakova and according to the evidence in the particular case, a decision-maker, in determining whether there has been substantial compliance with course requirements as required by condition 8202, is entitled to take into account a range of subjective matters such as the applicant's reasons for failing to satisfy those requirements.
15.Kim v Witton and Baidakova were followed by Gray J in Navin Shrestha v MIMA [2001] FCA 1578 and by Ryan J in Soegianto v MIMA [2001] FCA 1612.
…
19. In our view, the correct approach to the issues in this case is that taken by Gray J in Shrestha at [17] where his Honour pointed out that the considerations listed by Sackville J in Kim v Witton were not to be elevated to the status of relevant considerations in every case. His Honour observed that the circumstances of the case will determine what the statutory duty of the decision-maker involves in those circumstances and that there is no rigid test.
20. The Tribunal, in determining whether on the facts found by it Mr Modi had substantially complied with condition 8202, was entitled to have regard to the nature of Mr Modi's conduct that resulted in his having failed to comply with his course requirements. It described that conduct as involving a 'flouting' of the visa conditions. When it did so it was doing no more than making a factual assessment of a matter that it was entitled to take into account in determining whether there was substantial compliance. That factual assessment involved no error of law.
21. As we read the Tribunal's decision, it consciously had regard to the notion of "deliberate" flouting as an element to be considered in the light of all the circumstances in determining whether there had been substantial compliance. The Tribunal did not go beyond having appropriate regard to the considerations referred to in cases such as Kim v Witton and Baidakova and its approach did not involve any error of law. As we have noted, it was not disputed that the concept of "deliberate" flouting could be relevant to the Tribunal's consideration of the application.
22.It is true that the Tribunal made reference to "the test" in Baidakova, and as Gray J pointed out in Shrestha, it is not right to regard those cases as establishing any "test". We consider however that it is clear from the Tribunal's reasons as a whole and in particular from para23, para24 and para28 of those reasons that it was not in truth applying a 'test' and was not thereby diverted from the task of considering whether, in all the relevant circumstances, Mr Modi had complied substantially with condition 8202 of his visa.
The 2009 visa application
In his 2009 visa application, Mr Mazumdar gave no details and attached no academic records to show that he had been engaged in any study during 2008 and 2009. He claimed only that he had undertaken a course of ‘Advanced Diploma of Accounting’ at Clarendon Business College from May to December 2007, as well as earlier courses in 2004 and 2006. Moreover, a transcript for a 2007 course which was subsequently provided by his agent, showed that he had only completed 30 out of 38 of its subjects, before Clarendon Business College ‘closed down’.
The agent did not respond to a request sent on 28 October 2009, that Mr Mazumdar also provide “attendance certificates and results of all courses studied since 25/02/2008”.
The parts of the Department and Tribunal files for the 2009 application which have been reproduced in the Court Book, contain some print-outs from PRISMS, suggesting that Mr Mazumdar’s enrolments or proposed enrolments in the two courses upon which his 2008 visa had been granted had been cancelled. These documents do not clearly show the circumstances in which this was recorded.
The material includes copies of the three 2007 CoEs for the two Uniworld 2008-2009 courses, which each have the added notations ‘this confirmation-of-enrolment has been cancelled’. However, it is unclear how and when these notations were recorded in PRISMS (see Court Book pp.123, 124, and 125). I shall refer to these three documents as the ‘annotated 2007 CoEs’, and note that their existence on the Tribunal file provides one of the grounds of review contended before me.
Also in the Court Book is a summary page printed in April 2012 from PRISMS, which refers to Mr Mazumdar’s ‘CoE Status’ as ‘cancelled’ on 16 April 2008 for ‘non-commencement of studies’ (see Court Book p.120). As I shall explain below, the Tribunal explored this information with Mr Mazumdar at its hearing.
The initial decision on the 2009 visa application, which was made by the Minister’s delegate on 17 December 2009, was not based upon non-compliance with the conditions on Mr Mazumdar’s 2008 visa, but upon a finding he had not provided sufficient evidence ‘that his English language proficiency meets the requirements’ of the relevant part of criterion 572.223(2).
Mr Mazumdar appealed to the Tribunal from that decision. His appeal was protracted for reasons which are not explained in the material before me. While it was pending, he was able to present evidence of achieving a sufficient result in an IELTS test conducted on 16 April 2011. He also presented evidence of two new courses proposed to be undertaken between May 2011 and March 2012. The Tribunal accepted that this evidence overcame the previous objection, as a result of the construction of the regulations upheld by the Full Court in Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379. On 11 May 2011, the Tribunal remitted the 2009 visa application for reconsideration, with the direction that Mr Mazumdar met the English proficiency criterion. The Tribunal did not consider whether he could satisfy other criteria for the visa.
The case officer then raised again the concerns whether Mr Mazumdar had been enrolled in courses of study during the currency of his 2008 visa. On 8 July 2011, he made a request for further information, which said in part:
Records held by the Department indicate that you have not been studying since your last visa was granted in 2007 till now. Therefore a (sic) has elapsed in between courses. Please provide an explanation as to what you have been doing in Australia during the period specified above if you have not been studying (including any supporting documents). Please include any transcripts of academic results or attendance certificates if you were studying during this period.
