Aziz v Minister for Immigration
[2021] FCCA 999
•14 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZIZ v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 999 |
| Catchwords: MIGRATION – Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – failure to comply with section 359AA of the Migration Act 1958 (Cth) – failure to properly consider the applicant’s mental health – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 357A, 357AA, 359A, 359AA Migration Regulations 1994 (Cth) sch.2 cl. 573.611, sch. 8 cl. 8202 |
| Cases cited: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Kaur v Minister for Immigration & Anor [2012] FMCA 438 Minister for Home Affairs v Omar [2019] FCAFC 18 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 |
| Applicant: | MALIK JAMAL AZIZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 589 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 5 October 2020 |
| Date of Last Submission: | 5 October 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 14 May 2021 |
REPRESENTATION
| Counsel for the applicant: | Mr Kornhauser |
| Solicitors for the applicant: | JT Lawyers |
| Advocate for the respondents: | Ms Stone |
| Solicitors for the respondents: | Mills Oakley |
ORDERS
The applicant’s application filed on 24 March 2017 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed, if not agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 589 of 2017
| MALIK JAMAL AZIZ |
Applicant
and
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 24 February 2017 where it affirmed a decision made by a delegate of the first respondent (“the Delegate”) to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (“the visa”) on 8 June 2016.
The applicant is a Pakistani citizen who was granted the visa on 7 June 2014. He arrived in Australia on 19 June 2014 and completed an English language course later that year.[1] At the time he applied for the visa, he was enrolled to commence a Bachelor of Business in November 2014. However, the applicant’s enrolment in the Bachelor of Business course was later cancelled on 24 November 2014 for non-commencement of studies.[2]
[1] Court book pages 80 and 131.
[2] Court book page 80.
The applicant applied for a protection visa on 5 March 2015 which was refused.
On 13 April 2016, the Delegate sent the applicant a Notice of Intention to Consider Cancellation of the visa (“NOICC”) which notified the applicant that the first respondent was considering cancelling the visa due to a failure to comply with section 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”).[3]
[3] Court book pages 1 to 6.
Relevantly, section 116(1)(b) of the Act provides that the first respondent may cancel a visa if they are satisfied that “its holder has not complied with a condition of the visa”. Clause 573.611 of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) provides that the visa was subject to certain conditions. Those conditions included clause 8202 of schedule 8 to the Regulations.
The NOICC stated that:
a)the applicant had failed to comply with visa condition 8202(2)(a)[4] which required the applicant to be enrolled in a registered course;
b)the Provider Registration and International Student Management System (“PRISMS”) records indicated that he had not been enrolled in a registered course since 29 November 2015; and
c)the applicant could provide a “response in writing within five (5) working days after you are taken to have received this letter”.[5]
[4] Migration Regulations 1994 (Cth) sch 8 cl 8202.
[5] Court book page 4.
It is common ground that in referring to the 29 November 2015 date, the Department made a typographical error. The relevant date from which the applicant ceased to be enrolled in a registered course was in fact 29 November 2014.[6] This, and the implication of this error for the grounds of review, is discussed further below.
[6] Transcript page 7 at lines 42 to 46 and page 8 at lines 1 to 2.
The applicant’s legal representative responded to the NOICC on 18, 19 and 21 April 2016.[7] Included in the responding material were:
a)written submissions;
b)a report from a psychologist stating that the applicant had commenced treatment for depression, anxiety and stress and had attended four sessions since July 2015; and
c)documents confirming the applicant had enrolled in a Certificate III and IV in Commercial Cookery and a Diploma and Advanced Diploma of Hospitality which would commence on 18 April 2016.
[7] Court book pages 7 to 53.
It is common ground that the applicant breached the conditions of his student visa by not being enrolled in a registered course at the relevant time.[8] However, the applicant says that this breach was due to his ‘poor mental health’.[9]
[8] Transcript page 4 at lines 43 to 47 and page 5 at lines 1 to 4.
[9] Transcript page 4 at line 47.
On 8 June 2016, the Delegate wrote to the applicant advising of the decision to cancel the visa.[10] A copy of the decision record was enclosed with that correspondence.[11]
[10] Court book pages 55 to 67.
[11] Court book pages 61 to 67.
The application to the Tribunal
The applicant applied to the Tribunal for a review of the Delegate’s decision on 10 June 2016 but did not appoint a representative at the time of making his application.[12]
[12] Court book pages 68 to 69.
