Singh v Minister for Immigration
[2012] FMCA 707
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 707 |
| MIGRATION – Judicial review – student visa – whether exceptional circumstances – whether jurisdictional error. |
| Education Services for Overseas Students Act 2000 (Cth), ss.19, 20 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007, standard 11 Migration Act 1958 (Cth), ss.116, 359, 359A, 474(1), 476(1) and (2) Migration Regulations 1994 (Cth), reg.2.43(2)(b), Schedule 8, cl.8202(3) |
| Chen v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 142 FCR 257; [2005] FCA 229 Craig v South Australia (1995) 184 CLR 163 Hassan v Minister for Immigration & Citizenship [2012] FCA 816 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791 |
| Applicant: | SARABJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 344 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 14 August 2012 |
| Date of Last Submission: | 14 August 2012 |
| Delivered at: | Perth |
| Delivered on: | 24 August 2012 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms N Johnson |
| Solicitors for the First Respondent: | Sparke Helmore |
| For the Second Respondent: | Submitting appearance (save as to costs) |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 344 of 2011
| SARABJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
By application filed on 21 November 2011 the applicant seeks judicial review by this Court under s.476 of the Migration Act1958 (Cth)[1] of a decision of the Migration Review Tribunal[2] dated 21 October 2011.[3] The Tribunal affirmed a decision of a delegate[4] of the Minister dated 28 February 2011 to cancel the applicant’s subclass 573 higher education sector visa.[5]
[1] “Migration Act”.
[2] “Tribunal”.
[3] “Tribunal Decision”.
[4] “Delegate’s Decision” and “Delegate” respectively.
[5] “Student Visa”.
The grounds of the application are that the Tribunal committed error in that it:
1.Did not accept that the breach of the student visa condition was due to exceptional circumstances beyond my control that included
(a)My family situation that had affected me both emotionally and psychologically resulting in losing interest in my studies temporarily;
(b)The course provider did not inform me about my attendances were not satisfactory or falling short of the requirement properly and its impact on my student visa condition;
(c)The course provider did not provide or used a standard of communication that I would have been informed in a timely manner; and
(d)The course provider did not offer me any counselling or discuss my problems regarding my attendances if it was determined by it to be a serious issue hence I consider that the course provider did not deal with me fairly and the Tribunal failed to take that fact into a proper consideration.
(e)The Tribunal also failed to undertake a review of the delegate’s decision of 28 February 2011 as it was required to undertake pursuant to the law and consider whether I was dealt procedurally fairly by both the Department of Immigration and Citizenship (DIAC) and the course provider. Because there was lots of information which was not before the DIAC at the time it cancelled my visa that included complete record of the correspondence between myself and the Stanley College International Pty Ltd.[6]
[6] Transcribed without amendment from original grounds.
Court orders
At the first directions hearing on 6 February 2012 the Court ordered that:
1. …
2. The Applicant file and serve any amended application giving complete particulars of each ground of review relied upon by 16 April 2012.
3. The Applicant file and serve any affidavit containing additional evidence (including any transcript of a tribunal hearing, upon which it proposed to rely) by 16 April 2012.
4. …
5. The Applicant file and serve written legal submissions and list of authorities 14 days before the hearing.
6. …
7. …
8. Liberty to either party to apply to the Court for a listing for further directions. The other party must be given three days’ clear notice of the time, date and place of that listing.
The applicant did not file any amended application, any affidavit containing additional evidence, or any written legal submissions and list of authorities. Nor did the applicant seek to exercise the liberty to apply for a listing for further directions in relation to his non-compliance with the Court’s orders, or for any other reason.
Background
The applicant:
a)is a citizen of India;[7]
b)first arrived in Australia on 27 November 2007 as the holder of the Student Visa;[8]
c)enrolled in an English language course which he successfully completed;
d)later commenced courses at the Australian School of Tourism and Hotel Management and Kingston College;[9] and
e)subsequently enrolled in a Diploma in Management at Stanley College in July 2010;[10]
[7] CB 10.
[8] CB 117 at para.30.
[9] CB 117 at paras.30-31.
[10] CB 117 at para.32.
On 24 January 2011, Stanley College certified the applicant as not achieving satisfactory course progress pursuant to ss.19 and 20 of the Education Services for Overseas Students Act 2000 (Cth)[11] on the basis that he had not complied a condition of the Student Visa, being cl.8202(3)(a) of Schedule 8 of the Migration Act.[12]
[11] “ESOS Act”.
[12] CB 1-7 and CB 116 at para.24.
On 16 February 2011, the applicant:
a)was issued with a notice of intention to consider cancellation under s.116(1)(b) and (3) of the Migration Act and reg.2.43(2)(b) of the Migration Regulations 1994 (Cth)[13] on the basis that he had not complied a condition of the Student Visa, being cl.8202(3)(a) of Schedule 8 of the Migration Act;[14] and
b)attended an interview before the Delegate. At the interview the applicant provided:
i)three medical certificates dated 13 October, 4 November and 18 November 2010;[15]
ii)documents from Stanley College;[16] and
iii)copies of his bank statements.[17]
[13] “Migration Regulations”.
[14] CB 36-39.
[15] CB12-14.
[16] CB 15-20.
[17] CB 21-35.
By letter dated 28 February 2011, the applicant provided a typed two page submission in which he claimed:
a)that his grandmother had fallen ill in September 2010 and had passed away on 6 February 2011;
b)that he was placed under a lot of emotional strain but could not afford to see a doctor every week; and
c)that Stanley College had failed to comply with its obligations under the National Code 2007[18] because he did not receive any notification that his attendance was dropping, except for:
i)a letter informing him that Stanley College intended to report him to the Department (which he claimed he did not receive until after the 20 day appeal period had expired); and
ii)a text message on 14 January 2011 advising him that he had been reported to the Department.[19]
[18] This refers to the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (“National Code 2007”).
