Tahir v Minister for Immigration
[2007] FMCA 466
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAHIR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 466 |
| MIGRATION – Student visa – Migration Review Tribunal – whether jurisdictional error – meaning of ‘exceptional circumstances’. |
| Migration Regulations 1994 Education Services for Overseas Students Act 2000 Migration Act 1958, ss.116, 359A |
| Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 229 Hatcher v Cohn [2004] FCA 1548 |
| Applicant: | MOHAMAD EJAZ TAHIR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 901 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 16 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr B Wee |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 901 of 2006
| MOHAMAD EJAZ TAHIR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application, the Applicant seeks review of a decision of the Migration Review Tribunal (the Tribunal) dated 16 June 2006.
In its decision the Tribunal affirmed the decision of a delegate of the First Respondent to cancel the Applicant's subclass 572 student visa.
The Applicant is self represented and has relied upon an application filed 17 July 2006. The application whilst referring to a number of grounds fails to provide any or any adequate particulars of those grounds following orders made by a Registrar on 9 August 2006. The Applicant filed and served an affidavit sworn 1 February 2007. Attached to that affidavit were a number of documents. It is only relevant to refer to the first document which I take to be submissions by the Applicant. The other documents in my view should not be relied upon as they seek to provide further factual information and/or appear to be copies of documents already in the Court Book.
Background
The background in this matter has been accurately set out in the First Respondent's submissions. The Applicant is a male citizen of Pakistan who arrived in Australia on 7 May 2005 on a subclass 572 student visa which had been granted on 10 April 2005. A further subclass 572 visa was granted on 7 June 2005 which was valid until 15 March 2007. The student visa was subject to Condition 8202 in Schedule 8 of the Migration Regulations 1994 (the regulations).
The Applicant enrolled in an advanced diploma of business (marketing) at the St George Institute of Professionals (the education provider). The course commenced on 30 May 2005 and was due to be completed on 31 December 2006.
On 7 October 2005 the education provider sent to the Applicant a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (the s.20 notice).
The s.20 notice (Court Book pp.7-8) stated the Applicant breached Condition 8202 because in the term running from 11 July 2005 to 16 September 2005 he attended only 25 per cent of the contact hours scheduled for his course.
On 13 October 2005 the Applicant attended the First Respondent's Department's office and was provided with a notice of intention to consider cancellation issued pursuant to s.116 of the Migration Act 1958 (the Migration Act).
On 26 October 2005 the Applicant attended an interview with a delegate of the First Respondent and argued that his student visa should not be cancelled. However, the delegate on the same day decided to cancel the Applicant's student visa. The delegate found that during the term from 11 July 2005 to 16 September 2005 the Applicant only attended 25 per cent of classes scheduled and therefore had breached Condition 8202(3)(a) of the regulations which requires at least 80 per cent attendance.
Significantly, the delegate found the Applicant's non-attendance was not due to exceptional circumstances.
On any view of the material it would seem that the issue of "exceptional circumstances" remains the issue of concern to the Applicant even though the Applicant has challenged the accuracy of the attendance records of the education provider.
It is noted that the Tribunal forwarded a letter dated 22 December 2005 to the education provider seeking information about the Applicant's attendance (Court Book p.49). It is clear from that letter that the Tribunal in significant detail sought further information from the education provider in relation to the Applicant's attendance.
By a letter dated 29 December 2005 (Court Book pp.57-74) the education provider responded to the Tribunal's letter by providing further details together with attachments. In its decision the Tribunal refers to the reply in the following terms,
“21.On 22 December 2005 the Tribunal sent the education provider a letter requesting information. A reply was received on 29 December 2005 advising that a ‘P’ on the attendance records means that a student attended less than 50% of the class; stating the applicant advised St George on 23 May 2005 that his mother was ill leading them to issue an SCV but when the applicant was advised there would be no refund his mother’s illness was no longer an issue, he did not withdraw from any subjects; he was not required to attend any course related information sessions or supervised study sessions; there are no final exams, assessment is conducted in class time, usually on a monthly basis and the only assessment the applicant participated in was Test 1 for the subject Determine Record Requirement; he did not present any medical certificates or apply for any leave in Term 3; and his unsatisfactory attendance was regularly raised with him – a letter was sent on 6 August 2005 and he was telephoned every Wednesday but 96% of his calls went unanswered as did messages left with his room mates.”
