Aslan v Minister for Immigration
[2015] FCCA 1116
•1 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASLAN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1116 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – applicant not a genuine student – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.116 |
| Mazumdar v Minister for Immigration [2012] FMCA 1170 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration v Li [2013] HCA 18 NABE v Minister v Immigration (No.2) (2004) 219 ALR 27 Yu v Minister for Immigration (2009) 236 FLR 251 |
| Applicant: | AHMET SAIT ASLAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1939 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2015 |
REPRESENTATION
The Applicant appeared in person by telephone
| Solicitors for the Respondents: | Mr M Glavac of Clayton Utz |
ORDERS
The application filed on 11 July 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1939 of 2014
| AHMET SAIT ASLAN |
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 15 June 2014. The Tribunal affirmed a decision of the delegate of the Minister to cancel the applicant, Mr Aslan’s, student visa.
Background facts relating to this matter are set out in written submissions filed by the Minister on 24 April 2015.
Mr Aslan is a citizen of Turkey who arrived in Australia in February 2012 on a student visa.
As explained in Mr Aslan's letter to the Tribunal dated 14 January 2015[1]:
a)on 15 November 2013 the delegate sent Mr Aslan a Notice of Intention to Consider Cancellation (NOICC) of his student visa[2]. The NOICC was addressed to Mr Aslan at “39/15 Livingstone Road, PETERSHAM NSW 2049 AUSTRALIA” (emphasis added). At the time, Mr Aslan’s address was actually “15/39 Livingstone Road, PETERSHAM NSW 2049 AUSTRALIA” (emphasis added); and
b)Mr Aslan did not respond to the NOICC, and on 5 December 2013 the delegate cancelled Mr Aslan’s student visa under s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act), on the basis that Mr Aslan did not comply with a condition of his student visa. Mr Aslan only received the Notification of Decision on 9 January 2014.
[1] Court Book (CB) 33-34
[2] CB 4-9
Tribunal's decision
On 14 January 2014 Mr Aslan applied to the Tribunal for review[3]. The Tribunal was unable to make a decision favourable to Mr Aslan on the material before it and invited him to attend a hearing on 27 May 2014[4].
[3] CB 22-32
[4] CB 61-62
At the time the delegate cancelled Mr Aslan’s student visa, condition 8202 of schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) relevantly required that Mr Aslan must be “enrolled in a registered course” (sub-clause (2) of condition 8202). It also required that Mr Aslan must not have been:
a)certified by the relevant education provider as “not achieving satisfactory course progress”[5]; or
b)certified by the relevant education provider as “not achieving satisfactory course attendance”[6].
[5] sub-clause (3)(a) of condition 8202
[6] sub-clause (3)(b) of condition 8202
As the Tribunal noted, the delegate cancelled Mr Aslan’s student visa on the basis that “the Applicant was not enrolled in a registered course”[7].Compliance with sub-clause (2) requires that the visa holder must remain enrolled in a registered course at all times while the visa is in effect[8]. If there has not been substantial compliance with subclause (2), then there cannot have been substantial compliance with Condition 8202, even if there has been full compliance with sub-clause (3). Accordingly, if the decision maker finds that there has not been substantial compliance with sub-clause (2), it is not necessary to consider whether there has been compliance with sub-clause (3)[9].
[7] CB 151, Tribunal Decision Record (DR) [8]
[8] Yu v Minister for Immigration (2009) 236 FLR 251 at [35]; Mazumdar v Minister for Immigration [2012] FMCA 1170 (Mazumdar) at [7]
[9] Mazumdar at [8]
Whether Mr Aslan complied with sub-clause (2) was not at issue before the Tribunal. There was evidence before the Tribunal, which was confirmed by Mr Aslan at the hearing, that on 3 August 2013 Mr Aslan had ceased to be enrolled in a registered course[10]. The sole question before the Tribunal was whether to exercise its discretion to cancel the visa, taking into account all the relevant circumstances[11].
[10] CB 152, DR [9]
[11] Previously, failure to comply with condition 8202(2) was a prescribed circumstance under regulation 2.43(2)(b) of the Regulations which mandated cancellation of a student visa under s.116(3) of the Migration Act. However, as of 13 April 2013, the Migration Amendment Regulation (No.1) 2013 repealed regulation 2.43(2)(b). Now, whether to cancel a student visa in such circumstances is at the discretion of the decision maker
There are no matters specified in the Migration Act or Regulations that are required to be considered when exercising the discretion to cancel a visa under s.116 of the Migration Act. However, the Procedures Advice Manual (PAM3) provides that it is policy that decision makers take into account certain matters when deciding whether to cancel a visa[12]. These matters relevantly include:
a)the purpose of the applicant's travel to and stay in Australia;
b)the reason for the breach of the visa condition;
c)the degree of hardship that may be caused to the applicant and other family members;
d)the circumstances in which the cancellation arose;
e)the applicant's past and present behaviour towards the Department; and
f)any other relevant matters raised by the applicant.