Mr Mazumdar’s migration agent responded on 26 July 2011:
In relation to the reasons that he did not continue with his study after 2007, we advise that this was due to effects of the tragic sudden death of his mother, his sister and his grandmother on the same day as a result of a traffic accident on 29 May 2005. I enclose death certificates and police report for your reference. The applicant continued with his studies initially; however he suffered further psychological damages a year later when he discovered that the three relatives were still alive when they were taken to the hospital, but their injuries were not attended by the doctors for 48 hours and they died in the corridors of the hospital. They could have survived had they been treated earlier. The applicant’s father died of illness earlier. As the result of the accident, the applicant has now no parents or siblings, other than his grandfather and uncles.
The applicant’s entire close family has died in an accident, the circumstances were extremely compelling. We have not referred the applicant for psychological assessment because he still could not come to terms with the facts, and feels too painful to talk about it. It is my submission that tragic circumstances have had severe adverse effects on the applicant’s ability to continue his studies in 2007.
A delegate of the Minister then made a second decision refusing the 2009 visa application. The delegate referred to “a gap in between courses of about 24 months”, and to the explanation which had been provided by Mr Mazumdar’s agent. She said:
There is no evidence before me to indicate that Mr Mazumdar Mohammad Koushik Iqbal sought assistance for psychological issues affecting his studies. I have carefully reviewed all the reports included with the case carefully. There is also no evidence to show that Mr Mazumdar Mohammad Koushik Iqbal had travelled offshore in that time to clarify the situation.
Therefore, I am not satisfied that the applicant is a genuine applicant for stay as a student visa holder as he has not complied with his previous visa conditions.
I am (sic: not) satisfied that the applicant meets conditions 572.235.
Mr Mazumdar again appealed to the Tribunal with the assistance of his agent.
On 3 May 2012, he attended a hearing of the Tribunal, accompanied by his migration agent. A transcript of the hearing is in evidence before me. It is apparent from the transcript, that the Tribunal sought to clarify exactly what studies had been undertaken by Mr Mazumdar during the whole period of his residence in Australia, and during the currency of his 2008 visa in particular. The exchanges included:
TRIBUNAL MEMBER: … the main period we’re looking at is the period when your last student visa was valid and your last student visa was granted on 25 February 2008. So if we move on to that date. What were you enrolled in at the time you applied for that student visa?
MR MAZUMDAR: I think business management.
TRIBUNAL MEMBER: Okay, then did you commence study in that course?
MR MAZUMDAR: What’s that date you said?
TRIBUNAL MEMBER: 25 February 2008 was when the visa was granted and I think you had been enrolled since 14 February 2008 in a Certificate IV in Business Management which was obviously going to lead on to a Diploma of Business Management. Do you remember if you actually commenced any study? Did you do any studies for that course?
MR MAZUMDAR Actually, it happened after just I came back from my home and I found something, I mean, what I can say – unexpected things happen in my – back to my home, so I was not able to continue with my study but I was enrolled on that particular time in this college.
TRIBUNAL MEMBER: Right, because from what I could see on the database of it all that’s available to me, that enrolment was actually cancelled about two months later, so on 16 April 2008 and the reason given was non-commencement of studies. So it appeared to me that you didn’t actually start studying that course. So within a couple of months the college cancelled the enrolment. Does that sound right to you?
MR MAZUMDAR: I mean I was not informed that I can’t start it or anything. I don’t know you got – when I come back from home and then I got those documents I found three of my family members had died, my mother, my sister and my grandmother was all in the same accident. So mentally, I was not able to do anything.
TRIBUNAL MEMBER: So does it seem likely that you didn’t actually study in that course and so the enrolment was cancelled. That seems likely from what you’ve said. So then the last student visa you held, as I said, it was granted on 25 February 2008 and it was valid until 15 October 2009. So I would like to know whether you enrolled in anything more after the Certificate IV in Business Management that was cancelled in April 2008, did you enrol in anything after that up until the time the visa expired in October ’09 as far as you recall?
MR MAZUMDAR: I can’t remember.
TRIBUNAL MEMBER: The records available to me seem to indicate that the next enrolment was in the Certificate III in business leading to the Certificate IV in the Diploma of Business at Lloyd’s College and that was from 13 November 2009.
MR MAZUMDAR: Okay.
TRIBUNAL MEMBER: Does that sound right to you?
MR MAZUMDAR: Yes.
TRIBUNAL MEMBER: Okay, so it seems that you weren’t enrolled in anything between April ’08 when the business management courses were cancelled at enrolment and then when you next enrolled which was in the certificate III in business from 13 November ‘09.
MR MAZUMDAR: Madam, I was not able to continue my study in that period and if the – I mean, a massive tragedy in my family and the last date I went to – one of my friend suggest to me about the – to talk with Diana so I went there, I think, I did – she lodged my application on the last day and she said to keep the things valid I have to apply, I don’t have any other option.
TRIBUNAL MEMBER: Yes.
