Singh v Minister for Immigration
[2012] FMCA 1005
•16 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1005 |
| MIGRATION – Review of decision of Migration Review Tribunal to affirm delegate’s decision not to issue class TU Student (Temporary) visa – certification by provider of not achieving satisfactory course attendance – application of condition 8202(3). |
| Education Services for Overseas Students Act 2000 (Cth), s.19, s.20 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students, Standard 11 |
| Cai v Minister for Immigration and Citizenship [2011] FMCA 922 Jayasekara v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 199 Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 Mandeep Singh v the Minister for Immigration and Citizenship [2011] FMCA 972 MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 |
| Applicant: | RAJDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 661 of 2012 |
| Judgment of: | Whelan FM |
| Hearing date: | 16 October 2012 |
| Date of Last Submission: | 16 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondents: | Ms Birchall |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed 5 June 2012 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 661 of 2012
| RAJDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
Background
This is an application for review by this Court of a decision of the Migration Review Tribunal (“the Tribunal”) made on 10 May 2012. The Tribunal’s decision affirms the decision of the First Respondent’s delegate to refuse to grant the Applicant a class TU Student (Temporary) visa. The Applicant seeks an order that the decision of the Tribunal be quashed.
The Applicant is a citizen of India. He arrived in Australia on 5 December 2007. On 1 February 2008, he was granted a Student (Temporary) visa, class TU, subclass 572, which was valid until 24 September 2009. From January 2008 to February 2009, the Applicant was enrolled to complete an Advanced Diploma in Hospitality Management at Hales Institute. From 16 February 2009, the Applicant was enrolled to complete a Diploma in Hospitality Management at Gurkhas Institute of Hospitality and Management (“Gurkhas Institute”). The course was to finish on 18 July 2010.
On 10 September 2009, Gurkhas Institute certified that the Applicant had not achieved satisfactory course attendance, which is condition 8202(3)(b), for the purposes of s.19 of the Education Services for Overseas Students Act 2000, (“the ESOS Act”) and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students, in his course, Certificate III in Hospitality (Commercial Cookery). Gurkhas Institute sent the Applicant a notice pursuant to s. 20 of the ESOS Act.
On 24 September 2009, the Applicant applied for a further subclass 572 visa to complete his Diploma in Hospitality Management at Gurkhas Institute, together with supporting documentation, including his statement of results from Hales. On 30 March 2010, a delegate of the First Respondent refused to grant the visa to the Applicant, on the grounds that the delegate was not satisfied that the Applicant had complied with conditions of his previous visa. On 28 April 2010, the Applicant applied to the Tribunal for a review of the delegate’s decision. The Tribunal subsequently affirmed the delegate’s decision on 10 May 2012, and the Applicant sought a review of that decision on 5 June 2012.
The Tribunal’s decision
The Tribunal addressed the criteria in item 572.235 in Schedule 2 to the Migration Regulations 1994 (“the Regulations”) and noted that it required the Applicant to substantially comply with the conditions of the visa held, or last held, by the Applicant at the time of the application and it set out the relevant condition in item 8202. In its reason for decision, the Tribunal summarised the evidence given by the Applicant at the Tribunal’s hearing on 1 May 2012, at which he was represented by a migration agent. The Tribunal put the information it had obtained from the Provider Registration and International Student Management System database (“PRISMS”), in relation to his studies, and the s.19 certificate and s.20 notice, to the Applicant at the hearing.
The Applicant stated that he wanted to respond to the information in writing, and it was agreed at the hearing that a response would be provided by 8 May 2012. As of 8 May 2012, the Applicant had not provided a response to the Tribunal. The Tribunal referred to a number of decisions in relation to the issue of substantial compliance with a visa condition. The Tribunal found that the Applicant did not satisfy clause 572.235 of the Regulations because PRISMS recorded that on 10 September 2009 the Applicant’s education provider, Gurkhas Institute, certified him as not achieving satisfactory course attendance in relation to his certificate II in Hospitality and, therefore, the Applicant’s education provider had certified that he had not achieved satisfactory course attendance for the purposes of condition 8202(3)(b).
