Nicholas v Minister for Immigration
[2007] FMCA 918
•15 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NICHOLAS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 918 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of Student (Subclass 573) (Higher Education) visa under s.116(1)(b) of the Migration Act 1958 (Cth) – no reviewable error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.116
Migration Regulations 1994 (Cth), reg.2.43(2)(b)(ii)(B)
ApplicantWAEE v Minister for Immigration [2003] FCAFC 184
Jayasekara v Minister for Immigration [2006] FCAFC 167
Minister for Immigrationv Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration (2004) 144 FCR 1
| Applicant: | ANTON PRAKASH NICHOLAS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File No: | SYG3096 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 2 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2007 |
REPRESENTATION
| Advocate for the Applicant: | The Applicant appeared in person |
| Counsel for the First Respondent: | Mr B O’Donnell |
| Solicitors for the First Respondent: | Ms B Griffin of Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 24 October 2006 is dismissed.
The applicant is to pay the first respondents costs and disbursements of and incidental to the application fixed in the sum of $4,000.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3096 of 2006
| ANTON PRAKASH NICHOLAS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 24 October 2006 for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") made on 6 September 2006, affirming the decision of the delegate of the respondent (“the delegate”) made on 21 March 2006 cancelling the applicant’s Student (Subclass 573) (Higher Education) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in the exercise of the Courts jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrate Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent’s solicitors was filed and served on 29 November 2006. I have marked this exhibit “A” and it was read into evidence.
The applicant filed an affidavit affirmed on 24 October 2006, attached to which is a copy of the Tribunal decision (“affidavit of the applicant”).
Background
The Tribunal decision of L Mojsin, reference N0608281, provides the following background information:
This is an application for review of the decision made by a delegate of the Minister for Immigration & Multicultural Affairs who cancelled the applicants sub-class 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant applied to the Department of Immigration & Multicultural Affairs for a Student (Temporary) Class TU Visa. The department granted the applicant a s.573 Higher Education Sector visa on 4 August 2004. The applicant was notified that a delegate of the Minister was considering cancelling his s.573 Higher Education Sector visa and that the decision to cancel the visa was made on 21 March 2006. The applicant was notified of the decision and his rights by letter day 21 March 2006 and given by hand on 21 March 2006.
The applicant applied to the Tribunal on 29 March 2006 for review of the delegate’s decision.(CB 55)
The Tribunal decision further provides the following information under the sub-heading “Claims and Evidence”:
The applicant was enrolled in a Bachelor of Commerce (Accounting) at Macquarie University.
The education provider, Macquarie University, by letter of 24 January 2006 notified the Department and the applicant in a Notice under Section 20 of the Education Services of Overseas Students Act 2000 (a Section 20 Notice) that the applicant’s student visa would cease on the 28th day after the date of the notice unless he reported to the Department as he had failed to achieve satisfactory academic results. That notice stated that the applicant did not meet course requirements because from 1 August 2004 to 30 November 2005 he had failed 8 subjects out of 9 subjects in which he was enrolled and he failed to comply with condition 8202(3)(b).(CB 57-58)
Tribunal’s findings and reasons
A summary of the Tribunal’s findings is contained in the first respondent’s written submissions prepared by Mr O’Donnell and I adopt paragraphs 17 and 18 of those submissions:
17.The Tribunal found that the applicant had not achieved an academic result that was certified by the education provider to be at least satisfactory. Consequently, the Tribunal found that the applicant had not complied with condition 8202 (CB 61.6, 62.2).
18.The Tribunal also found that the applicant’s failure to comply with the visa condition was not due to exceptional circumstances beyond the applicant’s control, within the meaning of reg. 2.43(2)(b)(ii)(B) (CB 63.4-5).
Application for review of the Tribunal’s decision
On 24 October 2006, the applicant filed an application review under s.39B of the Judiciary Act. In accordance with orders made at the first directions, the applicant filed an amended application on 20 February 2007 setting out the following grounds:
1.The Tribunal erred in law and held that the cancellation of the applicants Subclass 573 Higher Education Sector visa under s.116(1) of the Migration Act 1958 (Cth) and subregulation 2.43(2)(b) have been made out;
Particulars
(a)The applicant is a Sri Lankan national and belongs to Tamil ethnic minority. His mother tongue is Tamil and he studied in Tamil medium in Sri Lanka. It was the first time he studied in English medium in Australia (CB.58).