[19] CB 40-41.
On 28 February 2011, the Delegate cancelled the applicant’s visa on the basis that he had breached a condition of the Student Visa, being cl.8202(3)(a) of Schedule 8 of the Migration Act, and the non-compliance was not due to exceptional circumstances beyond his control.[20]
[20] CB 43-50.
The Tribunal proceedings
On 28 February 2011, the applicant lodged an application with the Tribunal to review the Delegate’s Decision,[21] and appointed a migration agent to assist him in connection with the review.[22]
[21] CB 51-57.
[22] CB 58.
By letter dated 5 July 2011, the Tribunal invited the applicant to appear at a hearing on 18 July 2011.[23] The applicant attended the hearing with his migration agent and gave evidence and presented arguments in support of his application.[24]
[23] CB 63-66.
[24] CB 67 and CB 117-119 at paras.28-50.
By letter dated 20 July 2011, the Tribunal wrote to Stanley College requesting the provision of certain information in relation to the applicant’s enrolment and attendance at Stanley College.[25] That information was as follows:
· The applicant’s representative disputes that the college arranged reassessments and resits to attain competency which Mr Singh failed to attend, and also disputes that counselling sessions were arranged to help Mr Singh achieve satisfactory academic progress. The applicant refers in this regard to the College’s letter to him dated 26 November 2010 which states that these things had been arranged. The Tribunal invites you to comment and to provide it with any documentary information available to you in respect to this;
· In respect of the letters of 12 October 2010 and 26 November 2010 dealing with unsatisfactory course progress sent by your College to the applicant, the applicant claims that he sought from your College evidence that the letters had actually been posted to him. He claims that he did not receive the letters. He claims that the College could not provide evidence that the letters had been sent by registered mail to him. He claims that he was told the College has no evidence that the letters were sent at all. The Tribunal invites you to provide documentary evidence or information on the system in place generally in respect of the dispatch of correspondence to students and to Mr Singh in particular. The Tribunal also invites you to provide any other information on the question of whether the two letters in particular, or other related letters, were in fact dispatched to Mr Singh;
· Mr Singh refers to the National Code 2007 and suggests that the College may not have complied with the provisions of the code by not notifying him of his attendance in assisting him to address attendance issues. The Tribunal invites the college to provide comment on whether it considers that it has complied with the provisions of the National Code 2007 in respect of Mr Singh;
· Mr Singh also claims that he received a text message from the College on 14 January 2011 which advised him that he had been reported to the Department and that he had been issued with a section 20 notice. He appears to suggest that as he had not replied to the two letters of 12 October 2010 and 26 November 2010 respectively, he considered that the college was therefore in effect on notice that he might not have actually received those letters and that the college ought to have followed up with Mr Singh by way of a text message at that time. The Tribunal invites the College to comment on this suggestion;
· Related to the matter raised in the preceding point, Mr Singh claims he was denied the opportunity to lodge an internal appeal against the certification for failure to achieve satisfactory course progress. The Tribunal invites the College to provide information on whether Mr Singh was provided with the opportunity to lodge an internal or external appeal in respect of the certification for failing to achieve satisfactory course progress;
· The applicant has also claimed that the college should have been more proactive in supporting him to achieve satisfactory course progress. The Tribunal invites the college to provide any evidence and details as to any intervention strategy that may have been discussed and implemented with Mr Singh. The Tribunal also invites your College to provide information as to the college’s verbal or other contacts with Mr Singh on the question of his attendance and course progress;
· Mr Singh suggested that he had completed part of the course which she [sic] was enrolled at the college and that he had completed a number of assignments allocated to him. The tribunal invites the college to provide information on what Mr Singh completed and any other relevant information as to his course attendance and progress.[26]
[25] CB 68-70.
[26] CB 68-69.
On 29 July 2011, the Tribunal wrote to the applicant inviting him:
… to provide information concerning your claim that various payments from Taxiepay Aus Pty Ltd were in fact payments made to you by another person who used the taxi that you own. This is in connection to your claim that not all the entries in bank statements that you provided the Department relates to your own work driving taxis. The Tribunal considers this information is relevant in considering whether there were exceptional circumstances beyond your control for your failure to achieve satisfactory course progress. The Tribunal also invites you to provide any other relevant documents or information or submissions in respect of your claim that your failure to achieve satisfactory course progress was due to exceptional circumstances beyond your control.[27]
[27] CB 73.
The Tribunal also informed the applicant in its 29 July 2011 letter that:
The Presiding Member is [sic] also asked me to advise you that he will be writing to Stanley College inviting it to provide information, including information in respect of various claims you made at the hearing. Those claims include the claim that you did not receive certain letters and you dispute that those letters were in fact sent to you. Upon receipt of a reply from Stanley College, if the Tribunal considers that the information contained in its reply would be the reason or part of the reason why the tribunal might affirm the decision under review the Tribunal will write to you again and invite you to respond to that information.[28]
[28] CB 73.
It would appear that at the time the 29 July 2011 letter was written the Tribunal had in fact already written to Stanley College, on 20 July 2011, in the terms set out above.[29]
[29] See para.12.
