SEBASTIAN v Minister for Immigration
[2012] FMCA 817
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEBASTIAN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 817 |
| MIGRATION – Migration Review Tribunal – application for extension of time – interests of the administration of justice – application for judicial review – visa cancelled for alleged non-compliance with visa condition – lack of course attendance – whether there was a failure to take into account relevant considerations – whether non-compliance was due to illness – whether there were exceptional circumstances beyond the applicant’s control – whether there was jurisdictional error – causation not relevant – leave refused. |
| Education Services for Overseas Students Act 2000 (Cth), ss.19, 20, 40 Federal Magistrates Court Rules 2001 (Cth), r.44.05(c) |
| Attorney-General (NSW) v Quin (1990) 170 CLR 1 Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299 Li v Minister for Immigration & Anor [2011] FMCA 12 Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mpunzwana v Minister for Immigration and Anor [2009] FMCA 901 Patel v Minister for Immigration and Citizenship [2012] FCA 958 SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 |
| Applicant: | NITHIN SEBASTIAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 963 of 2011 |
| Judgment of: | Burnett FM |
| Hearing date: | 4 May 2012 |
| Date of Last Submission: | 4 May 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 12 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Burrow |
| Solicitors for the Applicant: | Rajesh Gopal Solicitor |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Spark Helmore Lawyers |
ORDERS
Application for leave is refused.
Subject to any other application being made by either party within seven (7) days of the date of this order, direct that within seven (7) days of the delivery of this judgment, the applicant pay the respondent’s costs fixed in the sum of $5,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 963 of 2011
| NITHIN SEBASTIAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant’s application for review of the delegate’s decision cancelling his visa was refused by the Tribunal. He has delayed in bringing his application to this Court for judicial review of the Tribunal’s decision and applies for both an extension of time to make such an application, and, if successful, for judicial review of the Tribunal’s decision.
For reasons which follow, his application for an extension of time pursuant to s.477 Migration Act 1958 (Cth) is refused.
The Delegate’s Decision
The applicant is a citizen of India who arrived in Australia on 6 August 2009 as the holder of a Subclass 572 visa. His visa was subject to Condition 8202 as imposed by clause 572.611(a) of Schedule 2 of the Migration Regulations 1994 (Cth). He was enrolled in a Certificate III in Automotive Mechanical Technology at Ram Optics Pty Ltd (trading as School of Ophthalmic Optics; Vocations Studies – Australia). On 16 July 2010, the education provider certified the applicant as not achieving satisfactory course attendance pursuant to s.19 and s.20 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) and he was accordingly issued with a notice of intention to consider cancellation under s.116(1)(b) and s.116(3) of the Migration Act, and regulation 2.43(2)(b) of the Migration Regulations, on the basis that he had not complied with the visa Condition 8202(3)(b).
Following an interview with the department and the provision by the applicant of some medical information which stated, among other things, that he suffered from asthma and hay fever, the delegate cancelled the applicant’s visa on the basis that the applicant had breached Condition 8202 and that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. That decision was made on 29 November 2010.
The Tribunal’s Proceedings
The applicant subsequently lodged an application for review of that decision by the Tribunal which after hearing determined to affirm the decision of the delegate. The applicant now applies for judicial review of the Tribunal’s decision.
In a letter from Dr Parameswaran dated 7 August 2010, which was produced to the Tribunal by the applicant, it was stated that the applicant had suffered from asthma and hay fever for many years. It noted that the applicant was doing fine until April 2010 when he had a viral infection and coughed badly. It noted that he suffered sinus headaches frequently and could not breathe properly due to his blocked nose and asthma. It further noted that he saw the doctor on several occasions due to his asthma and that the applicant complained that his medical condition became worse when he was exposed to automotive fumes. This was the subject matter of his course work and he was advised to stay away from classes. In addition, the doctor noted that the applicant was given stronger medications which did not work very well and was told to take enough rest to allow him to properly recover. The applicant complained that he had been unfit to attend classes between May and June 2010.
The applicant contended before the Tribunal that he had similar medical reports in the form of a medical certificate dated 22 June 2009 from a doctor in India and other certificates. He produced medical certificates for the period 3 – 4 May 2010, 10 – 11 May 2010, 17 – 18 May 2010 and 15 – 16 June 2010. It is significant to note that in respect of each of those dates, except 15 and 16 June, each certificate was for a Monday and Tuesday. The 15 – 16 June certificate was for a Tuesday and Wednesday.
The education provider issued warning notices to the applicant concerning his failure to attend classes. It was a condition of his visa that he attend more than 80% of classes, but the evidence demonstrated that he had fallen well short of this minimum attendance condition.
