FEDERAL COURT OF AUSTRALIA

Ahmad v Minister for Immigration and Citizenship [2009] FCA 1368

Education Services for Overseas Students Act 2000 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) 

Maan v The Minister for Immigration and Citizenship (2009) FCA FC 150

ADNAN AHMAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

VID 608 of 2009

MIDDLETON J

13 NOVEMBER 2009

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant is a citizen of Pakistan.  On 4 April 2007, he was granted a subclass 572 Vocational Education and Training Sector Visa (‘the Visa’), which was subject to condition 8202.

2                     The appellant enrolled in a Diploma of Community Welfare Work at Cambridge International College. 

3                     On 28 April 2008, a delegate of the first respondent cancelled the visa, acting pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).  The cancellation was based on the College’s certification that the appellant’s attendance at his course during semester two of 2007, (between 9 July 2007 and 21 November 2007), was unsatisfactory, with the result that the appellant breached condition 8202(3)(b) of his visa.  The delegate was satisfied that the breach was not due to exceptional circumstances that were beyond the appellant’s control. 

4                     The appellant sought review of the delegate’s decision before the Migration Review Tribunal (‘the Tribunal’).  On 20 November 2008, the Tribunal affirmed the delegate’s decision.  It found that the appellant had breached condition 8202(3)(b) in semester two of 2007, and it was satisfied that breach was not due to exceptional circumstances that were beyond the appellant’s control. 

5                     An application seeking judicial review of the Tribunal’s decision was dismissed by the Federal Magistrates Court on 30 July 2009. 

6                     The appellant appealed by notice of appeal filed 19 August 2009.  An affidavit of the appellant sworn 18 August 2009 has also been filed.  The appellant also relied upon a written submission dated “9-010-2009” which was substantially the same as the affidavit.  The appellant also made oral submissions, which again were a repetition of his written submissions and affidavit.

7                     The relevant legislative background was set out in the decision of the Federal Magistrates Court. 

8                     The effect of the relevant provisions of the Act and the Migration Regulations 1994 (Cth) is that if the Tribunal is satisfied that a 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.  If, however, non-compliance has occurred but it was due to exceptional circumstances beyond the visa holder’s control, then the Tribunal may cancel the visa.  The Tribunal correctly understood that position.

9                     During the period between 9 July 2007 and 21 November 2007 condition 8202 relevantly provided:

(1)       The holder … must meet the requirements of subclauses (2) and (3) …

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

            (a) …; or

(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 Services 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.

10                  The appellant made a number of contentions which were considered and rejected by the Federal Magistrates Court. 

APPELLANT’S APPEAL AND CONSIDERATION

11                  The appellant’s Notice of Appeal advances three grounds of appeal.

12                  The first ground asserts that the Federal Magistrates Court:

·                    failed to consider the law in relation to the student visa cancellations, in particular that the respondents had violated the provisions of the cancellation of the student visa of the appellant; 

·                    failed to recognise that there was no breach of condition 8202 of the regulations; 

·                    failed to recognise the Tribunal decision was full of legal errors, coupled with jurisdictional error; and

·                    upheld the Tribunal’s decision without giving its own reasons for judgment.

13                  I turn now to consider these matters.  The Federal Magistrates Court did not fail to consider the relevant law.  The Court set out correctly the relevant law and proceeded to consider and apply it.  It correctly found that there was no error in the decision of the Tribunal in finding, first, that the appellant had not complied with condition 8202; and secondly that non-compliance was not due to exceptional circumstances beyond his control.  In my view, the Court gave adequate and proper reasons for its judgment, and considered each of the arguments advanced by the appellant. 

14                  The second ground of appeal asserts that although the appellant made various submissions claiming legal errors in the Tribunal decision, the Federal Magistrates Court failed to take those claimed errors into account in its reasons for decision.

15                  In my view, the Federal Magistrates Court did not fail to consider all the appellant’s submissions, as is reflected in its reasons for judgment.  The Court considered specific matters agitated by the appellant, together with other matters which did not specifically fit into the grounds of the application, which related to statements from the College as to the appellant’s attendance. 

16                  The third ground of appeal appears to assert that the Federal Magistrates Court erred in failing to find that the Tribunal failed to apply proper law and procedure and that the laws of natural justice were ‘clearly violated’. 

17                  There is simply no material to support this ground of appeal.

18                  The appellant’s affidavit sworn 18 August 2009, and the written and oral submissions, repeat nearly verbatim the content of the amended application filed in the Federal Magistrates Court.  The affidavit refers to matters considered by the Federal Magistrates Court.  These matters included the appellant’s level of attendance at the College, the notification of the right of internal appeal, the medical certificates relating to both the appellant and his father, and two minor errors in the delegate’s decision. 

19                  In the course of the Federal Magistrates Court’s reasons, it observed that the notice given to the appellant by the College under s 20 of the Education Services for Overseas Students Act 2000 did not specify the period during which the appellant had failed to achieve satisfactory course attendance, and that the notice was ‘probably invalid’. 

20                  This tentative view was in error: see Maan v The Minister for Immigration and Citizenship (2009) FCA FC 150 and Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 299 at [86].  However, the Federal Magistrates Court recognised that defects in a s 20 notice are not material to whether a cancellation under the Act is invalid, and that the validity of the cancellation process under the Act is separate and distinct from the validity of the s 20 notice itself. 

21                  The Federal Magistrates Court also made a similar observation in relation to the notice given by the Minister, under s 119 of the Act, of intention to consider cancellation of the visa.  The Federal Magistrates Court considered that the notice was probably invalid also, because it did not refer to the period during which the appellant had failed to achieve satisfactory course attendance.

22                  However, the Federal Magistrate recognised that a failure to comply with s 119 did not deprive the Tribunal of jurisdiction to review a decision of the delegate on the merits.  The Tribunal had, in fact, drawn the period during which the appellant had been said to have had unsatisfactory attendance to the appellant’s attention, and specifically invited comment thereon. 

CONCLUSION

23                  For the above reasons, the appeal should be dismissed. 

24                  The Court will order: 

(1)        the appeal be dismissed;

(2)        the appellant pay the costs of the first respondent.

Associate:

Dated:         13 November 2009