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MIGRATION - Visa - student visa - Migration Review Tribunal - application for review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the respondent Minister to cancel the applicant's student (temporary) visa - applicant a citizen of Bangladesh - visa condition 8202 enrolment and course requirements - breach of condition of visa regarding attendance - failure to make satisfactory progress - no reviewable error.

Rahman v Minister for Immigration [2004] FMCA 892 (17 November 2004)

Rahman v Minister for Immigration [2004] FMCA 892 (17 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAHMAN v MINISTER FOR IMMIGRATION
[2004] FMCA 892




MIGRATION - Visa - student visa - Migration Review Tribunal - application for review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the respondent Minister to cancel the applicant's student (temporary) visa - applicant a citizen of Bangladesh - visa condition 8202 enrolment and course requirements - breach of condition of visa regarding attendance - failure to make satisfactory progress - no reviewable error.




Migration Act 1958 (Cth), ss.116, 395A, 395C

Migration Regulations 1994

Applicant:
TAIMUR RAHMAN




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1514 of 2004




Delivered on:


17 November 2004




Delivered at:


Sydney South




Hearing date:


17 November 2004




Judgment of:


Scarlett FM




REPRESENTATION

Solicitor for the Applicant:


Mr Jiang




Solicitors for the Applicant:


Lexes Lawyers




Counsel for the Respondent:


Ms Henderson




Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The application is dismissed.

(2) The Applicant is to pay the Respondent's costs fixed in the amount of $4,000.00.

(3) Transcript of reasons required.

(4) The application is removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1514 of 2004

TAIMUR RAHMAN



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The application before the Court is an application for review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister to cancel the Applicant's student visa. The Applicant is a young man from Bangladesh. He is still only 19 years of age this time. He first entered Australia on 21 October 2002 when he was then 17 years of age. He held a student visa which was due to expire on 15 March this year with condition 8202 Enrolment and Course Requirements attached.

2. His visa was cancelled on 11 November 2003 for failure to meet the course requirements. The decision of the Migration Review Tribunal sets out details of the transactions between the Department and the Applicant.

3. On 22 October 2003 the Applicant was issued with a notice from Insearch under section 20 of the Education and Services for Overseas Students Act 2000, informing him that he was in breach of a condition of his visa relating to attendance and that if he failed to attend an office of the Department within 28 days then his visa would automatically be cancelled.

4. The notice referred to the particulars in his breach in the following terms:

Student was in foundation studies and science program and failed two subjects. He transferred to the foundation studies in design and found it very difficult. Current and overall attendance is 58.85 per cent. His weighted average mark is 10.33.

5. On 3 November 2003 the Applicant attended an interview with an officer of the Department. He was issued with a notice of intention to consider cancellation. This notice stated that a breach of condition 8202 may have occurred. In relation to his failure to maintain an 80 per cent attendance and/or make satisfactory academic progress.

6. According to the Department's inquiries in term 1 of 2003 the Applicant's attendance at Insearch was 62.93 per cent, even taking into account medical certificates of which the Department was aware. In term 2 the attendance was 58.85 per cent taking into account medical certificates. The Department also found that his academic progress in term 2 was less than satisfactory. He had been counselled on 25 June 2003 about his attendance. In semester 1 of 2003 he failed two of the five subjects in which he was enrolled. In semester 2 of 2003 he failed all six subjects.

7. When the Applicant attended the interview on 11 November 2003 he provided a statement saying that he was not 18 years of age when he arrived in Australia and was anxious and inexperienced. He was only educated to the Australian equivalent of Year 10 and found the foundation studies very difficult.

8. He changed to design studies but his attendance was 75 per cent. He said he could not attend more because he was traumatised by his study situation. He said he wanted to change to an easier education provider. He didn't realise he had to attend design classes as he had chosen to change to a business course. He did not receive any warning from Insearch and did not submit the medical certificates that he had been issued which would cover the remaining five per cent of attendance. He said he had been advised by departmental staff that Insearch sends students to counselling before reporting them to the Department. He said that this did not happen.

9. He said that Insearch would not allow him to be enrolled so he had gone to the Sydney West International College and commenced classes there on 10 November 2003.

10. The delegate of the Minister found there are grounds for the cancellation of the visa and the visa was cancelled.

11. He made an application for review of the Migration Review Tribunal and what then happened, on 6 April 2004 the Tribunal wrote to the Applicant in accordance with section 359A of the Act, and invited him to comment in writing on information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. Essentially this information was that which was relied upon by the delegate and the decision to cancel.

12. The letter to the Applicant appears at page 31 and 32 of the Court book. The information upon which the Applicant was invited to comment was the following:

Insearch has advised that in term 1 2003 your attendance was 62.93 per cent including medical certificates (60.05 per cent without certificates) and in term 2 2003 your attendance was 58.85 per cent including medical certificates (39.58 per cent without certificates). In your letter to the Department you refer to an attendance figure of 75 per cent and that you have medical certificate to account for a further five per cent of absence. However, the Tribunal notes that the figures above are not close to 75 per cent and that your education provider has already considered medical certificates. Academic records provided by Insearch indicate that in term 2 2003 you failed all six subjects in which you were enrolled. Insearch deemed that in this term your academic progress was less than satisfactory.

13. The letter went onto point out to the Applicant that condition 8202 required an attendance of at least 80 per cent in each term of his course and the condition also required him to achieve an academic result that was deemed by his education provider to be at least satisfactory in each term. Failure to comply with the condition would lead to mandatory cancellation of the visa.

14. The letter went on to inform the Applicant that he should provide the requested information in writing within five working days. The letter went on to warn the Applicant under section 359C of the Migration Act that if the Tribunal did not receive any comments within the period of five days it would make a decision on the review without taking any further action to obtain his comment and he would not be entitled to appear before the Tribunal.

