Singh v Minister for Immigration
[2014] FCCA 907
•14 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 907 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal – Student (Temporary) (Class TU) visa – s.19 Education Services for Overseas Students Act 2000 (Cth) – certification of unsatisfactory course attendance – validity of the certificate – no error of law demonstrated by tribunal – application dismissed. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), ss.19, 20 |
| Chandra v Webber (2010) 187 FCR 31 Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 MZZCB v Minister for Immigration and Citizenship [2013] FCA 878 Patel v Minister for Immigrationand Citizenship (2012) 206 FCR 384 Singh v Minister for Immigration and Citizenship (2012) 133 ALD 379 SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 Vannemreddy v Minister for Immigration and Citizenship (2013) 211 FCR 223 |
| Applicant: | TARVINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 443 of 2011 |
| Judgment of: | Judge Burnett |
| Hearing date: | 8 April 2014 |
| Date of Last Submission: | 8 April 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 14 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Burrow |
| Solicitors for the Applicant: | Gopal Chand Lawyers |
| Counsel for the Respondents: | Ms A. Wheatley |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application filed on 3 June 2011 be dismissed.
Subject to application being made by either party within seven days of the date of this order, the Applicant pay the Respondents’ costs to be fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 443 of 2011
| TARVINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application turns on a very narrow point. The applicant had applied to the Department for a Student (Temporary) (Class TU) visa on 29 July 2009, which application was refused on 6 August 2009. The visa application was refused because the delegate determined that the applicant had not satisfied cl.575.235 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because he had not complied substantially with condition 8202 of his Subclass 572 Vocational Education and Training Sector visa, a visa which he had previously held and which had expired on 29 July 2009. His review of the delegate’s decision to the Migration Review Tribunal was unsuccessful, with the Tribunal affirming the decision not to grant him the Student (Temporary) (Class TU) visa on 5 May 2011.
The narrow point in this application concerns whether or not he had indeed substantially complied with condition 8202. That matter requires some explanation.
Prior to the expiration of his first visa the applicant had been subject to certification for the purposes of sub-clause 8202(3) for not having achieved satisfactory course progress pursuant to s.19 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”). He was notified of that failure by email of 2 June 2009. Subsequently, on 10 June 2009, the education provider, Metro College of Technology Pty Ltd (“MCT”), wrote to him advising that there had been an error in reporting some students (including the Applicant) by PRISMS.[1] It appears that by reason of the error he had been reported for unsatisfactory course progress, the subject of the notice of 2 June 2009. However, it also appears that concurrent with the incorrect reporting of unsatisfactory course progress he was also noted to have been the subject of unsatisfactory attendance. In the letter of 10 June 2009, MCT observed:
“… As your attendance records have been unsatisfactory, we are obliged to report such unsatisfactory attendance to the Department of Immigration and Citizenship (DIAC) via PRISIMS.
… we should have reported you to DIAC under unsatisfactory attendance, as opposed to unsatisfactory course progress.”
[1] Provider Registration and International Students Management System. The system allows education providers access to Confirmation-of-Enrolment facilities required for compliance with the ESOS Act.
Subsequently on 29 July 2009 a certificate for the purposes of sub-clause 8202(3) of Schedule 8 of the Regulations issued, citing the Applicant “as not achieving satisfactory course attendance for” s.19 of the ESOS Act. Significantly, the Applicant’s first visa was due to expire that day, thus the basis for his application for the Student (Temporary) (Class TU) visa on that date.
When the matter came before the delegate he decided that the Applicant had not complied substantially with condition 8202 because of the certification for the purposes of sub-clause 8202(3) dated 29 July 2009 from MCT stating that he had not achieved satisfactory course attendance. Given the position of the authorities addressed below, the delegate’s decision appears to have been correct on the basis of the material then available.
When the matter came before the Tribunal for review it accepted submissions made on behalf of the Applicant that consistent with MCT’s letter of 10 June 2009 the Applicant had completed his course and the certificate of 2 June 2009 was, in effect, nullified because of errors in reporting. Although not expressed clearly in those terms, that was the clear import of the letter of 10 June 2009 from MCT addressed to the applicant and a copy of which was shown to the Tribunal. Consistent with s.33(3) Acts Interpretation Act 1901 (Cth), MCT as the appropriate authority under the ESOS Act was empowered to repeal, rescind, revoke, amend or vary any instrument issued by it. The relevant instrument in this instance was the s.20 certificate directed to unsatisfactory course progress.[2]
[2] Tribunal decision at [28] and [42].
