FEDERAL COURT OF AUSTRALIA

Vannemreddy v Minister for Immigration and Citizenship [2013] FCA 245

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

Note:    Settlement of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Migration Review Tribunal: Vannemreddy v Minister for Immigration and Anor [2012] FMCA 680.

2    The appellant is a 28 year-old Indian national who came to Australia to study on a student (subclass 572) visa. He enrolled in two courses at the Australian Adelaide International College (“the College”) between 10 March 2010 and 11 March 2011. On 27 November 2010 the College certified to the Department of Education, Employment and Workplace Relations that the appellant’s attendance at the College was unsatisfactory and that he had thereby breached condition 8202 of his visa.

3    On 14 February 2011, after hearing from the appellant, a delegate of the Minister of Immigration and Citizenship was satisfied that the appellant had not complied with condition 8202 and that this was not due to extraordinary circumstances beyond his control. The delegate cancelled the appellant’s visa pursuant to s 116(3) of the Migration Act 1958 (Cth) (“the Migration Act”). The appellant sought review of the delegate’s decision by the Migration Review Tribunal and on 6 February 2012 the Tribunal affirmed the cancellation. The appellant then made an application for judicial review to the Federal Magistrates Court. On 25 July 2012 the learned Federal Magistrate dismissed the application for review.

4    The appellant now appeals to this Court from the judgement of the learned Federal Magistrate. For the reasons I set out below the appeal must be dismissed.

Relevant legislation

5    Prescribed visa condition 8202 is set out at Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”) and relevantly provides:

(1)    The holder (other than the holder of a subclass 560 (student) visa who is an AusAID student or the holder of a subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

…

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

…

(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 2007.

Plainly, failure to achieve satisfactory course attendance constitutes a breach of condition 8202 of a student (subclass 572) visa. In the present case the College certified to the Department that the appellant was not achieving satisfactory course attendance pursuant to s 19 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (“the National Code”).

6    Section 116 of the Migration Act relevantly provides:

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

…

(b)    its holder has not complied with a condition of the visa;

…

(3)    If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

7    Regulation 2.43 of the Regulations sets out the prescribed circumstances referred to in s 116(3). For student visas in force on or after 8 October 2005 reg 2.43(2) relevantly provides:

(2)    For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:

…

(b)    in the case of a Student (Temporary) (Class TU) visa:

…

(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.

8    The effect of these provisions is that where a decision-maker is satisfied that a student visa holder has not complied with condition 8202, and that the non-compliance was not due to exceptional circumstances beyond his or her control, then the prescribed circumstances under s 116(3) of the Act exist, and the decision-maker is required to cancel the visa.

9    On 19 September 2007, pursuant to s 499 of the Migration Act, the Minister made Direction 38 titled “Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202 (or for the review of such cancellation decisions) and for considering revocation of automatic cancellation of student visas (or for the review of decisions not to revoke such cancellations)” (“Direction 38”). Direction 38 specifies non-exhaustive guidelines that give substance to reg 2.43(2)(b)(ii)(B).

10    Paragraphs 4 to 6 of Direction 38 provide:

[4]    In relation to the issue that arises under subsubparagraph 2.43(2)(b)(ii)(B), decision-makers must have due regard to but are not limited to the following matters:

•    policy advice from the Director of Compliance Operational Support Section… to give due regard to a political upheaval or natural disaster in a particular country. Decision-makers must give consideration to whether that country is the student’s home country and to whether the particular political upheaval or natural disaster has affected the student’s ability to comply with condition 8202;

•    where [the Department] or an education provider states in writing that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and the reporting thereof. This may include concerns in relation to monitoring of the student, the complaints handling and appeals process and/or the certification and reporting process. In particular, decision-makers should give due regard to the following matters and make further inquiries as appropriate:

o    if the education provider has failed to accurately monitor the student’s course progress or attendance;

o    if the education provider has failed to give the student access to a complaints handling and appeals process as required under standard 8 of the National Code 2007.

[5]    If decision-makers at the primary level consider there may be matters of weight that are relevant to the issue that arises under subsubparagraph 2.43(2)(b)(ii)(B) that fall outside of the matters described in paragraph 4 of this Direction they should consult with the Director of Compliance Operational Support Section…

[6]    Decision-makers must consider all of the facts of a case in total. The weight to be given to relevant matters is a matter for decision-makers. Decision-makers must come to their own view as to whether they are satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

11    Standard 11 of the National Code is titled “Monitoring Attendance”. Standard 11.6 provides:

Where the registered provider has assessed the student as not achieving satisfactory attendance for the courses identified in 11.1, the registered provider must notify the student in writing of its intention to report the student for not achieving satisfactory attendance. 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.

(Emphasis added.)