15. The letter did warn the Applicant that the material that the Tribunal had would be a reason or part of a reason for affirming the decision that was under review, in other words the cancel of his visa.

16. The Applicant did not forward any material to the Tribunal's letter within five working days. On 16 April 2004, 10 days later, the Tribunal received by hand two documents from the Applicant without a covering letter. One was an undated certificate of attendance from Sydney West International College stating that the review Applicant was enrolled at that college between 10 November 2003 and

6 February 2004 and that his attendance was 88 per cent and also a document headed as "Subject and Grade List". The Migration Review Tribunal considered that those documents did not constitute comment on the adverse information nor a response in accordance with the requirements of section 359C.

17. The material provided did not cover most of the time set out by the letter of 6 April, nor did it address the fact that the academic progress with Insearch was less than satisfactory. In fact the Applicant had failed all six subjects in term 2. In my view, after some consideration the Tribunal was within its rights to consider that the documents do not constitute a comment on the adverse information in accordance with section 359C.

18. The Tribunal went on, on page 47 of the Court book to find that the attendance records for the course for the two terms was 62.93 per cent and 58.85 per cent and that academic progress in term 2 was less than satisfactory after the Applicant failed all six subjects in which he was enrolled. The Tribunal then was satisfied that the Applicant had not complied with condition 8202 of the visa and was therefore liable for cancellation. At paragraph 38 the Tribunal noted that it did not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. The Tribunal affirmed the decision by the delegate to cancel the Applicant's visa.

19. The Applicant did file an affidavit. He did annex to the affidavit copies of medical certificates from August through to November showing that he suffered various illnesses and was incapacitated. The Applicant did provide the subject and grade list from the Sydney West International College.

20. In a written submission today Mr Jiang, solicitor for the Applicant, that the medical certificates submitted by the Applicant were in his possession at the time but were not located by the Applicant until a later period of time. He went onto submit that the Applicant not only mentioned that he did not show all his medical certificates to his school at the interview with the Respondent's delegate on 11 November 2003 but also said in his application for review to the Tribunal that he would provide relevant documents to support his application. The Applicant nevertheless did not clearly indicate that he did have medical certificates to be submitted and how many there were.

21. The Applicant's solicitor has pointed out that notwithstanding the fact that the Tribunal wrote to the Applicant at the address of his migration agent and invited him to comment on information under section 359A, the Tribunal should not hand down its decision without contacting the applicant personally and being sure that the Applicant had no further documents or arguments relating to the issues.

22. The Applicant is only 19. He came from a foreign country, just arrived in Australia one and a half years ago. He has no family structure in this country. He was obviously confused, Mr Jiang submitted, and needed some assistance. In fact, the Applicant had indicated he had something to say about his case and that the fact that no response was received in time did not allow the Tribunal to act in the way it did. The Tribunal should have exercised all of its powers including discretionary powers to carry out its functions and pursue its objectives under the Act. The Tribunal had an obligation he submitted to do more than issue a letter.

23. Counting the medical certificates that have been submitted for semester 1 the Applicant's solicitor refers to 85 class days, 54 days of actual attendance, 11 days covered by medical certificates with a total therefore of 76 per cent. For semester 2, there were 80 class days, 29.69 days actual attendance, 37 days covered by medical certificate which brings it up to a figure of 83.36 per cent.

24. One of the problems that the Applicant suffers is that the figures do not necessarily show that his illness was the cause of his academic failure. Of the 85 class days in semester 1 the Applicant attended only 65, so there are unexplained absences of 20 days. The 80 class days in semester 2 the Applicant attended, including medical certificates, 67, so there are unexplained absences for 15 days.

25. The Applicant's solicitor claims in paragraph 23 of the submission that the Applicant's unsatisfactory academic achievements in semester 2 of 2003 were due to his sickness which if the medical certificates were submitted the Tribunal would have to take into consideration and the decision would not have been firmed.

26. Ms Henderson for the Respondent submits that that is not necessarily so and the fact is that the Applicant had other absences, significant unexplained absences that were not explained. Nevertheless in term 2 there were 37 days where the Applicant had medical certificates which is a very large piece to be taken out of the time available. It is perhaps not surprising that the Applicant failed all six of his subjects.

27. What he did do was find the course too hard and enrol in another easier course. His attendance at that has been good but it does not get around the fact that, if you like, the damage has already been done. The attendance has been unsatisfactory and the academic results for the year have been definitely unsatisfactory.

28. The condition 8202 is couched in very specific terms. Paragraph 1:

The holder must meet the requirements of subclauses (2) and (3). Subclause (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 per cent of the contact hours scheduled. (a)(ii) for a course that runs for at least a semester for each term and semester of that course; and (b) in any case the holder achieves an academic result that is certified by the education provider to be at least satisfactory; (b)(ii) for a course that runs at least a semester for each term or semester whichever is shorter of the course.

29. The fact is that the Applicant's attendance at the course was significantly, was below the time required by condition 8202, notwithstanding the late tendered medical certificates. The academic results have been very unsatisfactory. Clearly the Applicant attended a course that his previous education did not allow him to undertake.

30. In my view the Migration Review Tribunal correctly considered that a failure to meet condition 8202 is fatal to the Applicant's claim and that the decision to affirm the decision of the delegate to cancel the student visa was correct in law. I am satisfied that there is no reviewable error and the application will be dismissed.

31. I require a transcript of my reasons for this decision.

32. I note that the sum of $4000 is claimed. In my view that is within the range of lump sum costs contemplated by sch 1 of the Federal Magistrates Court Rules 2001 for a case of this nature.

33. The application will be removed from the list of cases awaiting finalisation.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 25 November 2004
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