Tongburin v Minister for Immigration
[2008] FMCA 644
•4 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TONGBURIN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 644 |
| MIGRATION – Application to review decision of Migration Review Tribunal – cancellation of student visa – whether condition 8202(3)(a) Schedule 8 of the Migration Regulations ultra vires or invalid – whether evidence that education provider kept attendance records – whether failure by Tribunal to comply with s.360 of the Migration Act – whether Tribunal erred in calculating attendance of applicant. |
| Migration Act 1958 (Cth) ss.116, 359, 360 Education Services for Overseas Students Act 2000 (Cth) Acts Interpretation Act 1901 (Cth) s.46 Migration Regulations 1994 (Cth) reg 2.43 Education Services For Overseas Students Regulations 2001 (Cth) |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Chen v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 142 FCR 257 Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 71 Dai v Minister for Immigration and Citizenship (2006) 96 ALD 309 Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 945 Evans v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 306 Hatcher v Cohn (2004) 139 FCR 425 Quan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 764 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 Telstra Corp Ltd v Australian Competition and Consumer Commission (ACCC) No 3 (2007) 99 ALD 268 Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 918 |
| Applicant: | SAOWANEE TONGBURIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2369 of 2007 |
| Judgment of: | Barnes FM |
| Hearing dates: | 3 March & 6 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Counsel for the Respondent: | Ms V. McWilliam |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2369 of 2007
| SAOWANEE TONGBURIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal handed down on 13 July 2007 affirming a decision of a delegate of the first respondent to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 572) (Vocational Educational and Training Sector) visa.
The applicant was granted a subclass 572 visa on 21 July 2005. She commenced a Diploma of Business course at Bridge Business College. Her visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994. At the time her visa was granted condition 8202 was relevantly as follows:
(1) A holder … must meet the requirements of subclauses (2) and (3).
…
(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 contract 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.
Section 116 of the Act is relevantly as follows:
(i) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa;
…
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exists prescribed circumstances in which a visa must be cancelled.
Regulation 2.43 of the Migration Regulations sets out the prescribed circumstances referred to in s.116(3). For student visas in force on or after 8 October 2005 (and it is not disputed that the applicant’s student visa was such a student visa) reg.2.43(2) 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.
On 29 March 2007 a delegate of the first respondent cancelled the applicant’s subclass 572 visa under ss.116(1)(b) and 116(3) of the Migration Act 1958 (Cth) on the basis that she had not complied with condition 8202(3)(a). The delegate had regard to information provided by the Bridge Business College stating that the applicant’s attendance for semester 3 of 2006 was 35.14 per cent of the scheduled contact hours for the semester.
The applicant sought review by the Tribunal. The Tribunal wrote to her under s.359A of the Migration Act on 20 April 2007 inviting her to comment on information that her education provider had advised that in semester 3 of 2006 her attendance rate was 35.14 per cent of the scheduled contact hours of her course and that it had certified that her academic result had been unsatisfactory throughout her course.
The applicant’s migration agent responded by letter of 24 April 2007, referring to the fact that the applicant’s attendance in semesters 1 and 2 of 2006 had been satisfactory. He did not dispute the attendance rate specified for semester 3 and stated that the applicant admitted that due to her illness she had failed to attend the scheduled contact hours of her class as required under condition 8202 in semester 3 of 2006.
He claimed that in semester 3 of 2006 the applicant was unable to attend her classes “due to sickness” as she had been suffering from severe back pain and migraine “beyond her control”. The adviser claimed that the applicant had submitted all her medical reports and advice from treating doctors in relation to her health condition to the Department of Immigration and that she had been studying satisfactorily in 2007.
It is apparent from the material before the Court that the applicant provided the Department with copies of certificates said to relate to her sickness during the relevant period, although the Department recorded in a file note that such medical certificates were not from a registered practitioner.
The applicant attended a Tribunal hearing. The transcript of the hearing is in evidence before the Court. In its reasons for decision the Tribunal recorded (correctly) that at the hearing the applicant affirmed that her low attendance in the second half of 2006 had been due to ill health from migraine headaches and back pain and that there was no other reason for her absences in the relevant semester.
Tribunal decision
The Tribunal outlined the relevant provisions of the Migration Act and Regulations. It observed that the term “exceptional” in Regulation 2.43(2)(b)(ii)(B) was not defined by the legislation, but that in other parts of the Act it had been interpreted as meaning circumstances that were “unusual and not of the applicant’s own making, but beyond the applicant’s control” (see Chen v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 142 FCR 257 at [111] per Lander J). The Tribunal considered these remarks and the following comments of Kiefel J in Hatcher v Cohn (2004) 139 FCR 425 at [49] (adopted in Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 918 per Walters FM) to be relevant to the issue before it:
[e]xceptional circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words “exceptional circumstances” may apply to a variety of circumstances and no definition which limits their application should be adopted, unless their application appears from the relevant statutory provision.
