Patel v Minister for Immigration
[2011] FMCA 773
•4 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 773 |
| MIGRATION – Automatic cancellation of student visa – whether the Migration Review Tribunal identified the correct issues – wrong finding of fact is not a jurisdictional error – jurisdictional error not established. |
| Federal Magistrates Court Rules 2001, r.13.03C(1)(e) Migration Act 1958 (Cth), ss.116(1)(b), 137J-L, 357A, 359, 474, 499. Migration Regulations 1994, r.2.42(2)(b)(ii); sch.8 |
| Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 Chen v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 257 Hatcher v Cohn (2004) 139 FCR Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 R v Kelly (Edward) [2000] 1 QB 198 MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918 |
| Applicant: | AAKASH KUMAR MANILAL PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 215 of 2011 |
| Judgment of: | F. Turner FM |
| Hearing dates: | 11 July and 4 October 2011 |
| Date of Last Submission: | 4 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 4 October 2011 |
REPRESENTATION
| The Applicant appeared In Person on 11 July 2011 without the assistance of an Interpreter. The Applicant did not appear on 4 October 2011. |
| Counsel for the First Respondents: | 11 July and 4 October 2011 – Ms Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application for judicial review filed 24 February 2011 is dismissed.
The applicant pay the first respondent’s costs fixed at $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 215 of 2011
| AAKASH KUMAR MANILAL PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore and Revised)
This is an application for judicial review of the decision of the Migration Review Tribunal (the “MRT”) not to revoke the automatic cancellation of the applicant’s Student (Class TU) subclass 573 Higher Education Sector Visa under s.137L of the Migration Act 1958 (the “Act”).
The Department granted the applicant his subclass 573 Higher Education Sector Visa on 19 July 2008. That visa was cancelled automatically pursuant to s.137J of the Act on 23 June 2010 (Court Book “CB” 137). The applicant applied to the Minister for revocation of the cancellation on 6 July 2010 (CB 45). On 20 July 2010 a delegate of the Minister decided not to revoke the cancellation and notified the applicant on the same day (CB 72 – 75).
Sections 137J of the Act provides:
(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 that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non‑citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to 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 making any submissions about the breach and the circumstances that led to the breach.
Section 137K of the Act provides:
(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.
Section 137L of the Act provides:
(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.
At the commencement of the hearing on 11 July 2011, the applicant stated that he needed an interpreter. Enquiries were made by the Court, but an interpreter could not be arranged on short notice. The matter was therefore adjourned until 4 October 2011. The first respondent applied for an order that the applicant pay the costs thrown away by the applicant on 11 July 2011. However the first respondent had notified the Migration Co-ordinator that the applicant had required the assistance of an interpreter before the MRT, and no action had been taken to provide one for the hearing before the Registrar on 6 April 2011 or on 11 July 2011. On that basis the Court refused the first respondent’s application for costs.
There are no grounds for the review set out in the Application for Judicial Review filed on 24 February 2011; the applicant has not filed written submissions (as ordered on 6 April 2011); and the applicant has not filed Contentions of Fact and Law. The applicant made no submissions as to grounds on 11 July 2011 and did not attend the hearing on 4 October 2011.
The applicant has therefore not stated any grounds for judicial review.
As the applicant has not appeared at this hearing, the Court will proceed to reach a decision in this matter pursuant to r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001 (the “Rules”).
The Court accepts the submission for the first respondent that in the absence of grounds in the application the Court must determine whether the MRT discharged its statutory obligations and arrived at a decision that was open on the material before it.
The Court finds that the MRT identified correctly the legal framework for considering the application. The MRT identified ss.137J, 137K and 137L of the Act (supra).
The MRT gave proper consideration to the applicant’s evidence (CB 147 [61] – 149 [71]).
The MRT was permitted to seek additional information from Cambridge International College (“Cambridge”) (s.359). The MRT provided the applicant with an opportunity to comment on that information in accordance with s.359A (CB 121 – 124).
Section 357A of the Act provides that the Division (in which it forms a part) is an “Exhaustive statement of the natural justice rule”.
The applicant’s authorised representative responded to the s.359A invitation (CB 128 – 131) and that response was considered by the MRT (CB 148 [67 – 68] and 149).
The applicant was invited to appear before the MRT to give evidence and to present arguments relating to his case (CB 95), and he appeared on 25 October 2010 (CB 140).
The Court finds that the MRT discharged its statutory obligations.
A denial of natural justice has not been established.
The Court finds that the MRT identified the correct issues for determination by it, being:
a)Whether the applicant breached visa condition 8202(3) of the Migration Regulations 1994 (the “Regulations”)?; and
b)Whether the breach was due to exceptional circumstances beyond the applicant’s control? (CB 138.2)
Whether the applicant breached visa condition 8202(3) of the Migration Regulations 1994
The relevant version of condition 8202 is set out by the MRT (at CB 138) as follows:
(1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID 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 a secondary 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 neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
(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.
Condition 8202(3) relates to satisfactory course progress and course attendance. It is the certification by the education provider as to not achieving satisfactory course progress or attendance, that constitutes the breach of the condition, Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 per curiam at [44 – 45], and not unsatisfactory progress or attendance itself.
Cambridge
certified breach of attendance from 20 July 2009 to
15 November 2009 on 18 May 2010 (CB 42) and from 23 November 2009 to 9 May 2010 on 25 May 2010 (CB 41). Those certifications constituted the breach of condition 8202(3).
The question for the MRT therefore was “whether the breach was due to exceptional circumstances beyond the applicant’s control?” as required by s.137L(1)(b).
