Minhas v Minister for Immigration
[2008] FMCA 1305
•18 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINHAS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1305 |
| MIGRATION – VISA – Subclass 573 Higher Education Sector visa – whether the Migration Review Tribunal breached the requirements of Migration Act 1958 (Cth) s.348 – condition 8202 – whether the Tribunal fell into jurisdictional error by going beyond the subject matter of the delegate’s decision – whether Tribunal erred in its consideration of whether non compliance with condition 8202 was caused by exceptional circumstances beyond the visa holder’s control – no jurisdictional error. |
| Education Services for Overseas Students Act 2000 (Cth) s.20 Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.116, 119, 120, 124, 348, 359, 359A, 359C, 360 Migration Regulations 1994 (Cth) reg.2.43 |
| Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2005) 144 FCR 1; [2004] FCAFC 263 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1; [2005] FCAFC 218 |
| Applicant: | JASPREET MINHAS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1072 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 July 2008 |
| Date of Last Submission: | 9 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Solicitor for the First Respondent: | Mr Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1072 of 2008
| JASPREET MINHAS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant asks the Court to review a decision of the Migration Review Tribunal handed down on 31st March 2008 affirming a decision to cancel his Subclass 573 Higher Education Sector visa.
In his amended application filed on 30th June 2008 the Applicant asks the Court to issue the following writs:
a)A writ of certiorari quashing the Tribunal’s decision;
b)A writ of prohibition or an injunction to restrain the first respondent, the Minister for Immigration and Citizenship, from acting on the Tribunal’s decision; and
c)A writ of mandamus remitting the matter to the Tribunal for reconsideration and redetermination according to law.
The Applicant claims that the Tribunal breached the requirements of section 348 of the Migration Act 1958 in that:
a)it failed to “review” the decision of the delegate; and
b)It misconstrued the applicant’s claim as to the reason that he was absent from class following his mother’s death.
Background
The Applicant is a national of India who was studying at the Sydney School of Business and Technology. He was granted his visa on 31st January 2007.
On 30th May 2007 the Department of Immigration and Citizenship wrote to the Applicant and sent him a notice under s.20 of the Education Services for Overseas Students Act 2000. The Notice set out the particulars of the breach of condition 8202 of his visa that was alleged:
Sydney School of Business and Technology Pty Ltd has determined that in the term running from 5 April 2007 to 18 May 2007, you attended 52% of the contact hours scheduled. As a result, you have failed to comply with condition 8202 (3)(a) of your student visa.[1]
[1] Court Book 2
On 18th June 2007 the Department of Immigration and Citizenship sent to the applicant a Notice of Intention to Consider Cancellation, which set out that the applicant had failed to meet the requirement to attend at least 80% of the contact hours, in that he had attended 52%.
However, on 13th August 2007 the Department sent to the Applicant a Notification of Decision not to Pursue Cancellation under Section 116 of the Migration Act 1958. On that same date, the Department sent to the Applicant a Notice of Intention to Consider Cancellation which again referred to a failure to meet the 80% attendance requirement. The Notice said:
The Sydney School of Business Technology Pty Ltd has determined that in the term running from 05/04/2007 to 15/06/2007 you attended 65% of the contact hours scheduled. As a result, you have failed to comply with condition 8202(3(a) of your student visa.[2]
[2] Court Book 15
The Notice invited the Applicant to provide comments at an interview on 20th August 2007. The Applicant attended the interview. The Minister’s delegate decided to cancel the Applicant’s visa, giving this reason:
Mandatory cancellation. S116(1)(b) & Section 116 (3) reg 2.43 (2)(b).
I am satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.[3]
[3] Court Book 23
The applicant then commenced proceedings for review by the Migration Review Tribunal. In a covering letter dated 28th August 2007 his solicitors said:
We are instructed that the applicant disputes the dates on which he is marked as absent. We are also instructed that the applicant’s grandmother died during the semester and that our client, on receiving was depressed and was absent because of this.[4]
[4] Court Book 28
The Tribunal received the application for review on 29th August 2007.
The Tribunal wrote to the Applicant’s education provider, Sydney School of Business and Technology Pty Ltd, on 28th September 2007. The letter was headed “Request to Provide Information” and referred to the provisions of section 359(1) of the Migration Act. The letter sought information, including copies of documents, relating to the Applicant’s attendance. The letter also sought information about the Applicant’s academic results for Terms 1 and 2 of 2007.
