Mir v Minister for Immigration - [2013] FCCA 1862

FEDERAL CIRCUIT COURT OF AUSTRALIA

MIR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1862

Catchwords:
MIGRATION – Review of decision of MRT – where review is sought on grounds of failure of Tribunal properly to exercise its discretion under s.137L to find exceptional circumstances beyond applicant’s control – formal submission of incorrectness of decisions in cited cases – whether any error by Tribunal was one within jurisdiction.

Legislation:
Migration Act 1958 (Cth), ss.137J, 137L(1)(b), 359A
Education Services for Overseas Students Act 2000
Migration Regulations 1994, Sch.8, Sub-clause 8202(3)

Maan v Minister for Immigration & Anor (2009) 179 FCR 581
Kim v Minister for Immigration & Anor [2011] FMCA 780
Hassan v Minister for Immigration & Anor [2012] FCA 816

Applicant:

AZHARUDDIN MIR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3065 of 2012

Judgment of:

Judge Raphael

Hearing date:

5 November 2013

Date of Last Submission:

5 November 2013

Delivered at:

Sydney

Delivered on:

5 November 2013

REPRESENTATION

Solicitors for the Applicant:

Newman & Associates

Solicitors for the First Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3065 of 2012

AZHARUDDIN MIR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant, Mr Mir, comes to this court seeking a review of a decision of the Migration Review Tribunal affirming a decision of the Minister’s delegate not to revoke the automatic cancellation of a Subclass 572 Vocational Education and Training Sector visa that had been granted to him on 1 June 2010 and automatically cancelled pursuant to s.137J of the Migration Act 1958[1] on 11 June 2011. The applicant had applied to the Minister for revocation of the cancellation on 21 June 2011 and the decision not to revoke the cancellation was made by the delegate on 16 August 2011.
[1] “Act”
The ground upon which Mr Mir’s visa was cancelled was that a notice had been sent to him under s.20 of the Education Services for Overseas Students Act 2000[2] indicating that he had breached a prescribed condition of his visa, in this case condition 8202, and in particular 8202(3)(b). The relevant sections of the Act which are familiar to the applicant and his advisors are set out in detail at [4] [CB 89] and at [9] [CB 90]. When a delegate or a Tribunal comes to consider whether or not a cancellation of a visa should be revoked they are entitled to take into consideration whether or not the breach was due to exceptional circumstances beyond the applicant’s control (s.137L(1)(b) Migration Act).
[2] “ESOS Act”
It is now well settled law that it is the certification by the education provider as to the breach of its course progress or attendance policies that constitutes the breach of the condition and not the unsatisfactory progress or attendance itself; Maan v Minister for Immigration & Anor (2009) 179 FCR 581 [44 – 45]. It is also settled law that the decision by an education provider to issue a certificate is not reviewable by the Tribunal whose only task is to determine that a certificate, on its face, is of a kind that engages Condition 8202(3); Kim v Minister for Immigration & Anor [2011] FMCA 780 and the cases there cited (approved on appeal in Hassan v Minister for Immigration & Anor [2012] FCA 816 per Cowdroy J at [40]). Mr Newman, who appears on behalf of the applicant in this case, does not accept the correctness of those decisions although he does acknowledge that this Court is bound by them.
Mr Mir, while studying at the Lamart College of Technology owned by Sapphire International Pty Ltd, had received a series of warning letters concerning his attendance. The first of these was issued on 21 July, the second on 15 September and the third on 13 October 2010. On 10 November 2010 another letter was sent to him headed “Student Unsatisfactory Attendance – Notice of Intention to Report”. It starts as follow:
“Dear Azharuddin Mir,
Subsequent to our issuing to you an Attendance Warning Letter and an invitation to attend a counselling session our records are showing that you are now:
‘under the minimum course attendance requirement of 80% for the current study period.
As you are now in breach of your Student Visa attendance requirements the college intends to report you to the secretary of DEEWR via PRISMS. This will place your visa at risk, and hence you should regard this with the utmost importance.”
The letter goes on to advise Mr Mir of his appeal rights and reminds him that he is obliged to continue to attend college until notified by DEEWR. [CB 72]
