Singh v Minister for Immigration
[2010] FMCA 983
•15 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 983 |
| MIGRATION – Review of decision of Migration Review Tribunal – cancellation of student visa. |
| Migration Act 1958 (Cth), ss.116(1)(b) and 414 Education Service for Overseas Students Act 2000, s.20 Migration Regulations 1994 (Cth), Schedule 8, cl.8202(3)(b) |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 |
| Applicant: | JASPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 144 of 2010 |
| Judgment of: | Simpson FM |
| Hearing date: | 14 September 2010 |
| Date of Last Submission: | 14 September 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 15 December 2010 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr P d'Assumpcao |
| Solicitor for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr P d'Assumpcao |
| Solicitor for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application for judicial review filed on 8 June 2010 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of FIVE THOUSAND, EIGHT HUNDRED AND SIXTY FIVE DOLLARS ($5,865.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 144 of 2010
| JASPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application for judicial review pursuant to the Migration Act1958 (Cth) (“the Act”) filed on 8 June 2010. The applicant seeks relief in respect of a decision of the Migration Review Tribunal (“the Tribunal”) made on 11 May 2010. That decision affirmed a decision of a delegate of the Minister for Immigration and Citizenship to cancel the applicant’s Sub-class 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Act.
Background Facts
Most of the relevant facts are accurately summarised in the Tribunal decision.
The applicant is a national of India born on 4 August 1987. He arrived in Australia on 22 June 2008 on a Sub-class 572 Student Visa. He commenced studies at Cambridge International College (“the education provider”) for a Diploma of Multimedia.
On 1 July 2009, the education provider sent the applicant a letter to his first address on Anzac Highway[1] advising his attendance rate was between 90% and 80% and that he was required to attend a minimum of 80% of contact hours.
[1] The applicant had lived at more than one address on Anzac Highway.
On 6 August 2009, the education provider sent the applicant a letter to his first address on Anzac Highway advising his attendance rate was below 80% and invited him to make an appointment to discuss his attendance and course progress.
On 19 August 2009, the education provider sent the applicant an email advising his attendance rate was just over 70%. The applicant was advised that should the percentage fall below 70%, he would be issued with a notice of intent to report him to the Department of Immigration and Citizenship (“the Department”).
On 3 September 2009, the education provider wrote to the applicant at his second address on Anzac Highway to advise his attendance rate was now below 70%. The applicant was advised he had 20 days in which to appeal the education provider’s intention to report him to the department.
On 10 November 2009, the education provider certified the applicant as not achieving satisfactory course attendance for the period 18 May 2009 to 6 September 2009 in relation to a Diploma of Multimedia, in a notice pursuant to s.20 (“the section 20 Notice”) of the Education Service for Overseas Students Act 2000 (“VESOS Act”). The section 20 Notice indicates that the applicant had breached subclause 8202(3)(b) of Schedule 8 of the Migration Regulations 1994 (Cth). The section 20 Notice was addressed to the applicant under cover of a letter dated 10 November 2009 setting out the options available to the applicant. The cover letter and section 20 Notice were sent to the applicant’s second address on Anzac Highway.
On 11 November 2009, the applicant attended at the department. He advised them that he had not attended classes as he had been unwell with back problems. He said that he had submitted all of his assignments so he did not think he needed to attend classes. He said further that he had moved house from his first address on Anzac Highway to the second address and so did not receive the warning letter or the intention to report letter[2].
[2] The applicant’s change of address may explain his failure to receive the warning letter (or letters) but does not explain his failure to receive the intention to report letter as it was sent to his second address at Anzac Highway.
A delegate of the Minister issued to the applicant a Notice of Intention to Consider Cancellation (“NOICC”) on 11 November 2009. The NOICC indicates the ground for the possible cancellation and invited the applicant to attend an interview to provide comments on 18 November 2009.
The applicant provided a statutory declaration dated 16 November 2009 declaring he did not receive any communication from the education provider advising him of problems with his attendance. He received the section 20 Notice but was now out of time to appeal to the College.
In his interview with the department on 18 November 2009, the applicant said:
·His friend Hardeep Singh had been stabbed in the neck in June 2009. He had met this friend on the first day of enrolment and they became good friends. He was now nervous about driving a taxi and afraid of people.
·He was receiving daily calls from his mother telling him to come home.
·He was depressed but did not seek counselling.
·He had been working 20 hours per week as a taxi driver.
·He had handed up all of his assignments.
The applicant’s friend, Hardeep Singh (“Mr Singh”), provided a statutory declaration dated 25 November 2009 stating he was attacked and wounded by a knife while working as a taxi driver. Mr Singh said that his friends, particularly the applicant, helped him at this time. He also said that the applicant stayed by his side in hospital and had continued to provide moral support and assistance.
The applicant provided a further ‘statutory declaration’, dated only November 2009 and not witnessed, to declare that he had been examined by a Dr J C Kerry who had diagnosed depression and prescribed Temaze and Ducene.
By letter dated 27 November 2009, the delegate notified the applicant of the decision to cancel the Visa.
The applicant applied to the Tribunal for a review of the decision on 7 December 2009.
The applicant was represented in relation to the review by a support person, Mr Colin Martin.
The applicant’s representative provided the following submissions and information to the Tribunal:
·The applicant only became aware of his noncompliance with attendance requirements when he received the letter dated 10 November 2009. He concedes the letters were sent. The representative said that he thought that the applicant may not have received the letters because they may have been stolen.
