FEDERAL MAGISTRATES COURT OF AUSTRALIA
SINGH v MINISTER FOR IMMIGRATION & ANOR	[2012] FMCA 448	

MIGRATION – Application for judicial review – cancellation of vocational training visa – course attendance unsatisfactory – whether exceptional circumstances beyond the applicant’s control – medical certificate not genuine – adverse finding of credibility – whether studies abandoned for financial reasons – whether error of law – application dismissed.	

Education Services for Overseas Students Act 2000, ss.19, 20
Migration Act 1958 (Cth), ss.116(1)(b), 119(1), 359, 360, 474
Migration Regulations 1994, reg.2.43	

Abebe v Commonwealth (1999) 197 CLR 510
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC)
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) 	

Applicant:	GURSIMRANJEET SINGH	

First Respondent:	minister for immigration & citizenship	

Second Respondent:	MIGRATION REVIEW TRIBUNAL	

File Number:	MLG 1666 of 2011	

Judgment of:	F. Turner FM	

Hearing date:	14 May 2012	

Date of Last Submission:	14 May 2012	

Delivered at:	Melbourne	

Delivered on:	14 May 2012	

REPRESENTATION
The Applicant appeared In Person with the assistance of a Punjabi interpreter	

Counsel for the First Respondent:	Ms Holt	

Solicitors for the First Respondent:	Clayton Utz	

ORDERS
(1)	The application for judicial review filed on 23 November 2011 is dismissed.
(2)	The applicant pay the first respondent’s costs fixed in the amount of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE	
MLG 1666 of 2011
GURSIMRANJEET SINGH	
Applicant

