Arora v Minister for Immigration
[2014] FCCA 2091
•9 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARORA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2091 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – applicant found to have breached a condition of his visa limiting his working hours – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Minister for Immigration v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259 Zubair v Minister for Immigration [2004] FCAFC 248; (2004) 139 FCR 344 at [32] |
| Applicant: | RAVI ARORA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | CAG 16 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 September 2014 |
| Delivered at: | Canberra |
| Delivered on: | 9 September 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Cumming Clayton Utz |
ORDERS
The title of the second respondent is to be amended to “Minister for Immigration and Border Protection”.
The application filed on 27 March 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 16 of 2014
| RAVI ARORA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 27 February 2014. The tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s (Mr Arora) Class TU visa.
The following statement of background of facts relating to the cancellation decision and the decision of the Tribunal is derived from the Minister’s outline of legal submissions.
On 12 March 2011, Mr Arora applied for a student visa[1]. On 1 April 2011, Mr Arora was granted a student visa[2] subject to visa condition 8105 which provided at the time of the visa grant[3]:
… the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder's course of study or training is in session.
[1] Court Book (CB) 1-7
[2] CB 60-64
[3] CB 62
On 27 April 2012, the Department sent to Mr Arora a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Migration Act 1958 (Cth) (Migration Act) stating that it had received logs of work times from Yellow Cabs which indicated that he may have worked in excess of 20 hours per week in the period August to October 2011 (being weekly hours ranging from 43.09 - 59.30 hours)[4]. The NOICC was returned to sender on 8 May 2012[5].
[4] CB 73-76
[5] CB 77
On 1 June 2012, a delegate of the Minister decided to cancel Mr Arora’s student visa on the grounds that she was satisfied Mr Arora had not complied with condition 8105[6]. The cancellation notification was returned to sender on 7 June 2012[7].
[6] CB 78-89
[7] CB 90
On 13 June 2012, Mr Arora attended the Minister’s Department having been told by his school that his visa had been cancelled. Mr Arora said he had moved about six months before and had not advised his school. The Department told him that he had been found to have worked as a taxi driver in excess of 20 hours per week. Mr Arora said he had stopped working as a taxi driver in December 2011.
Decision of the Tribunal
On 17 June 2012, Mr Arora applied for review of the delegate's cancellation decision by the Tribunal through his representatives Sharma Lawyers[8].
[8] CB 95-110
On 11 June 2013, the Tribunal purported to affirm the decision under review (purported Tribunal decision)[9]. The purported Tribunal decision was affected by jurisdictional error, being that the Tribunal failed to consider that it had a discretion not to cancel Mr Arora’s student visa.[10] On 22 October 2013, this Court made orders by consent quashing the purported Tribunal decision and remitting it to the Tribunal for reconsideration[11].
[9] CB 111-120
[10] Regulation 2.43(2)(b)(i) provided, as at the primary cancellation decision of 1 June 2012 (and as at the date of the visa grant), that a prescribed circumstance in which the Minister must cancel a visa pursuant to s 116(3) of the Act included, in the case of a Student (Temporary) (Class TU) visa, where the Minister is satisfied that the visa holder has not complied with condition 8105. By the date of the purported Tribunal decision, this provision had been repealed by item 2 of Schedule 3 to the Migration Legislation Amendment Regulation 2013 (No. 1) (Cth)
[11] CB 123-125
On 3 December 2013, the Tribunal invited Mr Arora to attend a hearing scheduled for 8 January 2014 by videolink from Canberra and present evidence or submissions[12] in accordance with s.360 of the Migration Act.
[12] CB 141-145
On 8 January 2014, the Tribunal held a hearing at which Mr Arora appeared and gave evidence[13]. Mr Arora handed up documents including an academic transcript for a 2009 - 2011 commercial cookery course, a 2009 certificate for a 10 week intensive English course and a 2008 invitation to study at Griffith University[14]. Mr Arora gave evidence that he disputed that he had breached condition 8105[15].
[13] CB 155-159
[14] CB 162-178
[15] CB 388[15]
On 9 January 2014, the Tribunal wrote to Yellow Cabs and sought information in writing as to whether the driver logs accurately reflected the hours worked by Mr Arora[16]. On 4 February 2014, Yellow Cabs confirmed that the driver logs were true and correct[17].
[16] CB 179-181
[17] CB 188
On 5 February 2014, the Tribunal wrote to Mr Arora in accordance with s.359A of the Migration Act and put to him that the Yellow Cabs driver logs indicated that he had worked more than 40 hours per fortnight in the specified fortnightly periods, that Yellow Cabs had confirmed the records were true and correct and that taxi drivers use a unique pin to enter the records, and that Mr Arora was unable to recall what course he had been studying in the relevant period[18].
