SINGH v Minister for Immigration
[2015] FCCA 121
•23 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 121 |
| Catchwords: MIGRATION – Migration Review Tribunal – procedural fairness – student visa – application dismissed. |
| Legislation: Education Services for Overseas Students Act 2000, ss.19, 20 |
| Patel v Minister for Immigration and Citizenship [2012] FCA 958; (2012) 206 FCR 384 Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007 Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199 |
| Applicant: | SHAMSHER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1735 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 5 June 2014 |
| Date of Last Submission: | 1 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 23 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Mr Hornsby |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The Application filed on 17 October 2013 be dismissed.
The Applicant pay the Respondent’s costs fixed at $6,825.
Any application to vary or set aside the costs order or any application to be heard with respect to the costs order be filed and served within 14 days.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 1735 of 2013
| SHAMSHER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant applies for judicial review of a decision of the Migration Review Tribunal dated 20 September 2013. In this decision, the Tribunal affirmed the decision of a delegate to refuse to grant the Applicant a temporary student visa.
Background
On 14 January 2011, the Applicant was granted a student visa valid until 15 March 2012 to enable him to complete a Certificate IV in Business and a Diploma of Management. These courses were offered by Pramukh Group of Companies Pty Ltd trading as Harward International College in Melbourne.
The visa was valid until 15 March 2012. On that date, the Applicant applied to the Department of Immigration and Citizenship (as it then was) for a further visa in order to continue studying. The Applicant was refused a visa on the basis that he had not substantially complied with condition 8202 of his previous visa. Condition 8202(3) is not met if the Applicant has been certified by their education provider as not achieving satisfactory course progress or attendance pursuant to s.19 of the Education Services for Overseas Students Act2000.
It was therefore for the Tribunal to determine firstly, whether or not the Applicant had complied with condition 8202, and if not, whether he had complied substantially with that condition as required by clause 572.235 (to enable the issue of the student visa without the Applicant having to apply from offshore).
The education provider had certified that the Applicant had not achieved satisfactory course progress for the purpose of condition 8202(3)(a). This certification appears at p.55 of the court book and appears to be issued by the Director (Principal Executive Officer) of the company concerned.
The Applicant in submissions on 7 February 2012 to the Department said that he received a notification from his education provider advising that they were intending to report him to the Department as a result of non-payment of fees. That email (sent on 19 November 2011) stated that he had 20 working days from 20 November 2011 from which he could access Harward’s International College’s complaints and appeals policy. He says that the notice issued under s.20 of the Education Services for Overseas Students Act 2000 was issued on 8 December well before the expiration of the 20 days. There is no evidence that the Applicant ever lodged a complaint or appeal to the college, nor that he made any complaint or appeal to the Overseas Students Ombudsman.
A case officer ultimately decided that there was not a ground for cancellation, although that decision was made soon after the visa had actually expired.
The Applicant went to see a migration agent who applied to the Department of Immigration for extensions to send documents to the Department, which were granted, although this appears to have been the cause of the delay resulting in the visa expiring prior to the cancellation decision being made.
In written submissions, on 1 July 2014, the Applicant alleged that there were no written notices sent to him by his college and no counselling procedure undertaken by the college prior to the letter referred to above.
There is no evidence before me as to whether or not the agent gave the Applicant any advice as to his ability to lodge a complaint or an appeal against the decision by the college. Nor is there any evidence before me as to whether the agent advised the Applicant that the delay may mean that the visa would expire prior to determination of the issue, and the consequences this would have if he sought a subsequent visa. However, these are all matters as between the Applicant and the agent.
The Applicant says that the college has ceased trading, although there is no clear evidence with respect to this.
For the purpose of the decision under the migration regulations, the law is clear. The certificate issued by the college is, on a practical level, conclusive for the purposes of the Department of Immigration. The reasons for this are set out in detail by Collier J in Patel v Minister for Immigration and Citizenship [2012] FCA 958; (2012) 206 FCR 384, exercising the power of the Full Court of the Federal Court.
