BALA v Minister for Immigration
[2014] FCCA 1370
•30 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1370 |
| Catchwords: MIGRATION – Judicial review – decision of Migration Review Tribunal – vocational education and training sector visa – cancellation by delegate – review by Migration Review Tribunal – whether mis-interpretation of law – hardship – conditions for visa – whether denial of natural justice – whether jurisdictional error. |
| Legislation: Constitution Migration Act 1958 (Cth), ss.116, 200, 201, 253(1), (2) and (8), 360A(4), 441A, 441G, 474, 476, 499, 500(1)(a) Migration Legislation Amendment Regulation 2013 (No 1) (Cth) |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Bustescu v Minister for Immigration & Multicultural Affairs [1999] FCA 1713 Hatcher v Cohn & Ors (2004) 139 FCR 425; [2004] FCA 1548 Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 Maan v Minister for Immigration & Citizenship & Anor (2009) 179 FCR 581; [2009] FCAFC 150 McCarthy v Minister for Immigration, Local Government and Ethnic Affairs & Anor (1996) 65 FCR 195 Minister for Immigration and Citizenship v SZIZO & Ors (2009) 238 CLR 627; [2009] HCA 37 Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration & Multicultural Affairs v Yusuf& Anor (2001) 206 CLR 323; [2001] HCA 30 Niram v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 590 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Singh v Minister for Immigration & Citizenship & Anor (2012) 272 FLR 194; [2012] FMCA 1073 Singh v Minister for Immigration & Citizenship [2013] FCA 178 SZFIH v Minister for Immigration [2005] FMCA 1847 SZKTM v Minister for Immigration [2008] FMCA 215 Wong v Minister for Immigration & Multicultural Affairs [2005] FMCA 918 |
| Applicant: | RIMPY BALA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 381 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 April 2014 |
| Date of Last Submission: | 29 April 2014 |
| Delivered at: | Perth |
| Delivered on: | 30 June 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 381 of 2013
| RIMPY BALA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision made on 3 December 2013 by the Migration Review Tribunal.[1]
[1] “Tribunal Decision” and “Tribunal” respectively. The Tribunal Decision is at Court Book (“CB”) 142-151.
Basic factual and procedural background
The applicant, a citizen of India, first arrived in Australia on 8 April 2009 on a Subclass 573 Higher Education Sector visa. The applicant's last valid visa, a Subclass 572 Vocational Education and Training Sector visa, was granted on 25 September 2012 and was to expire on 20 September 2013.[2] The applicant’s Vocational Education Visa was subject to Condition 8202 of Schedule 8 to the Migration Regulations1994 (Cth)[3] which required the applicant to be “enrolled in a registered course”. The applicant’s husband was granted a visa on the basis of the applicant’s Vocational Education Visa.[4]
[2] “Vocational Education Visa”.
[3] “Migration Regulations”.
[4] CB 27-28 and 124.
On 7 March 2013, a delegate[5] of the first respondent[6] cancelled the applicant’s Vocational Education Visa under s.116(1)(b) of the Migration Act 1958 (Cth)[7] because the applicant did not hold a current Confirmation of Enrolment for a registered course, and therefore did not comply with Condition 8202 of Schedule 8 of the Migration Regulations.[8]
[5] “Delegate’s Decision” and “Delegate” respectively.
[6] “Minister”.
[7] “Migration Act”.
[8] CB 30-39 and 124.
On 13 March 2013, the applicant applied to the Tribunal for a review of the Delegate’s Decision. The applicant appeared before the Tribunal on 12 April 2013 to give evidence and present arguments.[9]
[9] CB 48-56 and 96 at para.25.
On 17 April 2013, the Tribunal affirmed the Delegate’s Decision to cancel the applicant’s Vocational Education Visa.[10]
[10] CB 91, 100 and 101 (“Previous Tribunal Decision”).
The applicant and her husband sought judicial review of the Previous Tribunal Decision by this Court. On 17 October 2013, consent orders were made by this Court quashing the Previous Tribunal Decision and remitting the matter to the Tribunal for determination according to law.[11]
[11] CB 104-107.
On 12 November 2013, the Tribunal invited the applicant to attend a hearing on 15 November 2013. The applicant completed a response to hearing invitation on 12 November 2013 advising that she would take part in the Tribunal hearing.[12]
[12] CB 130-134 and 137-138.
On 15 November 2013, the applicant attended a hearing before the Tribunal to give evidence and present arguments.[13]
[13] CB 139-141.
On 3 December 2013, the Tribunal affirmed the Delegate’s Decision to cancel the applicant’s Vocational Education Visa. The Tribunal also decided that it had no jurisdiction with respect to the applicant’s husband.[14]
[14] CB 142,152 and 153.
