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Patel v Minister for Immigration [2011] FMCA 19 (20 January 2011)

Last Updated: 4 November 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION
[2011] FMCA 19

MIGRATION – Review of decision of the Migration Review Tribunal – whether visa cancellation was valid – whether applicant was properly notified of cancellation – visa properly cancelled by operation of law – applicant properly notified of cancellation – no insufficiency of particularity in notice – no jurisdictional error – application dismissed.



R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; (1952) 85 CLR 138
Ex parte IBM Global Services Australia Ltd [2005] FCAFC 66
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284
Haque v Minister for Immigration & Citizenship (No 3) [2010] FCA
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration and Citizenship v Le [2007] FCA 1318
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395
Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; [1998] HCA 28; (1998) 194 CLR 355
NAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 136; (2002) 196 ALR 376
Minister For Immigration And Multicultural And Indigenous Affairs v SZANS [2005] FCAFC 41
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91
Miliangos v George Frank (Textiles) Ltd [1976] AC 443
Minister for Immigration and Citizenship v Brar and Another [2009] FCAFC 53
Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078

Applicant:
BHAVESH GOPALDAS PATEL

Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:
SYG 2117 of 2010

Judgment of:
Nicholls FM

Hearing date:
16 December 2010

Date of Last Submission:
16 December 2010

Delivered at:
Sydney

Delivered on:
20 January 2011

REPRESENTATION

Counsel for the Applicant:
Mr M Jones

Solicitors for the Applicant:
Michael Jones, Solicitor

Counsel for the Respondent:
Mr D Godwin

Solicitors for the Respondent:
DLA Phillips Fox

ORDERS

(1) The application made on 28 September 2010 is dismissed.
(2) The applicant to pay the respondent’s costs set in the amount of $5,865.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2117 of 2010

BHAVESH GOPALDAS PATEL

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent


REASONS FOR JUDGMENT

  1. This is an application made on 28 September 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking declaratory and other relief in relation to a decision made on behalf of the respondent Minister that an application for a visa made by Mr Patel should be treated as valid.
  2. The sole ground of the application is in the following terms:

Background

  1. The Minister has put before the Court a bundle of relevant documents (“Court Book” – “CB”). (See further below at [11].) From this, and from the non-contested parts of the written submissions of both parties, the following background may be ascertained.
  2. Mr Patel was the holder of a student visa which was granted to him on 21 May 2010 and was expressed to expire on 30 August 2010.
  3. He was enrolled in a Diploma of Hospitality Management course at the Illawarra Business College (“the education provider”).
  4. The visa was granted with condition 8202(3) attached to it. (See Sch.8 to the Migration Regulations 1994 (Cth).) The condition is in the following terms:
  5. On 10 June 2010 the education provider issued a certificate in respect of the applicant that fell within condition 8202(3)(b) (CB 52).

Before the Court

  1. When the matter came on for hearing, Mr M Jones appeared for Mr Patel. Mr D Godwin of counsel appeared for the respondent Minister.
  2. Taken into evidence was the affidavit of the applicant, Mr Bhavesh Gopaldas Patel, made on 28 September 2010 (no objection) and the affidavit of Krunal Nayak, administration officer, made on 29 November 2010 (no objection).
  3. Also taken into evidence was the affidavit of Lisa White, the national manager of the education provider, made on 14 December 2010.
  4. I upheld Mr Jones’ objections to pages 32 to 44 of the Court Book.

Further Background

  1. Subsections 20(1) to (4) of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) is as follows:
  2. In view of this, the education provider was required to notify Mr Patel of the breach.
  3. The evidence of Ms White is that the relevant notice (“the s.20 notice”) was prepared and sent on 10 June 2010 to the last address provided to the education provider by Mr Patel for the purposes of receiving correspondence. It has not been returned.
  4. Mr Patel’s evidence is that he did not receive this notice. Consequently he did not attend at the Minister’s department within 28 days of 10 June 2010.
  5. The Minister’s position is that the applicant’s visa was cancelled automatically by operation of s.137J of the Act, which is in the following terms:
  6. The applicant’s evidence, supported by Mr Nayak, although not as to the date, is that on or about 29 August 2010 he attempted, through his migration agent, to electronically lodge an application for a further student visa. However, this was not “accepted”.
  7. On 31 August 2010 Mr Patel attended at an office of the respondent’s Department and was advised that the visa he had held had been cancelled by operation of s.137J of the Act.
  8. Mr Patel had not sought revocation of the s.137J notice under s.137K by 30 August 2010 (the date on which the visa would have otherwise expired). Therefore, in these circumstances, he was unable to seek a revocation after that date given the provisions of s.137K(2).