[12] PAM3: Act — CCR — Cancellation at [33.2]
The Tribunal had regard to the matters prescribed in the PAM3, but decided that Mr Aslan’s visa should be cancelled. In short, it found that Mr Aslan’s study history indicated that he had not been a genuine student in Australia[13]. Mr Aslan stated at the hearing that he entered Australia with the goal of completing a Master in Professional Accounting course after completing a pre-requisite English language course. However, the Tribunal noted that there were significant gaps in his history of study and that he had never commenced any study in accounting[14]. It considered evidence provided by Mr Aslan that his studies were adversely affected by injuries he had suffered and by a serious illness suffered by his mother but found that these matters could neither adequately explain his lack of engagement with his studies nor outweigh the grounds for cancellation of the student visa[15].
[13] CB 155, DR [26]
[14] CB 152, DR [14]
[15] CB 155-156, DR [25]-[31]
The present proceedings
These proceedings began with a show cause application filed on 11 July 2014. There are three grounds in that application which are reproduced at [11] of the Minister’s submissions:
1. The tribunal failed to consider my issues with Holmes Institute and the Department of Immigration. I could not study from September 2012 to November 2013 as I was in Turkey until 27 September 2012 and when I returned to Australia, my CoE had been cancelled. When I asked Holmes Institution to provide evidence of my conversations with them during this time, they conveniently archived everything and would not give me emails or file notes to submit to the MRT.
2. The tribunal failed to consider that from January 2014, my visa had been cancelled and I was and am currently on a bridging visa E without work and study rights.
3. The tribunal failed to consider the impact on my relationship with my New Zealand born girlfriend who has been residing in Australia for 9 years.
Mr Aslan continues to rely upon that application. The application is supported by a short affidavit by Mr Aslan which I received.
I also have before me as evidence the court book filed on 8 September 2014.
I gave directions in this matter on 14 August 2014. I provided at that time Mr Aslan the opportunity to file an amended application and additional evidence. He has not taken up that opportunity.
I dispensed with a need for a preliminary hearing and listed the matter for a final hearing today. Yesterday, Mr Aslan sent an email to my associate claiming illness. He requested the adjournment of today’s hearing. Attached to the email was a medical certificate from the Petersham Family Medical Centre. Relevantly, the certificate reads:
This is to certify that Ahmet is suffering from a medical condition and is unfit to perform his normal duties for Thursday, 30 April 2015to friday 1st may 2015. (errors in original)
I did not consider the certificate sufficient to support an adjournment for two reasons. The first is that the certificate does not identify the medical condition suffered by Mr Aslan. The second is that the doctor signing the certificate does not express any opinion on the fitness of Mr Aslan to attend court. My associate responded to the email to inform Mr Aslan that he would need to be available to attend court by telephone. He confirmed his availability and confirmed his telephone contact number.
The Court contacted him by telephone at the commencement of today’s hearing. Mr Aslan told me that he contracted food poisoning last Wednesday. He said, however, that his condition had improved somewhat. He accepted my offer of a telephone hearing.
I invited oral submissions from Mr Aslan. A key concern for him is that the Department’s notification of intention to cancel his visa and the cancellation notification itself was sent to the wrong address. The notices are reproduced at pages 4 and 10 of the court book. The Minister concedes that the notices were incorrectly addressed. The Tribunal was also aware of that fact.
The Tribunal states in its reasons that it drew no adverse inference from the failure of Mr Aslan to respond to the notification of intention to cancel the NOICC.
The Tribunal drew no adverse inference from the failure of Mr Aslan to respond to the initial notice. The Minister submits that the use of an incorrect address for the notices does not invalidate the cancellation decision. I agree.
For the purposes of the Tribunal, the only legal consequence was the impact on the time period for Mr Aslan to seek review by the Tribunal. The Tribunal stands in the shoes of the Minister’s delegate and the purpose of the review was to consider afresh the cancellation decision. That reconsideration cured any defect arising from the incorrect notification of the cancellation decision.
