Singh v Minister for Immigration
[2009] FMCA 931
•21 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 931 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal erred in finding that exceptional circumstances did not exist – whether the Migration Review Tribunal was biased – whether the Migration Review Tribunal complied with s.359A of the Migration Act 1958 (Cth) – whether the Migration Review Tribunal’s decision was illogical or unreasonable – whether the Migration Review Tribunal should have made further enquiries. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 359A; 427(1)(d); 424A; 474; pt.8 div.2 |
| Minister for Immigration and Citizenship v Brar [2009] FCAFC 53 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 Tran v Minister for Immigration and Multicultural Affairs [2002] FCA 1522 |
| Applicant: | GUCHARAN SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3417 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 14 September 2009 |
| Date of Last Submission: | 14 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Mr A. Markus and Ms B. Griffin Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3417 of 2008
| GUCHARAN SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 28 November 2008 and handed down the same day.
The background and the Tribunal’s decision are accurately summarised in the written submissions of the solicitor for the First Respondent, Mr Markus, as follows:
“The applicant, a citizen of India, was granted a subclass 573 student visa on 21 February 2007.[1] The applicant was enrolled in the Advanced Diploma of Hospitality Management course at the Carrick Institute of Education (the Carrick Institute).[2]
[1] RD 1, 12, 109.
[2] RD 18.
The conditions of the applicant’s visa included condition 8202 in Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations): see cl 571.611 of Schedule 2 to the Regulations. Subclauses (1) to (3) of condition 8202 relevantly provide as follows:[3]
[3] The version of condition 8202 that was in force at the relevant time was the pre 1 July 2007 version. See Minister for Immigration & Citizenship v Brar [2009] FCAFC 53 at [27], [47].
(1) The holder … must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) …
(3) A holder meets the requirements of this subclause if:
(a) in the case of a holder whose education provider keeps attendance 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. [Emphasis added]
On 29 June 2007 the Carrick Institute issued the applicant with a non-compliance notice pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) (the s 20 notice).[4]
[4] RD 79-83.
Section 20(1) of the ESOS Act provides:
A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
The s 20 notice sent to the applicant informed him that Carrick Institute “alleges that you have breached a condition on your student visa relating to attendance and/or satisfactory academic performance”, and referred him to the section of the notice entitled “Particulars of the Breach” for further details. Under that heading, the s 20 notice stated:[5]
[5] RD 79.
The particulars of the breach are set out below, after the text of subclause 8202(3)(a). Failure to meet the requirements of subclause 8202(3)(a) will lead to a breach of condition 8202.
After setting out the text of paragraph 8202(3)(a), the s 20 notice went on to state:[6]
[6] RD 80.
Catherine Carrick has determined that in the term running from 10 April 2007 to 15 June 2007, you attended 63.87% of the contact hours scheduled. As a result, you have failed to comply with condition 8202(3)(a) of your student visa.
The Carrick Institute also informed the applicant in the s 20 notice that his student visa would be automatically cancelled under s 137J of the Act unless he complied with one of the two options set out in s 137J(2) of the Act, and specified in the notice, by the end of the 28th day after 29 June 2007, namely:
a) complying with the notice by attending in person before an officer at the Sydney office of the Department for the purpose of making any submissions about the breach and the circumstances that led to the breach (s 137J(2)(a)); or
b) attending at an office of the Department in Australia and making himself available to an officer to make submissions about the breach and the circumstances that led to the breach (s 137J(2)(b)).
The applicant failed to respond in accordance with either option within the specified period. On 28 July 2007 the applicant’s visa was automatically cancelled pursuant to s 137J of the Migration Act 1958 (the Act).
On 20 May 2008, the applicant lodged a request for revocation of the automatic cancellation of his visa, pursuant to s 137K of the Act.[7] Section 137L(1) of the Act provides:
[7] RD 31.
On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non-citizen did not in fact breach the relevant visa condition or conditions;
(b) that the breach was due to exceptional circumstances beyond the non-citizen’s control; or
(c) any other matter prescribed in the regulations.[8]
[8] No regulations have been made pursuant to s 137L(1)(c) of the Act.
The applicant gave reasons why his visa should be re-instated. The applicant claimed that he did not receive a copy of the s 20 notice, he did not know his student visa had been cancelled because he had moved to another residence, and his former housemate did not notify him of any mail to be collected from his previous address. The applicant claimed that he had insufficient funds to pay his school fees and was embarrassed to ask his parents for money. He had since recognised that he should have asked his parents for financial assistance and advised DIAC of his circumstances.
By letter dated 22 July 2008, a delegate of the Minister informed the applicant that his request for revocation of the automatic cancellation of his visa had been refused.[9]
[9] RD 32-37.
Before the Tribunal
On 1 August 2008 the applicant applied to the Tribunal for review of the delegate's decision.[10]
[10] RD 38-44.
