Abdul v Minister for Immigration

[2016] FCCA 1039

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABDUL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1039

Catchwords:
MIGRATION – Review of decision of former Migration Review Tribunal – cancellation of a student visa – whether the Tribunal denied the applicant procedural fairness or acted unreasonably considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.116, 359A

Applicant: IBRAHIM FARHAN MOHAMMED ABDUL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3278 of 2014

Judgment of: Judge Driver

Hearing date: 3 May 2016

Delivered at: Sydney

Delivered on: 5 May 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary of DLA Piper

ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. The application filed 25 November 2014 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3278 of 2014

IBRAHIM FARHAN MOHAMMED ABDUL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. On 3 May 2016, I dismissed the applicant’s (Mr Abdul) judicial review application in this matter with costs.  The following are my reasons for those orders.

2. Mr Abdul’s application was to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 21 October 2014.  The Tribunal affirmed a decision of a delegate of the Minister to cancel Mr Abdul’s class TU (student) visa.[1] 

   [1] Before the Tribunal the applicant was named Ibrahim Farhan Mohammed Farhan.  In these proceedings, the applicant is named as Ibrahim Farhan Mohammed Abdul.  I have proceeded on the basis that they are the same person.

3. The following statement of background facts is derived from the submissions of the Minister filed on 26 April 2016.

4. Mr Abdul is a male citizen of India. He was the holder of a subclass 572 student visa, granted in May 2013.

5. The subclass 572 visa held by Mr Abdul was subject to condition 8202, pursuant to clause 572.611 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

6. Condition 8202 relevantly required as follows:

   8202

   (1) The holder (other than the holder of a Subclass 560 (Student) visa who is a Foreign Affairs student or the holder of a Subclass 576 (Foreign Affairs or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2) 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. Section 116(1)(b) of the Migration Act 1958 (Cth) (Migration Act) provides as follows:

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (b) its holder has not complied with a condition of the visa…

8. At the time Mr Abdul’s subclass 572 visa was granted, he was enrolled in a Certificate IV in Frontline Management and a Diploma of Management.  These enrolments were cancelled on 23 July 2013 due to the non-payment of fees.[2]  From that time Mr Abdul was no longer enrolled in a registered course.

   [2] CB 4.

9. Mr Abdul was issued with a Notice of Intention to Consider Cancellation (NOICC) of his subclass 572 visa on 31 July 2014.[3]

   [3] CB 6-11.

10. Mr Abdul replied to the NOICC by emails dated 31 July 2014,[4] 8 August 2014[5] and 12 August 2014.[6]  Mr Abdul claimed that he was suffering from cervical spondylitis on 23 July 2013 and that he went to India on 29 July 2013 for medical treatment.  He claimed that he suffered two years of pain and agony as a result of his injury, but he was slowly recovering.  Mr Abdul provided two medical certificates from the Khanapuram National Hospital which stated that he received treatment for cervical spondylitis.[7]  One of the certificates, dated 31 July 2014, states he was under treatment from 31 July 2013 to 1 February 2014.

    [4] CB 12-13.

    [5] CB 16-20.

    [6] CB 30-33.

    [7] CB 13 and 20.

11. The delegate of the Minister cancelled Mr Abdul’s visa on 13 August 2014.[8]

    [8] CB 41-46

12. Mr Abdul applied to the Tribunal for review of the delegate's decision on 21 August 2014.[9]

    [9] CB 47-48.

13. Mr Abdul provided further medical documents to the Tribunal which referred to Mr Abdul suffering back problems and dizziness and diagnosed him as suffering Cervical Spondylosis, Chronic Pansinisits, Hiatus Herme, Benign paroxysmal positional vertigo.[10]

    [10] CB 71- 85

14. Mr Abdul attended a hearing before the Tribunal on 21 October 2014.[11]

    [11] CB 86-89.

15. The Tribunal made its decision on 21 October 2014, affirming the decision to cancel Mr Abdul’s subclass 572 visa.[12]

    [12] CB 91-95.

The decision of the Tribunal

1. The Tribunal found that Mr Abdul had not been enrolled in a registered course since 23 July 2013, and he had therefore breached condition 8202.[13]

   [13] see [9]-[10].

2. Having found that Mr Abdul had breached condition 8202, the Tribunal considered whether to exercise its discretionary power under s.116 of the Migration Act to cancel Mr Abdul’s visa.