However, more significantly for the application, the Tribunal proceeded to consider the certificate which issued on 29 July 2009 in respect of unsatisfactory attendance. At the time of the hearing there was before the Tribunal a further email from the department which was not initially before the delegate. That email, dated 28 September 2009 (i.e. after the delegate’s decision) stated as follows:
“Dear Student
You recently attended this office as you had been reported by Metro College for unsatisfactory attendance.
I am writing to advise you that there will be no further action in relation to this report as the department has found that Metro College did not follow the correct procedure in the reporting process.
Please note that if further information comes to notice, cancellation of your visa may be reconsidered.
Yours Sincerely
…”[3]
[3] Court Book filed 23 September 2011 at 88.
At [30] of its reasons the Tribunal expressed its interpretation of the email as:
“… [an] email from the Department [which] only indicates there will be no further compliance action in terms of cancellation of [the] visa and it does not purport to, nor is it able to ‘nullify’ a certificate that is issued by the college under ESOS Act.”
It made similar comments at [41], noting that the email related to cancellation action by the Department and did not invalidate the certification which was given by MCT. It noted:
“… Any cancellation action or s.20 notice is separate and distinct from what is being considered in this case, being whether the applicant was certified as breaching condition 8202 by his education provider.”
The Tribunal noted that authority provided that its only task was to determine that a certificate “… on its face, engages a condition 8202 … there is no requirement to “go behind” a condition 8202(3) certificate, or to enquire into its invalidity.”[4]
[4] Tribunal decision at [40].
It follows that it concluded that in respect of the “29 July 2009 certification for unsatisfactory attendance, there is no evidence that this certification was revoked or not made by the education provider.”[5] Accordingly, the Tribunal found that the Applicant had been certified on 29 July 2009 for unsatisfactory attendance and that that was a matter in respect of which the concept of substantial compliance had no logical application. Accordingly, it was satisfied that condition 8202 had not been satisfied.
[5] Tribunal decision at [43].
The Applicant argued that the Tribunal’s decision was in error. In short he contended that the effect of the email of 28 September 2009 was to effect a revocation or nullification of the certificate. He contended that:
a)the error was one of law amounting to jurisdictional error giving rise to a mistaken conclusion; and/or
b)the Tribunal had asked itself the wrong question and/or ignored relevant material and thereby made an error of law amounting to jurisdictional error; and/or
c)the Tribunal had made a decision that no reasonable decision-maker could have made, and thereby made an error of law.
The particulars of the grounds were expressed as follows:
“A. In relation to Ground 1, the decision maker held the applicant did not satisfy clause 572.235 of the Migration Regulatiosn [sic] 1994 because the applicant had not complied substantially with Condition 8202 of his subclass 572 Vocational Education and Training Sector visa. The Tribunal had before it evidence that the report from the Education Provider to the Department of Immigration and Citizenship was incorrectly issued. The Tribunal has made an error of law, namely a ‘mistaken conclusion’ by ignoring the report and in the exercise of its power to cancel the Visa, it exceeded its authority and this is a jurisdictional error.
B. Further to the above and in relation to Ground 2, by asking the wrong question and ignoring the relevant submission from the applicant’s representative and not considering all of the material, the MRT has fallen into jurisdictional error. The existence of inconsistencies in the reports and certifications required that the decision maker address the question of whether the Applicant had substantially complied.
C. In relation to Ground 3 for Judicial Review, the decision maker has discounted the applicant’s submission that there were errors and omissions in relation to the process leading to the consieration [sic] of the applicant’s application for [a] student visa. The decision maker made no subsequent inquiries the section 20 notice issued to the applicant and the actions taken by another arm of the Department of Immigration and Citizenship. The Decision Maker has made a Decision that no reasonable Decision Maker could have reached that Decision and falls into the parading of “Wednesbury Unreasonableness.” Alternatively the consideration was not just and/or fair within the scheme of the Act. The Decision has undoubtedly resulted in procedural unfairness.”
Although expansively expressed it was agreed by the Applicant that the issue for resolution was in essence whether the email of 28 September 2009 constituted a revocation or nullification of the certificate of 29 July 2009. There was no argument between the parties concerning the legislative approach to be adopted. The approach of the courts has been consistent. Namely, once a certificate issues the Minister’s hands are tied. The Minister has no role in the decision-making process relevant to the issue of the certificate. Accordingly, the constraint on the power of the Minister to cancel a visa for breach of condition 8202 arises when the Minister is satisfied that there has been certification by an education provider for the purposes of the ESOS Act. The question for the Minister is not whether a valid certificate exists in relation to a visa holder, but whether the Minister is satisfied that a visa exists: Patel v Minister for Immigrationand Citizenship (2012) 206 FCR 384 at [34]; Singh v Minister for Immigration and Citizenship (2012) 133 ALD 379 at [47]; Vannemreddy v Minister for Immigration and Citizenship (2013) 211 FCR 223 at [57].