One of the grounds of appeal is based in the fact that the College did not provide the appellant with 20 working days in which to appeal.

The facts

12    The appellant was granted a student (subclass 572) visa on 20 May 2008 prior to entering Australia in June of that year. On 1 April 2010 he was granted a further student (subclass 572) visa He enrolled in two courses at the College, namely:

(a)    a Certificate IV in Business course starting on 10 March 2010 and finishing on 5 September 2010; and

(b)    a Diploma of Management course starting on 13 September 2010 and finishing on 11 March 2011.

13    In June 2010 the appellant obtained permission from the College to be absent from his studies between 8 June and 20 July 2010 so as he could travel to India because his grandmother was ill. He left Australia on 8 June 2010 but did not return until 7 August 2010. The appellant said that he stayed longer in India than was approved by the College because he fell ill with a cold, fever and diarrhoea. He missed about two weeks of his Certificate IV in Business classes as a result.

The warning letters

14    Mr Joseph Garreffa, the Principal Executive Officer of the College (“the Principal”) says, and the business records of the College confirm, that on 11 October 2010 the appellant was sent a letter, dated the same day, and headed Student Attendance 1st Warning Letter by the Principal (“the First Warning Letter”). The letter stated:

Our attendance records are showing that your current projected attendance is at risk of falling below the minimum 80% average attendance requirement.

…

This letter is your 1st warning letter and your attendance will be monitored closely over the rest of the term.

Please be advised that as soon as your current rate of non-attendance results in you being unable to attain an average course attendance of 80% over the current Term or your average course attendance for the current Term falls below 80%, the College will notify Department of Immigration and Citizenship… that you have breached your VISA conditions.

If you have any reason why you will be not able to attend the course at the required hours per week, you must contact the college in person immediately and arrange a meeting with the Training Manager to discuss how we can improve this situation.

At the College our aim is to assist your satisfactory progression through your chosen course of study. We are very pleased to discuss any attendance problems and reach satisfactory solutions.

(Emphasis in original.)

The appellant denies receiving the First Warning Letter at this time. It is common ground that he did not at this time contact the College in relation to his unsatisfactory attendance.

15    The Principal also says, and the business records of the College confirm, that on 20 October 2010 the appellant was sent a letter of that date signed by the Principal headed Student Attendance 2nd Warning Letter (“the Second Warning Letter”). It was in essentially the same terms as the First Warning Letter. Again, the appellant denies receiving the letter at that time and did not contact the College in relation to his unsatisfactory attendance.

16    Finally the Principal says, and the College’s business records confirm, that on 1 November 2010 the appellant was sent a letter by registered mail headed Student Non-Attendance at Classes Final Notification (“the Final Warning Letter”). The Principal also says that an attempt was made to contact the appellant by telephone before sending this letter, but he was unreachable. The letter stated:

Please be informed that your attendance in the Diploma of Management course has dropped below 80% of your scheduled hours in a semester. As an on shore International Student holding a student visa, enrolled in Diploma of Business, you are required to comply with a number of conditions relating to that visa [as per ESOS Act 2000], including attending at least 80% of your scheduled hours in a semester.

As a result of the above, Australian Adelaide International College is forced to notify your breach of satisfactory attendance to the Secretary of DEST through PRISMS to cancel your visa.

Please note that you have the right to appeal this decision within 20 working days from the date of this letter, in accordance with the AAIC guidelines which is can be located in your hand book or on the College website.

…

The appellant also denies receiving this letter at this time. He did not commence any appeal to the College.

17    In fact, the appellant says that the first time he was provided with each of the First, Second and Final Warning Letters was in a meeting with the Principal on or about 8 December 2010. He says that the Principal prepared and signed each of the letters in his presence, using three different coloured pens to do so, and then handed them to him.

The Section 20 Notice

18    On 27 November 2010 the College certified to the Department, pursuant to s 19 of the ESOS Act and Standard 11 of the National Code, that the appellant had not achieved satisfactory course attendance in respect of the Diploma of Management course. At that time about 19 working days had elapsed since the Final Warning Letter of 1 November 2010 (depending on the date upon which the appellant is to be taken to have received that letter). The Minister concedes that the appellant was given this period within which to appeal rather than the 20 working days as provided in Standard 11 of the National Code.

19    On the same day the appellant was sent a notice pursuant to s 20 of the ESOS Act, advising him that the College had certified to the Department that his attendance at the Diploma of Management course was unsatisfactory, and that this gave rise to a breach of a condition of his student visa (“the Section 20 Notice”).

Notice of intention to consider cancellation of visa

20    The appellant says that, shortly after he received the Section 20 Notice, he approached a director of the College and told him that he had not received any prior warning letters from the College. He says that he was advised by the director to provide a letter to the Principal apologising for his absences, and that something would be done in relation to the issue. Accordingly, he says that he wrote a letter of apology to the Principal on 8 December 2010.

