Choudhary v Minister for Immigration
[2018] FCCA 326
•28 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHOUDHARY v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 326 |
| Catchwords: EVIDENCE – Standard of proof – proof where fraud on the Tribunal alleged. |
| Legislation: Evidence Act 1995 (Cth), s.140 Migration Regulations 1994 (Cth), Sch.8, Condition 8202 |
| Cases cited: AJY16 v Minister for Immigration & Anor [2017] FCCA 565 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24 Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459 |
| Applicant: | RANBIR CHOUDHARY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 313 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 19 December 2017 |
| Date of Last Submission: | 19 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 28 February 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr A Gerrard |
| Counsel for the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 313 of 2016
| RANBIR CHOUDHARY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Ranbir Choudhary (“Mr Choudhary”), seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 27 June 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to cancel Mr Choudhary’s (Temporary) (class TU) Higher Education Sector (subclass 573) visa (“Student Visa”).
The Tribunal Decision appears at Court Book (“CB”) 180-187.
Tribunal Decision – background
In the Tribunal Decision the Tribunal set out the background up to the time of the cancellation of the Student Visa as follows:
a)Mr Choudhary was a male Indian citizen, 25 years old, granted the Student Visa on 9 January 2014 who arrived in Australia on 2 February 2014: CB 181 at [9];
b)the Student Visa was subject to Condition 8202 of Sch.8 to the Migration Regulations 1994 (Cth) (“Condition 8202”), a breach of which entitled the Minister to cancel the Student Visa under s.116(1) of the Migration Act: CB 181 at [8]. Condition 8202 relevantly provided as follows:
(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 Defonce 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
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student - the holder is enrolled in a full time course of study or training.
[(3)A holder meets the requirements of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defonce Sector) visa - the holder is enrolled in a full-time course of study or training.]
c)at the time of the grant of the Student Visa Mr Choudhary was enrolled in a package course at the University of Western Sydney (“UWS”) for the following courses:
i)English language programme (10 February 2014 to 20 June 2014);
ii)Diploma in Business and Commerce fast-track (22 June 2014 to 30 January 2015);
iii)Bachelor of Business and Commerce (22 February 2015 to 31 January 2017): CB 181 at [9];
d)in May 2015 the Department of Immigration & Border Protection (“Department”) accessed student records which indicated that Mr Choudhary had ceased enrolment at UWS: CB 181 at [10];
e)the Department issued Mr Choudhary a notice of intention to consider cancellation (“NOICC”) of the Student Visa under s.116 of the Migration Act on 25 June 2015 because Mr Choudhary had not been enrolled in a registered course of study since 15 April 2015 and he was in breach of Condition 8202(2)(a): CB 181 at [11]; and
f)Mr Choudhary’s submissions in response to the NOICC were as follows:
• He did not know anyone in Sydney when he arrived in Australia and was feeling homesick. He spoke to a friend who suggested that he move to Perth. He was depressed and it took him a few weeks to get normal. He approached a migration agent and attempted to get a letter of release from UWS so that he could continue his studies in Perth.
• His agent obtained an offer letter from Stanley College in Perth but he was not given a Certificate of Enrolment (CoE).
• He approached another agent and obtained an offer letter from Empyrean College but was also not given a CoE. The applicant provided copies of the offer letters in support of his claims.
• He was advised that he needed to get a release letter from UWS before he could get a CoE.
• The applicant said that based on incorrect advice of his agent he applied to the Migration Review Tribunal when he received the NOICC. He was subsequently advised that the department had not yet made a decision to cancel his visa. [See MRT Decision ref 1508791]. The applicant said that all his agents misguided him.
• He wants to continue with his studies in Australia.
CB 181-182 at [12].
Cancellation of Student Visa
On 29 July 2015 the Minister cancelled the Student Visa under s.116(1)(b) of the Migration Act because Mr Choudhary had failed to comply with Condition 8202 of the Student Visa because he had not been enrolled in a registered course since 15 April 2015: CB 52 and 184 at [32].
Tribunal Hearing
Prior to the Tribunal Hearing Mr Choudhary provided a large number of documents for consideration by the Tribunal: CB 115-166.
