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MIGRATION - Review of decision of Migration Review Tribunal affirming a decision of a delegate of the Minister to cancel the applicant's student visa - no reviewable error disclosed - application dismissed.

Sejwal v Minister for Immigration [2003] FMCA 109 (11 March 2003)

Sejwal v Minister for Immigration [2003] FMCA 109 (11 March 2003)
Last Updated: 10 April 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SEJWAL v MINISTER FOR IMMIGRATION
[2003] FMCA 109



MIGRATION - Review of decision of Migration Review Tribunal affirming a decision of a delegate of the Minister to cancel the applicant's student visa - no reviewable error disclosed - application dismissed.



Federal Court of Australia Act 1976

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Education Services for Overseas Students Act 2000

Federal Magistrates Court Rules, Part 21 Rule 21.02(2)(a)

Migration Regulations, Regulation 2.43(2)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Applicant:
CHANDER KANT SEJWAL



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 1043 of 2002



Delivered on:


11 March 2003



Delivered at:


Melbourne



Hearing Date:


11 March 2003



Judgment of:


Hartnett FM



REPRESENTATION

Counsel for the Applicant:


Mr G. Gilbert



Solicitors for the Applicant:


Acquaro & Co



Counsel for the Respondent:


Mr C.G. Fairfield



Solicitors for the Respondent:


Australian Government Solicitor


ORDER

(1) Leave to the applicant to amend the application filed 19 August 2002 to include the following claim:-

(a) That the Tribunal asked itself the wrong question and/or identified the wrong issue in failing to consider the validity of the section 20 notice; and

(b) That the Tribunal asked itself the wrong question and/or identified the wrong issue in failing to consider whether the action of the education provider brought about the inability of the applicant to comply with the condition.

(2) The application filed 19 August 2002 as amended is dismissed.

(3) The applicant pay the costs of the respondent assessed in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules. There be a stay on such payment of one month.

(4) Certify for counsel.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 1043 of 2002

CHANDER KANT SEJWAL


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an ex tempore judgment.

2. The application before me was transferred to the Federal Magistrates Court pursuant to section 32AB of the Federal Court of Australia Act 1976 and order 82 of the Federal Court Rules by order of Kenny J on 8 October 2002.

3. The applicant filed his application for an order of review on 19 August 2002. Such application was not supported by affidavit. He sought under section 39B of the Judiciary Act 1903 (Cth) to review the decision of the Migration Review Tribunal (hereafter referred to as the "MRT") to cancel his student (Temporary)(Class TU) visa, subclass 560 pursuant to the Migration Act 1958 (Cth) ("the Act").

4. In particular he claimed that the MRT had made a decision infected by jurisdictional error in that, as set out in paragraph 3(a) and (b) of the application, the MRT erred in constructing:

i) condition 8202 in holding that there must be strict compliance with subdivision (3)(a) rather than substantial compliance; and

ii) section 116 of the Act, in concluding that cancellation is mandatory, rather than discretionary where there has been noncompliance with condition 8202.

5. In support of that application the applicant filed contentions of fact and law on 4 November 2002. On the hearing of the matter before me counsel appearing on behalf of the applicant filed the applicant's supplementary contentions of fact and law. That supplementary document significantly changed the manner in which the proceedings were conducted. I shall return to that subsequently. As a result of the new contentions raised by the applicant, which had not previously been raised, I granted leave to the applicant to amend his application. I ordered as follows:

ORDER:

Leave to the applicant to amend the application filed 19 August 2002 to include the following claim:

a) That the Tribunal asked itself the wrong question and/or identified the wrong issue in failing to consider the validity of the section 20 notice; and

b) That the Tribunal asked itself the wrong question and/or identified the wrong issue in failing to consider whether the actions of the education provider brought about the alleged breach of condition 8202.

History

6. The applicant was born on 11 August 1979, is a single male and national of India. He entered Australia on 14 July 1999 as the holder of a student (temporary) (class TU) visa, subclass 560, which was granted on 11 July 1999 and which ceased on 28 July 1999. He was issued with a further subclass 560 visa on 28 July 1999 which was due to cease on 20 January 2002 and to which was attached condition 8202.

7. On 18 January 2002 a delegate of the respondent cancelled the applicant's visa on the basis that he did not satisfy condition 8202 ("enrolment and course requirements").

