FEDERAL COURT OF AUSTRALIA

Ramasahayam v Minister for Immigration and Border Protection [2014] FCA 498

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry 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 Circuit Court (“FCC”) delivered on 3 February 2014: see Ramasahayam v Minister for Immigration and Border Protection [2014] FCCA 442. The FCC dismissed an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 1 August 2013.

BACKGROUND

2    On 20 July 2011 the appellant was granted a Subclass 572 Vocational Education and Training Sector visa to continue study for a Diploma of Management at Cambridge International College. It expired on 2 November 2011. This visa was subject to Condition 8202 which required the visa holder to achieve satisfactory course attendance.

3    On 20 October 2011, Cambridge International College issued a certification for the purpose of condition 8202(3)(b), on the basis of unsatisfactory course attendance (commonly known as a “Section 20 Notice”). Cambridge International College provided a copy of the Section 20 Notice to the appellant and explained its consequences.

4    On 28 October 2011, the appellant applied to the Department of Immigration and Citizenship (as it then was) for a Student (Temporary) (Class TU) visa. A delegate of the Minister refused the application on 20 December 2011 on the ground that the appellant had failed to satisfy clause 572.235 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because he had not complied substantially with the Condition 8202 of his previous Subclass 572 Vocational Education and Training Sector visa.

THE TRIBUNAL’S DECISION

5    On 10 January 2012, the appellant appealed to the Tribunal from the delegate’s decision.

6    The appellant confirmed before the Tribunal that he had been issued with a Section 20 Notice for a period of non-attendance between May and November 2011. The appellant did not dispute the accuracy of the notice. Rather, he provided reasons for his non-attendance during the relevant period. The Tribunal noted that this aspect of Condition 8202 is one with which substantial compliance has no logical application. The condition is either complied with or it is not. The Tribunal accepted that there was a valid Section 20 Notice issued by the educational provider and found that there was no compliance with Condition 8202(3), let alone substantial compliance.

7    Accordingly the appellant had failed to satisfy clause 572.235 of Schedule 2 of the Regulations. The Tribunal affirmed the decision under review.

THE FEDERAL CIRCUIT COURT’S DECISION

8    The appellant sought judicial review of the Tribunal’s decision in the FCC. He raised three grounds. They were that:

“a.    S. 477, Judicial review can be lodged after 35 days after tribunal has been finalise

  b.     I am not happy with tribunal decision, applying for judicial review for legitimate decision

  c.     I do have exceptional circumstances beyond the application lodgement previously” (sic)

9    Judge Turner found that the first ground of appeal raised no relevant issue as the appellant had filed his application within the applicable time. His Honour dismissed the second ground on the basis that “not being happy with the decision is no ground for prerogative relief.” In relation to the third ground, his Honour noted that it was not for the Court to determine whether the appellant had achieved satisfactory attendance or part-attendance. It was a question of whether the educational provider had certified that the appellant had not achieved satisfactory attendance. The existence of exceptional circumstances, as alleged by the appellant, were not relevant when considering whether or not the appellant had satisfactorily attended the course in which he or she enrolled. Citing the Section 20 Notice his Honour dismissed the third ground of appeal.

10    His Honour went on the address a number of concerns raised by the appellant in a letter dated 26 August 2013: see Ramasahayam at [18]-[30]. I will not repeat them. His Honour concluded that there was no jurisdictional error apparent in the Tribunal’s decision and dismissed the application was costs.

THE APPEAL PROCEEDINGS

11    The appellant now seeks to appeal to this Court from the FCC’s decision. The appellant has identified two grounds of appeal:

“a.     I am not happy with Federal Circuit Court Decision, applying for ‘FEDERAL COURT’

  b.     I do have exceptional circumstances beyond the application lodgement previously” (sic)

12    The appellant appeared in person on the hearing of his appeal. He was invited to elaborate on his grounds of appeal.

13    The appellant confirmed that he had not attended his course at the Cambridge International College for a seven week period during 2011 and that he had received a Section 20 Notice from the College in relation to this period. He said that his non-attendance was attributable to exceptional family circumstances. He complained that a departmental officer had advised him that the Section 20 Notice was “baseless”.

14    The Minister submitted that the first ground of appeal failed to identify a legal error in the FCC’s decision. In relation to the second ground, the Minister asserted that there was no scope for the Tribunal to consider the existence of exceptional circumstances. It had said that “[t]he only inquiry to be made, in relation to condition 8202(3)(b), was whether a certification had been issued.” It further submitted that exceptional circumstances of the appellant’s non-attendance are not relevant and, for this reason, the second ground of appeal does not disclose jurisdictional error.

15    The Minister sought an order that the appeal be dismissed with costs.

16    I accept the Minister’s submissions. The appellant has failed to identify any legal error on the part of the Tribunal or the FCC which would warrant the intervention of this Court on appeal. The appellant had not met the requirement of Condition 8202 because the College had not certified that he was achieving satisfactory course attendance. There was no dispute that he had not attended for a seven week period. The question of whether or not this absence was attributable to exceptional circumstances was not a relevant issue for this purpose. It was an issue, as he appears to have been advised by the departmental officer, for other purposes: see s 137L(1)(b) of the Migration Act 1958 (Cth).

DISPOSITION

17    The appeal must be dismissed with costs.

Associate:

Dated:    16 May 2014