On 2 August 2011, Stanley College provided a response to the Tribunal’s invitation to provide information, annexing various documents relating to the applicant’s attendance at Stanley College.[30] The documents indicated that:
[30] CB 75-91.
a)the applicant had signed an International Student Agreement with Stanley College on 24 August 2010 indicating that he understood and agreed that he must meet the Student Visa conditions, including the following:
a.Maintain full time enrolment in my registered course.
b.Maintain satisfactory attendance in my course as required by Stanley College.
c.Maintain adequate course progress for each study period as required by Stanley College.
d.…
e.…
f.Notify Stanley College of my residential address in Australia within 7 days of arriving in Australia.
g.Notify Stanley College & DIAC of any change in my residential address within 7 days of the change.
h.I understand that I can seek employment and can work no more than 20 hours per week and that I must not schedule any work during class time.[31]
[31] CB 85.
b)the applicant was sent an SMS message concerning his attendance on 21 September 2010 and was requested to contact student support urgently but failed to respond;[32]
[32] CB 76 and 82.
c)the applicant had been sent a “Student warning letter”[33] dated 12 October 2010 advising that his course progress was unsatisfactory because his attendance was below required levels, which may affect his ability to complete the required assessments successfully. The letter was sent to the applicant at 14A Marda Way in Nollamara. The letter further indicated that, as part of Stanley College’s intervention strategy, a meeting had been arranged between the applicant and the Stanley College student support officer to identify ways in which Stanley College could assist and support the applicant to achieve the performance required for satisfactory course progress. The meeting was scheduled for 1.10pm on 27 October 2010. The letter went on to indicate that students who had unsatisfactory course progress over two study periods may be reported to the Department of Education, Employment and Workplace Relations and the Department of Immigration and Citizenship for unsatisfactory course progress, which may lead to cancellation of the Student Visa. The applicant did not:
[33] CB 75.
i)attend the scheduled 27 October 2010 meeting; or
ii)respondent to the 12 October 2010 student warning letter;[34]
[34] CB 75, 81 and 82.
d)on 26 November 2010, Stanley College sent to the applicant a Notification of Intention to Report concerning academic progress. The terms of that letter were as follows:
Your enrolment in BSB51107 Diploma of Management at Stanley College began on 9 August 2010. During the orientation programme, you were informed of the student visa condition relating to course progress. You were also informed that Stanley College uses the Department of Education, Employment and Workplace Relations – Department of Immigration and Citizenship (DEEWR-DIAC) Course Progress Policy and Procedures for CRISCOS Providers or VET Courses.
Under the DEEWR-DIAC Course Progress Policy, a student has made unsatisfactory progress if the student has not successfully completed or demonstrated competency in at least 50% of the course requirements in a study period.
You were first identified as making unsatisfactory progress and Stanley College implemented our intervention strategy. At this point Student Support Officer advised you that unsatisfactory course progress in two consecutive study periods for a course could lead to your being reported to the DIAC and could result in the cancellation of your student visa.
To assist you to meet course progress requirements, Student Support officer and admin staff at Stanley College also
·Arranged reassessments and resits to attain competency, which you failed to attend.
·Counselling session was arranged to help you achieve satisfactory academic progress.
You have now been assessed as making unsatisfactory progress in a second consecutive compulsory study period in accordance with the DEEWR-DIAC Course Progress Policy and National Code 2007. Stanley College must now inform you of our intention to report you to the Secretary of DEEWR through PRISMS for unsatisfactory progress in two consecutive study periods. This action automatically alerts DIAC.
If you think there are reasons why you should not be reported you may appeal against Stanley College’s decision. According to the DEEWR-DIAC Course Progress Policy (paragraph 3.8), you may appeal if you believe one or more of the following have happened:
·Stanley College has not recorded or calculated your marks correctly
·There are compassionate or compelling reasons which have contributed to your unsatisfactory progress
·Stanley College has not implemented our intervention strategy in accordance with our documented policies and procedures
·Stanley College has not made the policies available to you
The procedure for making an appeal is available from the Student Support Officer can be found on In accordance with Standard 8 (Complaints and Appeals) you have 20 working days commencing on 29 November 2010 to make your appeal.
Contact the Student Support Officer 9227 1797 or 0422 152 885 to initiate the appeals process. Throughout the appeals process you have the right to have a support person present at any meeting; you also have the right to access:
Independent Conciliator of the Department of Education Services.
Anne Duncan, [email protected] or Alison Miller, [email protected] at:
Department of Education Services
22 Hasler Road
Osborne Park WA 6017Tel: (08) 9441 1900
If you choose not to access the complaints and appeals processes within 20 working days of 29 November 2010 or you withdraw from the process, or the process is completed and results in a decision supporting Stanley College, then Stanley College must notify the Secretary of DEEWR via PRISMS of your breach. Such a report may lead to the cancellation of your student visa.[35]
[35] CB 90-91.
e)Stanley College had sent the applicant an email on 2 December 2010 informing the applicant of re-assessment dates on 20-22 December 2010. In the 2 December 2010 email it was noted that:
i)it was Stanley College’s obligation to ensure that the applicant completed the course within the intended study duration; and
ii)students who made unsatisfactory course progress over two study periods may be reported to the Department of Education, Employment and Workplace Relations and the Department of Immigration and Citizenship for unsatisfactory course progress, which may lead to cancellation of the Student Visa;[36]
[36] CB 75 and 78.
f)the applicant did not appeal Stanley College’s Notification of Intention to Report, and received a last courtesy SMS message on 19 January 2011, the text of which was as follows:
A Notification of Intention to Report was sent to you on 26 Nov 2010, your appeal period of 20 days is over and Stanley College will be reporting you to DIAC.[37]
[37] CB 82.
g)the applicant came to Stanley College on the same day he received the SMS message set out above, and Stanley College’s student support manager informed the applicant about his right to appeal, but the applicant said that he did not need to appeal and that Stanley College could not report him;[38]
[38] CB 76 and 82.
h)Stanley College entered all incoming and outgoing mail into the student data base called Wisenet. The Wisenet journal for the applicant indicated that two letters had been sent to the applicant, namely:
i)on 18 October 2010, the 12 October 2010 student warning letter; and
ii)a 24 January 2011 notification to the Department of Immigration and Citizenship.[39]
[39] CB 82-83.
