Patel v Minister for Immigration and Citizenship
[2010] FCA 918
•25 August 2010
FEDERAL COURT OF AUSTRALIA
Patel v Minister for Immigration and Citizenship [2010] FCA 918
Citation: Patel v Minister for Immigration and Citizenship
[2010] FCA 918Appeal from: Patel v Minister for Immigration & Citizenship & Anor
[2010] FMCA 359Parties: SANJAYKUMAR GIRISHBHAI PATEL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: VID 374 of 2010 Judge: MARSHALL J Date of judgment: 25 August 2010 Corrigendum: 27 August 2010 Legislation: Migration Act 1958 (Cth) s 116
Migration Regulations 1994 (Cth) reg 2.43(2)(b)Cases cited: Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 Date of hearing: 24 August 2010 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 18 Counsel for the Appellant: Self represented Counsel for the First Respondent: Mr Rosewarne Solicitor for the First Respondent: Clayton Utz FEDERAL COURT OF AUSTRALIA
Patel v Minister for Immigration and Citizenship [2010] FCA 918
CORRIGENDUM
1.This judgment was originally issued with the incorrect file number “VID 379 of 2010”. This has been replaced with the correct file number “VID 374 of 2010”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 27 August 2010
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 374 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SANJAYKUMAR GIRISHBHAI PATEL
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
24 AUGUST 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 374 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SANJAYKUMAR GIRISHBHAI PATEL
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE:
25 AUGUST 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Yesterday afternoon, the Court announced its orders in this appeal. What follows are the Court’s reasons for making those orders.
The appellant appeals from a judgment of the Federal Magistrates Court dismissing an application for judicial review of a decision from the Migration Review Tribunal (“the Tribunal”). The appellant (“Mr Patel”) was granted a Subclass 573 Higher Education Sector visa by a delegate of the respondent Minister. Mr Patel is a citizen of India. He came to Australia, by aeroplane, on 9 July 2007, to undertake an English language course at the Gordon Institute of TAFE, in Geelong. The course commenced in July 2007 and was due to conclude in December 2007.
Under Australia’s migration laws, a holder of a student visa is liable to have that visa cancelled should an education provider certify that the visa holder has not achieved satisfactory course attendance. An exception to this general proposition applies where the lack of satisfactory course attendance occurred, due to exceptional circumstances beyond the control of the visa holder. That is the combined effect of s 116 of the Migration Act 1958 (Cth) (“the Act”), reg 2.43(2)(b), of the Migration Regulations 1994 (Cth) (“the regulations”) and condition 8202, contained in Sch 8 to the regulations.
The question for determination in the current appeal is whether the Tribunal, in considering Mr Patel’s application to review a decision of the delegate Minister, to cancel his student visa, properly considered the meaning of the term “exceptional circumstances”.
Shortly after arriving in Geelong, Mr Patel found short term accommodation there. The landlord required him to vacate the premises after 10 weeks. Mr Patel then relocated to Kew, an inner Eastern suburb of Melbourne. He found the time and cost of travelling between Kew and Geelong to be difficult and expensive.
Towards the end of September 2007, Mr Patel received news from India that his grandfather had died on 25 September 2007. He became very sad. His grandfather’s death combined with the difficulties associated with travelling to Geelong to study resulted in him not attending classes at his course.
Mr Patel did not advise the Gordon Institute of his difficulties or seek any professional support to assist him deal with his difficulties.
Prior to his grandfather’s death, Gordon Institute sent Mr Patel a warning letter dated 12 September 2007 regarding his non-attendance. Gordon Institute arranged an appointment with him to discuss the matter but Mr Patel did not keep the appointment.
On 24 September 2007, Gordon Institute sent Mr Patel a “final warning letter” to which he did not respond.
On 28 July 2008, Gordon Institute certified pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth), that Mr Patel had not achieved satisfactory attendance at his course. This was the second notice issued under s 20 certifying that the appellant had not achieved satisfactory course attendance. On 31 July 2008, the Minister’s department issued Mr Patel a notice of intention to consider the cancellation of his visa under s116 of the Act.
On 3 July 2009, the department notified Mr Patel of a decision to cancel his visa under s 116 (1) (b) for lack of compliance with condition 8202 concerning his course attendance. Section 116 (1) (b) gives the Minister power to cancel a visa where the visa holder has not complied with a condition of that visa. The delegate’s decision noted that “the non-compliance was not due to exceptional circumstances beyond Mr Patel’s control.”
Mr Patel sought review of the delegate’s decision before the Tribunal. The Tribunal found that Mr Patel’s visa had been cancelled due to a breach of condition 8202 and that his non-compliance was not due to exceptional circumstances beyond his control. In so doing, the Tribunal noted that Mr Patel chose not to accept accommodation options provided by the Gordon Institute, but instead chose to relocate to Melbourne. The Tribunal also found that the cost of travel between Melbourne and Geelong was not “a legitimate claim”, which constituted exceptional circumstances beyond Mr Patel’s control that contributed to his non-compliance.
The Tribunal accepted that coming to a foreign country is likely to create a number of challenges and difficulties, one of which can be finding suitable accommodation. Nevertheless, the Tribunal found that accommodation difficulties for international students was a common problem, which did not constitute exceptional circumstances beyond Mr Patel’s control.
The Tribunal observed that Mr Patel had been sent two warning letters about his course non-attendance before he received news of his grandfather’s death. It considered that the receipt of that news was not an exceptional circumstance beyond his control affecting his attendance at his course.
Mr Patel sought judicial review of the decision of the Tribunal in the Federal Magistrates Court. The Court noted that it was common ground that Mr Patel had breached condition 8202 of his visa given his non-attendance. Although, at the hearing of the appeal Mr Patel submitted disingenuously that he had not breached condition 8202. The sole ground of review before the Court below concerned whether the Tribunal should have found that exceptional circumstances existed. That was the only issue which was and could have been ventilated on appeal.
The Federal Magistrate considered that Mr Patel was seeking a review of the merits of the Tribunal’s finding of fact that exceptional circumstances did not exist in Mr Patel’s case. At [20], her Honour said:
…I do not consider that the Tribunal’s decision falls into the category of case that was so unreasonable that no reasonable decision maker could have made it. It simply appears that the Tribunal assessed the claims that the applicant made and formed a view that was open to it, namely, that they did not constitute exceptional circumstances.
The above approach by her Honour does not reveal any appealable error. The Tribunal did not fall into jurisdictional error by making findings of fact that were open to it on the evidence before it, namely that Mr Patel’s accommodation situation and news about his grandfather’s death did not constitute exceptional circumstances beyond his control, which excused his failure to attend his course. As the Full Court said in similar circumstances in Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at [52]:
…findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact, clearly open to the Tribunal, and do not reveal jurisdictional error.
Having regard to the foregoing, the appeal must be dismissed, with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 25 August 2010
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