The PRISMS records indicated that the applicant’s enrolments in the Certificate III and IV in Commercial Cookery and Diploma and Advanced Diploma of Hospitality were cancelled on 14 June 2016.[13]
[13] Court book page 80.
The Tribunal wrote to the applicant on 9 December 2016 inviting him to attend a hearing on 9 February 2017.[14] In that correspondence, the applicant was asked to provide any further material upon which he intended to rely at the hearing by 2 February 2017.
[14] Court book pages 82 to 84.
The applicant attended the hearing with the assistance of an interpreter, but otherwise without a legal representative and called two witnesses to give evidence. A copy of the hearing record and documents submitted at the hearing are included at court book pages 92 to 108.
The Tribunal’s decision
The Tribunal decided to affirm the decision of the Delegate to cancel the applicant’s visa.[15]
[15] Court book pages 109 to 122.
Grounds of review
The applicant’s application raises the following grounds of review:
‘1. The purported decision of the Second Respondent given 27 February 2017 is vitiated by jurisdictional error in that in reaching it the Second Respondent:
(a)Failed to deal with an integer of the applicant’s claim, namely he was severely disadvantaged when he reported his mental health condition having suffered severe anxiety and depression whilst he was studying in Australia, and/or
(b)Constructively failed to exercise its jurisdiction by failing to deal with the claim identified in (a) and/or
(c)Failed to give proper reasons for the decision it ultimately reached; and/or
(d)Failed to accord the applicants procedural fairness.
PARTICULARS
i. The Second Respondent failed to provide the Applicant reasonable time and opportunity to comment on adverse information, which the Second Respondent later relied on in its decision.
ii. The second respondent failed to allow the applicant with an opportunity to prepare response to S359AA materials despite throughout the hearing it was known the applicant suffered mental health. The applicant would be disadvantaged not to be allowed adequate time to clarify his chronology of events and respond to the Department’s internal error with respect to enrolment times.
iii. Prior to a short bathroom break, the applicant made known to the second respondent that he didn’t understand S359AA materials put to him due mental stress and interpreting issues. He was disadvantaged and denied the opportunity to respond to the S359AA materials put to him in writing and be allowed extension of time to respond.
iv. The second respondent failed to provide the applicant with a suitable NAATI accredited level 3 (professional level) in URDU (Pakistan). The interpreter used for the hearing (was a Hazara person with a different Urdu dialect) materially affected the applicant’s claim, especially when S359AA was being put to the applicant. The second respondent relied on poor translation to the detriment of the applicant and made a finding that was unfair.
2. The significant impact the court’s allowing the erroneous decision to stand would have on the applicants.
3. The public interest in the court’s hearing and determining the application.
At the hearing before me, counsel for the applicant confirmed that the applicant was no longer pressing grounds two or three.[16] Counsel also confirmed that the applicant was no longer pressing ground 1(c), and particular (iv) of ground 1(d).[17]
[16] Transcript page 4 at lines 3 and 4.
[17] Applicant’s outline of case filed on 4 October 2020 at paragraph 49; Transcript page 4 at lines 4 to 7.
In addition to the documents contained in the court book, the court had before it a transcript of the Tribunal hearing which is exhibited to the applicant’s affidavit affirmed and filed on 28 September 2020.[18]
[18] Applicant’s affidavit affirmed and filed on 28 September 2020 at annexure MA-1.
It was submitted for the applicant that the grounds of review contained in the application effectively raise the following two issues:
a)a failure by the Tribunal to consider the applicant’s poor mental health and the impact of that on the applicant’s studies.[19] This aspect of the application claims that the Tribunal failed to meaningfully engage with and consider the applicant’s claims, evidence and submissions in relation to the ill mental health he was suffering as a result of the trauma he experienced in Pakistan; and
b)the Tribunal failed to comply with section 359A and section 359AA of the Act.[20] In particular, it was submitted for the applicant that he was not advised by the Tribunal that he could request additional time to comment on or respond to information put to him during the course of the hearing.
[19] Transcript page 3 at lines 36 to 44.
[20] Transcript page 3 at lines 46 and 47 and page 4 at lines 1 to 3.
Failure to properly consider the applicant’s mental health
It was submitted that the Tribunal failed to meaningfully engage with the applicant’s case to the extent that it related to his experiences of trauma in Pakistan and the effect of that trauma on his mental health.[21]
[21] Minister for Home Affairs v Omar [2019] FCAFC 188.
