BISHWOKARMA v Minister for Immigration & Border Protection

[2015] FCCA 720

FEDERAL CIRCUIT COURT OF AUSTRALIA

BISHWOKARMA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 720

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal properly exercised its discretion to cancel the applicant’s visa upon finding that condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) was not met – whether the Migration Review Tribunal properly considered whether prescribed circumstances existed affecting the applicant’s compliance with reg.2.43 of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 120, 474
Migration Regulations 1994 (Cth) regs.2.01, 2.43, Schedule 8

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: POOJA SINGH BISHWOKARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 416 of 2014

Judgment of: Judge Emmett

Hearing date: 18 March 2015

Date of Last Submission: 18 March 2015

Delivered at: Sydney

Delivered on: 18 March 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Nepali interpreter.

Solicitors for the Respondents: (DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 416 of 2014

POOJA SINGH BISHWOKARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 30 January 2015 and handed down on 31 January 2015 (“the MRT”).

2. The background, the legislative framework and the decision of the MRT are accurately summarised in the submissions of the first respondent as follows:

   “The applicant is a female citizen of Nepal who was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on 30 November 2012, which was subject to condition 8202.

   On 12 June 2013 the applicant was issued with a Notice of Intention to Consider Cancellation of her visa on the basis that she was not enrolled in a registered course and had not been since 11 March 2013.

   The applicant came to Australia to do a Bachelor of Nursing at UWS, however before doing so she needed to undertake a short English course which she completed in February 2013. The applicant was told that her English was not good enough to start the Bachelor of Nursing and she was advised that she should undertake a further short English course. Instead the applicant alleges she decided to undertake a management course, and engaged an education agent to assist her to enrol in one. However the applicant did not enrol in a management course and has not undertaken any further study since her English course in February 2013.

   Section 116(1)(b) of the Act gives the Minister the power to cancel a visa where the visa holder has not complied with a condition of the visa. Pursuant to section 116(2), the visa is not to be cancelled where prescribed circumstances exist, and pursuant to section 116(3) the visa must be cancelled where prescribed circumstances exist.

   1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (b) its holder has not complied with a condition of the visa; or

   …

   (2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

   Regulation 2.43 of the Migration Regulations 1994 (Cth) (the Regulations) sets out the prescribed circumstances for the purposes of section 116(3). In the present case the MRT had a discretion to cancel the applicant's visa, and was not required to cancel the visa in the circumstances previously prescribed by regulation 2.43(2)(b)(ii).

   Pursuant to schedule 6 of the Migration Legislation Amendment Regulation 2013 (No 1) (and clause 1303 of schedule 13 of the Regulations) the repeal of subparagraph 2.43(2)(b)(ii) does not apply in relation to a person who:

   (a) holds a student visa; and

   (b) was sent:

   (i) a notice of proposed cancellation of the visa under section 119 of the Act for non-compliance with visa condition 8202 before 13 April 2013; or

   (ii) a notice under section 20 of the Education Services for Overseas Students Act 2000 for non-compliance with visa condition 8202 in relation to the visa.

   Given that the notice in the present case was served on 12 June 2013, the MRT was correct in the present case to proceed on the basis that the repealed regulation 2.43(2)(b)(ii) did not apply.

   The delegate made a decision to cancel the applicant's Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on 9 July 2013. 

   The applicant applied to the MRT for review of the delegate's decision on 26 July 2013.  The applicant attended a hearing before the MRT on 23 January 2014 in which she gave oral evidence.

   The MRT made a decision to affirm the decision of the delegate on 30 January 2014. 

   The MRT found that the applicant was not enrolled in a registered course in the period 11 March 2013 to 9 July 2013 and accordingly the applicant had not complied with condition 8202(2).

   The MRT accepted that initially the applicant's failure to be enrolled was as a result of her poor English result, however it found that this was not the only reason.

   The MRT found that the applicant was not fulfilling the purpose of her stay in Australia and that she made no effort to pursue her studies since the delegate's decision.

   The MRT considered various factors in relation to its discretion to cancel the visa.  The MRT accepted the applicant's evidence that there would be no hardship caused to the applicant or her family and that no other person would be affected by the cancellation.

   The decision of the MRT in the present case is a privative clause decision as defined by section 474(2) of the Act. Section 474 validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error.”

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Nepali interpreter.

2. On 7 March 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

4. The applicant confirmed that she wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, as well as submissions in support.

5. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

6. At the commencement of today’s hearing, the applicant confirmed that she has not filed any amended application, evidence or submissions in support of her application and that she has no further documents to present to the Court this morning in support of her application.

7. The applicant confirmed that she relied on the grounds contained in her originating application filed on 24 February 2014 as follows:

   “1. MRT and Department and Border Protection failed to consider my financial difficulties and poor personal health during the study period.

   2. DIBP and MRT failed to provide me the opportunity to commence any registered course in Australia. I would like to commence a registered course in Australia but DIBP and MRT both denied my intention to commence a registered course in Australia.