The Tribunal found that this aspect of condition 8202 is one to which the concept of substantive compliance has no logical application. Either the condition is satisfied or not. As there was a relevant certificate before the Tribunal from the education provider, for the purposes of condition 8202(3), the Tribunal found that there was no compliance with the condition and, therefore, no substantive compliance.
Grounds
In seeking a review of the application, the Applicant relies on the following grounds:
a)That the decision made by the Tribunal was incorrect; and
b)That the college should not have reported him for non‑compliance.
In his affidavit in support of the application, on 5 June 2012, the Applicant deposes that he complied with all of his visa conditions and his visa should be granted on that basis.
There were Orders by Registrar Allaway on 4 July 2012 that the Applicant file and serve any amended application and written submissions by 18 September 2012. The Court received no amended application or written submissions.
In oral submissions in Court today, the Applicant reiterated that he had complied with the attendance requirements. He did not respond to the Tribunal’s invitation to present further material. He stated that he believed that his agent would make a submission, but he did not provide any new material to his agent or to the Tribunal. The Applicant had not obtained his attendance records from the college, although he indicated to the Court today that he could do so.
The First Respondent’s submissions
The First Respondent submits that the decision under review is a decision not to grant the Applicant a student visa. Clause 572.235 requires substantive compliance with a condition that applied to the previous visa held.
The First Respondent refers the Court to the decision in Jayasekara v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 199 (“Jayasekara”) where the Court held that personal considerations that might explain the Applicant’s level of academic performance were matters to be taken into account by the educational provider, rather than the Tribunal, and submitted that the Tribunal in this case was correct in finding that there was no scope for it to take into consideration the Applicant’s personal circumstances, in determining whether he satisfied clause 572.235.
The Tribunal noted that Jayasekara had also been considered and applied in other cases, such as Cai v Minister for Immigration and Citizenship [2011] FMCA 922 (“Cai”) and MandeepSingh v the Minister for Immigration and Citizenship [2011] FMCA 972 (“Singh”).
A breach of condition 8202(3) occurs when the education provider certifies that the student has not achieved either satisfactory course progression or attendance.[1] Once the Tribunal had determined that a breach of condition 8202(3)(b) had occurred, it was not required to consider the factors leading to the breach of the condition or whether the education provider should have reported the Applicant for non‑compliance. This is because it is the certification by the education provider that constitutes the breach. Upon the certification being given, the Applicant breached the condition. In those circumstances, the Applicant’s ground for review, on the First Respondent’s submission, cannot be made out.
[1] Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.
The First Respondent, further, took the Court to the issue of whether the Tribunal had breached s.359AA of the Migration Act 1958 (Cth) (“the Act”). That section applies where the Tribunal has information which, it considers, would be the reason, or part of a reason, for affirming the decision that is under review. The First Respondent accepts that the PRISMS records were such information, for the purposes of that provision.
At [21] of the Tribunal’s reasons, it stated in relation to the PRISMS information that “The Tribunal then explained that it needed to move to a more formal part of the hearing and put some information to him that, if it relied upon it, may be adverse to his case.”[2] Later, at [23] of the reasons, the Tribunal stated that it:
advised the applicant that this information concerning certification is relevant to the review because, subject to any comments he makes, it would lead the Tribunal to conclude that he does not meet one of the essential requirements . . .[3]
[2] Court Book at page 102.
[3] Ibid.
The First Respondent points out that s.359A of the Act states that particulars are to be given of information that would be the reason, or part of the reason, for affirming the decision. The First Respondent relies on the transcript of the hearing exhibited to the affidavit of Ms Natasha Bosnjak (“Ms Bosnjak”) of 12 September 2012, and referred the Tribunal to various statements made during the hearing, in relation to s.359AA of the Act by the Tribunal member.