Mr Choudhary attended the Tribunal hearing as requested on 10 June 2016 (“Tribunal Hearing”): CB 102 and 167-170, at which:
a)Mr Choudhary said that he only attended UWS for approximately 7 days and submitted one assignment and relocated to Perth, did not complete his English language programme and confirmed that he had not commenced any other course of study since he arrived in Australia and that his last day of study was 19 February 2014: CB 182 at [13];
b)Mr Choudhary said he tried to enrol at:
i)Stanley College in Western Australia in a Certificate III and IV in Commercial Cookery and Diploma of Hospitality; and
ii)Empyrean Education Institution (“EEI”) in Western Australia in a Certificate IV in Commercial Cookery and Diploma of Hospitality,
but the Tribunal found that information on the Department’s files indicated that Mr Choudhary never enrolled at Stanley College or EEI: CB 182 at [14]-[16];
c)the Tribunal noted that the letters of offer issued by Stanley College and EEI were for courses at the lower Vocational Education and Training Sector level. The Tribunal told Mr Choudhary that it appeared he had no intention of studying in the Higher Education Sector when he arrived in Australia: CB 182 at [17];
d)the Tribunal referred to emails from UWS sent to the applicant in March 2014 noting he had been absent from class since 19 February 2014 and advising Mr Choudhary that if they did not receive any response they would advise the Department: CB 183 at [19];
e)Mr Choudhary said he was suffering from depression and began to have suicidal thoughts due to being alone in Sydney, but that he did not seek help from UWS because he could not find the counsellors, and provided a one page medical invoice dated 19 February 2014 which states that he attended a standard consultation with a doctor (“February 2014 Medical Invoice”): CB 183 at [22]-[24];
f)Mr Choudhary only attended the doctor on one occasion, was prescribed medication, which he could not name, but which he did not take in any event because he could not find a pharmacy: CB 183 at [24];
g)Mr Choudhary maintained that he was depressed and had friends and relatives in Perth who could help him, and in the last week of April 2014 Mr Choudhary flew to Perth, but the Tribunal observed that his evidence about his relatives in Perth was vague and lacking in detail: CB 183 at [30], and although he did not travel to Perth for work he was able to obtain employment as a security guard: CB 183 at [25]; and
h)Mr Choudhary confirmed that he had not completed any course of study since coming to Australia, and did not have a current offer letter or confirmation of enrolment, but that he wanted to study hospitality and remain with his friends in Perth: CB 183 at [28].
Consideration by the Tribunal
The Tribunal:
a)had regard to Mr Choudhary’s submissions and evidence, and found that:
i)on 19 February 2014 Mr Choudhary ceased attending his English Language course;
ii)Mr Choudhary advised UWS on 19 May 2014 that he would not be continuing his studies;
iii)Mr Choudhary never commenced his studies in the Diploma of Commerce or the Bachelor of Business and Commerce; and
iv)Mr Choudhary’s enrolment at UWS was officially cancelled on 17 June 2014: CB 184 at [33]; and
b)based on the Provider Registration and International Student Management System report (“PRISMS Report”) accessed by the Department in May 2015, was satisfied Mr Choudhary had not been enrolled in a registered course since 15 April 2015, and accordingly, had not complied with Condition 8202(2), nor had Mr Choudhary ever intended to study at the Higher Education Sector level in Australia: CB 181 at [10] and 184 at [34].
In considering whether to exercise the discretion to cancel the Student Visa the Tribunal:
a)considered matters raised by Mr Choudhary as to why the Student Visa should not be cancelled, in addition to policy guidelines contained in the Department's Procedures Advice Manual (“PAM3 Guidelines”): CB 184 at [36];
b)accepted Mr Choudhary’s evidence that he may have experienced difficulty obtaining a release letter from the UWS which made it more difficult for him to secure enrolment with another education provider: CB 185 at [39];
c)was satisfied Mr Choudhary will encounter some financial and emotional hardship if the Student Visa was cancelled because he would not be able to continue his studies in Australia, but observed that that was an inevitable consequence faced by many students who must return home when a student visa was cancelled: CB 185 at [40];
d)considered that the claims that Mr Choudhary was depressed and contemplated suicide were not supported by any medical evidence, nor did Mr Choudhary provide any evidence of support from his friends or relatives in Perth who he claims assisted him at the time: CB 185 at [41];
e)addressed other relevant matters including non-refoulment obligations and consequential cancellations under s.140 of the Migration Act, and concluded these had no application in the present case: CB 185-186 at [43]-[48]; and
f)affirmed the Delegate’s Decision to cancel Mr Choudhary’s Student Visa: CB 185 at [49].