On 16 December 2013, the applicant filed an application under s.476 of the Migration Act for judicial review of the Tribunal Decision.
The Tribunal Decision
At the outset of the hearing the Tribunal explained to the applicant that reg.2.43(2)(b) of the Migration Regulations had been repealed with effect from 13 April 2013, which meant that there was now a discretion to cancel the applicant’s Vocational Education Visa rather than a mandatory cancelation requirement as existed previously.[15]
[15] CB 143 at para.8.
The applicant told the Tribunal:
a)she was not presently enrolled in a registered course;
b)she did cease her enrolment in a registered course;
c)she was supposed to re-enrol in January 2013 but did not do so;
d)she was supposed to re-enrol in April 2013 but was then taken into immigration detention and could not enrol because she was in detention; and
e)she finished a course in November 2012 and was supposed to re-enrol in another course on 24 January 2013, but her uncle and aunt passed away in India, and because she was disturbed by this and alone in Sydney she decided to have a break and thought that she would re-enrol in April 2013.[16]
[16] CB 144 at paras.10-11.
Responding to a question from the Tribunal the applicant said that she had made a mistake with respect to maintaining her course enrolment which she did not commit on purpose, and that she had not understood that she had an obligation to maintain enrolment and to advise the Department of Immigration and Citizenship (as it then was, now the Department of Immigration and Border Protection)[17] that she would not be enrolling and that her circumstances had changed, and she believed this because she had a current Vocational Education Visa which she thought enabled her to continue or resume study later.[18]
[17] “Department”.
[18] CB 144 at para.11.
In response to the Tribunal indicating that it had difficulty accepting that she did not know she had an obligation to inform the Department when no longer enrolled in a registered course the applicant replied that if it was a mistake it was a mistake for which she was now suffering and that it had ruined her future and separated her from her family.[19] The Tribunal observed that even though the applicant was in immigration detention she was not prevented from returning to India. This elicited a response from the applicant that her husband had spent a lot of money on her education and she wants to return to India without being deported because she believes that she had done nothing wrong. Her husband had returned to India in August 2013 because his mother was unwell.[20]
[19] CB 144 at para.12.
[20] CB 144 at para.12.
The applicant said that the reason for the breach of Condition 8202(2)(a) of Schedule 8 to the Migration Regulations concerning maintenance of enrolment in a registered course was because her uncle and aunt had passed away in India, and she had been studying for three years and was mentally tired and thought it would be good to take a break from her studies. The Tribunal asked why she could not return to India and have a break there, and the applicant indicated she would become emotional if she went back to India because her uncle had recently died. Her uncle had not cohabited with the family but had lived in the same city. The applicant said that her mother and father were still alive.[21]
[21] CB 144-145 at para.14.
On the question of hardship the applicant said that her future was hanging on her studies, and that she had come to Australia “with a lot of dreams and her family depends on her living here and earning money in Australia”[22]
[22] CB 145 at para.15.
Asked for submissions on extenuating or compassionate grounds the applicant repeated that she had come to Australia with a lot of dreams, and that her husband had spent $40,000 to $50,000 on her course fees, and that she cannot apply for permanent residence because she has been in detention for so long, and that her Master’s degree has been assessed but she has run out of time (as at October 2013) to make an application for a permanent visa based on that qualification.[23]
[23] CB 145 at para.16.
The Tribunal asked whether there were any other reasons why the applicant could not return to India and the applicant replied that there “are a lot of reasons” including unemployment, crime, corruption and rape, and the applicant said that the more educated Indians were the more targeted they were for harm.[24]
[24] CB 145 at para.18.
The Tribunal noted the applicant’s evidence that she completed a course of study in November 2012 and that she was supposed to re-enrol in January 2013 but decided to take a break and to defer her enrolment until April 2013. The applicant confirmed that she was not enrolled in a registered course during the period from January 2013 to April 2013. The Tribunal was therefore satisfied that the applicant had breached Condition 8202(2) of Schedule 8 to the Migration Regulations.[25]
[25] CB 146 at para.26.
The Tribunal then turned to consider whether it should exercise its discretion to cancel the applicant’s Vocational Education Visa. It noted that it had to have regard to the matters raised by the applicant as to why the Vocational Education Visa should not be cancelled and the government policy guidelines contained in the Department’s Procedures Advice Manual.[26]
[26] “PAM3”; CB 146 at paras.27-28 and 147 at para.29.