(b)Despite these difficulties the applicant managed to complete the Diploma for Commerce at SIBT (CB.58).
(c)After having exempted for the first year studies he was enrolled for the 2nd year at Macquarie University for Bachelor Commerce (Accounting). During that relevant period between 2004 and 2005, the applicant’s aunt passed away in Sri Lanka with whom he was very attached to her. The applicant also lost his close friend and had to go home in February 2005 because of the Tsunami disaster in Sri Lanka (Green Book p.58).
(d)On 21 March the applicant attended an interview at the Immigration Department and explained his difficulties and requested not to cancel his visa (Green Book p.58).
(e)The delegate failed to consider that the non-compliance was due to exceptional circumstances beyond the (applicant) visa holder’s control (Green Book p. 13 to p.20 & p.56).
2.The Tribunal erred in law and held that the applicant has not complied with condition 8202 in the applicant’s Subclass 573 Higher Education Sector visa.
3.The Tribunal failed to consider that natural disaster such as Tsunami as an exceptional circumstance for the applicant’s non-compliance.
4.The Tribunal also failed to consider the applicant’s grieve due to the sudden death of his aunt and his close friend was within the meaning of exceptional circumstances for the applicant’s non –compliance.
5.The Tribunal failed to apply in applicant’s case the observations of Lander J at [111] in Chen v MIMIA [2005] FCA 229 in considering the operation of s.137L stated that ‘any circumstances that are exceptional, in the sense that they are unusual and not of the applicant’s own making, but beyond the applicant’s control, may provide a reason for the Minister revoking the cancellation’.
Submissions and reasons
The applicant is a self-represented litigant who appeared without the assistance of an interpreter as he was fluent in English. The applicant confirmed that he had filed an amended application on 20 February 2007 but had no prepared any written submissions in support of that application. When invited to address the Court with oral submissions, the application requested an adjournment. When requested to explain the reason for an adjournment, he said that he needed time to approach a lawyer for assistance in preparing his claims, which he had not done. I reminded the applicant that at the first court date of 7 November 2006, orders were made to prepare the case for final hearing. The applicant had availed himself of the opportunity to file an amended application. At the directions hearing of 22 February 2007, a final hearing date was set and further orders were made in preparation for final hearing but nothing further was filed by the applicant. I declined the application for an adjournment. When the applicant was invited to make submissions in support of his application, he indicated that he would rely upon his amended application and had no further submissions to make.
Mr O’Donnell submits that the first to the fifth grounds amount to an unparticularised claim that the Tribunal failed to consider that the applicant’s non-compliance was due to exceptional circumstances beyond his control. Mr O’Donnell directed the Court’s attention to the Tribunal’s findings and reasons:
The applicant has told the Tribunal that he found the course difficult. He is also critical of the way the course was taught and the way the university dealt with its students. He also states that if he goes home without a degree it would bring shame on his family and leave him with nothing. He is not coping with his studies at a new institution.
These circumstances are not unusual or out of the ordinary. I do not accept that course difficulties are “exceptional circumstances” nor do I accept that returning to his home country without a degree brining shame to his family amounts to exceptional circumstances. I am satisfied the applicant has not provided any information to indicate that his circumstances for failing course requirements were exceptional beyond his control.(CB 62.4)
I agree with Mr O’Donnell’s submissions that the Tribunal did consider the issue of exceptional circumstances and that the applicant’s claim cannot be sustained.
In the second ground, the applicant alleges that the Tribunal erred in finding that he had not complied with condition 8202. Mr O’Donnell submits that given the s.20 notice, it was not open to the Tribunal to find otherwise. It is submitted that it was clearly open to the Tribunal to find that the applicant had not achieved an academic result that was not satisfactory as certified by his education provider. The s.20 notice clearly sets out the particulars of the breach as follows:
8202(3)(b) in any case – the holder achieves an academic result that is certified by the Education provider to be at least satisfactory.
Particulars of a breach – failure to achieve satisfactory academic results.
Macquarie University (Macquarie) has determined that in the course running from 01/08/2004 to 30/11/2005, your academic results are not satisfactory. This is because your failed 8 subjects out of 9 subjects you were enrolled in. As a result, you failed to comply with condition 8202(c)(b) of your student visa.
