Morsed v Minister for Immigration
[2004] FMCA 1085
•15 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORSED v MINISTER FOR IMMIGRATION | [2004] FMCA 1085 |
| MIGRATION – Migration Review Tribunal decision – refusal of a Student (Temporary) (Class TU) visa, subclass 573 – matters relevant to ‘exceptional circumstances’. |
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Pradhan v Minister for Immigration and Multicultural Affairs (1999) FCA 1240
| Applicant: | MUHAMMAD TOUHIDUL MORSED |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1181 of 2003 |
| Delivered on: | 15 November 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 15 November 2004 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | Ms S.E. Moore |
| Solicitors for the Applicant: | Vernon Da Gama & Associates |
| Counsel for the Respondent: | Dr S. Donaghue |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The applicant’s application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1181 of 2003
| MUHAMMAD TOUHIDUL MORSED |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment.
The applicant in this case is a 24‑year‑old male national of Bangladesh. He arrived in Australia on 20 March 2002 as the holder of a Student (Temporary) (Class TU) visa. He was granted a subclass 573 visa on 24 April 2002. He originally studied English and then enrolled in a diploma of computer science at La Trobe University. As a result of his lack of attendance at the course as required, a notice was issued pursuant to section 20 of the Education Services for Overseas Students Act 2000. That notice appears at page 1 of the court book. The particulars of the breach referred to in the notice was:
Your attendance last semester is below 80 per cent satisfactory requirement.
The notice was issued on 4 November 2002. The applicant did not attend before the minister's delegate for an interview in accordance with the request under the notice and therefore pursuant to section 137j of the Migration Act 1958 his visa was automatically cancelled. The applicant then sought a revocation of this cancellation pursuant to section 137l of the Migration Act. The relevant parts of the Migration Act for the purpose of this decision are sections 137j through section 137l. These sections provide as follows:
137J(1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).
Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen's visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach.
(2) The non-citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non-citizen complies with the notice; or
(b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;
makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.137K (1) A non-citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.
(2) A non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.
(3)In addition to the restriction in subsection (2), a non-citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than:
(a) 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 days of his or her intention to so apply—within the next 5 working days after those 2 working days.
(4) A non-citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation.
(5) In any case, a non-citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.
137L (1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the non-citizen's control; or
(c)of any other matter prescribed in the regulations.
(2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.
(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.
The relevant condition is condition 8202 which provides as follows:
8202 (1) The holder (other than the holder of a Subclass 560 (Student) visa who is AusAJD 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 an 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:
(a) in the case of a holder whose education provider keeps attendance records — the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i) for a course that runs for less than a semester — for the course; or
(ii)for a course that runs for at least a semester — for each term and semester of the course; and
(b) in any case — the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i) for a course that runs for less than a semester — for the course; or
(ii)for a course that runs for at least a semester — for each term or semester (whichever is shorter) of the course.
(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 MRT in considering this case has given brief reasons which I reproduce in this judgment.
Breach of Condition
27.The review applicant was sent the NCN for a breach of condition 8202, failure to meet course requirements. Generally, the Tribunal must have regard to visa conditions that were applied when the visa was granted (see Pradhan v Minister for Immigration and Multicultural Affairs (1999) FCA 1240).
…
29.During the semester ending October 2002 the review applicant failed 2 out of 3 subjects. Having regard to all the evidence presented the Tribunal is satisfied that the review applicant did not achieve an academic result in the June to October 2002 semester that La Trobe could certify to be at least satisfactory. The review applicant’s attendance rate was put at 65% by La Trobe and then, taking into account the periods of absence covered by the medical certificate, the Department put the attendance rate “at most, 67%”. The calculations by La Trobe did not appear to take into account the subject C++ but, as acknowledged by the review applicant in the hearing, his attendance level would not appear to assist in increasing his overall attendance for the semester and the Tribunal is satisfied that his overall attendance for the semester was less 80%, even making some additional allowance for the problem with his foot in July 2002. The Tribunal finds, therefore, that the review applicant did breach condition 8202 both in respect to his academic results and in respect to his attendance rate.
Was the breach “due to exceptional’ circumstances beyond the non-citizen’s control”?
30.The Tribunal must now consider the circumstances surrounding the breach. MSI-354 gives a number of examples of exceptional circumstances:
7.3.3 Examples of circumstances where an officer might consider revoking the cancellation include where:
·there has been a case of mistaken identity and a student’s visa has been cancelled in error;
·a student’s visa was cancelled only because the student had transferred to a second education provider; and
·there were emergency circumstances beyond the student’s control eg illness, injury, hospitalisation.