It seems that Mr Mir did not continue to attend the college, his last attendance being 25 October 2010. It appears that Sapphire International failed to act immediately upon the letter because the follow up was overlooked [CB 1]. In the meantime on 24 February 2011, Mr Mir left Australia for India because he had been told that his grandfather had become ill and was admitted to hospital. He remained in India until early May 2011 although his grandfather was discharged from hospital in early March. His grandfather was re-admitted to hospital later in May after Mr Mir had returned. On 13 May 2011 the certificate for the purposes of Subclause 8202(3) of Schedule 8 of the Migration Regulations 1994 was issued and thereafter the visa was cancelled and Mr Mir made his application for revocation.
After Mr Mir had sought review of the delegate’s decision the Tribunal wrote to him on 24 October 2012. The letter is one seeking information pursuant to the provisions of s.359A of the Act. The letter referred to the certification of unsatisfactory course attendance, noted that the applicant’s last day of study was recorded as 25 October 2010, noted that he had been sent warning letters, noted that he had received a letter on 10 November providing him with notice of an intention to report, and making reference to a letter that the applicant had written on a date unknown, but found at [CB 17], that dealt with his reason for leaving Australia for India because of his grandfather’s illness. The letter advises the applicant that the information might be relevant because it suggests that:
·“Your grandfather’s illness and your trip to India occurred after you had been advised that you would be reported for poor attendance and may not be relevant to the period in question.
·    You did not tell your education provider about your circumstances.
·    Your education provider sent you warning letters about your course attendance, offered you intervention strategies and gave you an opportunity to appeal.
·    The breach of condition 8202 was not due to exceptional circumstances beyond your control.”
The letter required a response by 9 November 2012 but this did not come. The Tribunal then proceeded, as it was entitled to under s.360 of the Act, to proceed to a consideration of the application without offering the applicant the opportunity to appear before it. The Tribunal found, in accordance with the law, that there was a breach of Condition 8202 because of the certification given by the course provider. It then went on to consider whether or not the applicant had satisfied it that the reason for the breach was circumstances beyond his control. To some extent the decision appears to be one based upon the applicant’s absence from Australia and his course because of his grandfather’s illness but a close reading of the grounds and reasons, and in particular [41 – 47] [CB 95], reveals that the Tribunal was aware that the applicant had failed to comply with the attendance requirements long before he left for India, see especially [42] where the Tribunal states:
“[42]As the medical evidence is all dated after February 2011, the Tribunal does not accept, on the basis of the medical evidence provided, that the applicant’s grandfather was critically ill before this.
The reasons for the Tribunal’s conclusions are set out succinctly at [44 – 46] [CB 95]:
“[44]Firstly, the Tribunal does not accept that the applicant’s grandfather’s condition caused the applicant’s breach of condition 8202. The applicant’s grandfather was admitted to hospital in February 2011 and the applicant departed for India on 24 February 2011. This occurred after the applicant had already received warning letters about his unsatisfactory attendance and after he was advised on 10 November 2010 that he would be reported to Immigration. The applicant was already on notice that he would be reported to Immigration for unsatisfactory attendance before he learnt about his grandfather’s illness and before he left for India.
[45]Secondly, the Tribunal does not accept that the applicant’s grandfather’s illness constitutes ‘exceptional circumstances’, in the sense of being unusual or out of the ordinary. Many students have family members residing overseas who are elderly or are in poor health. The Tribunal has very limited evidence before it as to how serious the applicant’s grandfather’s condition was when the applicant went to visit him, whether the grandfather required care and assistance from the applicant, whether other family members could have provided that assistant and why the applicant needed to stay overseas for the period he did. The Tribunal does not accept the applicant’s grandfather’s illness amounts to ‘exceptional circumstances.’
[46]Thirdly, the Tribunal considers that it would have been within the applicant’s control to have sought approved leave from his education provider before he travelled to India so his absence would not have impacted on his attendance. Alternatively, he could have advised his education provider about the reasons for his absence after he returned to Australia before the certification occurred.”