The Tribunal set out the Departmental PAM3 policy guidelines on matters which the Tribunal may have regard to in considering a discretion whether to cancel a Vocational Education Visa as follows:
·the purpose of the visa holder’s travel to and stay in Australia;
·if the cancellation is being considered for breach of a visa condition – the reason for, and extent of, the breach. The guidelines state that as a rule, a visa should not be cancelled where the breach of visa condition occurred in circumstances beyond the visa holder’s control;
·the degree of hardship that may be caused to the visa holder and any family members;
·the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa);
·the visa holder’s past and present behavio[u]r towards the Department (for example, whether a person has been truthful in statements or applications made to the Department or have previously complied with visa conditions);
·whether there are persons in Australia whose visas would, or may, be cancelled under s.140;
·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as children in Australia whose interests could be affected by the cancellation or removal would result in a breach of Australia’s non-refoulement obligations;
·the impact of cancellation on any victim of family violence, or if family violence is a factor;
·any other matters raised by the visa holder.[27]
[27] CB 147 at para.29.
Having addressed the matters raised by the applicant and in PAM3, the Tribunal concluded that, after considering the circumstances as a whole, the applicant’s Vocational Education Visa should be cancelled.[28] The manner in which the Tribunal dealt with the matters raised by the grounds of review is considered by the Court under “Consideration of the grounds of judicial review” below.
[28] CB 150 at para.48.
Judicial review application
The applicant’s application for judicial review of the Tribunal Decision contains four grounds of review, which are set out and considered hereunder. A further possible ground of review was raised by the Minister at hearing and is also dealt with hereunder.
Statutory framework
The relevant statutory framework is as follows:
a)section 116(1)(b) of the Migration Act provides that subject to s.116(2) and (3) the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa;
b)Condition 8202(1) of Schedule 8 to the Migration Regulations provides that the holder of a visa (other than the holders of visa Subclasses 560 and 576) must meet the requirements of Condition 8202(2) and (3) of Schedule 8 to the Migration Regulations; and
c)Condition 8202(2)(a) of Schedule 8 to the Migration Regulations provides that a holder meets the requirements of that Condition “if the holder is enrolled in a registered course”.
Consideration of the grounds of judicial review
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error.[29] An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor.[30]
[29] Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[30] (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Ground 1 – misinterpretation of the applicable law
Ground 1 is as follows:
1. Miss Interpretation of the law: As there is no definition in the Act for exceptional Circumstances. The Tribunal should allowed (sic) the first applicant (sic) explanation for exceptional circumstances.
In relation to ground 1 the applicant submitted that:
a)regulation 2.43(b)(ii)B of the Migration Regulations states that, in effect, there is an exception where non-compliance with a visa condition was due to exceptional circumstances beyond the control of the visa holder;
b)there is no definition of exceptional circumstances, and that that phrase is open to interpretation;
c)“exceptional circumstances” means “those circumstances which are unusual or out of the ordinary”[31] and ought to be interpreted deferentially;[32]
d)she explained to the Tribunal that she did not enrol in an educational course because of the sudden death of her uncle and aunt in a matter of less than two months, and whilst the Tribunal accepted her explanation it refused to treat those deaths as exceptional circumstances;
e)a death in the family is always exceptional and the death of two dear family members of the applicant resulted in the applicant suffering from a depressive disorder which resulted in her taking the decision not to enrol in the next course; and
f)the Tribunal erred in not taking into consideration the death of the two family members of the applicant as exceptional circumstances.
[31] Citing Wong v Minister for Immigration & Multicultural Affairs [2005] FMCA 918 at para.X per Walters FM.
[32] Citing Niram v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 590 (“Niram”); Hatcher v Cohn & Ors (2004) 139 FCR 425; [2004] FCA 1548 (“Hatcher”); Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 (“SZMDS”); Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 (“Abebe”).
In relation to ground 1 the Minister submitted as follows:
a)this ground appears to be based on the misunderstanding that what is required is that the applicant’s Vocational Education Visa not be cancelled where the non-compliance with Condition 8202 of Schedule 8 to the Migration Regulations was due to exceptional circumstances beyond the applicant’s control;[33]
b)as noted by the Tribunal, on 13 April 2013 the Migration Legislation Amendment Regulation 2013 (No 1) repealed the mandatory cancellation provisions in reg.2.43(2)(b) of the Migration Regulations, and there is no longer a requirement for a visa holder to establish exceptional circumstances;[34]
c)the Tribunal did not apply any test relying on exceptional circumstances and made no misinterpretation of that term or any other provision in the Migration Act or the Migration Regulations; and
d)the applicant also contends that the Tribunal should have accepted her explanation for exceptional circumstances. The Tribunal was not, however, obliged to accept any explanation by the applicant or find that there were exceptional circumstances justifying non-cancellation of her visa. The applicant’s challenge to the Tribunal’s findings amount to impermissible merits review.
[33] See the former reg.2.43(2)(b) of the Migration Regulations.
[34] CB 146 at para.27.
