Acharya v Minister for Immigration

[2019] FCCA 3203

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACHARYA v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3203

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application to review the cancellation of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – whether the Tribunal confused the evidence before it – whether the Tribunal took into account relevant and logical material – whether the adverse findings of the Tribunal were open to it – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 476

Migration Regulations 1994 (Cth), sch.8

Applicant: ABIRAL ACHARYA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1031 of 2019

Judgment of: Judge Street

Hearing date: 7 November 2019

Date of Last Submission: 7 November 2019

Delivered at: Sydney

Delivered on: 7 November 2019

REPRESENTATION

Counsel for the Applicant: Mr D Petrushnko

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the Respondents: Ms K Morris

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 7 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1031 of 2019

ABIRAL ACHARYA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 March 2019 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (“Student visa”).

2. The applicant is a citizen of Nepal and on 10 September 2014 was granted the Student visa which was due to expire on 30 August 2018. The Student visa was subject to condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) (“the Regulations”), namely that the holder relatively must be enrolled in a full-time registered course.

3. The applicant’s present records identified the applicant had undertaken no study since completing a Certificate IV in Programming on 11 October 2015, and had not been enrolled in any registered course of study since 11 May 2016. It was in these circumstances that the applicant was sent a notice of intention to consider cancellation dated 17 January 2017 on the basis that he had not complied with condition 8202(2)(a) of the Regulations.

4. The notice pursuant to s 116 of the Act identified the particulars of the ground for cancellation and identified that it appeared that the applicant had not complied with condition 8202(2)(a) of the Regulations. The notice made express reference to the present records identifying that the applicant had not been enrolled in a registered course of study since 11 May 2016.

5. On 31 January 2017, a delegate found the applicant’s Student visa should be cancelled.

6. The applicant applied to the Tribunal for review on 1 February 2017. By letter dated 12 February 2019, the Tribunal invited the applicant to appear at a hearing on 20 March 2019. The applicant appeared on that date to give evidence and present arguments.

7. The Tribunal in its reasons identified the background to the application for review and correctly identified that the issue in the present case was whether the applicant has breached condition 8202 of Schedule 8 of the Regulations. The Tribunal correctly identified that if the applicant has breached that condition the visa may be cancelled.

8. The Tribunal referred to the delegate’s decision being provided with the application for review, identifying that the applicant had not been enrolled in a registered course of study since 11 May 2016.

9. The Tribunal noted that at the hearing the applicant acknowledged he had ceased to be enrolled in a registered course. The Tribunal found the applicant was not enrolled in a registered course and that accordingly, the applicant had not complied with condition 8202(2) of the Regulations.

10. Having found that the applicant had not complied with the condition, the Tribunal then turned to a consideration of the exercise of its discretion as to whether to cancel the Student visa and in that regard referred to the guidelines in the Department’s Procedures Advice Manual (“PAM3”).

11. The Tribunal set out the applicant’s response to the notice of intention to cancel the Student visa dated 24 January 2017, which referred to the applicant having decided to prioritise his studies and over the last three months had been trying to get an offer letter from various universities to continue his degree in Bachelors of Information and Technology, but that it was too late to get enrolled in any universities for the November 16 Semester so now the applicant is trying for the next Semester, which is in March 2017.

12. The Tribunal set out the applicant’s further statement dated 18 March 2019, which referred to the effect of the impact of an earthquake in Nepal, the inability of his family to support him in his studies, having been fired from a company in October 2016, that he had made his priorities to do well in the job and get sponsored, and that he did not know that he would get sacked.

13. The applicant also asserted that he was still trying to complete his Certificate IV in Programming, which he did manage to complete in February 2017. The applicant asserted that after the cancellation of the Student visa, he did not have any options on studies and referred to the uncertainty of his visa and referred to the period of time that had elapsed since the cancellation, but that once he had got his notice of his hearing before the Tribunal he submitted his application to the Edith Cowan University, but had not heard back from them. The applicant asserted he would rather be enrolled to study a Diploma of IT in the Pacific College of Technology and the applicant identified planning to complete his Diploma of IT at Pacific College, and apply again at Edith Cowan University for the course. The applicant asserted that he desired to pursue his study and career in Technology motor sports and sought to emphasise the importance of his study.

