SEKIGUCHI v Minister for Immigration
[2005] FMCA 166
•17 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEKIGUCHI v MINISTER FOR IMMIGRATION | [2005] FMCA 166 |
| MIGRATION – Review of MRT decision – where applicant’s student visa was revoked due to his failure to meet the 80% attendance requirement – where the course was broken into four week units – whether the course periods constituted a “term” – whether the findings and reasons of the Tribunal evidence jurisdictional error – whether the Court should exercise its discretion to grant review. |
Migration Regulations 1994 (Cth), reg 8202
Federal Magistrates Court Rules 2001
Quan v Minister [2004] FCA 764
Abebe v The Commonwealth (1999) 197 CLR 510
Stead v State Government Insurer Commissioner (1986) 161 CLR 141
Carlos v The Minister (2001) 183 ALR 719
| Applicant: | KAZUYOSHI SEKIGUCHI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTIRAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1616 of 2003 |
| Delivered on: | 17 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 February 2005 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr S Marsh |
| Solicitors for the Applicant: | Lewis Law |
| Counsel for the Respondent: | Mr G T Johnson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1616 of 2003
| KAZUYOSHI SEKIGUCHI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTIRAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this case seeks a review of a decision of the Migration Review Tribunal made on 21 July 2003 in which the Tribunal upheld a decision of a delegate of the Minister made on 18 February 2003 to cancel the applicant's subclass 560 (student) visa on the grounds that he had not complied with the mandatory provision known as provision 8202 because he had failed the requirements of subclause 8202(3)(a) the text of which is set out below.
8202
(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 subclass 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 an 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:
(a) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i)for a course that runs for less than one semester – for the course; or
(ii)for a course that runs for at least a semester – for each term and semester of the course; and
(b) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)for a course that runs for less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course
…
The applicant was enrolled in a course with a provider known as the Universal English College. This course could be described as a general intensive English course running from beginners to advanced.
The course is described in a document found at [CB 27] as a “General English (beginner to advanced 4-52 weeks)” but it is fair to say that it is accepted by the respondent and advanced by the applicant that he graduated from the course in a period which was less than one year.
On 7 February 2003 the Department sent a facsimile message to the course provider found at [CB 3] requesting information about his compliance with the course requirements in relation to attendance and academic performance. The response received by the Department is found at [CB 5]. It indicates that the applicant's attendance record was unsatisfactory within two periods which it details as 9 September 2002 to 29 November 2002 and 2 December 2002 to 7 January 2003, the average attendance there being 66 per cent against the requirement of 80 per cent.
Annexed to the facsimile is a series of unit reports and these are found at [CB 7] – [CB 11]. They are in respect of a period of four weeks each and reveal that the applicant's attendance was unsatisfactory in all and that his general attendance to date was unsatisfactory.
Upon receiving this information the Department issued the notice of intention to consider cancellation, form 1099 found at [CB 12] and made its decision found at [CB 14] – [CB 17] to cancel the visa.
The applicant applied for review of the decision by the Tribunal where he was represented by a migration agent. The applicant conceded that his attendance was as set out by the school but stated that he had continued his course of study there and that his attendance record was now satisfactory. The Tribunal took this matter into consideration although, of course, compliance with condition 8202 is mandatory. The Tribunal's decision can be found at [CB 53]. It states, inter alia:
“The review applicant is involved in a registered course. The attendance records of the review applicant state that he achieved the following attendance rates for the following periods: 9/9/02 to 4/10/02 - 70 %; 8/10/02 to 1/11/02 - 76.5 %; 4/11/02 to 29/11/02 - 67 %; 30/12/02 to 31/1/03 - 54 %. The review applicant concedes that the attendance records are correct. The review applicant stated at hearing that he was often late for class because he slept in. In a submission to the Tribunal his adviser submitted that the review applicant was also ill for one week. There is no medical evidence before the Tribunal to support this submission.
The Tribunal is satisfied on the evidence before it that the review applicant has not complied with condition 8202 of his visa and is therefore liable to cancellation pursuant to ss. 116(1)(b) and 116(3) of the Act.”
Before me today Mr Marsh, who appears on behalf of the applicant, made a number of arguments. The first argument which he made related to the calculation of contact hours. This would have been important because of the decision of Jacobson J in Quan v Minister [2004] FCA 764 but in the event it was conceded that the percentages of the applicant's attendance were based on a contact hour period of 100 hours each.
