Asghar v Minister for Immigration

[2020] FCCA 716

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASGHAR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 716

Catchwords:
MIGRATION – Student (Temporary)(Class TU) (subclass 500) visa – delegate cancelled visa – whether ground for cancellation made out – whether visa should be cancelled – no arguable case – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 476
Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

Applicant: IRTAZA ASGHAR

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 384 of 2019

Judgment of: Judge McNab

Hearing date: 25 March 2020

Date of Last Submission: 25 March 2020

Delivered at: Melbourne

Delivered on: 25 March 2020

REPRESENTATION

Applicant in person

Counsel for the Respondent: Ms Ellis

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), the Application filed 26 September 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3737.00.

3. The time for filing any Notice of Appeal under Rule 36.03 of the Federal Court Rules 2011 (Cth) be extended to the date 28 days after publication of the settled written reasons for judgment, which were delivered orally.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 384 of 2019

IRTAZA ASGHAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised from Transcript)

1. By an application filed on 26 September 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”), made on 23 August 2019. The Tribunal’s decision affirmed a decision of a delegate of the first respondent (the “Minister”), to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”).

2. By orders made by consent on 13 November 2019, the application was listed for a Show Cause Hearing on 24 March 2020 pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). Due to the direction made by the Perth Registry of the Federal Circuit Court in relation to the COVID-19 crisis that no hearings should be conducted in person, the hearing was conducted by telephone. Mr Asghar, the applicant, appeared by telephone. Ms Ellis appeared for the Minister. The applicant had been provided with a copy of the Court Book. He confirmed to the Court he had received this and the other relevant materials by email. The Court was satisfied that the applicant was able to meaningfully participate in the proceedings.

3. The background of the matter is accurately set out in the submissions filed on 12 March 2020 on behalf of the first respondent at [3]—[13]. The background provides as follows.

4. The applicant is a citizen of Pakistan. He was granted the visa, the subject of these proceedings, on 10 April 2017 (CB 1). The applicant intended to study a Diploma of Science, and a Bachelor of Computer science. He arrived in Australia on 9 June 2017 (CB 31).

5. Around November 2017, the applicant’s enrolments in both courses were cancelled owing to non-reenrolment and non-commencement of his studies, respectively (CB 7).

6. On 13 December 2017, the applicant enrolled in a suite of courses at the Australian Technical College of Western Australia (“ATCWA”), which comprised of a Certificate III in Commercial Cookery; a Certificate IV in Commercial Cookery; a Diploma of Hospitality Management and; an Advanced Diploma of Leadership and Management.

7. The applicant enrolled in a further course of study, being a Bachelor of Business (course dates from 25 January 2021 to 10 January 2023). This enrolment was approved by his education provider, subject to a condition that he completed the Advanced Diploma of Leadership and Management (CB 2).

8. On 10 December 2017, the ATCWA cancelled the applicant’s enrolment in the Certificate III in Commercial Cookery due to unsatisfactory course progress. His enrolments in the other packaged suite of courses were also cancelled on the same date (CB 2).

9. On 7 May 2019, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of the visa (CB 1-6). In the NOICC, he was advised that he appeared to be a non-genuine student and that his primary intention indicated that he was unlikely to commence any courses of study. This assertion was made on the basis that: the applicant had not completed any registered course since he initially arrived in Australia; he had changed his study plan less than six months after his arrival and; the Provider Registration and International Student Management System (PRISMS) indicated his last day of study was 8 March 2018. The gap of no study for one year and two months was noted as significant by PRISMS.

10. The ATCWA also advised the applicant that he had not progressed well in his studies, despite being afforded many chances and after he had being sent three warning letters regarding his academic performance. The applicant also showed no interest in any intervention plan offered by the college.

11. On 14 May 2018, the applicant responded to the NOICC with a statement and a medical document for his father (CB 15-17). In the statement, he claimed that in March 2018 that his father had been admitted to hospital with pneumonia and was not discharged until May 2018. The applicant said that the feeling of distress was so great that he did not leave the house or study until November 2018.

12. On 6 June 2019, a delegate of the Minister cancelled the applicant’s visa under s.116(1)(fa)(i) of the Act (CB 29-37). The delegate found that the grounds for cancelling the visa outweighed the grounds for not cancelling.

13. On 14 June 2019, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 38-39). He was assisted by a migration agent.

14. On 12 August 2019, the applicant appeared before the Tribunal with the assistance of an Urdu interpreter: (CB 88-90). He provided supporting documents at the hearing including: confirmations of enrolments in a General English course; a Certificate III in Commercial Cookery; a Certificate IV in Commercial Cookery; and a Diploma of Hospitality Management (CB 40-42). All of the enrolments provided were with Global College Australia.

