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Maan v Migration Review Tribunal & Anor [2008] FMCA 1738 (18 December 2008)

Last Updated: 7 April 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAAN v MIGRATION REVIEW TRIBUNAL & ANOR

MIGRATION – Review of MRT decision – student visa – visa condition – certification of non-satisfactory attendance.

Migration Act 1958, s.116
Migration Amendment Regulations 2007

Brar v The Minister for Immigration and Citizenship (2008) FMCA 1026

Applicant:
NAVDEEP SINGH MAAN

Respondents:
MIGRATION REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:
BRG 372 of 2008

Judgment of:
Jarrett FM

Hearing date:
18 December 2008

Date of Last Submission:
18 December 2008

Delivered at:
Brisbane

Delivered on:
18 December 2008

REPRESENTATION

Solicitor for the Applicant:
Mr Sharma

Solicitors for the Applicant:
Sharma Lawyers

Counsel for the Respondent:
Mr Lloyd SC

Solicitors for the Respondent:
Clayton Utz

ORDERS

(1) That the application filed on 6 June 2008 be dismissed.
(2) That the applicant to pay the first respondent's costs of and incidental to the application fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 372 of 2008

NAVDEEP SINGH MAAN

Applicant


And


MIGRATION REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent


REASONS FOR JUDGMENT

(Revised from the transcript)