Justices Heerey and Sundberg stated in Jayasekara v Minister for Immigration [2006] FCAFC 167 at [16] (with Finkelstein J dissenting):
There is an obvious policy behind the way the condition is framed. Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision-maker or the Tribunal, who are less well fitted to make such judgments: Khan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 141 at [4].
This applicant’s education provider did make such a judgment in accordance with the finding in Jayasekara. Accordingly, the applicant had not complied with condition 8202. No error was made by the Tribunal in finding that the applicant had not complied with condition 8202. This ground must be rejected.
In respect of the third ground, the applicant alleges that the Tribunal failed to consider the Tsunami as an exceptional circumstance. Mr O’Donnell submits that the Tribunal is only obliged to consider claims made to it or which arise squarely from the material before it: NABE v Minister (2004) 144 FCR 1 at [58]-[63] per Black CJ, French and Selway JJ and the authorities cited therein. It is submitted that it is not an error for the Tribunal to not consider evidence which, in the applicant’s view, might support his claim: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [74]; ApplicantWAEE v Minister for Immigration [2003] FCAFC 184 at [46]. It is also submitted that the Tribunal gave the applicant two opportunities to address the question of exceptional circumstances – once in response to the s.359A letter and once at the hearing. On neither occasion did the applicant mention the Tsunami.(CB 49-50, 58) Mr O’Donnell submits that in the circumstances, it was reasonable for the Tribunal to proceed on the basis that for the applicant to return to Sri Lanka after the death of his friend was not part of his exceptional circumstance claim. Mr O’Donnell contends that the Tribunal was clearly aware of the Tsunami information given by the applicant to the delegate.(CB 58.4) ApplicantWAEE v Minister for Immigration at [47] per French, Sackville and Heerey JJ states:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
The Tribunal decision sets its obligation to consider the issue of “exceptional circumstances beyond a students control” and refers to authorities which considered the issue.(CB 62) The Tribunal member has demonstrated that she is clearly aware of the issue and her obligation. The member then reviewed the matters that the applicant raised at the hearing and made a finding. The issue which the applicant raised in respect of “the way the course was taught”, “the way university dealt with its students” and “the shame on his family” was dealt with by the Tribunal which found:
These circumstances are not unusual or out of the ordinary. I do not accept that course difficulties amount to “exceptional circumstances”…(CB 63.3)
I am satisfied that this ground cannot be sustained.
The fourth ground alleges that the Tribunal failed to consider the sudden deaths of the applicant’s aunt and his close friend as exceptional circumstances. Mr O’Donnell submits that the Tribunal gave the applicant two opportunities to address the question of exceptional circumstances and on neither occasion were these matters raised.(CB 49-50, 58.8) Mr O’Donnell contends that even if they were claims, the Court should not infer that they were not considered given that they had been “identified at some point” in the Tribunal’s reasons (CB 58.4): ApplicantWAEE at [47].
The Tribunal questioned the applicant at its hearing in respect of exceptional circumstances, which is recorded under the sub-heading “Claims and Evidence”:
When asked about exceptional circumstances beyond his control he stated that the problem was with the institution. He went and spoke with them and told them. The failures were not borderline. He did not do well in the final examinations. He did not study in the proper way. Certain subjects had 60-70% failure rate.(CB 58.8)
The applicant replied on 10 August 2006 to the s.359A letter sent to him on 25 July 2006, and the Tribunal records the response as follows:
The applicant acknowledged that he did not comply with condition 8208(3)(b). He outlined his problems studying at Macquarie University. He is now studying at CQU where he is happy.(CB 59.8)
The issues now raised in the application to this Court were not, on the face of the decision, raised before. In the absence of any transcript of the Tribunal hearing or any submission to indicate that a contrary position arose, I am satisfied that this ground should be rejected.
Conclusion
The applicant appeared as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out. Counsel for the first respondent assisted the Court with written and oral submissions in respect of the amended application. I am satisfied that none of the grounds contained in the amended application can be sustained. Neither is it apparent that any other ground of review exists that suggests the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant pay the first respondent’s costs and disbursements of and incidental to this application fixed in the sum of $4,000.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 14 June 2007
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