Pannu v Minister for Immigration
[2007] FMCA 1342
•5 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PANNU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1342 |
| MIGRATION – Student visa cancellation – no exceptional circumstances beyond the applicant’s control – sequence of events for s.20 notice to issue first. |
| Migration Act 1958 (Cth), ss.116, 359A, 424A, 474 Education Services for Overseas Students Act 2000 (Cth), s.20 Migration Regulations 1994 (Cth), reg.2.43(2)(b)(ii)(B) |
| Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | KULDEEP SINGH PANNU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 297 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 11 May 2007 |
| Date of Last Submission: | 11 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Lloyd |
| Solicitors for the Applicant: | Mr N. Dobbie of Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr D. Godwin |
| Solicitors for the Respondents: | Mr G. Johnson of DLA Phillips Fox |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 297 of 2007
| KULDEEP SINGH PANNU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 31 January 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.
The first respondent in its Response (filed 7 February 2007) conceded the application to show cause. It is therefore for the respondents to show cause why an order for relief should not be made (r.14.12). The applicant submitted an amended application as part of his written submissions. That amended application was filed in Court by leave on 11 May 2007.
The applicant was born on 14 August 1986 and is a citizen of India.
The applicant arrived in Australia on 26 July 2005 on a Student (Temporary) (Class TU) Subclass 572 Vocational and Training Sector visa, and in the second semester of 2005 commenced a Diploma of Business at the Melbourne Institute of Technology (“MIT”).
In semester two of 2005, the applicant passed three subjects and failed one subject (CB 14). His attendance record for the semester was 48.86% (CB 55). In the first semester of 2006, the applicant failed three of the four subjects in which he was enrolled (CB 14), and his attendance record was 56.82% (CB 55).
On 26 July 2006 the MIT sent a letter to the applicant pursuant to s.20 of the Education Services for Overseas Students Act 2000 advising the applicant that he had breached condition 8202 of his visa (CB 1). The notice advised the applicant that he must report to the Department within 28 days to explain the alleged breach.
On 18 August 2006 the Department sent a Notice of Intention to Consider Cancellation to the applicant, advising him that his visa may be cancelled because he had breached condition 8202 (CB 7), which requires that the student maintain a satisfactory academic result and a satisfactory level of attendance (CB 7).
In an undated letter to the Department the applicant stated that the reason he failed subjects in the first semester of 2006 was that he was depressed and could not concentrate as his grandmother had died (CB 15).
On 29 August 2006 the Department issued a decision to cancel the applicant’s visa on the grounds that he had breached condition 8202(3)(b), and there were no exceptional circumstances that were beyond the applicant’s control (CB 29).
On 5 September 2006 the applicant filed an application for review of the decision of the Department with the Migration Review Tribunal. The applicant was sent a letter on 4 October 2006 pursuant to s.359A of the Migration Act 1958 that invited him to comment on the information that the “Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” (CB 56). The applicant’s migration agent responded by facsimile received by the Tribunal on 20 October 2006 (CB 58). The applicant was invited to appear before the Tribunal by letter dated 30 October 2006 (CB 60) and gave oral evidence before the Tribunal on that day.
By decision dated 6 December 2006, the Tribunal affirmed the decision of the Department to cancel the applicant’s visa. In considering the applicants claims, the Tribunal found (CB 83-4) (highlighting added):
The Tribunal must first determine whether the ground for cancellation under s.116 identified by the delegate has been made out.
To comply with condition 8208(3)(b), the applicant must achieve an academic result that is certified by the education provider to be at least satisfactory for each semester. In Tian v MIMIA [2004] FCAFC 238, the Full Court of the Federal Court stated at (at [55] – [56]):
The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or there is not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).
On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.
The applicant failed 3 out of four subjects in the 2006 semester and was reported by MIT for having failed achieve satisfactory academic results. From this it can be inferred that the applicant has not achieved results certified by the provider to be satisfactory, at least for that semester. The applicant did not challenge that inference. Accordingly the Tribunal finds that the applicant has not achieved an academic result that has been certified by the education provider to be satisfactory for the semester, and therefore has not complied with condition 8202(3)(b).