3. The Tribunal considered that the purpose of a student visa is to enable the visa holder to study in Australia.  The Tribunal found that Mr Abdul had not been fulfilling the purpose of his travel to and stay in Australia as the holder of a student visa because he ceased undertaking study in Australia.  The Tribunal considered the breach to be significant, given the importance of enrolment and the lengthy period he was not enrolled for.[14]

   [14] see [13]

4. The Tribunal found that Mr Abdul had successfully completed three years of study in over seven years in Australia. The Tribunal acknowledged that Mr Abdul claimed there were reasons he did not complete his study, however the Tribunal was not convinced that there were good reasons for Mr Abdul’s failure to complete any study since about 2010.[15]

   [15] see [14]

5. The Tribunal had regard to Mr Abdul’s medical evidence and his claim that his health condition had prevented him from studying.[16]  The Tribunal expressed concerns about this claim, as follows: 

   a)the Tribunal found that if Mr Abdul’s evidence about his injury was true, he would not have been seeking a student visa just three months before he was forced to return to India for treatment, knowing that such a visa required him to actively study in Australia. The Tribunal also expressed concern as to whether Mr Abdul would have passed the medical examination in the state he claimed he was in at that time;[17]

   b)the Tribunal found that Mr Abdul could have enrolled and deferred his studies if he was unable to study, noting that the issue was one of enrolment not of course progression or attendance.  The Tribunal did not accept that he was incapable of arranging enrolment as claimed;[18]

   c)the Tribunal noted that even after his claimed treatment in India Mr Abdul returned to Australia in February 2014 and had not taken any steps to enrol in a course since then.  The Tribunal found that Mr Abdul’s presence in Australia from February 2014 while not enrolled indicated that he was not a genuine student;[19]

   d)the Tribunal did not accept that it was Mr Abdul’s health condition that resulted in his cessation of enrolment.  The Tribunal found that the breach did not occur in circumstances beyond Mr Abdul’s control.  The Tribunal found there were no extenuating or compassionate circumstances in this case.[20]  The Tribunal concluded at [20] that Mr Abdul was not a genuine student and that the purpose of his presence in Australia was not to study.

   [16] at [15]

   [17] see [16]

   [18] see [17].

   [19] see [18].

   [20] at [19].

6. The Tribunal also expressed concern about Mr Abdul’s future plans.[21] The Tribunal found it to be inexplicable that Mr Abdul would not have enrolled in a course if he had recovered from his claimed condition, and expressed the view that if Mr Abdul was not fully recovered as he claimed at the hearing then he would not be able to return to study.  

   [21] at [21].

7. The Tribunal accepted that Mr Abdul would be caused some hardship by the cancellation of his visa[22] and accepted that nothing adverse was known about Mr Abdul’s past and present behaviour towards the Department.[23]

   [22] at [22].

   [23] at [23].

8. Considering all of the circumstances, the Tribunal concluded at [24]-[25] that Mr Abdul’s visa should be cancelled.

The present proceedings

1. These proceedings began with a judicial review application filed on 25 November 2014.  Mr Abdul was at that time legally represented and his solicitor certified that the application had reasonable prospects of success.  The grounds in the application are:

   1. The Second Respondent’s decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s.359 of the Migration Act 1958 and failed to take into account relevant considerations.

   Particulars:

   a. The Applicant in fact came to Australia in 2007 and studied in SSBT (Sydney School of Business and Technology) and completed 2 years study in Business.

   b. In 2009 the Applicant went to a college in North Sydney that removed Accounting course which he was studying.  They refunded and withdrew his enrolment without any notice to the Applicant and the Applicant was there for about 9 months with no certificate obtained for that period.  A circumstances that was exception and beyond his control.

   c. In 2009 the Applicant’s brother passed away in India and he went to India for 4-5 months.

   d. In 2010 the Applicant joined another college but withdrew his course due to illness.

   e. In 2010/2011 the Applicant was enrolled in Pacific College, Auburn for 1 year but could not study because of his illness.

   f. The Applicant applied for a review on or about 21 August 2014 and provided all of the information to the Tribunal s set out in a to e above.  As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent.

   g. The Applicant appeared for the hearing with medical evidence and the Tribunal failed to consider the nature of the Applicant’s spinal illness and did not even mention what the illness was in its decision  At paragraph 16 the Tribunal made a credibility finding about the nature of the [applicant’s] illness because he obtained a clear medical check for his student visa but failed to consider that in fact the medical check for his student visa disclosed his spinal illness.

   h. The Applicant made several requests to the Second Respondent to allow additional time to obtain COE Letter and the Tribunal did not even consider that application or that the information that could be provided.

   i. At paragraph 14 of the Decision the Tribunal considered only 1 year of the Applicant’s study when in fact he studied for two years.

   j. The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it required the applicant to have a COE.  The Tribunal failed to take into account that the applicant needed time to obtain the COE letter and did not give him any opportunity to provide further medical evidence.