MR MAZUMDAR: So I just applied it and I don’t know – I mean I can’t explain the thing is what I found in – end of 2007 or when I went home my mum was in the hospital, hospital … and the doctor didn’t even see her for two hours.
and later:
TRIBUNAL MEMBER: … All right, I know that it would be upsetting for you but perhaps, if you don’t mind, we could just return to that period when you held your last student visa which was from February 2008 to October 2009. That was a period of about 20 months that you held the last student visa, but it appears from what you’ve just told me what we’ve established is that for most of that period all but about the first two months you weren’t actually enrolled in any course of study. Sir, can I ask you just to tell me again, the reasons why you weren’t enrolled? Were your reasons for non-enrolment in that period all relating to the tragic accident that happened to your family and the after effects of that?
MR MAZUMDAR: Yes, this is the main thing and I was not informed that if I – I mean I was not in the situation to share with someone about my situation to talk with anyone and I was – I was not able to do anything.
TRIBUNAL MEMBER: Okay, the accident actually happened in 2005.
MR MAZUMDAR: That’s right.
TRIBUNAL MEMBER: And you made the trip back to Bangladesh but that was not until ---
MR MAZUMDAR: Seven, I think, end of seven – end of six, I think.
TRIBUNAL MEMBER: End of 2006, it looked as if you were there for most of January 2007, is that right?
MR MAZUMDAR: Yes.
TRIBUNAL MEMBER: So what was the situation at that stage? Is that when you discovered the facts about the doctors not having treated your relatives?
…
The Tribunal then further explored Mr Mazumdar’s explanation for what must have appeared to it to be a conceded non-compliance with condition 8202(2) from April 2008 until the expiry of his 2008 visa on 15 October 2009. Neither Mr Mazumdar nor his agent disputed that his enrolment at Uniworld had ceased during 2008, and they did not dispute the Tribunal’s repeated suggestion that the live issue in relation to criterion 572.235 concerned whether his explanations could establish ‘substantial compliance’ with the requirement of continuous enrolment (e.g. also see transcript pp.13, and 17-18).
After further discussion of this issue, the Tribunal returned to another issue which had been mentioned earlier, which was the need for Mr Mazumdar to ‘get enrolled’ in a new future course, so as to satisfy criterion 572.231. In relation to this issue, the following exchange occurred at the end of the hearing:
MIGRATION AGENT: If your Honour would give more time to produce a current COE and also to clarify the issue with regard to the Uniworld closure.
TRIBUNAL MEMBER: Okay, well that seems reasonable given that it’s referred to as a reason in relation to the compliance with the condition of the last visa. So do you think if I said that I wouldn’t make my decision for two weeks from today, would that be sufficient time for you to ---
MIGRATION AGENT: That would be quite sufficient, yes.
TRIBUNAL MEMBER: In relation to the enrolment, I suppose, I’m just putting you on notice that as at this moment I don’t think I’m going to be able to make, subject to whatever else you might send in, but just on the information that is before me at the moment, I don’t think it’s likely I will be able to make a finding that there was substantial compliance so I would just ask you to bear that in mind if you’re looking at any sort of financial outlay for confirmation of enrolment that sort of thing.
MIGRATION AGENT: Okay.
TRIBUNAL MEMBER: But as I say, I will take account of anything that you send in up until I make my decision. So I won’t make it before close of business on ---
MIGRATION AGENT: So two weeks from today.
TRIBUNAL MEMBER: Two weeks from today which will be the – I just lost track of the date, is it the second or the third?
MIGRATION AGENT: Today is the third.
TRIBUNAL MEMBER: Third, okay, so close of business on the 17th. All right, is there anything more that you wanted to tell me before we finish today?
On 17 May 2012, Mr Mazumdar’s agent presented a submission and additional documents to the Tribunal. It said:
We refer to Direction No.38 that requires the Tribunal, to consider whether the non-compliance with condition 8202 was due to exceptional circumstances beyond the applicant’s control.
As already addressed at the hearing, the applicant was undergoing severe psychological distress during that period due to the death of all of his family members in a car accident in 2005 and the subsequent exposure of medical negligence committed by the doctors in 2007 found out by the applicant and that but for the negligence his family’s lives could have potentially been saved.
The applicant in his statutory declaration of 17 May 2012 further submits that he completed the Certificate IV in Business Management at Uniworld Business College in approximately August 2008. He then stopped attending class after August 2008 because he was suffering from severe depression, mood swings, emotional instability and insomnia, as also indicated in his medical certificate. He submits that the college did not contact him after he stopped attending the classes and he lacked the motivation and support to return to school. We note that the college went under external administration on 15 December 2011 and withdrew its membership from ACPET in 2009.
We also note that the applicant was never counselled or interviewed by the education provider in the process leading to his non-compliance and that had he been counselled or interviewed the outcome could have differed.
We submit that the applicant’s non-compliance with condition 8202 was due to exceptional circumstances beyond his control. There are clearly compelling and compassionate grounds that the Tribunal must consider when making its decision.
Mr Mazumdar’s statutory declaration said:
2.I paid the course fee of $2,800 for the Certificate IV in Business Management. I have enclosed the receipt for $1,400 paid on 27 December 2007. I have lost the second receipt.
3.I started attending Uniworld College for my Certificate IV course in February 2008 at the Regent Street Sydney campus.
4.I completed all of the subjects for the Certificate IV in Business Management around July – August 2008.