15. On 23 August 2019, the Tribunal affirmed the delegate’s decision (CB 94-103).

Grounds of review

1. The applicant filed an application on 26 September seeking review on the following grounds (without alteration):

   1. I came to Australia on a student visa. 

   2. I was studying commercial cookery in Australian Technical          College Western.

   3. I was going to college, just missed my college for four months.

   4. I was not informed by the college about my COE cancellation.

   5. I came to know that my COE was cancelled when I received email from the Department of Home Affair.

   6. I have submitted an email to Department of Home Affair explaining my condition.

   7. I have tried to explain by situation to the AAT member as well.

   8. I came to Australia when I was 18 years of age.

   9. I would like to finish my studies and go back to Pakistan for my bright future.

   10. If I go back without any qualification, my life will be in big problem.

First respondent’s submissions

1. The first respondent submits that the applicant has not identified any jurisdictional error in the Tribunal’s decision and that no error is otherwise apparent. The Minister submits the application for judicial review does not raise an arguable case for the relief claimed and must be dismissed under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The first respondent says that the applicant’s grounds largely outline his immigration and study history and do not allege any jurisdictional error in the Tribunal’s decision (see WZATH v Minister for Immigration and Border Protection [2014] FCA 969). In response to grounds 4 and 5 of the applicant’s grounds, at [29] of the submissions, the first respondent states that it was the applicant’s responsibility to maintain his enrolment in the college to ensure compliance with visa requirements.

3. Further, the first respondent submits that the Tribunal considered the applicant’s claims that he was not aware of the cancellation of the ATCWA enrolment until April 2019 and found it unlikely that as a student visa holder he would be unaware that a period of more than

   
   

   12 months without study would not affect his enrolment. With reference to ground 7, at [30] of the Tribunal’s decision, the first respondent submits that the Tribunal complied with its procedural fairness obligations in Division 6, Part 5 of the Act and recorded its compliance with those obligations.

4. Paragraph  [30] provided:

   …

   The Tribunal invited the applicant to appear before it to give evidence and present arguments at a hearing pursuant to s 360 of the Act, which he did. It put information to him under s 359AA of the Act; the decision record clearly states that the Tribunal followed the procedure set out by the section, and the applicant “did not seek an adjournment at any time”. In any event, it was not “information” that the Tribunal was required to put to the applicant under s 359AA of the Act, but rather was information provided by the applicant for the purpose of the review as he gave it to the Tribunal in the delegate’s decision record submitted with his review application. It therefore fell within the exception in s 359A(4)(h) of the Act. The information was also put to the applicant in the NOICC, which was issued to him over three months before the Tribunal’s decision.

5. The applicant has appeared today and reiterated the reason for a period of non-study was because of the illness of his father, that he had to restart and enrol in another course and that he had not been informed about the COE cancellation. He made comment that he told the Tribunal everything, including that he was in depression and made reference to the illness of his father.

6. In response to those matters raised, the Minister submitted this morning that the Tribunal had accepted the applicant’s father was unwell and was sympathetic to the fact that it was a matter that was outside the applicant’s control, but it did not accept that the applicant could not study for a six-month period, and additionally, that there was nothing said today which would undermine the correctness of that decision. 

7. The Minister submitted that insofar that the applicant seeks to impugn the findings about the new Certificate of Enrolment (“COE”), it was noted that the information before the Tribunal was that the new COE had been obtained by the applicant four days before the Tribunal hearing, which it was said tended to suggest that it was obtained for visa reasons rather than as a genuine student (CB 52). 

Consideration

1. The applicant has raised no grounds to establish jurisdictional error, and on reading the decision and the subsequent background documents that were before the Tribunal, no jurisdictional error is apparent. At [28] The Tribunal considered the applicant’s claims, including that he had recommenced classes in 2019 and had continued studying until receipt of the NOICC in May 2019, however the Tribunal did not accept that claim. The Tribunal’s finding that the applicant was not a genuine student was certainly open to it. 

2. The grounds of review are, in fact, a narrative of the applicant’s claims.  Whilst not raised as a ground, at [32]—[36], I note the Tribunal also considered and applied the department’s Procedures Advice Manual (“PAM3”) in relation to general visa cancellation powers. It is also apparent from the Tribunal’s decision and the background documents that there has been no failure to accord the applicant procedural fairness. 

3. The decision was open to the Tribunal and for these reasons, the Court is not satisfied that the application has raised an arguable case for the relief claimed. In those circumstances, the Court dismisses the application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  30 March 2020