SHARMA v Minister for Immigration

[2013] FCCA 2296

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2296

Catchwords:
MIGRATION – Student visa – condition 8202 – course attendance – failure to comply with condition to which visa last held was subject.

Legislation:

Education Services for Overseas Students Act 2000, ss.19, 20
Migration Regulations 1994, sch.8, condition 8202

Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384; [2012] FCA 958

Applicant: VIKAS SHARMA

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP  

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 718 of 2013

Judgment of: Judge Riley

Hearing date: 19 December 2013

Date of Last Submission: 19 December 2013

Delivered at: Melbourne

Delivered on: 19 December 2013

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Advocate for the First Respondent: Mr Rogers

Solicitors for the First Respondent: Australian Government Solicitor

Advocate for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 23 May 2013 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $4,500.

3. The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 718 of 2013

VIKAS SHARMA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

And  

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal. 

2. The Tribunal affirmed the decision of a delegate refusing the applicant a student visa on 2 August 2011.  The delegate refused the visa on the basis that the applicant did not comply substantially with condition 8202 of his subclass 572 Vocational Education and Training visa.  The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student, as he did not study between May 2010 and April 2011.

3. The Tribunal saw the case a little differently to the delegate.  The Tribunal noted that clause 572.235 required the applicant to have complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant and to any subsequent bridging visa. 

4. The Tribunal noted that the student visa last held by the applicant was subject to condition 8202(3) which, at the relevant time, provided that:

   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:

   (iii)section 19 of the Education Services for Overseas Students Act 2000; and

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

5. In the present case, the applicant acknowledged to the Tribunal that he had received a notice under s.20 of the Education Services for Overseas Students Act 2000 which certified that he had not achieved satisfactory course attendance.  The Tribunal raised this point with the applicant during the hearing and summarised the raising of the issue at paragraph 19 of its reasons.  Paragraph 19 is as follows:

   At the outset of the hearing the Tribunal explained that the issues for discussion primarily concerned whether the applicant has substantially complied with the conditions of his previous visa and therefore whether the met the requirements of clause 572.235. The Tribunal referred to the applicant’s letter which acknowledged that he had been issued a section 20 notice by his education provider. The Tribunal explained that the issuance of a section 20 notice and section 19 certification constituted a breach of condition 8202 and therefore an apparent failure to substantially comply with the conditions of his previous visa.

6. The Tribunal noted in paragraph 21 of its reasons that the applicant had explained that his grandfather had passed away and that had caused him to have depression and miss two or three weeks of classes.  The Tribunal also noted that the applicant said that, notwithstanding the fact that he had missed some classes, he nevertheless submitted his assignments within the required timeframe.  At paragraph 22 of its reasons, the Tribunal recorded that it explained to the applicant that there was no scope for the notion of substantial compliance in relation to something as black and white as whether the applicant had a s.19 certificate from his educational institution or not.

7. The Tribunal then gave the applicant time to discuss those matters with his adviser.  After availing himself of that opportunity, the applicant said that he was a genuine student and he had a medical report. 

8. The Tribunal went on to find that the s.20 notice had indeed been issued to the applicant. The Tribunal noted that the applicant disputed whether the s.20 notice should have been issued in his circumstances. However, the Tribunal noted that it had no discretion to look at the circumstances which may have led to the applicant receiving a s.20 notice.

9. The Tribunal found that the applicant’s education provider had certified that the applicant had not achieved satisfactory course attendance for the purposes of condition 8202(3)(b) and, consequently, the Tribunal found that the applicant had not complied substantially with the conditions of the visa he had last held. The Tribunal affirmed the delegate’s decision. 

10. The application to this court was filed on 23 May 2013.  It gives the following grounds of the application:

    1. When the case officer ask me for submission in regards of MRT, then I provide them all supporting document. When I went there then he not ask to that document he asked about section 20. But that was not issue, then he kept decision as under. I am not happy why he not gave the section 20 decision in my first decision. They have at least 9 months.

    I will give every supporting document whatever you need from me – pls ask me. My study is up to date. I got medibank. I never did the work up to 20 hours. If I got section 20 I not go to uni because my grandfather passed away.  

11. The statements set out in the application do not in themselves give rise to any jurisdictional error. They seem to be seeking to challenge the certificate itself. The applicant seems to be saying that he only got the s.20 certificate because his grandfather had passed away. The applicant seems to be asking the court to look at the merits of the s.20 certificate itself. However, the court is not able to do that.

12. The applicant filed an affidavit in support of his application.  It says:

    1.     They ask me in mrt totally diffrent from submission

    2. I will give supporting document to Court whatever they need.

13. The applicant has not identified any jurisdictional error in either the application or the affidavit. The Tribunal appears to have clearly raised with the applicant the critical issue on which the decision turned, and gave the applicant an opportunity to respond after consulting with his adviser.  

14. The applicant filed an outline of submissions. It essentially recounts his educational history and again seems to challenge the basis of the issuing of the s.20 certificate. The Tribunal and the court are not able to go behind the s.20 certificate. The Federal Court in the case of Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384; [2012] FCA 958 noted that the court cannot go behind such a certificate. At paragraph 74, Collier J said:

    It was not the role of the Tribunal to find that there was a valid certification by Griffith University - once the evidence established that a notice and certificate had been issued by the University which was valid on its face, there was no role for the Tribunal in looking behind the notice.

15. The Tribunal, in the present case, was in the same position. The applicant acknowledged that he had received the s.20 notice. It is reproduced at CB 74-80 and it appears to be valid on its face. In these circumstances, neither the Tribunal nor the court can go behind that certificate.

16. I am unable to discern any jurisdictional error in the Tribunal’s decision.  Consequently, the application must be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 14 January 2014