5.After the two-week holiday I then stopped going to class because I was also having problems with my girlfriend who I was in love with from high school because her family was forcing her to marry someone else in Bangladesh. They never approved of me, because I didn’t have any family or guardian so they didn’t feel comfortable to give their daughter to me. She stopped contact with me around August 2008 because her family’s pressure was too much for her.
6.I went to he doctor, Dr Salem in Kingsford, because I couldn’t sleep at night and had nightmares about my family and because I was depressed about my girlfriend.
7.After my family’s accident, everything changed in my life. I felt guilty about the accident. All my relationships changed after that – with my uncles, my relatives, my girlfriend and her family. No one accepted me and I felt what is the point of my life. I began suffering from insomnia and depression. I started calling my mum and sister’s mobile phone just to listen to their voices.
8.I only saw Dr Salem once after I saw him in October 2007. I think it was around May-June 2008. He asked me to go to a psychologist, but I didn’t go because I didn’t want to talk to anyone about my problems. I just wanted sleeping pills from Dr Salem – but he didn’t give me any.
9.I didn’t get a transcript from my Certificate IV in Business Management from Uniworld and after I stopped attending they didn’t contact me.
It is to be noted that the two enclosed CoEs are both dated December 2007, and confirm the records of the PRISMS database which suggested that at that time Mr Mazumdar had the offers of enrolment for the two courses at Uniworld during 2008 and 2009 which I have described above, and which supported the grant of his 2008 visa. These documents did not provide any evidence that these enrolments had in fact subsequently occurred, nor that the CoEs had not themselves been cancelled in April 2008. It may also be noted that Mr Mazumdar’s new evidence, that he had started and completed the first of these courses between February and August 2008, clearly did not claim that he had then enrolled in the second of the Uniworld courses, being a ‘Diploma of Business Management’ for 12 months from August 2008 until August 2009. Implicitly, it accepted that he had not done this, and sought to explain that non-compliance.
It is also to be noted that no reference was made in the agent’s post-hearing submission or in its enclosed documents to the issue of current enrolment, and no explanation was given to the Tribunal as to why this issue had not been addressed by Mr Mazumdar. Nor is there any evidence now before the Court which explains this omission.
On 29 May 2012, the Tribunal member instructed a clerk to respond to the agent’s request for further time. There is a file note of this instruction, and that it was complied with. The information which I find was conveyed to Mr Mazumdar’s solicitor was:
Please convey my apologies for not responding earlier. I agree to provide the extra time and will not now make my decision before close of business on 4 June 2012 if they wish to submit further documents. Please mention that the psychologist report they wish to submit may not be of great relevance given that this is a review of a Student visa refusal decision, not a Student visa cancellation decision, and therefore Direction 38 (about exceptional circumstances) is not relevant to the review. Thanks.
Contacted the reps office she was in a meeting left message with her assistant as instructed. AH29/05/2012
The Tribunal’s decision
The Tribunal made a decision on 26 June 2012, in which it affirmed the delegate’s decision.
In its “Statement of Decisions and Reasons”, the Tribunal generally discussed the application of criterion 572.235 in relation to compliance with the conditions of item 8202, in a manner which discloses no error of law. It then set out the history of the present matter, noting Mr Mazumdar’s evidence to the Department and Tribunal, both at the hearing and subsequently, which sought to explain his non-compliance with the visa condition that he be continuously enrolled during the currency of his 2008 visa.
Under the heading “Findings and Reasons”, the Tribunal said that it was “not satisfied that the applicant has complied substantially with Condition 8202” of that visa. It said:
61.At hearing, the applicant agreed that he was not enrolled in a registered course between the cancellation of his enrolment in the Certificate IV in Business Management course at Uniworld College in mid April 2008 until he enrolled in the Certificate III in Business course at Lloyds College in November 2009. However, in a post hearing submission he claimed that he did in fact study at Uniworld’s Regent Street campus and that he completed requirements for the Certificate IV in Business Management “around July-August 2008”.
62.Much of the migration agent’s submission of 17 May 2012 appears to be misconceived as it is directed towards the issues relevant to the review of a Student visa cancellation decision rather than a Student visa refusal decision as in the present case, and therefore Direction No.38 to which the migration agent refers is not relevant. The references to the failure of Uniworld College to counsel or interview the applicant in the process leading to his non-compliance are not relevant because the applicant, if he actually studied there until July or August 2008, was never certified by the College as not achieving satisfactory course progress or course attendance. The applicant has provided evidence which the Tribunal accepts that Uniworld College is now under external administration since December 2011, but has not stated how this is relevant to whether the applicant substantially complied with Condition 8202 of his last Student visa.
63.The applicant provided evidence of payment of $1,400 in fees to Uniworld College and the Tribunal accepts from this receipt and from the Confirmation of Enrolment he provided after the hearing that he was enrolled in the Certificate IV in Business Management at that College from 14 February 2008 and was so enrolled at the time his last Student visa was granted on 25 February 2008. The applicant agreed at hearing that he was not enrolled in that course from mid-April 2008 when his Confirmation of Enrolment was cancelled and was not then enrolled again until November 2009. In the applicant’s post-hearing statutory declaration, he made a conflicting claim that he studied in the Certificate IV course at Uniworld until around July-August 2008. He did not provide any evidence of that study beyond making the claim in his statutory declaration. Even if the Tribunal were to accept the applicant’s claim that he was studying (and therefore enrolled in a registered course) until July or August 2008, the applicant was still not enrolled in a registered course from then until the expiry of his visa on 15 October 2009. The Tribunal finds that, even if it accepts the claim of study until July or August 2008, the applicant was still not enrolled in a registered course and thereby in breach of condition 8202 for a significant period (more than 13 months) which was the greater part of the time he held the Student visa. The Tribunal finds that this period is significant given that the purpose of the visa was to permit study in Australia.