   2. The Second Respondent decision was so unreasonable that no reasonable tribunal member would have made it.

   Particulars:

   a) The Applicant has successfully completed a two year course in Australia and could not continue study because of a serious spinal illness.  The Applicant was not prepared to take risk to pay a substantial amount in tuition fees up front unless he was able to study.  In fact the Applicant left the Country while he was seriously ill.

   b) After waiting 1 month to begin processing the Applicant’s application the Tribunal refused to allow any further time for the Application to provide a COE Letter.  In the circumstances where the Tribunal failed to have proper regard to the medical evidence it acted unreasonably.

   3. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness or failed to take into account relevant considerations in refusing the application request for an adjournment or additional time to provide a current COE letter.  The Applicant relies on the principle in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013).

   Particulars

   a. The applicant relies on the particulars in grounds 1 and 2 above.

   (errors in original)

2. Mr Abdul continues to rely upon that application.  His solicitor withdrew from the proceedings in accordance with the Federal Circuit Court Rules 2001 (Cth) on 5 April 2016. Mr Abdul attended the hearing of the matter on 3 May 2016 in person and confirmed his readiness to proceed.

3. I received as evidence, subject to relevance, Mr Abdul’s affidavit filed with the application on 25 November 2014.  I also received as evidence the court book filed on 12 January 2015. 

4. Only the Minister prepared written submissions in accordance with procedural orders I made by consent on 10 December 2014.  I invited oral submissions from Mr Abdul at the hearing on 3 May 2016.  He referred to his health concerns, which apparently are continuing, and what he regards as the unfairness of the Tribunal decision.  He did not otherwise advance any arguments in support of his application.

5. I agree with the Minister’s submissions concerning the grounds of review in the application.  Having regard to the fact that Mr Abdul lost his legal representation shortly before the trial of this matter, I have separately considered whether any other argument of jurisdictional error might be raised.  In my opinion, there are none. 

Ground 1

1. The first ground of review alleges that Mr Abdul was denied procedural fairness under section 359 of the Migration Act and that the Tribunal failed to take into account relevant considerations.

2. Section 359 of the Migration Act provides a power to the Tribunal to invite an applicant to provide information. This is not a mandatory power, and the fact that the Tribunal did not invite information from Mr Abdul under s.359 of the Migration Act does not give rise to any jurisdictional error.

3. The particulars to this ground make a number of allegations of error on the part of the Tribunal.  These are addressed in turn.

Particulars (a) to (f)

1. It is asserted in particulars (a) and (b) that Mr Abdul stopped studying in 2009 because his college removed the Accounting course which he was studying, and withdrew Mr Abdul's enrolment without any notice to him.  It is asserted in particular (c) that in 2009 Mr Abdul’s brother passed away and Mr Abdul went to India, and in particular (d) that in 2010 Mr Abdul joined another college but withdrew from the course due to illness.   It is asserted in particular (e) that in 2010/2011 Mr Abdul enrolled in another college but could not study because of his illness. 

2. It is asserted in particular (f) that the matters summarised above were provided to the Tribunal.

3. None of the matters pointed to in particulars (a) to (f) are capable of establishing jurisdictional error on the part of the Tribunal. 

4. The issue being considered by the Tribunal was whether Mr Abdul breached condition 8202 imposed on his visa which was granted in May 2013.  In considering this issue the Tribunal had regard to Mr Abdul's cessation of enrolment on 23 July 2013, after which time Mr Abdul had not enrolled in any registered course.  The matters asserted in particulars (a) to (e) all relate to an earlier period of time, between 2009 and 2011.

5. There is no evidence that the matters asserted in particulars (a) to (e) were put to the Tribunal, contrary to what is asserted in particular (f).  These matters are not mentioned in Mr Abdul's responses to the NOICC.  There is no transcript of the Tribunal hearing in evidence before the Court, and the Court accordingly had regard to the Tribunal's decision record as evidence of what was said during the hearing. 

6. The only mention of evidence given by Mr Abdul at hearing as to matters arising before his visa was granted in May 2013 appears at [14]. Mr Abdul is recorded as saying that courses had been discontinued or the owners changed, and the Tribunal found that there were not good reasons for Mr Abdul’s failure to complete any study since 2010. There is no suggestion that Mr Abdul claimed that the death of his brother or illness affected his ability to study in 2009 to 2011. The Tribunal cannot have fallen into error in not considering matters which were not put to it.

7. Mr Abdul also complains in particular (f) that he did not know of the likely timeframe for the Tribunal hearing. However, Mr Abdul was provided with six weeks' notice of the Tribunal hearing date.

