Parbhakar v Minister for Immigration & Anor [2009] FMCA 459 (21 May 2009)

Last Updated: 25 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARBHAKAR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 459

MIGRATION – Review of Migration Review Tribunal’s decision – student visa – breach of condition 8202 – failed to satisfy condition that he be enrolled in a registered course – consideration of whether failure not due to circumstances beyond the applicant’s control – no error disclosed in Tribunal’s decision – decision affirmed.

Education Services for Overseas Student Act 2000, s.20 Migration Act 1958, ss.116(1)(b), 116(3), 119(1), 137J, 359A and 359 Migration Regulations 1994, R.2.43(2)(b), Condition 8202(2)(a) of Sch. 8

MIAC v Zhou [2006] FCAFC 96; (2006) 152 FCR 115

Applicant:

VIKAS PARBHAKAR

First Respondent: Second Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP MIGRATION REVIEW TRIBUNAL

File Number:

(P)MLG 1465 of 2008

Judgment of:

O'Dwyer FM

Hearing date:

23 April 2009

Date of Last Submission:

23 April 2009

Delivered at:

Melbourne

Delivered on:

21 May 2009

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Mosely

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) The application for review filed on 25 November 2008 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

(P)MLG 1465 of 2008

VIKAS PARBHAKAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before the Court on an application to set aside a decision of the Migration Review Tribunal (the Tribunal) dated
   23 November 2008.
2. In that decision, which is discussed in more detail below, the Tribunal upheld a determination of the first respondent's delegate to cancel the applicant's Student (Temporary) (Class TU) Sub-class 573 Higher Education Sector visa (the visa) because of a failure to comply with a condition of that visa (condition 8202 of Sch.8 to the Migration Regulations 1994.)
3. The applicant has been held in detention for a period of 11 months pending the outcome of his review applications. There was an earlier application before this Court which on 1 October 2008 was remitted by consent because in an earlier hearing the Tribunal had committed an error in not giving due consideration as to whether the non-compliance with the condition was not due to exceptional circumstances beyond the applicant's control.

Background

4. The applicant is a citizen of India who arrived in Australia on
   7 September 2006. On 27 September 2006 the applicant was granted the visa which was valid until 5 November 2008. As stated, the visa was subject to condition 8202 of the regulations which required him to be enrolled in a registered course.
5. In January 2007 the applicant enrolled in an Advanced Diploma of Hospitality in Management at Carrick Institute of Education (Carrick).
6. On 29 June 2007 Carrick had cause to issue to the applicant a notice of non compliance given under s.20 of the Education Services for Overseas Students Act 2000 (the ESOS Act). The notice certified that the applicant had failed to satisfy another condition specified under 8202 concerning attendance. The notice provided for the applicant to respond to the notice within a prescribed period of 28 days. As the applicant failed to respond to the notice within the prescribed period, the applicant's visa was automatically cancelled pursuant to s.137J of the Migration Act 1958 (the Act).
7. On 26 May 2008 the applicant attended the Department of Immigration and Citizenship (the department) and sought revocation of the s.137J visa cancellation. A delegate of the first respondent determined to initiate a fresh cancellation process pursuant to different provisions of the Act and gave the applicant a written Notice of Intention to Consider Cancellation of the visa for a possible breach of condition 8202 (for failing to be enrolled in a registered course) (See s.116(1)(b) and 119(1) of the Act).
8. On 1 July 2008 a delegate of the first respondent cancelled the visa pursuant to ss.116(1)(b), 116(3) and sub-regulation 2.43(2)(b) for non compliance of condition 8202 for failing to be enrolled in a registered course.
9. On 8 July 2008 the applicant applied to the Tribunal for review of the delegate's decision. On 30 July 2008 the Tribunal affirmed the decision under review. The applicant applied for judicial review of that decision and on 1 October 2008, as previously stated, the Tribunal's decision was, by consent, quashed and the matter remitted to the Tribunal.
10. On 29 October 2008 the Tribunal was reconstituted and a new hearing conducted at which the applicant gave evidence.
11. On 14 November 2008 the Tribunal sent a letter to the applicant inviting him to comment on certain information and to provide additional information under ss.359A and 359 of the Act respectively.
12. Under s.359, the applicant was invited to provide evidence that he was at all material times enrolled in a registered course. On 17 November 2008 the applicant responded to the Tribunal's invitation.
13. The Tribunal affirmed the delegate's decision, as stated, on
    23 November 2008.
14. The above sets out the procedural chronology of this matter.
15. Further, however, is the factual circumstances applying to the applicant. The Tribunal made findings of fact, which are not disputed, that when the applicant first arrived in Australia he undertook and completed an English language course at Carrick and thereafter commenced a commercial cookery course. During this time he had a part-time job washing cars, but appears to have lost that job because of difficulties he had with management.
16. During the break between the first and second semesters of 2007, around June, the applicant was enticed to go to Queensland by a friend for the purpose of working on a banana farm to earn money to pay his enrolment fees. The second semester was to commence some time in July 2007, with the break between the first and second of approximately one month to six weeks.
17. After arriving in Queensland and commencing work on the banana farm the applicant complains of a number of difficulties; one being an injury to his eye and another being poor treatment by his employer and underpayment by him. The end consequence, from the applicant's perspective, was that he was stranded in Queensland, did not earn the money he hoped for and was unable to return to commence the second semester as previously planned.
18. A requirement of his enrolment was the payment of enrolment fees which were not forthcoming and consequently his enrolment was cancelled.
19. When he eventually returned from Queensland the applicant took himself to an office of the department and sought advice as to what should be done. It was then that his difficulties materialised and thereafter he found himself in detention. He feels aggrieved that his voluntary presentation to the department resulted in his subsequent detention.

