FEDERAL COURT OF AUSTRALIA Nimma v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 719 NIMMA V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N2357 OF 2003 BENNETT J 31 MAY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N2357 OF 2003 BETWEEN: NIMMA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: BENNETT J DATE OF ORDER: 31 MAY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N2357 OF 2003 BETWEEN: NIMMA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: BENNETT J DATE: 31 MAY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In an application for review filed in this Court on 11 December 2003 by solicitors for the applicant, the applicant seeks to have overturned a decision of the Migration Review Tribunal ('the Tribunal') made on 5 November 2003. The application alleges, but does not particularise, 'an error of law and/or a jurisdictional error being an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by [the Tribunal].' 2 The applicant appears this morning in person. He was in contact with the solicitor for the respondent on 28 May 2004 and said that he wished an adjournment as he was unwell. He said that his doctor had told him that he needed to rest for two or three weeks. He also raised with the solicitor the fact that he did not have a lawyer, as he said that he has no money. The solicitor encouraged the applicant to contact the Court in the event that he was unable to attend the hearing. 3 The applicant now asks for an adjournment on the basis that he wishes to obtain legal advice. There was no evidence in support of the application and no reason given why no steps or no sufficient steps were taken since this matter was sent down for hearing in February. The respondent opposes the adjournment. In view of the above matters I have decided to proceed with the hearing. I did, however, give the applicant a short adjournment to enable him to reconsider the Tribunal decision and the respondent's written submissions. 4 On 18 October 2000, the applicant entered Australia with a Subclass 560 Student visa. That visa was valid until 9 November 2000. The applicant was granted a further Subclause 560 visa on 9 November 2000. This visa was valid until 7 September 2001. On 7 September 2001 the applicant was granted a Higher Education Sector (Temporary) (Class TU) Subclass 573 visa. This visa was valid until 21 March 2003 and was subject to condition 8202. 5 On 22 July 2002, Charles Sturt University ('CSU') sent a notice to the applicant pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth). That notice advised that the applicant's enrolment had been terminated due to non-attendance and non-academic progress. An academic transcript from CSU indicates that the applicant passed only one of eight subjects attempted in 2002. That fact does not appear ever to have been in dispute. 6 The s 20 notice also advised that, pursuant to s 137J of the Migration Act 1958 (Cth) ('the Act'), the applicant's student visa would cease on the 28th day after the date of the notice unless he reported to the respondent's department by that time. The s 20 notice also advised of the right to apply for revocation of the cancellation under s 137K of the Act, noting that an application for revocation in Australia had to be made before the date upon which the visa would have expired had it not been cancelled. As the applicant did not report, his visa was automatically cancelled. 7 On 14 March 2003 (a week before the student visa would have expired had it not been cancelled) the applicant made a request for revocation for the automatic cancellation of his student visa. The reasons he gave in support of the application were that he did attend his classes and that, to the best of his knowledge, he did maintain his course requirements. He said that he had changed his education provider and was doing well with his new provider. He said that he attended classes and was doing well academically. He said that the s 20 letter was not given to him, that he had not changed address and that he wasn't notified. On 18 March 2003, the applicant's migration agent forwarded a letter from the applicant to the respondent's department in support of his revocation application. 8 In that letter the applicant expressed surprise at having failed courses and sought to attribute responsibility for this to his lecturer. He noted that only about 13 out of 40 students in his class had passed. He said that he had changed to Central Queensland University in the same course and had been given credit for his previous Diploma of Information Technology. He said that he was continuing his study and attending classes regularly. No other reason was given for the applicant's poor academic performance. 9 Section 137L(1) of the Act provides the grounds upon which the respondent could revoke the automatic cancellation of the applicant's visa. The applicant is required to satisfy the respondent that he did not in fact breach the relevant visa condition or conditions or that the breach was due to exceptional circumstances beyond his control. Section 137L(2) specifically precludes revocation upon the ground that the applicant was unaware of the s 20 notice or was unaware of the effect of s 137J. 10 On 1 April 2003, a delegate of the respondent ('the Delegate') decided not to revoke the cancellation of the applicant's visa. On 9 April 2003, the applicant applied for a review of the Delegate's decision by the Tribunal. On 29 April 2003, the applicant's migration agent provided submissions and supporting documents in support of the application for review. The only apparent grounds for revocation relied upon were inadequate educational support by the university and failure to receive the s 20 notice. 11 On 26 June 2003, the Tribunal wrote to the applicant, care of his migration agent, pursuant to s 359A of the Act, inviting him to comment on particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The information the applicant was asked to comment upon was his failure in seven out of eight subjects at CSU. 12 On 9 July 2003, the applicant's migration agent responded to that letter. The substance of that submission was to seek to place the course failures within the context of prior and subsequent study and to comment on the unsatisfactory nature of the teaching that the applicant said that he had received. Again, no other ground for revocation was advanced. 