Chahal v Minister for Immigration

[2018] FCCA 2349

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAHAL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2349

Catchwords:
MIGRATION – Application for judicial review – Student (Class TU) visa  – whether the Tribunal failed to deal with the integer of a claim – whether the Tribunal failed to afford Applicant procedural fairness – no error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 360, 476

Applicant: PARDEEP SINGH CHAHAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1846 of 2016

Judgment of: Judge McNab

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Melbourne

Delivered on: 24 August 2018

REPRESENTATION

Counsel for the Applicant: Ms. N. Campbell

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondents: Mr. N. Swan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The amended application filed 22 March 2017 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1846 of 2016

PARDEEP SINGH CHAHAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before the Court by way of an application to show cause pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) filed 29 August 2016. An amended application, filed 22 March 2017, seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 29 July 2016. This decision affirmed a decision of a delegate of the First Respondent to cancel the Applicant’s Student (Temporary) (Class TU) Visa (‘Visa’).

Background

1. The Applicant is an Indian citizen. On 24 April 2013 he was granted the Visa to undertake a Bachelor of Electronic Technology at La Trobe University. The Visa was subject to the condition that the Applicant being enrolled in a registered course under sch.8 of the Migration Regulations 1994 (Cth) (‘the Regulations’). [1]

   [1] Court Book 61.

2. On 16 May 2013 the Applicant arrived in Australia but failed to commence his Bachelor of Electronic Technology course.[2]

   [2] Ibid.

3. On 21 March 2014 his Confirmation of Enrolment was cancelled.[3]

   [3] Ibid.

4. On 24 January 2014 the Applicant commenced a Certificate III in Light Vehicle Technology but withdrew before the anticipated completion date of 17 April 2015.[4]

   [4] Ibid.

5. On 5 June 2015 the Applicant was due to commence a Certificate IV in Automotive Mechanical Diagnosis but he failed to commence the course. On 7 August 2014 his Certificate of Enrolment for this course was cancelled.[5]

   [5] Ibid.

6. On 7 August 2014 the Applicant’s Certificate of Enrolment for a Diploma in Business was also cancelled. He had enrolled in this course but had failed to commence it.[6]

   [6] Ibid.

7. On 20 July 2015, the Applicant was provided with a Notice of Intention to Consider Cancellation as he had not been enrolled in a registered course since 7 August 2014 and failed to meet his Visa conditions.[7] On 30 July 2015, the Applicant provided written submissions and supporting material in response.[8]

   [7] Ibid 1 – 10.

   [8] Ibid 21 – 47.

8. On 27 August 2015, the delegate cancelled the Visa under s.116(1) of the Act as the Applicant was not enrolled in a registered course and the grounds for cancelling the Visa outweighed the grounds for not cancelling it.[9]

   [9] Court Book 48 – 70.

Decision of the Tribunal

1. The Tribunal found that the Applicant had not complied with the conditions of his Visa and was only required to consider whether to exercise its discretion under s.116(1) to cancel the Visa.[10]

   [10] Ibid 126 [12].

2. The Tribunal, referring to the Department’s Procedures Advice Manual for guidance, considered a number of matters relevant to its discretion.[11]

   [11] Ibid [13].

3. The Tribunal found the Applicant had travelled to Australia with a genuine intention to study.[12] It was noted in the Applicant’s favour that he had not breached any other condition of his visa except of 8202(2)[13] and that there was no evidence that he had been untruthful or un-cooperative with the Department.[14] The Tribunal noted positively that the Applicant had achieved good marks in his Bachelor of Business for a period of time.[15]

   [12] Ibid [14].

   [13] Ibid [15].

   [14] Ibid 128 [24].

   [15] Ibid 129 [30].

4. The Tribunal considered that the medical evidence provided by the Applicant did not explain his failure to comply with condition 8202(2)[16] and considered it unlikely that the Applicant or any of his family members would face a significant degree of hardship if his Visa was cancelled.[17] While there were factors that were in the favour of the Applicant, they were outweighed by factors that supported cancellation of the Visa and the Tribunal affirmed the decision of the delegate.[18]

   [16] Ibid 126 – 127 [17].

   [17] Ibid 127 - 128 [23]

   [18] Ibid 129 [30] – [31].

Grounds of review

1. The Applicant’s grounds of review, extracted from the amended application, are as follows:

   1.The Tribunal erred by failing to deal with a claim or component integer of a claim squarely raised on the material before it and/or failed to take into account a relevant consideration.

   Particulars

   a)In considering whether to exercise the discretion to cancel the Applicant's visa and the degree of hardship that may be caused to the Applicant if his visa were to be cancelled, the Minister's delegate gave weight to the fact that if the Applicant were to lodge a new visa application in the next 3 years requiring him to meet Public Interest Criterion (PIC) 4013, that application could not be approved.

   b)This issue squarely arose on the material before the delegate and therefore the Tribunal. However, the Tribunal did not consider it in the exercise of its discretion to cancel the Applicant's visa under s 116 of the Migration Act 1958 (Cth) (the Act).

   c)By reason of this failure, the Tribunal constructively failed to exercise its jurisdiction.