Stanley College also advised that reminder letters and notifications of intention to report are not sent by registered mail, and only the actual cancellation of enrolment is sent by registered mail;[40]
[40] CB 75.
i)Stanley College reports students under the Department of Immigration – Department of Education Academic Progress Policy, and therefore standard 11 of the National Code 2007 did not apply, but Stanley College nevertheless took accurate records of all student attendances;[41]
[41] CB 76 and 86-89.
j)the applicant had not met with the student support officer despite emails and invitations to meet, namely:
i)the 21 September 2010 email;
ii)the 12 October 2010 student warning letter; and
iii)the Notification of Intention to Report issued on 26 November 2011;[42]
[42] CB 77.
k)Stanley College was not of the opinion that it was effectively on notice that the applicant had not received the 12 October 2010 student warning letter or the Notification of Intention to Report;[43]
[43] CB 76.
l)on orientation day students are informed that the official method of communication between Stanley College and its students is their Stanley College email account. Each student receives a Stanley College email account and is shown how to access and use the account, and is informed that they must check their account frequently. Each classroom and the student recreation room feature a poster reminding students to check their email accounts;[44] and
[44] CB 77.
m)the applicant attended classes as follows:
· 8 September 2010 – full day
· 15 September 2010 – half day
· 16 September 2010 – half day
· 23 September 2010 – three quarter day
· 8 October 2010 – three quarter day
· 27 October 2010 – full day[45]
and the applicant did not submit any assignments in time, and was not in class when assessments took place. Consequently no email about the assessment outcome was sent to the applicant, but he was invited to join the re-assessment classes, but did not do so.[46]
[45] CB 77.
[46] CB 77.
By letter dated 24 August 2011, the Tribunal wrote to the applicant pursuant to ss.359 and 359A of the Migration Act.[47] This letter referred to the information provided to the Tribunal by Stanley College relating to the applicant’s attendance and course progress. A copy of the information received from Stanley College was attached to the letter.[48] The information referred to by the Tribunal was as follows:
[47] CB 92-96.
[48] CB 78-91.
a)the 12 October 2010 student warning letter which stated that the applicant’s progress was not satisfactory, and scheduled a meeting for a counselling session and an intervention strategy for 27 October 2010. The Tribunal considered the 12 October 2010 student warning letter may be the reason, or part of the reason, why it might affirm the decision under review;[49]
[49] CB 94.
b)Stanley College’s incoming and outgoing mail procedures. The Tribunal considered these incoming and outgoing mail procedures to be relevant because, if accepted, those procedures may enable the Tribunal to conclude that it was satisfied that the 12 October 2010 student warning letter was sent to the applicant;
c)the applicant’s response to the 19 January 2011 SMS message from Stanley College, namely that he and a friend attended Stanley College on the same day, at which time the applicant:
i)said he did not need to appeal;
ii)said that Stanley College could not report him; and
iii)did not lodge an appeal with Stanley College.
The Tribunal considered this to be relevant because, if accepted, the applicant’s conduct may lead to the conclusion that his failure to comply with his Student Visa conditions was not due to exceptional circumstances beyond his control;
d)Stanley College’s advice that the applicant had not:
i)met with the student support officer, despite emails and invitations to meet; and
ii)accessed complaints and appeal processes after receiving the Notification of Intention to Report.
The Tribunal considered these matters to be relevant because, if accepted, it may conclude that Stanley College had been pro-active in offering support, or an intervention strategy meeting, to address the applicant’s unsatisfactory attendance, and that that may be the reason, or part of the reason, for the Tribunal to conclude that the applicant’s non-compliance with his Student Visa conditions was not due to exceptional circumstances beyond his control; and
e)that the applicant:
i)had not submitted any assignments in time;
ii)was not in class when assessments took place, and that he was therefore invited to join re-assessment classes but failed to attend.
The Tribunal considered these failures by the applicant to be relevant because, if accepted, the information may lead it to conclude that the reason for the applicant’s non-compliance with his Student Visa conditions was not due to exceptional circumstances beyond the applicant’s control, and may in turn lead the Tribunal to affirm the Delegate’s Decision.
The Tribunal also invited the applicant to comment generally on information contained in the Stanley College materials which may be adverse to the applicant’s claim.
The 24 August 2011 letter also again invited the applicant to provide the information in relation to payments from Taxiepay Aus Pty Ltd,[50] which the applicant had failed to provide as earlier requested by the Tribunal.
[50] See para.13 above. The Tribunal had originally requested this information be provided by 5 August 2011: CB 73.
On 31 August 2011, the applicant’s migration agent provided a written response to the Tribunal’s 24 August 2011 letter.[51] In the 31 August 2011 response it was submitted that:
[51] CB 97-101 and CB 121 at para.54.
a)the applicant had not received written correspondence from Stanley College, and that is why he had not attended the counselling sessions and intervention strategy meeting scheduled for 27 October 2010. The applicant said that had he received the correspondence he would have attended those meetings and attempted to regularise his attendance and academic progress. It was also asserted that because the notifications had been sent by normal post, there were no records of it being lodged with the post office, and it could not be proved that Mr Singh had received the correspondence;[52]
[52] CB 97.
