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Mazumder v Minister for Immigration & Anor [2010] FMCA 76 (12 February 2010)

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Mazumder v Minister for Immigration & Anor [2010] FMCA 76 (12 February 2010)

Last Updated: 16 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAZUMDER v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Migration Review Tribunal decision – visa – student (subclass 573) visa – denial of natural justice not proved – decision-maker not required to look behind the apparent validity of a notice issued pursuant to s.20 of the Education Services for Overseas Students Act 2000.


Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Mo v Minister for Immigration & Citizenship [2009] FMCA 1026

Applicant:
MOHAMMED ARIF MAZUMDER

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 2125 of 2009

Judgment of:
Cameron FM

Hearing date:
29 January 2010

Date of Last Submission:
29 January 2010

Delivered at:
Sydney

Delivered on:
12 February 2010

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:
Australian Government Solicitor

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2125 of 2009

MOHAMMED ARIF MAZUMDER

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant, a citizen of Bangladesh, entered Australia on 25 January 2007 having been granted a subclass 573 visa on 11 January 2007. He was subsequently granted a further subclass 573 visa on 1 May 2007.
    A delegate of the first respondent (“Minister”) cancelled the applicant’s visa pursuant to s.116(1)(b) of the Migration Act 1958 (“Act”) on
    9 April 2009. The applicant applied to the Migration Review Tribunal (“Tribunal”) on 20 April 2009 for review of the delegate’s decision. That application was unsuccessful and now the applicant seeks judicial review of that decision.
  2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
  3. For the reasons which follow, the application will be dismissed

Relevant legislation

  1. Section 116 of the Act relevantly provides the following:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

...
...
  1. Regulation 2.43 of the Migration Regulations 1994 (“Regulations”) sets out the prescribed circumstances referred to in s.116(3) of the Act. For student visas that were in force on or after 8 October 2005, r.2.43(2) relevantly provides:

...

(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.

...
  1. Condition 8202 in sch.8 to the Regulations relevantly provides:
(2) The holder meets requirements of this subclause if:
(3) A holder meets the requirements of this subclause if neither of the following applies:

(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;

...
  1. Sections 19 and 20 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) relevantly provide:

(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;

(b) for each person who becomes an accepted student—the name, starting day and expected duration of the course for which the student is accepted;

(c) the prescribed information about an accepted student who does not begin his or her course when expected;

(d) any termination of an accepted student’s studies (whether as a result of action by the student or the provider or otherwise) before the student’s course is completed;

(e) any change in the identity or duration of an accepted student’s course;

(f) any other prescribed matter relating to accepted students.

(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.

(3) Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.

...

(4) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the Secretary the information as required under this section.

20 Sending students notice of visa breaches

(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.

...

(2) The registered provider must send the notice as soon as practicable after the breach.

...

(4) The notice must:

(a) contain particulars of the breach; and

(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; ...

  1. Standards 8 and 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (“National Code of Practice”) relevantly provide:

8.1 The registered provider must have an appropriate internal complaints handling and appeals process that satisfies the following requirements, or can use its existing internal complaints and appeals processes as long as it meets these requirements:

  1. a process is in place for lodging a formal complaint or appeal if the matter cannot be resolved informally, which requires a written record of the complaint or appeal to be kept
  2. each complainant or appellant has an opportunity to formally present his or her case at minimal or no cost to him or herself
  1. each party may be accompanied and assisted by a support person at any relevant meetings
  1. the complainant or appellant is given a written statement of the outcome, including details of the reasons for the outcome, and
  2. the process commences within 10 working days of the formal lodgement of the complaint or appeal and supporting information and all reasonable measures are taken to finalise the process as soon as practicable.
8.2 The registered provider must have arrangements in place for a person or body independent of and external to the registered provider to hear complaints or appeals arising from the registered provider’s internal complaints and appeals process or refer students to an existing body where that body is appropriate for the complaint or appeal.
8.3 If the student is not satisfied with the result or conduct of the internal complaint handling and appeals process, the registered provider must advise the student of his or her right to access the external appeals process at minimal or no cost.
8.4 If the student chooses to access the registered provider’s complaints and appeals processes as per this standard, the registered provider must maintain the student’s enrolment while the complaints and appeals process is ongoing.
8.5 If the internal or any external complaint handling or appeal process results in a decision that supports the student, the registered provider must immediately implement any decision and/or corrective and preventative action required and advise the student of the outcome.

