Bussa v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 579
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bussa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 579
File number: MLG 3076 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 28 June 2024 Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal (‘Tribunal’) – where visa cancelled because applicant was not enrolled in a registered course – whether Tribunal exercised its discretion to cancel the visa lawfully – HELD no error by the Tribunal – application dismissed. Legislation: Migration Act 1958 (Cth) ss 116, 116(1)(b), 116(2), 116(3), 476(2)(a).
Migration Regulations 1994 (Cth) regs 8202, 8202(2)(a), 8202(3).
Cases cited: Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission: 7 June 2024 Date of hearing: 23 May 2024 & 7 June 2024 Place: Melbourne Advocate for the Applicant: In Person Solicitor for the Applicant: Self-represented litigant Advocate for the Respondents: Mr Hornsbey Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 3076 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THEJASWINI BUSSA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.The Application filed on 12 October 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 2 October 2018 (Court Book (‘CB’) 63). In that decision, the Tribunal affirmed a decision of a delegate of the Minister (‘delegate’) to cancel the Student (Temporary) (class TU) (subclass 573) visa (‘visa’) held by the Applicant.
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is an Indian national. She arrived in Australia on 7 July 2016 as the holder of a student visa (CB 52).
On 20 July 2017, the Applicant’s enrolment in a Master of Information Systems was cancelled due to the non-payment of fees (CB 1-3). She had been enrolled at Central Queensland University (‘University’).
On 29 March 2018, a delegate of the Minister (‘delegate’) sent the Applicant a Notice of Intention to Consider Cancellation (‘NOICC’) of the visa on the basis that the Applicant was not enrolled in a registered course (CB 8). The Applicant was invited to comment on the NOICC (CB 8). The Applicant did not provide any comment on the NOICC.
On 18 June 2018, the delegate cancelled the visa (CB 26).
On 26 June 2018, the Applicant applied to the Tribunal for review of the delegate’s decision (CB 31). On 31 August 2018, the Tribunal invited the Applicant to attend a hearing on 18 September 2018 (CB 37). On 17 September 2018, the Tribunal wrote to the Applicant notifying her that the hearing had been postponed (CB 40).
On 24 September 2018, the Tribunal invited the Applicant to attend a hearing at 10.00 am on 2 October 2018 to give evidence and present arguments. Within the invitation, the Applicant was requested to provide any additional documents and information as soon as possible.
On 2 October 2018 at 8.27 am, the Applicant sent her response to the hearing invitation. There is no evidence the Applicant made any written submissions prior to the hearing.
The hearing before the Tribunal on 2 October 2018 commenced at 10.35 am and concluded at 12.27 pm, with oral reasons having been given at 12.10 pm. The hearing record discloses that both the Applicant and her witness, Mr Dommata, were in attendance. The transcript of the hearing was not before me. Following the hearing, the Tribunal decided to affirm the decision of the delegate (CB 60).
On 15 October 2018, the Tribunal provided a written record of oral decision and reasons to the Applicant (‘Reasons’) (CB 63).
In this Court, the Applicant filed her application to review the decision of the Tribunal on 12 October 2018 (‘Application’). The Application was accompanied by an affidavit from the Applicant of the same date.
The Minister filed written submissions dated 9 May 2024 and also prepared a Court Book that contains the relevant documents. The Applicant relies on her affidavit of 12 October 2018, a further affidavit affirmed 14 May 2024 that attaches various documents (including an academic transcript, graduate diploma, emails, a death certificate for her grandfather and a certificate of properties), an affidavit affirmed 16 May 2024 (that provides information about her chronic sinus condition and attaches a medical certificate) and written submissions that she handed to the Court, and were subsequently filed.
