Sharma v Minister for Immigration & Anor - [2007] FMCA 499

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 499

MIGRATION – Review of Migration Review Tribunal decision – cancellation of student visa – institution certifying applicant’s academic result as at least satisfactory – Tribunal solicited from the institution an opinion that the result was not satisfactory and relied on that opinion – Tribunal ignored certificate issued by the institution – jurisdictional error established.

Education Services for Overseas Students Act 2000 (Cth), s.20
Migration Act 1958 (Cth), ss.116, 359, 359A
Migration Regulations 1994

Tian v Minister for Immigration [2004] FCAFC 238

Applicant:

SHEKHAR SHARMA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG302 of 2007

Judgment of:

Driver FM

Hearing date:

5 April 2007

Delivered at:

Sydney

Delivered on:

5 April 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms A Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue quashing the decision of the Migration Review Tribunal signed on 11 December 2006 and apparently handed down on 3 January 2007.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG302 of 2007

SHEKHAR SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was signed on 11 December 2006 and apparently handed down on 3 January 2007. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s subclass 573 higher education sector visa. Background facts and circumstances are well summarised in an outline of written submissions filed on behalf of the Minister on 3 April 2007. I adopt with minor amendments as background for the purposes of this judgment paragraphs 2 through to 15 of the Minister’s written submissions:
On 11 February 2006, the applicant entered Australia. On 16 February 2006, he was granted a Student (Temporary) (Class TU) visa. According to the applicant, on 13 February 2006 he commenced classes in the course in which he had enrolled, namely a Bachelor of Business in Hotel Management at Southern Cross University (SCU).
On 15 June 2006, SCU issued the applicant with a Notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) (the s.20 Notice). The Notice stated that “in the semester running from 13/02/2006 to 29/05/2007, [the applicant] attended 72.4% of the contact hours scheduled” and thus was in breach of condition 8202(3)(a) of his visa. The Notice informed the applicant that he had 28 days to report to what was at that time known as the Department of Immigration and Multicultural and Indigenous Affairs (the Department) to explain the alleged breach. In a further letter to the applicant dated 19 June 2006, SCU changed the applicant’s overall attendance level to 75%.
On 7 July 2006, the Department notified the applicant that a delegate of the Minister was considering cancelling his visa on the basis that he had failed to comply with condition 8202(3)(a) of his visa, and invited him to provide comments at an interview on 16 August 2006 (court book, pages 5-7).
On 15 August 2006, the day before the applicant’s interview, SCU responded to a facsimile that the Department had sent on 7 July 2006, and had re-sent on 15 August 2006, requesting information in relation to the applicant’s attendance and academic performance. In response to the request to “specify whether or not the student has achieved an academic result considered to be at least satisfactory for each term of their course by placing a ‘yes’ or ‘no’ in each box”, SCU wrote “yes” in the box for Term 1, 2006, being the only semester for which the applicant was enrolled at the University (court book, pages 10-11).
On 16 August 2006, the Minister’s delegate cancelled the applicant’s visa, being satisfied that the applicant had breached condition 8202 “by not maintaining 80% attendance” (court book, page 14).
On 23 August 2003, the applicant lodged an application for review of the delegate’s decision with the Tribunal (court book, page 17).
On 3 October 2006, the Tribunal wrote to the applicant pursuant to s.359A of the Migration Act 1958 (Cth) (the Migration Act), inviting him to comment on information it had obtained from SCU that his attendance was below 80%, and on bank statements he had provided to the Tribunal showing significant deposits made into his account and which suggested that he may have been working when he should have been attending classes (court book, pages 27-28). The applicant responded by letter dated 18 October 2006 (court book, pages 29-41), and by further letter dated 20 October 2006 (court book, pages 42-47).
On 23 October 2006, the Tribunal invited the applicant to attend a hearing before it on 16 November 2006, which invitation he accepted (court book, pages 48; 54). On the same date, it wrote a second letter to the applicant pursuant to s.359 of the Act, requesting information in the form of payslips and other evidence of his employment from February to May 2006 and contact details of his employer(s) for that period (court book, page 50).
On 29 September 2006, the Tribunal wrote to SCU requesting information about the applicant (court book, page 25). SCU responded by letter dated 5 October 2006, attaching a document titled “Student History Report” which indicated that the applicant had failed three of the four subjects he had studied in the first semester of 2006 (court book, page 84).
It appears that the Tribunal may not have received the fax at that time, as it sent a further letter to SCU on 23 October 2006 in the same terms as the letter it sent on 29 September 2006 (court book, page 52). On 15 November 2006, the University faxed to the Tribunal the 5 October letter and attachments (court book, page 82). A Tribunal Case Note records that on the same date, a Tribunal officer rang SCU and asked whether the fact that the applicant had failed three out of four subjects indicated “that the education provider is also unsatisfied with the RA’s academic performance for the Semester”. When the person with whom the Tribunal officer spoke said “yes”, the Tribunal officer asked if the University could issue something in writing to that effect (court book, page 86). On 16 November 2006, SCU faxed to the Department an official copy of the applicant’s transcript, which was certified by the Director of Academic Studies as follows (court book, page 88):