64.The Tribunal accepts that the applicant would have suffered significantly following the tragic deaths of his family members in 2005 compounded by the discovery in January 2007 that they might have survived had there been proper medical treatment. As to whether anything prevented the applicant from remaining enrolled during the visa period from February 2008 to October 2009, the applicant has claimed that it was depression following the family tragedy that prevented it. He has submitted documentary evidence in the form of a medical certificate dated 5 October 2007 that he consulted a GP for a depressive illness, and has claimed that he saw the GP again in May or June 2008. The Tribunal does not consider that the 2007 certificate substantiates his claim to have consulted the same doctor again. The Tribunal also notes that the GP wrote that the depressive illness in 2007 was due to relationship difficulties and pressure by family to marry, with no mention of his bereavement. Nonetheless, from the applicant’s very real distress when speaking of his family at hearing, the Tribunal is prepared to accept that he continued to suffer grief and depression for some years after the accident. The Tribunal gained the impression at hearing that the applicant did not deliberately flout the visa condition, even though he must have been aware that it was a condition of his visa that he be enrolled in study and he did not approach the Department for advice about his situation when not studying. After having regard to these considerations, given the significant period that the applicant was not enrolled while the holder of a Student visa, the Tribunal is not satisfied that the applicant substantially complied with Condition 8202 of that Student visa.
The Tribunal also made an adverse finding that Mr Mazumdar did not satisfy criterion 572.231, requiring that a new current enrolment at time of decision. It said:
66.In addition, as put to him at hearing, there is no evidence before the Tribunal that the applicant is currently enrolled in or the subject of a current offer of enrolment in any course of study. The Tribunal notes that the letter dated 18 October 2011 from CSU Study Centre suggests that the applicant make an application for enrolment in the February 2012 intake of a Bachelor of Business Accounting course. As that intake date has passed, the Tribunal finds that this is not a current offer of enrolment. The applicant was provided with the time he requested following the hearing to arrange enrolment or an offer of enrolment in a registered course but has not provided evidence to the Tribunal of having done so. The Tribunal is therefore not satisfied that the applicant is enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course and of a type specified for any of subclasses 570, 571, 572, 573, 574 or 575. On that basis, the Tribunal finds that the applicant does not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations.
The grounds of review
Mr Mazumdar filed his application for judicial review on 25 July 2012. At the hearing, his solicitor relied upon three grounds set out in an amended application:
1.The Tribunal fell into jurisdictional error by applying a wrong test of the meaning of the term “complied substantially” in cl 572.235 of Schedule 2 to the Migration Regulations 1994.
Particulars
The Tribunal wrongly considered that submissions made by the Applicant in relation to exceptional circumstances beyond his control were not relevant to whether he had complied substantially with the conditions that applied to his last substantive visa.
2.The Tribunal fell into jurisdictional error by taking into account that the Applicant was not enrolled in a registered course at the time of its decision, when the Tribunal itself had advised the Applicant against becoming enrolled.
3.The Tribunal failed to comply with s 359A of the Act with respect to information that it considered would be the reason, or part of the reason, for affirming the decision under review.
Particulars
The Tribunal considered that part of the reason for affirming the decision under review was that the Applicant was not enrolled in a registered course from August 2008 until October 2009 (CB 183, 63). The Tribunal took this view on the basis that a Certificate of Enrolment for that period had been cancelled. This information was not provided to the Tribunal or the Department by the Applicant, and therefore the Tribunal was required to comply with s 359A or 359AA. It did not do so.
For the following reasons, I do not accept any of these grounds.
Ground 1
Ground 1 attempts to find evidence that the Tribunal expressly excluded consideration of a necessarily relevant consideration, in the first half of the second sentence of the Tribunal’s reasoning in paragraph 62, which I have set out above in its full context. I shall repeat paragraph 62, emphasising the challenged words:
62.Much of the migration agent’s submission of 17 May 2012 appears to be misconceived as it is directed towards the issues relevant to the review of a Student visa cancellation decision rather than a Student visa refusal decision as in the present case, and therefore Direction No.38 to which the migration agent refers is not relevant. The references to the failure of Uniworld College to counsel or interview the applicant in the process leading to his non-compliance are not relevant because the applicant, if he actually studied there until July or August 2008, was never certified by the College as not achieving satisfactory course progress or course attendance. The applicant has provided evidence which the Tribunal accepts that Uniworld College is now under external administration since December 2011, but has not stated how this is relevant to whether the applicant substantially complied with Condition 8202 of his last Student visa.
