FEDERAL MAGISTRATES COURT OF AUSTRALIA
PUROHIT v MINISTER FOR IMMIGRATION & ANOR	[2012] FMCA 477	

MIGRATION – Migration Review Tribunal – student visa – failure to comply with condition 8202 of last visa – last visa not cancelled due to exceptional circumstances beyond the applicant’s control – whether previous 
non-compliance remains non-compliance when it was due to exceptional circumstances beyond the applicant’s control – whether applicant afforded procedural fairness.	

Education Services for Overseas Students Act 2000 s.20
Migration Act 1958 ss.65, 116, 349, 359A, 360
Migration Regulations 1994 sch.2, cls.572.223, 572.235; reg.2.43	

Chen v Minister for Immigration and Citizenship & Anor (2011) 250 FLR 30; [2012] ALMD 1534; [2011] FMCA 177
Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199; [2006] FCAFC 167
Musapeta v Minister for Immigration and Citizenship and Anor [2007] FMCA 729
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 81 ALJR 515; (2006) 231 ALR 592; [2006] HCA 63	

Applicant:	NIRAV PRATAPBHAI PUROHIT	

First Respondent:	Minister for immigration & citizenship	

Second Respondent:	migration review tribunal	

File number:	MLG 1731 of 2011	

Judgment of:	Riley FM	

Hearing date:	18 April 2012	

Date of last submission:	12 June 2012 	

Delivered at:	Melbourne	

Delivered on:	19 June 2012	

REPRESENTATION
Counsel for the Applicant:	A. M. Sheehan	

Solicitors for the Applicant:	Aus-Asian Migration & Legal Consultants	

Counsel for the First Respondent:	Richard Knowles	

Solicitors for the First Respondent:	Australian Government Solicitor	

Counsel for the Second Respondent:	No appearance 	

Solicitors for the Second  Respondent:	Australian Government Solicitor	

ORDERS 
(1)	The application filed on 8 December 2011 and amended on 
12 December 2011 be dismissed.
(2)	The applicant pay the first respondent’s costs, fixed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE	
MLG 1731 of 2011
NIRAV PRATAPBHAI PUROHIT	
Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP	
First Respondent

MIGRATION REVIEW TRIBUNAL	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	This is an application for review of a decision of the Migration Review Tribunal.  The Tribunal affirmed a delegate’s decision to refuse to grant the applicant a temporary student visa.  
2.	The applicant arrived in Australia on 3 August 2008 on a student visa valid until 16 September 2010.  On 13 September 2010, he applied for another student visa.  That application was refused by the delegate because he was not satisfied that the applicant would have funds from an acceptable source as required by cl.572.223(2)(a)(iii) of the Migration Regulations 1994.  
3.	At the hearing before the Tribunal, the applicant said that he had been issued with a notice under s.20 of the Education Services for Overseas Students Act 2000 on 20 September 2009, during the currency of his last visa.  The notice said the applicant had not achieved satisfactory course attendance.  The applicant told the Tribunal that he got the notice because he was not attending class.  He produced a medical certificate dated 14 September 2009 which states:

	DR. P. BRIAN GAMBONI M.B. B.S.
398 BURNLEY STREET
RICHMOND, 3121
TELEPHONE: 9429 4310
AFTER HOURS: 9429 5677
PROVIDER NO: 484797Y