I confirm that this is a true record and shows that the student was not successful in 3 of the 4 subjects attempted. His academic result, therefore, is considered to be unsatisfactory.
At the hearing on 16 November 2006, the Tribunal questioned the applicant about this new information (court book, page 124). On 17 November 2006, the day after the hearing, the Tribunal again wrote to the applicant pursuant to s.359A of the Act, inviting him to comment on the information from the University to the effect that his academic performance in Semester 1 of 2006 was not satisfactory. The Tribunal noted that the information was relevant because “it may lead the Tribunal to find that [the applicant] breached condition 8202(3)(b), which required [the applicant] to achieve an academic result that is certified by the education provider to be at least satisfactory” (court book, pages 98-99). The applicant responded to the Tribunal’s invitation on 5 November 2006 (court book, pages 100-113).
On 3 January 2007, the Tribunal handed down its decision affirming the decision of the Minister’s delegate (court book, page 116).
The Tribunal noted that condition 8202(3)(a) required it to be satisfied that the visa holder had attended the course for at least 80% of the “contact hours” scheduled. Bearing in mind the definition of “contact hours”, and taking into account the course timetable provided by the applicant, the Tribunal was not satisfied that SCU’s calculation of attendance accurately reflected the applicant’s attendance with respect to all contact hours (court book, page 127). Accordingly the Tribunal was not satisfied that the applicant had failed to comply with condition 8202(3)(a) (court book, page 127).
The Tribunal then turned to the applicant’s compliance with condition 8202(3)(b). On the basis of the information provided by SCU on 16 November 2006, the Tribunal found “that the education provider did not certify the applicant’s academic results as at least satisfactory for each term or semester of the course”, and thus found that “the applicant did not comply with condition 8202(3)(b)” (court book, page 127). Further, the Tribunal was not satisfied that the matters put forward by the applicant constituted, “singularly or cumulatively”, exceptional circumstances beyond the applicant’s control, such as to enliven the exception in reg 2.43(2)(b)(ii)(B). In making that finding, the Tribunal had regard to the applicant’s academic and attendance records, together with his evidence as to difficulties with one of his lecturers and his claims of inadequate provision by his education provider of study facilities (court book, pages 127-128). The Tribunal concluded (court book, page 129):
Having considered all the circumstances described by the applicant, the Tribunal finds that these are not exceptional circumstances and that such circumstances are not beyond the student’s control. For the reasons given above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists and such ground involves circumstances that require cancellation under s.116(3).
The Minister’s submissions also deal with the relevant legislative provisions in paragraphs 16 through to 19 and I incorporate those paragraphs in this judgment:
Section 116 of the Act provides:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)…
(b)Its holder has not complied with a condition of the visa; or
…
(g)a prescribed ground for cancelling a visa applies to the holder.
…
(2)The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Clause 573.6(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) provides that the holder of a Class 573 visa must comply with condition 8202, which is contained in Schedule 8 of the Regulations and which provides:
(1)The holder … must meet the requirements of subclauses (2) and (3).
(2)…
(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 a 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.
(4)…
Regulation 2.43(2) of the Regulations provides:
For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b)in the case of a Student (Temporary) (Class TU) visa:
(i)that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or
(ii) that the Minister is satisfied that:
(A)the visa holder has not complied with condition 8202; and
(B)the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Section 20(1) of the ESOS Act provides that a registered education provider must send an accepted student a written notice “if the student has breached a student visa condition relating to attendance or satisfactory academic performance”. Section 20(2) requires that such a notice be sent as soon as practicable after the breach.
These proceedings began with a show cause application filed on 31 January 2007 which was accompanied by a short affidavit, annexing the decision of the Tribunal, filed on the same date. I am satisfied that the application was filed within time. The matter came before me on 22 February 2007 when it was agreed that a preliminary hearing should be dispensed with and the matter should proceed directly to a final hearing. I directed that the matter be listed for final hearing on 7 May 2007 but that hearing was brought forward to today at the applicant, Mr Sharma’s, request.