Consideration – ground 1
The applicant misconceives what the Tribunal was required to do in this case. The former reg.2.43(2)(b) of the Migration Regulations was repealed, and no longer applies. The Tribunal was therefore not required to consider whether the visa holder had established exceptional circumstances warranting the non-cancellation of the visa, and the authorities cited by the applicant are of no assistance. In any event, and if the exceptional circumstances test had applied, it is not necessarily the case that the Court would have found that the death of an aunt and uncle living in the same city, but not the same house, as the applicant’s family in India, where the applicant had not lived for more than four and a half years at the time of the Tribunal Decision, would constitute exceptional circumstances.
The relevant law is set out in Singh v Minister for Immigration & Citizenship & Anor[35] by reference to the judgment of the Full Court of the Federal Court in Maan v Minister for Immigration & Citizenship & Anor.[36] In Singh the Federal Magistrates Court observed as follows:
55 The regularly quoted authority of a death of a near relative as not being exceptional because they are suffered by many students, so are regularly encountered and not exceptional, is the decision in Maan v Minister for Immigration and Citizenship and Anor (supra) per Dowsett, Greenwood and Collier JJ at [51]-[52] where their Honours state:
“51.Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [25])
“52.In this case the Tribunal considered in detail the meaning of ‘exceptional circumstances’ in the context of these proceedings, and whether the appellant's non-compliance with the conditions of his visa was due to exceptional circumstances beyond his control. Indeed, the Tribunal accepted the appellant's evidence as to the events which had occurred in respect of his mother and grandfather, and gave consideration to his claims concerning his teacher at VIT and the stress of being away from home. On the facts the Tribunal found it plausible that the appellant should have experienced stress and depression as a result of the events involving his mother and grandfather. However the Tribunal was not satisfied that the appellant remained stressed or depressed several months after those events, particularly in light of the appellant's failure to seek professional assistance. It is perhaps surprising that the Tribunal would find that a male student, aged 18 years old, and alone for the first time in a foreign country, would naturally seek medical help for depression-related symptoms. However the findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact, clearly open to the Tribunal, and do not reveal jurisdictional error. The Federal Magistrate also considered this aspect of the appellant's case in detail, and no deficiency in the reasoning of the Federal Magistrate in relation to this issue has been identified by This Court.”[37]
[35] (2012) 272 FLR 194; [2012] FMCA 1073 (“Singh”).
[36] (2009) 179 FCR 581; [2009] FCAFC 150 (“Maan”).
[37] Singh FLR at 217 per Lloyd-Jones FM; FMCA at para.55 per Lloyd-Jones FM.
In Singh the claim of “exceptional circumstances” by the applicant arose from the sudden death of his grandmother to whom he claimed to be closely attached, and as a consequence of which he went into deep shock and was depressed and did not attend lectures leading to a notification that he had breached Condition 8202 of Schedule 8 to the Migration Regulations.[38] The Federal Magistrates Court was satisfied that the Tribunal dealt with the evidence that it had before it, which included the absence of evidence from professional medical sources supporting the claim that the applicant was unable to attend his classes, and consequently dismissed the application.[39]
[38] Singh FLR at 216-217 per Lloyd-Jones FM; FMCA at para.54 per Lloyd-Jones FM.
[39] Singh FLR at 217-220 per Lloyd-Jones FM; FMCA at paras.57-63 per Lloyd-Jones FM.
The judgment of the Federal Magistrates Court in Singh was appealed, and in Singh v Minister for Immigration & Citizenship[40] the Federal Court dismissed Mr Singh’s appeal. The Federal Court also observed that:
27 Students at the level of tertiary education are commonly in their late teens or early twenties. It is not in my view controversial to note that it is a stage of life when the death of a grandparent is not an uncommon event. I suggest that the unremarkable nature of such an event in relation to an elderly person would not minimise the shock or distress which may be experienced by the student. Such shock or distress would in my view be likely to be compounded for the student by being in a foreign country, possibly without friends or family. One wonders at the inquiries made or pastoral care offered by tertiary educational institutions where foreign students, for unexplained reasons, do not attend classes.
28 The fact remains, however, that this appeal hearing is not in the nature of a merits review: NAHI at [10 ]. A determination of exceptional circumstances is a finding of fact, for the Tribunal.
29 In my view the appeal should be dismissed with costs.[41]
[40] [2013] FCA 178 (“Singh Appeal”).
[41] Singh Appeal at paras.27-29 per Collier J.
The question of whether or not the aunt and uncle’s death would have constituted exceptional circumstances would therefore have been one for the Tribunal to assess in all of the circumstances, if it were relevant, which it is not, and it does not automatically follow that exceptional circumstances could have been established.