Particular (g)

1. It is asserted in particular (g) that the Tribunal failed to consider Mr Abdul's medical evidence and the nature of his “spinal illness”.  It is further asserted that the Tribunal erred at [16] in having regard to Mr Abdul’s ability to obtain a clear medical check when he was granted his student visa, as that medical check disclosed his spinal illness.

2. Contrary to what is alleged in this particular, the Tribunal considered the various medical reports submitted by Mr Abdul, and they are referred to at [15]. The Tribunal did not accept that the breach of condition 8202 had occurred as a result of the Mr Abdul's medical conditions, for the reasons set out at [16] to [18]. This was due in part to the fact that the issue was that Mr Abdul had not been enrolled in a course, as opposed to some issue with his course attendance or progress. Having regard to the reasoning on which the Tribunal’s decision was based, the exact nature of Mr Abdul’s conditions were not material and did not need to be specified by the Tribunal in its findings.

3. With respect to the alleged error based on the Tribunal's findings at [16], it is apparent that the Tribunal did not actually access Mr Abdul’s health check.  Rather, the Tribunal was merely commenting that there was a question as to whether Mr Abdul would have been able to pass the medical examinations at the time the visa was granted, if his condition was so severe that he had been unable to enrol in a course, as was claimed.  There is no illogicality in the Tribunal's reasoning, as the question posed was a logical and rational one. 

Particulars (h) and (j)

1. It is asserted in particular (h) that Mr Abdul made several requests to the Tribunal for additional time to obtain a confirmation of enrolment, and it is alleged in particular (j) that this has resulted in a denial of procedural fairness. 

2. The only record of any request for additional time made by Mr Abdul in advance of the Tribunal hearing is the case notes at CB 66-68, where Mr Abdul asks for his hearing to be rescheduled from 21 October to 23 or 24 October, on the basis that the documents he wished to provide might not have been available before the scheduled hearing.  Mr Abdul was told to write to the Tribunal to make this request, and then later the same day called to advise that he would attend the hearing as scheduled.  In the event, Mr Abdul provided a large number of medical documents to the Tribunal prior to the hearing.

3. The Tribunal at [21] records that at the hearing Mr Abdul informed the Tribunal that he was nearly recovered and would be able to arrange enrolment within a week of the Tribunal hearing. There is no suggestion that Mr Abdul sought an adjournment for this purpose, however to the extent that what is recorded at [21] is seen as an adjournment request, it was clearly rejected by the Tribunal for the reasons given at [21].

1. In my opinion, no error arises from this and that the Tribunal acted reasonably in the exercise of its discretion as to whether to adjourn its proceedings.  The issue before the Tribunal was whether Mr Abdul had been enrolled in a course for the period after 23 July 2013 and the circumstances of that non enrolment.  Any enrolment made by Mr Abdul after the Tribunal hearing was probably not relevant, and as found by the Tribunal it was inexplicable that Mr Abdul had not previously sought to enrol in a course if he was able to do so.

Particular (i)

1. It is asserted in particular (i) that the Tribunal at [14] only considered one year of Mr Abdul’s study when in fact he studied for two years.

2. This misunderstands the Tribunal's statement at [14]. The Tribunal stated that Mr Abdul came to Australia in 2007 and completed a Diploma of Business in 2009, being a two year course. The Tribunal then referred to a Diploma of Accounting, which it says was a one year course. This reveals no error on the part of the Tribunal.

Ground 2

1. Ground 2 alleges that the Tribunal decision is unreasonable, on the basis that no reasonable Tribunal member would have made it. 

2. Particular (a) to this ground refers to Mr Abdul’s claims that he was not able to continue study because of his illness.  The Tribunal considered these claims, and was not satisfied that the breach of condition 8202 was a result of his illness.  The Tribunal provided cogent reasons for this conclusion, and the allegation of unreasonableness cannot be sustained.  Mr Abdul is by this particular seeking impermissible merits review.

3. This particular further asserts that Mr Abdul was not prepared to take the risk to pay substantial tuition fees up front unless he was able to study.  This was not a matter which was raised with the Tribunal, and the Tribunal cannot be found to have erred based on a claim which was not before it.

4. Particular (b) alleges that the Tribunal acted unreasonably in not adjourning its proceedings to allow Mr Abdul time to obtain a confirmation of enrolment.  This is addressed above in relation to Ground 1.  This particular further alleges that the Tribunal failed to have “proper” regard to the medical evidence before it.  The Tribunal’s consideration of the medical evidence is set out above, and the allegation that the Tribunal did not “properly” consider the evidence seeks to engage in impermissible merits review.

Ground 3

1. Ground 3 again alleges that the Tribunal acted unreasonably in not adjourning its proceedings.  I have dealt with that.

Conclusion

1. Mr Abdul has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  Costs should follow the event in the fixed amount sought by the Minister.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  5 May 2016