Bandi v Minister for Immigration
[2014] FCCA 1209
•26 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANDI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1209 |
| Catchwords: MIGRATION – Review of decision of Migration Review Tribunal – where Tribunal confirmed decision of Minister’s delegate to cancel vocational education and training visa – applicant alleged to have breached conditions attaching to visa – findings of fact – sole basis for altering decision is jurisdictional error – no jurisdictional error disclosed – application dismissed. |
| Legislation: Commonwealth of Australia Constitution Act, s.75(v) Education Services for Overseas Students Act 2000 Migration Act 1958 (Cth), ss.116, 474, 476 & 477 Migration Regulations 1994 (Cth), Subclass 572 & Schedule 8 |
| Craig v South Australia (1995) 184 CLR 163 Collector of Customs v Pozzolanic Enterprises Pty Ltd and Pressure Tankers Pty Ltd [1993] 43 FCR 280 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 |
| Applicant: | SUZUKI BANDI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 73 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 2 June 2014 |
| Date of Last Submission: | 2 June 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 26 June 2014 |
REPRESENTATION
| Applicant: | Self-represented |
| Counsel for the Respondents: | Mr Prince |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application filed on 7 March 2014 is dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY-SIX DOLLARS ($6,646.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 73 of 2014
| SUZUKI BANDI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Suzuki Bandi (“the applicant”) seeks an extension of time to review a decision of the Migration Review Tribunal (“the MRT”), which confirmed the cancellation of a Subclass 572 Vocational Education and Training Sector visa (“the visa”) granted to him on 17 October 2011.
The visa was granted pursuant to the provisions Migration Regulations 1994, (“the Regulations”), particularly Subclass 572. The visa was also subject to a number of conditions, which are specified in condition 8202 of Schedule 8 of the Regulations.
In summary, the conditions of the visa, which authorises its holder to remain in Australia, whilst completing an authorised course of vocational training, require the holder to:
·be enrolled in a registered course [condition 8202(2)];
·not to have been certified as not achieving satisfactory progress in the course concerned [condition 8202(3)(a)];
·not to have been certified as not achieving satisfactory course attendance [condition 8202(3)(b)].
The unsatisfactory progress and course attendance certification can be made by an “education provider” pursuant to the provisions of the Education Services for Overseas Students Act 2000.
In this case, the applicant attended the Adelaide College of Technology, where he was enrolled in a hospitality course. On 2 August 2012, the College, which is an education provider for the purposes of the relevant legislation, certified that the applicant had not achieved satisfactory course attendance.
As a consequence of this certification, the Department of Immigration and Citizenship[1] (“the Department”) was informed and a decision was made by a delegate of the Minister to cancel the visa in question because of a breach of its conditions. The Minister of Immigration and Border Protection “(the Minister”) is authorised to cancel such visas pursuant to the provisions of section 116 of the Migration Act 1958 (“the Act”).
[1] As it was then known
The applicant sought to review this decision in the MRT, which confirmed the decision on 28 January 2014, after inviting the applicant to appear before it and give evidence, which invitation the applicant accepted.
On 7 March 2014, the applicant applied in this court for judicial review of this decision. The applicant has prepared his own grounds for review, which are as follows:
1. Under Migration Act 1958 Judicial review can be lodged after 35 days’ time frame after tribunal review has been finalised in case of compassionate and compelling reasons beyond my control.
2.I am not happy with tribunal decision, applying for judicial review for legitimate decision.
3.I do have exceptional circumstances beyond the application lodgement previously.
4.There is a Decision in High Court which is similar to effect on my decision in to positive outcome.
The legal framework
Pursuant to section 476(1) of the Migration Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”.
However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions made under the Act, which are of an administrative nature are “privative clause decisions”.
The decision of the MRT, which the applicant seeks to review in this case is such a “privative clause decision” as defined by section 474 of the Act.
However, the High Court has held that the provisions of section 474 do not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error of have been made in bad faith.
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the tribunal’s power.[2]
[2] See Craig v South Australia (1995) 184 CLR 163
Jurisdictional error is a complex concept. It does not entail a merits review or a re-hearing of the facts of the case concerned. In addition to the matters listed above, it can encompass a breach of procedural fairness or a denial of natural justice, including bias or the appearance of bias.
Pursuant to section 477 of the Act, any application to this court, in relation to a migration decision, must be made within 35 days of the date of that decision. In the case of the current matter, the application was filed a few days after the time prescribed.
Pursuant to section 477(2) of the Act, the court has a discretion to extend the applicable time frame, if it considers that it is necessary to do so “in the interests of the administration of justice”.