Whilst conceding that the Tribunal has a degree of decisional freedom as to how it assesses claims, evidence and submissions, it was submitted for the applicant that it is nonetheless required to do so within the bounds of reasonableness and must properly articulate how it reached its conclusions.[22]
[22] Applicant’s outline of submissions filed on 4 October 2020 at paragraphs 40 and 41; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25].
It was submitted that the applicant claimed his ability to study was adversely impacted by his mental health. In addition, the applicant claimed at the hearing before the Tribunal that his mental health was adversely impacted by his experiences in Pakistan. These claims were also made in the written submission made to the delegate[23]and the applicant also referred to having post-traumatic stress disorder in his written statement submitted at the Tribunal hearing.[24] The applicant also pointed to the fact that the psychological reports submitted in support of his claim make reference to his experiences of trauma in Pakistan prior to his arrival in Australia.
[23] Court book pages 9 and 10.
[24] Court book pages 98 and 99.
It was submitted that when regard is had to the totality of this material, a claim of having suffered mental ill health as a result of trauma suffered in Pakistan was clearly raised on the applicant’s material.[25]
[25] Transcript page 16 at lines 2 to 9; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58].
The applicant conceded that the Tribunal addressed the difficulties he claimed to have experienced in Pakistan at paragraph [25] of its reasons.[26] However, the applicant submitted that the Tribunal’s cursory comments in paragraph [25] do not evidence a genuine and meaningful consideration of those matters. In the alternative, the applicant submitted that the way in which the Tribunal dealt with this issue demonstrates an illogicality or irrationality such that it cannot be said to have engaged in a meaningful consideration of the applicant’s claim in the requisite sense.[27]
[26] Transcript page 16 at lines 22 to 25; Court book page 115.
[27] Transcript page 16 at lines 34 to 42.
It was further submitted that the mere fact that the applicant’s application for a protection visa was not granted, did not logically or rationally impact on the applicant’s claim that the treatment to which he was subjected in Pakistan and did not have any bearing on his mental health and his studies.[28]
[28] Transcript page 16 at lines 44 to 47.
This submission was based on the fact that the Tribunal did not have evidence before it regarding the reason for the rejection of the applicant’s application for a protection visa.[29] There was, in particular, no evidence that the reason why the protection visa application was rejected was because of a rejection of the applicant’s claim to have suffered trauma in Pakistan. Moreover, in circumstances where the decision to grant a protection visa is a forward looking inquiry, determining whether the applicant has a well-founded fear that he will be persecuted if he were to return to Pakistan, the rejection of a protection visa application per se does not equate to a conclusion that the decision implicitly rejected the applicant’s claims to have suffered trauma in Pakistan.
[29] Transcript page 17 at lines 1 to 9.
It was submitted that the applicant’s claim that he suffered from mental health issues as a result of his experiences in Pakistan was central to the reason as to why he had ceased studying, and therefore, why he failed to comply with his visa conditions.[30] In those circumstances, it was submitted that had the Tribunal properly engaged with this aspect of his claim, there was a possibility that it may have reached a different conclusion.
[30] Applicant’s outline of submissions filed on 4 October 2020 at paragraph 48.
In response, the first respondent noted that the applicant no longer claimed to fear harm in Pakistan if he were to return in the future. In this regard, the applicant stated:
… I intend to study and stay in Australia till (sic) my study period only and have no interest to overstay here for any other purpose at all. The reason that I applied for Protection Visa (sic) was to stay here until the issues back home were resolved. The situation in Pakistan are (sic) much better compared to while I was there. Therefore, I would like to join my family in Pakistan after completing my studies.[31]
[31] Court book page 99.
Moreover, it was further submitted by the first respondent that to the extent that the applicant made a claim of past harm in Pakistan, this was made in the context of explaining the deterioration in the applicant’s mental health after he arrived in Australia. It was submitted that it was the applicant’s mental health which was the cause of his inability to study. At no stage, did the applicant claim that he was unable to complete his studies because of any past harm which had occurred in Pakistan.[32]
[32] Transcript page 23 at lines 21 to 25.
I agree with this submission. So much is clear from the submissions made on the applicant’s behalf to the Department.[33] In addition, in his statement to the Tribunal he said:
The grief of living away from home was eating me inside … This major life transition exacerbated psychological difficulties for me and as a result, I went into depression… This illness was hampering my academicsprogress (sic). Amidst of all the ongoing chaos in my life, I somehow managed to finish my EAP study. … I stopped going to Kent and did not start my Bachelors. …[34]
[33] Court book pages 9 and 10.