And

minister for immigration & citizenship	
First Respondent

migration review tribunal	
Second Respondent

REASONS FOR JUDGMENT
(Delivered Ex tempore & Revised)
1.	This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 24 October 2011 to affirm the decision of a delegate of the Minister for Immigration and Citizenship (the “Minister”) to cancel the applicant’s Subclass 572 (Temporary) Vocational Education and Training Sector (Class TU) visa. 
2.	The grounds in the application for judicial review are:
(1)	I am not satisfied with migration tribunal decision. I want to review once again my case. I want to do further education.
History
3.	On 3 September 2010, Cambridge International College informed the applicant that it had advised the Department of Education, Employment and Workplace Relations that the applicant had not maintained satisfactory attendance between 23 November 2009 and 
18 April 2010, and that it had issued a Section 20 notice under the Education Services for Overseas Students Act 2000 (the “Education Services Act”), cancelling the applicant’s confirmation of enrolment (Court Book “CB” p.2 – 9).
4.	On 27 September 2010, a delegate to the Minister, informed the applicant that there may be grounds for cancellation of his Student (Temporary) (Class 2U) visa, pursuant to s.116(1)(b) of the Migration Act 1958 (the “Act”).
5.	The ground for the cancellation was a failure to comply with condition 8202(3)(b) of the visa (CB p.10).
6.	The Minister gave the applicant an opportunity to comment on the grounds for cancellation (CB p.10 – 11). The applicant responded by letter dated 27 September 2010 opposing cancellation (CB p.14).
7.	On 24 June 2011, a delegate of the Minister cancelled the visa pursuant to s.116 of the Act, and reg.2.43 of the Migration Regulations 1994 (the “Regulations) (CB p.22). In doing that, the delegate was satisfied that the applicant had not complied with condition 8202 of his visa, and that the non-compliance was not due to exceptional circumstances beyond the applicant’s control.
8.	On 29 June 2011, the applicant applied to the Tribunal to review the delegate’s decision (CB p.33).
9.	The Tribunal invited the applicant to appear at the hearing on 18 October 2011 (CB p.52). The applicant appeared at the hearing and gave evidence (CB p.59).
10.	The Tribunal affirmed the delegate’s decision by decision dated 
21 October 2011 (CB p.75).
11.	Regulation 2.43(2)(b)(ii) provides that the Minister must cancel a Student (Temporary) (Class TU) visa if the Minister is satisfied that the visa holder has not complied with condition 8202, and that the non-compliance was not due to “exceptional circumstances beyond the visa holder’s control”. 
12.	Condition 8202 requires the visa holder to achieve satisfactory course attendance, and that condition will be met unless the education provider certifies that the visa holder has not achieved satisfactory course attendance in accordance with s.19 of the Education Services Act and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
13.	Section 119(1) of Act provides:
(1)	Subject to Subdivision F (non‑citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a)	give particulars of those grounds and of the information (not being non‑disclosable information) because of which the grounds appear to exist; and
(b)	invite the holder to show within a specified time that:
(i)	those grounds do not exist; or
(ii)	there is a reason why it should not be cancelled.
Those steps were taken by the Minister.
14.	The Tribunal was satisfied that the applicant breached condition 8202(3)(b) by it being certified by Cambridge International College that he was not achieving satisfactory course attendance.
15.	The Tribunal found that the applicant’s evidence in relation to his medical certificates lacked cogency, and that it was not satisfied that the applicant had consulted a doctor, and that he or someone else had fabricated the September/October 2010 certificates to use as evidence before the Tribunal (CB p.88 [53]). The Tribunal set out in length its reasons for those conclusions from CB p.47 to 52.
16.	As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]: 
	“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.
17.	The conclusions of the Tribunal about the medical certificates and about the credibility of the applicant were findings of fact that were open to it on the material and are not amenable to review. The Tribunal found that the applicant’s credibility as a witness was undermined (CB p.86 [47]). 
18.	At CB p.88 [55], the Tribunal referred to problems which diminishes the applicant’s credibility and made the finding at [53] about the applicant having fabricated the evidence. At CB p.86 [48], the Tribunal found that the witness was not a reliable witness.
19.	In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
	“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.
20.	As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
21.	The Court refers to the following decisions:
	“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.
22.	In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:
	“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.
23.	The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
	“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.
And at [29]:
	“If the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.
24.	In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:
	“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
	If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone”.
25.	The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable, or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant. 
26.	The Tribunal did not accept that Cambridge International had not warned, or had failed to advise the applicant properly, or that it committed any other procedural fairness or breach of the National Code, “that constituted exceptional circumstances (or at all)” (CB p.88 [54]).
27.	The Tribunal found that the applicant’s grandfather passed away on 
28 January 2010, but found that this did not amount to exceptional circumstances (CB p.89 [56] and [58 – 59], and that if even if it did amount to an exceptional circumstance, it would not have stopped the applicant from attending classes for more than a day or a few days (CB p.89 [59]). That finding of fact is not amenable to review.
28.	The Tribunal found that the applicant abandoned his studies due to financial problems (CB p.90 [60]). That finding of fact was open to the Tribunal; its reasoning is set out at CB p.88 [55]. The finding of fact is not amenable to review.
29.	The applicant alleges that the tribunal denied him the opportunity to call witnesses. That is clearly not so (CB p.52) The notice of invitation to attend the hearing included a statement:
	“… you may ask the Tribunal to obtain oral or written evidence from other persons…”.
30.	At CB p.54 is an Information Sheet which was attached to the Invitation to Appear and includes a section headed “Can I Ask the Tribunal to obtain evidence?” The applicant was therefore put on notice in writing that he could call further evidence or have the Tribunal obtain further evidence. 
31.	The Tribunal concluded that the applicant’s breach of condition 8202 was not due to exceptional circumstances. An error of law has not been shown in the Tribunal reaching that decision. The Tribunal had regard to all the evidence provided by the applicant as to exceptional circumstances. That is shown by paras. 8 to 39 of the decision of the Tribunal.
32.	The Court finds that the Tribunal did not breach s.359A of the Act, as the Tribunal relied on the information that the applicant gave for the purpose of the application for review, which falls within the exception in s.359A(4)(b) and (ba). 
33.	The Tribunal did not breach s.360 of the Act as by letter dated 
7 September 2011; it invited the applicant to attend the hearing on 
18 October 2011 (CB p.52). 
34.	The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere. 
35.	The application for judicial review is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of F. Turner FM

Date:  29 May 2012