The applicant contended that his failure to attend classes was occasioned by his medical condition and that these circumstances constituted “exceptional circumstances” within the meaning provided for in regulation 2.43(2)(b).
The Tribunal found that the education provider had certified the applicant as not having achieved satisfactory course attendance in his Certificate III in Automotive Mechanical Technology course. It also found that it was unable to look behind the certification by the education provider. The Tribunal found prima facie that the applicant did not comply with Condition 8202(3)(b) and accordingly he had breached Condition 8202. The Tribunal then proceeded to consider whether or not the applicant’s breach of Condition 8202 was due to exceptional circumstances beyond his control. Ultimately, the Tribunal concluded that point against the applicant and found that there were no exceptional circumstances which accounted for his non-compliance. It followed from the Tribunal’s analysis that, in accordance with s.116(3) of the Migration Act 1958 (Cth), the circumstances were such that the visa must be cancelled.
Application to this Court
In his application for judicial review, the applicant applied for certiorari prohibition and mandamus in respect of the Tribunal’s decision of 16 June 2011 which affirmed the delegate’s decision to cancel his Subclass 572 Vocational Education and Training Sector visa. It must be noted that the application was filed out of time and, accordingly, the applicant requires leave pursuant to s.477 of the Migration Act 1958 (Cth) for an extension of time in order to prosecute the application.
Extension of Time Application
An extension of time will be granted only if:
a)An application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)The Court considers it necessary in the interests of the administration of justice to make the order extending time.[1]
[1] Mpunzwana v Minister for Immigration and Anor [2009] FMCA 901 at [19], [21].
The applicant has satisfied the first requirement of seeking an extension of time in writing by ticking the relevant box for an extension of time in his application for judicial review. However, in regard to the second requirement, factors to be considered as to whether an extension of time is “in the interests of the administration of justice” include: the seriousness of the consequences facing the applicant; the extent of the delay and whether there is a reasonable explanation for it; any prejudice to the respondent; the interests of the public at large regarding any exercise of the Court’s discretion; and, the merits of the substantive application. The list is not exhaustive.[2] Consideration of the interests of the administration of justice involves “consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.”[3]
[2] Li v Minister for Immigration & Anor [2011] FMCA 12 at [35].
[3] Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299 at [35] per Stone J.
In his application for judicial review, the applicant sets out the following reason in explanation for an extension. The reason is:
“After the MRT decision the applicant applied to the Minister for Immigration and Citizenship. The Minister replied on 19 September 2011. The 35 day appeal period to Federal Court expired on Sunday 23 October 2011. The applicant has been ill since 8 October and got better now to file this appeal. Medical certificate is attached.”
Although the applicant attached a medical certificate, the respondent contends that, notwithstanding that matter, he has not filed any evidence explaining the delay or demonstrating why it is necessary in the interests of the administration of justice for the Court to grant an extension as required by r.44.05(c) of the Federal Magistrates Court Rules 2001 (Cth). Furthermore, it identified three other matters:
a)The applicant has not provided a satisfactory explanation for his delay in bringing the proceedings because he erroneously refers to the prescribed time period for bringing the proceedings as having expired on 23 October 2011 when in fact, by operation of s.477 of the Act, he was required to file his application on or before 21 July 2011. It was contended that such ignorance of the relevant time limits did not demonstrate a satisfactory explanation of the delay in filing out of time;[4]
b)There was no evidence before the Court to explain what the applicant meant by his reference to his having applied to the Minister after he was informed of the Tribunal’s decision. If the applicant was referring to a request made by him for the Minister to exercise his discretion pursuant to s.351 of the Act, then, the respondent submitted, such a request does not provide a satisfactory explanation for his delay in bringing these proceedings;[5]
c)The applicant’s medical certificate relates only to a short period of seven days between 18 and 25 October 2011 during which the applicant purportedly suffered from asthma, a cold and a blocked nose. The respondent submitted the applicant did not explain how this medical condition prevented him from bringing these proceedings within the prescribed time period (remembering that it expired on 21 July 2011).
[4] SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 per Flick J at [6]; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33].
[5] Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [29].
I am mindful of the consequences for the applicant if no extension is granted. He will have to depart Australia and probably return to India. When those matters are considered together with my view, as expressed below, that the principal application has no merits, it is appropriate that the extension of time application be refused.