A further key concern of Mr Aslan was his dealings with his initial institution, the Holmes Institute, and injuries to his left hand and right arm. The Tribunal accepted that Mr Aslan had suffered those physical injuries and had returned home to Turkey to obtain the support of his family. The Tribunal, however, did not accept that those factors sufficiently explained the interruptions for the full period of Mr Aslan’s study. The Tribunal did not accept Mr Aslan’s evidence concerning his difficulties with Holmes College.
In other respects I agree with the Minister’s submissions.
Because the power to cancel a visa under s.116(1)(b) of the Migration Act is one which “may” be exercised, cancellation on grounds of failure to comply with condition 8202(2) is at the discretion of the decision maker[16]. As neither the Migration Act nor the Regulations prescribes how this discretion should be exercised, the Tribunal's approach was to consider Mr Aslan’s circumstances against the matters set out in the PAM3. Each of Mr Aslan’s grounds of review alleges jurisdictional error on the basis that the Tribunal failed to take into account a relevant consideration in making its decision.
[16] see Chen v Minister for Immigration [2013] FCA 1137 at [34]
As the PAM3 is not a binding legal instrument but merely an expression of Departmental policy[17], failure to consider a matter stipulated in it cannot ground a claim of jurisdictional error. Rather, it is the general threshold of jurisdictional error that is applicable, namely that the Tribunal's failure to take into account a relevant consideration caused its decision to be “manifestly unreasonable”[18] or that the Tribunal's discretion under the Migration Act was exercised “unreasonably”[19]. None of Mr Aslan’s grounds of review demonstrates jurisdictional error of the type identified in Peko-Wallsend or Li:
a)by Ground 1 Mr Aslan alleges that the Tribunal failed to consider his “issues with Holmes Institute”, which was one of his education providers. This claim is factually misconceived. Mr Aslan gave evidence regarding his troubles with Holmes Institute both at the hearing[20] and in his written statements dated 23 May[21] and 28 May 2014[22]. The Tribunal had regard to this evidence, but did not consider that it was sufficient to explain the amount of time Mr Aslan took to enrol in a new course following his decision to leave Holmes Institute. In any event, Ground 1 is not adequately particularised in that it does not specify what issues regarding Mr Aslan’s interactions with Holmes Institute the Tribunal allegedly failed to consider, apart from a mere assertion that Holmes Institute “conveniently archived everything” and could not provide him with the information he sought;
b)by Ground 2 Mr Aslan alleges that the Tribunal failed to consider that he could not work or study after he was granted a bridging visa 'E' in January 2014. This claim misrepresents the facts. In fact, as Mr Aslan himself notes in his written statement dated 28 May 2014[23], the Department had originally imposed a condition on his bridging visa that he could not work. However, Mr Aslan stated that the Department later “gave me permissions [sic] to study and removed the condition [that I could not study] during January 2014”[24]. As part of the basis for its finding that Mr Aslan had not conducted himself as a genuine student, the Tribunal noted that Mr Aslan had “not studied for 4 months from February 2014 to the present time”[25]. As Mr Aslan was, contrary to the claim advanced by Ground 2, able to study at this time, this is a valid observation; and
c)by Ground 3 Mr Aslan alleges that the Tribunal failed to consider the impact on his girlfriend of the decision to cancel his student visa. This consideration was not put to the Tribunal by Mr Aslan. As such, the Tribunal was not obliged to consider it, and it cannot ground any claim of jurisdictional error[26].
[17] See El Ess v Minister for Immigration (2004) 142 FCR 43 at [45]
[18] see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend) at 41
[19] see Minister for Immigration v Li [2013] HCA 18 (Li) at [68], [74] and [76]
[20] CB 153, DR [22]
[21] CB 72-74
[22] CB 109-111
[23] CB 109-111
[24] CB 110
[25] CB 155, DR [26]
[26] see, for example, NABE v Minister v Immigration (No. 2) (2004) 219 ALR 27 at [48]-[49], [55]-[63]
Lastly, while the NOICC was sent to the wrong address by the delegate, the Tribunal did not draw any adverse inferences against Mr Aslan by reason of his lack of response. The Tribunal's only reference to the NOICC was that Mr Aslan “did not respond to it”[27], which is factually correct. Mr Aslan’s lack of response was not factored in to the exercise of the Tribunal's discretion under s.116(1)(b) of the Migration Act.
[27] CB 151, DR [2]
Mr Aslan has failed to establish that the decision of the Tribunal is affected by jurisdictional error. Accordingly, the Tribunal decision is a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale as it applied at the time the application was filed. Mr Aslan did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,646.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 May 2015
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