   3. The decision taken by MRT on 31 January is reviewable by this honourable Court.”

8. Each of those grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of her application generally.

9. I explained to the applicant that the role of this Court was confined to the issue of whether or not the decision of the MRT is affected by a mistake that goes to its jurisdiction and that disagreement with the findings of the MRT rarely, by itself, establishes such a mistake.

10. Ground 1 asserts that the MRT and the Department failed to consider her financial difficulties and poor personal health during her study period. The applicant had nothing further to say in support of that ground in oral submissions before the Court.

11. On 20 November 2012, the applicant was granted a 573 visa, subject to condition 8202 that, inter alia, required her to be enrolled in a registered course. It came to the attention of the Department that the applicant had not continued to be enrolled in a course.

12. On 12 June 2013, the MRT sent the applicant a letter pursuant to s.116 of the Act, being a notice of intention to consider cancellation of her student visa. The letter identified as the reason for that intention the applicant’s failure to be enrolled in a registered course.

13. Thereafter, the applicant entered into various correspondence with the Department, culminating in a cancellation of the applicant’s visa on 9 July 2013, pursuant to s.116(1)(b) of the Act.

14. Under s.116(1)(b) of the Act, upon being satisfied that the applicant has breached a condition of her visa, the MRT may exercise its discretion to cancel the applicant’s visa.

15. The applicant gave evidence to the MRT that she was not presently enrolled in a course, and was not enrolled during the period identified in the notice of intention to cancel the visa, being from 11 March 2013 to 9 July 2013. Based on that evidence, the MRT found that the applicant had not complied with condition 8202 of her visa. The applicant does not contend that that finding by the MRT is open to error, and, certainly, none is apparent on the face of the MRT’s findings.

16. In considering whether or not to exercise its discretion to cancel the applicant’s visa, the MRT noted that there were no matters specified in the Act or Regulations that were required to be considered. However, the MRT did have regard to the government policy guidelines contained in the Department’s Procedures Advice Manual.

17. The MRT noted that the applicant had said that she was mentally upset after her student visa was cancelled and that she did not have any support here in Australia. However, there is no other evidence before this Court to suggest that there was evidence before the MRT of any further poor personal health affecting the applicant.

18. The MRT did consider whether the applicant was subject to hardship by reason of being alone in Australia and not having any support. However, the MRT noted that the applicant had been able to secure and maintain employment in Australia, which it found indicated a degree of independence and competence. The MRT also noted that the applicant had used the services of an “education agent”.

19. In relation to the applicant’s assertion in Ground 1 that the MRT had not considered her financial difficulties, the MRT noted the applicant’s evidence that she is from a middleclass family in Nepal who were able to provide her with financial support. The MRT found that, in the circumstances, the applicant would not suffer hardship for that reason.

20. The MRT found there were no other extenuating or compassionate circumstances for it to consider.

21. The MRT expressed concern that since March 2013, the applicant had not been pursuing studies in Australia and, on her own evidence, had made no effort to pursue study in Australia since the Delegate’s decision on 9 July 2013.

22. The MRT found that the applicant was not a person committed to pursuing studies in Australia, and found that no hardship would be caused to the applicant or her family by the cancellation of her visa. Accordingly, the MRT affirmed the decision under review.

23. In the circumstances, the MRT did consider the applicant’s mental state to the extent that the applicant made such an assertion, and also considered her financial circumstances. However, ultimately, the MRT was not persuaded that these factors were sufficient to cause it to exercise its discretion in favour of the applicant. Those findings were open to the MRT on the evidence and material before it and for the reasons it gave.

24. Accordingly, Ground 1 is not made out.

25. Ground 2 asserts that the Department and MRT failed to provide her the opportunity to commence a registered course in Australia and that she would like to do so. Such an assertion does not identify any error on the part of the MRT capable of review by this Court. The MRT had a discretion to cancel the applicant’s visa, having found that she had breached condition 8202. As stated above, the MRT’s finding that the applicant had breached condition 8202 because she was not enrolled in a registered course between 11 March 2013 and 12 June 2013 (when she was issued with a notice of intention to consider cancellation of her visa) was based on the applicant’s own evidence.

26. The MRT considered the various factors put before it and raised by the applicant but was ultimately not persuaded by them. It is well established that the MRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J).

27. There is nothing to suggest that the MRT’s exercise of its discretion under s.116(1)(b) of the Act was in any way miscarried. The applicant’s complaints appear more to be a disagreement with the findings and conclusions of the MRT. Such complaints invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

28. Ground 3 asserts that the MRT’s decision is reviewable. Such an assertion does not disclose any error capable of review by this Court.

29. In the circumstances, a fair reading of the MRT’s decision record makes clear that the MRT understood the claims being made by the applicant, explored those claims with her at a hearing and had regard to all material provided in support. The MRT put to the applicant matters of concern it had about her evidence and noted her responses.

30. The MRT made findings based on the evidence and material before it, which were open to it for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law. The MRT complied with its obligations under the statutory regime in the making of its decision.

31. The MRT’s decision is not affected by a jurisdictional error, and is therefore a privative clause. Accordingly, pursuant to s.474 of the Act this court has no jurisdiction to interfere.

32. The proceeding before this court should be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 30 March 2015