The Tribunal observed that condition 8202(3)(a) required a visa holder to attend a relevant course for at least 80 per cent of the “contact hours” scheduled and that contact hours was defined in reg. 1.03 to mean the “total number of hours in the period for which students enrolled in the course are scheduled to attend classes for teaching purposes, course-related information sessions, supervised study sessions and examinations”.
On that basis the Tribunal found that to reach a state of satisfaction as to whether the applicant had been in attendance for 80 per cent of the contact hours, it must have regard to the total number of hours in the semester for which the applicant was scheduled to attend for the specified purposes in reg.1.03. It observed that a percentage figure based upon the proportion that the total number of days attended bore to the total number of days in the semester would not meet the definition of contact hours (see Quan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 764 at [32] – [33]).
The Tribunal had regard to the College records provided to the Department in relation to the applicant which stated that she had attended for 126 hours of the 360 contact hours of her course in the semester from 26 June 2006 to 8 December 2006 and that this equated to an attendance rate of 35 per cent. The Tribunal also had regard to the fact that the footnotes to the education provider’s written advice clarified that the requisite 360 contact hours in a semester derived from 20 course hours per week for 18 weeks.
The Tribunal addressed the “medical” certificates provided to the Department, albeit some of them did not appear to be issued by registered medical doctors. It found that they “explained” a total of
29 days’ absences over the semester but also that the applicant had provided no evidence that even if such “explained” absences were taken into account her attendance in the relevant semester would meet the 80 per cent required under condition 8202. The Tribunal continued:
Assuming that each week’s 20 course hours are spread evenly over the week, the Tribunal has assessed that the applicant’s attendance over the relevant semester, when 29 days “explained absences” are taken into account, would still be significantly less than the requisite 80 per cent. Based on the evidence, the Tribunal is not satisfied that the applicant attended for at least 80 per cent of the contact hours scheduled for her course over the semester running from 26.06.06 to 8.12.06. The Tribunal is therefore not satisfied that the applicant has complied with condition 8202(3)(a).
Hence the Tribunal was satisfied that the applicant had not complied with condition 8202 and that the ground for cancellation in s.116(1)(b) existed. In light of the applicant’s affirmation that there was no reason other than ill health for her absence the Tribunal was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. It found, in accordance with s.116(3) of the Act, that such circumstances were prescribed circumstances in which the visa must be cancelled and accordingly affirmed the decision to cancel the applicant’s visa.
This application
The applicant sought review by application filed in this Court on 1 August 2007. She filed an amended application on 25 October 2007. The applicant was represented by counsel. Written submissions were filed for each of the parties before the first hearing date of 3 March 2008. However it became apparent in the hearing on 3 March 2008 that the grounds sought to be relied on by the applicant as addressed in written submissions were not the same as those in the amended application. The respondent’s written submissions had, appropriately, addressed the grounds in the amended application. I considered that it was appropriate for the applicant to be given the opportunity to file a further amended application and that her counsel should clarify precisely what grounds were relied upon by the applicant. Both parties were given the opportunity to file and serve further written submissions. The hearing was adjourned.
The applicant filed a further amended application with leave of the Court on 15 March 2008 and also further written submissions. The first respondent then filed written submissions in response. When the hearing resumed both parties made oral submissions addressing the grounds in the further amended application.
There are four grounds in the further amended application. However counsel for the applicant informed the Court that the applicant did not seek to rely on ground 4.
Whether condition 8202(3)(a) requires certification by the education and provider and is invalid and ultra vires
It is convenient to consider ground 2 first. It is as follows:
The second respondent committed serious jurisdictional error in the interpretation of Condition 8202, in particular sub-clause 8202(3)(b).
Particulars
As held by the majority in Dai v Minister for Immigration [2007] FCAFC 199 the applicant does not control the processes so there can not be breach by the applicant. The condition is same or similar as in the Dai matter. The applicant contends that there is no certification or the certification is erroneous and thus invalid.
The applicant contends that the Tribunal ought to have found condition 8202 as invalid and ultra vires such that it was not possible for the applicant to comply with the condition which is invalid / uncertain / ultra vires the empowering legislation and any purported cancellation under section 116 is invalid pursuant to the purported breach of both Conditions 8202(3)(a) and 8202(3)(b).
As stated in Dai v Minister for Immigration [2007] FCAFC 199 at [30], there has to be positive certification for there has (sic) to be compliance but the negative certification does not amount (at CB 52) to non-compliance with condition 8202. The applicant submits that the cancellation on basis of non-compliance is invalid.
The Tribunal has certified in the negative fashion which the Court stated could not amount to non-compliance (majority in Dai above).