  1. This application that seeks the issue of constitutional writs for the quashing and redetermination of a certain decision of a migration review tribunal raises two issues. The first is whether the tribunal in this case properly considered a relevant matter when reaching its decision, in practical effect, to reject the applicant's application for a review of the decision of a delegate of the Minister then before it. It is argued by the applicant that in the circumstances of this particular case the tribunal was obliged to identify a particular date as of which it was satisfied the applicant was in breach of a particular condition attaching to his visa. The tribunal, it is said, failed to do that and so overlooked a relevant matter.
  2. The second issue concerns the proper construction of a condition which attached to the relevant visa. Did the tribunal correctly interpret that condition and the exception to it, and apply the correct interpretation to the facts before the tribunal?
  3. Some background is necessary. It is largely non-controversial although there are some differences between the facts alleged by each party. The differences are immaterial.
  4. The following recitation of the facts is taken from the outline of submissions filed by both the applicant and the first respondent.
  5. The applicant, an Indian national, was granted a visa of an undescribed type on 12 June, 2006. He came to Australia on 18 June, 2006 or thereabouts. Initially, he was enrolled in a Certificate IV course in foundation studies in Accounting at the Melbourne Institute of Business Technology. The qualification was to lead into a Diploma in Accounting. His enrolment continued for about eight months.
  6. In February, 2007 he commenced studies at the Victorian Institute of Technology. He moved to studying a hospitality type course.
  7. The Department of Immigration and Citizenship granted the applicant his subclass 573 Higher Education Sector visa on 29 March, 2007.
  8. In either late March, 2007 or early April, 2007 the applicant discovered that his mother and grandfather had been involved in a car accident in India. He immediately made arrangements to put in place a leave of absence with the Institute so that he could return to India. Although it is not particularly relevant it seems that the leave of absence was not granted and he was not given permission to leave the Institute.
  9. The applicant returned to India to see his family and for that purpose left Melbourne on 5 April, 2007. On 9 April, 2007 and while he was still in India, his grandfather died. He attended his grandfather's funeral before returning to Australia. His grandfather had also been involved in the same car accident as his mother. There is an issue as to whether his grandfather was killed instantly in the accident or died some days later. That issue was raised at the Bar table during the course of submissions, but again, the resolution of that issue does not assist the disposition of this case.
  10. After his grandfather's funeral and religious ceremony were complete, the applicant returned to Australia. That was on about 19 or 20 April, 2007. He recommenced attending the Victorian Institute of Technology.
  11. There was evidence before the tribunal (page 35 of the Respondent’s Bundle of Relevant documents) that on 17 May, 2007 the Institute wrote to the applicant warning about a possible breach of his visa conditions. The warning is in the following terms:
  12. Subsequently on 8 August, 2007 a further notice was issued by the Victorian Institute of Technology (page 36 of the Respondent’s Bundle of Relevant documents). This notice is entitled "Notice of Intention to Report to DIAC for Low Attendance." Its terms vary from the initial notice delivered in May. Its terms are as follows:
  13. The letter then goes on to set out again a paraphrase of visa condition 8202. It reminds the applicant that he must attend at least 80 per cent of the contact hours scheduled for each term. The notice concludes:
  14. By letter dated 24 September, 2007 the Institute wrote to the applicant giving him a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000. That notice is contained in the relevant bundle of documents at page 144. The certification is in the following terms:
  15. It will be immediately seen that the section 20 notice does not refer to any particular period of time in respect of which it is asserted that satisfactory course attendance did not take place.
  16. On the same day, 24 September, 2007 a number of other documents were sent to the applicant as part of the s.20 notification and certification procedure. One of the documents was entitled “Particulars of Breach”. The particulars referred to the fact of certification, but did not refer to any particular time period over which the applicant’s course attendance was unsatisfactory.
  17. The applicant's attendance records for the Institute for the period 11 July, 2007 to 24 September, 2007 show that of a total scheduled attendance of 200 hours, the applicant attended for only 54 hours (27% of the required attendance).
  18. The applicant was given a notice of intention to consider cancellation of his visa under s.116 of the Migration Act on 15 October, 2007. He was invited to attend an interview to be held on 3 December, 2007 at the Department's offices in Melbourne. The applicant requested in the meantime the Department of Education Science and Training to investigate the Institute's s.20 notice process. He asserted that it was unfair in the sense that the Institute had not complied with a national code established for that purpose.
  19. The evidence before the tribunal was that the Department of Education Science and Training had carried out the investigation and the relevant departmental officer was satisfied that the Institute had complied with the relevant provisions.
  20. The applicant attended an interview with a delegate of the second respondent in Melbourne on 3 December, 2007. On 11 January, 2008 the delegate made a decision to cancel the applicant's visa pursuant to ss.116(1)(b) and (3) of the Migration Act and the relevant regulations.
  21. On 22 January, 2008 the applicant applied to a migration review tribunal for a review of the decision made by the delegate to cancel his visa. The tribunal wrote to the applicant and his advisor on 22 February, 2008 inviting the applicant to comment upon and respond to certain information in writing and contained in that letter. After two extensions were granted to the applicant and his advisor a response was sent on 28 March, 2008 to the matters raised by the tribunal.
  22. The terms of relevant letters are important in this case. The terms of the letter from the Tribunal to the applicant, after some introduction, are:
  23. It will immediately be seen that the relevant non-attendance fell in a period that was after the warning notices given in May and August. The letter from the Tribunal clearly points to a period of time from
    9 July, 2007 to 19 September, 2007. The accompanying attendance records, which appear in the bundle of relevant documents at folio 34, for the period 9 July, 2007 to 24 September, 2007 demonstrate attendance at 27% of the time available or scheduled to be attended by the applicant.
  24. The response to the Tribunal’s letter came from the applicant's advisor. Its first bulleted paragraph is:
  25. Later in the letter, on the second page, second bulleted paragraph it is said:
  26. Two things arise from the letter of 28 March, 2007 relevant to the issue of attendance. The first is that the applicant did not take issue before the Tribunal with the notion that he had not achieved satisfactory course attendance for the relevant period as set out in the letter of 24 September, 2007. The second is that whilst he took the view that the attendance record for 9 July, 2007 to 19 September, 2007 was inaccurate, he did not contend that he had not achieved satisfactory course attendance.
  27. On 15 April, 2008 the MRT held a hearing. At the hearing the Tribunal took that issue up with the applicant. The reasons for decision of the Tribunal member reflect that the applicant did not suggest that he had met the relevant attendance requirements, namely, 80% of scheduled attendances for the relevant course. At best, he suggested, he had met only about 50 per cent of the relevant requirements: see paragraph 42 of the Tribunal Member's Reasons for Judgment.
  28. The Tribunal affirmed the decision of the delegate of the second respondent to cancel the applicant's visa on the basis that the applicant had not complied with condition 8202 and that a ground for cancellation of the visa pursuant to s.116(1)(b) of the Act existed. The tribunal considered but rejected the applicant's argument that his non-compliance was due to exceptional circumstances beyond his control.
  29. It is against that factual background that one needs to turn to the legislation. The relevant sections of the Act, the regulations and with the other policy documents referred to in the course of the Tribunal's decision and the argument before me, are conveniently set out in the outlines of submissions by both the applicant and the first respondent. There is no divergence between them about the relevant statutory regime.
  30. In the written submissions filed by the Minister in this matter there is set out the legislative framework against which this application must be decided. No issue was taken with the Minister’s submissions in that regard by the applicant. I am content to adopt those submission as follows:

Relevant provisions of the Act

7. The relevant power to cancel is contained in s.116 of the Act which provides:

“116(1) Subject to subsections (2) and (3), the Minister may cancel the visa if he or she is satisfied that:
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled”.