14. The Tribunal referred to the other material that was provided by the applicant, including the claims concerning the earthquake as being extenuating circumstances beyond the applicant’s control or that of his family.

15. The Tribunal referred to the applicant’s lack of study history following cancellation of the visa being relevant to the applicant’s claims and the Tribunal’s discretion. The Tribunal expressly identified these issues were explored in the Tribunal hearing.

16. The Tribunal discussed with the applicant at the hearing his progress in his studying in Australia. The Tribunal referred to the applicant’s response that he went to no classes and undertook no study. The Tribunal noted the applicant indicated he had been advised to enrol in this course by a former principal, but that he was not interested in studying business. The Tribunal explored with the applicant why he enrolled in the course and found the applicant’s explanation inadequate.

17. The Tribunal then referred to the applicant’s second statement, where the applicant had indicated he had been prioritising his work obligations above study commitments. The Tribunal referred to the applicant indicating that he was forced to do this in order to support himself and that he exceeded the 20 hours per week limitation on his Student visa. The Tribunal noted that while it might accept that the applicant felt he needed to work longer than 20 hours to earn more money, the Tribunal made express reference to the applicant being in Australia on a Student visa which was issued for the purposes of study. The Tribunal also identified that it raised with the applicant that his breach of the work restrictions on the visa, which is clearly a reference to the Student visa, would be an adverse discretionary factor for the Tribunal in exercising its discretion.

18. The Tribunal identified that the applicant had undertaken no study in Australia since finishing his Certificate IV in Programming on 11 October 2015 until 12 March 2019, being the same month as the Tribunal hearing. The Tribunal noted that the applicant had enrolled in a Diploma of Information Technology Networking due to commence on 11 March 2019.

19. The Tribunal made express reference to the expectation that it might have been expected that the applicant would have enrolled in a registered course of study at the point when he had had the ability to do so at least from January 2017. The Tribunal referred to the applicant’s response that he did not want to commit to study given the lack of certainty about the fate of his Student visa.

20. The Tribunal referred to the earthquake and was not satisfied that the financial difficulties suffered by the applicant as a result of the earthquake was as grave as he had indicated. The Tribunal also referred to the applicant not being prevented from continuing in completing his Certificate IV in Programming.

21. The Tribunal was not satisfied that the financial difficulties caused by the April 2015 earthquake were the key reasons for the applicant not being enrolled in a registered course from 11 May 2016 until the visa was cancelled on 31 January 2017. The Tribunal also regarded as a significantly adverse that the applicant has not actually engaged in any study after completing his Certificate IV in Programming in October 2015, in both the period before and after the Student visa was cancelled, up until 12 March 2019. The Tribunal found it was adverse that the applicant was not undertaking no study for almost three and a half years.

22. The Tribunal considered that the uncertainty the applicant may have held as to the fate of his Student visa, in terms of enrolment of study, would have been outweighed by a combination of the importance to him of studying in Australia and being able to demonstrate to the Department or the Tribunal that the applicant was acting as a genuine student over time.

23. The Tribunal also referred to the provision of the Subclass 573 Student visa and condition 8516 and that the applicant breached condition 8516 from the cancellation of his Bachelor of Information and Technology on 11 May 2016 until the cancellation of the Student visa on 31 January 2017. The applicant agreed that he had breached that obligation. The Tribunal regarded that breach as being adverse to the applicant, together with the fact that he had breached his visa conditions relating to his hours of work on the Student visa.

24. The Tribunal referred to the applicant being currently enrolled in a registered course, but identified this had only recently occurred and did not suggest an ongoing commitment to study while in Australia.

25. The Tribunal acknowledged the hardship for the applicant in respect of the cancellation. The Tribunal was not satisfied the applicant’s failure to had been enrolled in a registered course from the cancellation of enrolment until the cancellation of the visa has been for the reason of the earthquake in Nepal. The Tribunal referred to it as being adverse to the applicant in his lack of study since completing his Certificate IV in Programming until just before the Tribunal hearing in March 2019.