As the Tribunal came to the conclusion there were no exceptional circumstances beyond the applicant’s control it was unable to exercise its discretion to revoke the decision to cancel the visa.
On 20 December 2012 the applicant sought review of the Tribunal’s decision from this court. There was only one ground of application. It was:
“Lamart College of Technology, the vocational institution the applicant attended, issued warning notices of inadequate attendance and an intention to report letter in the latter half of 2010. Apparently the last letter advised the applicant that he had 20 working days to appeal the decision to report him to the Minister. The applicant claims that he did not receive the notice but the Tribunal held this to be immaterial. The applicant did not avail himself of the opportunity to appeal but Lamart College it seems did not file the report with the Minister until the following year on 13 May 2011 after the applicant had left Australia to visit his ill grandfather in India and had returned some months later on 7 May 2012. The Tribunal ought to have inferred that the cancellation related to the applicant’s absence overseas and that the earlier absences of 2010 had been overcome and ought not to have taken them into account when assessing the question of exceptional circumstances and in so doing erred in its jurisdiction and at law.”
As matters proceeded before this court the one ground of application was superseded. The court was provided with helpful written submissions dated 1 November 2013 by the applicant’s advocate, Mr Newman. Paragraphs 1 to 6 of those submissions deal with the applicant’s views about the decisions in Kim, Maan and Hassan and the cases cited in those decisions in support, but Mr Newman accepts that the court is bound by them and there is no necessity for it to deal with them in these reasons.
The gravamen of the argument that was raised was that the Tribunal did not properly consider the medical evidence provided by the applicant as to the seriousness of the grandfather’s condition. It is to be remembered the Tribunal had said that it had “very limited evidence before it as to how serious the applicant’s grandfather’s condition was when the applicant went to visit him”.
There is a great deal of medical evidence found in the Court Book commencing at [CB 18] and concluding at [CB 47]. Much of the evidence consists of bills for medical services received by the grandfather. The most relevant documents would appear to be the discharge summary and certificate found at [CB 20] and again in more detail at [CB 22 - 23]. These reveal that the grandfather was admitted to a hospital on 24 February 2011 with respiratory distress that had continued since 21 February. The course of the hospital stay indicates:
“On admission: Patient was received in ICU & managed conservatively with IV antibiotics, IV steroids nebulisation & other supportive measures. Gradually his condition improved and he was weaned of ventilator and E.T. After extubation he was put on Bipap sent to ward.”
The grandfather was discharged on 5 March 2011. Mr Newman wishes the Court to accept that this evidence indicates clearly that the grandfather was very seriously ill and that this was ignored by the Tribunal, and it thus fell into jurisdictional error in the manner in which it exercised its discretion.
I am unable to agree. The evidence that was before the Tribunal was, to my mind, limited. Neither the Court nor the Tribunal are medical experts. There is nothing in the discharge summary to indicate how serious the grandfather’s condition was. Suffice to say, he was discharged on 5 March and was not re-admitted until May 2011, by which time the applicant had returned to Australia. There is no evidence that the grandfather’s condition between 5 March and the time the applicant returned to indicate why he remained in the country for that period of time.
I am also of the view that, to the extent that it might be said that the Tribunal was in error in its understanding of the medical evidence, that was an error within jurisdiction and its existence would not render the Tribunal’s exercise of its discretion nugatory. The Tribunal at [45] lists a series of matters it would need to have some evidence about before it could come to the conclusion that the circumstances of the grandfather’s condition constituted circumstances beyond the applicant’s control. It did not have that evidence due only to the failure of the applicant to respond to the letter issued under s.359A. The applicant has only himself to blame for the Tribunal’s conclusions.
It follows from the above that I am unable to grant the applicant the review he seeks. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate:

Date: 13 November 2013