21    On 15 December 2010 a delegate of the Minister provided the appellant with notice of the Minister’s intention to consider cancellation of his visa under Section 116 of the Migration Act. The notice advised that the College had reported the appellant for unsatisfactory attendance, and that the delegate considered that there may be grounds for the cancellation of his visa on the basis of a potential breach of visa condition 8202.

22    On 12 January 2011 the appellant attended an interview with the delegate. The appellant provided the delegate with a written statement dated 11 January 2011. In the written statement, which is of significance in the appeal, the appellant said:

My attendance between 10th March 2010 to 5th of September was excellent and I have completed my Cert IV in Business in due time and started my Diploma of Management on the 13th of September I have been going to the college regularly until 8th of October.

Suddenly on 9th of October 2010 I have got phone call from my parents that my grandmother is sick (provided doctor certificate for your reference). I am really attached to my grand mother from my childhood, first time in my life I have felt really bad staying away from my grand mother. That is why I have been into depression and couldn’t attend the college regularly. I have consulted AAIC Administration on 18th October 2010 and explained the situation at this stage I had been absent for 1 week. After that I have been attending the classes irregularly because I can’t able to come out from the depression and as I don’t know anyone over here who can suggest me what to do so I suffered the trauma within myself.

…

(Emphasis added.)

23    The appellant also provided the delegate with his letter to the Principal, of 8 December 2010, apologising for his absences. The letter stated:

With reference to the above stated subject, I apologise that I couldn’t meet the minimum attendance percentage due to personal domestic issues. Furthermore, my grandmother, whom I am very close with is bedridden now faces health issues. All these issues have hampered me from concentrating on my studies and also has mentally stressed me out completely.

Please excuse me for this once and I will make certain that I prioritise my studies and focus to meet the attendance required.

Kindly find attached the medical certificate stating my actual condition.

Thanking you in advance for understanding and due cooperation [sic].

24    The appellant sought to rely on a letter from the Principal of 8 December 2010 which (with its various spelling and grammatical errors) stated:

Mr vannermredd has been enrolled at the Australian Adelaide International College since the 10th of March 2010 where he was enrolled in the Certificate IV in Business and the Diploma of Management which commenced on the 9th of September 2010.

Mr vannermredd has completed his Certificate IV in Business having successfully passed all the required units. Overall his attendance was satisfactory meeting all visa requirements.

From the 8th of June to the 20th of July Mr Vannermreddy requested leave his grandmother as she was very ill. Leave was granted on sighting the medical certificates.

Very recently on the 27th of November we issued Mr vannermredd I decided to report Mr Vannermreddy for no attendance after he failed to comply with the section 20 notice letter issued on the 1st of November.

On the 8th of December Mr vannermredd has presented himself with a medical certificate as well as an apology letter for his absence and his plea to focus on his studies.

I would like advice the department that I would be willing to give Mr Vannermredd to continue with his studies as I do believe his case is genuine and that depression may have been a factor in his nonattendance.

Cancellation of visa

25    On the basis that the College had certified under s 19 of the ESOS Act and Standard 11 of the National Code that the appellant had not achieved satisfactory course attendance, the delegate was satisfied that the appellant had not complied with condition 8202 of his visa.

26    In considering whether the appellant’s non-compliance with condition 8202 was due to exceptional circumstances beyond his control the delegate noted that the appellant said that the reason for his absences from the course at the College was the fact that he found out in October 2010 that his grandmother was unwell and may need surgery. The appellant said that he had become depressed as a result and then did not attend the College regularly. He had provided a short medical report from Dr Sung-Phu Lam which stated that he was suffering from anxiety and stress which was contributed to by his grandmother’s illness. He claimed he had not received any warning letters from the College about his unsatisfactory attendance.

27    The delegate concluded that none of the matters expressly referred to in Direction 38 were applicable to the appellant’s case. That is:

(a)    there was no political upheaval or natural disaster in India which had affected the appellant’s ability to attend his courses;

(b)    there was no written advice from the Department or from the College that they had concerns about errors, and/or inappropriate actions or omissions in the administrative process involved in compliance and reporting; and

(c)    there were no other matters of weight relevant to the existence of exceptional circumstances beyond the appellant’s control.

On this basis the delegate was satisfied that the appellant’s non-compliance with condition 8202 was not due to exceptional circumstances beyond his control.

28    On 14 February 2011 the delegate decided to cancel the appellant’s visa under s 116 of the Act.

The MIGRATION REVIEW Tribunal hearing

29    On 18 February 2011 the appellant applied to the Tribunal to review the decision to cancel his visa. The application was listed for hearing on 8 June 2011 and the solicitors for the appellant filed detailed written submissions prior to the date.