On 3 September 2008 the Tribunal wrote to the Carrick Institute requesting information in writing.[11] In response, the Carrick Institute supplied a copy of the s 20 notice and the applicant’s attendance records for term 2 of 2007 (13 April 2007 to 20 June 2007).[12]
[11] RD 46.
[12] RD 47-83.
On 11 September 2008 the applicant was invited to comment on information that the Tribunal considered to be the reason or a part of the reason for affirming the decision under review, pursuant to s 359A of the Act.[13] Specifically the applicant was invited to comment on the information provided by the Carrick Institute that he had attended 125.75 out of 196.5 scheduled contact hours, which equated to 63.9% attendance. The applicant was advised that the above information was relevant because:
[13] RD 84-85.
a) condition 8202 attached to the applicant’s visa required, inter alia, that the applicant attend for at least 80% of scheduled contact hours;
b) the Tribunal may revoke the automatic cancellation of his visa if satisfied that the breach of condition 8202 was due to exceptional circumstances beyond the applicant’s control; and
c) if the Tribunal was not so satisfied, the Tribunal would not revoke the automatic cancellation of his visa.
By letter dated 15 October 2008, the applicant’s migration agent submitted, inter alia, that the applicant’s failure to comply with condition 8202(3)(a) was attributable to the following exceptional circumstances:[14]
[14] RD 92.
a) the applicant did not receive the section 20 notice;
b) he had insufficient funds to pay his fees and was embarrassed to ask his father for the requisite funds as his father had suffered drastic financial loss in his business followed by acute depression;
c) the applicant was worried about the financial circumstances of his parents, particularly the health deterioration of his father, and had overlooked notifying the Department of his circumstances;
d) the submission stated “I would be sending supplementary documents viz. COE and also my client is seeking medical psychological report. Please bear with us.” The applicant subsequently provided 3 certificates of enrolment.[15]
[15] RD 99-103.
On 25 November 2008 the applicant attended a hearing of the Tribunal.[16] The applicant gave evidence that as a result of his father’s situation in India, which affected the applicant psychologically, he ceased to attend class.
[16] RD 104-105.
Tribunal decision
In a decision handed down on 28 November 2008, the Tribunal affirmed the delegate’s decision not to revoke the automatic cancellation of the applicant’s visa.
The Tribunal was satisfied that the applicant had breached condition 8202(3)(a).
In relation to the applicant’s claimed exceptional circumstances, the Tribunal:
a) accepted that the applicant’s father suffered from depression as a result of his business’s financial loss and that the applicant may have been concerned and anxious about his father’s business and mental health; however
b) the Tribunal did not consider it unusual that a business suffers financial losses, that family members becoming concerned about the effect of those losses, or that an overseas student would be concerned about their financial situation and ability to pay their fees;
c) the applicant made only cursory attempts to remedy his situation;
d) the Tribunal accepted that the applicant did not receive any notices advising him of his poor attendance from his education provider, however the Tribunal considered that the applicant was aware of the requirements to attend class and on his own initiative, simply ceased to do so.
The Tribunal considered the applicant’s claim that he did not receive the s 20 notice. The applicant did not claim that it was sent to the wrong address, but that his former housemate informed him that there was no mail for him. The Tribunal was satisfied that the s 20 notice was sent to the last address as notified to the Carrick Institute and that s 137L(2) precluded revocation on the grounds that the applicant was not aware of the notice.
In relation to the applicant’s evidence of having enrolled in three further courses in 2009, the Tribunal was not satisfied that his enrolment in those course had any bearing on the reasons for his non-attendance in 2007. No medical evidence had been provided to the Tribunal and no submissions were made at the hearing that any further documentation would be forthcoming. The Tribunal considered that the applicant had ample opportunity to provide any relevant documentation and in those circumstances it was appropriate to proceed to a decision.
Having regard to all of the evidence the Tribunal was not satisfied that the applicant’s failure to attend class for at least 80% of the scheduled contact hours was due to exceptional circumstances beyond his control.”
The proceeding before this Court
The Applicant was unrepresented before this Court.
At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in an amended application filed on 6 July 2009.
The amended application is several pages containing a mixture of claims, assertions of error and submissions presented in an unhelpful and unclear fashion. The Applicant was invited by the Court to explain the grounds upon which he relied and make submissions in support of those grounds and in support of his application generally. The Applicant was unable to make any relevant or coherent submission in support of his application to this Court.
In the circumstances, I suggested that it may be of more assistance to the Applicant to hear first from the solicitor for the First Respondent, Mr Markus, what the First Respondent understood the grounds of the Applicant’s amended application to be and the reasons why the First Respondent opposed those grounds.