Judicial Review Application
On 13 July 2017 Mr Choudhary lodged the Judicial Review Application in this Court. The “grounds” of review in the Judicial Review Application are set out as follows:
1. Respected Sir/Madam,
2. I was enrolled into the English language programs, Bachelor of Business and Commerce and Diploma in Commerce - FastTrack at University of Western Sydney from February 2014. However, I have only attended approximately 7 days and submitted one assignment during my English Course ELICOS.
3. I was suffering from depression and began to have suicidal thoughts due to being alone in Sydney and having no one there for moral support as I had recently moved from India. I was a long way from any support and I did not know what to do. I did not understand that I had to say to UWS that I was in Perth or that there was a Overseas Student Transfer Policy. They said to me at MRT.
4. In the last week of April 2014 I flew to Perth where I had some friends and relatives. They noticed the depression I was going through as I had become physically very weak and encouraged me to study in Perth itself so it might help me to stop me from getting depressed further and might help me in recovering.
5. During my time in Sydney I also visited Dr. Fouad Zaki at Saints Medical Center to discuss my mental health and medical related issues. He was aware that I was very upset and suggested me to move to a place where I have friends and family after consulting with immigration.
6. In order to move to Perth and pursue my further studies here I requested from UWS to provide me a release letter so I can stay and study in Perth where I do not feel depressed.
7. I would also like to bring to your attention that my immigration agent in India has also misguided me to enrol in this particular course and university for his own financial benefits. Initially, my family and I approached my agent to enrol myself in some course in Perth where I had better home environment but the agent had managed to convince my parents that I have to go to the university he suggested as otherwise I would not be able to get a visa to study further. I was given false information of how I was not eligible to study in Western Australian universities.
8. I had paid a huge fee of $21,432 approx. to the university and only studied there for 7 days. I requested the university to refund the unused fee as I was away for medical/personal reason which didn't happen and all my parents hard earned money was wasted.
9. I talked to one of my friend in Perth who suggested me to go see an agent who can help me get a release letter from UWS and continue my studies here in Perth but nothing worked.
10. Meanwhile I started approaching several immigration agents and colleges in Perth, Stanley College, empyrean college to name few which might be able to help me get the things sorted and help me study further. They also refused to provide me Confirmation of Enrolment letter (COE) as they wanted a release letter from UWS in Sydney. Hence, I achieved no outcomes and was instead mislead more.
11. In the meantime, I got a visa cancelation letter from immigration. I did not understand this letter and decide to see a better registered immigration agent who can help me get out of this ugly and stressing situation. Instead of knowing the full scenario my immigration agent here in Perth applied for Migration Review Tribunal. Then I got an email from MRT telling me not cancelled yet and I am not eligible for that type of student visa.
12. This situation has caused me a lot of setbacks and confusion and further extended my illness of depression. All agents misguided me and haven't provided me with appropriate method to get out of this situation and hence, I made this mistake. I belong to a minority caste and poor family and my family has spent most of their lifetime savings to fund my studies. I am till this date unsettled and my parents are supporting my stay and still hoping that I could get back on track and start my studies again. They do not want me to return without completing a good qualification to help me with my future on my return. I cannot disappoint them and I want my parents to be proud of me.
13. I believe that UWS, immigration and MRT all did not consider my situation and circumstances and my mental pain enough. The MRT agreed with me that I tried to enrol at Stanley College and Empyrean College, but UWS did not release me. I tried very hard to fix my mistake when I knew about it.