30    Three main issues arose for consideration by the Tribunal, namely:

(a)    whether the appellant had failed to comply with condition 8202; and

(b)    if so, whether the Tribunal was satisfied that the non-compliance was not due to exceptional circumstances beyond the appellant’s control; and

(c)    if not so satisfied, whether the appellant’s visa should be cancelled having regard to all the circumstances.

31    The appellant’s evidence at the hearing apparently raised questions before the Tribunal, and it adjourned the hearing. On 17 June 2011 the Tribunal wrote to the Principal seeking further information and the Principal provided a written response on 17 August 2011. In a letter dated 26 August 2011 the Tribunal wrote to the Principal again, seeking his response to several further questions. The Principal provided a written response on 31 August 2011.

32    In his responses the Principal stated, amongst other things, that:

(a)    the appellant was not granted permission to extend his trip to India, and only had permission to be absent until 20 July 2010;

(b)    the College sent the three warning letters to the appellant on the dates that they carried;

(c)    the Final Warning Letter was sent to the appellant by registered post on 1 November 2010;

(d)    the appellant did not respond to any of the three warning letters, and did not attend the College in relation to his unsatisfactory attendance until 8 December 2010 - after the College had already certified his unsatisfactory attendance to the Department;

(e)    the appellant did not attend any Diploma of Management classes from the commencement of that course on 13 September 2010.

33    The Tribunal then wrote to the solicitors for the appellant advising them of a resumed hearing date on 19 October 2011 and attaching a summary of the information provided by the Principal. The appellant was invited to consider arranging witnesses or witness statements in relation to his attendance at the Diploma of Management course. The appellant took up the opportunity, filing detailed further submissions and further witness statements, and calling further witnesses on the resumed date.

34    After the resumed hearing the Tribunal retired to make its decision. On 6 February 2012 the Tribunal affirmed the delegate’s decision to cancel the appellant’s visa. The decision makes it clear that the Tribunal reached an adverse view of the appellant’s credibility. In large part this conclusion was based on the fact that the account of events given by the appellant to the Tribunal was markedly different to the version of events he gave to the delegate.

35    The first difference related to whether the appellant had completed the Certificate IV in Business course by the completion date, 5 September 2010. In his written statement of 11 January 2011 to the delegate (set out at [22] above) the appellant stated that his attendance at the College was “excellent” until 5 September 2010 and that he had completed the course “in due time”.

36    In contrast, he admitted to the Tribunal that as a result of his leave of absence from the College between 8 June 2010 and 7 August 2010 he fell behind in his Certificate IV in Business course and could not complete it by the due date. He said that he was required to complete a number of units in the course after the due date and that the Principal agreed that he could complete those units later with the assistance of his lecturer Mr Satnam Gill. He said that during September, October and November 2010 he attended the College two days a week to finish the Certificate IV course.

37    Secondly, and of particular significance because the College’s certification of unsatisfactory attendance related to this course, the Tribunal considered that the appellant contradicted himself in relation to his attendance at the Diploma of Management course. In his statement to the delegate he said that he had started his Diploma of Management course on 13 September 2010 and had been going to College regularly until 8 October when he was advised of his grandmother’s illness. He said that it was from that date that he “felt really bad, [being] away from his grand mother”, became depressed and ceased to attend College regularly. However, to the Tribunal he said that the lecturer conducting the Diploma of Management course had refused to permit him to attend any classes in that course until he had completed the Certificate IV course. He said he had not attended any classes for the Diploma of Management course from its commencement on 13 September 2010.

38    Thirdly, although in his statement to the delegate the appellant said he completed his Certificate IV course “in due time”, his evidence to the Tribunal was that he had never properly completed that course. He said that he was awarded the qualification by the Principal despite the fact that he had not completed the necessary units. For the resumed hearing the appellant supplied a statement from his former lecturer Mr Gill which supported his claim that Mr Gill helped him complete his Certificate IV course after 5 September 2010. Mr Gill stated that the appellant was a weak student who had been provided with extra classes as part of an intervention strategy by the College. However, as the Tribunal noted, Mr Gill’s statement that the appellant had satisfactorily completed all Certificate IV assignments contradicted the appellant’s evidence that he had not in fact done so.

39    For the resumed hearing the appellant also filed a statutory declaration swearing that he had recently been informed by the new Principal of the College that Mr Garreffa had recently been dismissed from his position as Principal because of “inappropriate handling of student files, documents and bad administration of student files.”

40    Because of various errors apparent in the College’s attendance records in relation to the Certificate IV course the Tribunal considered it was unable to rely on those records. However, because it was common ground between the College and the appellant that he had failed to attend any of the Diploma of Management course, the Tribunal accepted the College’s record of the appellant’s non-attendance at that course.

