Patel v Minister for Immigration & Anor [2010] FMCA 359 (27 April 2010)

Last Updated: 3 June 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 359

MIGRATION – Migration Review Tribunal – student visa – condition 8202 – whether Tribunal correctly understood the meaning of “exceptional circumstances”.

Migration Act 1958 (Cth), s.116 Education Services for Overseas Students Act 2000, s.20

Hossain & Minister for Immigration and Citizenship [2010] FCA 161 Mo & Minister for Immigration and Citizenship [2010] FCA 162 Maan & Minister for Immigration and Citizenship [2009] FCAFC 150; [2009] 179 FCR 581 Wang & Minister for Immigration and Citizenship [2005] FMCA 918 Nikac & Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 400; [1988] 16 ALD 611 Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96; (2006) 152 FCR 115

Applicant:

SANJAYKUMAR GIRISHBHAI PATEL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1598 of 2009

Judgment of:

Riley FM

Hearing date:

27 April 2010

Date of Last Submission:

27 April 2010

Delivered at:

Melbourne

Delivered on:

27 April 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Rosewarne of Counsel

Solicitors for the Respondent:

Clayton Utz Lawyers

ORDERS

(1) The application filed 10 December 2009 is dismissed.
(2) The applicant pay the first respondent’s costs fixed in the sum of $5865.00.

AND THE COURT NOTES THAT:

The first respondent does not intend to seek to recover his costs within 21 days.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1598 of 2009

SANJAYKUMAR GIRISHBHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal. The applicant had a student visa which was cancelled pursuant to procedures instituted under s.116 of the Migration Act 1958. I note at the outset that this case, accordingly, is not a case that could have had the sort of error that was identified by Buchanan J in Hossain & Minister for Immigration and Citizenship (2010) FCA 161 and Mo & Minister for Immigration and Citizenship (2010) FCA 162.
2. It was common ground that the applicant had, in fact, breached condition 8202 of his visa. That condition, as it applied to the applicant, was as follows:

(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2) A holder meets the requirements of this subclause if:

(a) the holder is enrolled in a registered course; or

(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student – the holder is enrolled in a full-time course of study or training.

(3) A holder meets the requirements of this subclause if neither of the following applies:

(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

(i) section 19 of the Education Services for Overseas Students Act 2000; and

(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

(i) section 19 of the Education for Overseas Students Act 2000; and

(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full-time course of study or training.

3. Essentially, the applicant had not achieved satisfactory course progress. It was also common ground that the question before the Tribunal was whether the breach of that condition occurred in exceptional circumstances. As it happened, the Tribunal did not accept that the circumstances alleged by the applicant amounted to exceptional circumstances, and the Tribunal proceeded to affirm the cancellation decision that was under review.
4. The application before this court was filed on 10 December 2009. The application was prepared by the applicant in person. He has appeared on his own behalf throughout these proceedings.
5. The application contains one ground of review, which is as follows:

The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;

PARTICULARS

The effect of s 116 and r.2.43(2)(b)(ii) is that if the tribunal 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, it must cancel the visa. The tribunal in this case has not given proper consideration to the term exceptional circumstances for if it did it would have made a finding that the breach of condition 8202 occurred due to exceptional circumstances.

In summary, the applicant said in his application that the Tribunal had failed to give proper consideration to the term “exceptional circumstances.” The applicant went on to allege that that was apparent by virtue of the fact that the Tribunal had not accepted that the circumstances in the applicant’s case were, in fact, exceptional.

6. The Tribunal set out in its reasons for decision in some detail the meaning of the term “exceptional circumstances.” Paragraphs 9 to 13 of the Tribunal’s decision were as follows:
   9. The term ‘exceptional circumstances’ is not defined in the legislation. However, it has been the subject of judicial interpretation in the context of the phrase ‘exceptional circumstances beyond the non-citizen’s control’ as it appears in s.137L of the Act. Section 137L(1)(b) concerns applications to revoke automatic cancellations of Student visas for breach of condition 8202, and is expressed in very similar terms to r.2.43(2)(b)(ii)(B). In Chen v MIMIA [2005] FCA 229; (2005) 142 FCR 257 Lander J at [111], in considering the operation of s.137, stated that ‘any circumstances that are exceptional, in the sense that they are unusual and not of the applicant’s own making, but beyond the applicant’s control, may provide a reason for the Minister revoking cancellation’.
      