THE DECISION OF THE TRIBUNAL
In its decision, the Tribunal:
(a)at [3] of its Reasons noted that the delegate cancelled the visa on the basis that the Applicant had breached a condition of her visa, being to remain enrolled in a registered course, and stated that the issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled;
(b)at [4] stated that the issue was whether the Applicant breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (‘Regulations’) and if the Applicant has breached that condition, whether the visa may be cancelled;
(c)at [5]-[6] noted that the delegate found that the Applicant had not been enrolled in a registered course since her enrolment in a Master of Information Systems was cancelled on 20 July 2017 for non-payment of fees. The Tribunal recorded that ‘This was put to the applicant in the required way, and the applicant conceded that she had not been enrolled in a registered course since that date’. The Tribunal stated on the evidence before it, the ‘applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202’;
(d)at [7] recorded that having found the Applicant had not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to affirm the decision to cancel the visa. The Tribunal noted that there are no matters in the Act or the Regulations that are required to be considered in relation to the exercise of discretion;
(e)at [8] recorded the Applicant’s evidence that she had successfully completed four units of her course by around October 2016 and completed four units of her second semester by around March 2017;
(f)at [9]-[10] noted that the Applicant returned to India in March 2017 to deal with medical issues and also the passing of her grandfather;
(g)at [11] recorded that the Applicant did not enrol in her next semester of study when she returned to Australia in April 2017 because of family issues and also remaining minor medical issues;
(h)at [12] recorded that the Applicant indicated that she wished to continue studying, but needed to take time off for 3-4 months before recommencing her studies. The Tribunal asked the Applicant why she did not approach the University to defer her enrolment. The Tribunal also asked the Applicant why she had not recommenced her studies in 2017 once she had taken 3-4 months off. To both queries, the Applicant replied that these were her mistakes. The Tribunal noted that it was now October 2018 and the Applicant had not made any efforts to recommence her studies;
(i)at [13], the Tribunal asked the Applicant whether she or any family members would suffer hardship if her visa were to remain cancelled. The Tribunal records the Applicant as saying she would not and that there was no hardship. The Tribunal also asked the Applicant whether there was any impediment to the Applicant recommencing studies in India, to which the Applicant replied she already held a degree from a tertiary institution in India;
(j)at [14]-[15] the Tribunal put to the Applicant that given she had ceased studying in July 2017, and had made no attempt to re-enrol in a registered course since that time, that the Applicant may not have the will or desire to successfully undertake an education course in Australia. The Applicant indicated she did wish to study and would apply for another visa;
(k)At [15], the Tribunal noted that even if the Applicant’s visa had not been cancelled, it would have expired in August 2018 and that therefore it appears that the only utility of the proceedings before the Tribunal is that, if the visa remains cancelled, she will be subject to a three year ban on applying for a further visa, whereas if she is successful, she will be able to apply for another visa to study in Australia;
(l)at [16] the Tribunal noted that the Applicant indicated that her visa was cancelled on 18 June 2018 and that it does not appear that she holds any visa and that she therefore appears to be an unlawful non-citizen;
(m)at [17] the Tribunal found that the Applicant does not have the will or desire to successfully undertake an education course in Australia;
(n)at [18], the Tribunal recorded it was willing to accept that the Applicant was facing some minor medical condition in 2017 and was willing to accept, without documentary evidence, that her grandfather passed away in March 2017. The Tribunal considered, however, that those matters did not provide sufficient reason to explain why the Applicant has failed to enrol in any course in Australia since mid-2017. The Tribunal recorded that the Applicant was granted a visa for the purpose of studying in Australia, and yet she had ceased to study for over a year;
(o)at [20], the Tribunal indicated it was willing to accept that while the Applicant and her family members will not suffer any hardship, the Applicant’s family in India will feel some disappointment and be upset that the Applicant’s visa was cancelled. The Tribunal also stated it had considered that if the Applicant’s visa remains cancelled, she will be prevented from successfully applying for another visa in Australia for a period of three years;
(p)at [21] the Tribunal considered that a decision to affirm the cancellation decision in relation to the Applicant’s visa may well mean that the Applicant’s husband may also be unsuccessful in his review application before the Tribunal. The Tribunal found, however, that the Applicant’s lack of will and desire to successfully undertake a higher education course in Australia heavily outweighs any hardship she, her husband, or any family members may face because of the cancellation of the visa; and
(q)at [22]-[23] the Tribunal concluded that the Applicant’s visa should be cancelled, and the decision of the delegate should be affirmed.