14. I hereby would like to request you please understand my pain and kindly provide me another opportunity to start fresh so I can prove myself as good law abiding student and return home with flying colors and lot of confidence.
15. Yours faithfully
16. Ranbir Choudhary
The Court will refer to the above “grounds” as grounds 1 to 16.
On 17 August 2016 a Registrar of this Court issued an order (“Registrar’s Orders”) whereby Mr Choudhary was given an opportunity to lodge an amended Judicial Review Application, any further supporting affidavits and an outline of submissions. Mr Choudhary submitted no further material pursuant to the Registrar’s Orders.
At hearing before the Court, Mr Choudhary was provided an opportunity to make oral submissions in support of his grounds of the Judicial Review Application. Mr Choudhary submitted that he was stressed and he wished to apologise for that, but said he wants to study in Australia and he needs a chance to study in Australia.
At hearing before the Court, Mr Choudhary also sought to tender documents to the Court. These documents were marked for identification as MFI1, though the Minister pointed out (and the Court has now checked and confirmed) these documents already formed part of the Court Book, namely:
a)an email sent to the Minister on 7 June 2016 attaching an e-mail dated 31 March 2015 stating Mr Choudhary had appointed Ultra-Fast Visa as his registered representatives who were seeking a release from his university studies due to depression: CB 128-131
b)a statutory declaration appearing at CB 135; and
c)an “Advice by Migration Agent of Providing Immigration Assistance” form dated 24 March 2015 submitted by Ultra-Fast Visa declaring they were representing Mr Choudhary in relation to his dealings with the Department: CB 137-139,
and it was therefore unnecessary to mark the above documents as exhibits.
The Minister, in his capacity as a model litigant, identified two grounds of judicial review which might otherwise be inferred from grounds 1 to 16 set out above. Those two grounds, which the Court will consider, are as follows:
a)a claim of fraud or misrepresentation by migration agents which might constitute fraud on the Tribunal (“Further Ground A”); and
b)the education provider or providers and the Department failing to consider, or not attach sufficient weight to, Mr Choudhary’s “situation, circumstances and mental pain” (“Further Ground B”).
Where an applicant alleges fraud against a third party an applicant must have an opportunity to go into the witness box to give evidence, with the knowledge of the issues needed to be addressed: SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [53] per Allsop CJ. Mr Choudhary was provided this opportunity at hearing and he attested that:
a)he went to two or three migrations agents for assistance with his Student Visa, and his Judicial Review Application but he could not remember their names or what street they were located on;
b)when he went to one migration agent and told him of his Student Visa difficulties the migration agent said “Don’t worry about that. It’s not a big problem. We can give you help;”
c)he is alone and in big trouble and he doesn’t know how or what he can do; and
d)when asked by the Court if there was any conduct of the migration agent that vitiated the Tribunal Decision by reason of fraud he responded that there was none save that he did not get what he wanted.
Mr Choudhary was briefly cross-examined by Counsel for the Minister and the Court notes the following evidence:
a)Mr Choudhary said he had applied to the Tribunal for review of the Delegate’s Decision on his own accord, without representation or advice from a migration agent;
b)Mr Choudhary told the Tribunal he faced a big problem as no one can guide him and tell him what is true and if he can apply or not apply; and
c)he could not remember if he raised concerns at the Tribunal Hearing about the migration agents, but he thinks he did.