26. The Tribunal also identified taking into account as adverse to the applicant his breach of condition 8516, which was a reference to the Higher Educational Sector course requirement which the Tribunal clearly raised with the applicant at the hearing. The Tribunal also referred to the breach of limitations of work hours on the applicant’s visa and on a fair reading of the Tribunal’s reasons as a whole, that is a reference back to the observations made by the Tribunal in paragraph 28 in respect of having identified raising the breach of work restrictions on the visa with the applicant at the hearing and was clearly a reference to the student visa.

27. It was in these circumstances the Tribunal determined to exercise its discretion to cancel the Student visa and concluded that the Student visa should be cancelled. Accordingly, the Tribunal affirmed the decision under review.

The grounds

1. The grounds of the application are as follows:

   1. The Second Respondent made jurisdictional error by making a decision which was irrational or unreasonable, in relation to what was stated by the Second Respondent itself at [19] as being the central issue, namely whether an earthquake in Nepal caused the family of the Applicant to be unable to financially support the Applicant's studies in Australia.

   2. Further or in the alternative to ground 1 above, the Second Respondent made such unreasonable use of evidence and concession by the Applicant that he had prepaid almost $1700 in fees for a Diploma of business course in October 2015, as to amount to a failure to consider the Applicant's claim relating to the financial constraints being endured by his family in paying the whole of his course fees.

   3. The Second Respondent made jurisdictional error by confusing at [38] the evidence of the Applicant as to why he did not commenced study after his visa was cancelled with a hypothetical "genuine" student.

   4. The Second Respondent made jurisdictional error by failing to take into account the unreasonably long delay between the application to the Second Respondent in February 2017 and the decision by the Second Respondent on 27 March 2019.

   5. The Second Respondent made jurisdictional error in the conduct of the hearing, by failing to notify the Applicant adequately of the issues that it considered might be important.

   6. The Second Respondent made jurisdictional error by taking into account irrelevant considerations.

2. Mr Petrushnko of counsel on behalf of the applicant confirmed that in substance it was grounds 3, 4 and 6 that were sought to be pressed, together with his written submissions which identified what might be said to be a new ground. The Court was prepared to let Mr Petrushnko address the new ground, albeit that it should have been the subject of an amended application.

Ground 3

1. In relation to ground 3, Mr Petrushnko submitted that the issue of whether the applicant was a genuine student was a separate and distinct issue from that that the Tribunal was required to consider as to whether the visa should be cancelled. In these circumstances, Mr Petrushnko submitted that the Tribunal had made a jurisdictional error by confusing the evidence given by the applicant with the hypothetical genuine student.

2. The Court does not accept that there was any such confusion. It was logical and relevant for the Tribunal to refer to the importance of the applicant studying in Australia, given that he had arrived on a Student visa. The Tribunal did not refer to an irrelevant consideration in that regard by taking into account that the applicant must be a genuine student. No jurisdictional error arises by reason of anything in paragraph 38 of the Tribunal’s reasons.

Ground 4

1. In relation to ground 4, Mr Petrushnko submitted that the delay between the application for review by the Tribunal and the Tribunal’s determination was a matter that the Tribunal should have separately taken into account in considering whether or not the visa should be cancelled.

2. It is apparent that the Tribunal did take into account the period of time that elapsed and, in particular, the lack of application by the applicant to study during that period. That was a relevant and logical matter for the Tribunal to take into account. To the extent that ground 4 is asserting that the Tribunal should have taken into account the delay between the filing of the application for review and a determination as a factor weighing in favour of the exercise of a discretion not to cancel the visa, that is in substance inviting merits review. No jurisdictional error arises by reason of ground 4.

Ground 6

1. In relation to ground 6, Mr Petrushnko accepted that these were inter-related in terms of the relevant considerations with grounds 3 and 4 that he had advanced. In relation to paragraph (a) of the particulars to ground 6, it was by no means an irrelevant consideration that the applicant had failed to study for a period from January 2017 until March 2019. It was a logical relevant matter for the Tribunal to take into account. Particular (a) has not identified a jurisdictional error.