APPLICABLE LAW
Section 116(1)(b) of the Migration Act 1958 (Cth) (‘Act’) relevantly provides that, subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa.
Regulation 8202 of the Regulations sets out the conditions applicable to the grant of this visa. Relevantly, regulation 8202(2)(a) requires the holder of the visa to be enrolled in full-time a registered course.
I accept that neither section 116 of the Act nor the Regulations set out any mandatory relevant considerations the Tribunal is required to consider in the exercise of its discretion. This is a matter that has been recognised previously: see Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 at [33] (Mansfield J). Further, nothing in the Act or the Regulations requires the Tribunal to follow guidance contained in the Procedures Advice Manual.
THE APPLICATION
The Grounds for Review in the Application are as follows:
1.This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 3rd of October 2018. The Tribunal affirmed a decision of the Immigration officer to cancel student visa (573 Visa).
2.I am waiting for the tribunal decision to send me a copy of the full decision, once I receive the decision I did not see any information whether I can apply for further appeal , also I could not find the solicitors with my affordable price to take the advice in Brisbane, further my husband and I have decided to Move Melbourne. I have found some solicitors in Melbourne, but they are very expensive as well, I could not afford because of I am in financial hardship where I had spent my money on my health , studies and tribunal proceedings.
3.I am brining the Tribunal decision to court apply for Judicial review within 35 days where court may accept my application under the s.476 of the Migration act 1958.
4.The decision of the Tribunal dated 10th October 2018 is affected by jurisdictional error because the Tribunal misunderstood my circumstances against the criterion 8202 of Schedule 2 of the Migration Regulations 1994 in respect of the application of that criterion to the condition 8202(3) which was attached to the visa previously held by the;
5.the Tribunal's reasons decision record show that the Tribunal did not consider my sever health issues I had in Australia, it seems that tribunal only thinking visa history form my arrival date to till date, It seems that the Tribunal's view was that because I hadn't studied intentionally, tribunal did not recognise why I did pass all subjects of two semesters.
6.The Tribunal overlooked my health and also the evidence was submitted to tribunal. the fact that I had subsequently struggled to get the Transcripts from education provider in case of top get the new admission for same course in different education provider . University had breached the condition of ESOS act by not giving my transcripts which had caused my visa cancellation . This wasn't even considered or investigated by tribunal member. 8202 breach is not intentionally happened, the breach happened because of University administration error. Therefore I believe that the tribunal did not consider all relevant matters to the exercise of discretion in deciding whether to allow me continue studying in Australia; therefore, tribunal decision is unfair in my case.
7.the Tribunal erred in its discretionary considerations of my health and university administration error which have caused my visa cancellation.
8.first, the Tribunal failed to take into account my explanation “it was not done intentionally, it was happened with naturally and led this to my visa cancellation”.
9.I believe Federal circuit court have jurisdiction in this matter. I hope natural justice would be served by court in my matter.
10.I believe, delegate and tribunal have erred in assessing my application , both are responsible in my matter.
11.I have felt unjust and hoping the right justice by court.
In her affidavit of 12 October 2018, the Applicant deposes, inter alia, that she stopped studying due to ‘exceptional circumstances’. She deposes further that the University refused to give her transcripts of her first two semesters that were completed successfully and if she had been able to obtain those, she would have been able to obtain a new admission at another educational institution.
In her affidavit affirmed 14 May 2024, the Applicant attaches the following documents. First, an academic transcript from the University covering the periods ‘Term 2’ 2016 and ‘Term 1’ 2017. Second, a certified copy of a certificate from the University confirming that the Applicant has fulfilled the conditions and been conferred with a Graduate Diploma of Information Systems. This document has been sealed by the University on 24 July 2017. Third, an email from ‘CQU Debtors’ to the Applicant dated 29 July 2021 which states that ‘we have received your payment & your account now has a nil balance’. Fourth, a certified true copy of the death certificate of Bussa Pentaiah (the Applicant’s grandfather) that states his date of death as being 16 March 2017. Fifth, a ‘Statement of Encumbrance on Property’ from the ‘Registration & Stamps Department’ of the Government of Telangana. Sixth, a ‘Gift Deed’ executed on 5 December 2022.