The Minister submitted that:
a)failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; WZATH v Minister for Immigration & Border Protection [2014] FCA 969;
b)the Judicial Review Application as it stands is simply an invitation to the Court to enter into impermissible merits review contrary to the long-standing principles that flow from Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;
c)fraud by a third party, including by a migration agent, will vitiate a Tribunal decision where the fraud stultifies the Tribunal's decision-making process: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64 (“SZFDE”). Negligence, inadvertence or incompetence on the part of a migration agent representing a visa applicant will not, however, of themselves, constitute fraud on the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501 (“SZLIX”);
d)there is no evidence put before the Court of any actions or advice on the part of any migration agent (or anyone else) which rises to the level of fraud or, indeed, conduct which had any impact on the Tribunal's ability to carry out its statutory tasks, and in any event, the Tribunal had regard to Mr Choudhary’s claims in respect of the misleading advice said to have been provided to him: CB 182 at [12] and [18];
e)any claim that Mr Choudhary’s circumstances were not taken into account are clearly not made out when regard is had to the entirety of the Tribunal Decision which sets out Mr Choudhary’s circumstances in some detail, including his claims to have suffered from depression: CB 184 [22]-[24] and [30] and CB 185 at [41]; and
f)the Tribunal took into account all of the matters raised by Mr Choudhary as well as the policy guidance under the PAM 3 Guidelines, and where it had concerns it specifically put those concerns to Mr Choudhary and invited him to respond: CB 182-183 at [13]-[30], and especially at [17], [18], [21], [23] and [27]-[29].
Consideration of the Judicial Review Application
Jurisdictional error required
The Tribunal Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. Jurisdictional error occurs where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”). Jurisdictional error may also arise if there is fraud by a third party which disables the Tribunal from the due discharge of its imperative statutory review functions: SZFDE at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for a Student Visa: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 (“Quin”), CLR at 35-36 per Brennan J.
Mr Choudhary seeks judicial review of the Delegate’s Decision of 25 June 2015. This Court has no jurisdiction to review the Delegate’s Decision as the Court’s jurisdiction is to review the Tribunal Decision, not the Delegate’s Decision which is a primary decision: Migration Act, s.476(2)(a) and (4). Further, it is well established that if the Tribunal Decision is not flawed it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J; AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 at [10] per Judge Lucev.
A self-represented litigant’s claims
To ensure a self-represented litigant like Mr Choudhary has a fair hearing he must be provided with a reasonable opportunity to be heard, and the presiding judge must be astute to raise any possibility of legal error in the Tribunal Decision with the self-represented litigant: SZRUR at [43] per Robertson J (with whom Allsop CJ and Mortimer J agreed at [47] and [56] respectively); [53]-[55] per Allsop CJ; and [58]-[60] per Mortimer J; MZAGE v Minister for Immigration & Border Protection [2016] FCA 630 at [32] per Mortimer J. In this case:
a)the Minister, properly in his capacity as a model litigant, has identified those matters in Further Ground A and Further Ground B as possibly raising some form of legal error; and
b)Mr Choudhary gave evidence at hearing in relation to his claims of fraud or misrepresentation by migration agents possibly constituting a fraud on the Tribunal,
and was cross-examined on those claims by the Minister.
Tribunal Decision generally
Setting aside, for the moment, the matters the subject of Further Ground A and Further Ground B, the Court makes the following general observations as to the Tribunal Decision:
a)Mr Choudhary’s claims and evidence are set out in detail: CB 181-183;
b)the relevant law was set out in the Tribunal Decision: CB 184 at [31] and CB 187;
c)the Tribunal applied the law and considered Mr Choudhary’s claims and evidence: CB 184-185 at [32]-[46]; and
d)on its face, there is nothing illogical or irrational in the reasoning in the Tribunal Decision, and there is an evident and intelligible justification for the conclusions reached: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [76] per Hayne, Kiefel and Bell JJ.
Grounds 1-16
The Court notes that:
a)grounds 1-16 of the Judicial Review Application are, save for the inclusion in the Judicial Review Application of ground 13, in the same terms as an attachment (at CB 115-116) to an email sent by Mr Choudhary to the Tribunal on 6 June 2016: CB 114; and
b)grounds 2 to 5, 7 and 8, and 12 are substantially similar repetitions of seven of the eight paragraphs of a Statutory Declaration sworn by Mr Choudhary on 31 March 2015 seeking UWS to release him from his UWS enrolment.
The similarities between Mr Choudhary’s application to UWS for release from enrolment, his Tribunal review application and the Judicial Review Application suggest that Mr Choudhary does not understand that this Court cannot undertake merits review of the Tribunal Decision when considering the Judicial Review Application, and that the Court cannot determine Mr Choudhary’s Student Visa application: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Quin, CLR at 35-36 per Brennan J.