14.9.09
	Nirav Purohit states that he has had low back pain for the past 4 months. Due to this he has been unfit to attend his classes from 27.7.09 until 8.9.09 as he was unable to travel due to his back pain He is now fit to attend classes 
	[signature]
4.	The Tribunal noted that to satisfy cl.572.235 of Schedule 2 to the Regulations, the applicant was required to have complied substantially with the conditions of his last visa.  One of the conditions attached to the applicant’s last visa was condition 8202(3).  That condition required that the applicant’s education provider had not certified the applicant as not achieving satisfactory course attendance.
5.	The Tribunal noted that in Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199; [2006] FCAFC 167, Heerey and Sundberg JJ held that condition 8202(3), as it then stood, was not a condition which could be complied with substantially.  It was either satisfied or it was not.  As there was a relevant certificate in the applicant’s case, the Tribunal concluded that he had not complied with condition 8202(3) in relation to his last visa.  Consequently, the Tribunal was not satisfied that the applicant satisfied cl.573.235 of Schedule 2 to the Regulations and affirmed the decision under review. 
6.	It seems that the Tribunal was unaware that an earlier delegate of the Minister had considered whether to cancel the applicant’s last visa following the issuing of the s.20 notice.  The earlier delegate noted the certificate indicating that the applicant had not achieved satisfactory course attendance.  The earlier delegate made a finding that the applicant had breached condition 8202 of his visa.  
7.	However, the earlier delegate noted that she was required by subparagraph 2.43(2)(b)(ii)(B) of the Regulations to consider whether the non-compliance was due to exceptional circumstances beyond the visa holder’s control.  The earlier delegate noted that, on 3 and 
4 August 2009, the applicant’s education provider had been audited by the Department of Education, Employment and Workplace Relations and the Victorian Registration and Qualifications Authority.  
Those bodies had found that the applicant’s education provider had been unable to demonstrate adequate and effective systems and controls to monitor the attendance of overseas students.  The earlier delegate found that there were errors and omissions in the processes that led to the applicant being reported.  The earlier delegate considered that it would be unreasonable in the circumstances to cancel the applicant’s visa.
8.	The earlier delegate noted that the applicant claimed that he had been unable to attend classes for four to six months because he was suffering from a sore back.  The earlier delegate noted that those claims were not fully investigated because there were other exceptional circumstances that led to the applicant’s non-compliance.  The earlier delegate concluded that there were exceptional circumstances and decided not to cancel the applicant’s visa.
Ground 1 
9.	The first ground of review in the amended application filed on 
12 December 2011 is:
	The second Respondent made a jurisdictional error in asking the wrong question by characterizing the issue in the application as being whether the applicant had complied substantially with condition 8202 of his visa, Reasons paragraph 62. The decision on appeal was correctly stated by the second Respondent at paragraph 38 of the Reasons, that is the delegate was not satisfied the applicant would have access to funds from an acceptable source as required under subclause 5A405. The second Respondent did not consider and make findings with respect to that decision and the alleged failure to comply with subclause 5A405.
10.	This ground seems to assume that the Tribunal is confined on review to consider only the issues on which the delegate’s decision turned.  
That is not so.  The Tribunal conducts a full rehearing.  If the Tribunal finds that a particular criterion for the grant of a visa is not satisfied, it is obliged to refuse the visa, regardless of the delegate’s failure to consider that issue.  (See ss.65 and 349 of the Migration Act 1958.)  
11.	This point is clearly explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 81 ALJR 515; (2006) 231 ALR 592; [2006] HCA 63 at [35]:
	The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
12.	Consequently, it cannot be said that the consideration of the question of non-compliance with the conditions of the applicant’s last visa was the consideration of a wrong issue.  This ground, as stated in the amended application, is misconceived.
13.	However, the applicant also made the further argument that the question of non-compliance with the conditions of a last visa should not have been considered because it was irrelevant.  The applicant said that question was irrelevant because the earlier delegate had decided not to cancel the applicant’s last visa, notwithstanding the breach, due to exceptional circumstances.
14.	The first respondent argued that the applicant’s further argument was also misconceived.  The first respondent argued that the criterion in 
