BASYAL v Minister for Immigration and Anor

[2020] FCCA 1861

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASYAL v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1861

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – whether the Tribunal did not consider the applicant’s claims regarding compelling and exceptional circumstances – whether the Tribunal denied the applicant procedural fairness and natural justice – whether the Tribunal committed jurisdictional error – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 357, pt.5

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Applicant: BIPIN BASYAL

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURA AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1882 of 2019

Judgment of: Judge Humphreys

Hearing date: 8 July 2020

Date of Last Submission: 8 July 2020

Delivered at: Parramatta

Delivered on: 8 July 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr Gardner, Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1882 of 2019

BIPIN BASYAL

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a citizen of Nepal, born 4 July 1991. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa, on 5 February 2016. This visa was subject to condition 8202.

2. On 24 January 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his visa, as the delegate of the Minister for Immigration and Border Protection (“the delegate”) considered the applicant had not been enrolled in a registered course of study, since 3 March 2016 and was in breach of condition 8202.The applicant did not respond to the notice. On six February 2017, the applicant’s visa was cancelled.

3. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 19 June 2019, the Tribunal affirmed the delegate’s decision to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.

4. The applicant now seeks judicial review in this Court, of the Tribunal’s decision

The Administrative Appeals Tribunal’s Decision

1. Given the grounds of appeal that are set out below, it is not necessary to summarise the entirety of the Tribunal’s decision.

2. At paragraph 7 of its decision, the Tribunal noted that condition 8202 requires a visa holder to be enrolled in a registered course. In the applicant’s case, his visa was cancelled on the basis that he was not enrolled in a registered course. The applicant was provided with particulars that showed according to the Provider Registration and International Student Management System (“PRISMS”) records, that at the time of the delegate’s decision of 6 February 2017, he was not enrolled in a registered course of study and had not been so enrolled since 3 March 2016.

3. The Tribunal noted that since the applicant was granted the visa in February 2016, he had only completed 1 English Language Courses for Overseas Students (“ELICOS”) level course. The applicant had also only been actively involved in study for four months, since the date of the grant of the visa. Other adverse information regarding the applicant’s study record was put to him. The applicant was invited to either respond orally at the hearing, or in writing at a later date. The applicant elected to respond in writing to the Tribunal and did so on 14 June 2019. On the basis of the material before it, the Tribunal concluded that the applicant was liable to have his visa cancelled, as the applicant had not complied with condition 8202.

4. Paragraphs 27 through to 63 of the Tribunal’s decision deal with the discretionary matters that the Tribunal was required to consider, in regard to the circumstances of the case, including matters raised by the applicant and matters in the Department’s Procedures Advice Manual (PAM3) – ‘General Visa Cancellation Powers’. The discussion of these matters by the Tribunal is both lengthy and detailed. The Tribunal noted the only education course the applicant has successfully completed, whilst a student in Australia, was a Beginner to Advanced General English course which ended in 2015.

5. At paragraph 29 of its decision, the Tribunal was not convinced that the applicant came to Australia solely for the purpose of study and was not satisfied that the cancellation of the visa would impact negatively on any further study. At paragraph 31 onwards of its decision, the Tribunal considered the degree of hardship that would be caused to the applicant and his family, should his student visa be cancelled. The Tribunal noted that the applicant married for a second time to a Nepalese woman in March 2018. The applicant’s second wife is also in Australia on a student visa, studying childcare and has around three years remaining on her visa. The Tribunal accepted that the cancellation of the applicant’s visa would cause some hardship for both the applicant and his wife, on both an emotional and financial level. The applicant asserted that if he was forced to return to Nepal, his wife would remain here to complete her studies.

6. The Tribunal also noted claims by the applicant and he and his wife wish to start a family and the impact of his return to Nepal and that goal. At paragraph 37 of its decision, the Tribunal noted that the applicant claimed that if he returned to Nepal, he would be considered a failure by his family due to non-completion of study. The Tribunal was not satisfied that if the applicant were to return to Nepal, he would not be able to do well at in life and would lose his self-confidence.

7. At paragraph 40 of its decision, the Tribunal considered the financial impact of his return to Nepal, as regards the capacity of his wife to subsist in Australia, due to the loss of his income to the household. The Tribunal noted that the applicant would be able to transfer funds to his wife in Australia.

8. At paragraph 41 of its decision, the Tribunal considered civil unrest in Nepal but in the absence of any specific threats or warnings made against the applicant, it gave a general claim of fear little weight.

9. At paragraph 48 of its decision, the Tribunal considered the applicant’s written response of 14 June 2009, to the Tribunal’s letter, pursuant to

   
   

   s 359AA of the Migration Act 1958 (Cth) (“the Act”) and the applicant’s claims about the impact of the failure of his first marriage and the corrosive impact that had on his studies. The Tribunal noted that the applicant was ultimately divorced in 2016. This led to the applicant becoming alone, depressed and unable to focus on his studies. The applicant talked about the challenges he had with the relationship and that the problems existed with his then wife, being unable to come to Australia.

10. The Tribunal noted that paragraph 54 of its decision, that there was no independent supporting evidence before the Tribunal, that the applicant sought a deferral from his education providers, due to the challenges he claims he was facing, as a result of his marriage breakdown and the impact this had on his mental health.

11. The Tribunal noted the applicant’s claims that he was let down by his then migration agent, but noted that the responsibility for advising the Department of any changes rested solely with the applicant.