In order for an applicant to avail himself of such an extension, it is necessary for a written request to be made as to why it is in the interests of the administration of justice to make an order extending time. In the current case, the applicant has provided the following explanation:
1.I have visited a lawyer to lodge the Judicial review Application but he has delayed due non payment.
2.I have thought I could lodge the judicial Review application in 35 days.
3.And also Lack of Knowledge is the main factor which is beyond my control not lodging the Judicial review Application in time frame.
The hearing before the MRT
On 17 September 2013, the applicant was invited to respond to information received by the MRT, from the Adelaide College of Technology, that the College had provided him with four counselling warnings regarding his unsatisfactory attendance and sent him five letters, between early March and June 2012, regarding this issue.
The applicant indicated in reply that he had been working at an Indian restaurant in Adelaide, which provided him with on the job training complementary to his course. He asserted that he had undertaken this employment with the approval of the College. He later complained that the College had reneged on its agreement with him regarding his pursuit of this work experience and its approval of it.
The power granted pursuant to section 116 of the Act is a discretionary one. The MRT noted that neither the Act nor the applicable Regulations specified any matters relevant to the exercise of this discretion.
In these circumstances, the Tribunal considered that departmental policy, in respect of factors relevant to the cancellation of visas, was germane to its inquiry. Accordingly, it asked the applicant to comment in respect of these various policy matters, by way of a letter dated 4 December 2013. The applicant responded to this invitation on 3 January 2014.
The applicant appeared in person before the Tribunal and was allowed to give evidence before it. I have however not been provided with a transcript of these proceedings.
The findings of the MRT
The Tribunal found that the education provider concerned had certified that the applicant had not achieved satisfactory course attendance. Accordingly, it found that, as a matter of fact, he had not complied with condition 8202(3).
Thereafter, in my view correctly, the Tribunal considered whether there were any salient factors, which should cause it to exercise its discretion to cancel the visa in question, in the applicant’s favour.
In considering this discretion, the Tribunal considered the following departmental policy matters:
·the purpose of the visa holder’s stay in Australia;
·the reason for and extent of the breach;
·hardship to the visa holder;
·circumstances in which the ground for cancellation had arisen;
·the visa holder’s past and present behaviour towards the Department;
·Australia’s obligations under any relevant international agreement;
·whether the cancellation of the visa would lead to removal in breach of Australia’s non- refoulement obligations.
The Tribunal found that the applicant had been repeatedly warned about his unsatisfactory attendance by the college, which was evidenced by letters written to him in March and May 2012, as well as four recorded counselling warnings.
It rejected the applicant’s claim that he had been told by the College that it would not be a problem for him to pursue his practical training at the restaurant, where he was employed. In this context, it rejected his evidence that the College had raised no objection in this regard.
In my view, these are all findings of fact, which fall within the sole domain of the decision maker concerned. As such, they are not errors of jurisdiction.
The Tribunal did not consider that the applicant had breached his visa for reasons beyond his control or that there were extenuating or compassionate circumstances surrounding the breach. It did however accept that there would be some hardship, if the visa was cancelled, given the monies invested in his studies so far.
In addition, the MRT accepted that the applicant’s behaviour towards the Department had always been satisfactory. It noted that there was no suggestion that Australia would breach its obligations under any international agreement if the visa was cancelled. Further, it is noted that, if the visa was cancelled and the applicant removed from Australia, there would be no breach of Australia’s non-refoulement obligations.
The main thrust of the applicant’s submissions to the MRT was that he had become a well-respected chef at the restaurant where he had been working 20 hours per week during the period when he was pursuing his vocational studies at the Adelaide College of Technology. In these circumstances, he sought to avoid the cancellation of his visa and it would damage his career, both in Australia and in his home country of India.
The Tribunal specifically considered the applicant’s personal circumstances and determined that the gravity of the breach, particularly the number of warnings, outweighed the applicant’s personal circumstances. It found as follows:
The Tribunal has considered the totality of the applicant’s circumstances and finds that the applicant had breached condition 8202 of his visa and it finds that the matter raised by the applicant are outweighed by the extent of the breach and the circumstances in which the ground for the cancellation arose which indicate that the applicant was repeatedly warned about his unsatisfactory attendance. The tribunal finds the breach to be significant, as maintaining satisfactory attendance is an integral part of a student visa. In considering the exercise of its discretion the Tribunal has considered the applicant’s claim that he is now a respectable chef in a restaurant and that he has successfully pursued Recognition of Prior Learning Certificate however it considers that this is outweighed by the circumstances and extent of the breach.[3]
[3] See Court Book at page 64[24]
The grounds of Appeal
I do not consider that any of the grounds of appeal support the intervention of this Court on the basis of jurisdictional error.
