Choi v Minister for Immigration & Anor [2009] FMCA 83 (17 February 2009)

Last Updated: 18 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHOI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 83

MIGRATION – Review of Migration Review Tribunal decision – student visa – proceedings commenced out of time – Court must have regard to when applicant actually received notification of the Tribunal decision – as proceedings out of time Court had no jurisdiction.

Migration Act 1958, ss.116, 379A, 379C, 477 Migration Regulations 1994, reg.2.43, cl.8202 of sch.8 Education Services for Overseas Students Act 2000, s.20 Evidence Act 1995, s.163

SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176 SZFMW v Minister for Immigration & Citizenship [2008] FCA 1862 Dai v Minister for Immigration & Citizenship [2007] FCAFC 199; (2007) 165 FCR 458 Tongburin v Minister for Immigration & Citizenship [2008] FMCA 644 Qui v Minister for Immigration & Citizenship [2008] FMCA 787 Brar v Minister for Immigration & Citizenship [2008] FMCA 1026

Applicant:

SYE HO CHOI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2417 of 2008

Judgment of:

Cameron FM

Hearing date:

6 February 2009

Date of Last Submission:

6 February 2009

Delivered at:

Sydney

Delivered on:

17 February 2009

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2417 of 2008

SYE HO CHOI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant was granted a Subclass 573 Higher Education Sector visa on 16 August 2004 which was cancelled on 7 March 2006 by a delegate of the first respondent (“Minister”) pursuant to s.116 of the Migration Act 1958 (“Act”). That cancellation was made on the basis that the applicant had breached condition 8202 of his visa by failing to achieve satisfactory course attendance. The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
2. For the reasons which follow, the application will be dismissed.

Relevant law

3. The relevant version of condition 8202 as found in sch.8 to the Migration Regulations 1994 (“Regulations”) is the version that was applicable at the time of the initial visa grant. The version which applied on 16 August 2004 relevantly provided:
   • (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) ...
(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:
  • (i) for a course that runs for less than a semester – for the course; or
  • (ii) for a course that runs for at least a semester – for each term and semester of the course; ...

4. The consequences of breaching condition 8202 are set out in s.116 of the Act which relevantly provides:
   • 116 Power to cancel
     • (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
       • ...
       • (b) its holder has not complied with a condition of the visa; ...
       • ...
     • (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.
5. Regulation 2.43 sets out the prescribed circumstances referred to in s.116(3) as follows:
   • 2.43 Grounds for cancellation of visa (Act, s.116)
   • ...
     • (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:
         • (i) ...
         • (ii) that the Minister is satisfied that:
           • (A) the visa holder has not complied with condition 8202; and
           • (B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
6. The effect of these provisions is that if the Minister is satisfied that the visa holder has not complied with condition 8202, and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control, he must cancel the visa in question.

Background facts

7. As already noted, on 16 August 2004 the applicant was granted a Subclass 573 Higher Education Sector visa.
8. On 30 September 2005 the applicant’s education provider wrote to the applicant pursuant to s.20 of the Education Services for Overseas Students Act 2000 and advised him that he had failed to meet the requisite attendance requirements for the term running from 6 June 2005 to 9 September 2005 thereby breaching condition 8202(3) of his visa. The applicant was subsequently issued with a Notice of Intention to Consider Cancellation of his visa (“NOICC”), however, the delegate decided not to proceed to cancellation as she was satisfied that the applicant’s non-compliance was due to exceptional circumstances beyond his control.
9. On 31 January 2006 the applicant was issued a fresh s.20 notice on the basis that he had failed to maintain satisfactory levels of attendance for the term running from 12 September 2005 to 16 December 2005. The notice indicated that during the relevant period the applicant attended none of his scheduled contact hours. A NOICC dated 9 February 2006 was subsequently issued to the applicant and on 7 March 2006 his visa was cancelled by the delegate.
10. The applicant sought a Tribunal review of that decision and, by facsimile dated 13 June 2006 in response to the Tribunal’s invitation to provide further information and comments, submitted that:
    1. when he received the first NOICC from the department he thought that he had to go back to Korea and therefore made preparations to leave Australia;
    2. his parents were upset and disappointed and his father withdrew his financial support. As a result, the applicant could not study normally and was mentally unstable;
    100. when the department informed him that it would not be cancelling his visa, the applicant made up his mind to concentrate on his studies in Australia. However, the department then sent him another notification indicating that it was going to cancel his visa for unsatisfactory attendance;
    4. there were exceptional circumstances beyond his control;
    5. between 6 June 2005 and 16 December 2005, he was waiting for the department to hand down its decision with respect to its initial NOICC; and
    6. his parents were ready to support him in the event that his student visa was not cancelled.
11. The applicant appeared before the Tribunal on 1 August 2006 and indicated that, to establish the existence of exceptional circumstances, he wished to rely on the facsimile of 13 June 2006 as well as a letter dated 23 October 2005 which he had submitted to the department following receipt of the first NOICC. In the letter of 23 October 2005 the applicant attributed his poor attendance at the time to the following factors:
    1. his parents had been experiencing relationship problems and were on the verge of divorce;
    2. he had some extra financial responsibilities and had to take on a part-time job. This caused him physical and emotional distress;
    100. the NOICC caused him significant levels of distress; and
    4. his aunt, who had been an influential figure in his life, had stomach cancer and the prognostic outlook was poor.
12. At the hearing the applicant stated that his aunt had died on
    14 November 2005 and he produced a death certificate which confirmed that she had died, but from lung cancer. He also stated that he had successfully completed an English language course when he first arrived in Australia as well as a Certificate IV course in Information Technology.