The First Respondent acknowledges that the transcript indicates the Tribunal did not use the words “may” or “would” when discussing the information with the Applicant at the hearing, but, rather, used the word “will” on three occasions. The First Respondent then took the Court to decisions in relation to using words other than “would” in the context of a Tribunal hearing and, in particular, to the matter of MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 (“MZYFH”), which concerned the use of the words “could” or “might”. The First Respondent submits that the use of the word “will” is stronger than the words “would”, “could”, “might” or “may”, and it, therefore, is distinguishable from the decision of the Court in MZYFH.
The word “will”, the First Respondent submits, is a definite future action and a likely prediction. In using the word “will”, the Tribunal did not fail to ensure that the Applicant understood the relevance and consequence of the information, and was fully aware of the full gravity of the consequences of that view upon his claim. Further, the Applicant was given the opportunity to respond to that information, and the Applicant was also able to confer with his migration agent at the time.
Conclusions
The Applicant was granted a visa of the kind described in subcl.572 in Schedule 2 to the Regulations which relates to student visas. Section 572 of the Regulations prescribes the criteria which must be satisfied, at the time of an application and at the time of decision, in order for a visa to be granted. Regulation 572.235 states:
If the application was made in Australia, the applicant has 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.
The Applicant’s most recent visa, in this case, was a subcl.572 visa granted on 1 February 2008, and subject to condition 8202, pursuant to cl.572.661(a) of the Regulations. This is a reference to item 8202 in Sch. 8 of the Regulations. Schedule 8 contains conditions which, pursuant to Regulation 2.05, are prescribed for the purposes of s. 41(3) of the Act. Section 41(3) of the Act provides that “. . . the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection”.
Regulation 2.05(1) provides that “the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included.[4]
[4] Migration Regulations 1994, Regulation 2.05(1).
In this case, the specific condition is condition 8202(3)(b), which states:
The education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000;
(ii)and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.[5]
[5] Ibid at Schedule 8.
In Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 (“Maan”), the Court dealt with the provisions of visa condition 8202 (3), at paragraph 41, where it said:
The ordinary meaning of Visa Condition 8202(3) is that the holder of a relevant visa will be in breach of the visa following certification by the educational institute as to a visa holder’s non‑attendance, and provision of that certification to the Department by the institution.
Paragraph 44 goes on to say:
It follows from an ordinary reading of Sch 8, cl 8202, (3) of the Migration Regulations that the Tribunal was correct in finding that the VIT certification constituted non‑compliance by the appellant with his visa conditions. In so finding, the Tribunal (and the Federal Magistrate) correctly applied Sch 8, cl 8202(3) of the Migration Regulations.
The Federal Magistrate had found that the non-conformity with a relevant visa condition was the Victorian Institute of Technology Pty Ltd (“VIT”) certification, that the appellant had not completed satisfactory course attendance, not the actual non‑attendance by the appellant at VIT.
The Tribunal explained to the Applicant the significance of the certification and put to him the information on which it relied. I accept the First Respondent’s submission that the use by the Tribunal of the word “will”, rather than “would”, in relation to the information contained in the PRISMS records, that is, that it was information which the Tribunal “will” be relying on, was sufficient to ensure that the Applicant was aware of the gravity and relevance of the information and the consequence of its acceptance by the Tribunal. The Applicant was given the opportunity to respond to the information, but did not do so.
The decision that the Applicant had not complied with condition 8202 was not only open to the Tribunal, but on the evidence was the only conclusion which the Tribunal could have reached. This is not a review of the merits of the Applicant’s claim. If the certification truly was issued in error, then the Applicant may be able to produce evidence to show this and seek Ministerial intervention in his case. Those, however, are not matters for this Court in determining whether the decision of the Tribunal should be set aside. For these reasons the application must, therefore, be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 1 November 2012
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