Wen v Minister for Immigration - [2007] FMCA 1277

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1277

MIGRATION – Student visa – attendance requirements – relevant considerations – exceptional circumstances.

Education Services For Overseas Students Act2000, s.20
Migration Act 1958, s.116
Migration Regulations 1994 sch.8202(3)(a), r.2.43

Ashraf v Minster for Immigration and Anor [2007] FMCA 448
Wu Shan Liang vMinster for Immigration and Ethnic Affairs [1996] HCA 6

Applicant:

YU WEN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 43 of 2007

Judgment of:

Riethmuller FM

Hearing date:

27 June 2007

Date of last submission:

27 June 2007

Delivered at:

Melbourne

Delivered on:

6 August 2007

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents

Mr Star

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

A writ of certiorari issue, quashing the decision of the Tribunal of
14 December 2006;
A writ of mandamus issue, requiring the tribunal to hear and determine the matter according to law.
The second respondent pay the filing fee (if any) for the applicant to the application on demand.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 43 of 2007

YU WEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Migration Review Tribunal of 14 December 2006. The applicant was the holder of a subclass 573 Higher Education Sector visa. The applicant was undertaking a course of study at the Meridian International School Pty Ltd (Meridian).
On 13 July 2006, the Chief Executive Officer of Meridian International School Pty Ltd sent the applicant a notice under s.20 of the Education Services For Overseas Students Act2000, stating that he had breached condition 8202(3)(a) of the Migration Regulations 1994 in that he had failed to attend at least 80 per cent of the contact hours scheduled. As a consequence, he was sent a notice of intention to consider cancellation of the visa under s.116 of the Migration Act 1958. The visa was subsequently cancelled by the delegate and the applicant sought review in the Migration Review Tribunal.
Before the Tribunal, the applicant's case was that he was undertaking a course, "Diploma of Business Management (BSB 50401)." This is confirmed by documents in the court book which set out that this course was the course that he was enrolled in and that it was a registered course within the meaning of the regulation and provided by Meridian.
There was considerable factual dispute before the Tribunal as to the applicant's attendance requirements. The applicant said that he was only required to attend limited parts of two subjects offered in another course, the Diploma of Marketing course, whereas the Tribunal had approached the matter on the basis that he was required to attend at least three subjects as directed by Meridian. The evidence in this respect was that a person from Meridian, referred to as Pauline, advised that the applicant was told that he was required to attend all rostered subjects. He did not attend all of the rostered subjects and therefore, it was said, did not comply with the attendance records.
The roster that appears in the court book does not appear to be the roster for the course that he was enrolled in, as it has a different course code. It is also set out in the Tribunal reasons that the applicant was not in fact required to attend all of the subjects in the roster contained in the court book. As is noted on the roster, a person from Meridian confirmed that he was not required to attend one of the named subjects.
The Tribunal nonetheless accepted that he was directed or required to attend the balance of the subjects and that as a result of his failure to attend 80 per cent of those three subject’s course hours, he was in breach of the condition.
The applicant says that if one has regard to the sections of two of the courses that he says he was required to attend to cover work in substitution of the course that he required for his Diploma of Business, then his attendance was in excess of 100 per cent (that is, he attended more of those subjects than the weeks relevant to his course of study).
The relevant condition is set out in 8202(3)(a) of the Migration Regulations which provided, at the relevant time, as follows:
(3) A holder meets the requirements of the subclause if:
(a) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
…
(ii) for a course that runs for at least a semester - for each term and semester of the course …
The term "contact hours" is defined in regulation 1.03 as follows:
1.03 Contact hours, for a course for a period, means 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.
This definition applies unless the contrary intention appears: see r.1.03.
It was therefore necessary for the Tribunal to identify:
a)the course in which the applicant was enrolled; and
b)the number of hours in the period for which students enrolled in that course were scheduled to attend classes.