As observed by the MRT, the term “exceptional circumstances” in this context is not defined in the legislation (CB 139). The MRT referred to Chen v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 257 at [11] where Justice Lander considered the expression and 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” (CB 139).
Quoting from the MRT’s decision at CB 139:
(15)In a passage cited with approval in Wang v MIMIA [2005] FMCA 918, Kiefel J in Hatcher v Cohn (2004) 139 FCR stated at [49] – [50]:
‘Exceptional’ circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances… The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.
(16)Similarly, in R v Kelly (Edward) [2000] 1 QB 198 Lord Bingham of Cornhill CJ stated at 208:
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
(17)Those comments were referred to by the Full Court in Maan v MIAC [2009] FCAFC 150 at [51] as being of assistance in interpreting the expression ‘exceptional circumstances’. Although the Court was considering the expression in the context of student visa cancellations under s.116(1)(b) of the Act and r.2.42(2)(b)(ii) of the Regulations, the Tribunal regards them as equally relevant to the interpretation of the same expression in s.137L(1)(b).
(18)As to whether the Tribunal is satisfied that a breach of condition 8202 was due to exceptional circumstances beyond the applicant’s control, it is necessary to have regard to Direction No.38, Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202 (or for the review of such cancellation decisions) and for considering revocation of automatic cancellation of student visas (or for the review of decisions not to revoke such cancellations) made pursuant to s.499 of the Act. This document is intended to give decision makers directions about the performance of powers and functions under s.137L(1)(b) of the Act in relation to breaches of condition 8202 (as amended on an from 1 July 2007).
(19)Direction No.38 requires the Tribunal, when considering this issue, to have due regard to the following matters:
· policy advice from the Department’s Director of Compliance Operational Support Section to give due regard to a political upheaval or natural disaster in a particular country. This requires the Tribunal to consider whether that country is the student’s home country, and whether the particular political upheaval or natural disaster has affected the student’s ability to comply with condition 8202;
· written advice from the Department of Education, Employment and Workplace Relations (previously the Department of Education Science and Training) or an education provider that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the breach and subsequent reporting, including concerns in relation to monitoring of the student, the complaints handling and appeals process and/or the certification and reporting process. In particular, the Tribunal should give due regard, undertaking further inquiries if appropriate, to whether the education provider has failed to accurately monitor the student’s course progress or attendance, and whether the education provider has failed to give the student access to a complaints handling and appeals process as required under Standard 8 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code 2007).
(20)The above considerations are not intended to be exhaustive. Rather, the Tribunal is required to consider ‘all of the facts of the case in total’ and come to its own conclusion as to whether the applicant satisfies it that the breach was due to exceptional circumstances beyond his or her control.
The Court finds no error in the way the MRT formulated what was required of it.
The applicant sent a letter to the Department on 6 July 2010 which included his explanation as to the exceptional circumstances that were beyond his control, that led to the breach of his visa condition in relation to his attendance (CB 47). The applicant stated that he had been suffering with severe back pains since last November (November 2009) and that by attending classes he “had to sit for long hours and due to my back I was facing difficulty” (CB 48).
The applicant stated that he wanted to change his education provider, that he took admission at TK Melbourne College and that when he approached Cambridge to inform them of the change there was no one to listen to him and Cambridge did not supply him with a form to apply for cancellation of enrolment (CB 49).
The delegate of the Minister interviewed the applicant on 8 July 2010 (CB 143).
The MRT sets out its findings on the applicant’s claim that his poor attendance was due to exceptional circumstances beyond his control as follows.
The MRT found that the main factor claimed by the applicant was his “back pain and associated stress”. The MRT found the doctors certificate to be of little evidentiary value and considered the evidence submitted by the applicant in support of this factor did not demonstrate an exceptional circumstance beyond the applicant’s control (CB 148).
As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.
The finding that there were not exceptional circumstances that were beyond the applicant’s control is a finding of fact that was open to the MRT on the material before it. The finding is not amenable to review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.
In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.
And at [29]:
“if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.
A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
The Court refers to the following passages in Quin (supra) at [35]:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined”.
The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said:
16 “I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
“A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.
The next factor was that the applicant claimed to be homesick. The MRT did not accept that being homesick is an “exceptional circumstance for an international student”. Such a finding is in line with the decisions (supra) that to be an “exceptional circumstance” it must be “unusual or out of the ordinary” Hatcher and Wang (supra), or “unusual, special or uncommon” Kelly (Edward) (supra). It has not been established that the finding is erronious.
The MRT set out its reasons for rejecting the applicant’s claim that he was denied procedural fairness by him not receiving the letter dated
16 November 2009. The MRT did not make an error in law by rejecting that claim.The MRT found that it was within the applicant’s control to arrange for mail to be redirected to his new address (CB 149). The MRT did not thereby err in law.
The MRT considered the applicant’s claim about wanting to leave Cambridge and approaching the College about this in March 2010. The MRT noted that the applicant “conceded that he was enrolled and did attend (Cambridge) in the second reporting period from 23 November 2008 to 9 May 2009 and that he last attended on 23 March 2010”.
The date of 9 May 2009 (CB 149.4) is incorrect, however that error of fact as to the date does not invalidate the finding by the MRT that it “does not accept that the applicant’s wish and intention to study at another education provider is an exceptional circumstance beyond the applicant’s control, providing a reason for not meeting the attendance requirement of the course in which he was enrolled at Cambridge”
(CB 149.6). The finding as to the applicant’s last attendance on
23 March 2010 shows that the MRT was considering the correct attendance period (CB 149.5) and that “2009” was no more than a typographical error. At the most, it was an error of fact within jurisdiction and does not affect the validity of the decision.A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin.
It was held in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [83] that:
A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application for judicial review is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 7 October 2011
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