[34] Court book page 98.
This issue was also addressed with the applicant in the course of the Tribunal hearing. The transcript of that hearing records that the applicant was asked why he had not commenced his Bachelor of Business course and the Tribunal was told it was because of ‘mental stress problem’.[35] It was in this context that issues about the harm to which he had been subjected in Pakistan was raised.
[35] Applicant’s affidavit affirmed and filed on 28 September 2020 at Annexure MA-1 page 9.
Moreover, it is also clear from the applicant’s material that his claim was that his mental health was not solely caused by the harm he had experienced in Pakistan but rather was also caused by the difficulties he felt by being in a new country by himself and away from friends and family.
Turning then to how the Tribunal dealt with this claim. At paragraph [15] of the Tribunal’s decision record, the Tribunal summarised the applicant’s claims regarding being targeted by the Taliban in Pakistan and noted these claims formed the basis of the applicant’s protection visa application.[36] The Tribunal also noted the applicant’s claims in relation to his deteriorating mental health. Relevantly, the Tribunal said:
The submissions argue that the applicant was a genuine student at the time of his enrolment but due to trauma and other circumstances he was unable to resume his studies.[37]
[36] Court book page 113.
[37] Court book page 113 at paragraph 15.
Furthermore at paragraph [23] of its reasons, the Tribunal dealt further with the applicant’s evidence about the circumstances which led him to not be enrolled in a registered course at the relevant time.[38] Relevantly, the Tribunal said:
… At the hearing the applicant explained that he stopped studying because he had problems in Pakistan which led him to be stressed, unable to study and led him to apply for protection. The applicant did not refer to his problems in Pakistan in any detail to the tribunal, however it notes that the submission from his former representative in response to the NOICC states that the applicant was targeted by the Taliban in early 2014, that his father had been assaulted by Taliban, that the family has been targeted for recruitment by the Taliban because they are a noble family from Mansehra district and madrassa graduates and that previous members of the family had been targeted by Taliban, have fled or been killed.[39]
[38] Court book page 115 at paragraph 23.
[39] Court book page 115 at paragraph 23.
At paragraph [24] of its reasons the Tribunal went on to recount the applicant’s evidence about the impact of these problems on his ability to study and concludes with:
He referred to it being hard to study due to his mental health and stated that he was going to a doctor.[40]
[40] Court book page 115.
It is against this background that the Tribunal noted at paragraph [25]:
The tribunal has considered the applicant’s evidence regarding the problems he claims he faced in Pakistan. It notes that the applicant’s claims in relation to this were assessed by the department and he was found not to be owed protection. Accordingly, the tribunal gives these circumstances little weight.[41]
[41] Court book page 115.
In addition, at paragraph [26] of its reasons, the Tribunal further sets out its consideration of the applicant’s claims in relation to the treatment he received in Pakistan and its impact on his mental health.[42]
[42] Court book page 115.
When read fairly, the Tribunal’s reasons show that the Tribunal did in fact consider the applicant’s claims in relation to the impact of his poor mental health on his ability to study generally and, the impact of his past experiences in Pakistan on his poor mental health.
The Tribunal had regard to and considered, in the sense of an active intellectual engagement with, the applicant’s claim that he was not able to study over the relevant period because of his mental health. It had regard to the fact that the applicant claimed that his mental health was adversely affected by his treatment in Iran, together with other factors mentioned earlier.
For each of these reasons, this aspect of the applicant’s grounds of review is not made out.
Section 359AA
Section 357A relevantly provides that Division 5 of Part 5 of the Act is an exhaustive statement of the natural justice hearing rule requirements for Part 5 Reviewable Decisions.
Relevantly, section 359A provides that information which may be the reason or part of the reason for affirming the decision must be given to the applicant by the Tribunal on review. Section 359A(3) relevantly provides that the Tribunal is not required to put information to an applicant in writing under section 359A if the Tribunal does so orally in the course of a hearing pursuant to section 359AA.
Section 359AA further provides:
(1)If an applicant is appearing before the Tribunal because of an invitation under s 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so – the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review: and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)…
It was submitted that the Tribunal failed to comply with its obligations under section 359AA of the Act in this instance. In making this submission, and in considering what is required to discharge its obligation under section 359AA, the applicant relied upon the decision of Flick J in SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 at [10] and [29] to [31] which considered the equivalent provision, section 424AA.
