VANNEMREDDY v Minister for Immigration
[2012] FMCA 680
•25 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VANNEMREDDY v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 680 |
| MIGRATION – Review of decision by Migration Review Tribunal – unsatisfactory course attendance by Applicant – Applicant an Indian citizen – Applicant claims Tribunal breached fair hearing rule and condition 8202 – application dismissed – costs awarded. |
| Education Services for Overseas Students Act 2000 (Cth), s.19 Migration Act 1958 (Cth), ss.116, 359(1), 363, 499 Migration Regulations 1994, Schedule 8, Condition 8202 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007, Standard 11 |
| Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 |
| Applicant: | MANOPOORNACHAND VANNEMREDDY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 252 of 2012 |
| Judgment of: | Whelan FM |
| Hearing date: | 25 July 2012 |
| Date of Last Submission: | 25 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 25 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | Maganty Lawyers |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed 6 March 2012 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 252 of 2012
| MANOPOORNACHAND VANNEMREDDY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter, the Applicant seeks a review of a decision by the Migration Review Tribunal (“the Tribunal”) of 7 February 2012 where the Tribunal decided to cancel the Applicant’s (subclass 572) student visa. The Applicant is a 27 year old citizen of India. He entered Australia on 29 June 2008, having been granted a student (subclass 572) visa on 20 May 2008. On 1 April 2010 he was granted a further student (subclass 572) visa.
The Applicant was enrolled in two courses at the Australian Adelaide International College (“the College”) – a Certificate IV in Business, which started on 10 March 2010 and ended on 5 September 2010, and a Diploma of Management which started on 13 September 2010 and ended on 11 March 2011. On 27 November 2010 the College certified the Applicant as not having achieved satisfactory course attendance in respect of the Diploma of Management course pursuant to s.19 of the Education Services for Overseas Students Act (“the ESOS Act”) and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
The Department of Immigration and Citizenship sent the Applicant Notice of Intention to Consider Cancellation of Visa after receiving the certification of unsatisfactory attendance. The delegate found that the Applicant had breached the conditions of his visa by not achieving satisfactory course attendance. The delegate did not accept that there were exceptional circumstances beyond the Applicant’s control which lead to the breach and decided to cancel the student visa. The Applicant applied to the Tribunal on 18 February 2011 for a review of the delegate’s decision, and the Tribunal affirmed the delegate’s decision on 7 February 2012.
On 6 March 2012 the Applicant lodged this application for judicial review.
The Tribunal’s proceedings and Decision
There was more than one hearing before the Tribunal. The first was on 8 June 2011. The Applicant provided written submissions prior to the hearing. On 12 October 2011, he provided written submissions in response to a statement made by Mr Garreffa, the ex-principal of the College, which I will refer to later.
On 19 October 2011, the Applicant attended a second hearing, and on 11 November 2011, he submitted further material, including a statement by Mr Gill (“Mr Gill”), the Applicant’s tutor. At the first Tribunal hearing the Applicant provided a different account of his course attendance for the Diploma of Management course than the one previously given to the delegate. In the information provided to the delegate, the Applicant had said that his attendance between 10 March 2010 and 5 September was “excellent”; that he completed his Certificate IV in Business in due time, and started the Diploma of Management on 13 September; and that he had been going to the College regularly until 8 October.
Before the Tribunal, he stated that he had not been to any Diploma of Management classes because the principal of the College had told him he could not start the Diploma of Management course until he finished his Certificate IV course. The Certificate IV was scheduled for completion on 5 September but was not completed by the Applicant until 15 October.
The Applicant gave evidence that he was unable to finish his coursework in the allotted time because of his health problems and because of his grandmother’s illness, which had meant that he had had to stay in India longer than he had expected, having gone there during an authorised break from the college. On his return from India, the Applicant arranged to be tutored two days a week by Mr Gill to assist in his completion of the Certificate IV course.
The Applicant claimed that the principal of the College first gave him notice detailing his non-attendance at his Diploma of Management classes on 4 December 2010. He further claimed that he had not been given warning letters about the consequences of his non-attendance from the College until 8 December. On the same day, he wrote a letter to the College claiming that personal and domestic issues had prevented him from attending classes.