The Tribunal's decision

20. In a detailed and thorough consideration of the evidence presented by the applicant the Tribunal found that the applicant failed to comply with condition 8202 of his visa in not maintaining his enrolment in a registered course. In my view, this finding was clearly open to the Tribunal to make on the evidence presented.
21. The next substantive finding of the Tribunal was that the non compliance was not due to exceptional circumstances beyond the visa holder's control. In reaching that conclusion the Tribunal gave, in my view, a detailed consideration of the circumstances relied upon by the applicant as being exceptional and, having done so, concluded that they were not. That conclusion, in my view, was open to the Tribunal on the evidence presented and the conclusion also exhibits probative logic.
22. The Tribunal made certain findings of fact surrounding the circumstances in which the applicant found himself in Queensland, measured those findings against the necessary consideration as to whether they were exceptional and beyond the applicant’s control and reached, as stated, a conclusion open to it on the evidence that they were not.
23. In those circumstances the delegate was required to cancel the visa. The Tribunal accordingly affirmed the decision under review.

The applicant's ground for review

24. The applicant, it must be noted, was unrepresented and struggled with the legal concepts determinative of the outcome of his review. I have some considerable sympathy for the dilemma in which the applicant found himself which was particularly exacerbated, as he saw it, by his isolation in detention. Nonetheless, he provided in essence three grounds for review, that lacked particularity and relevance.
25. The applicant's first ground is that he did not receive any letter from Carrick. This is presumably a reference to the s.20 notice under the ESOS Act previously referred to. Whether the applicant received the notice from Carrick is of no relevance to the issue before this Court; namely, a visa cancellation under s.116 of the Act. Compliance with s.20 of the ESOS Act is not a precondition for a valid cancellation under s.116 of the Act (see MIAC v Zhou [2006] FCAFC 96; (2006) 152 FCR 115).
26. The s.116 cancellation was founded upon a breach of condition 8202(2)(a) (that is, enrolment in a registered course), whereas the s.20 notice was given on the basis of the applicant's failure to achieve satisfactory course attendance. Accordingly, for that reason, whether the applicant received the s.20 notice or not, is not relevant to the decision under s.116.
27. The other two grounds for review stipulate: first, that the applicant was not provided with legal aid when the matter came before the Tribunal and secondly, that he had his Medicare card stolen. Neither of these two grounds, which were not particularised, could establish a jurisdictional error and do not warrant further consideration as a basis for a review of the Tribunal's decision.
28. The Tribunal's finding that the applicant failed to comply with a requirement of condition 8202 in that he was not enrolled in a registered course, and further that his non compliance with that requirement was not due to exceptional circumstances beyond the visa holder's control were open to the Tribunal on the evidence before it. The legislative imperative necessitated the cancellation of the visa. In affirming the determination of the delegate the Tribunal was not in error and the review before me, accordingly, must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

Date: 21 May 2009