On 6 January 2006 the Tribunal sent the Applicant the first of two s.359A letters inviting the Applicant to provide comment on the attendance records provided by the education provider, further the Applicant was requested to provide any information in support of a claim for exceptional circumstances (Court Book pp.82-97). Specifically in its letter the Tribunal states,
“If you have not complied with condition 8202 of your student visa, the Tribunal can take into account exceptional circumstances that were beyond your control that adversely affected your attendance. Your are invited to provide information and evidence of any such circumstances.” (sic)
On 25 January 2006 the Tribunal received an email from the Applicant's adviser claiming that there were several reasons for the Applicant's absence from his scheduled classes and also seeking an extension of time to enable information to be obtained from overseas. The Tribunal refused the extension of time request though in a hearing invitation dated 3 February 2006 requested that further information be provided by 4 pm on 20 March 2006.
On 16 February 2006 the Applicant confirmed that he would attend the Tribunal hearing and asked the Tribunal to take evidence from a Mr Peter Collis, a director of the education provider. The Tribunal then requested reasons setting out why it should summons Mr Collis. The Applicant in a reply provided on 17 February 2006 claimed that Mr Collis could give evidence to establish that Mr Collis was aware of the exceptional circumstances the Applicant faced, had a duty to advise and assist the Applicant and failed to do so, and had advised the Applicant that he did not have to attend classes. The Tribunal declined to call Mr Collis as it found the questions raised could be addressed through correspondence with Mr Collis.
On 22 March 2006 the Applicant's adviser requested the scheduled hearing be postponed because the adviser was recovering from surgery. The Tribunal hearing was then rescheduled to 7 April 2006.
The Applicant appeared before the Tribunal and gave evidence and advised the Tribunal about his accommodation difficulties, his disappointment with the course he was enrolled in, disappointment about services provided by the education provider and also referred to his mother's illness. He further claimed he had incorrectly been recorded as absent for some classes that he in fact attended. He submitted further documents concerning his enrolment and the accommodation difficulties to support the claims. The Applicant's brother gave evidence by telephone about the Applicant's mother's illness.
The Applicant also provided the Tribunal with a statutory declaration, a list of addresses and dates for which he resided at those addresses and a class test which he said evidenced his attendance at that class. On 18 April 2006 the Tribunal received a bank statement, a copy of the Applicant's confirmation of enrolment and a letter from the Applicant's adviser. On 2 May 2006 the Tribunal received further bank statements and information about the Applicant's financial circumstances. In part these documents were annexed to the recent affidavit of the Applicant referred to earlier in this judgment.
The Tribunal again wrote to the education provider on 24 April 2006 seeking comment about the Applicant's claims. The education provider replied by a letter dated 25 April 2006 (Court Book pp.161-182).
After receiving a reply from the education provider the Tribunal again forwarded a s.359A letter dated 26 May 2006 to the Applicant inviting comments. Specifically reference was made to a number of matters inviting comment from the Applicant as follows:-
·His attendance in term 3 of 2005 was 25 per cent.
·He did not attend any classes on Wednesday.
·The teacher, Ms Cramer-McKenzie was only employed to teach Wednesday afternoons.
·The Applicant told the education provider he could not attend Wednesday classes because he had to work.
·The test paper he provided was easily obtainable.
·Mr Collis did not give him permission not to attend classes.
The issue of his unsatisfactory attendance was raised with him by the education provider. He informed the education provider on 28 August 2005 that he had changed his address, but he told the Tribunal that he did not move there until 18 September 2005.
The Tribunal brought to the attention of the Applicant the requirements of Condition 8202 including the attendance requirement. Again, the Tribunal invited the Applicant to comment on his claims of exceptional circumstances and noted that it had evidence to indicate the Applicant had access to between $8,000.00 to $10,750.00 at a time when he claimed to have accommodation difficulties.