The Sydney School of Business and Technology replied by fax on 16th October 2007, enclosing a list of the Applicant’s days absent and copies of medical certificates received.[5]
[5] Court Book 40 - 41
The Tribunal wrote to the Operational Manager of the Sydney School of Business and Technology on 20th December 2007, seeking further information about the Applicant’s attendance and academic results:
Information which shows how many scheduled contact hours there were in each of terms 1 and 2 of 2007; and which shows how many hours he actually attended. (Note that the list of absences only shows absences and not attendance).
Please explain how the attendance roll is taken.
Mr Minhas claims he was present on 18 June 2007 although marked absent. Is this possible?...
…Accordingly, can you please certify whether Mr Jaspreet Minhas achieved an academic result that is certified by the education provider to be at least satisfactory for the following terms;
· Term 1 of 2007
· Term 2 of 2007[6]
[6] Court Book 50 - 51
The SSBT replied on 7th January 2008, providing further information. The documents provided included a letter from the Applicant’s father enclosing a document in Punjabi and an English translation certifying the death of the Applicant’s grandmother on 16th May 2007.[7]
[7] Court Book 61 - 63
The Tribunal wrote to the Applicant’s solicitor, Mr Bitel, on 1st February 2008, seeking the Applicant’s comments on information from the Department’s file and from the education provider, SSBT. The Tribunal’s letter, written to comply with s.359A of the Act, asked for the Applicant’s comments in writing by 8th February 2008.[8]
[8] Court Book 64 - 66
The Applicant’s solicitor wrote back on 8th February 2008, providing comments on the matters raised and submitting that the facts on which the cancellation of the Applicant’s visa took place were incorrect. The letter went on to submit:
In the alternative, if the Tribunal is still of the view that the cancellation was proper and lawful, then the applicant would ask the Tribunal to have regard to discretionary factors previously raised by him and in particular the effect of the death of his grandmother, documents relating to which were given by him to the college and are amongst the documents provided with the Tribunal’s letter.[9]
[9] Court Book 68
The letter was received by the Tribunal on 11th February 2008, according to the Tribunal’s stamp that appears on the copy of the letter.[10]
[10] Court Book 67
The Tribunal decided to apply the provisions of s.359C of the Migration Act and make a decision on the review without a hearing, stating:
The applicant was invited by a letter dated 1 February 2008 to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The applicant failed to provide any comments or a response within the prescribed period. Section 359C of the Act provides that if an applicant who is invited to give additional information, or to comment on information, does not do so (or does not respond) within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the additional information or comments. Section 360 of the Act provides that if section 359C applies to the applicant, the applicant is not entitled to appear before the Tribunal. Accordingly, the applicant is not entitled to a hearing. After careful consideration the Tribunal decided to proceed with the review without inviting the applicant to a hearing.[11]
[11] Court Book 79
The Tribunal signed its decision on 18th March 2008 and handed the decision down on 31st March 2008.
The Migration Review Tribunal Decision
In its Findings and Reasons, the Tribunal found that, because the Applicant’s course of study was greater than a term or semester, condition 8202(3)(a)(ii) applied to him. The Tribunal stated that condition 8202(3)(a)(ii) required it to be satisfied that the Applicant attended for at least 80% of the contact hours scheduled for each term and semester of the course. The Tribunal considered but rejected the Applicant’s arguments that:
i)the cancellation took place only because of a breach of attendance in the term from 5th April to 15th June 2007 and it was not empowered to go behind the Notice of Intention to Consider Cancellation which was the basis of the cancellation; and
ii)the cancellation was not lawful because the facts on which the cancellation took place were incorrect.
The Tribunal did not accept that argument, stating:
The Tribunal can “cure” a defect in natural justice or procedural fairness that occurred in the delegate’s decision, such as a defect in the section 119 – 121 notice requirements through the Tribunal’s own procedural fairness mechanisms[12]
[12] Court Book 83
The Tribunal was not satisfied that the Applicant attended for at least 80% of the scheduled contact hours in Term 1 of 2007 and he therefore breached condition 8202. The Tribunal found there was a ground for cancelling the Applicant’s visa under s.116(1)(b).
The Tribunal then went on to consider the Applicant’s attendance in Term 2 of 2007. It found that it was not satisfied that the Applicant had attended for at least 80% of the scheduled contact hours in Term 2 and he therefore breached condition 8202. The Tribunal found that this, too, was a ground for cancelling the visa under s.116(1)(b).
