Yama v Minister for Immigration
[2007] FMCA 305
•15 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YAMA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 305 |
| MIGRATION – Review of Migration Review Tribunal − where the applicant applied for a Student (Temporary) (Class TU) visa − where the Tribunal refused to grant the visa on the basis the student had not complied substantially with the conditions imposed by Condition 8202 Migration Regulations − where the applicant did not appear at the hearing but later provided written submissions − where the Tribunal in its decision referred to information provided by the education provider which indicated the applicant had not attended 80% of the contact hours scheduled for the course − where the Tribunal in its decision referred to information about other students in relation to the applicant’s attendance − whether the applicant provided this information to the Tribunal − whether the Tribunal provided an explanation of its reasoning processes − whether the absence of a s.20 notice affected the decision to refuse the application − whether the Tribunal asked itself the correct question − whether the Tribunal denied the applicant procedural fairness by not seeking further information from the education provider in relation to errors in information it supplied. |
| Migration Act 1958, ss.357A, 359A, 362B Migration Regulations 1994 |
| Quan v Minister for Immigration [2004] FCA 764 |
| Applicant: | RAJNI KANTH YAMA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG3552 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 March 2007 |
| Date of Last Submission: | 5 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2007 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3552 of 2005
| RAJNI KANTH YAMA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter is seeking judicial review of a decision of the Migration Review Tribunal made on 14 September 2005. The Tribunal determined:
“After considering the legislation, policy considerations and evidence cumulatively, the Tribunal finds that the visa applicant has not complied substantially with the conditions to which the visa held by the visa applicant at the time of application was subject. The Tribunal finds that the visa applicant does not meet the requirements of clause 572.212. On the basis of the Tribunal’s finding, the Tribunal must affirm the decision under review.”
On 7 November 2003 the applicant applied for a Student (Temporary) (Class TU) visa. The Minister’s delegate decided to refuse to grant that visa on 14 January 2005. The basis for the delegate’s refusal was that the applicant did not satisfy clause 572.212 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”). The delegate was not satisfied that the visa applicant had complied substantially with Condition 8202 of the visa held or last held. The relevant sections of Condition 8202 are:
“8202(1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
8202(3)(a) (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 contact hours scheduled”
The visa last held by the applicant allowed him to study a Diploma in Information Technology course at the International Institute of Business and Technology (“IIBIT”) from term 4 of 2001 until term 4 of 2002. The delegate obtained attendance records issued by IIBIT dated 5 November 2003 which indicated that Mr Yama’s attendance was as follows:
·86% for Term 4, 2001
·82% for Term 1, 2002
·80% for Term 2, 2002
·60% for Term 3, 2002
·36% for Term 4, 2002
This information was provided to the delegate and is referred to in the case background at [CB 36]. The applicant would therefore have been aware from that time that his attendance in terms 3 and 4 of 2002 was the relevant attendance in issue. When the applicant applied for review of the decision of the delegate he did not provide any additional information, he did not say that the information provided by IIBIT to the delegate was inaccurate, he merely stated:
“I am not satisfied by the decision, I will provide relevant documents soon.” [CB 43]
He did not provide particulars of any migration agent and gave only his own address and no telephone number for his details.
On 22 April 2005 the Tribunal wrote to the manager of student services at IIBIT requesting certain information concerning the applicant’s attendance. That information was provided. On 11 June 2005 the Tribunal wrote to the applicant inviting him to appear before the Tribunal to give evidence and present arguments on 7 July 2005. The letter warned the applicant that if he failed to appear the Tribunal could make a decision on the review without taking any further action to allow him to appear pursuant to s.362B of the Migration Act 1958 (the “Act”). The applicant did not appear. He told the court that he did not receive the hearing invitation. On the other hand he agreed that he was living at the address to which the invitation was sent at the time. On 7 July 2005 (the day of the hearing) the Tribunal wrote to the applicant pursuant to s.359A of the Act. The relevant parts of the letter are as follows:
“Accordingly, you are invited to comment, in writing, on the following information.
You applied for a Subclass 572 Student visa. You must therefore satisfy clause 572.212 which provides that you complied substantially with the conditions to which the student visa you held at the time of application, was subject. At the time of the application on 7 November 2003 you held a Subclass 572 visa which had been granted on 29 October 2001. This visa contained condition 8202.
Your former education provider International Institute of Business and Information Technology (IIBIT) advised on 5 November 2003 that your attendance in the Diploma of Information Technology course in Term 3 of 2002 was 60% and in Term 4 of 2003 was 36%. The education provider also provided to the Tribunal a timetable for Term 3 of 2002; your subject enrolment details; and your attendance records for each subject/supervised tutorial.
Condition 8202 of the visa you held at the date of the application required that you attend for at least 80% of the contact hours scheduled for each term of the course. The above information shows that you did not attend for at least 80% of the contact hours scheduled for Terms 3 and 4 of 2002.