In addition to his application, Mr Sharma also relies upon a document headed “Ground of the Application”, filed on 15 February 2007, as well as a document headed “Additional Grounds of the Application, filed on 30 March 2007, and a further document headed “Applicant’s Rejoinder” in response to the respondent’s submissions, filed in Court today by leave. The Minister relies upon his response filed in Court on 22 February 2007 and the submissions I have already referred to. I also have before me as evidence the Court book filed on 23 March 2007 and a document dated 28 March 2007 from the SCU hotel school in Sydney signed by Mr Paul Weeks which, on its face, purports to be a certificate of at least satisfactory performance by Mr Sharma at the hotel school in the first semester of 2006.
At the hearing today I advised the parties that I wished to reverse the usual procedure and hear from the Minister’s counsel first because, on having read the material, it seemed to me that there was an issue of significance that I needed to raise with the Minister. Both Mr Sharma and Ms Mitchelmore, who appeared for the Minister, agreed to that procedure being followed.
The issue which concerned me was the fact that the SCU had certified on 15 August 2006 that Mr Sharma’s academic performance had been satisfactory (court book, page 11). The delegate’s decision was silent on that issue and it can fairly be assumed that the delegate relied on that certificate. However, as is noted in the Minister’s submissions, the Tribunal was concerned about the academic performance of Mr Sharma as a result of seeking clarification from the SCU about Mr Sharma’s attendance records. The Tribunal was perfectly entitled to seek clarification of Mr Sharma’s attendance. The SCU had identified his attendance at only 75 per cent and the delegate had cancelled the visa on the basis of inadequate attendance. Mr Sharma, in his review application, had challenged that decision and put forward additional material that properly called for a further inquiry by the Tribunal to the SCU. That is what happened.
However, the SCU, in addition, provided to the Tribunal information relating to Mr Sharma’s academic record which showed that he had failed a number of subjects. It appears, from the court book, that this caused concern to the Tribunal about whether Mr Sharma’s academic performance was satisfactory. A case note (court book, page 86) is a record of a conversation between an officer of the Tribunal and a person at the SCU. Relevantly, the case note says:
Rang Southern Cross University, Registrar away for a week or so, spoke to Erin Gale. I asked her that P.3 of the fax we received indicated that the .RA failed 3/4 subjects in that semester in addition to unsatisfactory attendance, whether this indicate [sic] that the education provide [sic] is also unsatisfied with the R.A’s academic performance for the Semester?
Erin advised “yes”. I asked whether the University could issue something in writing to the effect indicating that they are of the view that the R.A hasn’t achieved satisfactory academic performance for the relevant semester.
She said the Registrar is away now, but she could print out that ‘Student history report’ again and ask a senior staff to sign it off, or to something about it & fax it to us tomorrow morning. She’ll see what she can do.
I thanked her and requested that we would like to have it ASAP since we want to issue something to the R.A. prior to the hearing tmr at 2.30pm. She said it should get to me before then.
On page 88 of the court book is a further document which appears on its face to be a transcript of Mr Sharma’s academic record with the handwritten notation:
I confirm that this a true record and shows that the student was not successful in 3 of the 4 subjects attempted. His academic result, therefore, is considered to be unsatisfactory.
The handwritten notation has been signed by Paul Weeks, who is the same person who signed exhibit A1. The Tribunal relied upon Mr Weeks’ handwritten notation in considering whether Mr Sharma met condition 8202(3)(b) attached to his visa. The Tribunal, in its decision, recites in general terms what occurred and the presiding members says (court book, page 127):
On the basis of the advice from the Southern Cross University, the Tribunal finds that the education provider did not certify the applicant’s academic results as at least satisfactory for each term or semester of the course. The Tribunal finds that the applicant did not comply with condition 8202(3)(b).
The Tribunal then went on to consider whether that breach was due to exceptional circumstances beyond the applicant’s control and decided that it was not.
As I put to Ms Mitchelmore, I have serious concerns about the Tribunal’s approach. The first and perhaps the most important is that the Tribunal had before it the departmental file which showed that the SCU had already certified on 15 August 2006 that Mr Sharma’s academic results had been at least satisfactory. On page 127 of the court book the Tribunal quoted the decision of the Full Court of the Federal Court in Tian v Minister for Immigration [2004] FCAFC 238 at [55]-[56] where the Court said:
The Minister does not have to be satisfied that the holder has achieved an academic record result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b). On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.
It seems to me that in approaching the SCU to query Mr Sharma’s academic performance the Tribunal did precisely what it was not entitled to do and what it should have known it was not entitled to do if it had adverted to the certificate issued on 15 August 2006. The decision of the Tribunal is entirely silent as to the certificate of satisfactory academic results. So is the letter issued to Mr Sharma in purported compliance with the Tribunal’s obligations under s.359A of the Migration Act (court book, page 98). I infer from that silence that the Tribunal had overlooked or forgotten about the certificate of satisfactory progress which had been issued. If it had been aware of it, it would be astonishing that no mention of that certificate was made by the Tribunal in its approach to the SCU, in the Tribunal decision and in the invitation to comment issued to Mr Sharma.

