SANGITA Karki v Minister for Immigration

[2013] FCCA 157

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANGITA KARKI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 157

Catchwords:
MIGRATION – Review of Migration Review Tribunal – procedural fairness – no matter of principle – application dismissed.

Jayasekara v MIMIA (2006) 156 FCR 199
Kaur v Minister for Immigration and Citizenship [2012] FMCA 7
Patel v Minister for Immigration and Citizenship and Another [2012] FCA 958
Wang v Minister for Immigration and Citizenship [2007] FCA 488
Hao Jiang v Minister for Immigration & Citizenship [2007] FCA 907

Applicant: SANGITA KARKI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1192 of 2012

Judgment of: Judge Riethmuller

Hearing date: 22 March 2013

Date of Last Submission: 22 March 2013

Delivered at: Melbourne

Delivered on: 22 March 2013

REPRESENTATION

Counsel for the Applicant: Mr Nagaretnam

Solicitors for the Applicant: Logan Raj & Associates

Counsel for the Respondent: Mr Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed on 24 September 2012 and amended on 12 December 2012 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1192 of 2012

SANGITA KARKI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. This is an application for judicial review of a decision of the Migration Review Tribunal made on 29 August 2012.  The applicant raises as her primary ground of review that the tribunal failed to have regard to some written submissions that her agent forwarded to the tribunal after the initial hearing before the tribunal made its decision.  The Minister, quite properly, concedes that that course of events took place and that faxed submissions on 7 August 2012 were not taken into account by the tribunal.

2. As a result there has been a breach of the rules relating to procedural fairness and I must consider whether or not the court should exercise the discretion to order that the decision be quashed and the matter returned for a further hearing before the Migration Review Tribunal.  The core issue in this case is therefore whether or not the court should exercise discretion with respect to declining to grant relief to the applicant. 

3. The central issue in the case before the MRT is whether or not the applicant satisfied condition 8202 of her subclass 572 vocational education and training sector visa.  Condition 8202 sub 3(b) says as follows:

   (3) A holder meets the requirements of this subclause if neither of the following applies:…

   (b) 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 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

4. In this case a certification had been issued on 19 September 2009, a copy of which appears at page 67 of the court book.  Some argument was addressed to me as to whether or not notification of a section 20 notice under the relevant Act had been appropriately given to the applicant, however, there is no actual evidence about that.  However, the issue was certainly drawn to the applicant’s attention as early as 8 June 2010.  On 8 June 2010 the decision of a delegate noted that the applicant did not meet the attendance requirements and she did not comply with condition 8202. 

5. The delegate says:

   As [the education provider] has certified that they were not satisfied with Ms Karki’s attendance, Ms Karki has not substantially complied with condition 8202 and therefore does not meet the requirements in clause 572.235.

6. There is nothing in the material to indicate that the migration consultant she was then using, Pun and Associate Migration Consultant, nor her current solicitors, Logan Raj and Associates, did anything to address this difficulty with her case.  Put simply, she could not succeed in obtaining a visa whilst there was a certification with respect to her attendance. That certification was issued on 15 September 2009 and was the reason for her not succeeding with the delegate on 8 June 2010. 

7. At the hearing before me today the solicitor for the applicant made written submissions that referred to no case law or legislation.  The tribunal had referred in their decision to Jayasekara v MIMIA (2006) 156 FCR 199 (at paragraph 10 of the tribunal decision) which authority makes clear that a person cannot substantially comply with the visa conditions if condition 8202 (3) is not met. Jayasekara has been applied in a number of cases including a previous decision of my own made last year in Kaur v MIAC [2012] FMCA 7, the latter decision having been specifically referred to by counsel for the Minister in their written submissions filed before today’s hearing.

8. It seems apparent that the solicitor for the applicant had not read those decisions. The argument largely pressed was that I ought to send the matter back in the hope that the tribunal would be persuaded to overlook this condition on the basis that the applicant, it is submitted, will say that she was not aware of the section 20 notice under the Act.  Firstly, there is absolutely no evidence from her in this regard.  Secondly, the solicitor for the applicant does not appear to have considered the decision of Collier J in Patel v Minister for Immigration and Citizenship and Another [2012] FCA 958 where her Honour recounted an argument that was put in substantially the same terms (see paragraph 55 of her Honour’s decision) and made clear that the underlying decision of an education provider to issue a certificate is not susceptible to review by the tribunal.

9. Her Honour said:

   57. This is not a case where the underlying decision of the University is susceptible to review by the Tribunal, and the Minister is required to go behind the certificate, or be on notice as to the nature of delegations and proper lines of authority within  the education provider (compare by way of analogy comments of Davies J in Manokian v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 632 at 633; Moore J in Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448 at [30]; and Blanchard, McGrath and William Young JJ in the Supreme Court of New Zealand in McNamara v Auckland City Council (2012) 35 TCL 19/5 at [155]-[156]).

10. Again, not surprisingly, in the earlier decision I made in Kaur v Minister for Immigration and Another [2012] FMCA 7 I followed and applied the decision of Collier J of the Federal Court, being a superior court, and a decision having been made on appeal from another Federal Magistrate.

11. In the case before me today the applicant is unable to articulate any basis upon which she could satisfy the relevant condition given that a certificate has issued. It seems to me that it must have been absolutely obvious to any reasonable migration agent or solicitor that this was the core issue from 8 June 2010. Nothing has been done to address this issue.

12. On a practical level it is apparent that the applicant simply cannot succeed if her case goes back to the Migration Review Tribunal. Substantially the same point was considered in Wang v Minister for Immigration and Citizenship [2007] FCA 488 at paragraph 32 which was followed by Bennett J in Hao Jiang v Minister for Immigration & Citizenship [2007] FCA 907 where her Honour said at paragraph 26 and 27:

    26 Justice Besanko observed at [32] that the only way in which a cancellation of the student visa could be avoided was if the university’s decision not to certify the appellant’s academic results as satisfactory was altered. There, as here, the decision by the university to exclude the appellant had been taken some two to three years ago. There, as here, it was not suggested that, since the Delegate’s decision, the university had been approached to alter its decision or that there were any proceedings on foot to achieve that result. His Honour held at [32] that ‘at a practical level, the inevitable result of a rehearing would be a cancellation of the appellant’s student visa’.

    27 In Wang, as here, futility is not to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A of the Act or by asking if a decision by the Tribunal in the future to refuse the application were inevitable because there has been no relevant change of circumstances. Justice Besanko was of the view, consistent with Allsop J in SZEEU, that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application (at [32]). In the present case, as in Wang, the Tribunal was so bound and it was not possible that the Tribunal would reach a different result (cf Tran v Minister for Immigration and Multicultural Affairs (2006) 154 FCR 536). I agree, with respect, with the reasoning of Besanko J.

13. In the circumstances it appears to me that it is appropriate to follow the approach in Wang and Hao Jiang on the basis that on a practical level the inevitable result for rehearing would be the same as the result in this case on the first occasion. In these circumstances a further hearing before the MRT would be a futile exercise and the application should be dismissed. 

14. I therefore dismiss the application. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date:  29 April 2013