The Applicant had several documents that he wished to tender to the Court in support of his application that had been annexed to the amended application. The Applicant confirmed that none of the documents upon which he relied had been given by him to the Tribunal for the purposes of its review, save for the Tribunal’s notification letter to him annexing its decision. The documents were objected to by the First Respondent and rejected by the Court as irrelevant.
The Applicant also sought to rely on an affidavit sworn/affirmed by him on 5 July 2009 and annexing: a government document relating to the sending to students of a notice of intention to report for visas breaches; the Full Court of the Federal Court of Australia’s decision in Minister for Immigration and Citizenship v Brar [2009] FCAFC 53; and, a decision of the Immigration Review Tribunal dated 19 May 1997 in respect of the applicant Shafiq Khan ([1997] IRTA 9548). The material annexed to the affidavit was accepted by the Court as part of the Applicant’s submissions. However, neither of these cases assist the Applicant in making out the grounds of his application.
The Court endeavoured to explore with the Applicant whether or not he agreed with the summary of his grounds, as distilled by the First Respondent’s solicitor, Mr Markus, in his written submissions. Whilst the Applicant confirmed that he had read the First Respondent’s written submissions, he was not able to indicate to the Court whether or not he agreed with the distillation of his grounds as contained in that document. The Applicant did not give a responsive answer and said that exceptional circumstances depend on the person and another person cannot say whether or not they are exceptional. The Applicant said that if a person is apart from his family for the purpose of building his future and the money he received to assist his studies was received from his hard working father, he did whatever he could.
Having considered the Applicant’s amended application and the grounds as distilled in the First Respondent’s written submissions, I am satisfied that the First Respondent’s written submissions accurately summarise the grounds upon which the Applicant was seeking to rely and the complaints he was seeking to make in his amended application.
Ground 1 – The Tribunal erred in its consideration of the Applicant’s exceptional circumstances
At the heart of the Applicant’s complaints about the Tribunal, was his complaint that the Tribunal had failed to find that exceptional circumstances had caused him to breach his visa conditions and therefore the automatic revocation should be reversed.
In relation to this complaint, the Applicant’s amended application asserted that:
i)the Tribunal should have assessed and decided the case based on the medical certificate provided by the Applicant’s father of the Applicant; and
ii)the Tribunal failed to give the Applicant an opportunity to lodge a psychological report.
Both complaints are misconceived.
In relation to (i) above, the Tribunal accepted the Applicant’s evidence contained in the medical certificate that his father suffered from depression.
In relation to (ii) above, the Tribunal noted that the Applicant’s representative submitted that the Applicant was seeking to obtain a psychological report. However, no such evidence was given to the Tribunal and no submission was made at the Tribunal hearing that any further documentation would be forthcoming. The Tribunal was satisfied that the Applicant had had ample opportunity to provide any relevant documentation.
In affirming the decision under review, the Tribunal accepted that the Applicant may have been concerned and anxious about his father’s mental health. However, the Tribunal found that there was nothing unusual in an overseas student becoming concerned about his family’s financial situation and his and his family’s ability to pay his tuition fees. The Tribunal also found that there was nothing unusual or out of the ordinary in a business sustaining losses. The Tribunal also had regard to the fact that the Applicant did not initiate any contact with the Department to discuss the difficulties he was having. The Tribunal accepted that the Applicant did not receive any notices advising him of his poor attendance. However, the Tribunal found that the Applicant was aware of the requirements of his visa to attend classes and “on his own initiative, simply ceased to do so.”
Further, the Tribunal noted that the Applicant did not claim that the s.20 notice was sent to the wrong address or otherwise in accordance with the relevant legislative scheme; rather, that his former housemate had told him there was no mail for him at his former address.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
In the circumstances, the Applicant’s complaints in ground 1 are no more than a disagreement with the findings of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54).
Accordingly, ground 1 is not made out.
Ground 2 - The Tribunal was biased and approached the matter with a pre-determined conclusion
To the extent that ground 2 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. The allegation is unsupported by particulars, evidence or submissions. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Dossa J).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32] per the court; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J).
Accordingly, the allegations of bias or apprehended bias are rejected.
Ground 3 – The Tribunal breached s.359A of the Act
The Applicant’s grounds referred to s.424A of the Act. Plainly s.424A of the Act is not relevant to the Tribunal’s decision. If the Applicant was intending to allege a breach of s.359A of the Act (being the equivalent provision of s.424A applicable to the Migration Review Tribunal), such an allegation is not made out.
A fair reading of the Tribunal’s decision makes clear that the information to which the Tribunal had regard in affirming the Delegate’s decision was information given by the Applicant in his submission, dated 15 October 2008, and oral evidence given at the hearing. The Tribunal also had regard to information provided by the Carrick Institute to the Tribunal that during term 2 of 2007, between 13 April 2007 and 20 June 2007, the Applicant had attended only 125.75 hours of the 196.5 scheduled contact hours. The Carrick Institute informed the Tribunal that the 125.75 hours attended by the Applicant equated to an attendance rate of 63.9%.