In the principal application, the applicant seeks prerogative relief upon four grounds, they being expressed as follows:
“1. The decision maker made an error of law amounting to a jurisdictional error, namely a mistaken conclusion;
2. The Decision Maker has asked itself the wrong question and/or ignored relevant material and has thus made an error of law, amounting to a jurisdictional error;
3. The Decision Maker has made a Decision that no reasonable Decision Maker could have reached that Decision and has made an error of Law;
4. The Applicant refers to the Decision of the Decision Maker, marked with the initials “ANM-!” [sic] and annexed to the Applicants [sic] Affidavit, affirmed on 1 November 2011.
PARTICULARS
A. In relation to Ground 1, the decision maker held that the applicant breached condition 8202 of his student visa. The First respondent did not place weight on the medical evidence provided by the applicant. The Tribunal -has [sic] made an error of law, namely by failing to take the medical certificates into account,. [sic] This is a jurisdictional error.
B. Further to the above and in relation to Ground 2, the Tribunal failed to take into account the issue raised by the applicant’s representative that there were serious doubts about college’s record keeping, namely that it took the education provider 48 days to record the breach.
C. In relation to Ground 3 for Judicial Review, the Tribunal did not put the adverse information to the college.”
The principal grounds advanced by the applicant followed the three particulars alleged in Ground 4 of the application. Each of those particulars picked up one of the earlier grounds generally expressed at either paragraph 1, 2 or 3 under the heading “Grounds of Application.” These three particulars constituted the principal basis for argument and I have considered the applicant’s submission on that basis.
Ground 1 – Error of Law: Jurisdictional Error
Ground 1 alleges that the Tribunal failed to take into account the medical certificates provided by the applicant in support of his claim that his non-compliance with Condition 8202 was due to exceptional circumstances beyond his control.
In submissions for the applicant it was acknowledged that the certification constituted the breach. It was however further submitted that failures such as inadequate record keeping could amount to exceptional circumstances. It was contended that Ministerial Direction No. 38 referred to by the Tribunal makes clear that exceptional circumstances can include matters relating to the ‘why’ behind the issue of a notice. Relevantly to the applicant’s case it was contended that the college did not provide complete records of the applicant’s attendance. In particular, it did not provide any logbook material in respect of industry work. It was submitted that, despite knowing of the required attendance of two days and four hours per week, the Tribunal limited its consideration to only the two days per week and based its determination on attendance on that limited subset.[6] The applicant considered that the Tribunal did not give any consideration to the failure by the college to provide complete attendance information despite that issue being central to the review it was required to conduct. Furthermore, having been aware of the required course hours and of the failure by the college to include such records, the applicant submitted that the Tribunal was required to consider the adequacy of the records placed before it by the college.
[6] Tribunal at [61].
The applicant’s complaints are best exemplified by reference to the Tribunal’s consideration of the issue. At paragraph [61] of its decision, the Tribunal noted:
“At the outset of the hearing the applicant accepted that he had a shortage in attendance but said this was due to his asthma. However later in the hearing when put to him that his medical certificates were for Monday and Tuesday and the applicant’s classes were on Thursday and Friday, he challenged the accuracy of the college records saying some of the classes were on Monday and Tuesday and not on Thursday and Friday. The applicant said he would provide evidence from other students that the classes were sometimes on a Monday or Tuesday but no further evidence was provided to the Tribunal in this regard. Written evidence from the education provider is that the applicant was required to attend classes 2 full days a week on Thursday and Friday and to secure 4 hours per week industry experience recorded in a log book by his supervisor. The applicant’s attendance record for 17 August 2009 to 25 December 2009 (Semester 1) and 1 February 2010 to 4 June 2011 (Semester 2) was provided which listed his attendances and absences each week. The relevant period is Semester 2 which shows 19.5 days absence in an 18 week semester of 35 class days (one day was a public holiday). The Tribunal finds the applicant was absent from classes for 19.5 days and present for 15.5 in semester 2, which amounts to less than 50% attendance.”
The Tribunal noted in its reasons that the issue concerning the adequacy of the college’s records was raised by the applicant at the hearing but never addressed. In the course of oral submissions, the respondent noted that the material before the Tribunal included the relevant attendance records which supported the Tribunal’s conclusions.[7] It can be seen by reference to the medical certificates placed before the Tribunal[8] that the applicant claimed certificates in respect of an incapacity commencing on 30 April 2010. In each instance, his claim was for unfitness to attend on the relevant Monday and Tuesday for semester weeks commencing 3 May, 10 May and 17 May 2010. The letter of 7 August 2010 from Dr Parameswaran added nothing to the applicant’s evidence on this point.
[7] Court Book page 77.
[8] Court Book page 19.
At paragraph 64, the Tribunal implicitly found that the education provider did have adequate records in place. From its discussion in that paragraph, it is apparent the Tribunal was alive to the applicant’s complaints and it proceeded to address them.