      10. In Wang v MIMIA [2005] FMCA 918, Walters FM, also considered the meaning of ‘exceptional circumstances’ in the context of s.137L, referred with approval to the comments of Kiefel J in Hatcher v Cohn [2004] FCA 1548; (2004) 139 FCR 425. Justice Kiefel at [49] stated that “[e]xceptional’ circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances...The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless their application appears from the relevant statutory provision’. Although the comments in these cases were not made in the context of r.2.43, the Tribunal considers them relevant to the issue presently before it.
      11. In respect of a breach of condition 8202 occurring on or after 1 July 2007, Direction No.38, Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202 (or for the review of such cancellation decisions) and for considering revocation of automatic cancellation of student visas (or for the review of decisions not to revoke such cancellations) made pursuant to s.499 of the Act, is also relevant. This document is intended to give decision makers at the primary and review level, directions about the performance of powers and functions under s.137L(b) of the Act and r.2.43(2)(b)(ii)(b) in relation to breaches of condition 8202 occurring on or after 1 July 2007.
      12. Direction No.38 requires the Tribunal, when considering whether the non-compliance with condition 8202 was or was not due to exceptional circumstances beyond the applicant’s control, to have due regard to the following matters:
          • policy advice from the Department’s Director of Compliance Operational Support Section to give due regard to a political upheaval or natural disaster in a particular country. This requires the Tribunal to consider whether that country is the applicant’s home country, and whether the particular political upheaval or natural disaster has affected the applicant’s ability to comply with condition 8202;
            • written advice from the Department of Education Science and Training or an education provider that it has concerns about errors or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting. This requires the Tribunal to give due regard, undertaking further inquiries if appropriate, to whether the education provider has failed to accurately monitor the applicant’s course progress or attendance, and whether the education provider has failed to give the applicant access to a complaints handling and appeals process as required under Standard 8 of the National Code 2007.
      13. The above considerations are not intended to be exhaustive. Rather, the Tribunal is required to consider ‘all the facts of a case in total’ in reaching its conclusion.
7. It can be seen from that extract of the Tribunal’s reasons that it did, in fact, have a correct understanding of the notion of the term “exceptional circumstances.” I also note the decision of the Full Court of the Federal Court in the Maan & Minister for Immigration and Citizenship [2009] FCAFC 150; (2009) 179 FCR 581 at [52], where the Full Court unanimously said:

In this case the Tribunal considered in detail the meaning of “exceptional circumstances” in the context of these proceedings, and whether the appellant’s non-compliance with the conditions of his visa was due to exceptional circumstances beyond his control. Indeed, the Tribunal accepted the appellant’s evidence as to the events which had occurred in respect of his mother and grandfather, and gave consideration to his claims concerning his teacher at VIT and the stress of being away from home. On the facts the Tribunal found it plausible that the appellant should have experienced stress and depression as a result of the events involving his mother and grandfather. However the Tribunal was not satisfied that the appellant remained stressed or depressed several months after those events, particularly in light of the appellant’s failure to seek professional assistance. It is perhaps surprising that the Tribunal would find that a male student, aged 18 years old, and alone for the first time in a foreign country, would naturally seek medical help for depression-related symptoms. However the findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact, clearly open to the Tribunal, and do not reveal jurisdictional error. The Federal Magistrate also considered this aspect of the appellant’s case in detail, and no deficiency in the reasoning of the Federal Magistrate in relation to this issue has been identified by this court.

8. It seems to me that the situation in the present case was substantially the same as that described by the Full Court in Maan.
9. In any event, the Tribunal considered the applicant’s claims and evidence in some detail. At paragraph 33 of its reasons for decision, the Tribunal set out what it understood to be the record of what had occurred in the present case. That paragraph is as follows:

In an attempt to establish the chronology of events, the Tribunal asked the applicant if the following was an accurate record of what had happened:

