Singh v Minister for Immigration & Anor - [2009] FMCA 1261

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1261

MIGRATION – Review of MRT decision – where applicant’s student visa cancelled due to non-attendance – where applicant alleged that education provider failed to comply with code in issuing certificate – whether Tribunal obliged to go behind certificate from education provider – whether Tribunal committed jurisdictional error by failing to investigate allegations of inaccurate record keeping by the College.

Migration Act1958 (Cth) ss.116
Migration Regulations 1994

Mo v Minister for Immigration [2009] FMCA 1026
Maan v Ministerfor Immigration [2009] FCAFC 150
Minister for Immigration v SZIAI [2009] HCA 39

Applicant:

VARJEET SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1885 of 2009

Judgment of:

Raphael FM

Hearing date:

14 December 2009

Date of Last Submission:

14 December 2009

Delivered at:

Sydney

Delivered on:

14 December 2009

REPRESENTATION

Solicitor for the Applicant:

Mr M Jones

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1885 of 2009

VARJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Mr Singh was a student at an institution that went under the name of Lamart College of Technology. He was undertaking a Diploma of Community Welfare Work with a duration of two years that he commenced on 4 February 2008. During the study period, which commenced on 21 July 2008 and concluded on 6 October 2008, his attendance was 22 hours out of a total adjusted standard hours of 156, this being an attendance rate of 14.1 per cent.
On 29 December 2008, his education provider gave a certificate entitled Certification for the Purposes of Subclause 8202(3) of Schedule 8 of the Migration Regulations 1994. The certificate states:
“Saphire International Pty Limited (trading as Lamart College of Technology), on 29 December 2008, certifies Mr Varjeet Singh for course, Diploma of Community Welfare Work, as not achieving satisfactory course attendance for section 19 of the Education Service for Overseas Students Act (2000) and standard 11 of the National Code of Practice of Registration Authorities and Providing of Education and Training to Overseas Students (National Code) 2007.”
Following the issue of this certificate, Mr Singh was issued with a notice of intention to consider cancellation under s.116 of the Migration Act1958 (Cth) (the “Act”). He attended before a DIAC officer and so the provisions which allow automatic cancellation did not apply. His situation was considered by a delegate of the Minister, who, on 26 March 2009, cancelled his subclass 573 visa under s.116(1)(b) on the basis that he had breached condition 8202 of his student visa. On 7 April 2009, Mr Singh applied for review of that decision from the Migration Review Tribunal. He attended a hearing before the Tribunal which, on 14 July 2009, determined to affirm the decision under review.
In the Tribunal’s decision, which commences at [CB 153], it sets out in [5] and [6] the Minister’s power to cancel a visa under s.116(1)(b) and regulation 2.43. It also deals with condition 8202 at [16]. These pieces of legislation and the condition are so familiar to persons who would be reading this decision that I do not think it is necessary for me to set them out. The essence of them is that a student may have his visa cancelled if the student fails to comply with the minimum requirements for attendance at the educational institution into which he is enrolled. They further state that whilst the education provider is entitled to set out what those minimum requirements should be, they cannot be less than attendance at 80 per cent of classes over the whole course. In the legislation and regulations, a condition also provides that, where a student complies with the requirement to attend a DIAC office after receiving a notice then the decision-maker can take into account, in considering whether or not to cancel the visa, certain exceptional circumstances that may have occurred.
Mr Singh told the Tribunal that he had failed to attend in the period July to October 2008 because of a combination of circumstances. These included the fact that his Mother had been ill in India, the fact that a fellow student had stolen some money from him, and the fact that he himself had some medical problems, which included having a bad back. The Tribunal considered these statements by the applicant and some medical evidence produced by him. Mr Singh also told the Tribunal that he did not believe that the college had acted properly towards him. He indicated that, in his view, the college did not keep proper attendance records and it had acted in other ways inimical to the welfare of its students. At the hearing before the Tribunal, he produced a friend who gave evidence over the telephone that he did not like the way the Lamart College was managed and that there were never proper roll calls and so the friend had moved away from that college to the TAFE.
At [50], the Tribunal made some comments about the evidence given by the applicant:
“The Tribunal noted that it had a number of concerns about the applicant’s evidence. He presented no medical evidence of back pain for the relevant period and the only evidence related to one week in September. His psychological report was post dated and had no independent assessment of his condition, nor did it relate to the relevant period. Further, at the time when he claims to have been too ill to attend college, he was working at least 20 hours a week. The applicant said that he was taking medication. He did not know that he needed medical certificates. He said he was only required to stand and did not lift anything heavy. The Tribunal again noted that he would not be lifting anything heavy at the college and that working would be more strenuous physical activity than studying. The applicant said that he thought that he did attend college at that time.”