By letter dated 7 September 2011 the Tribunal wrote to the Applicant inviting him to appear at the second hearing. The Tribunal gave the Applicant notice that his attendance at the Diploma of Management course would be raised at the hearing. The letter enclosed a summarised response from Mr Garreffa, the then principal of the College, answering 12 questions about the Applicant’s educational history that had been put to him by the Tribunal in relation to claims made by the Applicant in the first hearing. The Tribunal discussed Mr Garreffa’s statement and the Applicant’s response with him at the second hearing on 19 October. The Applicant also lodged a statutory declaration dated 18 October 2011 that alleged that Mr Garreffa’s position at the College had been terminated due to inappropriate handling of student files and documents, and bad administration.
He further provided a statement from Mr Gill, who had tutored him for the Certificate IV in Business Studies, who attested to him attending tutoring sessions at the College until he finished the coursework.
The Tribunal had to determine firstly whether the Applicant had failed to comply with condition 8202; if so, whether that non-compliance was due to exceptional circumstances beyond his control; and if whether the Applicant’s visa should be cancelled having regard to all the circumstances.
The Tribunal found that the Applicant’s education provider had certified that the Applicant had not achieved satisfactory course attendance, and had therefore not met the requirements of s.19 of the ESOS Act and standard 11 of the Code. The Applicant having not met the mandatory requirements for condition 8202, a ground for cancellation pursuant to s.116 of the Migration Act 1958 (Cth) (“the Act”) was found to exist. The Tribunal was satisfied that the non-compliance was not due to exceptional circumstances beyond the Applicant’s control, which meant that the decision maker was obliged to cancel the Applicant’s visa.
The Tribunal found that the Applicant had been awarded a Certificate IV in Business after reviewing a statement of the Applicant’s academic results from his course. It also found that procedural and administrative concerns about the College raised by the Applicant were not relevant to determining whether the certification of 27 November 2010 engaged condition 8202(3). The Tribunal found that the attendance records for the Certificate IV course were inaccurate but that this did not affect the accuracy of the Diploma course records given that the Applicant claimed not to have attended any of the Diploma classes.
The Tribunal rejected the Applicant’s claim that the College staff prevented him from attending the Diploma of Management classes. The Tribunal did not accept the Applicant’s assertion that the principal, Mr Garreffa, had signed three warning letters with three different coloured pens on 8 December 2011. In rejecting this claim, it took into account its findings on the credibility of other matters and the evidence given by the Applicant at the first hearing that he did not know the content of the letters, despite having read them.
The Tribunal found the Applicant’s evidence about his illness and the causes of his illness to be unconvincing, and it further found that the Applicant was not prevented from returning to Australia because of his or his grandmother’s health problems in July 2010 when his approved leave period had expired. The Tribunal concluded that the Applicant’s non-compliance with condition 8202 was not due to exceptional circumstances beyond his control.
Grounds of review
The Applicant has submitted grounds of review numbered 1 to 12, and those are as follows:
1.That the Tribunal has breached the fair hearing rule by conducting two hearings, and in the interval sending a questionnaire to the then principle of the education provider and seeking his comments on issues that were entirely not relevant to the issue at hand;
2.The Tribunal had relied on policy rather than the law in assessing exceptional circumstances;
3.By sending a questionnaire to the principal rather than inviting the principal to give evidence, the Tribunal denied the Applicant the opportunity to give evidence in relation to these issues;
4.The Tribunal breached condition 8202 of schedule 8 in its interpretation;
5.There was no consistency in the consideration of evidence of the Applicant in that parts of his evidence had been accepted and parts rejected illogically;
6.The Applicant’s case had not been given a fair hearing by the failure to summon the then principal of the College to answer select questions, and further, by not asking the principal the relevant questions;
7.The principal had not given evidence before the Tribunal, particularly in relation to the Applicant’s claim that the principal had been ‘sacked’;
8.The Tribunal failed to consider exceptional circumstances as mandated by the Act;
9.The Tribunal failed to consider all of the evidence of the case;
10.The Tribunal failed to make appropriate use of the relevant sections of the Act in relation to the hearing but had obliquely referred to it;
11.The Tribunal had made its decision in a manner that was lengthy and unwieldy and it therefore breached relevant sections of the Act in providing its reasons for refusal; and
12.The decisions quoted by the Tribunal as to its interpretation of condition 8202 rendered the relevant provisions of the ESOS Act as incorrect.