In written and oral submissions before me, the Applicant submitted, inter alia, that she had encountered financial hardships which rendered her unable to pay university fees on time, which she has since rectified. She contended that she had not been given a chance by the Tribunal to explain why she could not pay her fees, and that her inability to pay her fees was not intentional. She said the Tribunal had overlooked her health issues, and not considered her circumstances. She submitted that she had always complied with visa conditions, had always been truthful, and had a one-year-old child that was affected by any decision. She also stated that she took issue with the finding of the Tribunal at paragraph [17] of its Reasons that she ‘did not have the will or desire to successfully undertaken [sic] an education course in Australia’.
CONSIDERATION
It is clear from the evidence before the Tribunal, and its Reasons, that it correctly identified the issue before it. The Applicant had conceded she had not been enrolled in a registered course. Accordingly, the issue was whether the Tribunal should exercise its discretion to cancel the visa under section 116 of the Act.
The Tribunal correctly identified at [7] that there were no matters in the Act or the Regulations that were required to be considered in relation to the exercise of the discretion.
It is apparent from the Reasons of the Tribunal that the Applicant raised a number of matters going to why the Tribunal should exercise its discretion to not cancel the visa. These included, minor medical issues that she faced, the death of her grandfather and ‘family disturbances’ in India relating to property distribution following the passing of her grandfather. It is important to note that the Tribunal accepted the Applicant had minor medical issues and that the Applicant’s grandfather had passed away, even though it had no documentary evidence to corroborate those claims. The Tribunal resolved both of those matters in favour of the Applicant. It clearly considered them and weighed them in deciding whether to exercise its discretion.
The other matter raised by the Applicant was her wish to take 3–4 months off before recommencing her studies. Again, it is plain from the Tribunal’s Reasons at [12] that the Tribunal took this into account but was concerned that even allowing for that, she had not, by October 2018, recommenced study.
Before me, the Applicant submitted that the Tribunal had not had regard to various matters contained in the Procedures Advice Manual. As I have indicated, there is nothing in the Act or the Regulations that requires the Tribunal to take account of the Procedures Advice Manual. Further, and additionally, however, I note that the Tribunal said it had regard to the Procedures Advice Manual (at [7] of the Reasons) and it is apparent from the Reasons that it did so. For example, the Applicant was asked whether she would suffer any hardship if the visa was cancelled. The Applicant did not identify any hardship. Notwithstanding that, the Tribunal clearly weighed and considered as part of its decision making the fact that family members of the Applicant and her husband in India would feel some disappointment and be upset if the visa was cancelled and the Applicant was prevented from successfully completing her course. It is plain the Tribunal also considered the purpose of the visa holders travel and stay in Australia, and the effect of the cancellation on the Applicant’s husband.
The Applicant’s submissions that the Tribunal did not consider her previous compliance with visa conditions, her previous truthfulness or that she has a child do not advance her case. There was no requirement on the Tribunal to take these matters into account. Further, the Applicant’s one-year-old child was not born at the time the Tribunal made its decision, and the Tribunal therefore could not have taken that into account.
When these matters are considered, I am unable to see how the Tribunal failed to take account of any matter raised by the Applicant, or that it failed to consider any other relevant matter .
I turn then briefly to the Grounds of Review as articulated in the Application.
Grounds 1–3 of the Application do not assert or identify any error said to have been made by the Tribunal. Insofar as the Applicant complains in Ground 2 about her inability to retain lawyers, there is no right to legal representation.
In Ground 4, the Applicant asserts that the Tribunal misunderstood her circumstances. She has not identified exactly how the Tribunal misunderstood her circumstances against the criterion in regulation 8202. It is not clear why the Applicant refers to regulation 8202(3) when the decision of the Tribunal relates to regulation 8202(2)(a). The Applicant had conceded she was not enrolled in a registered course. I am unable to see, in the absence of any further explanation from the Applicant, how the Tribunal misunderstood her circumstances. The Tribunal had regard to what she said and took those matters into account in arriving at its decision.