The Issues

  1. The ground as pleaded, and as originally pressed in written submissions, has two complaints or issues.
  2. The first, in light of the evidence originally available, was that the applicant had not received the notice from the education provider, and that there was no evidence that a notice had been sent. If the latter circumstance were to be found then a critical factor to trigger the automatic cancellation would not exist, thus rendering the cancellation invalid.
  3. In light of Ms White’s evidence, however, Mr Jones conceded that Mr Patel could no longer contend that the s.20 notice was not sent to him.
  4. The remaining issue for consideration by the Court, therefore, was the complaint that, in any event, the notice sent was not a valid s.20 notice.
  5. Mr Jones referred the Court to s.20 of the ESOS Act in its form as at the relevant time of the sending of the notice:
  6. The first limb of this complaint is that the applicant did not accept that the notice sent to him by the education provider (see Annexure “A” to the affidavit of Ms White) was in the form approved by the Secretary to the Minister’s Department as required by s.20(3) of the ESOS Act.
  7. Mr Jones offered no evidence to support this claim. Mr Godwin submitted that in the current circumstances, where the onus is on the applicant to establish jurisdictional error, the applicant’s contention must fail in the absence of any such evidence.
  8. He relied on: R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; (1952) 85 CLR 138 at 155 per Dixon, Fullagar and Kitto JJ, Ex parte IBM Global Services Australia Ltd [2005] FCAFC 66 at [27] per Gray, Whitlam and Moore JJ, Maroun v Minister for Immigration and Citizenship [2009] FCA 1284 (“Maroun”) per Jagot J at [15], Haque v Minister for Immigration & Citizenship (No 3) [2010] FCA 772 per Gilmour J at [26]-[29], Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 (“SLZSP”) at [71] per Kenny J.
  9. Mr Jones referred to Minister for Immigration and Citizenship v Le [2007] FCA 1318 (“Le”) at [55] per Kenny J, where her Honour quotes:
  10. The submission was that the issue of burden of proof in judicial review proceedings is not always “straight-forward”, and that the onus does not always fall on the applicant (or rather the party making the assertion) in all cases at all times.
  11. Mr Jones’ argument was that the circumstances of this case are such that the onus transfers to the respondent. This is said to be the case because the current case present a “classic Jones v Dunkel situation” (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395 (“Jones v Dunkel”)).
  12. I note that Jones v Dunkel was on appeal to the High Court and involved a traffic accident and whether the trial Judge’s directions relating to evidence of negligence (and whether evidence was presented or not presented) were correct.
  13. Mr Jones referred this Court to:
    1. At 312 (per Menzies J):
      • “In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.”
    2. At 320-321 (per Windeyer J):
      • “... Then, I think, his Honour should, when the juryman asked his question, have given an answer in accord with the general principles as stated in Wigmore on Evidence 3rd ed (1940) vol. 2, s.285, p.162 as follows: ‘The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairy be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.’
      • This is plain commonsense. If authority be needed, two passages from R. v Durdett may be cited. Abbott CJ said: ‘No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but it matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected’.”
  14. In short, Mr Jones’ submission was that their Honours “set up” a three step procedure:
    1. A party to put on evidence of a particular claim, or fact, or circumstance.
    2. Evidence of the type that the other party would be in a position to contradict.
    3. If the other party does not put on any such evidence then an inference can be drawn that the evidence put on by the first party is “correct” (I understood this to mean that the contention is then to be accepted).
  15. Mr Jones’ submission falls at the first hurdle. When pressed as to what the evidence was that would engage 1) and then 2) and 3) above (at [33]), Mr Jones responded that this was the applicant’s evidence that he held a visa which, on its face, was valid at the time he attempted to lodge an application for another visa.
  16. The argument appeared to be that, in these circumstances, if there was no evidence rebutting this, then jurisdictional error would be “proven”. Mr Jones posed the question the applicant could ask: “How can I be accused of lodging an invalid application on the grounds that I do not have a visa, when I have got a visa?”
  17. There are quite obvious flaws in the logic employed here, probably, it must be said, because of the “interesting” (in the circumstances of this case) reliance on Jones v Dunkle. The question rhetorically posed is irrelevant to the immediate issue pressed before the Court.
  18. The answer to the applicant’s rhetorical question (apart from not being “accused” of anything) is that your application is invalid because such application is dependent by law on your having a visa. You do not have a visa because it was properly cancelled by operation of law. You were sent a valid notice pursuant to s.20 of the ESOS Act, which led to the cancellation of your existing visa.
