Bhusal v Minister for Immigration
[2019] FCCA 432
•4 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
BHUSAL & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 432
Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister to cancel a Student visa under s.116 of the Migration Act 1958 (Cth) for non-compliance with Condition 8202 – common ground that the applicant had not complied with Condition 8202 – Tribunal alleged to have ignored or otherwise refused to consider relevant material – Tribunal did not ignore or fail to consider relevant material - in any event even if there had been a factual error by the Tribunal which there was not such did not constitute jurisdictional error because not “fundamental” or “important” or “overwhelming” – no jurisdictional error established – application for judicial review dismissed.
Legislation:
Migration Act 1958 (Cth), ss.116, 140
Migration Regulations 1994 (Cth)
Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Minister for Immigration and Citizenship v MZYZA [2013] FCA 572
Minister for Immigration v SZGUR (2011) 241 CLR 594
NABE v Minister for Immigration (No.2) (2004) 144 FCR 1
First Applicant: SHANKAR BHUSAL
Second Applicant: SARASWATI PANTHA BHUSAL
Third Applicant: SASHANK BHUSAL
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 2246 of 2017
Judgment of: Judge Dowdy
Hearing date: 15 March 2018
Delivered at: Sydney
Delivered on: 4 March 2019 REPRESENTATION
Counsel for the Applicant: Mr M. Newman
Solicitors for the Applicant: Newman & Associates
Counsel for the First Respondent: Ms B. Rayment
Solicitors for the First Respondent: Sparke Helmore THE ORDERS OF THE COURT ARE AS FOLLOWS:
(1)The Applicant is to pay any costs thrown away by the filing of the Amended Application.
(2)The Amended Application filed in Court on 12 March 2018 is dismissed.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEYSYG 2246 of 2017
SHANKAR BHUSAL First Applicant
SARASWATI PANTHA BHUSAL
Second Applicant
SASHANK BHUSAL
Third Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
REASONS FOR JUDGMENT
Introduction
1.The First Applicant in this proceeding is a male citizen of Nepal aged 31 years, having been born on 3 September 1987.
2.The Second Applicant in this proceeding is a female citizen of Nepal aged 30 years, having been born on 1 March 1989 and is the wife of the First Applicant.
3.The Third Applicant in this proceeding is a male citizen of Nepal aged 5 years, having been born on 26 September 2013 and is the son of the First and Second Applicant (collectively the Applicants).
4.By Amended Application filed in Court on 12 March 2018 the Applicants seek to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 13 June 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 30 August 2016 cancelling the First Applicant’s Student (Temporary) Higher Education Sector (Class TU) (Subclass 573) visa (present Student visa).
Background
5.The present Student visa was granted to the First Applicant as primary applicant on 7 May 2013 ending on 30 September 2016. It was subject to Condition 8202 of Sch.8 to the Migration Regulations 1994 (Cth) and by force of Condition 8202(2)(a) required him to be enrolled in a registered course of study.
6.The Second Applicant was a secondary applicant as a member of the First Applicant’s family unit and after his birth on 26 September 2013 the Third Applicant became a Student visa holder dependent on his father’s present Student visa.