8. On 24 January 2002 the applicant sought review of that decision by the MRT. On 22 July 2002 the MRT affirmed the primary decision: (CB 35 to 42).

Migration Review Tribunal hearing

9. The MRT has the power to affirm, vary or set aside a decision to cancel a visa.

10. The applicant has held a bridging visa since 18 January 2002, granted on the basis of the visa cancellation continuing to be subject to review. He has not in that time been permitted to pursue his studies.

11. The applicant was enrolled in an advance diploma of hospitality (management) at William Angliss Institute of TAFE. On 17 January 2002 William Angliss sent the Department of Immigration and Multicultural Affairs a notice under section 20 of the Education Services for Overseas Students Act 2000 which advised that the applicant had had an average attendance rate of 63 per cent for semester 2 in the year 2001. The applicant was, as a consequence, interviewed by the department. He stated, amongst other things, that he wanted to finish his diploma and return to India. If his visa were cancelled it would be the end of his career. He further stated that he enrolled two weeks late in his course at William Angliss and that he was asked to withdraw in the seventh week in the second semester 2001 and restart again. Following that interview his student visa was cancelled on the ground that he had breached condition 8202 as he had not met attendance requirements.

12. Before the tribunal was a psychologist's report dated 13 February 2002 and other material, as referred to in paragraphs 19 and 20 in particular of the tribunal's reasons (see casebook 38). The applicant gave evidence. He was invited to fax any additional material to the tribunal. By letter dated 20 June 2002 a certificate 11 in hospitality dated 21 February 2002 from William Angliss was forwarded.

13. The MRT found:

a) that the applicant had attended less than 80 per cent of the contact hours of the course scheduled for semester 2 of 2001;

b) that the applicant had therefore breached condition 8202;

c) that the Tribunal was precluded from considering whether the applicant had substantially complied with condition 8202; and

d) even if (c) were not the case the applicant had not substantially complied with that condition and the breach was not due to circumstances reasonably beyond the control of the applicant.

Consideration

14. The applicant initially contended that the MRT committed jurisdictional error in two respects:

a) that there was a failure to exercise jurisdiction through some fundamental mistake about the inquiry and determination required by the legislation conferring authority to act;

However no "fundamental mistake" was identified by the applicant and:

b) that there was a breach of procedural fairness in the failure to take into account relevant considerations, being the evidence of Mr Kleynhans (the psychologist) when determining whether the applicant had circumstances which affected the applicant's ability to attend his classes.

15. Furthermore the applicant initially alleged that the Tribunal did not make a bona fide attempt to exercise its power. No further particulars were provided as to this very serious - and I find - unfounded allegation.

16. In submissions before me this day however, and in the applicant's supplementary contentions of fact and law the applicant did not pursue the contention that the decision of the Tribunal was affected by an absence of bona fides. Nor did the applicant pursue the contention that the tribunal failed to take into account relevant considerations, being the evidence of Mr Kleynhans, nor the contention that this amounted to a breach of the rules as to procedural fairness. Furthermore the contentions relating to an alleged jurisdictional error on the part of the delegate, as contained in paragraph 13 of the earlier contentions of fact and law, was also abandoned. That was the allegation that there was a failure to exercise jurisdiction through some fundamental mistake about the inquiry and determination required by the legislation conferring authority to act. On the material before me it was appropriate that these grounds be abandoned by the applicant.

17. It has always been and continued to be conceded by the applicant that in semester 2 of 2001 his attendance at William Angliss Institute of TAFE was 63 per cent and therefore less than the 80 per cent requirement as set out in condition 8202.

18. The applicant accepted and submitted that there was no discretion as to cancellation of a student visa if a breach of condition 8202 was established. Furthermore, that substantial compliance has no place in a cancellation decision where the applicant has attended for interview following a service of the "section 20 notice". The statutory scheme that governs the matter was succinctly set out in the respondent's contentions of fact and law paragraphs 17 to 22 and I adopt these submissions which are set out below:

(a) The applicant's visa was cancelled by the delegate of the respondent pursuant to section 116 of the Act. That decision was affirmed by the MRT.