Reliance was placed by the applicant on the decision of the Full Court of the Federal Court in Dai v Minister for Immigration and Citizenship [2007] FCAFC 119. The form of condition 8202 considered in Dai was the same as that applicable in this case. The appellant’s student visa was cancelled on the basis that she had failed to comply with subclause 8202(3)(b) which is set out in paragraph [2] above and is met if “the holder achieves an academic result that is certified by the education provider to be at least satisfactory …” (emphasis added).
The Tribunal affirmed the delegate’s decision. The appellant sought judicial review. At first instance the application was dismissed (see Dai v Minister for Immigration (2006) 96 ALD 309). On appeal an issue arose as to the construction of condition 8202 that would activate the power of the Minister to cancel a visa under s.116(3) given that “non-compliance with the condition, and the trigger for cancellation, arises upon non-certification of satisfactory performance rather than upon certification of unsatisfactory performance” (North J at [8]).
As his Honour put it: “The issue that emerges is how could a visa holder comply or fail to comply with the condition if required to provide certification, over which the visa holder has no control” (North J at [8]).
North J found (at [17] – [20]) that reg 2.43(2) contemplated that it was the visa holder who must comply with the condition, but that as drafted condition 8202(3)(b) required an act of the education provider i.e. certification by the education provider that the academic result of the visa holder was at least satisfactory. His Honour observed that the fact that there was no statutory right conferred on the visa holder to compel the education provider to furnish certification highlighted that the visa holder was “given no role to play in the certification referred to in reg 8202” (at [18]). Hence:
There was no act of the visa holder which could satisfy the requirement of condition 8202. The achievement of the academic result was irrelevant unless certified. No matter what the student did or did not do, the absence of a certificate would be fatal.
Thus, there was no way in which the visa holder could not comply with the condition 8202. It follows that it was not possible for the Minister to be satisfied that the visa holder had not complied with condition 8202. It further follows that the power of the Minister to cancel the appellant’s visa under s.116(3) was not engaged. (at [19] – [20])
On this basis his Honour remitted the matter for reconsideration by the Tribunal. While expressed generally, it is apparent from the whole of North J’s judgment that the only aspect of condition 8202 in issue was condition 8202(3)(b). This is the only part of the condition which requires certification. It was the basis for cancellation of the student visa in issue and the Tribunal decision.
In Dai Gyles J agreed that the appeal should be allowed. His Honour noted that while there were legislative provisions in the Education Services for Overseas Students Act 2000 (Cth) and Regulations requiring education providers to keep records, there was no “statutory obligation upon the education provider to certify results or any means of enforcing any such obligation” (at [27]). Gyles J was of the view that while a scheme could be devised “including a properly framed condition that depended upon a visa holder holding certification of a result by the education provider” (at [28]), this was not such a scheme or such a condition (at [30]). Rather his Honour found that the certification was the “gist” of the condition which was “not framed so as to expressly impose an obligation upon the visa holder to hold or procure certification – certification is rather a free standing requirement. Compliance depends upon the existence of a positive certificate. Non-compliance is therefore the absence of a positive certificate rather than the existence of a negative certificate.” (at [30]).
Gyles J observed that, as drafted, the condition did not impose an obligation on the visa holder to procure or hold certification at a particular time (at [32]) and that the records kept by an education provider did not amount to “certification” or the absence of certification within the meaning of condition 8202, there being “no legal interaction between the records kept by an education provider and condition 8202.” (at [33]). In reaching this conclusion his Honour referred with approval to what was said by the Full Court of the Federal Court in Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 71 at [35]:
…The condition was to be satisfied only by the requisite certificate on the part of the education provider. There is nothing in the language of condition 8202 that invites a consideration of the internal processes of the education provider which has led to a certificate or refusal to certify for a satisfactory academic result.
Gyles J held not only that failure by the appellant to comply with the condition had not been established, but also that “the validity of condition 8202” was affected by the conclusion he had reached.
His Honour stated at [34]:
The disconformity between s 116(1)(b) (and reg 2.43(2)(b)), on the one hand, and condition 8202 subclause (3)(b), on the other, is also reflected within condition 8202 itself. Subclause (1) obliges the visa holder to meet the requirements of subclause (3)(b) in those cases to which it is applicable. In my opinion, the form of condition 8202 that was in force at the time relevant to this case was ultra vires the legislation, at least in circumstances where subclause (3)(b) came into play. On pain of cancellation of the visa, it compelled compliance by the visa holder with requirements that were not practicable or certain.
His Honour concluded at [37]:
In my opinion, condition 8202 as it stood in 2004 was both uncertain and unreasonable in the sense explained in the authorities and so was not authorised by the legislation.
Again it is apparent that the part of condition 8202 addressed was subclause (3)(b) which related to certification of academic performance.