7.The First Applicant had held a previous Student visa and his education history in Australia is as described in the Provider Registration and International Student Management System records, as follows:
Bhusal, Shankar (03/09/1987)
| Advanced Diploma of Hospitality Management | 10/04/2011 | Cancelled 18/10/2010 | |
| IELTS Preparation Course (Intermediate - Advanced) - 17/02/2011: Variation reason: Non-commencement of studies | 18/03/2011 | Cancelled 21/02/2011 | |
| IELTS Preparation Course (Intermediate - Advanced) | 20/05/2011 | Finished 25/04/2011 | |
| Certificate III in Business - 17/02/2011 - Variation Reason: Deferment/Suspension - Compassionate or compelling circumstances | 29/04/2011 | 28/09/2011 | Cancelled |
| Certificate III in Business | 24/06/2011 | 23/11/2011 | Finished |
| Certificate IV in Business - 17/02/2011 - Variation Reason: Deferment/Suspension - Compassionate or compelling circumstances | 14/11/2011 | 09/05/2012 | Cancelled |
| Certificate IV in Business | 23/01/2012 | 18/07/2012 | Finished |
| Diploma of Management - 17/02/2011 - Variation Reason: Deferment/Suspension - Compassionate or compelling circumstances | 02/07/2012 | 20/02/2013 | Cancelled |
| Diploma of Management - Variation Reason: Deferment/Suspension - Compassionate or compelling circumstances | 17/09/2012 | 24/04/2013 | Finished |
| Intensive English Language Course (Beginner - Advanced) - 22/05/2013 - Variation reason: Non-commencement of studies | 31/05/2013 | Cancelled 20/05/2013 | |
| Intensive English Language Course (Beginner - Advanced) | 07/06/2013 | Finished 27/05/2013 | |
| Bachelor of Business - 21/07/2013 - Variation reason: Non-commencement of studies | 15/07/2013 | 31/07/2016 | Cancelled |
| Bachelor of Professional Accounting - 26/08/2014 – Variation reason: Change to a course in the same sector, gap created either at start or end of course OR the study period of the new CoE is shorter than the original | 15/07/2013 | 31/07/2016 | Cancelled |
| Bachelor of Business - 27/04/2015 – Variation reason: Student Notifies Cessation of Studies | 25/08/2014 | 31/07/2016 | Cancelled |
8.It appears to be common ground between the parties and in any event I find on the evidence before me that the First Applicant has not been enrolled in a registered course of study since 27 April 2015 and that therefore from that date he was in breach of and in non-compliance with Condition 8202, and that accordingly the Minister was empowered under s.116(1)(b) of the Migration Act 1958 (Cth) (the Act) to cancel the Student visa.
9.By Notice of Intention to Consider Cancellation (NOICC) dated 1 August 2016 the Department of the Minister advised the First Applicant that he appeared to be in breach of Condition 8202 and extended an opportunity for him to comment on the grounds identified in the NOICC and to give reasons why his present Student visa should not be cancelled.
10.By email response of 5 August 2016, the First Applicant advised the Department of the Minister in substance as follows:
a)he claimed to be “totally unaware” about Condition 8202;
b)he had been enrolled at Holmes College for a Bachelor of Business degree, but it was hard for him to finish this course because his wife was pregnant and then delivered a baby boy;
c)he would like “one chance please”; and
d)he wanted to give his child a better education and better future in Australia.
Decision of Delegate
11.In her Decision Record the Delegate found that the First Applicant had not been enrolled in a registered full-time course of study since 27 April 2015 and therefore did not meet the requirements of Condition 8202(2)(a). Accordingly, the Delegate found that there was a ground for cancellation of the present Student visa.
12.The Delegate then went on in her Decision Record to consider and assess the factors relevant to the decision of whether to cancel the present Student visa or not.
13.Having considered the information before her, the Delegate was satisfied that the grounds for cancelling the present Student visa outweighed the grounds for not cancelling it. Accordingly, she cancelled the present Student visa under s.116(1)(b) of the Act. This cancellation resulted in the automatic consequential cancellation of the secondary Student visas of the Second and Third Applicants under s.140 of the Act.
Tribunal Decision
14.The Applicants applied for merits review of the Delegate’s decision with the Tribunal on 7 September 2016 and gave a copy of the Decision Record of the Delegate to the Tribunal. The Applicants appeared before the Tribunal on 7 June 2017 to give evidence and present arguments.
15.At [1] – [5] of its Decision Record the Tribunal summarised the application for review and noted correctly that as the Student visas of the Second and Third Applicants had been cancelled by force of s.140(1) of the Act and no decision had been involved in their cancellation, the Tribunal had no jurisdiction with respect to the Second and Third Applicants.