Taking a liberal view of ground 1 it, setting aside the question of exceptional circumstances which are no longer applicable or relevant, constitutes a complaint, as set out in paragraph 27(f) above that the Tribunal erred by not taking into consideration the death of the aunt and uncle as extenuating or compassionate circumstances outweighing the grounds for cancelling the applicant’s Vocational Education Visa.[42]
[42] See the PAM3 guidelines set out above.
Insofar as it is alleges that the Tribunal did not take into consideration the death of the aunt and uncle that is clearly an erroneous assertion. The Tribunal:
a)noted the applicant’s claim that her uncle and aunt and passed away, and that the applicant was “disturbed by this” and “felt she needed a break”;[43]
b)accepted that the applicant’s aunt and uncle passed away, and that the applicant “may have been close to them”;[44]
c)did not, however, accept that the death of the aunt and uncle was “sufficient ground not to exercise a discretion to cancel a visa having regard to all of the circumstances of the case”;[45] and
d)noted the applicant’s claim that she could not return to India shortly after her uncle and aunts death because it would be too emotional for her.[46]
[43] CB 147 at para.30.
[44] CB 147 at para.31.
[45] CB 147 at para.31.
[46] CB 149 at para.39.
The Tribunal did therefore take into account the death of the applicant’s aunt and uncle. It also assessed whether or not there were extenuating and compassionate circumstances in all the circumstances of the case and determined that there was not. It is relevant to observe that the Tribunal went into considerable detail with respect to the other circumstances relevant to this case in the Tribunal Decision.[47] It is also relevant to observe that the applicant tendered to the Tribunal no medical or allied health professional evidence to support her assertion of a depressive disorder arising from the death of her uncle and aunt.
[47] See CB 147-150 at paras.32-47.
It is also relevant to observe that it appears that when the Tribunal asked the applicant for submissions on extenuating or compassionate grounds she did not mention her aunt or uncle’s death, but rather:
a)“that she came to Australia with a lot of dreams”;[48]
b)that her husband had spent between $40,000 to $50,000 on her;
c)that she cannot now apply for permanent residence because it is too late as she has been held in detention;
d)that although her Master’s Degree has been assessed it is too late for her to make an application for permanent residence based on that qualification; and
e)that she had not discussed these matters with her case manager.[49]
[48] CB 145 at para.16.
[49] CB 145 at para.16.
It is unnecessary to set out the metes and bounds of the phrase “extenuating and compassionate circumstances”. It suffices to say that what constitutes extenuating and compassionate circumstances will vary from case to case, and in these circumstances, is a matter of fact for determination by the Tribunal. The Tribunal’s findings of fact are not reviewable by this Court on judicial review. In this case, the Tribunal has considered the issue of the death of the applicant’s aunt and uncle, and determined that those deaths do not warrant the exercise of the discretion not to cancel the applicant’s Vocational Education Visa.
For all of the above reasons, ground 1 is not made out.
Ground 2 – hardship
Ground 2 is as follows:
2. Hardship: Deporting the Applicants will denied (sic) them an opportunity for education and better Lifestyle and it will cause a definite break (sic) of a family unit.
The applicant submitted in relation to ground 2 that:
a)the Migration Regulations provide for the application to be considered on compassionate grounds;
b)it is very clearly and undoubtedly the case that the applicant will suffer hardship if deported, by reason of loss of opportunity to continue her education, loss of a better future, and a significant risk of separation of her young family; and
c)a “hardship of prejudice” will be created if the applicant has to return to her home country,
and cited a number of authorities[50] and provisions of the Migration Act[51] in support of the above submissions.
[50] McCarthy v Minister for Immigration, Local Government and Ethnic Affairs & Anor (1996) 65 FCR 195 (“McCarthy”); Bustescu v Minister for Immigration & Multicultural Affairs [1999] FCA 1713 (“Bustescu”); Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 (“Hong”).
[51] Migration Act, ss.200, 201, 253(1), (2) and (8), 499, 500(1)(a).
In relation to ground 2 the Minister’s submission was that:
a)ground 2 similarly seeks impermissible merits review in relation to the Tribunal’s findings regarding hardship. The Tribunal expressly considered the hardship that cancellation of the Vocational Education Visa might cause the applicant and her family but was not satisfied on the evidence before it that there would be significant hardship;[52]
b)the Tribunal also noted that the applicant was now separated from her family but considered that it was within the applicant’s control to reunite with her family if that was her preference;[53] and
c)the above findings were reasonably open to the Tribunal on the evidence before it.
[52] CB 149 at para.40.
[53] CB 148 at para.35.