Standard 10 – Monitoring course progress

...

a. requirements for achieving satisfactory course progress

b. process for assessing satisfactory course progress

c. procedure for intervention for students at risk of failing to achieve satisfactory course progress

d. process for determining the point at which the student has failed to meet satisfactory course progress, and

e. procedure for notifying students that they have failed to meet satisfactory course progress requirements.

10.3 The registered provider must assess the course progress of the student in accordance with the registered provider’s course progress policies and procedures at the end point of every study period.

10.4 The registered provider must have a documented intervention strategy, which must be made available to staff and students, that specifies the procedures for identifying and assisting students at risk of not meeting the course progress requirements. The strategy must specify:

  1. procedures for contacting and counselling identified students
  2. strategies to assist identified students to achieve satisfactory course progress, and
  1. c. the process by which the intervention strategy is activated.
10.5 The registered provider must implement the intervention strategy for any student who is at risk of not meeting satisfactory course progress requirements. At a minimum, the intervention strategy must be activated where the student has failed or is deemed not yet competent in 50% or more of the units attempted in any study period.
10.6 Where the registered provider has assessed the student as not achieving satisfactory course progress, the registered provider must notify the student in writing of its intention to report the student for not achieving satisfactory course progress. The written notice must inform the student that he or she is able to access the registered provider’s complaints and appeals process as per Standard 8 (Complaints and appeals) and that the student has 20 working days in which to do so.

...

Background facts

  1. The applicant was enrolled in a Bachelor of Computer Science course at the University of Wollongong (“University”). On 17 March 2009 the University issued a notice pursuant to s.20 of the ESOS Act (“s.20 notice”) stating that the applicant was not achieving satisfactory course progress for the purpose of s.19 of the ESOS Act and standard 10 of the National Code of Practice. The University notified the Minister’s department that the applicant’s results for Spring Session 2008 did not satisfy course progress rules and that he had been excluded with effect from 19 January 2009 until 1 March 2010. On 30 March 2009 the department issued a Notice of Intention to Consider Cancellation under s.116 of the Migration Act 1958 (“s.116 notice”).
  2. On 3 April 2009 the applicant responded by email to the notices and provided the Minister’s department with the following information:
    1. his course began smoothly for him;
    2. in January and February 2008, he had to return to Bangladesh to tend his ill father. His father died on 20 April 2008 and thereafter he was not able to concentrate on his studies;
    1. he was not able to attend his father’s funeral due to his study load;
    1. his father’s illness and subsequent death and the fact that a former girlfriend had become engaged to one of his closest friends affected his concentration on his studies;
    2. he married in Australia on 8 December 2008, returning to Bangladesh between 28 January 2009 and 13 February 2009 for the wedding reception; and
    3. his level of English was a barrier to his tertiary studies. He changed his course to English as he was not coping with the study load. He then applied for a new student visa.
  3. On 9 April 2009 a delegate of the Minister cancelled the applicant’s visa under s.116(1)(b) of the Act due to his failure to satisfy condition 8202(3)(b) of sch.8 to the Regulations. The delegate was satisfied that the applicant’s non-compliance was not due to exceptional circumstances beyond his control.
  4. By letter dated 2 July 2009, the applicant submitted to the Tribunal that the s.20 notice might have been defective and thus he did not have a case to answer because:
    1. beforehand, the University had never advised him that it intended to report him to the Department nor did it let him know that he could access the internal complaints procedure;
    2. prior to receiving the s.20 notice the applicant was not aware of any issues that might have affected the validity of his visa;
    1. the University did not comply with Standard 8 of the National Code of Practice, which states that twenty working days notice and advice as to appeals mechanisms must be provided;
    1. the s.20 notice did not comply with Standard 10 of the National Code of Practice, which provided for a documented and detailed intervention strategy to be implemented in respect of a student at risk of not meeting satisfactory course progress requirements;
    2. s.20 notices could only be issued to accepted students, thus after the applicant’s exclusion from the University he could not validly be issued with such a notice; and
    3. the applicant was currently enrolled at the Australian Institute of Commerce and Language and was achieving satisfactory course attendance and progress.
  5. In a statutory declaration declared on 8 July 2009 the applicant stated that the University did not take account of the exceptional circumstances affecting him.
  6. At the Tribunal hearing on 9 July 2009 the applicant gave the following additional evidence:
    1. he had failed three subjects out of seven in 2007;
    2. he struggled with the language and systems in Australia and this is “probably why he failed three subjects”;
    1. he could perform better but in 2008 he had been affected by his father’s death and his former girlfriend’s behaviour;
    1. he travelled to Bangladesh after November 2008, returning to Australia on 13 March 2009;
    2. he first became aware that there was an issue regarding his academic progress when he returned from Bangladesh in March 2009 and received the University’s letter dated 17 March 2009. Prior to receiving this letter, he was not aware of concerns regarding his course progress, nor had the University spoken to him about his results being a problem;
    3. he was aware that the University communicated by webmail;
    4. he received a couple of letters via the University’s webmail indicating that his progress rate was slowing down but these did not advise that his visa was “being called”. He could not access these letters when he returned to Australia in early 2009 because his webmail account had been closed;
    5. he had last accessed webmail in October 2008;
    6. he was not able to access webmail after receiving his results by mail in November 2008. He received his results after leaving Australia. His friend advised him of his results, having opened his mail for him;
    7. one or two days after receiving these results, he sought assistance from the University to be able to access webmail but without any success;
    8. he did not see the webmail notification sent in November 2008 advising that his results were pending, that his progress once finalised would be assessed against course rules and that his enrolment was at risk;
    1. he was aware that he was at risk of being excluded if he did not pass the three courses he was enrolled in at the time;
    1. with respect to his exclusion, he had previously been advised by the University’s counsellor that if he did not pass the three courses he was enrolled in then he could not appeal any subsequent decision or action taken by the University;
    2. he had signed an Intervention Strategy on 29 August 2008. This did not refer to the personal difficulties he claimed affected his studies;
    3. as a result of the previous counselling advice, he chose not speak to the University’s counsellor after receiving his results in November 2008. Furthermore, he was in a big rush at the time and “pretty much messed up”. However, he contacted one of his course tutors via email for a subject he had failed stating that he thought that he might have passed that course as he had submitted all assignments;
    4. he did not seek assistance from a doctor or counsellor for his problems as he did not know that he could talk with people about these problems and was too shy to do so. Whilst he had seen the counselling service at the University, and may have told them about the problems he had with his girlfriend, he did not disclose so much at that time. He mainly spoke with his friends about his issues; and
    5. he did not receive a notice dated 19 January 2009 from the University advising him that he did not meet course progress requirements and that he could appeal this decision. If he had been aware that he could appeal in respect of this issue, he would have done so.