16.In short the Tribunal then:
a)found that the First Applicant had not been enrolled in a registered course of study since 27 April 2015 (a period of almost 2 years and 2 months);
b)proceeded to consider the factors which it considered relevant to its consideration of the discretion to cancel the present Student visa;
c)found that the First Applicant had decided to abandon his studies and pursue sponsorship for a Subclass 457 visa to accept a job offer to work in a restaurant;
d)recorded at [14] of its Decision Record that it had regard to the matters raised by the First Applicant as to why the visa should not be cancelled and Government policy guidelines in Procedures Advice Manual PAM3 of the Department of the Minister;
e)did not accept that the First Applicant would be in a financial position to resume studying in Australia if his present Student visa were reinstated, having regard to his evidence that his bank account had been cancelled because he could not pay the minimum bill on his credit card and his admitted need to access funds from Nepal or elsewhere to enable him to recommence studies;
f)found that in such circumstances there appeared to be little point in setting aside the cancellation of the present Student visa;
g)having considered the evidence found that the factors weighing in favour of not cancelling the present Student visa were significantly outweighed by factors in favour of cancellation; and
h)affirmed the decision of the Delegate to cancel the present Student visa.
Grounds of Attack on Tribunal Decision in this Court
17.At the hearing in this Court Mr Newman appeared for the Applicants and Ms Rayment appeared for the Minister. I granted leave to Mr Newman to file in Court an Amended Application, which contained the following Ground:
1. The Tribunal erred in law and in its jurisdiction when in discharging its mandatory duty [to] exercise its discretion not to cancel, it ignored or otherwise refused to consider relevant material contrary to the strictures of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30.
Consideration
18.Mr Newman at the outset frankly and fairly conceded that the First Applicant’s student history in Australia indicated that he was “not a good student – we know that. Hopeless.”.
19.Nevertheless, he submitted that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal did not consider or make findings in connection with two claims, namely:
a)the Applicant’s claim recorded at [17] of the Decision Record that the First Applicant had “spent $70,000 - $80,000 on his studies” in Australia; and
b)the birth of the Third Applicant in Australia and the financial and emotional circumstances relating to the birth.
20.It is of course a well-established principle that an administrative decision-maker such as the Tribunal is required to deal with the case raised by the material or evidence before it, and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.
21.However, it is also apt to remember that the decision of an administrative decision-maker such as the Tribunal must be read fairly and as a whole, without a fine-tooth comb seeking to identify error. Further, an inference that such a body has failed to consider an issue is not always to be drawn from its failure to expressly deal with that issue in its Decision Record. As the Full Court of the Federal Court of Australia comprised of French J (as his Honour then was), Sackville and Hely JJ stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 – 605 [46] – [47]:
[46]…The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47]The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
(emphasis added)
22.More recently the Full Court of the Federal Court of Australia comprised of Griffiths, White and Bromwich JJ in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 relevantly stated at [45] as follows:
[45] Subsequent cases have endorsed the principle that when a decision-maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed at that claim or criteria (Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ; SZVVR v Minister for Immigration and Border Protection (2016) 71 AAR 11 at [24]-[26] per Collier J; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2017) 344 ALR 511 (Telstra v ACCC) at [62] and [71] per Foster J; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (Khadgi) at [57] per Stone, Foster and Nicholas JJ; AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]-[11] per Bromberg J). This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).
Alleged Expenditure on Studies of between $70,000 - $80,000
23.This claim appears to have been first made at the hearing before the Tribunal because it was not made in the First Applicant’s email of 5 August 2016 (see [10] above) and not reflected in the Decision Record of the Delegate.
24.The relevant reference in the Decision Record of the Tribunal to this claim is at [17]. Paragraph [17] appears directly under the heading “The degree of hardship that may be caused (financial, psychological, emotional or other hardship)”. There is no further express reference to expenditure of $70,000 - $80,000 on study, but at [14] the Tribunal had already foreshadowed that it “had regard to matters raised by the Applicant as to why the visa should not be cancelled”. The Applicants have failed to establish any basis for not taking this statement of the Tribunal at face value as including a reference to the First Applicant’s claim about his expenditure on studies in Australia.