b)although the applicant accepted that Stanley College kept a record of its written communication with students, Stanley College could not prove how accurate their record of written communication with students was and that they could not prove that any communication asserted had actually occurred;[53]
[53] CB 97-98
c)the applicant says that he visited Stanley College on 19 January 2011 after receiving the SMS, but that before he did so he consulted a migration agent who advised that his enrolment could not be cancelled without notification and without the opportunity to appeal. The applicant disputes that he indicated to the student support officer at Stanley College that he did not need to appeal, or that Stanley College could not report him, but that he was in fact questioning why he could not appeal, and why he had not been given the opportunity to appeal before being reported. The applicant asserted that:
i)he did not lodge an appeal with Stanley College because he did not receive the correspondence sent to his registered address;
ii)if the correspondence had been received he would have lodged an appeal with Stanley College;
iii)if an appeal to Stanley College was not successful, then he would have also lodged an external appeal;
iv)there was no evidence that he had ever received the Notice of Intention to Report; and
v)Stanley College’s account of precisely what was said and done on 19 January 2011was inaccurate;[54]
d)the applicant did not deny that he had received the emails from Stanley College dated 2 December 2010 (and also one dated 30 December 2010), and admits that he did not check his Stanley College email account, as he expected all correspondence to be sent to his personal email account as that was the email account he provided when he enrolled at Stanley College. The applicant says that if Stanley College had gone to the effort of arranging re-assessments he would have imagined that they would have followed that up with a phone call or SMS when they did not hear from him;[55] and
e)the applicant re-asserted the fact that there was no evidence that mail had been received by him, and that any evidence from a Stanley College employee ought not be given any more weight than his evidence.[56] The applicant asserted that as it could not be proved that he had been provided with an opportunity to appeal, the Student Visa had been cancelled incorrectly, because the notice under s.20 of the ESOS Act issued by Stanley College had been issued incorrectly.[57]
[54] CB 98-99
[55] CB 99.
[56] CB 100.
[57] CB 100.
The 31 August 2011 response attached:
a)a short statutory declaration from the applicant, relating to the applicant’s contract with Comrail Pty Ltd for the period September 2010 to February 2011 under which he was contracted to carry out certain works, but which he then sub-contracted due to his personal circumstances;[58]
b)a short statutory declaration from Mr Amil Arora, who was the sub-contractor for the Comrail Pty Ltd work, and who declared as such;[59]
c)a three line letter from Mr Ajmer Singh relating to the applicant’s contract with Comrail Pty Ltd;[60] and
d)a statutory declaration from Mr Rahul Batra, who is a licensed taxi driver, who leases a taxi owned by the applicant which is fitted with an eftpos system through Taxiepay Aus Pty Ltd, and through which all transactions are paid by Taxiepay Aus Pty Ltd direct to the applicant’s account.[61]
[58] CB 102-103.
[59] CB 104-105.
[60] CB 106.
[61] CB 107 and CB 122 at para.55.
Relevant statutory provisions
Statutory provisions relevant to this matter are set out hereunder.
Section 116
Under s.116 of the Migration Act, the Minister can cancel a visa where the visa holder has not complied with a condition of the visa. Section 116 provides that:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
(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.
Regulation 2.43
Regulation 2.43 of the Migration Regulations sets out the prescribed circumstances referred to in s.116(3) of the Migration Act, and relevantly provides as follows:
(2) 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 conditions 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.
Clause 8202
Clause 8202(3) of schedule 8 of the Migration Act relevantly provides as follows:
(3) A holder meets the requirements of this subclause if:
(a) in the case of a holder whose education provider keeps attendances 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.
The Tribunal Decision
The Tribunal set out and analysed the relevant law. The Tribunal found that reg.2.43(2)(b)(ii) of the Migration Regulations required the Student Visa to be cancelled under s.116(3) of the Migration Act, if it was found that the applicant:
a)had failed to comply with cl.8202 of schedule 8 of the Migration Act; and
b)the non-compliance was not due to exceptional circumstances beyond his control.[62]
[62] CB 112-116 at paras.6-22.
The Tribunal set out relevant extracts from judgments of the Federal Court, and referred to a judgment of this Court, in dealing with the meaning of the term “exceptional circumstance”. The Tribunal understood that it was required to be positively satisfied that there were no relevant exceptional circumstances,[63] and that exceptional circumstance required something that was not ordinary or regular, but which nevertheless could apply to a variety of circumstances and need not be limited in any particular way unless required by the relevant statutory provision.[64]
[63] Citing Khant v Minister for Immigration & Citizenship [2009] FCA 1247 at para.70 per Cowdroy J.
[64] CB 114-115 at paras.15-18, citing Maan v Minister for Immigration & Citizenship & Anor (2009) 179 FCR 581; [2009] FCAFC 150 (“Maan”); R v Kelly (Edward) [2000] 1QB 198 at 208 per Lord Bingham of Cornhill CJ; Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 918; Hatcher v Cohn & Ors (2004) 139 FCR 425 at 438-439 per Kiefel J; [2004] FCA 1548 at paras.45-50 per Kiefel J; Chen v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 142 FCR 257 at 271 per Lander J; [2005] FCA 229 at para.111 per Lander J.
The Tribunal found that the applicant had been certified by Stanley College as failing to achieve satisfactory course progress. The Tribunal therefore found that the applicant had not complied with cl.8202(3)(a) of schedule 8 of the Migration Act, and that a ground for cancellation under s.116 of the Migration Act existed.[65] Having found that there had been a breach of cl.8202(3)(a) of schedule 8 of the Migration Act, the Tribunal proceeded to consider whether there were “exceptional circumstances” beyond the applicant’s control for that breach.[66]
[65] CB 122-123, para.57.
[66] Migration Regulations, reg.2.43(2)(b)(ii)(B).
The Tribunal analysed the applicant’s explanations for his unsatisfactory course progress. The Tribunal found they did not amount to “exceptional circumstances” beyond his control.[67]
[67] CB 123-126 at paras.58-70.
The Tribunal was satisfied, on the basis of the evidence provided by Stanley College, that Stanley College “did all that it was required to do and all that was reasonable for it to notify the applicant that the applicant’s course progress was not satisfactory”.[68] The Tribunal expressly rejected:
a)the applicant’s claim that he did not receive the Stanley College’s letters, emails and SMS messages;[69] and
b)the applicant’s suggestion that Stanley College should have taken further steps to ensure that he received its correspondence.[70]
[68] CB 123 at para.59.
[69] CB 123 at para.59.
[70] CB 124 at para.60.
