Shareef v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate of 12 December 2006dismissing an application for judicial review of a decision of the Migration Review Tribunal of 26 April 2005: see Ahmed Ali Shareef v Minister for Immigration & Anor [2006] FMCA 1726. The Tribunal had affirmed a decision of a delegate of the first respondent of 6 September 2004 to cancel the appellant's Student (Subclass 572) (Vocational Education and Training Sector) visa. 2 The appellant is a national of India who first arrived in Australia on 21 October 1998. He held various student visas and was granted the most recent visa on 27 April 2004 which was due to expire on 30 October 2005. This was the visa which was cancelled. The appellant was at that time studying an Advance Diploma of Hospitality (Management) at ACTH Management ("the education provider"). 3 On 7 July 2004, the education provider sent the appellant a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) indicating that the appellant had breached a condition of his visa by attending 32% of classes in Term 2, 2004. The appellant was interviewed by the delegate on 6 September 2004. The appellant indicated that he had been ill and had suffered a neck injury in a car accident, which affected his attendance. He provided medical certificates in support of his claims. The education provider considered the medical reports and readjusted the appellant's rate of attendance for that term to 73%. On 6 September 2004, the delegate cancelled the appellant's visa on the basis that he had failed to maintain an attendance rate of at least 80%. 4 On 15 September 2004 the appellant sought review of that decision in the Tribunal. On 3 November 2004, the Tribunal invited the appellant to comment on information provided by the education provider on the appellant's academic attendance. The appellant's adviser requested an extension which the Tribunal granted on 30 November 2004. The appellant's adviser replied to the Tribunal's invitation in a letter dated 14 December 2004, explaining that the appellant had met with an accident and could not attend classes and that he had submitted medical certificates to the education provider and the then Department of Immigration and Multicultural Affairs. It also stated that the appellant was medically unfit on occasions for which he did not have medical certificates. 5 The appellant attended a hearing on 8 March 2005 and gave oral evidence. Following the hearing, the appellant was granted a one week extension to provide a further medical certificate. A certificate was subsequently provided by the appellant's adviser, dated 9 March 2005, which stated: "This to confirm that above named has been known to me personally and professionally and attended my rooms on few occasions during the month of May and June 2004. He has been suffering from Arthritic pain in left knee and soft tissue injuries to his neck. He was given a certificate to stay of work and studies. I am aware that he was sick and did not attend the college and was also unable to see me on some occasion in june 2004." 6 The appellant's adviser claimed that if this was taken into account, it would increase the appellant's attendance to over 80%. 7 The Tribunal considered the appellant's attendance in light of the information it had including the certificate furnished after the hearing. The Tribunal considered that the certificate dated 9 March 2005 was not sufficiently specific and that his attendance could not be reviewed on the basis of that certificate. It concluded the appellant's attendance was less than 80%, the appellant had failed to comply with a condition of the visa and mandatory cancellation was required under s 116(3) of the Migration Act 1958 (Cth) ("the Act"). 8 Before the Federal Magistrate, the appellant relied on an amended application filed on 23 August 2005, which raised two grounds. The first ground contended the appellant was denied procedural fairness as the Tribunal relied only on information provided by the education provider and failed to afford the appellant an opportunity to deal with adverse information contained in the appellant's academic records. The second ground was that the Tribunal relied on attendance rates provided by the education provider which were incorrect. Particulars for this ground raised further issues, including that the Tribunal had failed to take into account that the education provider had failed to provide sickness information to the Department regarding 27-30 April 2004, and that on 27 April 2004, the appellant had been given medical advice by telephone to rest and had telephoned the education provider to inform them that he would be absent for that reason. 9 The Federal Magistrate was satisfied that none of the grounds identified established jurisdictional error. In relation to the procedural fairness ground, the Federal Magistrate noted that the Tribunal had sent the appellant an invitation to comment on the issues. If the appellant sought to argue that the Tribunal should have given him an opportunity to comment on his academic achievement, this was not an issue before the Tribunal and the Tribunal was not required to making a finding in that respect. Furthermore, any defect in the procedure established by s 20 of the Education Services for Overseas Students Act 2000 did not modify the power to cancel under s 116 of the Act. In relation to the second ground of review, the attribution of weight to evidence was a matter for the Tribunal. The Tribunal had been presented with the education provider's assessment that the appellant had attended 73% of classes and that appellant's assessment that he had attended more than 80% of classes and the Tribunal was entitled to prefer one set of information over the other. In relation to the supporting documents, the Tribunal had made findings on the medical certificate provided by the appellant to the Tribunal. 10 The notice of appeal filed in this Court on 28 December 2006 stated the following: "The Honourable Federal Magistrate did not consider that the Migration Review Tribunal made an error of law when the Tribunal did not give me the opportunity to comment on adverse information. The Honourable Federal Magistrate did not consider that the Tribunal's decision was based on incorrect information. The Honourable judge did not consider that incorrect information was supplied to the Tribunal and the Tribunal did not check it properly." 11 At the hearing of the appeal the appellant repeated, in general terms, the complaints about the approach of the Tribunal. Additionally he alleged that he had approached the education provider and sought information from them about his attendance after the Tribunal hearing, but his request had been refused. In my opinion, the Federal Magistrate was correct in concluding that there had been no procedural irregularity in the way the Tribunal elicited and then dealt with information about the attendance of the appellant. His Honour was correct in concluding there was no jurisdictional error. As to the complaint about the education provider not providing the appellant with information, it is not apparent to me how (assuming the allegation is true) this bears upon whether the Tribunal fell into jurisdictional error, at least having regard to the way the appellant conducted his case before the Tribunal. 12 The appeal should be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.