SINGH v Minister for Immigration
[2011] FMCA 691
•5 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 691 |
| MIGRATION – Application for review of decision of Migration Review Tribunal – application refused. |
| Education Services for Overseas Students Act 2000 (Cth), s.19 Migration Act 1958 (Cth), ss.116(1)(b), 116(3) Migration Regulations 1994 (Cth), r.2.43(2)(b), Schedule 1, 2 & 8 National Code of Practice for Registration Authorities and Providers of Education and Training for Overseas Students 2007, Standard 10 & 11 |
| Maan v Minister for Immigration & Citizenship [2009] FCAFC 150 |
| Applicant: | BHOLA SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 46 of 2011 |
| Judgment of: | Simpson FM |
| Hearing date: | 22 August 2011 |
| Date of Last Submission: | 22 August 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 5 September 2011 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the first Respondent: | Mr S A McDonald |
| Solicitors for the first Respondent: | Australian Government Solicitor |
| Counsel for the second Respondent: | Mr S A McDonald |
| Solicitors for the second Respondent: | Australian Government Solicitor |
ORDERS
By consent, the applicant’s time within which to file and serve the application is extended to 25 February 2011.
Application be dismissed.
The applicant do pay the first respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 46 of 2011
| BHOLA SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
I have before me an application for judicial review pursuant to the Migration Act 1958 (Cth) (“the Act”) filed on 25 February 2011.
The application seeks relief in respect of the decision of the Migration Review Tribunal (“the Tribunal”) made on 5 July 2010. That decision affirmed a decision of a delegate of the minister to cancel the applicant’s visa pursuant to s.116(1)(b) and s.116(3) of the Act and r.2.43(2)(b) of the Migration Regulations 1994 (Cth) (the Regulations”). The visa that was cancelled was a Subclass 572 Vocational Education and Training Sector Visa VETS (“the Visa”). Subclass 572 visas are a subclass of Class Student (Temporary) (Class TU) Visa.[1]
[1] Migration Regulations, Schedule 1, Item 1222(4).
Application Out of Time
Although the Application for Review was filed three days late, the first respondent made no point in relation to this. There will be an order by consent that the applicant’s time within which to file and serve the application be extended.
Background
The Visa was granted on 25 March 2009 and was granted subject to conditions including Condition 8202.[2] Condition 8202[3], as applicable to the applicant at the time of the cancellation of the Visa was, relevantly, as follows:
[2] Migration Regulations, Schedule 2, Item 572.611(a).
[3] To be found in Item 8202 of Schedule 8 of the Migration Regulations.
(1)The holder … must meet the requirements of subclause (2) and (3).
(2)The holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; …
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) Section 19 of the Education Services for Overseas Students Act 2000;
(ii) Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)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) Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
It will be noted that in both paragraph 3(a) and 3(b) above, condition 8202 is breached if the education provider certifies that the visa holder has not achieved satisfactory course progress or attendance. It is the certification by the education provider rather than any unsatisfactory progress or attendance that gives rise to the breach.[4]
[4] Maan v Minister for Immigration & Citizenship [2009] FCAFC 150 at paragraphs 44 and 45.
The power to cancel a visa is conferred by s.116 of the Act which relevantly provides:
116 Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) …; or
(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. (my emphasis)
Regulation 2.43(2) of the Regulations relevantly provides:
(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:
…
(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. (my emphasis)
The effect of s.116(1)(b) was that the Minister’s delegate had a discretion to cancel the Visa if satisfied that the applicant had not complied with Condition 8202(3)(a) which the applicant had not.
The effect of s.116(3) and r.2.43(2)(b)(ii) was that the Minister’s delegate was required to cancel the Visa if satisfied that the applicant had not complied with Condition 8202(3)(a) and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control. It was found that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
The applicant had commenced a Certificate III in the Hairdressing Course at Southern Cross College on 3 June 2009. On or about
25 May 2010, the College issued a notice certifying that the applicant had not achieved satisfactory course progress for s.19 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) and Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (“the National Code”).
On 5 July 2010, the Minister’s delegate determined that she was satisfied that the applicant had not complied with Condition 8202(3)(a), and that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. The Minister’s delegate rightly considered that, in those circumstances, she was legally obliged to cancel the Visa.
On 11 July 2010, the applicant lodged an Application for Review of the delegate’s decision with the Tribunal. On 17 January 2011, the Tribunal concluded that the applicant had not complied with condition 8202, and that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. Accordingly the Tribunal affirmed the decision of the Minister’s delegate.
The Tribunal’s Reasoning
The Tribunal found that the notice issued by Southern Cross College on 25 May 2010, certifying that the applicant had not achieved satisfactory course progress for s.19 of the ESOS Act and Standard 10 of the National Code in relation to the Certificate III in Hairdressing Course, meant that the applicant had failed to meet the requirement of Subclause 8202(3) and, in particular, paragraph (a) of that subclause.
The main issue for the Tribunal was, therefore, whether the applicant’s non-compliance with Condition 8202 was due to exceptional circumstances beyond his control. The Tribunal referred to appropriate authorities concerning the meaning of “exceptional circumstances”.