cl.572.235 of Schedule 2 to the Regulations required the applicant to have complied substantially with the conditions of his last visa.  He had not done so.  He had breached condition 8202(3) which was attached to his last visa.  The first respondent argued that the breach had occurred and meant that cl.572.235 could not be satisfied in this case.  The first respondent argued that was so, irrespective of the fact that the breach was regarded by the earlier delegate as having occurred in exceptional circumstances such that it did not result in cancellation of the applicant’s last visa.
15.	It appears that there is no authority directly on point.  That is, there appears to be no authority dealing with the question of whether a breach of a condition attaching to an applicant’s last visa should not be regarded as a breach in circumstances where the breach had been found by an earlier delegate to have been due to exceptional circumstances beyond the visa holder’s control. 
16.	However, somewhat similar circumstances arose in Musapeta v Minister for Immigration and Citizenship and Anor [2007] FMCA 729 where Smith FM said:
	[23]	The argument presented in the particulars to the application  appears to confuse the power of decision-makers under 
s.137L and reg.2.43(2)(b), to overlook breach of condition 8202(3)(b) if there are “exceptional circumstances beyond the visa holder’s control”. However, this consideration is not repeated in the criteria for the new visa currently sought by the applicant, and was not required to be addressed by the Tribunal when applying item 573.235.
	[24]	In the face of the clear language of the legislation, the applicant’s arguments of “legitimate expectation” to have his extenuating circumstances considered have no room to operate, even if a proper factual basis for them had been established before the Court.
17.	Similarly, in Chen v Minister for Immigration and Citizenship & Anor (2011) 250 FLR 30; [2012] ALMD 1534; [2011] FMCA 177, Burnett FM said:
	[41] Additionally the applicant contended that the Tribunal failed to turn its mind to the issue of whether there were exceptional circumstances beyond his control explaining his failure to comply with Condition 8202. …
	[42]	The respondent submitted two matters in answer to this submission:
	(a)	The issue of exceptional circumstances beyond the applicant’s control is not a relevant consideration. Such a matter is only relevant to an application concerning cancellation of a visa which was not the case here: Regulation 2.43 Migration Regulations. I consider the Tribunal correctly did not consider that matter in this case.
(b)	…
18.	While these cases did not arise in identical circumstances to the present case, it seems to me that they correctly state that a breach for the purposes of cl.572.235 is a breach, regardless of whether it is found to have arisen in exceptional circumstances beyond the visa holder’s control.  Consequently, the question of the applicant’s non-compliance with the conditions of his last visa was not irrelevant.  The Tribunal was correct to consider that issue.  This ground is not made out.
19.	During the hearing before this court, there was an exchange between the court and counsel for the first respondent about whether the relevant regulations might be unreasonable or arbitrary.  However, the point was not pursued by the applicant so I take it no further.  
Ground 2 
20.	The second ground of review in the amended application filed on 
12 December 2011 is:
	The Second Respondent made a jurisdictional error in failing to accord the Applicant procedural fairness in considering an eligibility requirement that was not in issue. The Second Respondent found at paragraphs 64 and 63 of the Reasons, that a notice pursuant to section 20 of the Education Services for Overseas Students Act 2000 (the “section 20 Notice”) meant that the Applicant had not complied with condition 8202 of his visa. By letter dated 21 January 2010 a delegate of the First Respondent decided with respect to the section 20 Notice that non-compliance was due to exceptional circumstances beyond the control of the Applicant and that the visa would not be cancelled.
21.	As stated above, the Tribunal was obliged to consider all of the applicable criteria in conducting its review of the delegate’s decision.  It was not a jurisdictional error to consider all of the applicable criteria.
22.	However, in doing so, the Tribunal was obliged to alert the applicant to any determinative issues that would not have been obviously open from the known material: SZBEL at [38].  In the present case, the delegate did not rely on the applicant’s non-compliance with the conditions attached to his last visa.  Consequently, the applicant would not have been aware that it was a live issue before the Tribunal.
23.	Having said that, however, it was the applicant himself who drew the Tribunal’s attention to the existence of the s.20 notice.  As such, there was no need under s.359A of the Act, because of the provisions of s.359A(4)(b) of the Act, for the Tribunal to give the applicant the information that a s.20 notice had been sent to him.  