Mr Mazumdar’s solicitor submitted that the challenged words evidence the jurisdictional error of a failure to take into account a relevant consideration as a result of ‘asking the wrong question’. He submitted that ‘the failure of Uniworld College to counsel or interview the applicant in the process leading to his non-compliance’ was legally open to be evaluated by the Tribunal under criterion 572.235, when it was deciding whether Mr Mazumdar’s non-compliance with condition 8202(2) should be regarded as amounting to ‘substantial compliance’. He submitted that this consideration might fall within the very broad range of potentially relevant circumstances which had been accepted in the Federal Court authorities which were cited by the Tribunal, and were accepted by the Full Court in Modi (supra).
I accept that it might be open to a Tribunal to regard this circumstance as falling within the ambit of the “range of subjective matters such as the applicant’s reasons for failing to satisfy those requirements”, which appear to have been regarded as permissible considerations in Modi (supra) at [14]. However, none of the Federal Court authorities suggest that a decision-maker is always required to base the decision upon that consideration, nor that it is always required to give it any particular weight or prominence.
In the present case, the circumstances which were presented by Mr Mazumdar to explain his non-compliance did not gain any particular strength from the suggested failure of Uniworld to offer counselling. In my opinion, it was reasonable for the Tribunal in its discussion in paragraph 63 and 64 to put at the forefront of its consideration Mr Mazumdar’s subjective state to which he attributed his absence from studies, and to balance his evidence about this with a consideration of the duration of the non-compliance and the weakness of his medical evidence. I would not infer only from the absence of additional discussion in these paragraphs of the suggested failure by Uniworld to provide counselling, that the Tribunal put this part of Mr Mazumdar’s statutory declaration completely out of mind, and did so by reason of error of law in its appreciation of the scope of criterion 572.235. This appears unlikely, since it had earlier correctly instructed itself as to the effect of Modi (supra).
On this analysis of its relevant later reasoning, I consider that the Tribunal’s preceding reasoning in paragraph 62 needs careful analysis, to understand what it was really meaning when it said that Mr Mazumdar’s agent’s submission had made ‘not relevant’ reference to the suggested failure of Uniworld to provide counselling. In my opinion, properly understood, the Tribunal was only pointing out in this paragraph that, as was ultimately conceded by Mr Mazumdar’s solicitor in his oral submissions to me, the agent’s submission was misconceived as to the issue to be decided by the Tribunal. The Tribunal was indicating that it was misconceived by being directed at the very differently worded considerations, which would have faced a decision-maker who was deciding during the currency of the 2008 visa whether the visa should be cancelled for non-compliance with the conditions in item 8202, pursuant to s.116(3) of the Migration Act 1958 (Cth) and Migration Regulation 2.43(2)(b). Under that regulation, cancellation would have been mandatory unless the Minister were satisfied that “the non-compliance was not due to exceptional circumstances beyond the visa holder’s control”.
In my opinion, the Tribunal’s statements in paragraph 62 were merely making the point that it was legally irrelevant to criterion 572.235 in relation to a new visa application, to apply the cancellation tests and their relevant Ministerial Direction 38, in so far as it invited examination of whether there was a failure of procedure by an education provider which contributed to the non-compliance. Criterion 572.235 patently did not require an assessment of whether the student’s explanations for non-compliance were ‘due to exceptional circumstances’, nor whether the circumstances were ‘beyond the visa holder’s control’. Rather, it required a different assessment, of whether the non-compliance should be regarded as substantial or insubstantial when considered, inter alia, in the light of the visa-holder’s subjective state of mind in relation to the non-compliance.
Doing the best I can to understand the Tribunal’s reasoning in paragraph 62, I would not conclude that it shows that the Tribunal later excluded consideration of the alleged “failure of Uniworld College to counsel or interview the applicant in the process leading to his non-compliance” as a possibly relevant consideration for the purposes of item 572.235. Rather, I consider that the point it was making in the challenged sentence in paragraph 62, is that it was irrelevant for it to explore possible contributory causation for Mr Mazumdar’s non-compliance with condition 8202(2) arising from such a failure, since it was not addressing the considerations under Migration Direction 38 relevant to addressing non-compliances with condition 8202(3) which might arise from an education-provider’s negative certificates of progress or attendance, and might find cancellation under s.116(3) of the Act and reg.2.43(2)(b) of the Regulations. This point was, in my opinion, valid, and does not show any error of law material to vitiating the Tribunal’s later reasoning and conclusions as to its lack of satisfaction concerning criterion 527.235.
As I have noted, the Tribunal’s discussion of that criterion in paragraph 64 of its reasons, and its explanation of its lack of satisfaction that Mr Mazumdar had ‘substantially complied’ with the visa condition requiring continuous enrolment, does not provide evidence that the Tribunal refused to consider the alleged failure of the college to counsel or interview Mr Mazumdar before his enrolment ceased during 2008. Rather, its discussion suggests that at a factual level, this consideration did not feature in its mind as significant to its ultimate balancing of Mr Mazumdar’s explanation for his non-compliance and its assessment of whether he had ‘complied substantially’.
In that discussion, the Tribunal gave Mr Mazumdar its unqualified acceptance of his account of his ceasing his studies during 2008. The significant aspect of this account was Mr Mazumdar’s subjective state of mind, and the Tribunal gave full allowance for his claims in this respect. It was open to the Tribunal to think that Mr Mazumdar’s case, for treating the non-compliance resulting from his accepted state of mind as not being ‘substantial’, was not materially enhanced by considering whether or not it was contributed to by failures of procedure by the education provider. In my opinion, it was open to the Tribunal not to have regarded this added element as significant or, in that sense, ‘relevant’ to its assessment, and I would not infer from the absence of further discussion of it in paragraph 64 that the Tribunal totally ignored this evidence.