41    Relying upon the College’s certification of his unsatisfactory attendance at the Diploma of Management course, the Tribunal found that the appellant had not complied with condition 8202 of his visa which meant that a ground for visa cancellation existed pursuant to s 116(1)(b) of the Migration Act. While the Tribunal addressed the failures in the College’s processes and procedures alleged by the appellant, it considered it was not required to examine whether the College complied with the standards in the National Code, citing Alsunaid v Minister for Immigration and Anor [2011] FMCA 238 at [26] to [26] per Emmett FM and Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at [44] to [45] per Dowsett, Greenwood and Collier JJ. The Tribunal saw its task as being to determine whether the certification of unsatisfactory course attendance by the College engaged condition 8202, and it decided that it did.

42    In dealing with whether the appellant’s non-compliance was due to exceptional circumstances beyond his control, the Tribunal largely rejected the appellant’s evidence. The Tribunal was not convinced by the appellant’s evidence as to the illnesses he said that he had suffered while in India, and which he said had caused him to miss about two weeks of the Certificate IV course. The Tribunal noted that the appellant stated that he saw a junior doctor but could not remember the name of the doctor nor the prescription he was given. In further support, the appellant had supplied statements from his parents and a friend claiming that he had been suffering from cold, fever and diarrhoea. The Tribunal contrasted this with a medical certificate he submitted which stated that he was suffering from allergic bronchitis. The Tribunal considered that the statements were “contrived for the purposes of [the] application.”

43    The Tribunal was satisfied that the appellant was awarded a Certificate IV in Business qualification on 15 Oct 2010. It rejected the appellant’s account that he did not complete that course.

44    The Tribunal rejected the appellant’s claim that he had been prevented from commencing the Diploma of Management course because of his own health or the ill health of his grandmother. While it took into account the opinion of Dr Lam that he was suffering from depression, the Tribunal gave the opinion little weight because it was largely based on the history the appellant provided to the Doctor, which the Tribunal rejected.

45    The Tribunal was also not satisfied that the appellant was prevented by the College from attending the Diploma of Management course until he had completed his units in the Certificate IV course, noting that Mr Gill said nothing about this.

46    It was common ground, and the Tribunal found, that that the appellant did not attend any classes in the Diploma of Management course from the commencement of the course on 13 September 2010.

47    The Tribunal rejected the appellant’s evidence that the Principal had provided all three warning letters to him on or about 8 December 2010, rather than the College having sent them to him on or about the dates they carried. The Tribunal also held that even if the College had failed to issue the appellant with the three warning letters this could not be seen to have prevented him from attending the Diploma of Management classes. Similarly the Tribunal held that, if there was any failure of the College to follow correct procedures, these failures did not constitute exceptional circumstances beyond the appellant’s control which led to his non-compliance.

48    The Tribunal concluded that:

(a)    the College had certified, pursuant to s 19 of the ESOS Act, that the appellant had not achieved satisfactory course attendance which meant he had not complied with visa condition 8202, and that grounds for cancellation of the visa pursuant to s 116(1)(b) of the Migration Act existed;

(b)    the appellant’s non-compliance was not due to exceptional circumstances beyond his control; and

(c)    in these circumstances the delegate was obliged to cancel the appellant’s visa pursuant to s 116(3) of the Migration Act, and it was unnecessary to give further consideration to any other circumstances.

The Tribunal affirmed the delegate’s decision.

Judgment of the federal magistrates Court and the Appeal to THE Federal Court

49    In the application for judicial review by the Federal Magistrates Court, the appellant advanced the following grounds:

1.    That the Tribunal has breached the fair hearing rule by conducting two hearings, and in the interval sending a questionnaire to the then principle of the education provider and seeking his comments on issues that were entirely not relevant to the issue at hand;

2.    The Tribunal had relied on policy rather than the law in assessing exceptional circumstances;

3.    By sending a questionnaire to the principal rather than inviting the principal to give evidence, the Tribunal denied the Applicant the opportunity to give evidence in relation to these issues;

4.    The Tribunal breached condition 8202 of schedule 8 in its interpretation;

5.    There was no consistency in the consideration of evidence of the Applicant in that parts of his evidence had been accepted and parts rejected illogically;

6.    The Applicant’s case had not been given a fair hearing by the failure to summon the then principal of the College to answer select questions, and further, by not asking the principal the relevant questions;

7.    The principal had not given evidence before the Tribunal, particularly in relation to the Applicant’s claim that the principal had been ‘sacked’;

8.    The Tribunal failed to consider exceptional circumstances as mandated by the Act;

9.    The Tribunal failed to consider all of the evidence of the case;

10.    The Tribunal failed to make appropriate use of the relevant sections of the Act in relation to the hearing but had obliquely referred to it;

11.    The Tribunal had made its decision in a manner that was lengthy and unwieldy and it therefore breached relevant sections of the Act in providing its reasons for refusal; and

12.    The decisions quoted by the Tribunal as to its interpretation of condition 8202 rendered the relevant provisions of the ESOS Act as incorrect.