The Applicant’s submissions
The Applicant was given the opportunity to file an amended application but did not do so. On 29 May 2012 the Applicant filed brief contentions of fact and law and a Supplementary Court Book containing the transcript of both Tribunal hearings. While the Applicant touched on other matters in oral submissions, the substantive submission was that there had been no breach of condition 8202 because the education provider, in finding that the Applicant had not achieved satisfactory course attendance, had failed to comply with the requirements of standard 11 of the National Code of Practice for Registered Authorities and Providers of Education and Training to Overseas Students.
As I understood the argument, the Applicant contends that the provider failed to comply with the provisions of standard 11.6 of that Code, because a Section 20 notice was given to the Applicant dated 27 November 2010, which was the same day as the principal of the College certified for the purposes of cl.8202(3) of schedule 8 of the Regulations that the Applicant was not achieving satisfactory course attendance. The Applicant submits that because of the failure to comply with standard 11.6 of the Code, the certification was invalid and therefore the Applicant could not be seen to have failed to comply with condition 8202.
The Applicant made further submissions about the failure of the Tribunal to call the principal to give evidence and the failure to give weight to the willingness of the College to allow the Applicant to continue his studies, given the principal’s belief that his case was genuine and that depression may have been a factor in his non-attendance.
The First Respondent’s submissions
In relation to the point raised by the Applicant concerning the requirements of standard 11.6 of the Code, the First Respondent points to the letter at page 31 of the Court Book, which provides the 20 working days’ notice referred to in standard 11.6. Further, the First Respondent relies on the decision of the Full Court of the Federal Court of Australia in Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 (“Maan”), in which the Court says at paragraph 44:
It follows from an ordinary reading of schedule 8 clause 8202(3) of the Migration Regulations that the tribunal was correct in finding that the VIT certification constituted non-compliance by the appellant with his visa conditions. In so finding, the tribunal (and the federal magistrate) correctly applied schedule 8 clause 8202(3) of the Migration Regulations.
The First Respondent made further submissions in relation to the other grounds relied upon by the Applicant. With respect to grounds 1, 3, and 6, the First Respondent submits in relation to the claim that the Tribunal breached the fair hearing rule, that s.353 of the Act provides that the Tribunal shall pursue the objectives of providing a mechanism of review that is fair, just, economical in form and quick. By conducting two hearings, issuing two questionnaires to the then principal for response and then discussing that response at the second hearing the Tribunal demonstrated that it is acting in a manner that promoted the review objectives.
Section 363 empowers the Tribunal to adjourn a review from time to time. The adjournment provided the Applicant with an opportunity to consider the written statements from the then principal and to arrange for any witness to attend the hearing or provide statements in response. The Tribunal was entitled to seek information from the then principal in the interval between the hearings.
Section 359(1) of the Act allows for the Tribunal to seek any information that it considers relevant and this may be done by writing to the person. The Tribunal provided the Applicant with a summary of the then principal’s response on 7 September 2011 putting the Applicant on notice that his attendance at the Diploma of Management program will be discussed at the second hearing and inviting him to consider arranging witnesses or witness statements in relation to the issue of his attendance. The Applicant was given ample opportunity to give evidence in response to the then principal’s statement and in relation to his non-attendance at the Diploma of Management program.
With respect to ground 2, the First Respondent submits that in his application for review the Applicant did not state which policy the Tribunal allegedly relied on rather than the law to assess exceptional circumstances. The Applicant may have been referring to the Tribunal’s considerations of the matters listed in Direction 38. The First Respondent went on to discuss Direction 38, a Direction made pursuant to s.499 of the Act and one with which the Tribunal was required to comply.
In relation to ground 5, the First Respondent submits that the Tribunal properly considered the Applicant’s documentary and oral evidence and reached a conclusion that was arguable on the material before it.
In relation to ground 7, the Applicant complains that the principal did not give evidence to the Tribunal in relation to the Applicant’s claim that the principal had been sacked. It was open to the Applicant to consider arranging a witness or witness statements in order to support whatever argument he wished to put before the Tribunal and it is not now open to the Applicant to claim he did not have that opportunity to deal with the issue.
In relation to ground 9, the First Respondent submits that the Applicant considered all the relevant material. In relation to ground 10, the First Respondent submits that the Tribunal applied the relevant provisions of the Act. In relation to ground 11, the First Respondent submits that the length of the decision reflects the amount of evidence provided for the first Tribunal hearing and in pre- and post-hearing submissions as well as the Tribunal’s consideration of the evidence. In relation to ground 12, the First Respondent refers to the recognised authorities which were referred to by the Tribunal and which have been referred to again in these proceedings by the First Respondent.