The Tribunal then went on to consider the requirements of regulation 2.43(2)(b)(ii)(B), which required the Tribunal to be satisfied that the Applicant’s non-compliance with condition 8202 was not due to exceptional circumstances beyond the visa-holder’s control. The Tribunal prefaced its consideration of the Applicant’s non-compliance in Terms 1 and 2 by saying:
The applicant is from a non-English speaking background and a different culture. It is reasonable to consider that as an overseas student coming to Australia, the applicant had some difficulties in adjusting to Australia. Nonetheless, the applicant chose: to study in Australia in the English language; to study in Australia’s education system; and to undertake a course with the particular education provider.[13]
[13] Court Book 85
The Tribunal referred to the Applicant’s medical condition for which he had produced some medical certificates in Term 1. The Tribunal found that the Applicant had not raised any particular exceptional circumstances in that term that may have led to his non-compliance with the 80% attendance requirement. It did not accept that the Applicant’s medical condition constituted exceptional circumstances beyond his control.
The Tribunal then considered the Applicant’s circumstances in respect of Term 2, 2007, noting that the Applicant’s grandmother had died in India on 16th May 2007. The Tribunal stated:
His father’s statement described how the applicant was sad and mentally not prepared for this, and unable to travel to India for the ceremonies. A submission dated 28 August 2007 indicated he was depressed and absent because of this. However, the applicant did not inform the education provider at the time of his grandmother’s death during Term 2. At the same time, the applicant had some illnesses. Whilst the applicant had these personal concerns, the applicant was nonetheless able to continue studying and seek ongoing assessment. The applicant did not seek to defer the course or his studies. He did not seek medical or professional assistance in relation to his claimed depression after the grandmother’s death. In sum, the Tribunal does not accept the grandmother’s death and medical conditions experienced by the applicant constitute exceptional circumstances beyond his control.[14]
[14] Ibid
The Tribunal pronounced itself satisfied that the non-compliance in each term was not due to exceptional circumstances beyond the Applicant’s control for the purposes of regulation 2.43(2)(b)(ii)(B) and was satisfied that the Applicant had not complied with condition 8202 and the ground for cancellation in s.116(1)(b) existed. As the Tribunal was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control, the Tribunal found that, in accordance with s.116(3) the circumstances were prescribed circumstances in which the visa had to be cancelled.
The Tribunal affirmed the decision to cancel the Applicant’s Subclass 573 Higher Education Sector visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 29th April 2008. The Applicant’s solicitors filed an amended application containing two grounds on which the applicant relies. Counsel for the Applicant, Mr Karp, told the Court at the hearing that the third ground in the amended application would not be pressed.
Ground 1
The Applicant’s ground 1 claims that the Tribunal breached the requirements of s.348 of the Migration Act in that it failed to “review” the decision of the delegate. The particulars of that claim are that the Tribunal conducted part of its review (that concerning the Applicant’s compliance with condition 8202 of Term 1 of 2007) outside the boundaries of the decision of the delegate, and therefore outside the subject matter of the review.
Ground 2
Ground 2 claims that the Tribunal breached the requirements of s.348 of the Act in that it misconstrued the Applicant’s claim as to the reason that he was absent from class following his grandmother’s death. The particulars of that claim are that the Tribunal approached the issue on the basis that the Applicant was clinically depressed and incapacitated, whereas the evidence was that he was sad and mentally not prepared to attend the classes.
The Applicant’s Submissions
Counsel for the Applicant referred in his submission to the letter from the applicant’s solicitor to the Tribunal dated 8th February 2008 in which he said:
The applicant’s visa was not cancelled as a consequence of alleged breaches of attendance in relation to terms stated to run from 4 January 2007 to 2 April 2007 and 5 April 2007 to 28 June 2007. It is submitted that the Tribunal is not empowered to go behind the Notice of Intention to Cancel on the basis of which the cancellation actually took place.[15]
[15] Court Book 67
The Tribunal did not accept that argument, stating that it could “cure” a defect in natural justice or procedural fairness in the delegate’s decision. It expressed the view that it was able to consider cancelling a visa on a ground not specified in the section 119 notice. Section 119 deals with the issuing of Notices of Proposed Cancellation where the Minister is considering cancelling a visa under s.116.