Relevant regulations

8. Regulation 2.43 relevantly provides as follows:

“2.43(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:

9. Condition 8202 was relevantly amended, with effect from 1 July 2007, pursuant to the Migration Amendment Regulations 2007 (No 5). Regulation 5 of those regulations relevantly provides:

“Amendment of Migration Regulations 1994
(1) Schedule 3 amends the Migration Regulations 1994.
(3) The amendment made by Schedule 3 also applies in relation to a visa granted before 1 July 2007, but only in relation to a breach of a visa condition that occurred on or after 1 July 2007”.

10. Subclause 8202 of schedule 8 of the Regulation, in the form in which it was relevantly enacted for present purposes, provided, as follows:

“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).
(2) The holder meets requirements of this subclause if:
(3) A holder meets requirements of this subclause if neither of the following applies:
(4) In the case of a holder of a subclass 560 visa who is an AusAid student or the holder of a subclass 676 (AusAid or Defence Sector) visa — the holder is enrolled in a full-time course of studying or training”.

11. The National Code 2007 was established under the Education Services for Overseas Students Act.

  1. Section 116 of the Act grants to the Minister a discretion to cancel the relevant visa if he or she is satisfied that its holder has not complied with the conditions of the visa or a prescribed ground for cancelling a visa applies to the holder. Subsection 116(3) imposes a mandatory obligation to cancel a visa in certain circumstances.
  2. Regulation 2.43 of the Migration Regulations provides that for the purposes of s.116(3) the Minister must cancel a visa where, in the case of a student visa, the Minister is satisfied that the visa holder has not complied with condition 8202 and the non compliance was not due to exceptional circumstances beyond the visa holder's control.
  3. Condition 8202 is the condition which is central to the determination of this application. It was amended with effect from 1 July, 2007 and it is now in a substantially different form to that which it existed before
    1 July, 2007. This particular visa was issued before 1 July, 2007 and so immediately a question arises as to the correct form of condition 8202 to be applied in the resolution of this matter.
  4. The relevant regulations which introduced the amendment to condition 8202 contain some transitional arrangements. They are found in regulation 5 of the Migration Amendment Regulations 2007. Regulation 5(3) provides that the new form of condition 8202 applies in relation to an application for a visa made but not finally determined before 1 July or made on or after 1 July.
  5. Subregulation 5, I should say, also provides this:
  6. The drafting of sub regulation 5(3) leaves an enormous amount to be desired. There is immediate difficulty in interpretation. The first part of the sub regulation is clear enough. The amendment made by schedule 3 also applies in relation to a visa granted before 1 July, 2007. But what do the words "but only in relation to a breach of a visa condition that occurred on or after 1 July 2007” really mean?
  7. Moreover, in my view, there is a real difficulty in isolating the relevant breach for the purposes of determining whether or not the new form of condition 8202 applies. Is it a breach of a visa condition assessed according to the condition as it stood before amendment, or is it a breach of the relevant visa condition assessed after the relevant amendment, taking into account the amendments? If it is the former, then it is difficult to envisage a situation in which there would ever be a case where it would be found that the new form of the condition 8202 would apply to a particular visa. If it is the latter, the opposite is the case.
  8. The point is not devoid of authority. It was considered by Driver FM in Brar v The Minister for Immigration and Citizenship (2008) FMCA 1026. I am told by those representing the Minister that that decision has been taken on appeal to the Full Court of the Federal Court of Australia. The appeal has been heard but the decision on the appeal has been reserved.
  9. On this point, Driver FM says this:
  10. With respect, I accept his Honour's view that in the case of the present form of the condition, a breach occurs or non-compliance occurs when the non-compliance is certified by the education provider, and in the case of certification of non-compliance on or after 1 July 2007, it is the current form of the condition which is applicable.
  11. In this case the Minister argued for that conclusion for different reasons to those which I have just given. It was argued that the decision in Brar is distinguishable on its facts from this case. But, with respect, in my view Driver FM's conclusion on the point to which I have just referred is entirely correct. What is important for the purposes of subregulation 5(3), and to give it any operation at all, one must conclude that the first relevant consideration is when the breach or the non-conformity with condition 8202 occurred, and if that occurred after 1 July 2007, then it is the new form of condition 8202 that applies.
  12. The applicant focused on the decision of Brar as support for the proposition that a finding as to the date of the “breach” was required to be made by the Tribunal. The relevant passage from Driver FM’s decision appears at paragraph 46 and 47 thereof. In paragraph 47 his Honour says this:
  13. In my view, Driver FM in that passage is saying nothing more than what is obvious from condition 8202 and a proper construction of subregulation 5(3), namely, it is relevant to identify first of all the non-conformity or non-compliance with condition 8202 and then determine whether that fell before or after 1 July, 2007 to determine which form of the condition applies. Therein is highlighted the circularity of subregulation 5(3) but, nonetheless, there it is.