Accordingly, the issue is whether you have complied substantially with the conditions to which the visa held by you at the time of application was subject. If you did not comply substantially with condition 8202, you are not able to satisfy the requirements of clause 572.212.
This information is relevant to the review because if you cannot satisfy clause 572.212 you cannot be granted a Student visa. The above information does not include information that you gave the Tribunal for the purpose of the application, or information that, under the Act, is non-disclosable.”
Although the applicant told the court that he did not receive that letter he must have done because on 15 August 2005 Dey & Associates Pty Limited Immigration and Business Consultants, sent to the Tribunal a Form 956 and a detailed response to the letter of 7 July. The letter of 7 July had attached to it what is described as “Folios 47 – 55”. Those appear to be the documents that have been inserted into the court book at [CB 57 – 73]. The documents include the IIBIT academic calendar for 2002, the timetable for the relevant terms, enrolment details and attendance details of the applicant in his respective courses. The submissions prepared by the agent returned to the Tribunal those documents which are found again at [CB 93 – 104]. The submissions take up the assertion that his attendance was only 60% and 36% in terms 3 and 4 of 2002. These submissions are discussed by the Tribunal from paragraph 31 of the Tribunal’s decision onwards at [CB 116 – 117]. The first matter taken up is the course entitled “Project Management 1”. The attendance record in respect of this subject is headed “Project Management 2” which appears to be incorrect but as the Tribunal says the misnaming does not appear to affect the calculation of the attendance. In that course the applicant attended seven out of the ten face to face sessions. The submissions argue that the three consecutive weeks where it is indicated that the applicant did not attend were time when he submitted his assignments. The Tribunal found:
“The three consecutive weeks he was marked absent in project management 1 were the times when he submitted his assignments. However, the Tribunal notes that other students attended on those three consecutive weeks and the education provider has indicated that the students were required to attend those scheduled contact hours. The Tribunal therefore does not accept that this explanation explains why he did not attend the scheduled contact hours.”
The information concerning the other students is accepted by the Minister as being information which would fall to be the subject of a notice under s.359A unless it fell within one of the exceptions found in sub-s.359A(4)(b):
“(4) This section does not apply to information:
(a) …
(b) that the applicant gave for the purpose of the application; or …”
There are two pieces of information referred to by the Tribunal. The first is that other students attended on those three consecutive weeks and the second is that the education provider has indicated that the students were required to attend those scheduled contact hours. In regard to the first matter the Minister argues that this is information that was provided by the applicant. It is to be remembered that the Tribunal sent the information to the applicant originally under cover of the s.359A letter making a general enquiry about his failure to attend. The applicant then proceeded to utilise the information which the Tribunal had provided to him to particularise what he claimed to be errors in the calculations made by the educational establishment. The applicant sent back the information with the comments. It was the applicant who gave the Tribunal the reason for his non attendance in project management 1 thus providing the information to the Tribunal. The Tribunal took this submission (that he was completing assignments) and compared it with the information (the attendance record). It then reasoned that the applicant’s submission must be incorrect because all the other students except one attended for those three weeks. The next piece of information was that the education provider had indicated that the students were required to attend those scheduled contact hours. There is no evidence in the court book which indicates that a specific question was asked of the school but I assume that the Tribunal came to this view from its understanding of the Migration Act and in particular the definition of contact hours which is defined in the Regulations as:
“Contact Hours for a period, means the total number of hours in the period for which the students enrolled in the course are scheduled to attend classes for teaching purposes, course related information sessions, supervised study sessions and examinations.”
This is a piece of information which is not specifically about the applicant and would fall within sub-s.359A4(a):
“(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or…”
The next submission made by the agent was in relation to Systems Administration 4. The submission states [CB 89]:
“Shows that the review applicant did not attend any classes during the whole term. This according to the review applicant is wholly untrue. He instructs us to submit that the attendance statement claimed to evidence his absence is incorrect and is merely a compilation by someone which cannot be relied. First, because the dates are incorrect. Against weeks 8, 9 and 10 the dates are incorrect. Second, the timetable shows that it was taught in the morning and evening whereas the statement only states morning. Whilst same classes were conducted in the morning as well in the evening and students had the option of attending either class.”
In its findings and reasons the Tribunal accepts that the last three dates were incorrect but finds that as the error was only that the month was incorrectly marked it did not affect the actual attendance or non attendance. In regard to the morning and evening problem the Tribunal gave the benefit of the doubt to the visa applicant and calculated his attendance as if he had attended all evening classes and was not required to attend morning classes. Having made the adjustments in respect of term 3 the Tribunal concluded that the applicant had only attended 71.4% of the scheduled contact hours in the term and that as a result the applicant breached condition 8202. In regard to term 4 the Tribunal states at [CB 117]:
“The education provider advised that IT students had to attend a minimum of twenty hours training a week.”