At [60] [CB 165] the Tribunal again considers the applicant’s evidence and finds that the applicant has been untruthful concerning the back pain he suffered. At [62] [CB 165] the Tribunal found that any medical or other condition that the applicant claims he suffered from, including any condition that arose from his mother’s illness, were not the reasons for his unsatisfactory attendance and, at [63], that the applicant had not provided a satisfactory explanation to the Tribunal for his unsatisfactory attendance other than to state that he did attend:
“The Tribunal prefers the evidence of the education provider.”
On 6 August 2009 the applicant filed an application with this Court seeking review of the decision of the Migration Review Tribunal. The applicant’s grounds for review were amended today in a document entitled Amended Application. There were three grounds.
“(1)The Tribunal erred by failing to find that the applicant had not been lawfully certified in accordance with item 8202(3)(b) of the Migration Regulations.”
The applicant accepts that the certificate, which is found at [CB 1], is on its face a certification that condition 8202 had been breached. But, he says, you cannot accept the document at face value. The Tribunal is obliged in certain cases to look behind the document and that this was one of those cases. The reason he gives for this is that Mr Singh had made it clear to the Tribunal that he did not believe that the education provider had properly complied with its obligations, and it did not keep attendance records, and that one could not be sure that he had failed to comply with the requirements.
He also argued that if one looked at the evidence provided by the college to the Tribunal, found at [CB 75], the failure in attendance could be seen to be a failure in attendance for a short period and that it was not possible to say on the basis of that information that Mr Singh, who was less than half way through the course at the time, could not have complied with the attendance requirements over the whole course. Mr Singh argued that if the Tribunal was entitled to take the certificate at face value then the matters that I have just adumbrated should be taken into account when considering the question of exceptional circumstances.
On 23 October 2009 I handed down a decision Mo v Minister for Immigration [2009] FMCA 1026. At [24] I say:
“To suggest that the Minister should “go behind” an 8202(3) certificate is counterproductive to this purpose. The only task of the Minister is to determine that a certificate, on its face, is of a kind that engaged condition 8202(3); Bellaiche v The Department of Immigration and Ethnic Affairs (1998) 41 ALD 356, Sackville J at [373]. The Minister was not required to inquire into the validity of either the certificate or the s.20 notice in order to exercise his power under s.137J.”
Although I understand that this decision has been appealed, I am of the view that it is not appropriate at this stage to resile from a decision that I made only a few months ago and which I believe to be supported by authority. I am therefore unable to make a finding in this case that the Tribunal should have gone behind the certificate.
In regard to the applicant’s claims that the Tribunal should have taken into account the accuracy of the certificate when considering other exceptional circumstances, I note the letter which the school wrote to Mr Singh on 15 October 2008 [CB 71]. That letter is relevantly in the following form:
“Dear Varjeet Singh,
Subsequent to our issuing to you an attendance warning letter and an invitation to attend a counselling session, our records are showing that you are now:
Unable to attain the required average course attendance of 80 per cent.
As you are now in breach of your student visa attendance requirements, the college intends to report you to the Secretary of DEEWR via PRISMS. This will place your visa at risk and, hence, you should regard this with the utmost importance.
You have 20 working days, beginning on 17 October 2008, to access the Lamart College complaints and appeals system and provide evidence that satisfactorily explains why you are in breach…”
That letter was dated 15 October 2008. The applicant argues that in the absence of any evidence that the college had an attendance requirement and had given that attendance requirement to the applicant as required by standard 11 and, in particular, standard 11.3 of the national code, the Court should find that the requisite requirement was that the applicant was required to have an attendance over the whole course of 80 per cent; Maan v Ministerfor Immigration [2009] FCAFC 150 at [37 - 38].
The respondent argues that this is not the case and that it is clear from letters written by the college to the Tribunal and, in particular, [CB 70], that the college was actually using an attendance requirement of one study period and that this was its minimum standard. The difficulty I have with accepting that submission is that there was no evidence before the Tribunal that this particular standard had been communicated to the staff and students as required by condition 11.3.
On the other hand, there is an alternative inference that I could draw from the letter of 15 October which would bring this case within the decision of the Full Court in Maan, and that is that the words used by the College would tend to indicate a period which was not necessarily limited only to the short space of time between July and October 2008. It is to be remembered that what the letter said was:
“Our records are showing that you are now unable to attend the required average course attendance of 80 per cent.”
If I draw that inference from the letter, then it follows that I cannot find anything improper about the certification that was given on