Mr Karp submitted that the issue is whether the Tribunal can “cure” the particular defect in the s.119 notice and, more particularly, the defects in the delegate’s decision itself. The operative s.119 Notice and the delegate’s decision had alleged a failure to meet condition 8202 for the term running from April to June 2007 and said nothing about the earlier term. Mr Karp referred the Court to the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed[16] where their Honours said:
The review was in respect of the purported decision of the delegate. It is no doubt correct to say that provisions such as ss.348 and 349 do not vest the Tribunal with a wider substantive jurisdiction (in the administrative sense) than the delegate had. The powers conferred on the Tribunal are for the purpose of reviewing the decisions: see s.349. The review is not an exercise in judicial review of the kind contemplated by s.39B(1) of the Judiciary Act 1903 (Cth). The review is of the MRT-reviewable decision of the delegate. The subject matter of that review is to be identified by examining the boundaries of the administrative controversy before the delegate. It may be that one can discern a failure to follow required procedures, such as in ss.119 and 120. That, however, does not affect the question (in substance a factual one, though set in a legal framework) of what were the boundaries of the decision made by the delegate…[17]
[16] [2005] FCAFC 58; (2005) 143 FCR 314
[17] [2005] FCAFC 58; (2005) 143 FCR 314 at [36]
It was submitted that the boundaries of the administrative controversy were set by the matters particularised under ss.119, 120 and 124 of the Migration Act. The subject matter of the decision to cancel the visa was an alleged breach of condition 8202 in Term 2 of 2007, but the Tribunal committed jurisdictional error by going beyond the alleged breach and deciding an issue that had not been the subject of the delegate’s deliberations or decision.
As to Term 2 in 2007, Mr Karp submitted that the Tribunal had to consider whether the Applicant’s failure to comply was caused by exceptional circumstances beyond the visa holder’s control. The Applicant claimed to have been greatly upset by the death of his grandmother on 16th May 2007 and consequently did not attend classes on 17th and 18th May. Mr Karp submitted that the Tribunal fell into error in two ways when it made this finding:
In sum the Tribunal does not accept that the grandmother’s death and medical conditions experienced by the applicant constitute exceptional circumstances beyond his control.[18]
[18] Court Book 85
It is submitted that the Tribunal’s finding can be interpreted as that the Applicant’s failure to attend classes was not caused by his grandmother’s death because he did not seek professional assistance for dealing with his grief. The two errors identified by counsel for the Applicant are that:
i)the Applicant was not claiming to have been totally incapacitated by his grandmother’s death, but sad and mentally unprepared for her death, which caused him to miss classes; and
ii)in reasoning that since the Applicant did not seek professional assistance he had not therefore absented himself from classes because of his grandmother’s death.
Mr Karp described the first of those two errors as misconstruing the Applicant’s case, which constitutes jurisdictional error. He referred the Court to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2)[19] at [61] – [66].
[19] (2005) 144 FCR 1; [2004] FCAFC 263
In the case of the second claimed error, the Tribunal’s reasoning was described as “arbitrary and capricious so as to be erroneous in law”. Mr Karp referred the Court to Minister for Immigration and Multicultural Affairs v Eshetu[20] at 644 – 656.
[20] (1999) 197 CLR 611; [1999] HCA 21
The First Respondent’s Submissions
Mr Markus, who appeared for the Minister, put to the Court that the Applicant’s submission that the boundaries of the “controversy” are defined by matters particularised by the delegate under ss.119, 120 and 124 and that the Tribunal exceeded its jurisdiction by going beyond the boundaries of that controversy was fundamentally misconceived.
He submitted that the Tribunal’s task was to review the decision made by the delegate under s.116(1)(b) and (3) of the Act on the facts as found by the delegate by reference to item 2.43(2)(b)(ii) of, and condition 8202(3)(a)(11) of Schedule 8 to, the Migration Regulations.
The nature of “review” has been well settled since Drake v Minister for Immigration and Ethnic Affairs[21], where Smithers J held at 599 that it is the actual decision the Tribunal is authorized and required to review:
The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively,[22] the right one to be made. Merely to examine whether the administrator acted reasonably in relation to the facts, either as accepted by him or as found by the Tribunal may not reveal this.
[21] (1979) 24 ALR 577
[22] The punctuation has been reproduced accurately.
Mr Markus submitted that the jurisdiction of the Tribunal is not limited by the fact that the delegate focussed on one particular term of study. A merit review tribunal has to deal with the same application or claim that was the subject of the decision of the delegate and the boundaries of the relevant dispute are defined by the statutory power exercised by the delegate in the first place. A tribunal engaging in merit review is limited to re-exercising the power already exercised by the delegate. Once seised of jurisdiction, the tribunal “stands in the shoes’ of the original decision-maker and is obliged to decide the matter for itself, reaching the correct and preferable decision on the evidence before it, which usually, he submitted, goes beyond the evidence that was before the original decision-maker.