31.While the Tribunal is guided by the policy, it retains a discretion to decide what constitutes ‘exceptional circumstances’ on a case by case basis. In this case the review applicant has referred to problems into settling into living in Melbourne, being homesick being ill on occasions, problems with transport and having a lack of interest in the computer science course. The problems as presented by the review applicant appear to the Tribunal to be typical problems of an overseas student, which can be particularly burdensome in the first year in Australia. Whilst taking into account the medical certificates submitted, on the overall evidence presented, the Tribunal is not satisfied that the breach of 8202 was due to exceptional circumstances beyond the review applicant’s control.
32.The Tribunal makes the following findings:
• The review applicant breached condition 8202.
• The breach was not due to exceptional circumstances beyond the non-citizen’s control.
CONCLUSION
33.Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.
DECISION
34. The Tribunal affirms the decision under review not to revoke the automatic cancellation of the Student (Temporary) (Class TU) visa held by the review applicant.
The applicant applies relying upon two alleged errors on the part of the MRT. They are: firstly, that the MRT failed to take into account his claim that his low attendance may be explicable by the fact that if he was 10 minutes late on some occasions to a class where he was marked as absent; and secondly, that the MRT considered his academic results and concluded that the university could not have certified them to have been satisfactory.
It is apparent that the MRT's considerations in paragraph 29 of the decision go to the matters relevant to section 137l(1)(a). The MRT quite properly concluded that as a result of the notice the applicant was in breach of the visa condition relating to attendance. It seems that the MRT formed its own view as to whether or not he was in breach of the requirement for satisfactory academic performance, but in any event under condition 8202 he would have been in breach because he had not had a certificate issued by the education provider.
It was conceded during argument, and quite properly so, that there was no evidence upon which the MRT could have relied to show that but for the allegation of late attendance, the applicant would otherwise have complied with the attendance requirement of the visa condition.
It is unnecessary for me to determine in this case whether attending 10 minutes late and the institution marking the student down as not attending is sufficient to be an attendance for the purpose of interpreting condition 8202. On the facts and evidence before the MRT there was no sufficient evidence to enable them to conclude that if one added the late attendance classes to his attendance rate, he would have complied with the attendance requirements. Once that point is reached, it is clear that the applicant is unable to satisfy section 137l(1)(a) and to the extent that his case relies upon that subsection he must fail.
Whether or not it was relevant for the tribunal to consider his academic history at that point or his academic compliance under 8202 does not change the basic fact that he simply could not have succeeded under section 137l(1)(a) in any event. To the extent that the grounds relate to this issue, the application must therefore fail.
The second part of the application relates to the tribunal's consideration of section 137l(1)(b) and whether or not the breach was due to exceptional circumstances. It appears clear from the decision that the MRT has concluded that condition 8202 was breached both with respect to the attendance issues set out in the section 20 notice and with respect to the academic results (see last sentence of paragraph 29 of the decision).
In considering whether or not the breach was due to exceptional circumstances, the MRT does not specifically particularise what could be said to be the two areas of breach of 8202, the attendance and academic history. The MRT ultimately refers to "the breach" and finds that it was not due to exceptional circumstances.
Whether the Migration Act is referring to a singular factual event causing a breach, such as the nonattendance in distinction from the academic results, or the breach of the visa conditions as a whole is not immediately apparent from the wording of section 137l. The section, in subsection (a), refers to "the relevant visa condition or conditions" and section 137l(1)(b) refers to "the breach". Earlier in section 137j there is clear reference to a breach the subject of a notice under section 20, which is followed on by section 137k which speaks of a visa being cancelled under section 137j.
It appears to me that an appropriate reading of section 137l requires the minister to consider not simply the matter set out in the notice under section 127j, but the facts and circumstances that show the breach of condition 8202. In these circumstances it was appropriate therefore, for the MRT’s delegate to consider the totality of the circumstances constituting the breach of 8202, that is, the nonattendance and poor academic performance, in order to determine whether or not exceptional circumstances had been established. In this regard I therefore do not find that there is a reviewable error on the part of the MRT.
It is not argued before me that the MRT have erred in considering what as a matter of law, amounts to exceptional circumstances or failed in other respects to properly consider this part of the test that they had to apply.
In the circumstances I therefore refuse the current application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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