A response was received from the Applicant's adviser by a letter dated 31 May 2006 (Court Book pp.218-222). That response joined issue with the matters raised by the education provider. The Applicant specifically disputed that he did not attend any Wednesday classes, challenged the assessment of his attendance at 25 per cent, claimed that Ms Cramer-McKenzie had swapped classes with another teacher. He denied that he could not attend class because he was working and stated he was not employed during that time and claimed that he was handed papers in class rather than obtaining them from others. He challenged the statement from Mr Collis concerning permission for the Applicant to be excused from class. He further sought to argue that it was not brought to his attention that his unsatisfactory attendance was passed onto him. Whilst acknowledging the requirement to attend 80 per cent of scheduled classes, he made significant allegations against the education provider and the records relied upon.
On 5 June 2006 the Applicant forwarded another letter to the Tribunal where he reiterated many of his previous claims.
The Tribunal decision
In its decision the Tribunal made reference to the cancellation power pursuant to s.116 of the Migration Act and the relevant regulation in Condition 8202 of Schedule 8 of the regulations and specifically regulation 2.43(2)(b)(ii). The Tribunal considered whether the Applicant had breached Condition 8202 and whether it was satisfied that the non-compliance with that condition was not due to exceptional circumstances beyond the Applicant's control.
Specifically in its decision the Tribunal noted that the term "exceptional" was not defined in the legislation. It noted however, that it had been subject to a judicial interpretation and specifically relied upon the decision of the Federal Court in Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 229 (Chen), where Lander J at [111] when considering the operation of s.137L of the Migration Act stated that:
“111 Any circumstances that are exceptional, in the sense that they are unusual and not of the applicant’s own making, but beyond the applicant’s control, may provide a reason for the Minister revoking the cancellation.”
A further reference was made to another Federal Court decision of Kiefel J in Hatcher v Cohn [2004] FCA 1548 at [49] (Hatcher). The court in that case stated "exceptional" circumstances in general terms are those circumstances which are unusual or out of the ordinary.
The Tribunal made a finding of fact that the Applicant was enrolled in a course beginning on 30 May 2005 and finishing on 31 December 2006. As the course ran for at least a semester the Applicant, it concluded, had to attend at least 80 per cent of the contact hours scheduled for each term of the course.
The Tribunal was not satisfied the Applicant had attended his course for at least 80 per cent of the scheduled contact hours for the term 11 July 2005 to 16 September 2005. It calculated the number of scheduled hours in accordance with regulation 1.03 in the term from the education provider's timetable and found there are 180 scheduled contact hours. It then took into account the education provider's advice that the Applicant was not required to attend at information sessions or supervised study sessions and that examinations were held during scheduled teaching classes.
It further took into account that there were no classes scheduled between 12 to 16 September 2005. The Tribunal found that the education provider kept attendance records and relied on those records to calculate the Applicant's attendance. It noted the codes used by the education provider and that the records indicated the Applicant did not attend classes on Wednesday. After undertaking the calculations based on the records the Tribunal found the Applicant attended 23.75 per cent of scheduled classes.
It rejected the Applicant's submissions that the attendance records were inaccurate. It did so after considering the possibility of human error and the copy of the test the Applicant had provided. It considered the Applicant's claims about his attendance at classes conducted by Ms Cramer-McKenzie. Ultimately it was satisfied the education provider's records were accurate.
After that significant finding the Tribunal then proceeded to make a finding in the alternative in the following terms,
“52. However, in the alternative, if the Tribunal accepted that the applicant attended half of the scheduled Wednesday classes, this would only increase his attendance by 31.5 hours, making a total of 74.25 hours out of the scheduled 180, or 41.25%. This is still below the 80% required by condition 8202.”
The Tribunal proceeded to consider the issue of "exceptional circumstances".