Edmonds J dissented in Dai, finding that regulation 8202(3)(b) was not ultra vires and did not impose a requirement on the visa holder that was not capable of compliance by the visa holder.
While the applicant’s written submissions appeared to suggest that the Tribunal in this case had relied on non-compliance with condition 8202(3)(b) in cancelling the applicant’s visa, in oral submissions counsel for the applicant conceded that the Tribunal relied only on condition 8202(3)(a). It was nonetheless submitted that Dai was relevant. Initially it seemed to be suggested that there were obiter remarks in Dai of relevance to this case. It was subsequently clarified that the submission was that the approach taken by North and Gyles JJ in Dai to condition 8202(3)(b) was applicable to condition 8202(3)(a), on the basis that the subclause (3)(a) condition operated in a similar way to subclause (3)(b). This was said to be so despite the fact that there was no provision for certification as such in condition 8202(3)(a), but rather a reference to an education provider keeping attendance records.
The cancellation in issue in Dai was based on a finding of a failure to comply with condition 8202(3)(b). In contrast the cancellation in this instance was based only on condition 8202(3)(a). Subclause 3(a) is not analogous to paragraph 3(b) of condition 8202. Rather, as counsel for the first respondent submitted, a precondition to the application of condition 8202(3)(a) is that the visa holder’s education provider keeps attendance records. In other words the condition imposed in condition 8202(3)(a) would not arise if the education provider did not keep attendance records. However once this precondition is met, the focus of condition 8202(3)(a) is on the Tribunal’s satisfaction as to the visa holder’s attendance, not on any certification by an education provider.
Compliance with condition 8202(3)(a) is not dependent on the act of the education provider. The requirement imposed on the visa holder is attendance for at least 80 per cent of the contact hours scheduled for the relevant period. There is a way that the visa holder can comply with condition 8202. Thus it is possible for the Minister (or Tribunal) to be satisfied that the visa holder has not complied with that part of condition 8202, within s.116 and reg 2.43(2).
The reasoning of North and Gyles JJ in Dai in relation to condition 8202(3)(b) is not applicable to condition 8202(3)(a). As set out above, I note that while at times each of their Honours referred generally to condition 8202, it is clear when reading the judgments in full that what was in issue was condition 8202(3)(b). Gyles J stated that condition 8202 was ultra vires the legislation “at least in circumstances where subclause 3(b) came into play”. His Honour referred with approval to what was said in Cheng in relation to the absence of a legal interaction between the records kept by an education provider and condition 8202, but it is relevant to note that in Cheng the Full Court was also considering only condition 8202(3)(b). In that case the Court referred to the fact that the cancellation of Ms Cheng’s visa “followed from her failure to meet the requirements of subclause 3(b) of condition 8202 of Schedule 8 of the Regulations” (at [35]) before making the point that such condition “was to be satisfied only by the requisite certificate on the part of the education provider.” The requirement of “certification” of the academic result by the education provider is a requirement which appears only in condition 8202 (3)(b).
Insofar as ground 2 in the further amended application refers to an error in interpretation of subclause 8202(3)(b) the Tribunal did not have regard to or “interpret” condition 8202(3)(b). The cancellation of the applicant’s visa was not on the basis of a breach of subclause 8202(3)(b). Rather the only part of condition 8202 in issue was subclause 8202(3)(a). No jurisdictional error is established on that basis.
Insofar as it is contended for the applicant that condition 8202 (or part of it) is invalid and/or ultra vires, I am not satisfied that Dai establishes that the whole of 8202 (including subclause 8202(3)(a)) is ultra vires the legislation. Neither North J nor Edmonds J found that condition 8202 was ultra vires, although North J found that there was no way the visa holder could comply with condition 8202 insofar as it required “certification” by the education provider. While Gyles J did find that the validity of condition 8202 was affected by the conclusion that he had reached, that conclusion related only to the requirement of certification in condition 8202(3)(b), a requirement not to be found in condition 8202(3)(a). His Honour’s views as to the uncertainty of condition 8202 also related only to circumstances in which subclause (3)(b) came into play.