The only material before the Tribunal at the time of hearing addressing the certificate was the letter of 28 September 2009. In the course of the hearing before me the Applicant sought to tender a further letter from MCT dated 21 October 2011. The letter noted in part:
“This letter is to reiterate our letter of 10th June 2009 where the above mentioned student was one of the students wrongly reported on their attendances, this was acknowledged by DIAC.
At the time of our report, Tarvinder Singh was reported on low attendance and part of his time off was approved leave from the college to attend his grandmother’s funeral back in his home town India.
…”[6]
[6] This letter only serves to confirm the poor procedures of MCT. There was no question in the letter of 10 June 2009 that the Applicant’s attendance records had been unsatisfactory and had to be reported. The error addressed in the letter of 10 June 2009 appears to have been the unsatisfactory course progress. While it may be correct that the Applicant was approved to take leave from MCT to attend his grandmother’s funeral in India, it is equally open to be inferred from the issue of a certificate that other non-attendances exceeded tolerable allowances, which took him beyond the minimum requirement even allowing for the approved leave.
The Respondents oppose the admission of the letter of 21 October 2011. I accept that the letter ought not be admitted. In Chandra v Webber (2010) 187 FCR 31 at [40], Bromberg J addressed the principles concerning the admissibility of fresh evidence in applications for judicial review. His Honour stated:
“The admissibility of evidence on an application for judicial review of an administrative decision will depend on the ground of review and the circumstances of the case: McCormack v Deputy Commissioner of Taxation (2001) 114 FCR 574 at [38]-[40] per Sackville J. The touchstone for the determination of admissibility will usually be relevance. That is, is the evidence sought to be adduced relevant to the ground of review sought to be relied upon? Ordinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the Court, apart from evidence of what was before the decision-maker at the time of the decision: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [442] per Weinberg J. However, the admissibility of evidence not before the decision-maker depends upon the grounds of review on which the application relies: Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540 per Lockhart J; Australian Retailers at [455]; Attorney-General (NT) v Hand (1988) 16 ALD 318 at 319-320 per Wilcox J; and Saint v Holmes (2008) 170 FCR 262 at [54] per Siopis J.”
Similar observations can be found in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27] per McKerracher J and MZZCB v Minister for Immigration and Citizenship [2013] FCA 878 at [68] per Dodds-Streeton J.
In this case, for reasons identified in footnote 6 above, this evidence does not address the jurisdictional fact of revocation. It restates evidence relevant to a matter that is not in issue in this application and does not gainsay the efficacy of the certificate. It is not relevant. Upon that basis its admission is refused.
The only evidence before the Tribunal concerning the efficacy of the certificate, that is whether the certificate had been otherwise revoked or rescinded, was the email of 28 September 2009. The Applicant says that the contents of the email can only be understood sensibly if it is accepted that the certificate of 29 July 2009 had been revoked or rescinded.
For the Respondent it was contended that the email did not purport to effect such a revocation or rescission because it was not an email from the relevant decision-maker, MCT. It was, as it stated, merely an email from the Department stating that it would not take further action in relation to the cancellation of the visa, which incidentally had already expired by that time. For the Minister it was submitted that if it had been intended that it was to serve as a notice of revocation or rescission it would have been a relatively simple thing for the author to express it in those terms. In particular, the Minister stated that that would have been so if that was the basis of information provided to it from MCT. It contended that had it received a notice from MCT of the revocation of its certificate, it would have said so.
Although there is nothing in the filed Court Book to indicate that the Tribunal had notice of the rescission of the decision of 2 June 2009 until the hearing,[7] that matter was apparent to the delegate in his initial decision of 6 August 2009. In that decision the delegate only addressed the notice of 29 July 2009 and not the notice of 2 June 2009.
[7] Plainly the intent of the letter of 10 June 2009 (Exhibit 1).
In my view, the email from the Department dated 28 September 2009 did not purport to rescind or nullify the s.20 notice issued by MCT. It addressed that notice only insofar as it was relevant to action the Department might instigate in respect of any then currently held visa.
Conclusion
It follows that there was before the Tribunal a valid certificate issued by MCT certifying that he had not achieved satisfactory course attendance for the purpose of condition 8202(3). Non-compliance with that condition is one which is not open to the concept of substantial compliance: Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199. Accordingly, the only conclusion open to the Tribunal was that there had been non-compliance with condition 8202(3) of the Regulations. It follows that there has been no error occasioning jurisdictional error. The application is dismissed.
ORDERS
That the application filed on 3 June 2011 be dismissed.
Subject to application being made by either party within seven days of the date of this order, the Applicant pay the Respondents’ costs to be fixed in the sum of $6,646.00.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 14 May 2014
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