On 11 September 2008, in accordance with s.359A of the Act, the Tribunal gave to the Applicant the information from the Carrick Institute in a letter informing him that condition 8202 required that he attend at least 80% of the scheduled contact hours, whereas he had attended only 63.9%. The Tribunal’s letter explained the relevance of that information to the Applicant and invited the Applicant to comment.
On 15 October 2008, the Applicant’s migration agent responded to the Tribunal’s s.359A letter and, inter alia, referred to the Applicant’s intention to seek a medical psychological report. The migration agent’s letter also referred to the Applicant’s reasons for the breach of his visa and a letter from Bansal Hospital in India stating that the Applicant’s father was suffering from acute depression and was advised to continue treatment for 3 months. As stated above, the Tribunal referred to this evidence and accepted that the Applicant’s father was suffering from depression. No psychological report in respect of the Applicant was received by the Tribunal.
The Tribunal had regard to the response to its s.359A letter, however, was not satisfied that the circumstances giving rise to the Applicant’s breach were exceptional. As stated above in these reasons, that finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
In the circumstances, it is plain that the Tribunal did not breach its obligations pursuant to s.359A of the Act.
Accordingly, ground 3 is not made out.
Ground 4 – The Tribunal’s decision was illogical and manifestly unreasonable in the Wednesbury sense
I accept the statement of Wednesbury unreasonableness as disclosed in the written submissions of the First Respondent as follows:
““Wednesbury unreasonableness” applies where it can be demonstrated that the factual conclusions reached by a Tribunal are so unreasonable and so unfair that no reasonable person could have made them. As stated by the High Court in Attorney General for the State of NSW v Quinn [1990] HCA 21; (1990) 170 CLR 1 at 35:
Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power…Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”
As is referred to above in these reasons, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision makes clear that it applied the correct law to the facts as it found them to be in reaching its conclusion that the Applicant had breached condition 8202; and, that the breach was not due to exceptional circumstances beyond the Applicant’s control. Accordingly, the Tribunal affirmed the decision not to revoke the automatic cancellation of the subclass 573 Higher Education Sector visa formally held by the Applicant.
The Applicant’s complaint that the Tribunal failed to address his claim is not made out on a fair reading of the Tribunal’s decision record, including the conduct of its review.
To the extent that ground 4 contains a complaint that “the tribunal is required to deal with the case raised by the material or evidence from the doctor in India and denying compelling circumstances means challenging the certificate from the doctor”, such an allegation is misconceived. As stated above, the Tribunal accepted the evidence provided by the Applicant in relation to the depression the Applicant claimed his father suffered in India and also accepted that the Applicant’s family’s businesses were suffering financial losses. The Tribunal also accepted that the Applicant may be concerned about his father’s mental state and business losses. However, as stated above, the Tribunal was not satisfied that such circumstances were exceptional. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. They were neither unreasonable nor illogical.
Accordingly, ground 4 is not made out.
Ground 5 – National code
Ground 5 appears to assert that the Tribunal should have made enquiries regarding the Carrick Institute’s compliance with the National Code of Practice for Registration Authorities and Providers of Education and Tribunal to Overseas Students 2007.
If ground 5 is intended to allege that the Tribunal failed to conduct investigations that it was obliged to conduct, such an allegation is not made out.
There is no general obligation on a Tribunal to investigate an applicant’s claims. It is well established that it is only in certain circumstances that the Tribunal may be obliged to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
As their Honours Gummow and Hayne JJ made clear in SGLB, whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate the Applicants’ claims, nor is it under a duty to consider utilising such permissive statutory powers which might enable it to do so (for example, see s.427(1)(d) of the Act; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [24]-[25] per Heerey, Nicholson and Mansfield JJ; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 per Black CJ, von Doussa, Sundberg and Mansfield JJ at 561; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78] per Nicholson J).
Mr Markus referred to Tran v Minister for Immigration and Multicultural Affairs [2002] FCA 1522 where Kenny J stated that in the ordinary course there was no obligation on the part of a tribunal to make enquiries. The Tribunal in the case before this Court found that there was nothing unusual or out of the ordinary in relation to the circumstances which led to the Applicant failing to attend class.
It was never the Applicant’s case that the Carrick Institute did not comply with its statutory obligations in the issuing of the s.20 notice and the consequent automatic cancellation of the Applicant’s visa. The Applicant accepted that he did not attend the relevant number of required hours. The Applicant’s case was that he did not attend for reasons which he contended amounted to exceptional circumstances. The Tribunal, whilst accepting the Applicant’s assertions surrounding the circumstances of his breach, was not satisfied that the circumstances were exceptional.
As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, ground 5 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence in a s.359A letter and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 18 September 2009
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