FEDERAL COURT OF AUSTRALIA Hassan v Minister for Immigration and Citizenship [2012] FCA 816 Citation: Hassan v Minister for Immigration and Citizenship [2012] FCA 816 Appeal from: Hassan v Minister for Immigration and Citizenship [2012] FMCA 155 Parties: JAVED HASSAN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 494 of 2012 Judge: COWDROY J Date of judgment: 3 August 2012 Catchwords: MIGRATION – Sublcass 572 Visa – visa automatically cancelled due to education institution's certification of the appellant's unsatisfactory course performance – appellant sought revocation of cancellation based on exceptional circumstances – appellant sought revocation of cancellation based on not being an 'accepted student' for purposes of Education Services for Overseas Students Act 2000 (Cth) – whether exceptional circumstances existed – whether Tribunal or Court may inquire into circumstances of the certification – appeal dismissed Legislation: Education Services for Overseas Students Act 2000 (Cth) ss 5, 19, 20, 33, 34, 40 Educational Services to Overseas Students Regulations 2001 (Cth) reg 3.03A Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Magistrates Court Rules 2001 (Cth) r 44.12 Migration Act 1958 (Cth) ss 137J, 137K, 137L Migration Regulations 1994 (Cth) reg 8202 Cases cited: Chen v Minister for Immigration and Multicultural Affairs (2005) 142 FCR 257 Hassan v Minister for Immigration & Anor [2012] FMCA 155 Kim v Minister for Immigration & Anor (2011) 254 FLR 19 Kumar v Minister for Immigration and Citizenship [2011] FMCA 741 Maan v Minister for Immigration (2009) 179 FCR 581 Mo v Minister for Immigration & Citizenship & Anor (2009) 112 ALD 329 SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 Date of hearing: 31 July 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 47 Solicitor for the Appellant: The Appellant appeared in person. Solicitor for the First Respondent: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 494 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: JAVED HASSAN Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: COWDROY J DATE OF ORDER: 3 AUGUST 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the costs of the First Respondent in the amount of $3,816. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 494 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: JAVED HASSAN Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: COWDROY J DATE: 3 August 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By an application filed on 30 March 2012, the appellant seeks an extension of time to file an appeal against a decision of Nicholls FM in the Federal Magistrates Court of Australia (Hassan v Minister for Immigration & Anor [2012] FMCA 155), which was given on 9 March 2012. 2 In his Honour's decision, Nicholls FM dismissed the appellant's application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) ('the FMC Rules') on the grounds that the appellant had not demonstrated an arguable case for the relief claimed. The appellant had sought review of a decision of the Migration Review Tribunal ('the Tribunal') which affirmed a decision of the Minister for Immigration and Citizenship ('the Minister') to cancel the appellant's Subclass 572 Vocational Education and Training Sector visa ('572 visa'). 3 The appellant now appeals to this Court. Rule 44.12(2) of the FMC Rules states that decisions made pursuant to r 44.12(1) are interlocutory decisions. Therefore, leave to appeal is required before an appeal can be made: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 4 At the hearing, both the appellant and the first respondent indicated that they were prepared to address the appeal on its merits. Consequently, the Court has decided that the most expedient approach would be for leave to be granted for the appellant's application to this Court to be filed and for leave to appeal to be granted. This now allows the Court to deal with the appeal on its merits. RELEVANT STATUTORY FRAMEWORK 5 The relevant legislative background is usefully summarised in Mo v Minister for Immigration & Citizenship & Anor (2009) 112 ALD 329 ('Mo'). Raphael FM stated at [7]: Before considering each of these grounds in turn, it is well to make reference to the legislative background. Towards the end of 2006 there was introduced into the parliament amending legislation that would produce a significant change in the manner in which the academic progress of overseas students would be overseen. The legislation changed the wording of the standard condition 8202, amended ss 19 and 20 of the ESOS Act and s 137J of the Migration Act. There was also introduced a National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students. The National Code and the amendments to the legislation and visa conditions came into effect on 1 July 2007. The respondent tells the court that the purpose of this activity was to shift the obligation to monitor academic progress away from the Department of Immigration & Citizenship and to place responsibility on the academic providers, at the same time raising the standards of oversight and providing fairness to students through, in particular, standards 8 (Complaints and Appeals) and 10 (Monitoring Course Progress). 6 Although Mo was overturned on appeal, the appellate court did not cavil with the paragraph reproduced above. 7 Section 19(2) of the Education Services for Overseas Students Act 2000 (Cth) ('the ESOS Act') states: (1) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs. 8 Section 20 of the ESOS Act relevantly states: Sending students notice of visa breaches (1) A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa. Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108. (2) The registered provider must send the notice as soon as practicable after the breach. (3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department. (4) The notice must: (a) contain particulars of the breach; and (b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958 ) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and (c) state that the student must present photographic identification when so attending; and (d) set out the effect of sections 137J and 137K of that Act. 9 'Accepted student' is defined in s 5 of the ESOS Act: "accepted student" of a registered provider means a student (whether within or outside Australia): (a) who is accepted for enrolment, or enrolled, in a course provided by the provider; and (b) who is, or will be, required to hold a student visa to undertake or continue the course. 10 'Provider' is also defined in s 5 of the ESOS Act: "provider" means an institution or other body or person that provides or seeks to provide courses to overseas students. 11 Failure to make satisfactory course progress constitutes a breach of Condition 8202 of a Subclass 572 visa. Regulation 3.03A of the Educational Services to Overseas Students Regulations 2001 (Cth) states that Condition 8202 is a 'prescribed condition'. Condition 8202 is found at Item 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) ('the Migration Regulations'). Condition 8202 relevantly states: (5) 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). (6) A holder meets the requirements of this subclause if: (a) the holder is enrolled in a registered course; or (b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student -- the holder is enrolled in a full-time course of study or training. (7) A holder meets the requirements of this subclause if neither of the following applies: (a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for: (i) section 19 of the Education Services for Overseas Students Act 2000 ; and (ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 ; 12 If a student is found to be in breach of Condition 8202, then s 137J of the Migration Act 1958 (Cth) ('Migration Act') automatically applies. Section 137J provides: (1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice). Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen's visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach. (2) The non-citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day: (a) the non-citizen complies with the notice; or (b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either: (i) in Australia; or (ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette ; makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach. 13 Section 137K(1) of the Migration Act permits a person to apply to the Minister for Immigration for revocation of the automatic cancellation. Section 137L(1) of the Migration Act provides that: (1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister: (a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or (b) that the breach was due to exceptional circumstances beyond the non-citizen's control; or (c) of any other matter prescribed in the regulations. THE NATIONAL CODE 14 The National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 ('the National Code') is published by the Department of Education, Science and Training in accordance with s 33 of the ESOS Act. 15 As provided by s 34 of the ESOS Act, the purpose of the National Code is to 'provide nationally consistent standards for the registration and conduct of registered providers and the conduct of persons who deliver educational services on behalf of registered providers'. 16 Standard 10 of the National Code relevantly states: 10.1 The registered provider must monitor, record and assess the course progress of each student for each unit of the course for which the student is enrolled in accordance with the registered provider's documented course progress policies and procedures. 10.2 The registered provider must have and implement appropriate documented course progress policies and procedures for each course, which must be provided to staff and students, that specify the: a. requirements for achieving satisfactory course progress b. process for assessing satisfactory course progress c. procedure for intervention for students at risk of failing to achieve satisfactory course progress d. process for determining the point at which the student has failed to meet satisfactory course progress, and e. procedure for notifying students that they have failed to meet satisfactory course progress requirements. 17 Section 40 of the ESOS Act states that 'the only legal effects of the national code are the effects that this Act expressly provides for'. Those legal effects have consequences for the education provider. A failure to follow the National Code could lead to sanctions or deregistration as an education provider. However, the ESOS Act does not prescribe any remedies to students of educational institutions who breach the National Code. BACKGROUND 18 In January 2010 the appellant received Confirmations of Enrolment ('the Confirmations') from the Hibernia Institute Brisbane Pty Ltd ('Hibernia'), which stated that the appellant had been enrolled in a Diploma of Management which was due to commence on 1 February 2010 and conclude on 2 July 2010 and an Advanced Diploma of Management which was scheduled to commence on 19 July 2010 and conclude on 17 December 2010. 19 Subsequent to receiving the Confirmations, the appellant applied for a 572 visa, which was issued to the appellant on 24 March 2010. 20 Therefore for the purposes of the ESOS Act, at the time the appellant received the 572 visa Hibernia was the provider and the appellant was an accepted student at Hibernia. 21 On 4 July 2010 Skills Tech Australia, an institute of TAFE Queensland, made an International Student Offer to the appellant to study a Certificate III in Automotive Mechanical Technology (Light Vehicles) and the appellant accepted that offer. 22 On 21 July 2010 Hibernia, as the education provider, issued a notice to the appellant pursuant to s 20 of the ESOS Act. The notice stated that the appellant was not making satisfactory course progress in the Diploma of Management. On the same date pursuant to s 19 of the ESOS Act, Hibernia informed the Department that it had certified the appellant as being in breach of that condition. 