2. In relation to paragraph (b), this appears to be an expansion, together with paragraph (c), about the same proposition as in paragraph (a) and in substance is inviting the Court to engage in merits review. Particulars (b) and (c) do not identify any jurisdictional error.

3. In relation to particular (d), the Court referred to the introductory paragraph 6. There was no irrelevant consideration identified in accordance with the introductory paragraph. It was submitted that the Tribunal should have taken into account that there was no mandatory condition on the bridging visa requiring the applicant to be enrolled or to continue a course of study. That is nothing more than an attempt to engage in merits review. There was not a failure to take into account a relevant consideration capable of giving rise to a jurisdictional error.

4. In relation to paragraph (e) in respect of the first sentence, it is apparent the Tribunal did take into account the applicant’s views in respect of the time that had elapsed and, in particular, expressed its disquiet in respect of the applicant’s approach that he did not want to commit to study given the uncertainty about the fate of his student visa. That topic was clearly a relevant topic to take into account and there is no substance in the assertion in the first sentence that there was some failure to take into account the applicant’s evidence.

5. In relation to the second sentence in paragraph (e), this seeks to address whether the applicant knew he could have continued and completed his studies. This reflects disagreement with the merits. The Tribunal has referred to the applicant’s statement that identified his recent enrolment shortly before the hearing before the Tribunal and the applicant’s assertions as to intention to study at the beginning of 2017. Paragraph (e) in the last sentence is nothing more than an invitation to this Court to engage in merits review. No jurisdictional error in ground 6 is made out.

New ground

1. Mr Petrushnko, in his submissions, advanced that the Tribunal did not put to the applicant the issues of concern and that this amounted to a denial of procedural fairness and a failure to give the applicant a real and meaningful hearing having both breached the statutory provisions, as well as a denial of procedural fairness. However, the general assertion required specificity. Mr Petrushnko identified in that regard a contention that it was the visa condition referred to in paragraph 47 of the Tribunal’s reasons and the breach of that visa condition and the reference to the breach of limitations on work that were said to be the issues that had not been raised.

2. A transcript of the hearing has been tendered and it is apparent that the applicant had a real and meaningful hearing. It is also clear on the face of the Tribunal’s reasons that the Tribunal identified raising the condition 8516, as well as the potential adverse consequences and the same, in relation to the breach of limitations on work hours of the applicant’s student visa. There was no denial of procedural fairness in the circumstances and no breach of the statutory powers. Accordingly, no jurisdictional error arises by reason of the new issue in the counsel’s submissions.

Grounds 1, 2 and 5

1. Insofar as grounds 1, 2 and 5 seek to advance alleged errors, the reference in paragraph 19 to a central issue does not identify any deflection by the Tribunal from its proper statutory task in determining whether or not the cancellation of the visa should be affirmed. It is apparent from a fair reading of the Tribunal’s reasons as a whole that the Tribunal well understood that it was exercising a discretion to determine whether or not to cancel the visa. No jurisdictional error is made out by ground 1. Ground 1 is otherwise an invitation to engage in merits review and this Court has no power to review the merits.

2. The Court adds that the proposition that it was irrational or unreasonable to refer to the issue identified in paragraph 19 concerning the earthquake has no foundation. It was logical and rational for the Tribunal to summarise the applicant’s claims and evidence.

3. In relation to ground 2, it is apparent that the Tribunal did take into account the financial circumstances and pressure on the applicant and his family as a result of the earthquake that had occurred. The proposition that there was no reasonable use of evidence is an unusual formulation of alleged error. Nothing in the Tribunal’s reasons identify the making of findings not open to the Tribunal on the evidence before the Tribunal. The adverse findings were logical, rational and reasonable. No jurisdictional error arises by reason of ground 2.

4. In relation to ground 5, this ground reflects the new ground that was identified in the written submissions. For the reasons already given, there has been identified no issue by the Tribunal that was material that the Tribunal did not raise with the applicant. No jurisdictional error is made out by ground 5.

5. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 November 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 5 December 2019