   2.The Tribunal denied the Applicant procedural fairness by failing to comply with s 360(1) of the Migration Act 1958 (Cth).

   Particulars

   a)The Applicant was entitled to assume that the issues the delegate considered dispositive were also the issues arising in relation to the decision under review by the Tribunal.

   b)Based on the delegate’s findings, including those referred to in ground one, the Applicant would have understood that a determinate question on review was whether the Applicant would suffer hardship by reason of the application of PIC 4013 to future visa applications.

   c)Having not been informed that this was a matter which the Tribunal would not take into account (that matter being favourable to the Applicant), the Applicant was not given sufficient opportunity to give evidence and make submissions about the impact of PIC 4013 on any degree of hardship he or his family would suffer.

Consideration

Ground one

1. The Applicant submits that if a visa is cancelled under s.116 of the Act, then an application for a new visa that requires PIC 4013 to be met cannot be approved for a period of three years. It is said that the Tribunal failed to have regard to a claim raised by the delegate, being that if the Applicant was to lodge a new visa application within the next three years then Applicant would be required to meet PIC 4013 and any visa application made by him could not succeed. It was said that in circumstances where the Applicant told the Tribunal that he was “looking for a chance to complete education as soon as possible and tell parents I have done it” that the Tribunal was required to consider the effect of PIC 4013 on the Applicant’s family members.

2. In response, the First Respondent contends that the Applicant’s submission regarding the effect of PIC 4013 is not accurate and notes that PIC 4013 is subject to an exception where there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

3. The First Respondent further submits that the claim in relation to the effect of the Applicant’s visa being cancelled was not expressly made. It was submitted that the transcript of evidence before the Tribunal, annexed to the affidavit of Ms Nyabally affirmed on 30 March 2017, indicates that the Applicant did not make any submissions regarding any difficulty or hardship that would be occasioned to him as a result of PIC 4013 and there was no reference to that in the Applicant’s submissions before the Tribunal. The First Respondent notes that the Tribunal considered the implications of PIC 4013 and found that while the Applicant may be prevented from making a valid application for other visas (without the Minister personally intervening), this was only a factor to which the Tribunal decided to give “limited weight” in his favour.[19]

   [19] Tribunal decision [29].

4. In my view there is no failure on the part of the Tribunal to give consideration to a relevant claim and this ground must fail.

Ground two

1. Ground two contends that the Tribunal denied the Applicant procedural fairness by failing to comply with s.360(1) of the Act. Section 360 of the Act provides:

   Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)     Subsection (1) does not apply if:

   (a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

   (b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)subsection 359C(1) or (2) applies to the applicant.

   (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

2. The Applicant’s submissions are to the effect that because the delegate raised issues in relation to PIC 4013, the Applicant would have understood that a determinative question on review was whether the Applicant would suffer hardship by reason of the application of

   
   

   PIC 4013 to future visa applications. It is said that because the Tribunal had not informed of the Applicant that it would not take into account the effect of PIC 4013, the Applicant was not given sufficient opportunity to give evidence and make submissions about the impact of that on any degree of hardship he or his family would suffer.

3. A review of the transcript of the Tribunal hearing shows that the impact of PIC 4013 was raised and discussed with the Applicant at the hearing. The relevant section of the transcript provides as follows:

   Member: I mean basically if your visa is cancelled, down the track you could end up being removed from Australia. And you could be prevented from applying for other visas without the Minister personally intervening to allow you to apply and a lot of times they don't do that. So they would be negatives for you and I'll take that into account but is there anything that you want to say about those matters?

   Applicant: Yes, I would like to say. I just want to say that I'm trying to study but if I got removed and everything that I don't want to go to India to my parents telling them that I couldn't do it because it was me, in the first place, who wanted to come here and do my studies here. So if I'm going to India to my parents and telling them that I couldn't do it I just don't want to face them like this.

   I'm just looking for another chance to make it right so that I can complete my education as soon as possible and I just want to go to India and be able to tell my parents that I've tried to do it and I've done it here, that's what I'm trying.

   Member: Is there any other factors that you think I should take into account? Anything else you think that we haven't really spoken about?

   Applicant: No, nothing else, I don't think so.

   Member: Mr Kawata, is there anything you'd like to say about your client?

4. The Applicant was given an opportunity to give evidence and make submissions regarding the impact of PIC 4013 but did not do so. There has been no failure on the part of the Tribunal to afford the Applicant procedural fairness or to comply with section 360(1) of the Act.

Conclusion

1. Both of the Applicant’s grounds for review fail. Accordingly, the Court orders that the amended application filed on 22 March 2017 be dismissed and the Applicant pay the First Respondent’s costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  24 August 2018