23 Twenty eight days after the date of the notice, pursuant to s 137J of the Migration Act the appellant's visa was automatically cancelled as he had not presented to the Department of Immigration and Citizenship ('the Department') within 28 days of the s 20 notice having been issued. 24 On 30 August 2010 the appellant sought a revocation of the automatic cancellation pursuant to s 137K of the Migration Act on the grounds that the breach of his visa condition was due to exceptional circumstances beyond his control. The appellant stated that those exceptional circumstances were the ill health of his mother, his depression and absence of emotional support; all of which prevented him from concentrating on his studies. Furthermore, the appellant stated that he had enrolled in a course provided by another education provider, Skills Tech Australia and would have continued studying with them but for the cancellation of his visa. The appellant did not allege to the Department that he was not in fact in breach of his visa condition. 25 The Department considered that the grounds relied upon by the appellant did not amount to exceptional circumstances. Consequently the Department determined to not revoke the automatic cancellation of the appellant's visa. REVIEW BY THE TRIBUNAL 26 The appellant sought review of this decision before the Tribunal. The Tribunal affirmed the Department's decision. The Tribunal referred to Chen v Minister for Immigration and Multicultural Affairs (2005) 142 FCR 257, which found that an exceptional circumstance is that which is unusual and not of the applicant's own making, but beyond the applicant's control. 27 Before the Tribunal the appellant argued that the notice issued to him under s 20 of the ESOS Act was invalid since he was not an 'accepted student' at Hibernia for the purposes of s 20 of the ESOS Act as he had been enrolled at a different educational institution and was no longer studying at Hibernia. Further, the appellant argued that Hibernia was in breach of National Code Standards 14 and 15 in the manner that it handled his case and that this was a relevant consideration in determining the existence of exceptional circumstances. 28 In a letter dated 27 June 2011 the Tribunal requested the appellant provide more information, including the date that the appellant formally withdrew his enrolment at Hibernia. In a letter dated 4 July 2011, the appellant's agent replied that the appellant did not recall the precise date, but it was some time shortly after 5 July 2010. The appellant stated that he advised Hibernia by telephone that he was changing educational institutions. 29 The Tribunal rejected the appellant's argument that because he was not enrolled at the time, the certification and notice that Hibernia issued pursuant to ss 19 and 20 of the ESOS Act were invalid. The Tribunal stated at [73]–[74]: 73. In the absence of judicial authority, the Tribunal considers that the preferable view is that a s. 20 notice is not invalid for all purposes just because the student may not be an "accepted student" at the time the notice is issued, provided he was an "accepted student" at the time the provider's obligation to report the student for breach of its progress or attendance policies arose. 74. In the present case, the Tribunal is satisfied, on the basis of the evidence before it, that the applicant was an "accepted student" when, because of his unsatisfactory course progress, Hibernia was obliged to initiate action to report him to the department. It therefore finds that the s 20 notice issued on 21 July 2010 was valid. 30 The Tribunal at [75] stated that even if its analysis on the previous issue was incorrect, it was satisfied on the basis of the evidence before it that the appellant was an 'accepted student' when Hibernia issued the s 20 notice, since Hibernia informed the Tribunal that the appellant never formally withdrew from his management course, but was instead unenrolled from the course on 19 July 2010 by Hibernia when he failed to attend his advanced management diploma course. The Tribunal found that a telephone call to Hibernia made by the appellant was insufficient to end his enrolment. He therefore remained an 'accepted student' as at 21 July 2010, the date of the s 20 notice. 31 The Tribunal then turned to the issue of whether there were exceptional circumstances. The Tribunal had concerns relating to the authenticity of the medical evidence that the appellant provided to it to support his claim that his mother was unwell. The Tribunal considered that even if the medical evidence was accurate as to the appellant's mother's condition, such condition did not amount to exceptional circumstances as the mother's period of hospitalisation was brief and was for a relatively minor reason. 32 During the course of the hearing before the Tribunal the appellant referred to a breakup with his girlfriend of some years as having an adverse impact on his studies. The Tribunal considered that a breakup was a normal part of life and thus did not amount to an exceptional circumstance. 33 Furthermore, the Tribunal stated that the appellant had not provided any evidence to the Tribunal or the Department that would indicate that he was affected by his mother's health or the breakup. The only medical certificates that related to the appellant's health referred to blood tests and generally stated that the appellant was 'unfit to continue his usual occupation'. These results did not indicate that the appellant was suffering from serious medical issues while studying at Hibernia. 