The applicant argued that his inability to pass his subjects was due to exceptional circumstances beyond his control. He noted that he had also had attendance and adjustment problems in the first semester, but had overcome these and passed three subjects. It was when confronted with the news of his grandmother’s death in the weeks leading up to his exams, that he became depressed and was unable to attend classes or concentrate on his studies.
The Tribunal accepts that the applicant was bereaved and that this was an exceptional circumstance beyond his control. However, the Tribunal does not accept that the effect on the applicant was as severe as he and his witnesses stated. The applicant did not attend a doctor until August, and when prescribed anti-depressants he did not take them. IT was argued this was due to cultural factors, and that the timing of the visit to the doctor was coincidental. But the sequence of events, and the fact that the applicant was not in fact medicated, strongly indicates that the applicant sought medical help primarily in order to counter the expected problems with his visa. The applicant, furthermore, had a history of poor attendance and mediocre grades in the first semester of the course, not persuasively explained by the navigational and domestic challenges he faced, which suggests that broader factors which were responsible for his poor performance in 2006. This is supported by his having changed to an easier course.
The Tribunal finds that the applicant’s breach of condition 8202(3)(b) was not due to exceptional circumstances beyond his control. Therefore cancellation is required under s.116(3).
The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
Grounds in the application
In his application, the applicant set out three grounds as follows:
Ground 1: The MRT failed to comply with s.359A of the Migration Act.
The MRT failed to comply with s.359A of the Migration Act.
Particulars:
(1)The MRT used information not given to it by the Applicant as part of the reason for the decision to affirm the delegate’s cancellation decision and failed to issue a s.359A notice in relation to that information.
(a)The information was referred to at p.7 by the MRT as ‘the sequence of events’ which led it to believe that the Applicant had sought medical help to counter the expected problems with his visa, such that it rejected his claim that there were exceptional circumstances beyond his control for the purposes of regulation 2.43(2)(b)(ii)(B) of the Migration Regulations 1994.
The ‘sequence of events’ included:
(i) The date when the s.20 notice was issued.
(ii) The date when the Applicant reported to DIAC as a result of the s.20 notice.
(iii) The date when the applicant was scheduled for an interview with DIAC as a result of the s.20 notice.
(iv) The date when the applicant was interviewed by DIAC as a result of the s.20 notice.
(b)The MRT did not ensure, as far as reasonable practicable why information concerning the Applicant’s attendance and academic results for semester 2 of 2005 at MIT, which it set out in its s.359A notice to the Applicant, was relevant to the review.
(i) The MRT referred the said attendance as ‘low’ and that the Applicant’s passes in two subjects were in the low 50’s and that that cast doubt on the Applicant’s claim that his grandmother’s death was the reason for his failure in 2006.
However, the MRT actually considered the academic results and the attendance to be poor and mediocre respectively, and which it considered showed broader factors were responsible for his ‘poor performance in 2006’.
Ground 2: The MRT failed to take into account a relevant consideration.
(1)The MRT failed to take into account the Applicant’s claim that the reason he did not take his anti-depressant medication was because he did not recognise depression as a medical condition.
(2)The MRT failed to take into account the opinion of a doctor that the Applicant was depressed as claimed, as is shown by the prescribing of anti-depressants by the Applicant’s doctor.
Ground 3: The MRT failed to make a finding in relation to a material claim
(1)The MRT failed to make a finding in relation to the Applicant’s claim that he was depressed as a result of his grandmother’s death.
(2)The MRT failed to make a finding in relation to the Applicant’s claim that the reason he did not take his anti-depressant medication was because he did not recognise depression as a medical condition.
Grounds in the amended application
The applicant’s amended application filed in Court, by leave, on
11 May 2007, set out the following grounds and particulars:
[The applicant repeats Ground 1 of the application]
[The applicant repeats particulars 1(a)-(b)]
Particular (c)
The MRT did not give the applicant any notice that it considered that information to the effect that he had changed courses to an easier course was a matter that would be part of the Tribunal’s reason for affirming the decision under review.
[The applicant repeats Grounds 2 and 3 of the application]
Paragraph 13 of the applicant’s written outline of submissions states that “the applicant does not press the other grounds in the application.” As the applicant’s outline refers solely to an alleged breach of s.359A, the only ground before the Court is the alleged breach of s.359A.
