ASLAM v Minister for Immigration

[2017] FCCA 2130

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASLAM v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2130

Catchwords:
MIGRATION – Application for a Constitutional writ – cancellation Student visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 362B, 476

Migration Regulations 1994, sch.8

Applicant: SOHAIL ASLAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 491 of 2017

Judgment of: Judge Street

Hearing date: 4 September 2017

Date of Last Submission: 4 September 2017

Delivered at: Sydney

Delivered on: 4 September 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms B Rayment
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 491 of 2017

SOHAIL ASLAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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 23 January 2017 affirming a decision of the delegate to cancel the applicant’s Student Class TU visa.

2. The applicant is a citizen of Pakistan who was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on 31 May 2014 and arrived in Australia on 17 July 2014. The applicant’s student visa was subject to a condition 8202 in Schedule 8 to the Migration Regulations 1994 (“the Regulations”) which required the applicant to be enrolled in a registered course. 

Notice of Intention to Cancel and Delegate’s Decision

1. On 9 May 2016, the applicant was issued a Notice of Intention to Consider Cancellation pursuant to s 107 of the Act dated 9 May 2016 on the basis that the applicant had not been enrolled in a registered course since 21 October 2014. That notice identified the applicant’s enrolment was cancelled by the University of Canberra due to his non-commencement of studies. The delegate noted the applicant did not respond to that notice. 

2. On 28 May 2016, the delegate cancelled the applicant’s student visa under s 116(1) of the Act. The basis for cancellation was that the applicant was not enrolled in a registered course and had breached condition 8202 and that the grounds for cancelling the visa outweighed the grounds for not cancelling.

Review application to Tribunal

1. On 27 May 2016, the applicant applied for review and the application for review attached a copy of the delegate’s decision. By letter dated 15 December 2016, the Tribunal invited the applicant to attend a hearing on 23 January 2017. That invitation was sent to the applicant’s correct address. There was no response to that invitation.

2. On 16 January 2017 and 20 January 2017 two SMS reminders by text were sent to the applicant’s mobile number and no response was received. The applicant failed to attend the hearing on the scheduled day. The Tribunal noted that the invitation to attend the hearing informed the applicant that if he did not attend the schedule hearing and the postponement was not granted, the Tribunal may make a decision without taking any further action to allow the applicant to appear before it. 

3. Consistent with the provisions of s 362B of the Act, the Tribunal made a decision to proceed with a review without taking any further action to allow the applicant to appear before it. There was no obligation on the Tribunal to take additional steps to ensure the applicant was aware of the hearing. This was not a case where there was any engagement or contact between the applicant and the Tribunal prior to the hearing. Further the Tribunal took reasonable steps by sending the SMS to remind the applicant of the hearing date.

4. The Tribunal found the applicant was not enrolled in a registered course and that the applicant had not complied with condition 8202(2) of Schedule 8 to the Regulations. The Tribunal identified that it found that the applicant had not complied with the condition of the visa and that the Tribunal was bound to consider whether or not to exercise its discretion to cancel the visa. The Tribunal noted the background in relation to the applicant’s non-commencement of studies at the University of Canberra and found that the applicant’s non-compliance with the criteria for the student visa has been significant. The Tribunal concluded that the visa should be cancelled and affirmed the decision under review.

Application to this Court

1. The application for review in this Court was filed on 20 February 2017. The grounds in the application are as follows:

   1.The Tribunal denied the Applicant appeal that he has complied significantly the student visa condition 8202 and hence misconstrued the power used by the department of immigration and Border Protection 'DIBP'.

   Particulars

   1.1 The Tribunal failed to consider the Applicant has complied the student visa condition 8202 substantially.

   1.2The Tribunal misconstrued the power used by the DIBP sl16(l)(b) of the migration Act

   2.The Tribunal committed jurisdictional error when took into account irrelevant considerations / constructively failed to exercise jurisdiction and /or misconstrued the criteria or applied wrong test regarding compliance of the condition 8202.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. 

3. The Court explained to the applicant that if satisfied the Tribunal’s decision was unlawful or unfair the decision would be set aside and sent back for a further hearing. The Court explained to the applicant that if not satisfied the Tribunal’s decision was unlawful or unfair the application would dismissed with costs.

4. The Court explained to the applicant it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

5. The applicant confirmed that he had received the submissions forwarded to the applicant under a letter dated 28 August 2017 by the solicitor for the first respondent. That letter confirmed that the matter was listed for hearing on today’s date. An order to that effect had been made by the Court in May 2017 but the year, by accident, had been omitted. On 18 August 2017, a further order inserting the year was made and forwarded to the applicant. It is apparent that the applicant was aware of the orders made for the hearing of the matter today.

Adjournment application raised from the bar table

1. At the commencement of the applicant’s submissions, the applicant asserted that the problem was he became sick and that he did not have an opportunity to appear. In response to the question from the Court:  “Where is the evidence to that effect?” the applicant then asserted that he was not prepared for the hearing, that he did not realise this was a hearing date and that he wanted to obtain a lawyer to bring to the hearing and sought an adjournment. The adjournment was opposed by the first respondent. Nothing said by the applicant from the bar table identified any utility in the granting of an adjournment. 

2. These proceedings were commenced on 20 February 2017 and the orders made by the Court were clear in relation to the listing of the matter for hearing and giving the applicant a proper opportunity to put on evidence. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. There is no evidence before the Court to support the applicant’s allegation that he was sick at the time he was invited to attend the hearing before the Tribunal. Further, no material to that effect was provided to the Tribunal. 

3. On the face of the material before the Court it was a reasonable exercise of the Tribunal’s powers under s 362B of the Act to proceed to determine the application for review without any further adjournment and the decision of the Tribunal in that regard cannot be said to lack an evident and intelligible justification.

Ground 1

1. In relation to ground 1, the proposition that the applicant significantly complied with the student visa condition 8202 of Schedule 8 to the Regulations is utterly unsupported by any evidentiary basis. The adverse finding by the Tribunal that the applicant failed to comply with the condition was open on the material before the Tribunal. There is nothing to suggest that the Tribunal misconstrued the provisions under s 116 of the Act and the exercise of the discretion to cancel cannot be said to be unreasonable. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, no irrelevant consideration was identified that the Tribunal took into account. There is no basis to support the proposition that the Tribunal constructively failed to exercise its jurisdiction or misconstrued the criteria or applied the wrong test without any compliance with condition 8202 of Schedule 8 to the Regulations. This is a case where it was open to the Tribunal to find that the applicant’s non-compliance with the condition was significant. No jurisdictional error is made out by ground 2.

Applicant’s submissions from the bar table

1. In relation to the applicant’s submissions from the bar table that he was sick, that does not identify any relevant legal error by the Tribunal in the determination of the application for review. Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal in the conduct of its review. 

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review.

Conclusion

1. As the application fails to disclose any jurisdictional error, the application is dismissed. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017