It was satisfied that the Applicant's non-compliance of Condition 8202(3)(a) was not due to exceptional circumstances beyond the Applicant's control. It dealt with the Applicant's claims about accommodation trouble and acknowledged the Applicant was in a distressed situation and those circumstances might be seen to be exceptional. It found however, that they were not circumstances beyond the Applicant's control. It noted the Applicant had four free days a week when he did not have classes which would have provided an opportunity for him to search for accommodation and further noted the funds available to the Applicant which it had referred to in its second s.359A letter. It found it was not unreasonable for the Applicant to spend some of his money to pay for temporary accommodation while he looked for permanent accommodation. Specifically it stated the following:-
“56. In respect of the applicant’s homelessness and difficulties finding accommodation during the period 21 July to 16 September 2005, the Tribunal accepts that on 21 July 2005 he found himself with nowhere to live. The Tribunal also accepts his account of where he stayed until his move into Mason Street in Newport around 18 September 2005. Apart from the period he was in Shepparton (21 July to 2 August 2005), his accommodation was in the suburbs of Melbourne. According to the applicant he missed classes because he was searching for accommodation. The Tribunal acknowledges the applicant was in a distressing situation and these circumstances may be seen as exceptional. However it does not find that these circumstances were beyond his control. This is because he had four days per week (Thursday to Sunday) with no scheduled classes to search for accommodation in Melbourne and he returned from Shepparton twice to also undertake this search. The Tribunal is of the view that he could have organised his time to search for accommodation during the days he had no classes and outside of class time. Furthermore, his bank statements show he had access to at least $8,000 at that time and his representative has submitted his parents also sent him $500 per month. The Tribunal does not believe it unreasonable that he should use some of these funds to pay for temporary accommodation in or around Melbourne so that he had a secure base from which to attend classes and look for accommodation during non-class time. Although his accumulation of luggage may have made it difficult to stay in a shared room at a backpacker hostel, the Tribunal does not see that this would have prevented him from staying at a hotel for 6-8 weeks. In addition, given that he stayed at various acquaintances’ during this period, no reason was given as to why he could not have left his luggage at one of these places.”
The Tribunal then noted the Applicant's claims about lack of assistance from the education provider and alleged unprofessional and unethical conduct and stated, "the Tribunal does not find that such conduct, if it occurred, would have prevented the Applicant from attending classes."
Significantly the Tribunal found that "the Applicant's non-compliance was not due to exceptional circumstances beyond his control."
Grounds of the application
As indicated earlier, the grounds relied upon by the Applicant are not particularised. Before this court the Applicant sought to argue the matters raised before the Tribunal and otherwise complained that the Tribunal had not properly considered the attendance information and had incorrectly relied upon the education provider's records. Further, the Applicant in the document attached to his recent affidavit which I have referred to as written submissions, sought to provide further details concerning his attendance and otherwise referred to the claims set out earlier in relation to the conduct of the education provider and one of its staff.
By inference it would appear that the Applicant claims the Tribunal erred in its interpretation of "exceptional circumstances" and otherwise erred in its interpretation of Condition 8202.
The First Respondent's submissions
It was submitted on behalf of the First Respondent that the grounds are not properly particularised and do not reveal any jurisdictional error. It was argued that the Tribunal correctly made findings of fact in relation to the attendance records and that those findings were factual findings. It was noted that even if the Applicant attended half the classes on Wednesdays, he still would not have met the 80 per cent requirement of Condition 8202. Indeed, it was submitted that even if the Applicant attended all of the Wednesday classes, then that would still only result in a 58.75 per cent attendance rate.
Any suggestion by the Applicant that he was not provided with an appropriate warning by the education provider, it was submitted, is irrelevant. Other findings by the Tribunal concerning the Applicant's employment were findings of fact which did not reveal any error.
In relation to the question of "exceptional circumstances" the First Respondent submitted that the Tribunal considered all the factors relied upon by the Applicant and reached a conclusion open to it upon the evidence.
Conclusion
In my view a proper reading of the Tribunal's decision and its conclusions set out in some detail earlier in this judgment indicate that it has properly interpreted Condition 8202 and more importantly in this instance has applied the correct authorities when dealing with the question of "exceptional circumstances". It correctly applied the decisions of the Federal Court in Chen and Hatcher.
The Tribunal's assessment of the attendance records was based upon evidence provided by the education provider and it was noted that even if the Tribunal took the most generous view of the Applicant's claims and the Applicant still failed to comply with the 80 per cent attendance requirement of Condition 8202, it was then necessary for the Tribunal to consider whether there were "exceptional circumstances" beyond the Applicant's control which would enable the Tribunal to exercise its discretion in favour of the Applicant. It then proceeded to consider carefully the detailed claims made by the Applicant after giving the Applicant a number of opportunities to provide information. It forwarded quite properly, two very detailed s.359A letters and otherwise made due and appropriate inquiries of the education provider both before and after the hearing.
The conclusions reached by the Tribunal in my view were conclusions reasonably open to it on the evidence free of jurisdictional error. It follows for the reasons given that the Application should be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 5 April 2007
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