It was further submitted that the Tribunal, once it had jurisdiction, was obliged to reach a correct and preferable decision under s.116 of the Act. The Tribunal had to determine whether it was satisfied that:
a)the Applicant had not complied with a condition of his visa;
b)prescribed circumstances existed requiring the Tribunal to cancel the visa; and
c)any non-compliance was not due to exceptional circumstances beyond the Applicant’s control.
The Tribunal was obliged to satisfy itself that the Applicant had attended for at least 80% of the contact hours for each term and semester of the course, and the fact that the delegate focussed on Term 2 did not limit the nature of the power that the Tribunal was required to exercise on review. The Applicant’s argument, it was submitted, amounted in substance to a submission that:
a)the Tribunal’s jurisdiction is conditioned on the s.119 notice; and
b)the decision can be invalidated by a failure of the s.119 notice to provide proper and full particulars.
Mr Markus submitted that this line of argument has been comprehensively rejected by the Full Court of the Federal Court in such decisions as Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed[23] and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs[24].
[23] supra
[24] (2005) 149 FCR 1; [2005] FCAFC 218
As to the Applicant’s Ground 2, Mr Markus pointed out that it only dealt with Term 2 of 2007 and thus would not justify the grant of relief in the absence of a ground of review relating to Term 1 being upheld. He submitted that the Applicant’s claim of a breach of s.348 on the basis that the Tribunal misconstrued the Applicant’s claim about missing classes due to his grandmother’s death misrepresented the nature of the Tribunal’s approach.
Mr Markus submitted that the Tribunal did not misconstrue the Applicant’s claims but noted the Applicant’s father’s statement that the Applicant was sad and mentally not prepared for his grandmother’s death, and was depressed and absent from his classes because of this. He submitted that the Tribunal gave an accurate summary of the Applicant’s claims and then went to consider whether those claims established that the Applicant’s non-compliance was due to exceptional beyond his control.
Again, Mr Markus submitted that the Tribunal’s reasoning was neither arbitrary nor capricious. The issue was not whether it could be accepted that the Applicant was sad on learning of his grandmother’s death but whether, in the context of the Applicant’s attendance during Term 2 of 2007, when he attended only 73% of the contact hours, the effect on the applicant of his grandmother’s death could be said to constitute exceptional circumstances beyond his control that resulted in his non-compliance with the attendance condition of his visa. The Tribunal’s finding that in the absence of the sort of evidence referred to in the decision, it did not accept that this constituted exceptional circumstances was neither arbitrary nor capricious, but clearly available on the evidence before it.
Conclusions
In dealing with the Applicant’s Ground 1, it is clear that the Tribunal did indeed deal with whether or not the Applicant had breached condition 8202 in respect of both Term 1 and Term 2 of 2007, whereas the delegate’s notice had only referred to Term 2. In Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed, there was a failure by the Minister to comply with s.119 of the Act because the visa holder had not been properly notified that cancellation was being considered. The Full Court of the Federal Court (Hely, Gyles and Allsop JJ) described the issue on appeal in this way:
(a) whether the inadequacy of the notification given under s 119 of the Act (which is now accepted) meant that the functions of the Tribunal on review were limited to recognising that the delegate had no power to cancel the visa of the first respondent and to exercising that power under s.349(2) of the Act to set aside the decision of the delegate and make a decision that there was no power to cancel the visa; or, whether, notwithstanding the inadequacy of the notification under s.119, the Tribunal could examine the matter on the merits after employing its own procedures.[25]
[25] Ahmed at [2]
The Full Court held that the failure to comply with s.119 did not deprive the Tribunal of statutory authority. The effect of the failure to comply with s.119 did not deprive the Tribunal of power to cancel the visa and it was correct to proceed to deal with the review on the merits.[26] The Full Court held:
The powers conferred on the Tribunal are for the purposes of reviewing the decisions: see s 349. The review is not an exercise in judicial review of the kind contemplated by s.39(1) of the Judiciary Act 1903 (Cth). The review is of the MRT-reviewable decision of the delegate. The subject matter of that review is to be identified by examining the boundaries of the administrative controversy before the delegate. It may be that one can discern a failure to follow required procedures, such as in ss.119 and 120. That, however, does not affect the question (in substance a factual one, though set in a legal framework) of what were the boundaries of the decision made by the delegate…To use the words of Bowen CJ in Brian Lawlor it is the decision in fact made by the officer purportedly under or by reference to the enactment[27]
[26] Ahmed at [44]
[27] Ahmed at [36]
In Uddin v Minister for Immigration and Multicultural and Indigenous Affairs[28] the Full Court of the Federal Court (Wilcox, Branson and Bennett JJ) followed the approach adopted in Ahmed.[29]
[28] supra
[29] per Wilcox and Branson JJ at [55], Bennett J at [78]
In my view, the Tribunal’s jurisdiction was not bound by the s.119 Notice, and the submission that Tribunal was not empowered to go beyond that notice must fail. It follows that the Tribunal, in conducting part of its review in considering the Applicant’s compliance with condition 8202 for Term 1 of 2007 did not go outside the boundaries of the controversy that was the subject matter of the review. There was no breach of s.348 of the Migration Act.