The Tribunal considered eight arguments or submissions that had been advanced by the applicant or his representative. The Tribunal:
13.1rejected the applicant’s assertion, which had been maintained before the minister’s delegate, that his unsatisfactory course progress was due to medical problems or illnesses;
13.2rejected the applicant’s assertion that he was told he was free to change courses in December 2009;
13.3found that any failure of the applicant to receive warning letters addressed to him by the College was not an exceptional circumstance beyond the applicant’s control which caused his non-compliance with Condition 8202;
13.4found that there was no evidence to support the applicant’s assertion that the College did not keep proper student records, and that in any event this did not cause the applicant’s unsatisfactory course progress;
13.5found that the College offered counselling services to the applicant, although these offers were not taken up;
13.6found that, after 10 March 2010, the applicant did not attend classes because he had failed to pay the fees and was excluded by the College but considered that this was neither an extraordinary circumstance nor a matter beyond the applicant’s control;
13.7accepted the Certificate of the College to the effect that the applicant had unsatisfactory course progress and rejected as irrelevant the applicant’s subsequent academic progress at another institution; and
13.8found that the College’s monitoring and reporting processes were not a cause of the applicant’s unsatisfactory course progress.
The Application to the Federal Magistrates Court
The Application for Judicial Review contains one ground, which states:
“Tribunal failed to consider the proof given regarding improper maintain of my records (address, attendance) by college [Southern Cross College] & thus this made a “jurisdiction error” [sic]”
It was submitted on behalf of the second respondent that the ground was imperfectly expressed and might be understood in two possible ways. Firstly, the ground of review might be understood as complaining of an error of fact made by the Tribunal, in that the Tribunal failed to accept the evidence provided by the applicant as proving that Southern Cross College had failed to maintain proper records relating to the applicant’s address and attendance. It was submitted that if that is how the ground is to be understood, it does not properly allege any error that could amount to jurisdictional error.
It merely asserts an error of fact.
Secondly, it is submitted on behalf of the first respondent, that the ground of review might be understood as complaining that the Tribunal failed to consider the arguments put forward by the applicant’s representative in favour of the conclusion that Southern Cross College had failed to maintain proper records relating to the applicant’s address and attendance. The first respondent submitted that if that is how the ground is to be understood, it is untenable as the Tribunal specifically addressed those issues, with reference to the material placed before it by the applicant and his representatives. It was further submitted on behalf of the first respondent that:
·The Tribunal in the exercise of its jurisdiction was entitled, and required, to make factual findings based on the evidence before it;
·The applicant’s representative asserted that Southern Cross College failed to maintain proper student records. In particular, it appears to have been asserted that the College failed to maintain a record of the applicant’s correct address. The evidence before the Tribunal did not support that assertion;
·To the contrary, the evidence indicated that when the applicant informed the College of his change of address from Hope Valley to Brooklyn Park (by form dated 2 February 2010), the College made appropriate changes to its records and began sending correspondence to the applicant’s new address. There was no evidence before the Tribunal showing when the applicant had notified the College of his further change of address from Brooklyn Park to Hindley Street;
·
The applicant’s representative submitted to the Tribunal that the College had sent a letter dated 18 May 2010 to the Brooklyn Park address but had not sent a letter dated 25 March 2010 to the Hindley Street address. This was said to prove that the College failed to keep proper records. In fact, the letter sent to the Hindley Street address was actually sent on 25 May 2010, not
25 March 2010, so the factual basis for the argument was non-existent;
·
In any case, the Tribunal found that, to the extent that the College had failed to keep proper records relating to the applicant’s address, that was not a cause of the applicant’s unsatisfactory progress in the Certificate III in the Hairdressing Course.
That finding was plainly open to the Tribunal, and accords with commonsense;
·The applicant’s representative asserted that the applicant “was a regular student and had satisfactory attendance in Southern Cross College”. No evidence was provided to support that assertion. The series of warning letters concerning the applicant’s poor attendance strongly supported the contrary conclusion. It was open to the Tribunal to reject the assertion; and
·In any case, the basis on which the applicant was held to have breached Condition 8202 was that Southern Cross College had certified that he had not achieved satisfactory course progress. The question of whether proper records were kept in relation to the course attendance, as opposed to course progress, was not directly relevant to that issue.
The Applicant’s Case
The applicant relied on his affidavit filed at the same time as the Application. The affidavit was brief. It said:
“Tribunal (MRT) VS decision falls into “jurisdiction error” as they did not consider the proof given by me about improper maintenance of my records by college” [sic]
The applicant made oral submissions. He submitted that three months prior to the s.20 Notice being issued, he had enrolled in a different course at a different college. He says that he was progressing satisfactorily in the new course.
Conclusion
It is clear from the Tribunal’s reasons that the Tribunal properly considered the evidence that the applicant had enrolled in another course at a different college. The Tribunal quite properly found that “… the applicant’s subsequent academic progress at AAIC is clearly not a circumstance which caused the applicant to have unsatisfactory course progress at the College”. The applicant was nevertheless in breach of Condition 8202 as a result of the existence of the s.20 Notice from the education provider.
For the reasons put forward by Counsel for the first respondent as detailed above, I find that the Tribunal decision was not effected by jurisdictional error.
The application will be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Simpson FM
Date: 5 September 2011
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