It follows that I have no difficulty accepting the respondent’s contention that the first ground would fail on the facts. A fair reading of the Tribunal’s decision clearly demonstrates that it took into account the applicant’s claims and evidence in this regard, but was satisfied that his non-compliance was due to reasons other than his purported ill health. The question of whether or not the circumstances presented by the applicant amounted to exceptional circumstances beyond his control were matters of fact for the Tribunal, and are therefore not subject to judicial review. Plainly, the applicant is unhappy with the Tribunal’s finding, but it is not the role of the Court in undertaking judicial review to review the merits of the decision.
Ground 2 – Failure to consider relevant considerations/irrelevant considerations
Ground 2 alleges that the Tribunal failed to take into account the applicant’s claim that he had “serious doubts” about his education provider’s record keeping. A fair reading of the Tribunal’s decision reveals that it clearly considered but rejected this claim.[9] To the extent that the ground alleges that the education provider failed to comply with its obligations under the National Code, any such non-compliance does not operate to invalidate the s.19 notice sent by the education provider; s.40 of the ESOS Act: Patel v Minister for Immigration and Citizenship [2012] FCA 958. Furthermore, even if the Tribunal had made a factual error in respect of this issue, it is not an issue which goes to the jurisdiction of the Tribunal and enlivens the authority of the Court; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35] – [36]; Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 at [47].
[9] Tribunal at [67].
It follows that this ground would fail.
Ground 3 – Failure to put adverse information
The applicant did not put any arguments addressing this ground. In response to the presence of this ground, the respondent contended that there was no obvious connection between the wording in Ground 3 and the particulars provided in support. I agree. The information put to the applicant was information obtained from the education provider that the applicant was certified as not having achieved satisfactory attendance. That included the other warning letters which had been issued and also that he had not discussed any illnesses with the education provider nor produced any medical certificates. The Tribunal has obligations under s.359A of the Migration Act 1958 (Cth) to put certain information to the applicant for comment. It did so. Accordingly, it is difficult to understand the import of the applicant’s submission and complaint that there was a failure by the Tribunal to “put the adverse information to the college.”
In my view, the findings of the Tribunal were open to it on the material placed before it. The relevant material was appropriately put by the Tribunal to the applicant. The process does not reveal any jurisdictional error. This ground would also fail.
Generally
The applicant submitted that non-compliance was due to exceptional circumstances which were related to a contention that the evidence demonstrated that he had medical conditions that were affected by exposure to automotive fumes, and that he was undertaking a course which exposed him to those fumes. Whilst the applicant acknowledged that no detailed forensic medical report was prepared analysing in detail the relationship between the applicant’s medical condition and his course, he submitted that there was an onus on the Tribunal to be positively satisfied that non-compliance was not due to exceptional circumstances. He contended that in this case there was no evidence to suggest that there was no such link. His submission proceeded:
“It is submitted that the unchallenged medical evidence was that there was a link between the two and that the Applicant’s absences were directly related to his condition. It is acknowledged that at the early stage of the semester the Applicant did not seek to obtain medical certificates – however an inference that would be open is that the Applicant’s condition was still developing given that the course had only commenced in late 2009. Such an inference was open on the evidence but no consideration was given to it by the Tribunal.”
In essence, the applicant complained that the Tribunal failed to afford him procedural fairness by failing to consider a relevant consideration, namely this alleged link.
It is well settled that to establish such a failing it is necessary to demonstrate that the decision maker has failed to take into account a consideration which it is bound to take into account in making its decision, a matter which is determined by construction of the statute conferring the discretion. Notwithstanding that matter, not every consideration that a decision maker is bound to consider but fails to take into account will justify the Court setting aside a decision, particularly if the failure would not have materially affected the decision.[10]
[10] See generally Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J (with whom Gibbs CJ concurred at [15]).
In this case, the applicant produced his medical certificates and, irrespective of causation, they failed to satisfy the Tribunal of “exceptional circumstances.” Indeed, the causation issue is not relevant. What is relevant is whether, by reason of a medical condition, howsoever caused, he was unable to attend classes. The reasons, such as his training environment, were not relevant to the issue. In my view, this ground too would fail.
Conclusion
The applicant seeks judicial review of the decision of the Migration Review Tribunal of its decision affirming a delegate’s decision to cancel his visa.
He has made his application out of time and requires leave of the Court to make such an application. For the reasons given above, his application for leave should be refused.
Orders
Application for leave is refused.
Subject to any other application being made by either party within seven (7) days of the date of this order, direct that within seven (7) days of the delivery of this judgment, the applicant pay the respondent’s costs fixed in the sum of $5,200.00.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 12 September 2012
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