25.Then at [32] of its Decision Record the Tribunal again recorded that it had considered the evidence before it and found as follows:
[32] Having considered the evidence, the Tribunal finds that the factors weighing in favour of not cancelling the applicant's visa are significantly outweighed by the circumstances in which the ground for cancellation arose. Significantly, the Tribunal has not accepted the applicant's explanation as to how the ground of cancellation arose. The Tribunal also has not accepted that the applicant would be in a financial position to resume studying if his visa were reinstated. As the purpose of a student visa is to study, there appears to be little point in setting aside the cancellation of the applicant's visa in those circumstances. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
26.In my view the Applicants have failed to establish that the Tribunal overlooked the First Applicant’s claim that he had spent $70,000 - $80,000 on his education in Australia, or that the Tribunal failed to deal with that claim which was expressly recognised at [17] of the Decision Record.
27.At [14] and [32] of its Decision Record the Tribunal records that it has considered and had regard to the matters raised by the Applicant as to why the present Student visa should not be cancelled. I note that even when a matter is not mentioned in a decision record of a Tribunal, such does not mean necessarily that it was not considered: Minister for Immigration v SZGUR (2011) 241 CLR 594 at 605 – 606 [31] – [32] per French CJ and Kiefel J, with Hayden and Crennan JJ agreeing.
28.Further, the fact that historically the First Applicant claimed to have spent substantial funds on his education (with very limited results) in Australia did not constitute material which could be regarded as so “fundamental”, “important” or “overwhelming”, such that a failure to have regard to them by the Tribunal would constitute jurisdictional error: see Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [60] per Tracey J. They were not of pivotal or fundamental importance to the Applicant’s claims. Further, there was not a scintilla of probative evidence or corroboration presented by the Applicants in support of this claim made for the first time at the Tribunal hearing.
29.Rather, the Tribunal was legally entitled to have regard to the fundamental failure of the First Applicant to have meaningfully enrolled in any course of study for a period of almost 2 years and 2 months from 27 April 2015 up to the Tribunal hearing date of 7 June 2017. Further, the Tribunal was legally entitled to place importance on the following other factors, that is to say:
a)his failure to provide to the Tribunal any meaningful corroboration of his claim that he had paid the sum of $2,800 to his migration agent, but the agent did not pay that money to the Holmes Institute: see [17] – [19] of the Decision Record;
b)the Applicant’s stated financial difficulties after the birth of the Third Applicant: see [10(b)] and [16(e) - (f)] above; and
c)lack of any meaningful evidence that the First Applicant would have sufficient financial resources available to presently resume and continue his studies in Australia, in which circumstances any previous expenditure by the Applicant, even if established, would have been of little moment. The Tribunal was entitled to be focused on possible present and future studies, rather than historical expenditure on past studies.
Birth of the Third Applicant in Australia
30.The Tribunal in its Decision Record referred to the Third Applicant at [17], [20], [21], [27] and [29]. The birth of the Third Applicant was expressly referred to at [20] and [21], and at [28] the Tribunal stated as follows with respect to the position of the Third Applicant:
[28]The Tribunal put to the applicant that his child (the third named applicant) was in Australia on a temporary visa, and would at some point be required to return to Nepal. The third named applicant would not be separated from his parents, as the visas of the applicant and the second named applicant were also cancelled. They would be able to return to Nepal as a family unit.
31.In my view, the Tribunal considered and had regard to the position of the Third Applicant as a factor in considering whether or not it ought to exercise its discretion to affirm the decision of the Delegate to cancel the present Student visa.
Conclusion
32.In my view, the Applicants have failed to establish that the decision of the Tribunal was affected by jurisdictional error and the Amended Application is to be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 4 March 2019
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