Consideration – ground 2
Ground 2 does not allege any error by the Tribunal, let alone a jurisdictional error. Furthermore, the applicant’s submission that it is clearly and undoubtedly the case that she will suffer hardship if deported by reason of the matters set out in ground 2 is a challenge to the factual findings of the Tribunal, and thus amounts to an impermissible attempt to have this Court engage in merits review on a judicial review application. The Tribunal considered each of:
a)the issue of hardship generally;[54]
b)the issue of hardship specifically by reference to the loss of opportunity to continue her education;[55]
c)her loss of a better future, that is the ability to stay in Australia rather than return to India,[56] or the risk of harm upon return to India,[57] including the possibility that there might be family violence, including from the applicant’s in-laws, if the applicant returned to India;[58] and
d)the issue of separation from her family, and in that regard the Court notes that the Tribunal specifically observed that it was within the applicant’s control to reunite with her family if that was her preference, her family presently being in India.[59]
[54] CB 149 at para.40.
[55] CB 149 at para.40.
[56] CB 149 at para.39.
[57] CB 149-150 at para.42.
[58] CB 150 at paras.43 and 46.
[59] CB 148 at para.35.
The sections of the Migration Act and authorities cited by the applicant do not assist in the resolution of the question as to whether or not the Tribunal considered the issue of hardship as claimed by the applicant. In that regard, the Tribunal did, as set out above, consider the issue of hardship both generally and by specific reference to the applicant’s claims, and came to a conclusion that the applicant would not suffer hardship if the Vocational Education Visa was cancelled and she had to return to India. That was the specific question that the applicant asked the Tribunal to deal with under ground 2, and the Tribunal dealt with it by reference to the claims of the applicant, and reached factual findings in the exercise of its discretion and the application of the PAM3 guidelines, and it is not open to the Court to interfere with those fact findings on judicial review.
Ground 2 seeks no more than impermissible merits review, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 3 – Condition 8202
Ground 3 is as follows:
3. Condition 8202: No definition for Length of a holiday in the Act. A person has a right to choose the length of break of holiday.
In relation to ground 3 the applicant submitted that:
a)there is no condition in the Migration Regulations limiting the length of time a Vocational Education Visa holder may choose to take as a holiday; and
b)it is in the Constitution and the Universal Declaration of Human Rights[60] that a person is free to choose their path.
[60] “UDHR”.
The applicant sets out in her submissions a version of Articles 1, 8, 9, 24 and 26 of the UDHR.
The Minister’s submissions with respect to ground 3 were as follows:
a)the applicant’s contentions that there is no definition for the length of holiday in the Migration Act and that a person has a “right” to choose the length of a holiday are irrelevant to the issues that were required to be determined by the Tribunal, and now by this Court;
b)the applicant appears to contend that there was no breach of Condition 8202 of Schedule 8 to the Migration Regulations as she was entitled to take a break from study. The effect of Condition 8202(2)(a) of Schedule 8 to the Migration Regulations was, however, that it was at all times necessary for the applicant to maintain course enrolment as a condition of her Vocational Education Visa, and the Tribunal correctly found that as the applicant was not enrolled in a registered course between January and April 2013, she had not complied with Condition 8202(2) of Schedule 8 to the Migration Regulations;[61]
c)the Tribunal also considered the applicant’s desire to have a break from studies in weighing up the matters to be considered in the exercise of its discretion whether to cancel the Vocational Education Visa.[62] The Tribunal did not accept the applicant’s claim that she was not aware that she had to maintain course enrolment and considered it more likely that the applicant decided to take the chance of having a break in her enrolment in breach of her Vocational Education Visa condition that required her to be enrolled; and
d)the above findings were clearly open to the Tribunal.
[61] CB 146 at para.26.
[62] CB 147 at para.32.
Consideration – ground 3
Whether or not there is a condition in the Migration Regulations that the holder of a Vocational Education Visa may take a “holiday” is irrelevant to the determination of the question which was before the Tribunal. The breach of Condition 8202 of Schedule 8 to the Migration Regulations was not any “holiday” taken by the applicant, but rather the failure to maintain enrolment in a registered course.
The references to the Constitution and the UDHR are meaningless in context in this case. There is no challenge in these proceedings to the constitutional validity of the Migration Act and Migration Regulations insofar as they relevant to the conditions imposed by Condition 8202 of Schedule 8 to the Migration Regulations providing that a person who is the current holder of a Vocational Education Visa must be enrolled in a registered course. Nothing in the Constitution or the cited Articles of the UDHR (even if they were applicable to Australia’s domestic law, which, at least in respect of the Migration Act and Migration Regulations they do not appear to be) prevents a condition of enrolment in a registered course lawfully being placed upon a Vocational Education Visa holder.
