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.