The MRT was the sole fact finder in this case. It is not the function of this court to interfere with its factual conclusions. Rather, the relevant questions for the court turn on the Tribunal’s processes, not its actual decision.[4]
[4] See SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [160]
In this context, the MRT considered all the circumstances put forward by the applicant, including the fact that he had done well in his employment. There was no legal requirement that the MRT consider any exceptional circumstances pertaining to the applicant.[5]
[5] See section116(3) of the Act
The hearing before me is not a merits review. Rather it is a judicial review. I must be careful not to confuse the two. It is the function of this court to determine whether the decision of the Tribunal was within its legal powers.
It is not the function to examine the merits of the decision.[6] Accordingly this hearing is not a rehearing of all the available evidence. Rather the hearing is directed towards the legality of the Tribunal’s decision.
[6] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
It was the role of the Tribunal to determine, on the evidence available to it, whether the applicant had breached the applicable conditions of the visa which he held. It gave the applicant the opportunity to give evidence in respect of the material adverse to him regarding the warnings provided to him by the College arising from his unsatisfactory attendance.
Further, the applicant was given the opportunity to comment in respect of matters which the Tribunal considered were relevant to how it considered the matter, namely matters of departmental policy. In these circumstances, I consider that the hearing process was fair, so far as the applicant was concerned.
Significantly, the applicant has not been able to indicate any specific matter which the Tribunal failed to consider or any extraneous issue which it took into account. As such, in my opinion, the decision reached by the Tribunal was one which was within its jurisdiction.
I appreciate that the applicant disagrees with the decision. It is his position that the Tribunal should have considered his own personal circumstances more sympathetically, particularly the fact that, on his own account, he had done well at the employment which he secured outside of the College.
The applicant was however given the opportunity to put this contention to the Tribunal, which considered it. However the Tribunal was of the view that “maintaining satisfactory attendance is an integral part of a student visa”.[7] In reaching this conclusion the Tribunal also accepted that the applicant had been repeatedly warned about his unsatisfactory attendance.
[7] See Case Book at page 64 [24]
As a consequence, as it was entitled to do, the Tribunal considered the applicant’s breach of visa conditions to be significant and to outweigh his claim that “he is now a respectable chef in a restaurant…” Again these finding of fact are matters for the deliberation of the Tribunal. They are not matters of legal jurisdiction. They fall within the jurisdiction of the Tribunal and are matters for it sole determination.
In Collector of Customs v Pozzolanic Enterprises Pty Ltd and Pressure Tankers Pty Ltd,[8] the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal, restricted to a question of law, from a fact finding and decision making tribunal as follows:
“… the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”
[8] Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280
The emphasis in judicial review cases is on what is a fair hearing not on what is a fair outcome, particularly not what is fair in the perception of the person affected by the decision in question. As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs:
“It is, therefore, not to the point to ask whether the Tribunal’s factual conclusions were right. The relevant question is about the Tribunal’s processes, not its actual decision.”
In my assessment, the processes of the Tribunal in the current case were fair. The applicant was given an adequate opportunity to make comment on matters which were relevant to the conditions attaching to his visa, as well as to put matters which were germane to his own personal circumstances.
In all these circumstances, I am satisfied that the applicant has not been able to demonstrate any jurisdictional error in the exercise of the discretion arising under section 116 of the Act. In my view, there was ample evidence available to the MRT to find that the applicant had not complied with a salient condition of the visa held by him and therefore to confirm the decision of the delegate to cancel the visa in question.
Extension of time application
In SZMFJ v Minister for Immigration & Anor[10] Nicholls FM (as he then was) considered that the following considerations were relevant to the second limb arising from s.477(2):
·the extent of the delay and the reason for the delay;
·the merits of the substantive application itself;
·any prejudice which would be created to the respondent, if the application was granted;
·the impact on the applicant;
·the interests of the public at large;
·the Court’s discretion itself.
[10] SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [9]
The delay in this case is short. However, in my view, the lack of merit of the substantive application itself militates against there being any extension of time.
Even if the application of extension of time was granted, there is no prospect that the application would be successful, as there is no discernable legal error in the relevant decision.
For all these reasons, the application should be dismissed and the applicant should pay the first respondent’s costs fixed in the sum of $6,646.00.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 26 June 2014
[9] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160
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