24.	The applicant argued that, if he had been alerted to the issue concerning the s.20 notice, he could have told the Tribunal that his previous visa had not been cancelled due to exceptional circumstances beyond his control.  For the reasons previously explained, that would have made no difference to the decision.  There was a breach, and it remained a breach, whether or not it occurred in circumstances that resulted in the cancellation of the applicant’s last visa.  Consequently, even if there had been a denial of procedural fairness, there would be no utility in remitting the matter to the Tribunal for rehearing.
25.	The applicant sought to argue that there was no breach, because s.116(3) of the Act and reg.2.43(2)(b) only require mandatory cancellation of a student visa if there was breach that was not due to exceptional circumstances beyond the visa holder’s control.  
However, that submission misunderstands the relevant provisions.  
The question of whether there was a breach of condition 8202 is separate from the question of whether there must be a cancellation of a visa consequent upon that breach. 
26.	To the extent that there might have been an obligation under s.360 of the Act to alert the applicant to the legal consequences of the s.20 notice, the transcript of the hearing before the Tribunal shows that the Tribunal spelt out the consequences to the applicant and his migration agent at the conclusion of the hearing.  The relevant passage is at page 32 of the transcript and is as follows:
	THE TRIBUNAL: Well, then what [the agent] will tell you after this hearing or might explain to you – if you’ve got any questions I’ll explain it now, but to be eligible for the grant of a visa a student must satisfy a lot of requirements, and one of them is referred to in your decision where it says you don’t satisfy 573.223 because you haven’t provided adequate evidence that you’ve got financials. One of the other requirements is a requirement 572.235, and 572.235 says that to be granted a visa you must have complied substantially with the previous visa that you have. Now, you had a condition on your previous visa called condition 8202. 8202 says you must keep going to classes and you must pass at least half of your course on an ongoing basis.
	You were issued with a section 20 notice for failing to have satisfactory attendance. The fact that you have been issued with a section 20 notice means that you have breached condition 8202. The fact that you have breached condition 8202 means you have not substantially complied with your previous visa. Because you have not substantially complied with your previous visa you are not eligible for the grant of another visa. Do you understand me?
	THE APPLICANT: Yes, but I want to study now, you know. I know everything I done is really wrong, you know. I didn’t do many wrong things, you know. I want to study now, you know, I decided to do something.
	THE TRIBUNAL: All right.
	THE APPLICANT: And I know it’s all ---
	THE TRIBUNAL: Well, what I’m going to do is I’m going to adjourn this hearing for a short while only. I will consider the information that I have heard today and ---
	THE AGENT: The only short thing I can say is that he has learned hard way. Like some people learn from other experience, but he has learned the hard way, and I’m pretty sure if he is given more time he can prove himself and to his parents. Because I spoke to his father, he was devastated. And I’m pretty sure---
	THE TRIBUNAL: I can understand – I can understand that.
	THE AGENT: He understood all that now…
	THE TRIBUNAL: We are going to adjourn this hearing for approximately 10 minutes and we will come back. Thank you, this hearing is adjourned.
27.	It is true that the Tribunal did not expressly ask the applicant if he wished to comment.  However, the applicant did comment and so did his agent.  In effect, they had an opportunity to comment, even if there was nothing useful that they could say.  The agent’s reference to the applicant being given more time seems to be a request for more time to study, so that he can prove himself to be a good student, rather than as a request for an adjournment.  
28.	In these circumstances, it seems to me that the applicant was given procedural fairness.  This ground is not made out.
Ground 3 
29.	The third ground of review in the amended application filed on 
12 December 2011 is:
	The Second Respondent made a jurisdictional error in failing to accord the Applicant procedural fairness in not advising the Applicant prior to the hearing that it intended to consider the section 20 Notice.
30.	The Tribunal had no obligation to advise the applicant prior to the hearing before the Tribunal that it intended to consider the s.20 notice.  The Tribunal only learned of the s.20 notice during the hearing.  
The Tribunal was under no obligation to adjourn the hearing where an adjournment could have made no difference to the outcome.  
This ground is not made out.
Conclusion
31.	As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:  

Date: 19 June 2012