Relevantly, Flick J said:
Compliance with s 424AA(b)(iii) and/or (iv), does not require a Tribunal Member to repeat the very words employed in s 424AA(b)(iii) in some ritualistic or ‘parrot-like recantation’. Indeed, cases may be envisaged where to do so may not meaningfully convey to an applicant the opportunity sought to be secured by those provisions. Compliance with those provisions must necessarily depend upon the facts and circumstances of the claims being advanced before the Tribunal, the ability of any particular applicant to properly avail himself of the opportunity to be heard before the Tribunal, and the limited procedural protections prescribed by the Commonwealth legislature.[43]
[43] SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 at [29].
The question which arises in the context of determining whether section 359AA(b) of the Act has been complied with is whether the information has been conveyed to the applicant in such a way that he or she has been given a reasonable opportunity to understand the information and respond. Whether that has occurred will depend on the particular circumstances of each case.[44]
[44] NKO v Minister for Immigration and Citizenship [2010] FCA 297.
In this case, it was common ground that the applicant had ceased enrolment in a registered course in November 2014. It was also common ground that the 13 April 2016 letter to the Applicant incorrectly stated that the PRISMS records indicated he had not been enrolled in a registered course since November 2015.
It was submitted for the applicant that the Tribunal therefore correctly identified this as information which needed to be provided to the applicant pursuant to section 359AA and indeed put this to him in the course of the hearing and invited him to respond.[45] At the heart of this ground however, was the applicant’s submission that the manner in which this was done failed to meet the standard required of section 359AA.
[45] Applicant’s outline of submissions filed on 4 October 2020 at paragraph 24.
It was submitted that the offer made to the applicant in the course of the hearing for a ‘break’ to consider and respond to this question did not meet the requirements of section 359AA.[46] The Tribunal’s conduct in this case, was, according to the applicant, akin to that in Singh v Minister for Immigration & Anor [2016] FCCA 3232 at [52] to [59] and Kaur v Minister for Immigration & Anor [2012] FMCA 438 at [16] (“Kaur”). In both of those cases it was held that the Tribunal fell short of the required standard.
[46] Applicant’s outline of submissions filed on 4 October 2020 at paragraph 31.
It was therefore submitted that in this case, the ‘invitation to the applicant to take a break fell very well short of conveying to him that he could request an adjournment to respond or comment at a later time.’[47]
[47] Transcript page 12 at lines 35 to 37.
Moreover, it was submitted that for reasons similar to those in Kaur, the fact that an offer of a break was coupled with an offer to make a response in writing was still not sufficient to meet the requirements of section 359AA(b). It was further submitted that, in any event, the Tribunal did not offer the applicant to ‘put something in writing’.[48]
[48] Transcript page 12 at lines 37 to 41.
In short, the applicant submitted that in this case, the Tribunal did no more than ask whether the applicant wanted a break. This is not the same as advising the applicant that he could request additional time if required.[49]
[49] SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 at 109 [56]; SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [31].
The applicant further submitted that in this case, strict compliance with section 359AA was all the more important in circumstances where the applicant was clearly confused during the hearing, including in relation to the information to which section 359AA applied.[50]
[50] Transcript page 12 at lines 9 to 16; Applicant’s outline of submissions filed on 4 October 2020 at paragraph 37.
The applicant said that the purpose behind section 359AA is to provide the applicant with an opportunity to meaningfully consider the information provided during the course of a hearing and to meaningfully consider whether it is necessary to ask for additional time in which to provide a response to that information. This reflects the fact that it may not be possible to immediately respond to information orally provided in the course of a hearing.
In this case, it was also submitted for the applicant that the date from which the applicant was not enrolled in a registered course was a matter of significance. Had the applicant been told that the actual date to which the department was having regard was November 2014 rather than November 2015, he may have led some evidence about his mental health in the period between November 2014 and November 2015.[51] In addition, it was submitted that it was important for the Tribunal to comply with section 359AA in circumstances where the applicant was unrepresented, and suffered from mental health issues, including symptoms of post-traumatic stress disorder, anxiety and depression.[52]
[51] Transcript page 14 at lines 7 to 14.
[52] Applicant’s outline of submissions filed on 4 October 2020 at paragraph 37.