50    The Notice of Appeal to the Federal Court repeats these grounds verbatim. It is convenient therefore to set out the decision of the learned Federal Magistrate on each ground and to then deal with the appeal to this Court under that ground.

The task of the Court on the application and appeal

51    The role of the Federal Magistrates Court in dealing with the judicial review application brought by the appellant was restricted to a determination as to whether the Tribunal’s decision was affected by jurisdictional error: see s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Its task was to declare and enforce the law which determines the limit and governs the exercise of the Tribunal’s power. The Court had no jurisdiction to simply cure any administrative injustice or error by the Tribunal, or conduct a review of the merits of its findings: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J. My task is to determine whether the judgment of the Federal Magistrate is affected by appealable error. My review is restricted in its scope by the same considerations as applied in the Federal Magistrates Court.

Grounds 4 and 12

52    In relation to grounds 4 and 12 of the application, the learned Federal Magistrate set out the appellant’s submissions at [18] to [19] of the judgment, noting:

[18]… While the Applicant touched on other matters in oral submissions, the substantive submission was that there had been no breach of condition 8202 because the education provider, in finding that the Applicant had not achieved satisfactory course attendance, had failed to comply with the requirements of standard 11 of the National Code of Practice for Registered Authorities and Providers of Education and Training to Overseas Students.

[19] As I understood the argument, the Applicant contends that the provider failed to comply with the provisions of standard 11.6 of that Code, because a Section 20 notice was given to the Applicant dated 27 November 2010, which was the same day as the principal of the College certified for the purposes of cl. 8202(3) of schedule 8 of the Regulations that the Applicant was not achieving satisfactory course attendance. The Applicant submits that because of the failure to comply with standard 11.6 of the Code, the certification was invalid and therefore the Applicant could not be seen to have failed to comply with condition 8202.

53    In dealing with the appellant’s submission, as her Honour understood it, she said at [32]:

The Applicant argues that the College failed to comply with standard 11.6 because the Section 20 Notice was issued on the same day as the certification. Condition 8202(3)(b), does not refer to s.20 of the ESOS Act but to s.19 and to standard 11 of the Code. That is because standard 11 applies to s.19 of the ESOS Act and not s.20.

54    However, the appellant’s case under these two grounds is not as her Honour apprehended it. I note that the appellant’s grounds of appeal and submissions before me lacked clarity, and I was informed that the same grounds and submissions were advanced below. It is unnecessary though to decide how this misapprehension arose because nothing turns on it.

55    Properly understood, the appellant’s argument is based in the fact that on 1 November 2010 the College sent the Final Warning Letter to the appellant by registered post, and on 27 November 2010 the College certified the appellant’s unsatisfactory attendance to the Department pursuant to s 19 of the ESOS Act. The appellant argues, and the Minister concedes, that the appellant was not given 20 working days in which to appeal from the Final Warning Letter as provided for in Standard 11.6 of the National Code. The appellant argues that College’s certification regarding his unsatisfactory course attendance is invalid because of this failure to comply with the National Code. In turn, he argues this to mean that the appellant could not be seen to have failed to comply with condition 8202. Counsel for the appellant describes this contention as “the sheet anchor” of his case.

56    However, this contention must be rejected. I respectfully agree with the learned Federal Magistrate’s conclusion at [36], where her Honour held:

… on the basis of the decision in Maan, I am satisfied that the Tribunal was entitled to rely on the certification by the College as constituting non-compliance by the Applicant with the requirements of his visa in relation to satisfactory attendance. It was also clear from the evidence before the Tribunal that the Applicant failed to attend any of the classes required for the Diploma course which was consistent with the certification.

57    In assessing compliance with condition 8202 the scheme of the legislation is that the decision-maker can rely upon the fact of certification by the education provider. The decision-maker is not required to look behind the certification so as to form its own view about the appellant’s attendance at the course. For that reason, the fact that the College certified the appellant’s unsatisfactory course attendance a little too early is not determinative. As the Full Court explained in Maan at [44] to [45]:

[44] It follows from an ordinary reading of Sch 8, cl 8202(3) of the Migration Regulations that the Tribunal was correct in finding that the VIT [the education provider] certification constituted non-compliance by the appellant with his visa conditions…

[45] The fact that it is the certification by the educational institution as to breach of its attendance policies which constitutes the breach by the student of the visa clearly imposes substantial responsibilities on the educational institutions…

…

58    Similarly, in Patel v Minister for Immigration and Citizenship [2012] FCA 958 at [51] to [52] Collier J observed:

[51] Properly interpreted, the regime thus created does not require the Minister (or his or her delegate) to form a view on whether the visa holder has complied with attendance or academic requirements. The Minister is required to cancel a student visa if he or she is satisfied that [the] visa holder has not complied with visa condition 8202.