[18] CB 192-194
On 19 February 2014, Mr Arora responded that the driver logs were inaccurate[19]. Mr Arora stated that he never drove on Wednesday, Thursday or Sunday because he was too busy with assignments which took three to four days to prepare, in addition to washing, cleaning, tidying and buying groceries. Mr Arora attached a number of assignments he claimed to have completed over the same period[20], in the names "Satinderpal Singh Sidhu"[21], "Amandeep Singh"[22], "Amrinder Singh Billing"[23] and "Gurpreet Singh"[24].
[19] CB 195-199
[20] CB 200-380
[21] CB 200, 207, 216, 223, 232, 262, 277, 278, 302, 308, 342
[22] CB 244, 245, 246, 247, 248, 249, 250, 251, 293, 294, 295, 296, 297, 314, 315, 315, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362
[23] CB 298, 299, 300, 301
[24] CB 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380
On 27 February 2014, the Tribunal affirmed the decision to cancel Mr Arora’s student visa[25] on the basis that the Tribunal was satisfied that Mr Arora had worked in excess of 40 hours per fortnight and that accordingly Mr Arora had not complied with condition 8105[26] and that the Tribunal considered, having regard to the circumstances as a whole, that Mr Arora’s student visa should be cancelled[27].
[25] CB 386-395
[26] CB 391[27]
[27] CB 393[35]
The present application
These proceedings began with a show cause application filed on 27 March 2014. Mr Arora continues to rely upon that application. There are three grounds in it:
1. Consider my studies, certificates, career and my family expectation from me.
2. I have moved my address and I did not receive the letter from the MRT for more information.
3. The Tribunal is wrong in accepting the information provided by the Taxi company.
The application is supported by a short affidavit by Mr Arora which I received, subject to relevance.
I have before me as evidence in addition the court book filed on 2 May 2014.
Only the Minister prepared written submissions in accordance with procedural orders made earlier by Judge Neville.
Mr Arora made oral submissions today in support of his application. His principal concern regards the Tribunal’s reliance upon records from the taxicab company concerning the hours he is shown to have been driving a cab. Mr Arora is adamant that the records are unreliable and should not have been relied upon by the Tribunal. This bears upon the third ground of review in the application. That ground is dealt with by the Minister at [19] of his submissions.
The Minister submits that this ground of review invites impermissible merits review. The Tribunal considered at length Mr Arora’s explanation as to why he could not have worked the hours indicated on the driver logs[28], including that he was too busy doing the assignments he had provided which appeared to be in the names of other students[29], but ultimately preferred the taxi company's records. The Minister submits that the Tribunal's finding that the Yellow Cabs driver logs were accurate were open to it on the evidence[30].
[28] CB 389-391[18]-[24]
[29] CB 391[24]
[30] see Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 per Crennan and Bell JJ at [135]; SZOOR v Minister for Immigration [2012] FCAFC 58; (2012) 202 FCR 1 at [15], [85] and [113]
Mr Arora was unable to produce to the Tribunal any objective evidence to seriously place in contest the taxi records before the Tribunal. His attempt to rely upon assignments he had allegedly done at times when he was shown to be driving a taxicab was not fruitful because, as the Tribunal found, the work he relied upon was not exclusively his. I agree with the Minister that it was open to the Tribunal to rely upon the taxicab records of the logon and logoff times recorded on the taxicab system.
Mr Arora points out that the logon and logoff records show that there were frequent attempts to logon to the taxi system which were unsuccessful. The records do not explain why those attempts were unsuccessful but, where the attempts were unsuccessful, no hours were recorded. There is no plausible explanation for Mr Arora’s proposition that someone else may have been using his logon information.
Ground 3 in the application fails.
The second ground refers to Mr Arora’s assertion that he did not receive an invitation to comment sent to him by the Tribunal pursuant to s.359A of the Migration Act. I reject that contention. The court book shows from page 196 that Mr Arora in fact replied to that invitation to comment by letter dated 18 February 2014 and refers in his response to the invitation to comment. That establishes to my satisfaction that he had received it. This is dealt with further in the Minister’s written submissions at [20]-[22] with which I agree.
Mr Arora claims that he changed his address and did not receive the Tribunal's invitation to comment pursuant to s.359A of the Migration Act. The Minister submits that this ground of review fails on the facts. Mr Arora responded to the s.359A invitation by email enclosing his response on 19 February 2014[31] and his response was considered by the Tribunal[32].