34 The Tribunal therefore found that the appellant had breached the terms of his visa and he had not established the existence of any exceptional circumstances. Accordingly, the Tribunal affirmed the Minister's decision not to revoke the automatic cancellation. APPLICATION TO THE FEDERAL MAGISTRATES COURT 35 The appellant appealed the Tribunal's decision to the Federal Magistrates Court. Nicholls FM found that the appellant's written submissions failed to disclose any jurisdictional error. His Honour applied the decision in Kim v Minister for Immigration & Anor (2011) 254 FLR 19 ('Kim'), which held that a s 20 notice issued by an educational institution was conclusive and a Court could therefore not review the circumstances which led to the issuance of the certificate. Although this decision was not available to the Tribunal that decided the appellant's case, his Honour concluded that even if the Federal Magistrates Court remitted the decision to the Tribunal for reconsideration, the application of Kim would result in the Tribunal reaching the same conclusion. His Honour therefore declined to grant the relief sought by the appellant. His Honour also found no legal error in the Tribunal's consideration of the 'exceptional circumstances' as raised by the appellant. Accordingly, Nicholls FM found that the application did not raise any arguable case. APPEAL TO THE FEDERAL COURT 36 In his application, the appellant states the following grounds of appeal: 1. Tribunal failed to consider the National Code Standards. 2. Tribunal failed to consider that I withdrawal myself from the course and failed to consider my exceptional circumstances. 37 These grounds of appeal are essentially identical to grounds 1 and 2 in the appellant's application for review of the Tribunal decision which was placed before the Federal Magistrates Court. 38 In oral submissions the appellant maintained that he had not breached his visa conditions; that he had changed education providers and would have continued to study had his visa not been cancelled and that he wanted his visa back. 39 The Court has read the decision of Nicholls FM. The Court finds that the Federal Magistrate thoroughly considered the submissions of the appellant on these issues. There is no error revealed in the decision of the Federal Magistrate. 40 Furthermore, his Honour was correct in his conclusion that Kim provides a complete answer to the appellant's proposed grounds of appeal. In Kim, Jarrett FM stated at [34]–[35]: 34. The certification issued by Ms Kim's education provider pursuant to cl 8202(3)(a) of Sch 8 to the Migration Regulations is, in my view, a decision made under a regulation made under the Migration Act. It is the giving of a certificate for the purposes of s 474(2)(b) of the Act. It is, in my view, a privative clause decision. It is not excluded from the definition by any regulation made for the purposes of s 474(5) of the Migration Act. 35. The certification is not given under the ESOS Act (either s 19 or s 20). Those sections deal only with the notification of a breach of a visa condition. As the Full Court instructs in Maan, it is the issue of the certification under cl 8202(3) which is the breach (or non-compliance) which becomes notifiable under ss 19 and 20 of the ESOS Act. 41 In Maan v Minister for Immigration (2009) 179 FCR 581, the Full Court of the Federal Court of Australia found at [44] that the fact of certification by the education institution that a student was not making satisfactory progress itself constitutes a breach of visa conditions. 42 In Kumar v Minister for Immigration and Citizenship [2011] FMCA 741, Jarrett FM stated at [28]–[29]: 28. Responsibility for certification clearly rests with the education provider. The only task for a decision maker (the Minister or a tribunal) is to determine that a certificate, on its face, is of a kind that engages condition 8202(3). The existence of the facts which underlie the certificate do not need to be determined by the tribunal. Were it to be otherwise, the certification process would become irrelevant and ineffective. The inquiry by the minister for the purposes of s 116(1) or 116(3) and reg 2.43(2) would become a broad ranging and perhaps cumbersome examination of the visa holder's attendances and insofar as condition 8202(3)(a) is concerned, satisfactory academic performance. It is apparent that the Legislature has intended to leave judgments about those matters to education providers. 29. The applicant argues that the above authorities, and in particular Mo, stand for the proposition that the tribunal is not required to go beyond the education provider's certificate, but may do so if the facts before it warrant such a course. To the extent that the submission suggests that there is a discretion vested in the tribunal to examine the validity of an education provider's certificate in any given case, I think the proposition is not sustainable on the authorities. 43 The Court is not able to consider the circumstances in which Hibernia 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. 44 While the appellant relies upon his enrolment at TAFE Queensland to establish that he was no longer an 'accepted student' at Hibernia, such fact is irrelevant since at the time the s 19 certification was issued by Hibernia, the appellant remained an 'accepted student' at Hibernia. 45 Furthermore, the Court is not empowered to interfere with the Tribunal's factual finding that the appellant had not unenrolled himself from his course at Hibernia, since it cannot review the factual findings made by the Tribunal: see SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 at [11] and the authorities quoted within that paragraph. 46 The certification that the appellant was in breach of Condition 8202 was not of a type that would require a Tribunal or Court to go beyond it and consider the circumstances in which the certificate was issued. The grounds of appeal alleged by the appellant request the Court to do exactly that. 47 For the above reasons, the appeal is dismissed. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 3 August 2012