The applicant provided documents to the Tribunal showing his course of study. The relevant document appears at Court Book 23 which is headed Student Details - Diploma Program. The document was said to emanate from Meridian and appears to be an academic transcript for the period 25 July 2005 to 30 June 2006. Significantly, it lists all of the subjects that the applicant has either obtained exemptions from (as a recognition for prior learning), two subjects where it appears that the teachers or lecturers had not yet completed the assessment or marking, one subject in which he had obtained a mark less than 50 per cent and one subject where the code is "CUR" which he said represents a current enrolment.
His marks for the balance of the subjects are generally of a reasonably high standard. Whilst I note that he had failed two subjects, he achieved 90 per cent of the marks in two other subjects and at least 85 per cent in a number of subjects.
There is also a document from Meridian International School which is an offer document, setting out that he is undertaking a Diploma of Business Management and the tuition fee of over $9000.
The roster that was relied upon by the Tribunal does not list any of the subjects that the applicant has on his academic transcript. Significantly, it does not list the subjects that appear to be those he is currently undertaking in order to complete his diploma. The roster shows four subjects, but with the notation that he is not required to attend one.
There is a file note that the Tribunal appears to have relied on (Court Book page 36) as follows:
Telephone conversation held with Pauline (vocational education and training coordinator) from Meridian International on 9 August 2006.
Confirmed that client could have interpreted his required attendance in the manner he has. However, he was told directly on several occasions that he needed to attend all subjects as rostered. He was instructed that all classes would be marked, out towards his total attendance record.
Pauline stated she had spent a great deal of time with the student explaining the situation and changes to his course program.
I confirmed that Lana or anyone in admissions could have changed the student's address.
In light of the unusual actual circumstances of this case, it appears to me that the Tribunal was required to specifically determine the following:
a)Precisely which course the applicant was enrolled in;
b)What classes were scheduled for students of that particular course;
c)Whether or not the applicant's attendance record was appropriate for students ‘enrolled in the course’.
The Tribunal does not appear to have made any findings with respect to the actual requirements for the course: that is, the Diploma of Business Management course rather than what rostered subjects had been set out by Meridian. The findings that the Tribunal did make was that he was told of changes to his course program, that he was told he was required to attend rostered subjects (although presumably not all, as the Tribunal have also accepted that he was not required to attend at least one of the subjects rostered).
The Tribunal, in dealing with the applicant's views, said:
The Tribunal does not accept that the applicant believed he was only required to attend two subjects and not three subjects. The applicant was expected to attend all classes in computer accounting basic, market analysis and market solutions. There is no documentary evidence that the Meridian School approved that the applicant not attend classes in marketing solutions.
None of these subjects appears on the academic transcript as being subjects in which he was enrolled or required to undertake for the particular course that he was studying.
In these circumstances, the Tribunal has failed to exercise its jurisdiction, in that it has not made specific findings as to what subjects were required by him in the course in which he was enrolled, as opposed to what the Meridian School may have rostered for him to attend from other courses (in this case, the alleged alternative course "Diploma of Marketing"). Whether he attended 80 per cent of the subjects he was rostered for outside of his course does not appear to me to be relevant to the question of determining his attendance in the course in which he was enrolled in comparison to the total number of hours in the period for which students enrolled in that course were scheduled to attend classes.
In this case, I am pressed with an argument that it is simply a question of infelicitous language by the Tribunal and that I should view the Tribunal's reasons as rejecting the applicant’s argument in accordance with the comments made by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6. However, it does not appear to me that the Tribunal has squarely identified precisely what was required for the course in which he was enrolled as opposed to what subject he was rostered to attend by Meridian on an occasion where it appears that none of the subjects he was rostered to attend form part of his course. In circumstances where the Meridian school have acknowledged to the Tribunal that there would have been ‘some inconvenience with regard to his course structure with regard to the merger of the school’ (that is, a merger by Meridian with another educational institution) this is an essential step in the decision making process.