[31] CB 195-380
[32] CB 389-391[20]-[24]
The Minister submits that the Tribunal complied with s.359A(2)(a) of the Migration Act by giving the information and invitation to Mr Arora by one of the methods specified in s.379A. Section 379A(5) provides that one of the methods by which the Tribunal may give a document to the recipient (where a provision states that the Tribunal must do so by one of the methods in s.379A) is by emailing the document to the last email address provided to the Tribunal by the recipient in connection with the review. On 5 February 2014, the Tribunal emailed the letter to [email protected], the email address provided in the application for review. As the Tribunal complied with ss.359A and 379A, Mr Arora is taken to have received the letter[33]. As I have already found he did in fact receive it at his email address and responded from the same address.
[33] Section 379G(2)
The Minister notes that the Department's NOICC was returned to sender on 8 May 2012 and that the cancellation notification was returned to sender on 7 June 2012 as Mr Arora had failed to tell the Department his new address. However, that fact is not relevant to the review before the Tribunal[34].
[34] Zubair v Minister for Immigration [2004] FCAFC 248; (2004) 139 FCR 344 at [32]
The first ground in the application invites the Court to engage in merits review in relation to the Tribunal’s exercise of discretion. That course is not open to the Court for the reasons advanced by the Minister in paragraph 18 of his submissions[35].
[35] Minister for Immigration v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259; Minister for Immigration v SZJSS [2010] HCA 48; (2010) 243 CLR 164
As I explained to Mr Arora, the Tribunal’s decision, if it is a valid one, can only be changed by the Minister. If Mr Arora remains aggrieved by the outcome before the Tribunal, it is open to him to invite the Minister’s intervention. That is, of course, beyond the parameters of these proceedings.
The Minister’s submissions also draw attention to the version of condition 8105 used by the Tribunal and, indeed, by the first Tribunal whose decision was set aside by consent. The Minister’s submissions at [23]-[27] deal with that issue:
The Applicant has not raised any issue as to the version of condition 8105 against which his compliance or otherwise is to be assessed. For completeness, the Minister notes that as at 1 April 2011, the date the visa was granted, condition 8105 provided:
(1) Subject to subclause (2), the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session. (emphasis added) (CB 62)
Item 4 of Schedule 5 to the Migration Legislation Amendment Regulation 2012 (No 1) (Cth) replaced "20 hours a week during any week" with "40 hours a fortnight during any fortnight" with effect from 26 March 2012. Regulation 7 of the Migration Legislation Amendment Regulation 2012 (No 1) (Cth) provides:
(1) Schedule 5 amends the Migration Regulations 1994.
(2) The amendments made by Schedule 5 apply in relation to a visa that is in effect on 26 March 2012.
…
(4) The amendments made by Schedule 5 also apply in relation to a visa which, on 26 March 2012, is subject to condition 8104 or 8105 in Schedule 8 to the Migration Regulations 1994.
Ordinarily, a visa holder has a vested right to have his compliance or otherwise assessed against the condition as it stood at the time the visa was granted: Maharjan v Minister for Immigration and Anor [2011] FMCA 200 at [42]; Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240; (1999) 94 FCR 91. However, the Minister submits that Parliament expressly provided that the amendments would apply to a visa subject to condition 8105 as at 26 March 2012 (as was the applicant’s). Further, the Minister submits that the amendment to the visa condition was to the benefit of visa holders as hours of work in excess of 20 hours in a week might not amount to more than 40 hours in a fortnight (whereas, it would not be possible to work more than 40 hours in a fortnight without having worked more than 20 hours in at least one week).
Accordingly, the Minister submits that the Tribunal applied the correct version of condition 8105.
The Minister submits that none of the Applicant's grounds of review have been made out and that there is no jurisdictional error in the Tribunal's decision.
The issue was properly raised by the Minister and, having been raised, I have considered whether the issue could point to any jurisdictional error by the Tribunal. In my view, there is none.
First, the application before the Court does not raise the issue. Secondly, it was not raised as an issue at the time the first Tribunal decision was set aside by consent. Thirdly, there is nothing before me to indicate that, to the extent that the condition in the form employed by the Tribunal had any retrospective operation, that was inconsistent with the Legislative Instruments Act 2003 (Cth). In that regard, I note the Minister’s submission that the amendment provided greater flexibility to visa holders in the number of hours they could work over a specific period. To that extent, the amendment provided a benefit rather than imposing a detriment.
I conclude that the decision of the Tribunal is free from jurisdictional error. Accordingly, I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in accordance with the Court scale. Mr Arora claimed impecuniosity. As has been repeated stated, that is not a reason for the court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 10 September 2014
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