The Tribunal was satisfied that Stanley College had given the applicant sufficient notice and opportunity to avail himself of its offer of assistance and support to him.
The Tribunal was not satisfied that the illness and death of the applicant’s grandmother gave rise to exceptional circumstances beyond the applicant’s control, observing that the period of unsatisfactory course progress extended over two consecutive study periods, and went back to August 2010, and that the grandmother passed away in February 2011.[71]
[71] CB 124 at para.61.
The Tribunal dealt with the property dispute involving the applicant’s family subsequent to the applicant’s grandmother’s death, observing that there was an allegation that an uncle was putting pressure on the grandmother, and on his parents, in relation to certain property. Whilst the Tribunal accepted that some family disputes can be stressful and distracting it was not satisfied on the evidence that this property dispute amounted to an exceptional circumstance in relation to the applicant’s unsatisfactory course progress.[72]
[72] CB 125 at para.64.
The Tribunal found that the applicant’s occasional illness, even when considered with the other matters raised by the applicant, could not be regarded as exceptional as it is not out of the ordinary, unusual or uncommon for students to have short periods of absence from classes due to illness.[73]
[73] CB 124 at para.62.
The Tribunal dealt with the applicant’s financial position and found that the applicant’s financial circumstances were not such as to be exceptional circumstances beyond his control contributing to a failure to achieve satisfactory course progress. In particular, in relation to a claim of having insufficient money, the Tribunal noted that that was inconsistent with the employment of the applicant (both by Comrail, albeit subcontracted out, and BP Merriwa) and the operation of a taxi, which was leased out to a taxi driver, by the applicant.[74]
[74] CB 124-125 at para.63.
In relation to the applicant’s employment and business interests in Australia, the Tribunal said that it was provided with a “detailed explanation” of the applicant’s “employment and business interests, including the ownership, operation and leasing of a taxi”.[75] The Tribunal noted the applicant’s explanation of his business arrangements, particularly with respect to the leasing of the taxi, and then found that “it is likely that the applicant’s employment and taxi business interests contributed to his failure to achieve satisfactory course progress and that this activity was something … within his control.”[76] The Tribunal was not prepared to accept that these were exceptional circumstances beyond the applicant’s control in the sense contemplated by the relevant statutory provisions.[77]
[75] CB 126 at para.68.
[76] CB 126 at para.68.
[77] CB 126 at para.68.
The Tribunal also rejected the applicant’s claim that he was unaware of the consequences of his failure to attend class and, in any event, found that such a purported lack of knowledge did not amount to an exceptional circumstance beyond his control.[78] The Tribunal was not satisfied that the illness caused the applicant’s failure to achieve satisfactory course progress, even if it was an exceptional circumstance, and further noted that the grandmother’s death occurred well after the relevant period for which the applicant was certified by Stanley College as achieving unsatisfactory progress.[79]
[78] CB 125 at para.65.
[79] CB 124 at para.65.
The Tribunal found that the oral advice received by the applicant about the appeal process when he attended Stanley College was consistent with Stanley College’s procedures, and did not otherwise constitute an “exceptional circumstance”.[80]
[80] CB 125 at paras.66-67.
The Tribunal found that there was no material before it relevant to the matters set out in Ministerial Direction No. 38, which relates to consideration of political upheaval or natural disasters in an applicant’s home country.[81]
[81] CB 126 at para.69.
The Tribunal was satisfied, on the basis of its findings, that the matters advanced by the applicant demonstrated that his non-compliance with cl.8202(3)(a) of schedule 8 of the Migration Act was not due to exceptional circumstances beyond his control.[82] Accordingly, the Tribunal was satisfied that the Student Visa must be cancelled, and it affirmed the Delegate’s Decision.[83]
Submissions
[82] CB 126 at para.70.
[83] CB 126-127 at paras.71-72.
Applicant’s submissions
The applicant did not file:
a)an amended application giving complete particulars of each ground of review; or
b)written legal submissions,
as ordered. The Court nevertheless sought from the applicant oral submissions at the hearing of this matter. The applicant said nothing concerning jurisdictional error when given the opportunity to make submissions. The applicant said that he thought the Student Visa cancellation was unfair, and that in the context of being an international student his family issues were not properly dealt with, particularly in light of the illness and death of his grandmother. The applicant conceded that the grandmother’s death came some time after the relevant period for which his unsatisfactory course progress was assessed, and further that, in reality, he was in disagreement with the Tribunal as to the facts found and conclusion reached by the Tribunal.
First respondent’s submissions
The first respondent submits that:
a)the applicant takes issue with the Tribunal’s factual findings, and does no more than impermissibly invite this Court to review the merits of the Tribunal Decision;[84]
b)with respect to particular (a) of the grounds of application, that this appears to be a complaint that the Tribunal failed to consider the applicant’s claim that his family situation affected him “both emotionally and psychologically” resulting in him losing interest in his studies, and plainly fails on the facts and cannot succeed;[85]
c)with respect to particular (b) of the grounds of application, that this appears to be a complaint that the Tribunal failed to consider the applicant’s claim that Stanley College did not inform him that his attendance was unsatisfactory, and of the consequences of this for his Student Visa, and plainly fails on the facts and cannot succeed;[86]
d)with respect to particular (c) of the grounds of application, that this appears to be a complaint that the Tribunal failed to consider the applicant’s claim that Stanley College “did not provide or use a standard of communication” that would have allowed him to be “informed in a timely manner”, and plainly fails on the facts and cannot succeed;[87]
e)with respect to particular (d) of the grounds of application, that this appears to be a complaint that the Tribunal failed to consider the applicant’s claim that Stanley College did not offer him any counselling or opportunity to discuss the problems with his attendance, and plainly fails on the facts and cannot succeed;[88] and
f)with respect to particular (e) of the grounds of application, that:
i)it appears to allege that the Tribunal failed to consider whether the applicant was denied procedural fairness by the Department and Stanley College on the basis that “there was lots of information which was not before the DIAC at the time it cancelled my visa”. This allegation fails to appreciate that the nature of the review before the Tribunal is undertaken by way of re-hearing de novo. The Tribunal’s function by its review was to determine the correct or preferable decision on the material before it,[89] and any denial of procedural fairness before the Delegate was able to be “remedied” before the Tribunal. In this regard it is noted that the Tribunal wrote to Stanley College requesting that it provide the Tribunal with all the relevant information in its possession relating to the applicant;[90]
ii)the applicant did not contend before the Tribunal that he was denied procedural fairness by the Delegate, and even if this was found to occur this would not have been a relevant consideration for the Tribunal to take into account in its application of ss.116(1)(b) and (3) of the Migration Act, and reg.2.43(2)(b) of the Migration Regulations, to the facts of the case. The Delegate’s Decision is not otherwise able to be reviewed by this Court as it is a “primary decision”;[91] and
iii)the applicant has not established that the Tribunal failed to consider any matter advanced by him in support of his claim that his non-compliance with cl.8202(3)(a) was due to “exceptional circumstances” beyond his control. The Tribunal’s findings that the circumstances presented by the applicant did not amount to exceptional circumstances beyond his control were findings of fact for the Tribunal and are not subject to judicial review.[92]
[84] Citing Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.