Conclusions
I turn firstly to the legislative framework. Section 116(1)(b) of the Act gives the Minister the power to cancel a visa when the visa holder has not complied with the conditions of the visa. Further, s.116(3) of the Act requires that a visa be cancelled where certain prescribed circumstances apply. Regulation 2.43 of the Migration Regulations 1994 set out the prescribed circumstances referred to in s.116(3). The relevant ones for consideration in this case are Regulation 2.43(2)(b)(ii)(A):
The visa holder has not complied with the condition 82O2.[1]
and Regulation 2.43(2)(b)(ii)(B):
The non-compliance was not due to exceptional circumstances beyond the visa holder’s control.[2]
[1] Migration Regulations 1994.
[2] Migration Regulations 1994.
The effect of s.116 and Regulation 2.43(2)(b)(ii) is that the visa must be cancelled if the Tribunal is satisfied that the visa holder has not complied with condition 82O2 and the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Condition 82O2(1) relevantly requires that the holder of the visa must meet the requirements of subclauses (2) and (3). In this case, the relevant subclause referred to is subclause (3) which says:
A holder meets the requirements of the subclause if neither of the following applies.[3]
And the relevant part of that subclause in these proceedings is (b):
The education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for
(i)section 19 of the Educational Services Overseas Student Act 2000 and
(ii)standard 11 of the National Code of Practice for Registered Authorities and Providers of Education and Training to Overseas Students 2007.[4]
[3] Migration Regulations 1994.
[4] Migration Regulations 1994, Schedule 8, Condition 8202(1)(b).
I deal firstly with the substantive submission put by the Applicant in oral submissions. This relates to the condition 8202(3)(b). The Applicant in those submissions referred to a failure to comply with the requirements for a Section 20 Notice and referred the Court to the provisions of standard 11.6 of the Code and to pages 33 to 38 of the Court Book which contain the Section 20 Notice. The Applicant argues that the College failed to comply with standard 11.6 because the Section 20 Notice was issued on the same day as the certification. Condition 8202(3)(b), does not refer to s.20 of the ESOS Act but to s.19 and to standard 11 of the Code. That is because standard 11 applies to s.19 of the ESOS Act and not to s.20.
The letter sent to the Applicant on 1 November 2010 complies with the provisions of standard 11.6 and the First Respondent took the Court to the provisions of that letter as contained in the Court Book. The relevant parts are these (at pages 31 of the Court Book):
Please be informed that your attendance in the Diploma of Management course has dropped below 80% of your scheduled hours in a semester. As an on shore International Student holding a student visa, enrolled in Diploma of Business, you are required to comply with a number of conditions relating to that visa, [as per ESOS Act 2000], including attending at least 80% of your scheduled hours in the semester.
As a result of the above, Australian Adelaide International College is forced to notify your breach of satisfactory attendance to the Secretary of DEST PRISMS to cancel your visa.
Please note that you have the right to appeal this decision within 20 working days from the date of this letter in accordance with the AAIC guidelines which can be located in your handbook or on the College website.
Please note that during the internal and external complaints and appeal processes, the Australian Adelaide International College will ensure you are enrolled throughout the appeal process.[5]
[5] Court Book at page 31.
Standard 11 is headed:
Monitoring Attendance
Outcome of Standard 11
Registered providers systematically monitor students’ compliance with student visa conditions relating to attendance. Registered providers are proactive in notifying and counselling students who are at risk of failing to meet attendance requirements. Registered providers report students, under section 19 of the ESOS Act, who have the breached attendance requirements.[6]
[6] National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
Standard 11.6 says:
Where the registered provider has assessed the student as not achieving satisfactory attendance for the courses identified . . . 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 appeals processes as per Standard 8 . . . and that the student has 20 working days in which to do so.[7]
[7] Ibid.
Further, on the basis of the decision in Maan, I am satisfied that the Tribunal was entitled to rely on the certification by the College as constituting non-compliance by the Applicant with the requirements of his visa in relation to satisfactory attendance. It was also clear from the evidence before the Tribunal that the Applicant failed to attend any of the classes required for the Diploma course which was consistent with the certification.