It was further submitted that the Tribunal’s failure to comply with section 359AA was material in the sense discussed in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 in circumstances where the Tribunal was critical of the fact that the applicant had not put before it any evidence about the applicant’s mental health from November 2014 onwards.
In reply, the first respondent submitted that either:
a)section 359A was not enlivened in this case; or
b)in the alternative, if it was, the Tribunal did comply with the requirements of section 359AA.
For the reasons which follow, I accept the first respondent’s primary submission.
Section 359A(4) sets out certain circumstances in which section 359A does not apply. That relevantly includes information which was provided by the applicant for the purposes of the review application.[53]
[53] Migration Act 1958 (Cth) s 359(4)(b) and (ba).
The submissions made by the applicant’s agent to the Delegate relevantly stated:
On or about November 2014, Kent Institute Australia allegedly sent an email to the wrong email address of the applicant. Consequently, the applicant never received any notification of this Student Visa. He was however, recently formally put on notice on 13 April 2016 by email of a historic ‘copy past notification of a COE being cancelled’, … [54]
[54] Court book page 10 at paragraph 7.
It is clear from this, together with paragraph 8 of those submissions,[55] that information about the cancellation of the applicant’s enrolment was information provided by the applicant. It is also clear that whilst the applicant stated that he was not notified of this cancellation when it occurred (i.e. in November 2014), at the time of the submission being made to the delegate, (i.e. in April 2016), the applicant was aware and was informing the Delegate that his enrolment had purported to be cancelled in November 2014.
[55] Court book page 10.
In addition, annexed to the applicant’s submissions to the Delegate was a copy of the email sent by Kent Institute on 11 November 2014.[56] Whilst it is clear that the applicant stated he had not received that email in November 2014, the content of that email which was provided by the applicant’s representative to the Delegate makes it clear that if he did not contact the institution by 28 November 2014, his enrolment would be cancelled.
[56] Court book page 20.
Furthermore, the applicant provided a further statement to the Tribunal.[57] In that statement, the applicant stated that he had enrolled in ‘English for Academic Purpose course leading to a Bachelor of Business at Universal English leading to KENT Institute’.[58] He then detailed the psychological difficulties he experienced and the impact this had on his studies. Relevantly, he clearly identified the fact that whilst he managed to complete his English course, he did not commence his Bachelor course.
[57] Court book pages 98 to 99.
[58] Court book page 98.
It is clear from the applicant’s own material that he provided information to the decision maker about his enrolment at Kent Institute coming to an end in 2014 and not 2015, as originally stated in the April 2016 letter.
In those circumstances, the information that he ceased to be enrolled in a registered course was information which ‘the applicant gave for the purpose of the application for review’[59] or it was information ‘that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department’.[60]
[59] Migration Act 1958 (Cth) s 359A(4)(b).
[60] Migration Act 1958 (Cth) s 359A(4)(ba).
As such, section 359A does not apply to that information. Therefore, the Tribunal was not required to provide him with an opportunity to respond to that information under section 359A or section 359AA.
However, if I am wrong in coming to this conclusion and such an obligation did arise under section 359AA to put this to the applicant, for the following reasons, I am satisfied that the Tribunal discharged this obligation.
A review of the transcript of the Tribunal hearing evidences that the Tribunal member clearly articulated on a number of occasions that there was a distinction between the date on which the applicant ceased to be enrolled in an approved course of study, namely November 2014, and the date referred to in the April 2016 letter, namely November 2015. The Tribunal member ensured, as far as was reasonably practicable, that the applicant understood the relevance of that information and the consequences of it being relied upon in affirming the Delegate’s decision.
Relevantly, the following exchanges occurred between the applicant and the Tribunal member:
Member:… I’ve noticed that there’s actually a mistake in the Department’s decision about the last time that you were enrolled in a course of study. …
… I’m saying that I’ve noticed that there is a mistake in the Department’s decision about when they think the last date that you were enrolled of study was (sic)
Applicant:When I finished study course in the beginning I called Immigration in 2016. When I had called Immigration I went to study two months of hospitality.
Member:I understand that. I don’t think you’re understanding me … I will just ask that you listen and if you don’t understand please ask me. Okay? Okay. In the Department’s decision record that have said that you have breached a condition of your visa that requires you be enrolled in a registered course.