In any event, it must be observed that the maintenance of enrolment in a registered course is not necessarily incompatible with a Vocational Education Visa holder having a break or a holiday whilst maintaining enrolment in a registered course. Those, however, are factual matters for the Tribunal to consider and determine, as it did here in the Tribunal Decision. There is no scope for this Court to interfere in the Tribunal’s fact-finding in that regard. To do so would be impermissible merits review.
No jurisdictional error is established by this ground of review, and it is not made out.
Ground 4 – Tribunal ignored the significant mental harm to the applicant if she returned to India
Grounds 4 is as follows:
4. The tribunal ignored the fact that the Applicant will be the subject of significant harm (mentally) if she would be returned back to India.
In relation to ground 4 the applicant submitted that the Tribunal ignored the fact that the applicant would be the subject of significant harm mentally if she were to return to India.
In relation to ground 4 the Minister submitted as follows:
a)the applicant has provided no details of her claims of significant mental harm and whether these were raised before the Tribunal. The Tribunal did consider the applicant’s claims that her in-laws may verbally abuse and insult her, and that she might contemplate suicide, if she had to return to India.[63] The Tribunal did not find the applicant’s claim that she might contemplate suicide to be convincing, and found that the applicant appeared sufficiently confident to be able to search out assistance in India in the unlikely event that she had suicidal thoughts; and
b)the Tribunal fully considered all the claims made by the applicant at the hearing and concluded that, in all the circumstances, the applicant’s Vocational Education Visa should be cancelled. That conclusion was clearly open to the Tribunal on the evidence before it, and this ground of review appears to be a further impermissible attempt at merits review.
[63] CB 150 at para.46.
Consideration – ground 4
The applicant’s claim of significant mental harm was not supported by any medical or allied health professional evidence before the Tribunal.
The Tribunal specifically considered each of the matters put to it by the applicant, including her allegations that:
a)it would be too emotional for her to return to India because of her uncle and aunt’s death;[64]
b)her family are not wealthy, and that there would be significant hardship to her or her family;[65]
c)she cannot return to India because there is crime, corruption and rape there, as well as high unemployment;[66] and
d)she may incur the displeasure of her in-laws, and might contemplate suicide,
and also considered whether this was a case where the applicant may be a victim of family violence;[67]
[64] CB 149 at para.39.
[65] CB 149 at para.40.
[66] CB 149 at para.42.
[67] CB 150 at paras.43 and 46.
The Tribunal specifically found that:
a)the applicant may become emotionally distressed on occasion if she returns to India but did not accept that she could not return to India, “especially with the support of her husband and with the support of her parents who live in India”;[68]
b)whilst her family were not wealthy they had supported her whilst she was studying, and whilst they may have limited financial capacity and may never recover the money invested in her education, the applicant remained the beneficiary of having obtained an education in Australia as a result of the outlay of the funds,[69] and that the applicant “would not be precluded from finding and holding employment in India”;[70]
c)the applicant was well-educated, qualified and confident, and would not be precluded from finding and holding employment in India;[71]
d)there was no evidence that the applicant would be targeted in a discriminatory way for harms faced by the Indian population at large such as crime, corruption and rape, and was not satisfied that it ought to exercise its discretion merely because it may be that there is some discrimination in India against better educated persons;[72] and
e)this was not a case of family violence,[73] and that the applicant “appeared sufficiently confident to be able to search out assistance in India in the unlikely event she had suicidal thoughts.”[74]
[68] CB 149 at para.39.
[69] CB 149 at para.40.
[70] CB 149 at para.42.
[71] CB 149 at para.42.
[72] CB 149-150 at para.42.
[73] CB 150 at para.43.
[74] CB 150 at para.46.
In the circumstances, the Tribunal was not persuaded by the applicant’s arguments, and concluded that the Vocational Education Visa ought to be cancelled.[75] In doing so, it is clear that the Tribunal did consider the issue of whether or not the applicant would suffer any form of mental harm if returned to India, and concluded, having regard to the evidence available that the applicant’s claims in this regard were not made out. It simply cannot be said that the Tribunal ignored this issue, as is asserted in ground 4, and for the Court to interfere would be doing no more than impermissibly reviewing the merits of the application before the Tribunal.
[75] CB 150 at para.48.
In all of the above circumstances, ground 4 is not made out, and discloses no jurisdictional error.
A further possible ground – short notice in invitation to appear
Although not raised by the applicant, the Minister brought to the Court’s attention that the notice dated 12 November 2013[76] inviting the applicant to appear before the Tribunal on 15 November 2013 gave less than the required 7 days’ notice.[77]
[76] CB 130-131.
[77] Migration Act, s.360A(4); Migration Regulations, reg.4.21(3).