The substantive parts of grounds 1 to 16 of the Judicial Review Application, essentially grounds 2 to 14, do seek to have this Court undertake merits review of the Tribunal Decision. The large number of grounds merely reciting the factual circumstances of Mr Choudhary’s situation, do no more than plead for merits review, and do not establish jurisdictional error in the Tribunal Decision. Mr Choudhary’s plea at ground 14 to “understand my pain and kindly provide me another opportunity to start fresh so I can prove myself as good law abiding student and return home with flying colors and lot of confidence” exemplifies the merits based administrative decision-making function which Mr Choudhary seeks that the Court undertake, but which the Court cannot undertake: Wu Shan Liang; Quin.
Given that the Court cannot deal with grounds 1-16 of the Judicial Review Application it is unnecessary for the Court to deal with any alleged lack of particularisation of those grounds.
Further Ground A – fraud or misrepresentation by migration agents – whether fraud on the Tribunal
Mr Choudhary refers to dealings with migration agents which might, when read very beneficially in favour of Mr Choudhary, arguably have some element of fraud or misrepresentation, at grounds 7, 10, 11 and 12 of the Judicial Review Application as filed, and those grounds (which are set out at [9] above) need not be repeated here.
Jurisdictional error will occur on account of fraud by a third party if the Tribunal was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”: SZFDE at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. The imperative statutory functions are those governing the procedural fairness obligations in Pt.7, Div.4 of the Migration Act, and where such function is vitiated the Tribunal is found to have not made a decision at all: SZFDE at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
In contrast, where a migration agent has acted with negligence, inadvertence or incompetence, or simply failed to inform, that is not considered to be a fraud on the Tribunal, nor jurisdictional error: SZFDE at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZLIX at [30] and [33] per Tamberlin, Finn and Dowsett JJ. In SZLIX no inference could be drawn by the Court that the agent had a dishonest motive, that being a critical part of finding an agent had been fraudulent to a level which constituted jurisdictional error, and it was equally if not more likely an error or omission on the agent’s part was simply an innocent mistake. The level of satisfaction required in cases where fraud is alleged is that which was required in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336; [1938] ALR 334 (“Briginshaw”), CLR at 363-368 per Dixon J: SZLIX at [33] per Tamberlin, Finn and Dowsett JJ; SZHVM v Minister for Immigration & Citizenship [2008] FCA 600; (2008) 170 FCR 211 at [58] per Middleton J. In BLH15 v Minister for Immigration & Border Protection & Anor [2016] FCCA 1198; (2016) 310 FLR 429 (“BLH15”) at [46]-[47] per Judge Driver this Court observed as follows:
In SZFDE, it will be recalled that at [41], the Court endorsed the statement of French J (as his Honour then was) in the Full Federal Court that what was required to make out a case of fraud was proof of “what was said that was fraudulent, how it was fraudulent, and how it was acted upon”.
That the Briginshaw standard applies to the matters that must be proved to make out a case of fraud has generally been accepted. So for example, in Minister for Immigration v SZLIX, [(2008) 245 ALR 501; [2008] FCAFC 17] the Full Federal Court, dismissing a claim that the conduct of the agent in that case constituted “fraud on the Tribunal”, said in a frequently cited passage [at [33]]:
The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud. (emphasis added)
The Briginshaw standard is now, of course, codified in s.140 of the Evidence Act 1995 (Cth) (“Evidence Act”): Commonwealth & Anor v Fernando [2012] FCAFC 18; (2012) 200 FCR 1; (2012) 287 ALR 267; (2012) 126 ALD 10 at [128] per Gray, Rares and Tracey JJ. Thus, the applicable standard of proof is on the balance of probabilities, with the Court being obliged to take into account in deciding whether it is satisfied that the case has been proved, on the balance of probabilities, the following matters:
a)the nature of the cause of action or defence;
b)the nature of the subject matter of the proceedings; and
c)the gravity of the matters alleged: Evidence Act, s.140(2): Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459 (“Gama”) at [128]-[129] and [137]-[139] per Branson J.