The Tribunal’s decision and reasons

  1. The Tribunal affirmed the delegate’s decision for the following reasons:
    1. the Tribunal did not consider the applicant’s non-compliance with condition 8202 was the result of exceptional circumstances beyond the applicant’s control because:
      1. the pattern of the applicant’s study in Australia over time, his failure to report these matters during 2008 as affecting his performance and his subsequent behaviour in marrying and returning to Bangladesh indicated that the death of his father and the behaviour of his girlfriend were not exceptional circumstances causing non-compliance;
      2. the applicant had difficulty with his study from the beginning of his course and his performance in 2008 was merely a continuation of this pattern;
      3. there were no independent references to the difficulties the applicant claimed had affected his studies;
      4. when he returned to Bangladesh, he made only the most cursory efforts to keep in contact with the University to try to resolve the difficulties he was experiencing; and
      5. in so far as the applicant claimed that the inadequacy of the University’s arrangements were exceptional circumstances beyond his control, the Tribunal found that the applicant was properly notified of “issues along the way and through the s.20 notice”;
    2. the Tribunal was of the view that failure to comply with the National Code of Practice did not affect the validity of the s.20 notice because:
      1. there is no procedure for making any relevant certifications under the National Code of Practice or the relevant legislation;
      2. the relevant provisions do not require that certifications in respect of condition 8202(3)(a) be made “under” those provisions; and
      3. the history behind the introduction of condition 8202 indicates that a primary purpose of the amendment was to transfer the responsibility of assessing a student’s attendance and progress from the Department to education providers, and to limit the Department’s role to migration matters;
    1. the Tribunal was of the view that even if it were wrong on this issue, the evidence as a whole indicated that the relevant aspects of the National Code of Practice had been clearly and comprehensively implemented since:
      1. the applicant had been appropriately counselled and had been the subject of an intervention strategy;
      2. the applicant was appropriately notified via webmail of the possibility of exclusion, notwithstanding that he may not have accessed this material; and
      3. the applicant was aware of the procedures involved in such situations because of an earlier attempt to exclude him from University but he simply chose not to take appropriate action after November 2008 to determine the outcome of his studies;
    1. the Tribunal further stated that the fact that the applicant did not access relevant material was not the University’s fault as it had kept clear and comprehensive details of communication with the applicant;
    2. the Tribunal rejected the applicant’s claim that s.20 notices were not valid if issued after a student is excluded from their course because:
      1. it could not have been Parliament’s intention that s.20 notices would become invalid in circumstances where an education provider follows the correct procedure in warning a student as to their progress and subsequently excludes them from further study as a result of failure to progress in accordance with the institution’s rules; and
      2. such an outcome would indicate that it was Parliament’s intention that the procedure to be adopted could rarely have valid effect, applying only in those circumstances where an institution maintains the enrolment of a student found not to have satisfied course progress requirements.