I therefore find that the applicant has established a ground, namely that the Tribunal have failed to determine what was required for students enrolled in his particular course of study as opposed to what the school may have rostered for him outside of his course.
The applicant also raised a number of arguments with regard to the appropriateness of the Tribunal accepting the evidence of "Pauline" of Meridian in circumstances where the roster document provided by Meridian was accepted by them as being incorrect. The applicant was also concerned that the Tribunal may have approached the matter on the basis of not accepting him unless he had documentary evidence to prove his case. These matters, together with a number of lengthy references to the evidence before the Tribunal, appear to me to be matters going to the merits of the decision.
To the extent that the Tribunal did make findings, whilst criticisms could be leveled at the manner of fact finding, they are not matters with which one could found a case for judicial review.
The final matter raised by the applicant was the extent to which the Tribunal had properly applied s.116, which requires the Tribunal to consider whether or not there were ‘exceptional circumstances’ in the applicant's case. The actual wording of s.116 is to be read with r.2.43. The section and regulation require the Tribunal to be satisfied that the noncompliance was not due to exceptional circumstances beyond the visa holder's control.
I have discussed the onus of proof and the findings that must be made in these cases in Ashraf v Minister for Immigration & Anor [2007] FMCA 448. In this case, the specific findings of the tribunal were:
The Tribunal finds that the review applicant's failure to attend his course for at least 80 per cent of the "contact hours" scheduled was not due to circumstances beyond his control. In light of the wording of paragraph 2.43(2)(b)(ii)(B), the Tribunal must be positively satisfied that the noncompliance with the visa condition was not due to circumstances beyond the visa holder's control. In the circumstances of this case, the Tribunal is so satisfied. Therefore paragraph 2.43(2)(b) does apply and the review applicant's visa is subject to mandatory cancellation under section 116(3).
I am not satisfied that this demonstrates any failure by the Tribunal to apply the correct onus in this case.
It was further argued that the reference simply to "circumstances beyond the visa holder's control" was not a correct consideration of the requirement which was "exceptional circumstances beyond the visa holder's control". Ultimately, I am persuaded that if circumstances are not beyond the visa holder's control, he must fail in any event. The further requirement that those circumstances must be exceptional does not need to be the subject of a specific finding once it is found that the applicant didn’t fulfill an essential element of the section.
Whilst the Tribunal undertook little fact finding as to the applicant’s attendance, it is appropriate to consider the facts as found in determining whether or not the applicant did attend 80 per cent of the classes. The Tribunal took the view that because he had been rostered to attend and told to do so, he ought to have attended, and that the fact that he believed he did not need to undertake these classes for his particular course was not a circumstance beyond his control.
The actual findings with regard to this part of the decision are set out in the third-last paragraph at page 146 of the court book as follows:
In order for the Tribunal to reach a state of satisfaction as to whether the applicant has been in attendance for 80 per cent of the contact hours, it must have regard to the total number of hours in the term of which the applicant, as an enrolled student, was scheduled to attend the school for the four different purposes set out in r.1.03. A percentage figure, based upon the proportion that the total number of days attended at the school bears to the total number of days of the term, does not meet the definition of ‘contact hours’: Quan v MIMIA [2004] FCA 764, at [32] – [33].
The applicant's case was that he did not attend as he did not believe that these courses were required for his course of study. The Tribunal have approached the matter on the basis that he was required to attend anything he was rostered to attend. In circumstances where his course had been discontinued or the school had merged courses or the like, it was appropriate for the Tribunal to consider whether or not these were in fact exceptional circumstances. They were clearly circumstances beyond his control which may have explained his non‑attendance at various subjects that were not required for the particular course. The Tribunal has not specifically addressed this.
In these circumstances, I am satisfied that this also provides a basis for judicial review.
In this case, the applicant was self-represented save for a short period of time during the hearing when a friend appeared as a solicitor not formally on the record, to better put his argument. It does not appear to me that he would therefore have incurred costs which could properly be the subject of an order for costs. I therefore make no order as to costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Deputy Associate: Averil Tan

Date: