Chhetri v Minister for Immigration

[2016] FCCA 490

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHHETRI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 490

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal was required by s.359A of the Migration Act 1958 (Cth) to inform the applicant that a medical certificate was required to substantiate his claims – whether it was unreasonable for the Administrative Appeals Tribunal not to adjourn the hearing to enable the applicant to obtain a medical certificate – no request for adjournment made by applicant – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 116, 338, 357A, 359A, 359AA, 360, 363, 474
Migration Regulations 1994 (Cth) reg.2.01, condition 8202 of Sch.8

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZTGV & Ors v Minister for Immigration and Border Protection & Anor [2015] FCAFC 3
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

Applicant: PRAKASH PANDEY CHHETRI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1623 of 2014

Judgment of: Judge Emmett

Hearing date: 8 March 2016

Date of Last Submission: 8 March 2016

Delivered at: Sydney

Delivered on: 8 March 2016

REPRESENTATION

Solicitor for the Applicant: Mr Melvin Newman
(Newman and Associates)

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1623 of 2014

PRAKASH PANDEY CHHETRI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS 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 19 May 2014 and handed down on 20 May 2014 (“the MRT”).

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.

Background

1. On 16 April 2013, the applicant was issued a Student (Temporary) (Class TU) visa by the Department of Immigration and Citizenship (“the Department”).

2. On 20 December 2013, the Delegate cancelled the applicant’s student visa.

3. On 10 January 2014, the applicant lodged an application for review of the Delegate’s decision by the MRT.

4. On 20 May 2014, the MRT affirmed the decision of the Delegate to cancel the applicant’s student visa.

5. On 16 June 2014, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is the Student (Temporary) (Class TU) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. At all relevant time, the applicant was required to comply with condition 8202 of Schedule 8 to the Regulations (“Condition 8202”). In particular, subsection 2(a) of Condition 8202 required the applicant to be enrolled in a ‘registered course’. Condition 8202 is as follows:

   “8202

   (1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2) A holder meets the requirements of this subclause if:

   (a) the holder is enrolled in a registered course; or

   …”

3. If a student visa holder does not comply with Condition 8202, the first respondent has the power to cancel the student visa in accordance with s.116 of the Act, as follows:

   “116  Power to cancel

   (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.”

4. Under s.338 of the Act, a decision to cancel a student visa is a decision which may be reviewed by the second respondent.

5. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:

   “359A  Information and invitation given in writing by Tribunal

   (1) Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   360 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.”

6. Section 359AA of the Act permits the MRT to give orally to an applicant clear particulars of any information that the MRT considers would be the reason or part of the reason for affirming the decision under review. The MRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The MRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

7. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

8. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 5 December 2013, the Department sent a letter to the applicant, notifying him that the Department was intending to consider the cancellation of his student visa pursuant to s.116(1)(b) of the Act, on the ground that the applicant was non-compliant with subsection 2(a) of Condition 8202.

2. In that letter, it was stated that the applicant had five working days after he was taken to have received the letter to respond. It was also stated that if the applicant chose not to provide any response to the Department within the required time frame, a decision would be made based on the information available to the Department.

3. On 19 December 2013, the applicant responded to the Department’s letter, explaining his failure to enrol in a registered course. The applicant stated that he was very stressed because he was in the process of applying for permanent residency. He also stated that he was depressed as he had recently broken-up with his long term girlfriend and that he was homesick. The applicant also provided evidence that he had enrolled in a new Masters course. 

4. However, the Delegate noted that the applicant had not finished a ‘registered course’ as required by the Regulations since 4 November 2012. The Delegate also found that the applicant had not been enrolled in a registered course since 25 June 2013. The Delegate considered the period of the applicant’s non-compliance with subsection 2(a) of Condition 8202 to be significant.

5. Further, since there were no medical reports which corroborated the applicant’s claim of depression, the Delegate placed little weight on this claim. 

6. Accordingly, on 20 December 2013, the Delegate cancelled the applicant’s student visa pursuant to s.116(1)(b) of the Act on the basis that the applicant had not complied with Condition 8202.

The MRT’s review and decision

1. On 10 January 2016, the applicant lodged an application for review of the Delegate’s decision by the MRT.

2. The applicant provided further documents in support of his review application, including various bank statements, academic transcripts from various education institutions and International English Language Testing System (“IELTS”) test reports.

3. The information that the MRT had before it included a statement made by the applicant to the Department on 19 December 2013 in which the applicant stated:

   “Due to self-depression and stress which I believe, I could not get myself up to the college where I always felt like a failed person.”

4. On 27 February 2014, the MRT wrote to the applicant informing him that the MRT had considered the material before it but was unable to make a favourable decision on that material alone.

5. The letter invited the applicant to attend a hearing on 8 April 2014 to give oral evidence and present arguments.

6. On 8 April 2014, the applicant attended the MRT hearing and gave evidence. During the hearing, the applicant made an additional claim that his gambling addiction was also a reason why he could not enrol in a registered course as required under subsection 2(a) of Condition 8202.

7. The MRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.

8. The MRT rejected the applicant’s claims that his homesickness and his breakup with his long term girlfriend were the reasons for his non-compliance with Condition 8202. The MRT noted that the applicant had completed his Graduate Diploma of Management in November 2012 and had commenced his Masters of Business Administration three months later in March 2013. Accordingly, the MRT found that the applicant had “plenty of time between completing one course and commencing another” to return to Nepal to visit his family if he wished.

9. The MRT did not accept that the applicant’s claim that he was suffering from depression and stress such that it affected his ability to be enrolled in a registered course from 25 June 2013 to 17 December 2013. In particular, the MRT noted that the applicant had been working as a kitchen hand at the Mosman Hotel for the period during which he claimed that he was suffering from depression. The MRT further noted that there was no independent medical evidence which corroborated the applicant’s claims of suffering from depression and stress.

10. In relation to the applicant’s claim at the MRT hearing that his gambling addiction precluded him from enrolling in a registered course, the MRT noted that the applicant provided inconsistent evidence as to the duration of his gambling addiction. Since there was no independent evidence corroborating the applicant’s claim that he had a gambling addition, the MRT did not accept that the applicant had a gambling addiction.

11. The MRT did not accept that the applicant’s non-compliance with Condition 8202 was due to exceptional circumstances that were beyond his control. The MRT was of the view that the main reasons for the applicant’s non-compliance with Condition 8202 were the applicant’s frustration at his inability to obtain permanent residency; his inability to obtain the required IELTS test scores; and, the expenses associated with the IELTS tests.

12. Although the MRT placed weight on the four qualifications that the applicant had completed in Australia, the MRT considered the applicant’s non-compliance with Condition 8202 for a period of almost six months to be significant.

13. Accordingly, the MRT affirmed the decision of the Delegate to cancel the applicant’s student visa pursuant to s.116(1)(b) of the Act on the basis that the applicant had not complied with Condition 8202.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Melvin Newman, solicitor.

2. Mr Newman confirmed that the applicant relied on the ground contained in his initiating application filed on 16 June 2014, as follows:

   “1. The Applicant, a one time student who had held a student visa and who had obtained a Masters degree in Australia, sought review of his cancellation for non-compliance with Reg. 8202 upon the ground that he had only ceased his studies due to mental illness on the basis of depression caused by separation from his family and a gambling addiction. The Tribunal hearing from the applicant such expressions as ‘he could not go to college because he felt like a failed person’ and ‘self-depression and stress’ and ‘going through a selfish phase’ and ‘I could not get myself up to the college’ dismissed out of mind such statements upon the basis that he performed part-time work. The applicant says that the tribunal in attempting to assess claims of depression adopted an amateurish method instead of exercising a duty to enquire which clearly had arisen in the circumstances, the duty easily capable of being discharged by calling for a medical report. In so doing the tribunal erred in law and in jurisdiction.”

3. Mr Newman was then invited to make submissions in support of the applicant’s ground for judicial review.

4. At the heart of Mr Newman’s submissions was a contention that the MRT should have alerted the applicant to the need for a medical report to substantiate his claim of depression and stress, which the applicant claimed to be the main reason for his non-compliance with Condition 8202. Mr Newman submitted that by failing to do so, the MRT had breached of s.359A of the Act.

5. Although the MRT could have identified for the applicant any absence of evidence which it considered to be important, the MRT’s omission to do so did not constitute a breach of s.359A of the Act. Indeed, information enlivening an obligation under s.359A of the Act does not include the absence of evidence. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated the following at [18]:

   “18. Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:

   “does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.