I therefore am not persuaded that this ground is made out. I note that, if I were persuaded that paragraph 62 did evidence legal error in the Tribunal’s application of criterion 572.235, I would still need to address the Minister’s submission that this would not provide material jurisdictional error justifying relief under s.476 of the Migration Act, because the Tribunal’s decision is also independently supported by its further finding against Mr Mazumdar in relation to the criterion in cl.572.231 (cf. SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28], [55]-[59], [91]).
Ground 2
This ground seeks to undermine the Tribunal’s reasoning in paragraph 66 in relation to this other criterion, in which the Tribunal pointed to the complete absence of any evidence that Mr Mazumdar at time of decision “is enrolled in or the subject of a current offer of enrolment in a course of study” of one of the prescribed types.
Mr Mazumdar’s solicitor did not submit that this conclusion was an incorrect conclusion of fact, or that it was reflective of any jurisdictional error of law, but he submitted that it was arrived at under a jurisdictional error of procedure.
I have great difficulty discerning the species of procedural error which is being alleged, including whether the relevant procedural obligation is found by implication under s.425 or any other provision of the Migration Act
Manifestly, Mr Mazumdar and his agent could not have been under any misapprehension that the application of this criterion was not a matter upon which the Tribunal might decide the case adversely. Neither of them has given evidence to this effect. Since it was the topic of express discussion at the hearing, and concerned a criterion of which they must have been aware, it could not reasonably have been overlooked by them. No breach of obligations to give warning of relevant issues can therefore be contended (cf. SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152).
Nor, is there any evidence from Mr Mazumdar or his agent that they were actually misled by the Tribunal’s observations at the end of the hearing, by believing that the Tribunal might allow an opportunity longer than the promised two weeks for him to obtain and present evidence of a current CoE. On the evidence of the transcript, I would not so find.
Nor, in my opinion, is there any evidence suggesting that Mr Mazumdar and his agent thought, or had reasonable grounds to think, that the Tribunal would not proceed to decide this issue against Mr Mazumdar, if no such evidence was submitted by him after the hearing. I can find nothing in the transcript suggesting that the Tribunal opened up the possibility that it would not conclude the review adversely to Mr Mazumdar without giving him another warning and opportunity to present evidence of current enrolment (cf. Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1).
The ground was presented by Mr Mazumdar’s solicitor not only on obscure foundations in principle, but also upon a reading of the transcript with which I do not agree. On his submission, the passage in the transcript which I have extracted above reveals that the Tribunal “discouraged the Applicant from enrolling for a new course on the basis that it would be a waste of money given that the Tribunal did not think it likely that it would find there had been substantial compliance”. In effect, this was a submission that the Tribunal was seriously derelict in its duty to allow, and not to discourage, the submission of relevant evidence.
In my opinion, there is no evidence of any such discouragement, whether found in the transcript or otherwise. Notably, in this respect, neither Mr Mazumdar nor his agent have gone on oath to assert that they were so discouraged, and that in their minds the Tribunal’s observations at the end of the hearing had the effect which is now contended. I would not infer from the transcript alone that Mr Mazumdar and his agent left the hearing persuaded by the Tribunal’s observations. Neither of them has given evidence to the Court that they were induced by the Tribunal not to present further evidence, and the reasons for the absence of subsequently submitted evidence of current enrolment have remained completely unexplained by them. There is therefore the absence of any evidence of ‘practical injustice’, which it would be appropriate to expect in support of the present contention (see Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [36-8], [106], [122], [149]).
Nor does Mr Mazumdar contend that he was discouraged by reason of a perception of a prematurely closed mind arising from the concluding observations of the Tribunal about criterion 572.235 and criterion 572.231. His submissions to me made no attempt to invoke principles of apprehended bias (cf. Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]).
Moreover, in my opinion, on a fair and objective reading of what transpired at the end of the hearing, the Tribunal’s observation that “I don’t think it’s likely I will be able to make a finding that there was substantial compliance” was no more than an attempt by a decision-maker to be open about her provisional assessment of the issues in the case, and must have been so understood by Mr Mazumdar’s representative at the hearing. Particularly, in circumstances where the representative appears to have had a legal background and was employed by one of the leading migration solicitors in Sydney. Moreover, the Tribunal member went on to say: “I will take account of anything that you send in up until I make my decision”, and this invitation clearly encompassed receiving necessary additional evidence directed at satisfying criterion 572.231.
For all the above reasons, I am unpersuaded by the submissions presented in support of this ground.
Ground 3
This ground alleges that the Tribunal failed to follow procedures provided under s.359A(1) of the Migration Act for giving in writing or orally under s.359AA “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”. It was submitted that such a breach arose in relation to information gleaned by the Tribunal from PRISMS, which suggested that the 2007 CoEs for enrolment by Mr Mazumdar in Uniworld courses during 2008 and 2009 had been cancelled. As I have noted above, the Tribunal thought that one reference in PRISMS showed that they had been cancelled on 16 April 2008, and its file also contained copies of the 2007 CoEs with annotations suggesting that they had been cancelled. Mr Mazumdar’s solicitor submitted that it was insufficient for the purposes of either s.359A or 359AA that this information was referred to by the Tribunal in the course of the hearing, including in the passages which I have extracted above.