• He was enrolled at Gordon Institute in an ELICOS course scheduled to run between July and December 2007.
• 12 September 2007, he was sent a warning letter regarding his attendance. He emailed the education provider with a request to discuss this letter. In response, an appointment was made which the applicant failed to keep.
• 24 September 2007, the applicant was sent a final warning letter to which he made no response
• 27 March 2008 the applicant was certified by his education provider, Gordon Institute of TAFE, for course General English (Elementary to Advanced) 10-50 weeks as not achieving satisfactory course attendance. The applicant was issued a Section 20 notice for breaching visa condition 8202. The notice advised that failure to respond within 28 days would result in automatic cancellation of the visa under section 137J of the Act. The education provider notified the Department that a non-compliance letter had been sent to the student.
• 15 April 2008, the applicant attended the college to ask if he had been reported and requested that his results and attendance records be altered to reflect that he had attended at a satisfactory level and achieved satisfactory academic progress.
• 25 April 2008, the applicant’s visa was cancelled by operation of section 137J of the Migration Act 1958 as he had not responded to the s.20 notice of 27 March 2008.
• 29 April 2008, the applicant attended the Melbourne office of the Department and applied for revocation of his student visa cancellation.
• 3 June 2008, the applicant was issued with a new ‘Intention to Report’ letter, which included details of grievance procedures, an internal appeal form and attendance policy and procedures.
• 10 June 2008, the applicant left a message for Lisa Happ, the International Education Compliance Coordinator at Gordon Institute advising he had received the letter about the intention to report him and notifying that he did not wish to appeal.
• 25 June 2008, the applicant lodged an internal appeal with Gordon Institute, in which he lists his address as a flat in Hawthorn, and claims the reasons for his non-attendance are his grandfather’s death and homesickness.
• 26 June 2008, an appeal interview is arranged for 11:30am on 30 June.
• 30 June 2008, the applicant phones to request a later interview time as he is on a later train from Melbourne. The interview is rescheduled to 12 noon. Later the applicant phones to say he is on the train but will not be arriving until 1 p.m. The appointment is rescheduled. The applicant fails to attend the appointment.
• 30 June 2008, applicant was sent a letter which advised that his appeal had been declined. It provided reasons for the decision and included an external appeal form.

10. The Tribunal stated this chronology during the course of its hearing to the applicant. The Tribunal recorded at paragraph 34 of its reasons for decision that the applicant agreed at the hearing that that chronology was accurate. The Tribunal, in its findings and reasons, set out in considerable detail its consideration of the matters put forward by the applicant.
11. That consideration is specifically at paragraphs 54 to 58 of the Tribunal’s reasons for decision, which are as follows:

54. He stated that he had faced difficulties with accommodation in Geelong and had relocated to Melbourne where the cost of travel to study in Geelong had been prohibitive.

55. The Tribunal accepts that coming to a foreign country to study is likely to create a number of challenges and difficulties, one of which can be finding settled, satisfactory accommodation. However, from his own evidence, the applicant chose not to accept accommodation options provided by his education provider in Geelong but chose to relocate to Melbourne. Given his decision to relocate, the Tribunal does not accept that the cost of travel back to Geelong to study is a legitimate claim. The Tribunal finds that as accommodation difficulties are a common problem for international students, they do not constitute exceptional circumstances beyond the applicant’s control which contributed to his non-compliance.

56. The applicant claimed that advice of his grandfather’s death combined with his father’s distress caused him great difficulty and contributed to his non-attendance at classes. He claimed that he would have returned home but was unable to do so as he had lost his passport.

57. The Tribunal accepts that the news of the death of a grandparent is likely to be very distressing and create significant emotional difficulties, however, the applicant had been sent both a warning letter and a final warning letter regarding his attendance before he received the call from his father advising of his grandfathers death. The fact that around the time of receiving the news he made a decision to relocate to Melbourne and did not advise his education provider of his problems or seek any professional support leads the Tribunal to question the veracity of the applicant’s claims. When challenged at the hearing about his claim he had lost his passport at the time, which was contradicted by the police report that he lost the passport months later, the applicant provided no reply. The Tribunal finds the applicant’s attendance problems pre-dated the news of his grandfather’s death and therefore that news was not a contributing factor. The Tribunal further finds the applicant had not lost his passport at the time he heard of his grandfather’s death and therefore his lost passport was not a factor that prevented him from returning home.

58. The Tribunal finds that his difficulties with accommodation and the news of his grandfather’s death do not constitute exceptional circumstances beyond the applicant’s control which contributed to his non-compliance.