Applicant:Uh-huh
Member:… Regardless of whether you later enrolled in a course on another – you know, a year later, the fact that you were not enrolled for a specific period of time still means that you are in breach of that visa condition …
Applicant:My health was not away.
Member:Okay. But Mr Aziz, your health and things like that are some things that I consider later. I explained to you that the first thing I need to do is to establish whether there has been a breach of the visa condition and a ground for cancellation. Okay? In the Department’s decision record about to cancel your visa, and also in their notice to you that they were intending to cancel your visa, I have noticed that they have actually made a typo, just an error in the date of your last enrolment. Okay?
Applicant:Did I make the mistake or Department made the mistake?
Member:No the Department – I’m explaining to you that the Department made a typographical error, they wrote the wrong date.
Applicant:Okay
Member:… but because you don’t know when … from what you’ve told me, you don’t know when your enrolment ceased?
Applicant:Yes
Member:Okay. So, because of that I just have to put the correct information to you in a more formal way right now. Okay? … I’m going to explain to you what the information is and why it is relevant and what the consequences of me relying on the information are. Okay. The information, if I rely on it, would be a reason, or the reason, or part of the reason to affirm or agree with the Department’s decision to cancel your visa. Okay? So, I’m going to explain it to you now and then I’ll ask you if you understand, and if you want to respond now or if you would like some time to respond. (emphasis added)[61]
[61] Applicant’s affidavit affirmed and filed on 28 September 2020 at Annexure MA-1 pages 18 to 20.
It was against this background exchange that:
a)the applicant then asked about a break;
b)the Tribunal member said he would put the information to the applicant; and
c)the applicant could then indicate if he wanted to respond or have a break.
After putting the relevant information to the applicant, the Tribunal member again said:
Do you want to respond to the information now or do you want some time to think about it?[62]
[62] Applicant’s affidavit affirmed and filed on 28 September 2020 at Annexure MA-1 page 20.
Later, the Tribunal member said:
… I’ve asked if you want to respond to it now or do you want some time to comment or respond to it later?[63]
[63] Applicant’s affidavit affirmed and filed on 28 September 2020 at Annexure MA-1 page 21.
In reply, the following exchange then occurred:
Applicant:I need some time.
Member:Okay. How much time do you need?
Applicant:Five minutes and I go to the toilet for a break.
Member:Okay, we can have a … okay, let’s just have a break for 10 minutes …and then you want to respond to me after that
Applicant:Yes.[64]
[64] Applicant’s affidavit affirmed and filed on 28 September 2020 at Annexure MA-1 page 21.
When considered in context and with regard to the totality of this exchange, it is clear and I find that the Tribunal member satisfied the requirements of section 359AA.
The Tribunal member explained the nature of the information, the relevance of the information and offered the applicant the opportunity to respond immediately or to request additional time in which to do so. The applicant raised the prospect of a break. Whilst it is the case that the Tribunal member then referred to a ‘break’ in the context of the applicant’s response to the information, the Tribunal member did again repeat that the applicant might want some time before responding.
In all of those circumstances, I am satisfied that the requirements of section 359AA were met, if it in fact applied.
Finally, I also note for completion that the information which was put to the applicant was the actual date on which the applicant had ceased to be enrolled in a registered course, as required by the conditions of his visa. Relevantly, it was common ground that the actual date on which he ceased enrolment was November 2014 and not November 2015, as stated in the April 2016 letter from the Department. It was submitted that, had this information been provided in accordance with the requirements of section 359AA, the applicant could have provided further medical information addressing his mental health issues at the time.
In this regard, I consider that:
a)it is clear from the transcript of his interview with the Tribunal that the applicant was aware that the last course he completed was the English Language course, and that he did not commence the Bachelor of Business which he was due to commence in November 2014;
b)it is clear from the transcript (and indeed from the written submissions made on the applicant’s behalf) that he did not seek medical assistance for his mental health until March 2015, and as such, it was open to the Tribunal to conclude that there was no other evidence about his mental health that the applicant could have provided about his mental health in the period from November 2014 to March 2015; and
c)it is also telling that the applicant’s own material did not detail his mental health issues from November 2015, being the date referred to in the April 2016 letter, but rather addressed the mental health assistance he accessed.
For each of these reasons, this aspect of the applicant’s grounds of review is also not made out.
Conclusion
As neither of the applicant’s grounds of review are made out, the application is to be dismissed and the applicant is to pay the first respondent’s costs in a sum to be fixed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 14 May 2021
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