That would also appear to be a piece of information that might be the subject of a s.359A letter. But the information is actually found in the timetable which was sent to the applicant by the Tribunal and which was returned to the Tribunal by the applicant’s advisers and would therefore seem to fall within s.359A(4)(b).
The Tribunal goes on to say:
“However, the 3 subjects and 2 supervised tutorials would appear to provide 40 hours of contact hours per week. It is reasonable to consider that attendance at supervised tutorials was optional. The Tribunal therefore did not count the supervised tutorials for the purposes of attendances. It is reasonable to consider that the visa applicant was required to attend the 8 scheduled contact hours for each subject in each week of the term.”
The Tribunal then made a calculation on this basis and came out with a total attendance of 53.33% which was higher than the 36% submitted by the education provider.
The Tribunal in this way has provided an explanation of its reasoning processes. The assumption it made regarding tutorials was not to my mind “information”. But even if it was it, was not information which the Tribunal considered would be the reason or part of the reason for affirming the decision that was under review because it was information that could have been a reason for not affirming the decision if the revised figures had increased the attendance rate to the required amount.
The rest of the submission made by the advisers related to the fact that no notice under s.20 of the Education Services for Overseas Students Act 2000, (Cth) was sent to the applicant. Whilst the education provider may have been in breach of the Act by not sending the appropriate notice I agree with the finding of the Tribunal that the lack of the notice under s.20 does not affect whether or not the visa applicant satisfied Clause 572.212 in relation to a new application. In any event this matter was not raised in the applicant’s application to this court.
The application filed by the applicant in this court describes a number of jurisdictional errors. It commences with the proposal that the Tribunal did not ask itself the correct question because it did not consider whether it had reached a state of satisfaction as to the contact hours attended or the contact hours scheduled in accordance with the definition of contact hours contained in Regulation 1.03. Regulation 1.03 is the definition section of the Regulations and in relation to contact hours it states:
“Contact Hours for a period, means the total number of hours in the period for which the students enrolled in the course are scheduled to attend classes for teaching purposes, course related information sessions, supervised study sessions and examinations.”
I am not persuaded by this submission because at [CB 54] there appears a letter from the Tribunal to the manager of student services of IIBIT which relevantly states:
“The Tribunal must determine whether Mr Yama has complied with Condition 8202 of his student visa regarding attendance. Condition 8202 requires that the visa holder attend at least 80% of the contact hours scheduled for each term or semester of their course.
The term contact hours is defined in the Migration Regulation 1994 as being the number of hours in the term for which Mr Yama was scheduled to attend classes for teaching purposes, course related study sessions, supervised study sessions and examinations. Any grants of leave from class given for medical or other reasons must also be taken into account when determining attendance”
The Tribunal was clearly informed of the definition of contact hours and there is nothing in its findings and reasons to suggest that when it utilised those words it did not do so in the context of the definition which it had itself expressed to the education provider in its request for information.
The application then suggests that the Tribunal fell into the error identified by Jacobson J in Quan v Minister for Immigration [2004] FCA 764 but, with respect that does not appear to have occurred. In this case the Tribunal referred directly to contact hours and calculated the attendance percentages on the basis of hours in the course and hours attended.
The applicant complains that the Tribunal “without any basis concluded that the visa applicant was required to attend 8 hours of “contact hours” for each of the four subjects for each of the 10 weeks in the term”. It seems to me that the basis for the Tribunal coming to this conclusion was that each course contained 10 contact hours for each of the four subjects for each week. In order to comply with the Condition 8202 the applicant would have to have attended for 8 hours out of the 10. The same remarks go to the complaint made in respect of term 4/2002 in paragraph 1(b) of the application.
The applicant also complains that the Tribunal denied him procedural fairness by not seeking any further evidence or explanation from the education provider in relation to the errors which it found that had been made. The Tribunal, relied on its own calculations based on its own assumptions and did not afford the applicant an opportunity to comment. The applicant is subject to s.357A which restricts procedural fairness for those matters covered by s.359A of the Act. The applicant says that it is unfair that the Tribunal accepted his submissions that the education provider’s records were to some extent inaccurate and based its decision on a calculation taking the inaccuracies into account. But the Tribunal did not do that. It accepted that there were inaccuracies and then proceeded to recalculate the figures giving the applicant the benefit of the doubt and increasing his attendance percentage. Unfortunately for the applicant, the increase was not sufficient to satisfy the Tribunal that the applicant had substantially complied.
The applicant also argued that it was unfair for the Tribunal to have given him the benefit of the doubt in relation to attendance in the course System Administration 4 where he was marked absent in the morning by assuming that he attended in the evening and not giving him the benefit of the doubt where he was marked absent in other cases. The difficulty with this submission is that the applicant did not raise anything specific about those other absences in the way in which his representative had raised the specific opportunity to attend either morning or evening classes in relation to System Administration 4.
For the reasons given above I am unable to see that the Tribunal did fall into jurisdictional error in the way in which it came to its decision in this matter. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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