(b) Section 116(1) of the Act provides that the Minister may cancel a visa if satisfied as to certain matters. One of those matters, relevantly, is that the holder of the visa has not complied with a condition of the visa (section 116(1)(b)). However section 116(3) provides that if the minister may cancel a visa pursuant to section 116(1) he or she must do so if there exist prescribed circumstances in which a visa must be cancelled.

(c) Regulation 2.43(2) of the Migration Regulations provides that, for the purposes of section 116(3) of the Act, the circumstances where the Minister must cancel a visa are:

a) each of the circumstances comprising the grounds set out in paragraphs 1(a) and (b); and

b) in the case of a Student (Temporary)(Class TU) visa, that the minister is satisfied that the visa holder has not complied with:

i) condition 8104 or 8105 (if the condition applies to the visa); or

ii) condition 8202.

(d) Relevantly, the "grounds set out in paragraphs 116(1)(b)" are if the visa holder:

Had not complied with the condition of the visa...

(e) At the relevant time, condition 8202 required, amongst other things, that:

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:

(i) for a course that runs for less than a semester - for the course; or

(ii) for a course that runs for at least a semester - for each term and semester of the course ...

19. Thus, section 116 when read with regulation 2.43(2) and condition 8202 provide that if a visa applicant has not complied with condition 8202 then pursuant to section 116(3) of the Act the decision-maker must cancel the visa.

20. Counsel for the applicant submitted that the notice under section 20 was not validly issued. There is nothing before me to suggest that that is the case. Section 20 of the Education Services for Overseas Students Act 2000 provides that a registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance. In subparagraph (2) of that section the registered provider must send the notice as soon as is practicable after the breach.

21. There is no contention raised by the applicant that the notice itself was not in a form approved by the Secretary of the Immigration Minister's Department, nor that it contained those matters which it must contain pursuant to section 20(4) of the said Act. The notice is contained in the Court Book and was before the Tribunal. The notice was forwarded to the applicant and dated 17 January 2002. Following receipt of that notice the applicant did attend at the department's offices and was subsequently interviewed. The particulars of breach set out in the notice were conceded by the applicant, namely that he had an attendance of an average of 63 per cent for semester 2 (July to December) 2001.

(1) Counsel for the applicant in submissions to the court argued that the action of the education provider brought about the alleged breach of condition 8202. I do not find that to be the case. The education provider is required to send to the applicant a section 20 notice where the applicant has breached, as the applicant in fact did, student visa conditions relating to attendance. That notice was provided to the applicant in the month following the conclusion of the semester, namely in January 2002. This would appear to have been at a time as soon as practicable after the breach. By letter from William Angliss dated 23 April 2002, as contained in the Court Book, it is clear that the education provider took the applicant out of his stage 4 classes on 2 August 2001 because of his outstanding modules from previous stages 1 to 3. He was asked to continue to finish his outstanding classes, work and assessment and report to the coordinators once a week before he could continue with his stage 4 modules the following semester. Contrary to the applicant's earlier assertion, what in fact had occurred was that he commenced his second semester on 23 July 2001, attending classes for the stage 4 modules before being taken out of those classes on 2 August 2001 and being required to complete outstanding modules from previous stages. Nowhere is it suggested in that correspondence that this action on the part of William Angliss contributed to the attendances of the applicant on an average of 63 per cent in that semester. Indeed, William Angliss reduced the workload of the applicant in order to enable him to catch up, as it were, on his studies. There is nothing to suggest that William Angliss engaged in any allegedly culpable conduct, nor that that Institute was the cause of the noncompliance with his student visa by the applicant.

22. The applicant did not attend his scheduled contact hours as a result of anything that William Angliss TAFE did or did not do. There is nothing to suggest that it was not possible for the applicant to attend 80 per cent of the scheduled contact hours, as required pursuant to condition 8202.

23. The applicant's contentions in respect of jurisdictional error raised in light of the reasoning of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, cannot be made out. There is nothing before me which could lead to a finding or conclusion of actual bias, jurisdictional error or breach of procedural fairness. The decision was a bona fide attempt by the decision maker to exercise the power vested in the Tribunal. The decision related to the subject-matter of the Act and was referrable to the power given to the Tribunal. There was no breach of an inviolable limitation. Accordingly I propose to dismiss the application and order that the applicant pay the respondent's costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: LMDorian

Date: 28/03/2003
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