   If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”

6. Mr Newman also submitted that the MRT had made an expert finding that it was not equipped to make and by doing so made a jurisdictional error. In support of that submission, Mr Newman directed the Court to the part of the MRT’s decision record where the MRT stated that it did not accept that the applicant was suffering from depression and stress such that it affected his ability to be enrolled in a registered course from 25 June 2013 to 17 December 2013. That finding is as follows:

   “19. In his letter to the Department, the applicant stated that “due to self-depression and stress which I believe, I could not get myself up to the college where I always felt like a failed person”. There is no independent evidence before the Tribunal that the applicant suffered from depression or stress during the relevant period. His evidence to the Tribunal is that he has been working as a kitchen hand at the Mosman Hotel for the last 5 years and works 3 days a week for 20 hours a week. He was therefore able to work during the period he claims that he was suffering from depression and could not attend college. The Tribunal accepts that the applicant would have been frustrated that he was unable to get the IELTS test scores necessary to apply for permanent residence in Australia particularly after he had completed all the required studies. The Tribunal also accepts that he may have missed his family and being with them for festivals. However, the Tribunal does not accept that the applicant was suffering from depression and stress such that it affected his ability to be enrolled in a registered course from 25 June 2013 to 17 December 2013.”

7. Mr Newman submitted that only an expert could determine whether the applicant’s depression was such that it affected his ability to be enrolled in a registered course during the relevant period.

8. However, I do not accept that the MRT made a finding that the applicant was not suffering from depression and stress. It is clear from the MRT’s decision record that the MRT considered the applicant’s claim that he was suffering from depression and stress from 25 June 2013 to 17 December 2013 where there was no independent evidence to support that assertion. In the absence of such evidence, the MRT did not accept that the applicant was suffering from depression and stress such that it affected his ability to be enrolled in a registered course during the relevant period. That finding was open to the MRT on the evidence and material before it and for the reasons it gave. 

9. Further, Mr Newman submitted that the MRT acted unreasonably by not alerting the applicant to the need to produce a medical certificate to substantiate his claim of depression and stress. Mr Newman submitted that it would have been reasonable for the MRT to have granted the applicant a short adjournment to obtain the necessary medical evidence to support his claim.

10. Mr Newman did not suggest that the MRT was obliged of its own volition to obtain a medical report which corroborated the applicant’s claim of depression and stress. Indeed, the MRT’s power to obtain medical evidence under s.363(1)(d) of the Act is only discretionary. Since the MRT is under no duty to consider whether to exercise its power under s.363(1)(d) of the Act, it cannot be suggested that it was unreasonable for the MRT not to have exercised that power (see SZTGV & Ors v Minister for Immigration and Border Protection & Anor [2015] FCAFC 3 per Perram, Jagot and Griffiths JJ at [82]).

11. In the circumstances, I am not satisfied that it was unreasonable for the MRT not to alert the applicant to the absence in his evidence of a medical report to support his assertion of suffering from depression and stress. As stated above in paragraph 20, it is clear from the Delegate’s decision record that the Delegate placed little weight on the applicant’s claim of depression and stress due to the absence of supporting medical evidence. The Delegate relevantly stated as follows:

    “I have considered the client’s claim that he had broken up with his girlfriend of 10 years and this made himself depressed and stressed. I have placed little weight on this claim. The client has not provided any evidence, such as a medical report, that shows the full extent of the client’s claimed medical situation and his inability to maintain enrolment in a registered course as a result. I therefore place little weight, considering the limited information available to me.”

1. In the circumstances, the applicant should have been aware of the importance of obtaining medical evidence to support his claim of depression and stress since the time of the Delegate’s decision.

2. Further, I do not accept Mr Newman’s submission that it was unreasonable for the MRT not to grant a short adjournment to allow the applicant to produce a medical report to the MRT. It is clear from the MRT’s decision record that the applicant had not, at any stage, sought an adjournment from the MRT to produce medical evidence to support his claims. The applicant did not suggest that the MRT’s decision record was not accurate.

3. In any event, the applicant did not file a transcript of the MRT hearing. In the circumstances, the Court accepts as accurate the MRT’s summary of the oral evidence given by the applicant and the exchanges it had with the applicant at the MRT hearing. The Court is entitled to accept the MRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

4. Accordingly, since the applicant made no request for an adjournment at the MRT hearing, I am not satisfied that the MRT has acted unreasonably by not granting the applicant an adjournment of its own volition. 

5. Lastly, Mr Newman directed the Court to a passage in the MRT’s decision record where the MRT noted that the Delegate’s decision to cancel the applicant’s student visa was made on the basis that the applicant did not comply with Condition 8202. Mr Newman submitted that this was inaccurate because the main reason behind the Delegate’s cancellation of the applicant’s student visa was that the Delegate was not satisfied with the applicant’s explanations as to his non-compliance with Condition 8202.

6. Even if that submission was made out by Mr Newman, I am not persuaded that such a misstatement is sufficient to constitute a jurisdictional error. 

Conclusion

1. 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 the applicant at a hearing; and, had regard to all material provided in support. The MRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.

2. The MRT then made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and 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.

3. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

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

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 24 March 2016