29 September 2008 and, thus, on either basis, the applicant’s first ground of the application must fail.
The second ground of application is:
“The Tribunal failed to consider whether the education provider’s failure to comply with the requirements of the National Code 2007 and/or denial of natural justice to the applicant in issuing the purported certificate amounted to exceptional circumstances beyond the applicant’s control.”
The applicant’s argument under this ground is that the letter which the College sent to the applicant giving him 20 working days beginning on 17 October 2008 to access the college complaints and appeals system was itself in breach of the National Code which, relevantly, at clause 11.6 says:
“Where the registered provider has assessed the student as not achieving satisfactory attendance of the courses identified in 11.1, the registered provider must notify the student in writing of its intention to report the student for not achieving satisfactory attendance. The written notice must inform the student that he or she is able to access the registered provider’s complaints and appeal processes as per Standard 8 (complaints and appeals) and that the student has 20 working days in which to do so.”
The argument is that sending a letter on 15 October giving the applicant 20 days from the 17 October does not give him 20 days in which to access the appeals procedure and is therefore in breach of the code. I explained the circumstances in which the code came into operation in the decision in Mo. At [23] I said:
“Relevantly, s.40 of the ESOS Act provides that:
The only legal effects of the National Code are the effects that this Act expressly provides for.”
I am satisfied that the effects provided for in the Act do not include the invalidity of the cancellation of a visa for failure to comply with condition 11.6, and I said as much in Mo. Once again, the applicant argued that if there was no invalidity as a result of the failure to comply then the failure to comply should be taken into account when considering exceptional circumstances. I think there is some force in that argument, but, in this particular case, I do not think it will avail the applicant.
This is not one of those cases where an applicant has attempted to access the appeals procedure and been refused because he is allegedly out of time when he may not otherwise have been. This applicant made no effort to access the appeals procedure and, therefore, it cannot be said that the failure to give him the full 20 days could have had any effect. I also note that the letter was written to the applicant on

15 October 2008, but the certificate, which was the starting point for the cancellation of his visa, was not issued until 29 December 2008.
The third ground of complaint was that:
“The Tribunal failed to review the case before it by not investigating the applicant’s claim that the education provider had not kept proper records.”
This claim is a claim of the type that used to be known as “failure to inquire” but which has been adjusted so as to comply with the formula contained at [25] of the High Court decision in Minister for Immigration v SZIAI [2009] HCA 39, where the Full Court said:
“All the decisions in the Federal Court concerned with failure to make obvious inquiries have led to references to “duty to inquire,” that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may well be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself a jurisdictional error.”
The applicant says that the record keeping of the College was an issue in the decision making process of the Tribunal. He says that he complained to the Tribunal about the record keeping processes and that he had a witness who also made a similar complaint. He says that the Tribunal wrote to the College and asked it for primary evidence of the applicant’s attendance, but it received none. All it received was the compilation attendance record that I have previously referred to and which is found at [CB 75]. He says that, in those circumstances, the Tribunal was obliged to make a further inquiry of the Tribunal, which it could have done with ease, in order to ascertain the truth of a vital integer of the ground for withdrawing the applicant’s visa.
In my view, the decision of the High Court in SZIAI was intended to provide strict limitations on the occasions upon which it might be appropriate for inquiries of this type to be made and it would be unlikely that the requirement would arise where the issue in question had been seriously considered by the Tribunal and the Tribunal had expressed a view about the evidence that it did have. It is to be recalled from the extracts of the Tribunal’s decision that are set out above that the Tribunal took an uncomplimentary view of the applicant’s evidence and his general credibility.
It did this with reference not to the details of his attendance record but his evidence on other matters, which it was required to consider for the purposes of the hearing. It weighed up that evidence against the secondary evidence provided by the College and came to the view that it should prefer that evidence of the College to the evidence of the applicant and, presumably, his witness, whose evidence could only be said to be vague and certainly did not go into any detail of the applicant’s particular complaints.
I am of the view that if a Tribunal undertakes this particular task and comes to the conclusion that it did then it is not obligated to make the inquiries that it is submitted by the applicant that it should have made. The only purpose of making such inquiries would be to obtain evidence where no evidence exists. So far as this Tribunal was concerned, the evidence did exist and was more persuasive than the assertions of the applicant.
In those circumstances, I am unable to find any grounds upon which the applicant could say that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions. I dismiss the application. I order that the applicant pay the first respondent’s costs, which I assess in the sum of $5,400.00.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 17 December 2009