There was no suggestion by the applicant that if condition 8202 was ultra vires the legislation where subclause (3)(b) came into play, that subclause could not be severed, consistent with s.46 of the Acts Interpretation Act 1901 (Cth) (see Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 945 and on appeal at (2003) 135 FCR 306 and Telstra Corp Ltd v Australian Competition and Consumer Commission No 3 (2007) 99 ALD 268 at [50] per Bennett J). Rather, counsel for the applicant contended generally that condition 8202(3)(a) was analogous to condition 8202(3)(b) and hence invalid or ultra vires on the same basis. However subclause 3(a) does not suffer from the uncertainty or unreasonableness identified in subclause 3(b) by Gyles J at [34] – [37] in Dai. It has not been established that it compelled compliance by the visa holder with “requirements that were not practicable or certain” (Dai at [34]). The attendance obligation was imposed on the visa holder provided the pre-requisite or condition precedent that the education provider kept attendance records was met. Compliance was then in the hands of the visa holder, in the sense that achieving the requisite level of attendance was the act of the visa holder. The extent and nature of the requirements that had to be met (attendance for at least 80 per cent of the contact hours scheduled for the specified period) were sufficiently certain, having regard to the definition of contact hours in reg.1.03. Condition 8202(3)(a) is not so “vaguely expressed that either its meaning or its application is a matter of real uncertainty” (cf Kitto J in Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 at 70 and see Dai at [36] per Gyles J). Given that the obligation under condition 8202(3)(a) arises only where an education provider keeps attendance records and that the requisite attendance is expressed as a percentage of total “contact hours” in a specified period (and not as a more vaguely expressed requirement) such condition has not been shown to be uncertain in either expression or operation.
The fact that in assessing whether the applicant had provided an “explanation” for absences based on illness the Tribunal endeavoured to assess the relevance of 29 days “explained” absences in considering reg.2.43(b)(ii)(B) does not establish that condition 8202(3)(a) involved some “negative certification” by the decision-maker such as to establish that the condition could not be complied with by the act of the visa holder as the applicant contended.
The information from the education provider which calculated the applicant’s attendance for semester 3 in 2006 as 35.4 per cent does not constitute a “negative certification”. It is the case that the education provider also provided the Department with a document headed “student transcript” issued 16 January 2007 which described the applicant’s academic process as “un-satisfactory” (sic) while at the same time certifying that she had “successfully completed” nine modules from the Diploma of Business Studies. However her visa was not cancelled on the basis of a failure to comply with condition 8202(3)(b) (which would have raised the issues considered in Dai). Nor did the Tribunal affirm the cancellation decision on the basis of a failure to comply with condition 8202(3)(b). Hence the cancellation was not on the basis of such “negative” advice from the education provider as contended for the applicant.
Hence it has not been established that the Tribunal fell into jurisdictional error in interpreting condition 8202. It was not required to interpret or apply subclause 8202(3)(b). “Certification” in the sense required by subclause 8202(3)(b) was not in issue under subclause (3)(a). As discussed below, it was open to the Tribunal to be satisfied on the basis of the material provided to the Department by Bridge Business College that the visa holder’s education provider kept attendance records. Hence the pre-requisite to the operation of subclause (3)(a) was met. Thereafter the requirements of that condition – as to attendance for at least 80 per cent of the contact hours scheduled – were capable of being met by a visa holder. The reasoning in Dai does not compel a conclusion that the whole of condition 8202, including subclause (3)(a), is invalid and ultra vires so that the cancellation under s.116 was invalid.
No jurisdictional error is established on the basis contended for in ground 2.
Whether no evidence that attendance records kept by education provider
Ground 1 of the further amended application is as follows:
The Tribunal misapprehended its task and misapprehended the evidence to be taken into account thereby failing to take into account a relevant consideration and thus erring in law amounting to jurisdictional error, namely there was no evidence that Bridge Business College had in fact kept proper records of attendance and no attendance record such as attendance register was in fact provided to the Tribunal make (sic) assessment of the attendance to assess compliance with condition 8202(3)(a) and thus not open to the Tribunal to make finding on breach of Condition 8202(3)(a).
Particulars
The applicant contends that document provided by the College at CB 49 – 51 is not attendance register as it purports to be and that there is no evidence provided by the College to properly assess the breach of Condition 8202(3)(a). The Tribunal committed jurisdictional error by asserting it did have the evidence and proceeding to make assessment of breach of sub-clause 8202(3)(a). No attendance register was before the Tribunal or any copy ever provided to the applicant.
This ground involves a contention that there was no evidence before the Tribunal that Bridge Business College (the applicant’s education provider) kept attendance records. It was submitted that the college had failed to provide any attendance register that it had kept in relation to the applicant to the Department or Tribunal, as the document provided by Bridge Business College to the Department was not a “register of attendance”.
It was submitted that as no attendance register was provided to the Tribunal it was inappropriate for it to assess that there had been non-compliance with subclause 8202(3)(a). Counsel for the applicant submitted that there was no evidence to enable the Tribunal to make such an assessment. Issue was also taken with the fact that no register of attendance was provided to the student to enable her to make a “meaningful” response.
It was also contended that the Tribunal had attempted an “averaging” of figures provided by the College, without attempting to look at the register to determine what classes in fact had not been attended by the applicant and that such averaging was wrong in law.
It was submitted that the circumstances were such as to constitute jurisdictional error consistent with the approach in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 cited in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19].