13 On 23 September 2003, immediately prior to a Tribunal hearing on 25 September, the solicitors and migration agent retained by the applicant provided submissions and supporting documents for the purposes of the application for review. The submissions accepted that condition 8202 had been breached but sought to establish exceptional circumstances beyond the applicant's control. The key circumstance relied upon was an entirely new ground, being the illness and subsequent death of the applicant's grandfather on 7 October 2002, which was said to coincide with the applicant's poor academic performance. The applicant also relied, to a lesser extent, on what he said were poor resources and non-attendance of a lecturer at CSU. 14 On 25 September 2003, the applicant and four other witnesses gave evidence at the hearing of the Tribunal. Before the Tribunal the applicant indicated that he wanted the opportunity to complete the course in which he was currently enrolled and that he intended to complete that course at the end of 2003. 15 On 5 November 2003, the Tribunal decided to affirm the decision of the Delegate not to revoke the automatic cancellation of the applicant's visa. In reaching this decision the Tribunal found that the applicant did, in fact, breach condition 8202 by passing one out of eight subjects attempted during two semesters of study. However, the Tribunal was not satisfied that exceptional circumstances beyond the control of the applicant caused his breach of condition 8202. In particular, the two factors relied upon by the applicant were found not to have so significantly affected him that they were the reasons for his poor academic results. 16 In relation to the death of the applicant's grandfather, the Tribunal accepted that this would have made the applicant sad and he would have gone through a period of grief. However, this was not mentioned until the matter was before the Tribunal. The suggestion, that this was because it was a personal matter and that the applicant did not really understand its significance, was found not to be believable. In addition, the Tribunal noted that the applicant's academic results were better in the period shortly before and after his grandfather's death than for a substantial period before it. The Tribunal found that it was not believable that the applicant's performance would improve nearer to his grandfather's death if this was a significant contributor to his poor academic performance. 17 In relation to the educational environment of CSU, the Tribunal noted that other students, such as the applicant's witness Mr Tadisina, had successfully studied there, and had not sought to change education provider. While the Tribunal accepted that each student would have a different perspective, the Tribunal did not accept that the environment could reasonably be characterised as an exceptionally detrimental circumstance which was the cause of the breach of condition 8202. Rather, the Tribunal said that it was apparent that the reason for the poor performance was that the applicant was not capable of performing satisfactorily in the course he selected. 18 The applicant has raised a number of matters before the Court this morning, all of which relate to an overriding submission that the Tribunal did not properly consider the matters that he raised before it. One was the fact of his grandfather's illness and death. He said that the Tribunal did not properly consider the facts of his grandfather's death or it would have believed him. The Tribunal clearly did take into the consideration of the applicant's claims the effect on him of his grandfather's death and made the findings that I have referred to above. 19 The applicant also asserts that the Tribunal did not consider his complaints about CSU and that it failed to make inquiries of students at the university who were not in attendance at the hearing. The Tribunal was not obliged to make such inquiries in respect of possible evidence that was not presented to it. Further, the applicant was legally represented before the Tribunal. Clearly the Tribunal did make reference to and consider the applicant's claims about CSU. Those claims also concerned the standards of teaching at the university. Again, the applicant referred me to evidence that he says the Tribunal should have considered that was not presented by him to the Tribunal. The matters raised by the applicant are factual matters that were considered by the Tribunal. No matter, other than a complaint about the findings of fact, was raised. The applicant says that the Tribunal should have come to a different factual conclusion on matters that it considered. Those were conclusions that were open to the Tribunal on the evidence before it. The applicant's complaints before this Court amount to a claim for merits review, which this Court does not have jurisdiction to entertain. As a result of its findings of fact, the Tribunal concluded that there existed no basis for revoking the cancellation of the applicant's visa and affirmed the Delegate's decision. The Tribunal went through an unexceptional fact finding exercise in reaching its conclusion. 20 There is no suggestion of any legal error, let alone jurisdictional error and no such error is apparent in my reading of the Tribunal's reasons. In these circumstances, the application for review must fail. The application for review should be dismissed with costs. I do note, however, that the applicant is due to complete his final exams in approximately two weeks time and will be able to do this as the respondent will not act on the decision of the Court within that time. The application is dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 8 June 2004 The Applicant appeared in person Counsel for the Respondent: R Bromwich Solicitor for the Respondent: Clayton Utz Date of Hearing: 31 May 2004 Date of Judgment: 31 May 2004