[85] CB 124-125 at paras.61 and 64.
[86] CB 123-124 at paras.59-60 and CB 125 at para.65.
[87] CB 123-124 at paras.59-60.
[88] CB 123 at paras.59 and CB 81.
[89] Citing SAAZ v Minister for Immigration Multicultural Affairs [2002] FCA 791 at paras.20-24 per Mansfield J (concerning the mirror Refugee Review Tribunal provisions).
[90] CB 68-70 and CB 120 at para.51.
[91] Migration Act, s.476(2).
[92] Citing Maan FCR at 591 per Dowsett, Greenwood and Collier JJ; FCAFC at para.52 per Dowsett, Greenwood and Collier JJ; Patel v Minister for Immigration and Citizenship [2010] FCA 918 at para.17 per Marshall J (“Patel”).
The first respondent submits that ground one, the only ground, cannot succeed.
Consideration
Requirement for jurisdictional error
The Tribunal’s decision can only be set aside if jurisdictional error is shown in the Tribunal’s decision.[93] The decision would involve jurisdictional error if the Tribunal:
a)identified a wrong issue;
b)asked the wrong question;
c)ignored relevant material; or
d)relied on irrelevant material,
in a way that affected the Tribunal’s exercise of power resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act.[94]
[93] Migration Act, ss.474(1) and 476(1) and (2); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[94] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ; Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
Certification of unsatisfactory progress
The Tribunal was not required to go behind the certification of unsatisfactory progress made by Stanley College. In this regard, the law is conveniently set out in Hassan v Minister for Immigration & Citizenship[95] where the Federal Court, in dealing with an appeal from a judgment of this Court which referred to Kim v Minister for Immigration & Anor[96] observed that:
[95] [2012] FCA 816 (“Hassan”).
[96] (2011) 254 FLR 19; [2011] FMCA 780.
40 Furthermore, his Honour was correct in his conclusion that Kim provides a complete answer to the appellant's proposed grounds of appeal. In Kim, Jarrett FM stated at [34]-[35]:
34.The certification issued by Ms Kim's education provider pursuant to cl 8202(3)(a) of Sch 8 to the Migration Regulations is, in my view, a decision made under a regulation made under the Migration Act. It is the giving of a certificate for the purposes of s 474(2)(b) of the Act. It is, in my view, a privative clause decision. It is not excluded from the definition by any regulation made for the purposes of s 474(5) of the Migration Act.
35.The certification is not given under the ESOS Act (either s 19 or s 20). Those sections deal only with the notification of a breach of a visa condition. As the Full Court instructs in Maan, it is the issue of the certification under cl 8202(3) which is the breach (or non-compliance) which becomes notifiable under ss 19 and 20 of the ESOS Act.
41 In Maan v Minister for Immigration (2009) 179 FCR 581, the Full Court of the Federal Court of Australia found at [44] that the fact of certification by the education institution that a student was not making satisfactory progress itself constitutes a breach of visa conditions.
42 In Kumar v Minister for Immigration and Citizenship [2011] FMCA 741, Jarrett FM stated at [28]-[29]:
28. Responsibility for certification clearly rests with the education provider. The only task for a decision maker (the Minister or a tribunal) is to determine that a certificate, on its face, is of a kind that engages condition 8202(3). The existence of the facts which underlie the certificate do not need to be determined by the tribunal. Were it to be otherwise, the certification process would become irrelevant and ineffective. The inquiry by the minister for the purposes of s 116(1) or 116(3) and reg 2.43(2) would become a broad ranging and perhaps cumbersome examination of the visa holder's attendances and insofar as condition 8202(3)(a) is concerned, satisfactory academic performance. It is apparent that the Legislature has intended to leave judgments about those matters to education providers.
29. The applicant argues that the above authorities, and in particular Mo, stand for the proposition that the tribunal is not required to go beyond the education provider's certificate, but may do so if the facts before it warrant such a course. To the extent that the submission suggests that there is a discretion vested in the tribunal to examine the validity of an education provider's certificate in any given case, I think the proposition is not sustainable on the authorities.[97]
[97] Hassan at paras.40-42 per Cowdroy J.
In this case there was nothing for the Tribunal to do other than accept the certification of unsatisfactory progress in relation to the applicant as given by Stanley College.
Exceptional circumstances
In this case the Tribunal did not misconceive what might constitute “exceptional circumstances.” The Tribunal properly referred to:
a)relevant authorities from the Federal Court and this Court;
b)policy considerations (even though none were relevant in the present case); and
c)the residual and final discretion vested in the Tribunal,
in relation to the proper meaning of “exceptional circumstances”.