I now refer to the other grounds raised by the Applicant. Grounds 1, 3, 6 and 7 of the grounds, as put by the Applicant, relate to whether the Tribunal conducted a fair hearing and particularly, the issues concerning the evidence of the principal of the College where the Applicant was enrolled. The Applicant in his letter of 11 January 2011 and his submissions of 31 May 2011 raised matters which concerned the actions of Mr Garreffa and conversations he had had with him. He also referred to these in the first hearing on 8 June 2011.
The Tribunal is entitled by s.359(1) of the Act to seek any information it considers to be relevant. In light of the Applicant’s claims, information from Mr Garreffa was clearly relevant to what the Tribunal needed to determine. The questions put to him went to the issues of the failure to comply with condition 8202 and the exceptional circumstances claimed by the Applicant. The response from Mr Garreffa was summarised and sent to the Applicant on 7 September. The Applicant was clearly on notice prior to the second hearing that the issues raised by him had been contradicted by the principal and he had the opportunity to respond and to provide any additional material or witness evidence he wished to call.
There was no breach of the fair hearing rule associated with the Tribunal conducting two hearings, and the Applicant was warned at the end of the first hearing that another hearing might be required and did not object to that, and I refer to transcript of 8 June 2011 at page 44, as contained in the Supplementary Court Book.
The intervening period gave the Applicant the opportunity to make further submissions and provide further statements.
Section 363 of the Act sets out the powers of the Tribunal in conducting the review, and they have been referred to today by the Applicant.
Clearly, the Tribunal has the power to adjourn a review. While the Tribunal may require a person to appear before the Tribunal to give evidence, it is not obliged to do so. There is no substance in the claim that the Applicant was denied a fair hearing because of the matters raised in grounds 1, 3, 6 and 7.
Ground 2 asserts that the Tribunal relied on policy rather than law in assessing exceptional circumstances. The policy referred to appears to be Direction 38, although this was never clarified, a Direction made pursuant to s.499 of the Act. The Direction provides guidance to the Tribunal on how to consider the application of Regulation 2.43. As s.499 makes it clear, a Direction cannot be inconsistent with the Act and the Regulations. The Applicant does not allege that the Direction 38 is inconsistent with the Act or the Regulations.
Ground 8 appears to cover the same material as ground 4, which I have already addressed, as does, to a great extent, ground 12.
Ground 5 refers to the inconsistency on the part of the Tribunal in dealing with the Applicant’s evidence, and ground 9 claims the Tribunal failed to consider all of the evidence. This appears to have been the subject of submissions put before the Court this afternoon in relation to certain material from the principal of the College concerning his views as to the reasons for the Applicant’s failure to attend and his assessment that the Applicant would be welcome to continue at the College.
I am not of the view that those matters were necessarily matters that the Tribunal needed to give weight to in these proceedings. Having been satisfied that there was a breach of condition 8202, what it then needed to consider was whether there were exceptional circumstances in relation to the circumstances surrounding the breach, and I am satisfied that it adequately dealt with those matters in the paragraphs of the Court Book which deal with the consideration of the evidence and the matters claimed by the Applicant in relation to the issues of his own health, and that of his grandmother, and, in particular, I refer to paragraphs 95 and 96 in relation to those matters.
The Tribunal referred to the evidence before it. It did not make any findings for which there was no evidence, nor were its findings not reasonably open to it on the evidence it had. The Tribunal assessed the credibility of the Applicant’s claim and found him wanting. Those were matters entirely within the jurisdiction of the Tribunal.
It is not clear what the Applicant actually means by ground 10. The Tribunal clearly referred to the relevant provisions in the Act. It is also not clear which provision of the Act the Applicant contends the Tribunal breached in providing its reasons for decision. If the decision is lengthy and unwieldy, that is hardly a jurisdictional error.
Ground 12 has been, to a certain extent, previously dealt with in relation to the submissions that were made by the Applicant in relation to ground 4.
The decision of the Full Court of the Federal Court in Maan dealt with the application of condition 8202, with respect to the non-compliance criteria and also the issue of exceptional circumstances. There is no basis for this Court to find that the Full Court was incorrect, or that Maan did not have application in the circumstances of this case.
For these reasons, none of the grounds relied upon by the Applicant satisfy me that there has been any error on the part of the Tribunal going to its exercise of jurisdiction in this matter, and the application is therefore dismissed.
The First Respondent has sought costs in the sum of $6,471.00 and, in the circumstances, I am satisfied that an order should be made that the Applicant pay the First Respondent’s costs in that amount.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 7 August 2012
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