In Grounds 5–8, the Applicant raises a number of matters including that the Tribunal did not consider, or overlooked, her health issues, that the Tribunal didn’t recognise she passed all subjects in two semesters, that the University did not provide her with transcripts which would have enabled her admission to a new course and that her not studying was not an intentional act, and that therefore the Tribunal did not consider all relevant matters to the exercise of its discretion.
In respect of these matters, it is clear that the Tribunal engaged with the evidence in relation to the Applicant’s medical condition. As noted above, the Tribunal accepted that the Applicant had suffered from health issues, but was not satisfied that this explained her non-enrolment in any course from mid-2017 until the matter came before the Tribunal in October 2018.
The complaint by the Applicant that the University failed to provide her with transcripts, and that the Tribunal never considered this matter, needs to be assessed in light of the following. First, there is no evidence of the Applicant having raised this issue with the Tribunal. The Applicant never responded to the NOICC. The Tribunal, while dealing with a number of matters raised by the Applicant, makes no mention of the Applicant raising this issue. The Applicant is not otherwise able to point to where and how she raised this point, including by attaching transcript from the Tribunal. Second, and in passing, I note that the Applicant has produced to this Court an email to the University dated 11 October 2018 in which she seeks copies of her transcripts. This email postdates the decision of the Tribunal. It could never have been considered by the Tribunal.
Similarly, the Applicant submits that the Tribunal never gave her a chance to explain why she could not pay her fees. I note the following. First, while the Applicant claims to have raised this point, there is no evidence to this effect. She has not included such evidence as part of her affidavit. She never responded to the NOICC. She has not produced the transcript of the Tribunal hearing. The Tribunal makes no reference to it in its decision. Second, this explanation which the Applicant gives now, is at odds with what the Tribunal records as her decision not to study. The Tribunal records, at paragraph [11], that the reasons given by the Applicant for not enrolling in her course included minor medical issues and ‘family disturbances’, and also at [12] that she wished to take some time off before recommencing her studies.
The Applicant also claims in Ground 8 of her Application that ‘it’ [which I take to be her not being enrolled in a registered course] was not done intentionally. To the extent that this refers to the circumstances the Applicant raised with the Tribunal, I refer to my reasons above. To the extent it means something else, the Applicant has not identified what that is.
In Grounds 9-11, the Applicant says that she seeks natural justice in this Court, that she feels she has been dealt an injustice, and that she believes the delegate and the Tribunal erred in assessing her application. In respect of these matters I note the following:
(a)the Court does not have jurisdiction to review the decision of the delegate – see section 476(2)(a) of the Act;
(b)while the Applicant has asserted an error, she has not identified that error and she has failed to particularise it. Failure to particularise an error is a basis on which an application might be dismissed; and
(c)while not specifically alleged that the Tribunal failed to accord the Applicant with procedural fairness, this is a matter in which the procedural fairness obligations on the Tribunal have been complied with. Among other things, the Applicant was invited to, and did ultimately attend, a meaningful hearing. During the course of the hearing, the Tribunal Reasons show that the issues likely to be dispositive of the application were put to the Applicant.
It is clear from the submissions of the Applicant and her presentation before me that she takes serious issue with, and may well be offended by, the conclusion of the Tribunal at paragraph [17] of its Reasons that she did not have the will or desire to undertake an education course in Australia. I understand that it may be difficult for the Applicant to accept that conclusion and that she may well find it offensive. Nevertheless, when one reads the Reasons of the Tribunal in context, that was a conclusion that was open to the Tribunal given the evidence it had before it.
CONCLUSION
When all of the above is considered, I am unable to see any error committed by the Tribunal. The Tribunal did not overlook or fail to have regard to anything put by the Applicant. The Tribunal weighed and considered matters relevant to the exercise of its discretion. The findings made by the Tribunal were open to it. In all the circumstances, none of the Grounds of Review are made out and the Application must be dismissed.
The Applicant has been entirely unsuccessful. The Minister seeks costs of $8,371.30. Those costs are in accordance with scale. In all the circumstances, I will award costs to the Minister of $8,371.30.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 28 June 2024
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