12. It can be seen from the Tribunal’s reasons that it did, in fact, consider the circumstances that the applicant had put forward as allegedly exceptional circumstances. As I have indicated, the Tribunal at paragraphs 9 to 13 of its reasons set out what it considered to be the correct understanding of the term “exceptional circumstances.” In my view, the Tribunal accurately both set out the test and applied it in the present case.
13. The applicant’s written submissions refer to a number of cases. One of them, Wang & Minister for Immigration and Citizenship (2005) FMCA 918, was referred to by the Tribunal itself in its reasons. However, the applicant has also referred to a decision of the Victorian Supreme Court, Kent v Wilson (2000) VSC 98. The extract that the applicant has put forward is as follows:
    • Courts have been both slow and cautious about essaying the definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.
14. That statement is uncontentious. I do not consider that it assists the applicant in this case. The applicant then referred to the decision of Wilcox J in Nikac & Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 400; (1988) 16 ALD 611 at [56], where his Honour considered the meaning of exceptional circumstances and said:
    • The term “exceptional circumstances” postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question invariably arises: exceptional compared with what? ... Like beauty, exceptional circumstances lie in the eye of the beholder.
15. I do not consider there is anything in that quotation that assists the applicant in this case. The applicant then referred to the decision of the Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96; (2006) 152 FCR 115. In that case, the Full Court said that, following a legislative amendment, the exceptional circumstances requirement under s.116 of the Migration Act 1958 was on the same footing as the exceptional circumstances requirement under section 20 of the Education Services for Overseas Students Act 2000. Again, I do not understand the passage to which the applicant has referred to be of any assistance to him.
16. The applicant then said that, according to departmental policy, exceptional circumstances beyond the student’s control would be serious illness, hospitalisation, the death of a close family member, or a major political upheaval or natural disaster in the student’s home country that required emergency travel home. It is not suggested in this case that the applicant was required to travel home urgently. In fact, the applicant said he wished to but could not and did not. Sadly, the applicant’s grandfather died. The Tribunal did, in fact, consider the effect on the applicant of his grandfather’s death. The Tribunal noted at paragraph 57 of its reasons for decision that it was undoubtedly very distressing news that would have created significant difficulties of an emotional nature for the applicant. However, the Tribunal noted that the applicant had, prior to the grandfather’s death, been sent both a warning letter and a final warning letter from his educational institution. The Tribunal also expressed some doubt about the veracity of the applicant’s claims, given that he chose to relocate to Melbourne at about the same time as the grandfather’s death.
17. The applicant then reiterated in his submissions before this court matters that he had raised with the Tribunal, namely, his difficulties with accommodation in Geelong, the cost of travel, the fact that as an overseas student he had no family or friends here and the death of his grandfather. All of these matters were taken into account by the Tribunal. The Tribunal did not accept that they amounted to exceptional circumstances beyond the applicant’s control. I consider that that conclusion was open to the Tribunal on the evidence before it, particularly given the sequence of events which the Tribunal relied upon and which the applicant agreed was correct.
18. In oral argument today, the applicant advanced two further grounds. The applicant said that the Tribunal did not try to understand his reasons. I do not accept that submission. It seems to me that the Tribunal did understand the reasons that the applicant put forward. It simply did not accept that they amounted to exceptional circumstances.
19. The applicant also said in oral submissions today that the Tribunal did not follow the procedure about cancellation. I asked the applicant a number of times what he meant by that statement. First, he said the delegate had taken a year to make its decision. This does not seem to me to go to the procedures adopted by the Tribunal. If the delegate made some error, the Tribunal’s provision of natural justice would have overtaken that defect, in any event. The applicant then said that the Tribunal did not follow the procedure about the cancellation, because arrangements had been made in India about his accommodation. Again, this does not seem to have any bearing on the procedures followed by the Tribunal but is another attempt to invite the court to participate in merits review.
20. All in all, I am not persuaded that the Tribunal made any jurisdictional error. It seems to me that the applicant’s case is simply seeking merits review. I do not consider that the Tribunal’s decision falls into the category of case that was so unreasonable that no reasonable decision maker could have made it. It simply appears that the Tribunal assessed the claims that the applicant made and formed a view that was open to it, namely, that they did not constitute exceptional circumstances. Accordingly, the application must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Riley FM

Deputy Associate: Rosanne Hopkins

Date: 31 May 2010