It was further submitted that the comments of the court in Dai were applicable to the breach of condition 8202(3)(a), being related to condition 8202 generally. In particular it was contended that compliance or non-compliance (the reporting aspect) could not be controlled by the applicant if the information provided by the college was considered to be a register. This submission has been addressed above. The keeping of records by the education provider is a prerequisite to the operation of condition 8202(3)(a). If such records are not kept, that aspect of condition 8202 would not apply to the visa holder’s visa. However the existence of such records does not mean that compliance with condition 8202(3)(a) cannot be controlled by the visa holder once it comes into play, as such compliance depends on the visa holder’s attendance – not on certification by the education provider. Once the prerequisite is satisfied, it is then for the decision-maker to determine whether he or she is satisfied that the holder attends for at least “80 per cent of the contact hours scheduled” (in this instance as the course ran for at least a semester “for each term and semester of the course”).
The precondition to the operation of condition 8202(3)(a) on a visa held by a visa holder is that the visa holder’s education provider “keeps attendance records”. This is a matter on which the decision-maker must be satisfied. In this case the college attended by the applicant provided documentation to the Department in response to a request which sought details of the student’s actual attendance. The request included a table on which actual attendance and attendances including any medical certificates provided could be recorded by the College with a request that the education provider attach further papers if it had a different term structure. The form sought information on whether medical certificates had been provided to the college and, if so, requested copies of such medical certificates. In relation to attendance, the request from the Department was as follows: “Please provide attendance (percentage rate) for each term/semester as well as the total cumulative attendance. Please provide actual attendance, as well as attendance once medical certificates have been considered”.
The form also sought information as to the commencement and end date for each reported period, the first and last date attended by the applicant as well as information if the person was no longer enrolled. In addition the form sought information on academic performance and the issue of warning notices and any further comments.
In response to this facsimile request dated 15 December 2006, Bridge Business College sent information by facsimile transmission to the Department dated 16 January 2007 in relation to the applicant referring to her “low attendance sem 3” and her unsatisfactory academic progress throughout the course. A number of documents were provided, including a document headed “Attendance rate and breakdown” that set out the applicant’s attendance for specified terms and semesters. The applicant’s attendance for semester 1 in the second half of 2005 and semester 2 in the first half of 2006 was shown on the basis of total hours as well as expressed as a percentage (of above 80 per cent).
The information in relation to semester 3 (from 26 June 2006 to
8 December 2006) was set out on two bases, explained by the notes provided by the College. The notes stated that the College “calculates attendance and monitoring on a semester basis, this is a new development that has been implemented since the College came under new management in December 2005”. It was explained that a semester was for 26 weeks and that as there were intakes every four weeks the semester commenced when a student commenced his or her course.
It was explained that “previous to the semester structure being introduced the College calculated attendance over a 4 week block that coincided with the intake dates”. The table provided showed “the older 4 week structure alongside the newer semester structure”. Under the older
4 week structure “the percentage attendance was calculated over
80 hours (4 weeks x 20 hours per week)”, whereas under the newer semester system (the basis on which attendance was calculated for semester 3 of 2006) it was explained that there were “18 weeks of study in a semester” and that the attendance calculation was as follows: “18 weeks x 20 hours = 360 hours” and that “A student must complete 360 hours of study over the course of the semester to receive 100% attendance”.This information, which explained that the college calculated attendance and monitoring on a semester basis and explained the basis for the calculation in relation to the student in question, was information on which the Tribunal could be satisfied that the education provider “keeps attendance records” as a prerequisite to the operation of condition 8202(3)(a). The fact that the College did not supply the Department or the Tribunal with its underlying source documentation for the attendance rate and breakdown is not such as to establish that the Tribunal erred in proceeding on the basis that the precondition was met so that 8202(3)(a) applied to the student visa in question.
Moreover the document supplied by the College provided sufficient evidence for it to be open to the Tribunal to assess whether the applicant had attended “for at least 80 per cent of the contact hours scheduled”. The method of calculation adopted by the College and by the Tribunal referred to contact hours (as opposed to days of attendance) and as such the circumstances are distinguishable from those in Quan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 764 at [32] – [40].
The material provided by the College in relation to semester 3 of 2006 calculated both percentage contact hours and total hours of attendance for each four week period and for the whole of the semester and on the basis of the applicant’s total attendance of 126 hours the college calculated that her actual attendance in semester 3 of 2006 (given that attendance of 360 hours per semester constituted 100 per cent attendance) was 35.14 per cent of the hours of study scheduled for the semester. The College also provided information that as at 18 October 2006 the applicant’s attendance had been 49.44 per cent and that she had been reported at this time, after the College had sent out four attendance warning letters and/or emails. Thus the information provided was such as to enable the decision-maker not only to be satisfied that the education provider kept attendance records but also to calculate whether the visa holder had attended for at least 80% of the contact hours scheduled for the semester in issue.