·The applicant had been affected by the attacks on Indian students in Australia and particularly the attack on his friend Mr Singh. The representative believed that the applicant was suffering depression.
·The representative sent the applicant to see Dr Kerry and asked the doctor to provide a report on the applicant’s condition.
The applicant appeared before the Tribunal on 16 February 2010 to give evidence and present arguments.
The Tribunal summarises the applicant’s evidence as follows:
·He knew that he was not able to work more than 20 hours a week but was not aware of the 80% attendance requirement.
·He found the course easy as he had worked for a year in the printing business. He submitted all necessary assignments but did not think that he needed to attend all classes.
·He did not believe that the attendance records were accurate and thought that his attendance was closer to 85% or 90%. He was only one or two minutes late to some classes but they marked him as missing half the class. The education provider had a policy of marking students as missing half a class if they were a minute late. He did not tell the delegate this as he was nervous at the interview.
·He missed classes due to the stabbing of his friend Mr Singh. His friend returned to school about 2 or 3 weeks after the stabbing. He was not sure how much time he spent helping his friend. He visited him in hospital and at home.
·He had back pain from driving the taxi and had some medicine from India that helped. The back pain was not a big problem when attending classes. It was the combination of back pain and helping his friend that caused him to miss classes.
·He was driving taxis 20 hours a week and did this consistently even when he had back problems and was helping his friend. He needed the money for his daily expenses.
·He saw Dr Kerry on one occasion when Mr Martin organised it for him. He had not seen any other doctors in Australia. He took the medicine Dr Kerry prescribed and after 2 weeks he felt good. He has never been diagnosed with depression. He just felt confused.
·In response to being asked by the Tribunal as to what he says are the exceptional circumstances outside his control, the applicant stated all the things that happened were out of his control. He was under pressure from his parents and as a result of the stabbing of his friend Mr Singh. In addition, he had worries about driving a taxi at night. He said that he had pressure on his mind from many quarters.
Following the hearing, the Tribunal made enquiries of the education provider as to whether they had a policy of marking students absent for a half a class when they were a minute or two late. The education provider responded with their policy stating students would be recorded as 0.5 attendance if they arrived late to class. “Late” was defined as greater than 15 minutes after the commencement of the class. The Tribunal provided a copy of this policy to the applicant to comment on as part of its section 359A letter.
On 14 April 2010, the Tribunal received a response from the applicant’s representative. The representative responded as follows:
·A number of students at the education provider did not understand that if they were 15 minutes late, they would be penalised as being half a day absent.
·Unless an education provider’s policies are implemented by way of educating the students, they are of little point.
·Handing out the policy to be read by students is not sufficient. The policies need to be properly explained.
·Commonsense should be allowed to prevail. The applicant should be allowed to complete his course, a course that his family have sacrificed so much for.
·The applicant is not interested in staying permanently in Australia.
On 11 May 2010, the Tribunal affirmed the decision of the Minister.
In his Application for Review, the applicant relies on the following grounds:
1.That I have not been fairly dealt with.
2.That the Tribunal did not take into consideration all points regarding the College I was attending.
3.That my family has endured hardship to allow me to study.
Submissions
On 6 September 2010, the applicant filed a document titled “Submissions”. A summary of his written submissions are as follows:
·I was only absent from the education provider for a couple of days which was insufficient for my non-attendance to be reported to the department.
·The Tribunal was guilty of jurisdictional error as it failed to follow direction 38 which requires the Tribunal, when considering noncompliance with condition 8202, to consider whether there were exceptional circumstances beyond the applicant’s control that justified setting aside the decision of the Minister. In this case, the circumstances beyond the applicant’s control are to be found in the evidence from the department that the education provider made errors and omissions in recording student attendances. The case of Tribunal case number 0906018 and case number 1000438 were referred to as examples of findings that on earlier unrelated occasions, this particular education provider did not comply with direction number 38.
·The Tribunal fell into jurisdictional error as it failed to follow direction 38 in assessing the evidence sent by the education provider.
It was submitted on behalf of the first respondent that the application should be dismissed with costs.
In relation to the first ground of appeal (ie that the applicant had not been fairly dealt with) it was submitted that, as no proper particulars have been provided, the ground should not be sustained. I agree. Neither the application nor the applicant’s submissions (written and oral), provide an explanation about this ground of appeal.
In relation to the second ground (ie that the Tribunal did not take into consideration all points regarding the college that the applicant was attending) the first respondent submits that if, contrary to its primary submission, this were accepted by the Court, this would amount to jurisdictional error being a failure to carry out a review under s.414 of the Act. The first respondent’s primary submission is that no such error was committed in this case. The first respondent referred to the case of Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 per Allsop J (with whom Spender J agreed) at page 259. The further case of ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 was referred to and in particular the joint judgment of French (as his Honour then was), Sackville and Hely JJ in which their Honours at page 641 at para [47] stated:
“The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
It is pointed out on behalf of the first respondent that in this case, the Tribunal detailed the applicant’s claims and dealt with them comprehensively and conclusively. I agree. A perusal of the Tribunal’s reasons reveals them to be comprehensive and considered. In my view, the Tribunal considered all relevant matters before it and made findings on each of them. Ground 2 should be dismissed.
In relation to the third ground of appeal (ie that the applicant’s family has endured hardship to allow him to study), this is not a proper attack on the Tribunal’s process or decision making for the purpose of a judicial review application and should also be dismissed.
The application is to be dismissed. I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Simpson FM
Date: 15 December 2010
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