The Applicant’s Ground 1 fails.
Turning to the Applicant’s second ground, the claim that the Tribunal misconstrued the Applicant’s claim as to the reason that he was absent from class following the death of his grandmother, the Applicant asserts that the Tribunal approached the issue on the basis that he was clinically depressed and incapacitated, whereas the evidence was that he was sad and mentally not prepared to attend the classes.
What the Tribunal actually said was:
In respect of Term 2, he indicated in submissions that his grandmother died on 16 May 2007 in India. His father’s statement described how the applicant was sad and mentally not prepared for this, and unable to travel to India for the ceremonies. A submission dated 28 August 2007 indicated he was depressed and absent because of this.[30]
[30] Court Book 85
The submission to the Tribunal from the Applicant’s solicitors dated 28th August 2007 said, relevantly:
We are also instructed that the applicant’s grandmother died during the semester and that our client, on receiving notification, was depressed and absent because of this.[31]
[31] Court Book 28
The handwritten letter from the Applicant’s father to SSBT said, relevantly:
I would like to let this in your knowledge that my mother died on 16 may 2007 and to attend the rituals of funeral of my mother he wanted to come India. But due to our weak financial position I did not afford the expense of my son to be here. My son had so much attachment with his grandmother because he lived with her from his childhood. That is why he is so sad and mentally not prepared to attend the classes…[32]
[32] Court Book 61
In my view, the Tribunal’s summary of the evidence in this regard did not misconstrue the Applicant’s claim in this regard. The Tribunal did not suggest that the Applicant was claiming to have a clinical depression that so incapacitated him that he required some professional help. What the Tribunal said was:
Whilst the applicant had these personal concerns, the applicant was nonetheless able to continue studying and seek ongoing assessment. The applicant did not seek to defer the course or his studies. He did not seek medical or professional assistance in relation to his claimed depression after the grandmother’s death. In sum, the Tribunal does not accept that the grandmother’s death and medical conditions experienced by the applicant constitute exceptional circumstances beyond his control.[33]
[33] Court Book 85
The Tribunal clearly accepted that the Applicant was saddened by the death of his grandmother but was not prepared to accept that the effect of his sadness was sufficient to cause any depressive illness which incapacitated him and required medical or psychological treatment. In other words, the Tribunal’s comments were illustrative of its assessment of the extent of the effect that the grandmother’s death had on the Applicant.
The Tribunal did not, in my view, misconstrue the Applicant’s claim. Mr Karp submitted that:
It is common human experience that after the death of a close relative those left behind are often upset and depressed, and unable to function normally for a few days or longer. But after a time most people recover and get on with their lives. They do not need to defer courses, or see psychologists.[34]
[34] Applicant’s outline of submissions at [21]
In my view, this was the view that the Tribunal took about the Applicant. It did not, as Mr Karp went on to submit, reason “that since he did not seek professional assistance Mr Minhas did not absent himself from classes because of his grandmother’s death”[35]. I am not persuaded that the Tribunal’s reasoning was arbitrary and capricious. It merely accepted the Applicant’s claim to have been saddened by his grandmother’s death and was therefore unable to attend classes for a short period, but was not satisfied that the degree to which he was affected was sufficient to constitute exceptional circumstances beyond the Applicant’s control.
[35] Ibid
This was a factual matter and it was open to the Tribunal on the evidence to make this finding. The Applicant’s Ground 2 has not been made out.
There is no jurisdictional error. The Tribunal decision is a privative clause decision and there is no basis to grant relief in the nature of certiorari, prohibition or mandamus.
The application will be dismissed with costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 16 September 2008
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