The word “information” is used in the same context in s.359A of the Migration Act 1958 (Cth) as it is in s.424A. Both those sections were inserted into the Migration Act by the same amending act (Act 113 of 1998, s.3 and schedule 1). This being so, the Court finds that the word “information” has the same meaning in both sections. It is therefore relevant to look at cases that define the meaning of “information” for the purposes of s.424A to determine its meaning for the purposes of s.359A.
Findings of the Court as to the grounds in the application
The ground alleges a breach of s.359A of the Act, allegedly because the Tribunal “used information not given to it by the applicant as part of the reason for the decision to affirm the delegate’s…decision and failed to issue a s.359A notice in relation to that information.”
The first alleged piece of information is
(i)the date when the s.20 notice was issued.
The Court finds that the actual date of 26 July 2006 on the s.20 notice is “information” covered by s.359A of the Migration Act. That information appears to have come to the knowledge of the Tribunal from the Department’s file on the matter (CB 80). The actual date was not referred to in the material submitted to the Tribunal by the applicant is support of his application. However, as set out below, it has been shown that the date was not “information” relied on by the Tribunal as the reason, or part of the reason, for affirming the decision under review.
The second alleged piece of “information” is
(ii)the date when the applicant reported to DIAC (sic) as a result of the s.20 notice.
The applicant attached a copy of the DIMIA decision and covering letter to his application to the MRT (CB 39), but on examination, the date that the applicant reported to the Department was not disclosed (CB 25-31).
An examination of the decision of the Tribunal shows that no dates were mentioned for when the
·applicant reported to the department, or
·was scheduled for an interview with the Department, or
·when he was interviewed by the Department.
There is therefore nothing to show that those dates or the date of the s.20 notice were relied on by the Tribunal as the reason, or part of the reason, for its decision affirming the decision under review.
The Tribunal said at CB 83.9:
the sequence of events, and the fact that the applicant was not in fact medicated, strongly indicates that the applicant sought medical help primarily in order to counter the expected problems with his visa [application].
Evidence that the applicant sought medical help but failed to take medication was provided by the applicant for the purposes of his application (CB 81.6, 82.5). That information is therefore excluded by s.359A(3)(b).
As to the Tribunal relying on a “sequence of events”, the Court infers that the normal cause of events in such matters is for a s.20 notice to issue requiring the student to report the Department; an interview would then be scheduled and the interview would then take place. The Tribunal would know all this from subjective consideration or thought processes, which is not “information” for purposes of s.359A(1): SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [206]; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].
This leaves for consideration the fact that the Tribunal was aware that the s.20 notice was issued before the applicant sought medical help. This awareness could have come from:
(a)The information supplied to the Tribunal by the applicant: – His letter to the Department referred to the s.20 notice (CB 15) and attached the medical report (CB 17 and Index Item 6);
(b)The Notice of Intention to Cancel was dated 18 August 2006. That would of necessity follow the s.20 notice;
(c)In the interview that followed, the applicant stated that he saw the doctor on 14 August 2006 (CB 21) and he tendered the letter from Dr. Pereira dated 14 August 2006 (CB 27).
The Tribunal must therefore have been aware from information supplied by the applicant that the applicant saw his doctor after the s.20 notice was issued. The Tribunal must have been aware that the s.20 notice was issued before the Notice of Intention to Cancel was issued on 14 August 2006, and that the applicant saw his doctor on the same day (14 August 2006). The conclusion that the s.20 notice issued before the applicant saw his doctor, did not rely on the actual date of the s.20 notice. Further, the date of the s.20 notice was not “information” for the purposes of s.359A as “information” comprises “that of which one has been told or appraised”: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [206]; “information” is not the reasoning or conclusions of the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54] and SZBYR (ante).
The analysis above shows that the applicant either gave the information for the purposes of his application (excepted by 359A(3)(b)), or the Tribunal reached conclusions from the fact that a s.20 notice must have issued to put the matter in train, and a logical sequence of events followed in reporting to the Department, arranging and conducting an interview. Those conclusions are not “information”. The timing of the s.20 notice has not been shown to be “information” that the Tribunal relied on. The sequence of events relied on would have been arrived at by the Tribunal considering the natural progression of events, and the date of the medical examination, which was supplied by the applicant for the purpose of the application. The Court finds no breach of s.359A.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 9 August 2007
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