  19. Mr Jones’ submission leads us in a full circle back to where the argument started.
  20. Using Mr Jones’ own “framework” (as set out at [33] above), the claim or the circumstance relevant to where the burden of proof lays is on the question of whether the s.20 notice that was sent was in the approved form.
  21. The applicant has put no evidence whatsoever before the Court to even suggest that it was not. It is trite to say that a mere assertion that the notice was not in the approved form is not evidence. Bearing in mind the context for this consideration, it is not evidence that on any authority calls for the respondent to bear the onus to prove that it was in the approved form.
  22. The applicant’s evidence that he attempted to apply for a visa, and had a visa which on its face was valid (apart from the fact that it was not), is neither here nor there when it comes to the immediate matter for consideration: whether the s.20 notice was sent in the approved form.
  23. It is evidence about that matter that, even on Mr Jones’ construction, would trigger the remaining planks of the argument that he seeks to construct from Jones v Dunkle.
  24. In the circumstances of this case, and the specific issue (the notice in the approved form) for immediate consideration, there is nothing in Jones v Dunkle, or SZLSP and Le, that assists the applicant (see [27] – [28] above).
  25. During the hearing I was reminded by Mr Godwin of the approach taken by Jagot J in a matter on appeal from this Court which provides direction and comfort for the view I have taken (Maroun):
  26. In all, therefore, the applicant had provided no evidence to support or even suggest the assertion that the notice was not in the approved form. In these circumstances the contention is not made out.
  27. The second limb of the applicant’s complaint is that the s.20 notice sent was, in effect, inadequately particularised. This complaint is based on s.20(4)(a) and (b) of the ESOS Act. (See [12] above.)
  28. Mr Jones referred to the notice sent to the applicant (see the affidavit of Ms White – Annexure “A”) and in particular that part of the notice headed: “Particulars of the breach” (page 4 of 7), which is in the following terms:
  29. The complaint is that what is set out here is insufficient for the purposes of the legislation because it does not inform the applicant of what amounts to “satisfactory course attendance”, nor to the manner or to what extent he failed to achieve that standard. That this is contrary to the legislative intent and therefore the deficiency in particulars renders the notice invalid.
  30. The difficulty for the applicant is to be found in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229 (“Chen”) per Lander J which, as in the current case, was concerned, amongst other things, with the validity of a s.20 ESOS notice.
  31. Relevantly, I note the following from Chen:
    1. At [61]:
      • “The ESOS Act itself does not identify the level of particularity which is required under s.20(4)(a).”
    2. At [64]:
      • “There can be no doubt that the notice under s.20 of the ESOS Act must contain particulars. The level of particularity must serve the statutory purpose. However, the statutory purpose of the notice under s.20 of the ESOS Act... is to bring to the student’s attention that the registered provider had formed the opinion that the student has breached a condition of the student visa. It is an initiating procedure...”
    3. At [68]:
      • “In my opinion, it would be sufficient to comply with s.20(4)(a) of the ESOS Act for the service provider to identify the condition which has been breached... either by number or description and by identifying the manner in which the condition has been breached.”
    4. In considering the effect on an applicant who receives a notice which does not contain adequate, or even wrong particulars (at [84]), his Honour referred to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-389 per McHugh, Gummow and Hayne JJ (at [85]), and concluded:
      • “In my opinion, a notice under s.20 of the ESOS Act, which does not contain sufficient particulars, or which contains particulars that are wrong, is not invalid and of no effect.” [At [80].]
    5. At [87]-[88]:
      • “[87] For the reasons already given, the purpose of the notice, in relation to the student, is to bring to the student’s attention that the registered provider is of the opinion that the student has breached a condition of the student visa. It is an allegation by an institution which has no power to take any further action in respect of the allegation. The allegation has no effect if the student responds to the notice and establishes the absence of a breach. The allegation itself has no effect even if the student does not respond to the notice because it is not the allegation which triggers the operation of s 137J of the Migration Act but the notice itself.