In relation to particular (a), the Tribunal had regard to the fact of the grandmother’s illness and death. It noted the living arrangements whereby the grandmother had lived in the applicant’s home prior to his living in Australia. However, the Tribunal was simply not satisfied that the grandmother’s illness or death contributed to the applicant’s unsatisfactory course progress, and, quite properly observed that that progress occurred other two consecutive study periods, and that the grandmother’s death was some significant time after Stanley College’s certification of the applicant’s unsatisfactory progress. Those were matters which were essentially findings of fact which were open on the evidence to the Tribunal.
In relation to particular (b), the Tribunal had before it evidence which indicated that Stanley College had informed the applicant by letter of his unsatisfactory attendance, and it preferred that evidence to the applicant’s assertion that he did not receive either the 12 October 2010 student warning letter or the Notification of Intention to Report. A factual finding to that effect was open on the evidence. A finding that the applicant did not receive the letters would have been open on the evidence also, but it is clear that the Tribunal preferred the evidence submitted by Stanley College of the fact that the letters were sent, and that the Tribunal did not believe the applicant’s evidence of non-receipt of the relevant correspondence. Again, factual findings of that kind are matters for the Tribunal.
In relation to particular (c), this amounts to no more than a complaint about the means of communication by Stanley College with its students. However, the evidence, as accepted by the Tribunal, indicated that usual means of communication, such as normal post, email (being the designated student email account), and SMS text messages, were utilised by Stanley College in this case. As such, particular (c) cannot stand in the face of the factual findings of the Tribunal.
In relation to particular (d), again the Tribunal preferred the evidence of Stanley College that it sent correspondence offering to assist the applicant by means of counselling or discussions concerning his unsatisfactory course progress. Having found that those letters were sent, and clearly not accepting that they were not received by the applicant, it was open to the Tribunal to find that the relevant counselling and discussions were offered. Having made that finding, it could not follow that the applicant was unfairly dealt with in relation to those offers. Thus, particular (d) must also fail on the facts. Again, factual findings of that kind are matters for the Tribunal.
In relation to particular (e), it is not the function of the Court to conduct a review of the Delegate’s Decision, that being a primary decision not reviewable by this Court by reason of s.476(2) of the Migration Act. In any event, any procedural unfairness in the dealings with the applicant by either the Delegate in the course of making the Delegate’s Decision or by Stanley College was a matter for the Tribunal to deal with, and was not raised with the Tribunal. It suffices to observe that the Tribunal, both comprehensively and fairly in the Court’s view, set out the applicant’s contentions and evidence, the information provided by Stanley College, the applicant’s responses to the information provided by Stanley College, and proceeded to make findings of fact based on a proper weighing and consideration of all of the evidence and information before it. That was the Tribunal’s function.
For all of the above reasons, the Court is satisfied that the Tribunal properly understood and executed its merits review function. It is not the task of this Court upon judicial review to engage in merits review. This is clear from a consideration of the judgment of the Full Court in the Federal Court in Maan, where the Full Court observed as follows:
In this case the Tribunal considered in detail the meaning of "exceptional circumstances" in the context of these proceedings, and whether the appellant's non-compliance with the conditions of his visa was due to exceptional circumstances beyond his control. Indeed, the Tribunal accepted the appellant's evidence as to the events which had occurred in respect of his mother and grandfather, and gave consideration to his claims concerning his teacher at VIT and the stress of being away from home. On the facts the Tribunal found it plausible that the appellant should have experienced stress and depression as a result of the events involving his mother and grandfather. However the Tribunal was not satisfied that the appellant remained stressed or depressed several months after those events, particularly in light of the appellant's failure to seek professional assistance. It is perhaps surprising that the Tribunal would find that a male student, aged 18 years old, and alone for the first time in a foreign country, would naturally seek medical help for depression-related symptoms. However the findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact, clearly open to the Tribunal, and do not reveal jurisdictional error. The Federal Magistrate also considered this aspect of the appellant's case in detail, and no deficiency in the reasoning of the Federal Magistrate in relation to this issue has been identified by This Court.[98]
And the Federal Court judgment in Patel, where it was observed that:
16 The Federal Magistrate considered that Mr Patel was seeking a review of the merits of the Tribunal’s finding of fact that exceptional circumstances did not exist in Mr Patel’s case. At [20], her Honour said:
…I do not consider that the Tribunal’s decision falls into the category of case that was so unreasonable that no reasonable decision maker could have made it. It simply appears that the Tribunal assessed the claims that the applicant made and formed a view that was open to it, namely, that they did not constitute exceptional circumstances.
17 The above approach by her Honour does not reveal any appealable error. The Tribunal did not fall into jurisdictional error by making findings of fact that were open to it on the evidence before it, namely that Mr Patel’s accommodation situation and news about his grandfather’s death did not constitute exceptional circumstances beyond his control, which excused his failure to attend his course. As the Full Court said in similar circumstances in Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at [52]:
…findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact, clearly open to the Tribunal, and do not reveal jurisdictional error.[99]
[98] Maan FCR at 591 per Dowsett, Greenwood and Collier JJ; FCAFC at para.52 per Dowsett, Greenwood and Collier JJ.
[99] Patel at paras.16-17 per Marshall J.
In this case, the Tribunal, having properly understood and executed its merits review function, made findings of fact open to it on the evidence. No jurisdictional error was committed in the Tribunal so doing.
Conclusion and orders
The Tribunal properly considered the law and the evidence, and made findings of fact open to it on the evidence. The Tribunal made no jurisdictional error. The Court has concluded that the application must be dismissed, and there will, therefore, be an order dismissing the application.
The Court will hear the parties as to costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 24 August 2012
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