12. The Tribunal also noted the applicant’s claims that he was unable to be enrolled in any other courses due to the fact his visa had been cancelled, but did not accept that the challenges he faces, necessarily prevented him from successfully enrolling, starting and completing his courses.

13. The Tribunal ultimately concluded that it was not satisfied, on the discretionary criteria, that the applicant’s visa should not be cancelled and accordingly, confirmed the delegate’s decision.

Grounds of Appeal

1. The grounds relied upon by the applicant are set out in his initiating application filed 24 July 2019. They are as follows, verbatim:

   1.   The Second Respondent did not consider my claims regarding compelling and exceptional circumstances.

   2.   I was denied procedural fairness and natural justice

   3.   I was not given particulars of the adverse information.

The Applicant’s Submissions

1. The applicant appeared in Court unrepresented. The applicant was assisted by an interpreter. Despite Court orders, no written submissions were filed by the applicant, in support of the application. Prior to the hearing commencing, the Court ensured the applicant was in possession of a copy of the Court book and the first respondent’s written submissions. The Court ensured that the applicant had the opportunity to having those submissions interpreted to him, prior to the commencement of the hearing. The applicant was also provided with a pen and paper to make any notes if he wished to.

2. The applicant was advised that if the Court determined to deliver an oral decision, he could request a copy of written reasons through the Sydney Registry.

3. When asked if the applicant wished to make any oral submissions, he stated that he had nothing to put to the Court, other than what he had previously told the Tribunal and placed in writing. The applicant was again asked if he wished to make any oral submissions after the first respondent had addressed the Court. The applicant told the Court that he suffered a great deal of stress during his breakup with his first wife and this affected his studies. The applicant’s current wife was now pregnant. The applicant has been unable to support her due to a lack of work, as a result of the pandemic. The applicant said they were both stressed due to that and the prospect of him having to return to Nepal, while she finished her studies in Australia. The applicant was advised that these were matters that went to the merits of the decision to refuse him a visa and did not go to jurisdictional error in the decision.

The First Respondent’s Submissions

1. In relation to ground one, the first respondent submits that the ground is misconceived. No particulars have been provided as to the matters that were not considered, nor is there a set list of matters that must be considered. It was submitted that the Tribunal did undertake an ‘active intellectual process’ in the consideration it gave to the applicant’s claims and provided proper reasons for affirming the decision to cancel his visa (see Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248).

2. It was submitted that grounds two and three are bare assertions of a denial of procedural fairness and natural justice. The applicant was invited to attend a hearing, did so and gave evidence and presented arguments. The applicant was made aware of adverse information, pursuant to s 359AA of the Act. The applicant was provided with an opportunity to make written submissions, addressing these concerns. The Tribunal took those into account in making its decision. All procedural requirements mandated by the Act, were complied with. No jurisdictional error is apparent.

Consideration

1. This matter was initially set down for hearing on 14 April 2020. On 10 March 2020, the applicant’s lawyers withdrew from the matter, on the basis they have been instructed by the applicant to cease acting for him. The initial hearing date was vacated due to health restrictions associated with the current pandemic. Following the partial lifting of restrictions, an order was made on 24 June 2020 for the matter to be listed today, 8 July 2020.

2. In terms of the grounds of appeal relied upon by the applicant, ground one asserts that the Tribunal did not consider the applicant’s claims regarding compelling and exceptional circumstances. This ground cannot succeed on a factual basis. It is clear from a fair reading of the Tribunal’s decision, that it gave a detailed consideration to all the matters that were raised by the applicant, but was not satisfied that it should exercise its discretion not to cancel his visa.

3. The Tribunal gave consideration to the matters contained within PAM3, as well as the matters raised by the applicant both at the hearing and in his subsequent written response. The Court is satisfied that the Tribunal considered each matter raised by the applicant, that its findings were logical, rational and open to the Tribunal, based on the evidence that was before it. If anything, ground one is merely a complaint that the Tribunal did not arrive at a conclusion that the applicant is happy with and invites merits review by this Court. The role of the Court is to undertake judicial review not merits review (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54]).

4. Ground two alleges a denial of procedural fairness and natural justice. No particulars are provided as to how that denial has occurred. On the basis that it is a bare assertion without particulars, this of itself would be sufficient to find that the ground is not made out.

5. A perusal of the supporting documentation and the decision itself reveals of the Tribunal took the time, as required, to put adverse information to the applicant, that might be part of the reason for affirming the decision, as required under s 359AA of the Act. The applicant chose to respond in writing to the concerns that were raised. The Tribunal took the applicant’s response into account, prior to making its decision. The Court is unable to detect any breach of the procedural requirements contained in Part 5 of the Act, noting in particular that s 357A , dictates that Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule, in relation to the matters it deals with. No jurisdictional error is made out.

6. Ground three complains that the applicant was not given particulars of the adverse information. The decision record of the Tribunal indicates the number of significant matters that were raised with the applicant, during the course of the hearing. The Court has no reason to believe that the decision record, is not an accurate reflection of what took place, noting however, that a copy of the transcript of the hearing has not been placed in evidence before the Court.

7. The applicant’s response dated 14 June 2019, notes that he is writing a letter, as advised in his visa interview dated 31 May 2019, being the date of the hearing before the Tribunal. The letter appears to cover all of the matters that were raised during the course of the hearing, as adverse information. If the applicant was not advised of the matters of concern, it is difficult to understand why he would have written the letter, containing the information that it does. The Court does not accept the assertion that the applicant was not advised of the particulars of the matters of concern. The letter clearly indicates that the applicant was. No jurisdictional error is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 8 July 2020