  14. While Driver FM points out in Brar and, in my view, with respect correctly, is that one needs to pay due regard to the terms of condition 8202, particularly, 8202 sub condition 3(a) to determine what it is that is said to be non-conformative. Sub-clause 8202(1) provides that the holder of the relevant visa must meet the requirements of sub-clauses (2) and (3). Sub-clause (3) says that a holder meets the requirements of the sub-clause if neither of the following applies (relevantly) (a) the education provider has certified the holder for a registered course undertaken by the holder as not achieving satisfactory course progress for section 90 of the Education Services and Overseas Students Act 2000 and standard 10 of the National Code of Practice Regulation Authorities and Providers of Education and Training to Overseas Students 2007, and (b) the education provider has certified the holder for a registered course undertaken by the holder as not achieving satisfactory course attendance for the relevant pieces of statutory material.
  15. What happened in this case was that the relevant certification took place on 24 September, 2007 well after 1 July. That is the non-conformity. The applicant's arguments do not recognise that non-attendance at the relevant educational institution is not the relevant non-conformity, but rather it is the certification which is the non-conformity with relevant visa condition. It is not a failure to comply with the visa condition to not attend classes to the relevant standard. What is non-conformity is to receive certification from the relevant educational institution that does not certify satisfactory course attendance. They are two different things although the latter is based on the former. But the former, of itself, means nothing for the purposes of the visa holder's visa until and unless it is acted upon by the education provider to provide the relevant certification.
  16. Analysed in that way the decision in Brar is entirely consistent with and provides the guide path to this case. I should point out that Driver FM's comments in relation to this aspect in the matter in Brar are obiter only. They were not the basis upon which his Honour decided that case. His Honour decided it on an entirely separate basis but felt constrained to go on to consider this issue. And in respect of this aspect of the matter I respectfully agree with his Honour.
  17. So, for the purposes of this case, it is not to the point in my view that the tribunal did not identify expressly in its Reasons for Judgment the period of time in respect of which the relevant breach was said to have occurred, or the day upon which the breach was said to have occurred. The Tribunal’s Reasons for Judgment make it is clear that the relevant certification which was said to have been the non-conformity with condition 8202 was the certification given on 24 September, 2007. That relied upon non-attendance which covered a period which stretched from 11 July, 2002 and 24 September, 2007.
  18. So much is set out at paragraph 28 of the Tribunal's Reasons for Decision. So much was reiterated to the applicant in the Tribunal's letter to him and his advisor on 22 February, 2008. So much was acknowledged, it seems to me, by the letter from the applicant and his advisor of 28 March, 2008.
  19. The Tribunal makes it clear, again, in paragraph 42 of the reasons that the relevant period and the relevant certification all took place after 1 July, 2007. In those circumstances I am satisfied that there was, if not an express finding, an implicit finding that the relevant breach took place after 1 July, 2007. There was no failure by the Tribunal to take into account a relevant consideration.
  20. I turn then to the second question, and that is the correct interpretation to be placed on the proviso set out in regulation 2.43 that the non-compliance with 8202 was not due to exceptional circumstances beyond the visa holder's control. The applicant's case on that point is set out, in my view, accurately by the Tribunal Member in the Reasons for Judgment at paragraph 61, 62, 63, and in my view, there is no misunderstanding about the nature of the applicant's case demonstrated by the reasons.
  21. The argument put by the applicant is that bereavement in one's family is of itself sufficient to enliven the proviso to regulation 2.432(b)(ii)(B). In my view, that is no so. Bereavement of itself might as a matter of policy be the type of matter that could be considered by the Minister or the Tribunal in determining whether the proviso is engaged. It will always remain a matter of fact to be determined by the Minister or the Tribunal as to whether that proviso is actually engaged having regard to the facts of a particular case.
  22. In this case the tribunal, in my view, came to the very clear view that the proviso was not engaged on the facts before it. Those facts were that the applicant had lost his grandfather due to a motor vehicle accident in which his mother was also injured. But the relevant period in respect of which his non attendance at the Institute became an issue occurred well after he returned from India to Australia. The Tribunal considered his claim that he had been depressed and stressed because of his mother’s injuries and difficulties within his family and said this about those matters (at paragraph 64):
  23. In subsequent paragraphs the Tribunal also considers the applicant's claims that he was able to avail himself of the exceptional circumstances provided by reason of the way he was treated by his class teacher and by reason of the fact that he was young, he was away from home, and did not know how to cope on his own. The Tribunal considered all of those matters and, on the facts before it, rejected them.
  24. In my view, no error of principle has been demonstrated. No jurisdictional error has been demonstrated. The application must be dismissed.

RECORDED : NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Jarrett FM


Associate:


Date:

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