[52] It is clearly for the education provider to form a view as to whether the visa holder has complied with attendance or academic requirements, and notify the Secretary of the Department of Education, Employment and Workplace Relations in relevant circumstances. The act of notification pursuant to Standards 10 and 11 of the National Code and s 19 of the ESOS Act to notify the Secretary constitutes a certification, which itself constitutes the breach of condition 8202 by the holder of the visa. As the Minister properly submits, this is because the visa holder is required by condition 8202(1) to meet the requirements of condition 8202(3), which requires (in summary) that a visa holder not be subject to a certificate of this type.

(Emphasis in original.)

59    In Hassan v Minister for Immigration and Citizenship [2012] FCA 816 at [43] Cowdroy J took the same approach in explaining:

The Court is not able to consider the circumstances in which [the education provider] determined that the appellant was not making satisfactory progress in his course and determined that issuance of the notice pursuant to s 20 of the ESOS Act was required. The Tribunal has already found at [68] of its decision that it was not satisfied that any breaches of the National Code Standards that would invalidate the s 20 notice had been established by the appellant.

60    As counsel for the Minister submits, the National Code has no legal force relevant to the circumstances of this case. Section 40 of the ESOS Act provides:

The only legal effects of the national code are the effects that this Act expressly provides for.

While the ESOS Act sets out that compliance with the National Code is a pre-requisite for the registration of an education provider, and that sanctions may be imposed on an education provider who breaches the code, nothing in the Act expressly provides that a certification provided otherwise than in accordance with the code is invalid: see Patel at [53] to [54].

61    Counsel for the appellant seeks to distinguish Maan, Patel and Hassan, contending that no question of invalidity of certification arose in these cases. I do not agree. In Patel the certificate under s 19 of the ESOS Act was provided by a person not authorised to do so and its validity was expressly challenged. Collier J concluded at [74]:

… It was not the role of the Tribunal to find that there was a valid certification by Griffith University - once the evidence established that a notice and certificate had been issued by the University which was valid on its face, there was no role for the Tribunal in looking behind the notice.

In Hassan the appellant argued that the s 19 certification issued by the educational institution was invalid on the basis that he was not an “accepted student” at that institution for the purposes of the ESOS Act. At [43] Cowdroy J accepted that even if such a breach of the National Code was established it would not invalidate the notice.

62    Under these two grounds of appeal the appellant also advances the contention that the certification by the College is not valid because it does not specify the period over which the appellant had failed to satisfactorily attend the courses. I do not agree. The s 19 certification provided to the Department clearly related to the Diploma of Management course. Putting to one side for the moment my view that the Minister was not required to look behind the certification, it was in any event unnecessary to specify any period in the circumstances that the appellant had not attended any of that course.

63    Notwithstanding the learned Federal Magistrate’s misapprehension as to the argument made by the appellant under these grounds, I can discern no error in her Honour’s judgment. There was no invalidity on the face of the certification by the College and the Minister was not required to look behind it. These grounds of appeal fail.

Grounds 1, 3, 6 and 7

64    The learned Federal Magistrate considered that grounds 1, 3, 6 and 7 of the application related to whether the Tribunal had conducted a fair hearing. Under these grounds the appellant contended that the Tribunal had breached the fair hearing rule by adjourning the hearing on the first hearing date so as to seek information from the Principal, and by obtaining this information by questions in writing directed to the Principal rather than by inviting him to give evidence before the Tribunal.

65    The learned Federal Magistrate considered that the Tribunal was well able to adjourn the hearing to obtain further information, it being entitled by s 363(1) and 359(1) of the Migration Act to adjourn the review and to seek any information it considered to be relevant respectively. Her Honour further noted that, while the Tribunal had the power to require a witness to appear before it to give evidence, it was not obligated to receive evidence only by that course. Her Honour considered that the appellant was clearly on notice prior to the second hearing that the issues raised by him on the first hearing date had been contradicted by the Principal, and he was given a full opportunity to respond. Her Honour found no breach of the fair hearing rule.

66    I respectfully agree with her Honour. What is required by procedural fairness is a fair hearing, not a fair outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. What is necessary to discharge this requirement will depend on the particular circumstances of each case: Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at [123] per McHugh J. The test is essentially practical as noted by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 at [37], who held:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

67    At the conclusion of the first hearing day of the appellant was informed that another hearing might be required. There can be no doubt that the Tribunal had the power to adjourn the hearing and the appellant’s counsel did not object to that course. In the period between the first and second hearing dates the Tribunal requested further information from the Principal relating to the appellant’s absences from the Diploma of Management course. The Principal’s responses were summarised and provided to the appellant well before the resumed hearing to give him the opportunity to provide further statements and make further submissions, an opportunity that he took up. The appellant was on notice of and responded to the Principal’s evidence.