      • [88] Moreover, a student’s visa will be cancelled even if the student does not receive a s 20 notice: s 137J. The Minister is not entitled to revoke the cancellation on the ground that the non-citizen was unaware of the notice or the effect of s 137J: s 137L(2). In those circumstances, it is difficult to say that a s 20 notice, which is under particularised, should be held to be invalid and of no effect in relation to the student.”
  32. With respect, these extracts do not do justice to his Honour’s complete reasoning, but are meant to provide a representation of the propositions and findings relevant to the current case.
  33. Mr Jones submitted that Chen was plainly wrong and, on the basis that it was a judgment in the exercise of the original jurisdiction of the Federal Court (and not the appellate jurisdiction), not binding on me, and therefore I should find it was plainly wrong and not follow it.
  34. He relied on the views expressed by Raphael FM in NAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 136; (2002) 196 ALR 376 at [27], which he said were “endorsed” by a Full Court in Minister For Immigration And Multicultural And Indigenous Affairs v SZANS [2005] FCAFC 41:
  35. It must be said that I do not read this as being an “endorsement” as described by Mr Jones. Certainly not to the level that would assist the applicant here. Distinctions between the effect on this Court of judgments of the Federal Court as between the appellate and original jurisdiction are unhelpful. The Federal Court is a superior court to this one. This is the inferior court. The situation for this Court was exemplified (albeit in a somewhat different situation) in SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91 at [41] per Black CJ and Allsop J.
  36. In particular, I note there the reference to the observations of Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 478 as to the duty of a subordinate court in relation to a superior court:
  37. In any event, at its highest, the submission that Chen is wrong derives from the argument that the purpose of requiring particulars in the notice (s.20(4)(a)) is to enable a student to make submissions about the breach when the student attends at the Minister’s Department. The purpose in s.20(4)(b) would be defeated, or is left without work to do, if it is accepted that the student can attend, but not be in a position to do so because of a deficiency or insufficiency in particularity.
  38. In short, the provision would be meaningless if the notice could be said to be valid, even though the particulars are insufficient.
  39. The answer is that I agree with Mr Godwin that the argument that the approach in Chen leaves s.20(4)(b) with no work to do is both a superficial argument and one that lacks merit when regard is had to the entire relevant scheme, the context within which the notice sits, and ultimately the role of s.20(4)(b) within it.
  40. The argument ignores, or does not comprehend an important part of, Lander J’s reasoning in Chen. Section 20 is focussed on the education provider, not on the student as such. The obligation is on the education provider to provide a notice (Chen at [39]), a failure to do so has consequences for the provider, it is an offence not to do so when circumstances require it and there is liability to sanctions (Chen at [40]). The principal purpose of s.20 is to ensure an education provider does not continue to receive benefits under the ESOS Act for a student who is either not attending courses or not performing academically to an appropriate level (condition 8202) (Chen at [41]).
  41. This distinction between the notice and the cancellation of the visa, the difference in focus, is emphasised when regard is had to s.137J(1) of the Act. The automatic cancellation applies even if the student does not receive the s.20 ESOS notice (so long as it is sent). (Chen at [43].)
  42. Chen at [47]:
  43. Plainly, as Lander J recognised (at [48]), the education provider has to comply with the requirements of s.20(4)(b). But it is, as Mr Godwin submits, and as Lander J clearly explained, quite different to also say that a failure to comply with the requirements of s.20 will not lead to the invalidity of the notice.
  44. This is the essence of the relevant reasoning in Chen. With the greatest respect, not only is it not plainly wrong, it is quite plainly correct.
  45. I note also that in Minister for Immigration and Citizenship v Brar and Another [2009] FCAFC 53 (“Brar”), and in particular at [22] – [23] per Stone J, with whom Greenwood J (at [29]) and Besanko J (at [49]) generally agreed, reference was made to Chen at least with apparent approval. Certainly no disapproval was expressed.
  46. The notice therefore reveals no insufficiency in particularity. It met the level of particularity required in informing the applicant that, in the education provider’s opinion, he had breached a condition of his student visa. The notice satisfied the relevant requirements in that it identified the condition which was said to have been breached. It did not need to go further and specify the circumstances attendant on the breach.
  47. Mr Jones also submitted that amendments to the ESOS Act from the version that was considered in Chen (and Brar) means that the current matter can be distinguished, and therefore the reasoning in Chen should not be accepted.
  48. Relevantly, the former version was, as set out at [24] above, but reproduced for ease of comparison below:

The current version applicable to the circumstances of this case:

“20 Sending students notice of visa breaches
...
(4) The notice must:
[Education Services for Overseas Students Legislation Amendment Act 2007 (No 70, 2007) (Cth).]
  1. The difference then is that on the older version the student was said to attend at the Minister’s Department: “... for the purpose of explaining the breach...”. The current version requires the student to attend: “... for the purpose of making any submission about the breach and the circumstances that led to the breach...”.
  2. Mr Jones appeared to concede that “grammatically or semantically” it is not easy to distinguish the making of submissions about the breach and explaining the breach. What he relied upon are what he described as the additional words: “... and the circumstances that led to the breach”.
  3. At best, I understood the argument to be that the Minister now relies on Chen, that the wording in s.20(4)(b), as it was, did “not mean very much”, that Lander J did not think it had any great significance, that if that is the case then the legislature going to the trouble of amending these words, and that, on the Minister’s submission, they still do not “mean very much”, then this means that the Parliament has wasted time and effort to take something that has no meaning and change it to something that still has no meaning.
  4. The “logic” of the submission is that if the meaning found by Lander J was as he expressed it, then this has been changed by the legislature after Chen, and the change has been to “those crucial words”. This is the basis upon which the current case is therefore to be distinguished.
  5. Putting to one side that on its own this still does not provide any useful distinction, the difficulty that I also had with this submission is that it again ignores or misrepresents the reasoning in Chen.
  6. With the greatest respect to the far more eloquent expression in Chen, to put it bluntly and simply for current purposes, s.20 of the ESOS Act is about the education provider, not the student. Section 20 is concerned with the obligation, and the consequent liability in failing to comply, on the education provider, not the student.
  7. If nothing else, this is emphasised, as Mr Godwin submitted, by the two legislative “Notes” appearing in both versions of s.20 of the ESOS Act.
  8. That the sending of the notice has consequences for the student is obvious. But, as Lander J reported, Cooper J (in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078) said that the notice “... merely initiates the procedure under s.137J of the Migration Act” (at [47]) (and see generally for the relevant statutory scheme at [48] to [60] of Chen).
  9. The consequent opportunity to make submissions, which Mr Jones says has been denied to the applicant because of the insufficient particulars in the s.20 notice, is encompassed in these other procedures.
  10. The “absence” of this opportunity is derived from the failure to subsequently attend at the Minister’s Department, not from any lack of particularity, or even wrong particulars in the s.20 ESOS notice.
  11. The change in the wording in s.20(4)(b) of the ESOS Act does not affect the rationale in Chen and particularly that the validity of the s.20 notice was not affected by insufficient particularity. This attempt to distinguish Chen ignores or misunderstands that rationale.

Conclusion

  1. The applicant’s ground is not made out. On what is before the Court Mr Patel was sent a valid s.20 ESOS notice. As he did not present to the Minister’s Department within 28 days of it being sent the visa granted to him on 21 May 2010, it was subsequently cancelled pursuant to s.137J of the Act.
  2. As that cancellation was not revoked at the relevant time, Mr Patel was unable to make a valid application for a further student visa on or about 29 August 2010.
  3. Sections 46(1)(d) and 48(1)(b)(ii) of the Act operate to produce this circumstance.
  4. I cannot see that a basis exists to consider the granting of the relief sought by the applicant. The application to the Court is therefore to be dismissed.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 20 January 2011

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