Proceedings in this Court

  1. The grounds of the application commencing these proceedings were pleaded as follows:

(1) That the Migration Review Tribunal failed to accord the natural justice to me.

(2) That the Migration Review Tribunal made error of law being jurisdictional error in that it identified the wrong issue and/or relied on irrelevant material and/or ignored relevant material.

(3) That the Migration Review Tribunal failed to exercise its jurisdiction under Migration Act and/or acted in excess of its jurisdiction.

Denial of natural justice

  1. Natural justice hearing rule obligations imposed upon the Tribunal are codified by s.357A of the Act in those provisions found in div.5 of pt.5 of the Act. No allegation of bias has been made against the Tribunal and so the bias rule need not be considered.
  2. The applicant’s submissions concerning the way in which he alleged the Tribunal had denied him natural justice focused on his dissatisfaction with the Tribunal’s decision concerning whether his failure to make satisfactory course progress was brought about by exceptional circumstances beyond his control and whether the University’s alleged failure to comply with the National Code of Practice had significance for the validity of the Tribunal’s decision.
  3. The applicant did not submit that any of the provisions found in div.5 of pt.5 of the Act were not observed by the Tribunal and, on review of its decision, its not apparent that any, most notably ss.357A(3), 359A and 360, were not. For this reason, the first allegation made in the application is not made out.

Wrong issue, irrelevant considerations, relevant considerations

  1. The applicant’s allegation concerning what he said were exceptional circumstances beyond his control is more relevantly considered in the context of the second allegation.
  2. The exceptional circumstances beyond his control which the applicant submitted the Tribunal had not considered were identified to be his English language difficulties in the early stages of his time in Australia, his father’s death and his abandonment by his girlfriend in preference for one of his friends.
  3. A review of the Tribunal’s decision record discloses that this allegation cannot be made out on the facts. In paras. 83 to 85 of the Tribunal’s decision (CB 110-111) it considered the very matters which the applicant submits it ignored. It also became apparent during his oral submissions in these proceedings that the applicant’s principal complaint was that the Tribunal disagreed with him concerning whether the circumstances underlying his failure to make satisfactory course progress were exceptional and beyond his control. As the Court is not empowered to review the Tribunal’s findings of fact, this complaint does not disclose a basis on which the Tribunal’s decision may be set aside.
  4. In no other respect did the applicant identify any integers of the claim which were not dealt with by the Tribunal, any considerations which should have been considered but were not nor others which should not have been considered but were.
  5. Consequently, the second allegation is not made out.

Jurisdictional error

  1. The third allegation is no more than an unparticularised assertion that the Tribunal was guilty of jurisdictional error. No particulars of the allegation have been provided and therefore it lacks substance. However, the allegation that, in essence, the decision to cancel the visa was invalidated by the University’s s.20 notice itself having been invalidated by the University’s failure to comply with the National Code of Practice would appear to be appropriately considered in the context of this allegation.
  2. The claimed failure of the University to comply with standard 8 of the Code does not indicate jurisdictional error on the Tribunal’s part. In
    Mo v Minister for Immigration & Citizenship [2009] FMCA 1026 an applicant in similar circumstances alleged that the education provider in question had not been entitled to make a certification under the ESOS Act because it did not follow the procedures required by the National Code of Practice. In that case, Raphael FM, with whom I respectfully agree, said:
  3. As a result, even if the University had not observed the National Code of Practice, this would not invalidate the decision of the delegate, affirmed by the Tribunal, to cancel the applicant’s visa based on the s.20 notice.

Conclusion

  1. Jurisdiction error on the part of the Tribunal has not been demonstrated.
  2. Consequently, the application will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM


Associate:


Date: 12 February 2010

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