68    The contention that it was unfair for the Tribunal to receive the Principal’s evidence in writing boils down to the proposition that the Tribunal was obliged to take the Principal’s evidence on oath, and that the Principal be available for cross examination. I do not accept this. While the Tribunal may invite or require a person to appear before it to give evidence there is no obligation for it to do so. The Tribunal is required to provide a review hearing that is fair, just, economical, informal and quick but is not bound by legal forms or by rules of evidence: ss 353 and 363 of the Migration Act.

69    I can see no lack of procedural fairness in the hearing provided by the Tribunal or any error in the approach taken by the learned Federal Magistrate. These grounds of appeal must fail.

Grounds 2 and 8

70    Under these grounds the appellant argued before the Federal Magistrates Court that the Tribunal had relied on policy rather than the law in assessing exceptional circumstances, and had failed to consider exceptional circumstances as mandated by the Migration Act. The appellant’s argument lacked clarity to her Honour, but appeared to her Honour to be that the Tribunal relied on Direction 38 rather than dealing with the evidence relating to whether the appellant’s non-compliance with condition 8202 was due to exceptional circumstances beyond his control. Her Honour rejected this argument noting that the Tribunal was required to have regard to Direction 38 and it had done so. Her Honour held that the Tribunal properly considered this question and that the Tribunal’s findings on the question were reasonably open on the evidence.

71    These grounds were reiterated in the appeal before me, but not developed at all. I can see no jurisdictional error in the approach taken by the Tribunal and these grounds of appeal fail.

Grounds 5 and 9

72    Under grounds 5 and 9 the appellant contends that the Tribunal treated his evidence inconsistently, illogically accepting and rejecting parts of it, and failed to consider all of the evidence of the case. Her Honour was satisfied that the Tribunal had properly considered whether the appellant’s non-compliance with condition 8202 was due to exceptional circumstances beyond his control. Her Honour found that the Tribunal did not make any findings that were not reasonably open to it on the evidence before it and noted that the adverse view that the Tribunal reached as to the appellant’s credibility was entirely a matter for it.

73    I respectfully agree with her Honour. I can see no illogicality in the Tribunal’s acceptance and rejection of the appellant’s evidence. In any event the acceptance and rejection of aspects of the appellant’s evidence is a matter for the Tribunal, and even if there were wrong findings of fact that would not of itself give rise to jurisdictional error. Adverse credibility findings are matters which fall squarely within the Tribunal’s jurisdiction and are not ordinarily open to challenge in a judicial review application: see NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 at [67] per McHugh J. There is no jurisdictional error in this regard either.

Grounds 10 and 11

74    Under ground 10 the appellant contends that the Tribunal “failed to make appropriate use of the relevant sections of the Act in relation to the hearing but had obliquely referred to it.” What is meant by this ground was not clear to the learned Federal Magistrate, and is not clear to me. No submission was made to clarify which provisions the ground referred to. Her Honour rejected this ground, and I respectfully agree with that view.

75    Ground 11 is even less meritorious. Under this ground the appellant contends that the Tribunal’s decision “was lengthy and unwieldy and it therefore breached relevant sections of the Act in providing its reasons for refusal.” I do not accept that this description of the Tribunal’s decision is correct. However, even if it were, I respectfully agree with her Honour at [48] that “[i]f the decision is lengthy and unwieldy, that is hardly a jurisdictional error.” This ground too must fail.

Application for leave to amend

76    The appellant also seeks to rely upon the fact that, having certified to the Department on 27 November 2010 that the appellant’s attendance was unsatisfactory, the Principal said, in his letter of 8 December 2010, that he would be willing to allow the appellant to continue with his studies. Counsel for the appellant argues that this somehow operated to rescind the College’s certification of unsatisfactory attendance. This contention was not made below, and is not pleaded in the Notice of Appeal. The appellant sought leave to amend, which was opposed by counsel for the Minister.

77    Apart from the failure to take the point below, in my view appellant’s argument is hopeless. It is plain that, while the Principal’s apparent willingness to again allow the appellant to study at the College is relevant to the question of exceptional circumstances, it cannot operate so as to cancel a certification already made. I refuse leave to amend in all the circumstances. As the Full Court observed in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters.  The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated.  Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. 

Conclusion

78    For these reasons I order that the appeal be dismissed and the appellant to pay the first respondent’s costs.

Associate:

Dated:    19 March 2013