There is no requirement in condition 8202(3)(a) that the education provider provided a document described as a “attendance register” to the Department or Tribunal. There was sufficient evidence before the Tribunal to enable it to assess whether there was compliance with condition 8202(3)(a) by the student.
It was open to the Tribunal to find that it was satisfied that the applicant had not complied with condition 8202 in the manner that it did. Indeed, in the Tribunal hearing the applicant conceded that she had failed to comply with the 80 per cent attendance rate required by condition 8202(3)(a). This is apparent from the transcript of the Tribunal hearing annexed to the affidavit of John Douglas Morgan Sheehy sworn on 17 March 2008 and filed on 16 April 2008. The Tribunal asked the applicant whether she accepted that her attendance was not at the 80 per cent required by condition 8202. She replied “yes”.
Moreover the Tribunal wrote to the applicant on 20 April 2007 under s.359A of the Act attaching the information provided to the Department by Bridge Business College and inviting her to comment in writing on the advice from the education provider that her attendance in semester 3 of 2006 was 35.14 per cent of the scheduled contact hours for her course. In response the applicant, through her migration agent, took no issue with this calculation. She admitted that she had failed to attend the scheduled contact hours as required under condition 8202 in semester 3 of 2006, but raised the issue of her ill health and “medical reports” submitted to the Department. No failure to raise any dispositive issue in the hearing in accordance with s.360 or to comply with s.359A (insofar as that may have been intended to be contended for by the applicant) is established.
Insofar as counsel for the applicant submitted that it was relevant to have regard to what days were attended by the applicant during the semester in issue, I note that the requirement of condition 8202(3)(a) relates to attendance for a percentage of the “contact hours scheduled” (the basis on which the attendance had been calculated by the college).
While “medical” certificates were provided in relation to the applicant’s absence on particular days, such medical certificates do not demonstrate “attendance” in terms of condition 8202(3)(a) as seems to be suggested by the applicant. Rather they are relevant in relation to whether non-compliance was due to exceptional circumstances beyond the applicant’s control, as provided for in reg.2.43(2)(b(ii)(B). The Tribunal calculated that, giving the applicant the benefit of the doubt in relation to the certificates provided to the Department (some of which appeared not to have been issued by registered medical doctors), such certificates explained a total of 29 days absences over the relevant semester (in fact it seems that this calculation may have been unduly generous to the applicant). However it found that the applicant had provided no evidence that even if all of what were described as “explained” absences were taken into account, her attendance in the relevant semester would meet the 80 per cent required under condition 8202. In other words, even if the medical certificates “explained” certain absences, the Tribunal was satisfied that the applicant’s attendance would still fall below the requisite 80 per cent of scheduled contact hours and as the applicant had affirmed at the hearing that there was no reason other than ill health for her absences, the Tribunal was satisfied that the non-compliance (even accepting the medical certificates) was not due to exceptional circumstances beyond the applicant’s control. Any complaint about the basis for the Tribunal’s calculations seeks impermissible merits review.
Insofar as the applicant contends that the Tribunal erred in somehow “averaging” the attendance and hence that there was a constructive failure to exercise jurisdiction, there is nothing in the material before the Court to indicate that the Tribunal “averaged” attendance in a manner giving rise to a jurisdictional error. Rather it adopted calculations based on the attendance requirements of the education provider, which required 20 hours attendance in each of 18 weeks. It is apparent from the documentation provided by the education provider that in calculating attendance the education provider had regard to the actual hours attended in determining that the applicant had attended for 126 hours of the 360 contact hours of her course in the relevant semester. It was this figure that provided the basis for the assessment of an attendance rate of 35.14 per cent. The Tribunal did not err in the manner in which it determined whether the “medical” certificates explained enough absences to account for the extent to which the applicant’s actual attendance fell short of the requisite 80 per cent as contended. Indeed it took into account all such certificates over the full semester despite the fact that some related to the later part of the semester. The applicant had given evidence at the hearing that she had stopped going to the college after she received a letter saying her attendance was 50 per cent because she was intending to change colleges, consistent with the college record that her attendance was nil for one third of the semester from 16 October 2006 to 8 December 2006. On the evidence before it the Tribunal considered whether the 29 days absences could constitute evidence to “explain” sufficient absences, based on an assumption that each week’s 20 course hours were spread evenly over the week. The Tribunal finding that, based on the evidence before it, it was not satisfied that the applicant attended for at least 80 per cent of the contact hours scheduled for the semester was not dependent on the calculation of “explained” absences.