The certificate issued by the university on 15 August was obviously relevant material. It demonstrated on its face that Mr Sharma met condition 8202(3)(b). It established, in my view, a jurisdictional fact. It was not for the Tribunal to query the certificate unless there was some proper basis to do so, for example, a suggestion the certificate was obtained fraudulently or had been fabricated.
The situation is entirely different if no certificate of satisfactory academic results has been issued. Where an institution expresses the opinion that a student’s performance is not satisfactory, that is not a certificate for the purposes of condition 8202(3)(b). It is simply evidence of the absence of a certificate. In such a situation the Tribunal is perfectly entitled and may, in particular circumstances, be obliged to seek clarification from the institution. That is particularly so where there is a review application which seeks to establish that academic results were satisfactory.
Here the university certified that Mr Sharma’s academic result was at least satisfactory. As the Full Federal Court has emphatically observed, that is the end of the matter. No further inquiry was called for. The Tribunal undertook a further inquiry, it was not entitled to do so and it entirely overlooked both the existence and the significance of the certification. This is reinforced in the quoted passage from page 127 of the court book where the presiding member states as a fact that the education provider did not certify the applicant’s academic results as at least satisfactory. That is wrong. The SCU did so certify.
The omission made by the Tribunal also caused it to ask itself the wrong question. The question was not whether Mr Sharma had achieved academic results that were satisfactory. The question was whether Mr Sharma had from the institution a certificate that his academic result was at least satisfactory. He did. He met the condition attached to his visa. The errors made by the Tribunal were patently jurisdictional errors. In the light of those errors, Mr Sharma is entitled to relief in the form of constitutional writs of certiorari and mandamus.
The question for the Tribunal to consider on a rehearing of this matter is whether the certificate forming exhibit A1 in these proceedings is a further certificate meeting the description in condition 8202(3)(b). There is also no impediment to the Tribunal reconsidering the issue of whether Mr Sharma met condition 8202(3)(a). I understand Mr Sharma is not currently a student and I do not discount the possibility that there may be other issues requiring consideration by the Tribunal.
I will order that a writ of certiorari issue quashing the decision of the Migration Review Tribunal signed on 11 December 2006 and apparently handed down on 3 January 2007 and a writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it, according to law.
On the questions of costs, I have raised with Mr Sharma whether he has incurred any legal expenses in the conduct of this application. He confirmed that while he has incurred some expenses, they are not of a nature which would be recoverable on a costs order. Accordingly, I will order that there be no order as to costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 16 April 2007