The Tribunal’s decision and reasons

13. The Tribunal was satisfied that the applicant had not complied with condition 8202 of his visa and that the grounds for cancellation in s.116(1)(b) existed. In reaching this conclusion, the Tribunal noted that:
    1. evidence obtained from the applicant’s education provider confirmed that his attendance for the term 12 September 2005 to 16 December 2005 fell below the requisite 80%; and
    2. the applicant conceded that his attendance for the term was well below 80%.
14. In considering whether the breach was due to exceptional circumstances beyond the applicant’s control, the Tribunal, having had regard to relevant departmental guidelines, the interpretation of “exceptional circumstances” in the authorities as well as the dictionary definitions of the word “exceptional”, found that:
    1. the circumstances which required the applicant to take on a part-time job did not amount to an exceptional circumstance beyond his control as envisaged by the legislature and the cases;
    2. while his parents’ marital troubles would have played on the applicant’s mind, this did not constitute an exceptional circumstance beyond his control;
    100. the applicant’s claim that he was profoundly affected by his aunt’s stomach cancer and that this had a negative psychological effect upon him was not borne out by any independent medical evidence. Further, the evidence before the Tribunal indicated that his aunt died of cancer of the lung, not stomach. The weight accorded to the applicant’s evidence that he was substantially affected by his aunt’s illness was diminished because he was not able to state correctly the illness from which she was suffering; and
    4. there was no medical evidence before the Tribunal to indicate that the factors relied upon by the applicant caused him such levels of emotional instability as to warrant a complete failure to attend in the term in question.
15. The Tribunal was not satisfied that the applicant’s breach of condition 8202 was due to exceptional circumstances beyond his control and accordingly affirmed the decision of the delegate to cancel his Subclass 573 visa.

Proceedings in this Court

16. The grounds of the application commencing these proceedings were pleaded as follows:
    • (1) The Tribunal did not properly consider the date of notification that the Department issued a fresh section 20 notice.
    • (2) Exceptional circumstances beyond the control of the visa applicant should include the period from 12/09/2005 to 16/12/2005.
17. The application also sought leave to commence proceedings out of time as, although the Tribunal decision was signed on 14 August 2006 and, according to the application, was received by the applicant on
    24 August 2006, these proceedings were not commenced until
    17 September 2008.