The Tribunal did not err in considering whether the certificates provided by the applicant provided an explanation for sufficient absences “due to exceptional circumstances beyond the visa holder’s control” such that, had she not been “ill”, her attendance would have been at the requisite level of 80 per cent of contact hours scheduled. On the evidence before it the Tribunal was not satisfied that the applicant’s actual attendance together with absences “explained” by certificates covered 80 per cent of the contact hours scheduled. It was open to the Tribunal to be satisfied that the non-compliance (that is the full extent by which the applicant’s attendance fell short of attendances for 80% of the contact hours scheduled for semester 3 of 2006) was not due to exceptional circumstances beyond her control. No jurisdictional error is established on the basis contended for in ground 1.
Finally I note that an issue arose in the hearing as to whether or not the applicant’s medical certificates had been provided by her to her education provider. It is apparent from the Tribunal hearing that the applicant told the Tribunal that she had not shown her medical certificates to the education provider. This explains the fact that there was no calculation by the education provider of the applicant’s attendance “having regard to” medical certificates which it accepted (as the Departmental form contemplated).
Whether breach of section 360
Ground 3 in the amended application is as follows:
The Tribunal should have found that there was a breach of sections 347, 348 and 360 of the Migration Act.
Particulars
The Tribunal failed to put the basis of cancellation and provide the applicant sufficient opportunity to respond to the unsatisfactory completion aspects of the findings. There has been a constructive failure to exercise jurisdiction in respect of this issue.
The third ground in the further amended application refers to ss.347, 348 and 360. It involves a contention that there was a failure by the Tribunal to put the basis of cancellation to the applicant in the Tribunal hearing and provide her with sufficient opportunity to respond to the “unsatisfactory completion aspects” of the findings. Hence it is said that there was a constructive failure by the Tribunal to exercise jurisdiction.
The applicant submitted that once the Tribunal had obtained the “medical” certificates provided by the applicant, it was incumbent on it to go back to the applicant to request further information in relation to the manner in which it relied on those medical certificates. However the applicant was given the opportunity to comment on the information in relation to her attendance rate under s.359A of the Act. In the course of the Tribunal hearing she was clearly put on notice of the relevance of the medical certificates and the fact that her actual attendance at the college was 35 per cent. Not only did she tell the Tribunal that she had not provided any medical certificates to the College, but she also said that her attendance did not continue to December 2006 as “I got a letter before December that said that my attendance is 50 per cent and after that I didn’t go to the college because I was intending to change the college”. As indicated above, this evidence from the applicant is consistent with the College attendance records which showed both a percentage and total hour attendance of “nil” for two of the six periods in the semester (from 16.10.2006 and 13.11.2006), as the Tribunal discussed with the applicant in the course of the hearing.
The Tribunal also explained to the applicant that it needed to look at the medical certificates and that it would consider whether to take certificates which were not from registered practitioners into account in determining whether it was satisfied that they explained her absences on the specified days and also to make an assessment as to whether, if taken into account, they would “take your attendance rate up to the 80 per cent required by condition 8202”. Clearly this was an indication to the applicant of the need for the Tribunal to have regard to whether it was satisfied that the non-compliance was due to exceptional circumstances beyond the applicant’s control.
There was no obligation on the Tribunal to make further enquiries in the manner that seems to be contended. The Tribunal did not err in the manner in which it approached its task in determining whether or not it was satisfied as required under condition 8202. The contention that the Tribunal erred by “averaging” is not made out in light of the figures actually provided to it by the college and relied on by the Tribunal, in particular the applicant’s attendance for 126 out of 360 contact hours in semester 3 of 2006.
Insofar as this ground takes issue with the manner in which the Tribunal referred to the “medical” certificates (on the basis that they “explained” 29 days absence), as indicated above, such explanations would not establish attendance by the applicant on those days, but rather could establish that certain non-compliance was due to exceptional circumstances. The manner in which the Tribunal approached those absences was that even taking them into account in a manner favourable to the applicant they did not sufficiently explain the full extent to which the applicant fell short of the requisite 80 per cent attendance. The Tribunal appropriately had regard to the fact that the applicant had provided no evidence that even if all these “explained” absences were taken into account her attendance in the relevant semester would not meet the 80 per cent of contact hours required under condition 8202. If the applicant had wished to make the submission that her counsel now seeks to make in relation to the number of hours of attendance covered by each of those medical certificates, it was open for her to do so before the Tribunal. She did not do so and on that basis the Tribunal was satisfied that she had not complied with condition 8202(3)(a) and also was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. No jurisdictional error is established in this respect.
The particulars to ground 3 suggest that the applicant had to have an opportunity “to respond to the unsatisfactory completion aspects of the findings”. The Tribunal made no findings based on unsatisfactory completion, in the sense of academic performance. Condition 8202(3)(b) was not in issue.
No jurisdictional error is established on the basis contended for in ground 3 of the further amended application.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 4 June 2008
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