However, I do not accept these submissions. In my opinion, the statutory requirement for these procedures was not engaged, because, in essence, the Tribunal did no more than address Mr Mazumdar’s application for review, and affirmed the delegate’s decision, upon a factual assumption as to his non-compliance with condition 8202(2) which was uncontested by Mr Mazumdar, and which he invited decision-makers to adopt when presenting his evidence seeking to persuade them that his admitted non-compliance amounted to ‘substantial compliance’ so as to satisfy criterion 572.235. The Tribunal’s reasoning in this respect shows that it did not base its decision upon any information inconsistent with the case which was presented by Mr Mazumdar to establish satisfaction of this criterion. It proceeded on a generous understanding of all of Mr Mazumdar’s evidence to the delegate and the Tribunal, which was to the effect that he had ceased no later than August 2008 to continue to be enrolled in the Uniworld courses for which he had been granted his last substantive visa based on ‘confirmation of enrolments’ issued by Uniworld in December 2007.
I therefore conclude that the reasons of the Tribunal for deciding that it was not satisfied that Mr Mazumdar had substantially complied with the enrolment condition on his 2008 visa were based upon information given by Mr Mazumdar himself to the delegate and Tribunal. It was the Tribunal’s evaluation of that information, and not the information itself, which provided its reason for affirming the delegate’s decision. Any information on the Tribunal’s file which confirmed that, in fact, there had been no enrolment in the second course which was due to commence in August 2008, did not itself provide part of the Tribunal’s reasons for affirming the delegate’s decision, and s.359A(1) “was not engaged at all” (compare SZBYR (supra) at [21], and Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507, [2009] HCA 31 at [22]).
Moreover, if s.359A(1) was engaged in relation to this information on the file, then it was expressly excluded from the required statutory procedures by both sub-paragraphs 359A(4)(b) and (ba), since the Tribunal’s reasoning did no more than accept the evidence given by Mr Mazumdar in writing to the delegate, and in writing and orally to the Tribunal, in so far as it was premised upon the fact that he had not been enrolled for at least the whole of the second, Diploma of Business Management, course at Uniworld for which he had received an offer of enrolment in December 2007.
As I have recounted above, at the primary level, in response to the proposition that the records of the Department indicated that “you have not been studying since your last visa was granted in 2007 til now”, Mr Mazumdar’s solicitor conceded this fact and also, implicitly, that it involved a failure to comply with the requirement of continuous enrolment in a relevant course. She responded in her email of 26 July 2011, by explaining “the reasons that he did not continue with his study after 2007”, and with a submission inviting an application of the visa criteria in a manner which would overlook the admitted breach of the visa condition by treating it as insubstantial.
At the review level, essentially the same case for satisfying criterion 572.235 was presented by Mr Mazumdar to the Tribunal, albeit with new evidence presented after the hearing to show that the gap in enrolment was shorter than previously conceded. In my opinion, it is not necessary closely to examine the significance of the preceding exchanges between Mr Mazumdar and the Tribunal at the hearing, in which the Tribunal put to him, and he appeared to accept, that the cessation of his enrolment had occurred earlier than August 2008, since the Tribunal’s reasoning was not based upon the information found in PRISMS which suggested that enrolments were cancelled in April 2008. However, if these exchanges did provide information which ultimately formed part of the Tribunal’s reasoning, his apparent acceptance of what was put to him would allow it to be characterised as information that “the applicant gave for the purpose of the application for review”, even on analyses which pre-dated SZBYR (supra) (compare NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419, [2006] FCAFC 195 at [62], and Minister for Immigration & Multicultural Affairs v Applicant A125 (2007) 163 FCR 285 at [46], [77]).
Since in my opinion s.359A(1) had no application in relation to whatever information was before the Tribunal showing that Mr Mazumdar had ceased to be enrolled in any course during 2008, it is unnecessary to examine whether the exchanges between the Tribunal and Mr Mazumdar and his migration agent at the hearing also amounted to sufficient compliance with the alternative oral procedure provided under s.359AA. However, I am inclined to think that it did. Certainly the transcript shows that everyone understood that the Tribunal was accepting Mr Mazumdar’s confirmation that his enrolment had ceased in 2008, and that an exploration of the circumstances in which this happened would provide the foundation for his contention that his admitted non-compliance with the enrolment condition was not ‘substantial’. The Tribunal certainly invited comments on this topic, including its efforts to find exactly when the enrolment had ceased, and it allowed a reasonable opportunity for further evidence and submissions after the hearing on the request of the applicant. The Tribunal might not have progressed through the paragraphs and sub-paragraphs of s.359AA in a formulaic manner, but I am inclined to think that the course of the hearing shows sufficient compliance with this procedure, if it was required.
For all of the above reasons, I am unpersuaded by the submissions presented in support of Ground 3.
Since none of the grounds have succeeded, I must dismiss the application.
It is agreed that scale costs should follow the event.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 18 December 2012
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