Proceedings out of time

18. By virtue of s.477 of the Act, proceedings for judicial review of Tribunal decisions must be filed within 28 days of actual notification of that decision to an applicant or, with leave, within an additional
    56 days after that. Section 477 relevantly provides:
    • Time limits on applications to the Federal Magistrates Court
      • (1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
      • (2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
        • (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
        • (b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
      • (3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period. ...
19. Although the application discloses that the applicant received the Tribunal’s decision on 24 August 2006, this cannot be correct. The “Migration Review Tribunal handing down advice” reproduced at page 79 of the bundle of Relevant Documents (“RD”) discloses that the date of the handing down of the decision was 1 September 2006. That date also appears on the final page of the Tribunal decision reproduced at RD 77.
20. The copy letter from the Tribunal to the applicant dated 1 September 2006 reproduced at RD 69 indicates that under its cover the Tribunal’s decision was sent to the applicant. On 7 October 2006 the applicant wrote to the then Minister inviting her to exercise her discretion to substitute the Tribunal’s decision with one which was more favourable to him (RD 80–81). In that letter of 7 October 2006 the applicant states that his application to the Tribunal for review of the cancellation of his student visa was refused on 1 September 2006.
21. The applicant led no evidence as to when he actually received the Tribunal’s decision but I infer that this occurred not later than
    7 October 2006. That being so, the application to this Court would appear to be out of time. It would also appear that the application for leave to commence out of time was made beyond the time limit prescribed by s.477(2).
22. I am prepared to infer that the Tribunal’s decision was sent to the applicant by prepaid post in accordance with s.379A(4). However, there is no evidence before the Court of the date when the letter was posted. A finding based on such evidence would have been the basis for a further finding of when, by virtue of s.379C(4), the applicant would be taken to have received the Tribunal’s decision.
23. While it might ordinarily be presumed that, in accordance with its obligation under s.379A(4), the Tribunal sent the document to the applicant within three working days of the date of the document, given the gravity of the issue involved it would be inappropriate to presume this. But regardless of such considerations, s.163 of the Evidence Act 1995 prescribes a rebuttable presumption that such a letter would have been sent to the applicant on the fifth business day after the date of the letter. Given the absence of evidence to rebut that statutory presumption, it must apply, with the consequence that it has not been demonstrated that ss.379A(4) or 379C(4) apply to this case or that the Tribunal’s decision should be taken to have been received by the applicant on any particular day.
24. There being no deemed date of notification of the Tribunal’s decision to which the Court must have regard, the date when or by which the applicant actually received notification of the Tribunal’s decision becomes the only consideration when determining whether the application to the Court was made out of time. As the Full Court of the Federal Court said in SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176:
    • Irrespective of how the Tribunal has complied with its obligation under s.430(2), if an applicant has physically received a copy of the Tribunal’s decision and reasons, as has happened in the present case, there has been actual notification of the decision for the purposes of s.477. (at [25])
25. Thus, where a regime prescribing the deemed receipt of documents such as that found in ss.379A and 379C does not apply, the Court is to consider when the notification was actually received.
26. Moreover, even if my conclusion as to the application of the Act’s deeming regime is incorrect and it applies in this case, Bennett J held in SZFMW v Minister for Immigration & Citizenship [2008] FCA 1862 that the ratio of SZKNX applies nevertheless. This has the consequence that when considering the application of the time limits in s.477, the Court must have regard to the actual date of notification even if the Act deems receipt to have occurred on a different day.
27. For these reasons, I conclude that the application commencing these proceedings was filed out of time and that the Court has no jurisdiction to entertain it. Consequently it will be dismissed.
28. But should my conclusion regarding the Court’s jurisdiction be incorrect, consideration should be give to the grounds of review advanced by the applicant.

Ground 1 – failure to have regard to relevant consideration

29. When considering the first ground of review it should first be noted that the s.20 notice in question was issued by the applicant’s education provider and not by the Minister’s department. The notice in question was dated 31 January 2006 and advised the applicant that he attended none of the course hours scheduled for him during the term running from 12 September 2005 to 16 December 2005.
30. As pleaded, this ground really means nothing and no particulars were provided so as to give it some substance. When the applicant was asked during the course of the hearing what he meant by the first ground contained in his application, he was unable to provide any useful response.
31. I am not of the view that the Tribunal did fail to turn its mind to any relevant considerations. Consequently, I find that the first ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.

Ground 2 – review of facts and merits

32. The second ground pleaded in the application invites the Court to review the Tribunal’s conclusions as to what could amount to exceptional circumstances beyond the applicant’s control. At the outset, it should be noted that the Tribunal did consider the circumstances which the applicant advanced as being exceptional and beyond his control in the context of his failure to satisfy his visa’s course attendance condition for the 12 September 2005 to 16 December 2005 term. Consequently, on the facts, the allegation must fail.
33. But in any event, the Court is not empowered to reconsider the merits of an application to the Tribunal or the Tribunal’s factual findings in respect of such an application. The role of the Court is to declare and enforce the law which governs the Tribunal’s operations. The Tribunal’s function is, operating within the law, to determine the facts and merits of the matter. Thus, if, operating within the law, the Tribunal arrives at an incorrect finding of fact, or a reasonable conclusion on the merits with which an applicant disagrees, that is not a matter reviewable by the Court.
34. For the additional reason that the second ground pleaded in the application invites the Court to reconsider the Tribunal’s factual conclusions and the merits of the application itself, it does not disclose a basis upon which jurisdictional error might be found.

Condition 8202

35. The Minister drew the Court’s attention to the fact of differing interpretations in this Court of the reasoning and conclusion of the Full Court of the Federal Court’s decision in Dai v Minister for Immigration & Citizenship [2007] FCAFC 199; (2007) 165 FCR 458. The decisions of this Court to which the Minister referred were: Tongburin v Minister for Immigration & Citizenship [2008] FMCA 644; Qui v Minister for Immigration & Citizenship [2008] FMCA 787 and Brar v Minister for Immigration & Citizenship [2008] FMCA 1026. However, as the validity or effectiveness of condition 8202 was not raised by the applicant and the proceeding is to be dismissed, it is not necessary that I express a view on whether Dai’s case is authority for the proposition that condition 8202(3) was ultra vires or that the binding authority of Dai’s case is limited to condition 8202(3)(b).

Conclusion

36. By virtue of s.477 of the Act, this Court has no jurisdiction in this matter as the proceeding was brought out of time. It must therefore be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 17 February 2009