Minister’s submissions
The Minister contended however that the short notice did not amount to jurisdictional error, and in any event, the Court in the exercise of its discretion should refuse relief, for the following reasons:
a)the applicant agreed, in writing, to a shorter period of notice in accordance with reg.4.21(3)(b)(ii) of the Migration Regulations. The applicant’s written agreement is constituted by her response to hearing invitation dated 12 November 2013 in which she advised that she would take part in the Tribunal hearing scheduled for 15 November 2013. Accordingly, there was no failure to give the prescribed period of notice;
b)if, contrary to the Minister’s contention, there was a failure to give the prescribed period of notice, the failure does not result in jurisdictional error;
c)in Minister for Immigration and Citizenship v SZIZO & Ors,[78] the High Court held, notwithstanding a detailed prescription of the notification regime for the Refugee Review Tribunal and the use of imperative language, that it was an error to conclude that the provisions were inviolable restraints, that they were procedural steps, and a failure to comply with them required consideration of whether in the events that occurred the applicant was denied natural justice;[79]
[78] (2009) 238 CLR 627; [2009] HCA 37 (“SZIZO”).
[79] SZIZO CLR at 640 per French CJ, Gummow, Hayne, Crennan and Bell JJ; HCA at para.36 per French CJ, Gummow, Hayne, Crennan and Bell JJ.
d)although the High Court in SZIZO was dealing with ss.441G and 441A of the Migration Act which related to the manner of giving notice of a hearing, similar principles should apply to other provisions such as s.360A(4) of the Migration Act;
e)the view that s.360A(4) of the Migration Act is not an inviolable restraint conditioning the Tribunal’s jurisdiction is supported by the decisions in SZFIH v Minister for Immigration[80] and SZKTM v Minister for Immigration.[81] Although prior to the High Court’s judgment in SZIZO, the Federal Magistrates Court reached a similar conclusion to that in SZIZO when in SZKTM it found that there were some circumstances in which a failure to observe a formality in relation to a hearing invitation could not have been intended to result in the invalidity of a Refugee Review Tribunal’s subsequent procedures and decision. The Court specifically noted that such circumstances would include “where the applicant waived a notification requirement by attending a scheduled hearing upon reasonable notice and without objection”;[82]
f)if the Tribunal’s failure to give the prescribed period of notice does not necessarily amount to jurisdictional error, it becomes necessary to consider whether, in the events that occurred, the applicant was denied natural justice;[83]
g)there was no denial of natural justice to the applicant having regard to the following circumstances:
i)the period of 3 days’ notice that was given to the applicant was more than adequate given that the applicant was in immigration detention and the matter had been remitted to the Tribunal by this Court for reconsideration following the Previous Tribunal Decision. As similar issues were canvassed before the Tribunal on this occasion, the applicant did not need the ordinary period of 7 days to prepare for the hearing before the second Tribunal;
ii)the applicant promptly responded to the Tribunal’s hearing invitation advising that she would take part in the hearing scheduled for 15 November 2013. The applicant’s response, which was faxed to the Tribunal on 12 November 2013, raised no objection to the date and did not seek to defer the hearing; and
iii)the applicant duly appeared before the Tribunal on 15 November 2013 and gave evidence and presented arguments. There is no evidence to suggest that the applicant suffered any prejudice or practical unfairness as a result of the early hearing. She did not seek the opportunity to provide further information or evidence following the Tribunal hearing; and
h)alternatively, having regard to the matters set out above, the Court should, in any event, in the exercise of its discretion, refuse relief.[84]
[80] [2005] FMCA 1847.
[81] [2008] FMCA 215 (“SZKTM”).
[82] SZKTM at para.23 per Smith FM.
[83] SZIZO CLR at 640 per French CJ, Gummow, Hayne, Crennan and Bell JJ; HCA at para.36 per French CJ, Gummow, Hayne, Crennan and Bell JJ.
[84] See SZKTM at para.25 per Smith FM.
Applicant’s submissions
When the matter was raised at hearing, the applicant submitted that she had sufficient notice to appear at the Tribunal, and specifically observed that that was so, at least in part, because she had previously put the same or similar arguments to the Tribunal at the first Tribunal hearing, and there was, therefore, no denial of natural justice.
Consideration – additional ground
The Minister, as a model litigant, was correct to raise this additional ground. Given, however, that the applicant concedes that there was no denial of natural justice and that she had sufficient notice to appear at the Tribunal, the Court need not consider the matter further as no jurisdictional error can be established, but even if what occurred was a jurisdictional error, the Court would not, in all of the circumstances, be prepared to grant prerogative relief as there has been no practical injustice.[85]
[85] SZKTM at para. 25 per Smith FM.
Conclusions and orders
The Court has concluded that none of the matters raised in relation to this application give rise to any jurisdictional error by the Tribunal. It follows that the application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 30 June 2014
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