Mr Marsh then turned to his second point which was that the Tribunal erred in law in construing each of these unit periods as a term for the purposes of subsection 8202(3)(a)(ii). He also argued that there was no calculation of the length of time that the course did run for. He noted that there was no statutory definition of the word "semester" or "term".
The first task that the Tribunal is required to undertake would seem to me to be to decide whether the course that it is considering is a course that runs for less than a semester, or a course that runs for at least a semester. Generally speaking and in common parlance a semester is understood as a part of an academic year. In Australia where courses are divided into periods which bear the name "semester" there are usually two of those per academic year. In my view, given the failure of the statute to supply a definition of "semester" then any decision in relation to whether a course was a course that runs for less than a semester is a decision of fact for the Tribunal. It would appear that in this particular case, taking into account the file note found at [CB 26] which indicated that the Universal English College had informed the Tribunal that the course had no terms or semesters but was broken into four-week units - see also [CB 52] at para [24] – the Tribunal decided the course was one that ran for at least a semester. Therefore, that it could ascertain whether or not the applicant complied with the condition by looking at the results for each term of the course.
Mr Marsh then argued that a four-week unit cannot be considered a "term". But I am not satisfied that that is correct. The definition of the word "term" in the Macquarie Dictionary includes:
“Each of certain stated periods of the year into which instruction is regularly organised for students or pupils in university, colleges and schools.”
The periods of this applicant's course was set at four weeks and 100 hours of tuition. It might appear short for those of us who are more used to terms being in the region of 12 weeks but this does not make it any less a term than the reduction of the average term from 12 weeks to nine which took place in New South Wales some years ago. Once again, a decision on this matter is a question of fact for the Tribunal and does not appear to me to be a matter of the law. The Court cannot interfere with decisions of fact: Abebe v The Commonwealth (1999) 197 CLR 510.
Mr Marsh argues that the uncertainty that surrounds the definition of "terms" and "semesters" makes it all the more important for the Tribunal to address these matters and to put them clearly to the applicant. The applicant should not be disadvantaged by the lack of clarification in the condition which has some very severe affects upon him if it is breached. I do not disagree with any of that. The Tribunal could have been clearer and told the applicant in no uncertain terms that it believed that each of the unit periods was a "term" but I do not see how this would have affected the decision in any way.
It follows from the above that I am of the view that the Tribunal did not fall into a jurisdictional error in the manner in which it came to its conclusions in this particular case. But if I am wrong about this, and if it can be argued the Tribunal really should have considered the whole course as opposed to certain parts of the course, then I am bound to posit a view as to whether or not it would be appropriate in the circumstances to exercise my discretion to allow the review.
Noting that relief will be withheld only where the court concludes that a compliance with the requirement could have made no difference: Stead v State Government Insurer Commissioner (1986) 161 CLR 141 at [11] and the comments of Merkel J in Carlos v The Minister (2001) 183 ALR 719 at [56] to [60] I would be disinclined to exercise my discretion in any event. The reason for this is that the results of the applicant throughout the whole of the course can be found by examining the unit reports previously referred to and those which are contained at [CB 38] - [CB 40].
The end result is that the applicant did not achieve a satisfactory attendance record throughout the whole of the course. Now, I accept that this particular decision might, as a result of a different view of the law than I have expressed, be considered to be invalid but what would then occur would be that another delegate would make another decision cancelling the applicant's visa on the basis of what appears to me to be incontrovertible evidence of a failure to comply over the whole of the course. The applicant would then be in no different position than that in which he is today.
Mr Marsh argues that this would not be appropriate because if the applicant failed to comply with the condition after his visa had been cancelled initially, he did that in the knowledge that he was not any longer a visa holder and this may well have affected his conduct. But the applicant was the holder of a bridging visa which entitled him to continue in his course until at least the time when the Tribunal made its decision. If he chose to act in a particular manner, then that was his choice and the court should not be fettered in the exercise of its discretions because the applicant may have disadvantaged himself.
I dismiss the application. I order that the applicant pay the respondent's costs. I assess costs in the sum of $3,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 24 February 2005
0
6
0