BURHAN v Minister for Immigration

[2018] FCCA 301

FEDERAL CIRCUIT COURT OF AUSTRALIA

BURHAN v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 301

Catchwords:
MIGRATION – Student (subclass 573) higher education sector visa – condition 8202 – valid reason for Tribunal concluding that condition 8202(2)(a) was breached on 14 February 2016 – that conclusion was open – no basis for interfering – application for judicial review dismissed – invalid medical certificate – no particulars of ground of application – application dismissed.

Legislation
Migration Act 1958, s.116(1)(b)
Migration Regulations 1994, Sch.8, condition 8202(2)(a)

Cases cited
Craig v State of South Australia (1995) 184 CLR 163
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: BURHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: PEG 512 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 7 February 2018

Date of last submission: 7 February 2018

Delivered at: Perth

Delivered on: 7 February 2018

REPRESENTATION

Applicant in person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The proceeding before this court commenced by way of application filed on 20 September 2017 is dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA AT PERTH

PEG 512 of 2017

BURHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed 20 September 2017, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 23 August 2017. The Tribunal affirmed a decision made on 8 August 2016 by a delegate of the Minister to cancel the applicant’s student (subclass 573) higher education sector visa. 

2. In essence, the Tribunal took the view that the applicant did not satisfy condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994. That condition required the applicant to be enrolled in a registered course. The Tribunal accepted evidence to the effect that the applicant had not been enrolled in a registered course of study since his completion of a diploma of business on 14 February 2016.

   
   

   The Tribunal also took the view that the applicant’s completion of a certificate IV in spoken and written English on 17 October 2016 was not a registered course. By reason of the fact that the applicant ceased to be enrolled in a registered course from 14 February 2016, the Tribunal found the applicant to have breached condition 8202(2)(a) and that a ground for cancellation of his visa under s.116(1)(b) of the Migration Act 1958 existed. In the exercise of its discretion, applying the guidelines in PAM3,[1] the Tribunal concluded that the visa should be cancelled. 

   [1] Procedures advice manual.

3. The applicant relied on a single ground of review in his application to this court. It was as follows:

   The assessment was unfair because neither DIBP nor AAT looked at the evidence provided in a compassionate view and complete analysis was not done.[2]

   (errors in the original)

   [2] Application filed on 20 September 2017 at p.3.

Synopsis

1. For the reasons that follow, in my judgment this application for judicial review should be dismissed. The applicant must pay the Minister’s costs. 

Relevant factual setting

1. On 5 July 2016 the department served on the applicant a notice of intention to consider cancellation of the applicant’s visa on the basis he did not comply with condition 8202(2)(a) of the regulations as he had ceased to be enrolled in a registered course. The applicant responded to the notice served on 5 July 2016 by providing information to the department on 19 July 2016. In it he asserted –

   a)his father’s illness, originally diagnosed in 2013, was deteriorating, causing the applicant emotional stress and anxiety;

   b)he found it too difficult to cope with a master of public health course so he enrolled in a diploma course in February 2015 that he completed in February 2016;

   c)he said no basis existed for the cancellation of the visa;

   d)he did not know he was in breach of the visa condition by reason of his severe mental issues;

   e)circumstances that resulted in a breach of his visa condition were out of his control;

   f)he had trouble with his girlfriend;

   g)if the visa was cancelled, he would probably go into distress; and

   h)if the visa was cancelled, he had wasted the financial investment and his professional career would be at stake. 

2. The applicant relied on two medical certificates. The Tribunal considered, properly in my view, that they did not provide a basis for the applicant’s unfitness to study. Pausing briefly in the narrative, it is useful to point out the observations of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs[3] in relation to the sufficiency of medical certificates. In that case, his Honour held that the relevant medical certificate did not address the relevant question and was therefore ineffective. 

   [3] [2003] FCA 1559.

3. Among the matters that pointed to personal hardship that the applicant said he would suffer from a cancellation of his visa, in this case, the Tribunal addressed them between paragraphs 16 to 21 of its reasons for decision. 

4. The applicant told the Tribunal that if his visa was not cancelled, he would enrol at Edith Cowan University. On 29 June 2017 the applicant informed the Tribunal in writing that he had made certain preparatory plans to apply to Edith Cowan University but that those plans did not materialise.

5. The Tribunal made certain factual findings. Among them were the following –

   a)it had considered the circumstances in which the ground of     cancellation arose, the extent of the breach and the reason for a     breach as well as the applicant’s oral evidence and documentation   that he had provided;

   b)the applicant ceased enrolment in a registered course on 14 February 2016;

   c)the applicant suffered depression on his arrival in Australia for    which he sought medical assistance in 2014 and 2015;

   d)the applicant worried about his ailing father and his relationship with his girlfriend;

   e)

   the medical evidence that the applicant provided was not relevant     to the period subsequent to his cessation of studies in

   
   

   February 2016;

   f)the applicant will suffer hardship by cancellation of his visa; and

   g)the applicant’s breach of condition 8202(2)(a) is significant   because he is not engaging in study for which his visa was     granted and he is not fulfilling the purpose of his travel to and      study in Australia.

6. The Tribunal concluded that the applicant’s visa should be cancelled.

Judicial review in this court

1. Let me make some general observations about this application. 

2. First, the applicant’s ground of review was general, vague and without particulars. In WZAVW v Minister for Immigration and Border Protection[4] and in WZATH v Minister for Immigration and Border Protection,[5] it was held that a general, vague and insufficiently particularised application provided judicial justification for the dismissal of the proceeding. 

   [4] [2016] FCA 760.

   [5] [2014] FCA 969.

3. Second, in reality the applicant was inviting me to undertake a merits review of this case in the hope that I may take a different view on the fate of his application. A merits review is very different from judicial review. A merits review is forbidden on the hearing of a judicial review application, as was held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[6] Conversely, on a hearing of a judicial review application, an applicant must be able to identify jurisdictional error of the sort set out in Craig v State of South Australia[7] and Kirk v Industrial Relations Commission (NSW).[8]

   [6] (1996) 185 CLR 259.

   [7] (1995) 184 CLR 163.

   [8] (2010) 239 CLR 531.

4. Third, I detected no error at all, let alone jurisdictional error, in the findings, reasoning and conclusion of the Tribunal. All findings were open. They were reached on valid grounds. The decision to affirm the delegate’s decision was perfectly sound, in my view. The applicant was not enrolled in a registered course on 14 February 2016. He breached condition 8202(2)(a) of the regulations.

5. Fourth, in no way could it be said that the Tribunal’s conduct of the case or its conclusions were unfair, as the applicant alleged. I disagree that the Tribunal did not look at the evidence. It did so exhaustively. I disagree that a complete analysis was not done as alleged. The Tribunal carefully considered the facts of the case, the discretion it was invited to exercise, the elements of condition 8202(2)(a) of the regulations and the relevant case law. Its analysis was unimpeachable. 

6. The applicant for judicial review is dismissed. I order the applicant to pay the Minister’s costs fixed in the sum of $7,328.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson

Associate: 

Date:       12 February 2018