This is entirely consistent with the statutory scheme which requires applicants to pursue their rights against education providers pursuant to the education provider’s complaints and appeal processes set up under the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. Standard 8 of that Code sets out the complaints procedures that must be established by the education providers. An applicant can also make a complaint to the Overseas Student Ombudsman, whose website is >
The facts of this case are remarkably similar to that of Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007, where North J recounted:
8. The essence of the appellant’s case before the Tribunal was that the certificate was not justified because, in fact, she was doing well in her course. Further, the appellant said that the certificate was issued by the education provider as a vindictive act against her for failing to comply with some of the demands which she regarded as unreasonable. For instance, she objected to working in a hairdressing salon owned by a director of TrainEdge on Saturday mornings for family reasons. She also claimed that she was asked to sign a blank form by the education provider and refused to do so.
…
15. Condition 8202 was amended by the Migration Amendment Regulations 2007 (No. 5) (Cth). The explanatory statement for the amending regulations explained that the amendment aimed to put the assessment of educational progress into the hands of the education provider as follows:
[The] proposed amendment to student visa condition 8202 reflects changes to the Education Services for Overseas Students Act 2000 (the ESOS Act) and the National Code 2007. The changes to the ESOS Act and the National Code 2007 were made after a comprehensive evaluation...The evaluation found that the issue of a student’s course progress and attendance is more appropriately handled by DEST and education providers and that the Department’s role should be limited to migration matters.
This change will mean that the Minister will no longer be required to assess whether a student is meeting their attendance requirements.
If an education provider certifies that a student has not achieved satisfactory course progress or attendance and reports the student, the DIAC delegate will be required to initiate cancellation action of the visa, unless exceptional circumstances can be demonstrated that the visa should not be cancelled. These exceptional circumstances will be outlined in a section 499 direction.
16. When an education provider has come to the view that a student is not achieving satisfactory course progress for the purposes of condition 8202(3), the student must be notified in writing of the education provider’s intention to report the student under standard 10.6 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. The written notice must inform the student that he or she is able to access the registered provider’s complaints and appeals process as per standard 8 and that the student has 20 working days in which to do so. In the present case, the appellant was advised of the alleged breach and of her rights to challenge that allegation. The appellant said she did not take any steps because she was not familiar with this process.
17. The power of the Court is limited once a certificate has been issued. In some circumstances, this may work an injustice. To avoid such a result, s 351 of the Migration Act 1951 (Cth) provides that if the Minister thinks it is in the public interest to do so, the Minister can substitute a more favourable decision in place of an adverse decision of the Tribunal. The appellant may still seek redress using this process.
The practical reality for the Applicant is that he needed to challenge the decisions of the education provider through its complaints and appeals mechanism rather than waiting to mount a collateral attack on the decision of the education provider through his Migration Review Tribunal hearing.
In these circumstances, the claim articulated in this regard must be dismissed.
The final part of the decision was one by the Tribunal as to whether or not there had been substantial compliance with the visa conditions. The tribunal identified that with respect to condition 8202(3), there is no room for substantial compliance as that particular condition is either complied with or not. The Tribunal relied upon Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199, and found that the Applicant had not substantially complied with the visa condition. It is difficult to see that there can be any argument with this part of the decision.
Turning to the formal ground of the application, the applicant’s formal ground was:
I am not satisfied with decision on my MRT application therefore I want to apply against the decision in the Court.
This ground does not articulate any question of law and appears to be simply an application to have the decision reviewed on its merits. That is not open in this Court on judicial review proceedings.
In the circumstances, I must, therefore, formally refuse the Applicant’s application.
Costs
Costs ordinarily follow the event. In this case, it appears clear that the Applicant has sought relief in the wrong forum. He described this mistake as a result of having had advice from a migration agent. In these circumstances, it appears that costs ought to follow the event in this case.
I will therefore make order costs on the court scale, subject to the Applicant making an application for a different costs order, to minimise any further costs being incurred in this case.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 23 January 2015
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