The nature of the action in this case is an application for judicial review of the Tribunal Decision which comes before the Court for consideration of the possibility of a fraud sufficiently serious to stultify the Tribunal’s decision-making processes. The gravity of the issue is a circumstance which the Court must take into account when determining whether or not the burden of proof has been discharged, and the more serious the issue of which proof is required the more cogent or clear the evidence needed to establish it: Gama at [128]-[129] and [137]-[139] per Branson J.
Mr Choudhary made a number of claims concerning the conduct of migration agents in relation to the processing and review of his Student Visa application. The Court makes the following observations in relation thereto:
a)grounds 7, 10, 11 and 12 concern the conduct of migration agents prior to any application to the Tribunal for review of the Delegate’s Decision appearing to have been in contemplation. Therefore, no fraud on the Tribunal can readily be inferred. Furthermore:
i)ground 7 relates to the advice given to Mr Choudhary (and seemingly his family) concerning what courses to enrol in in Australia in order to be eligible for a visa. That conduct is irrelevant to the Tribunal’s function in reviewing the Delegate’s Decision, and cannot establish fraud on the Tribunal in an SZFDE or SZLIX sense;
ii)in ground 10, although there is a bare assertion of being misled, the factual basis for that assertion does not found a finding of misleading conduct, let alone fraud, in circumstances where the conduct complained of is, firstly, approaches to various colleges to see if “things” could get “sorted” to enable Mr Choudhary to “study further”, and, secondly, that no educational institute approached was prepared to provide a confirmation of enrolment letter to Mr Choudhary until he had received a release letter from UWS. Nothing in that set of factual circumstances gives rise to a fraud on the Tribunal, nor does it appear to establish misleading conduct of any kind;
iii)ground 11 complains about a migration agent who seemingly applied to the then Migration Review Tribunal as a consequence of the cancellation of Mr Choudhary’s Student Visa, but it would appear that at that stage the Student Visa had not been cancelled, but rather the NOICC had been received, and there was therefore no basis for administrative review of a cancellation because none had taken effect. Again, that conduct does not give rise to a fraud on the Tribunal when that conduct occurred at a stage where no administrative review was seemingly possible; and
iv)ground 12 complains of Mr Choudhary being “misguided”, and that the migration agents had not “provided me with appropriate method to get out of this situation and hence, I made this mistake”. Precisely what mistake Mr Choudhary is adverting to is not readily apparent. It needs to be borne in mind that Mr Choudhary came to Australia on a Student Visa and proceeded to study for a period of about one week, and has not been enrolled in a registered course since April 2015. Against that background it might have been difficult for any migration agent to retrieve the situation, but to the extent that they endeavoured to do so the evidence rises no higher than the migration agents possibly having given poor, incompetent or negligent advice to Mr Choudhary, or, on Mr Choudhary’s evidence, the migration agents were unable to get him what he wanted: see [15(d)] above. Conduct of that type by migration agents again does not constitute a fraud on the Tribunal in an SZFDE or SZLIX sense;
b)the Tribunal Decision expressly dealt with claims by Mr Choudhary of migration agents allegedly misleading him at CB 181 at [12] and CB 182 at [18], where the claims there made are set out by the Tribunal in similar terms to grounds 7, 10, 11 and 12 of the Judicial Review Application. The Tribunal considered Mr Choudhary’s claims in this regard and at CB 185 at [43] found as follows:
43. The applicant claims he comes from a small village, has uneducated parents and had limited experience and was given poor migration advice before he arrived in Australia. The Tribunal finds that the applicant was 22 years old when he arrived in Australia. He is an educated person who was able to complete a two year Business Management course in India. The Tribunal finds he was in a position to make informed choices about his migration options and the appropriate study pathway in Australia.
Nothing in what was claimed by Mr Choudhary rises to the level of a fraud on the Tribunal. Furthermore, the Court notes that there is currently no evidence before the Court, such as a recording or transcript of the Tribunal hearing, which would suggest that the applicant was not given a real and meaningful hearing before the Tribunal. The Court also notes that the applicant did not avail himself of the opportunity to file such further evidence in these proceedings, notwithstanding the Registrar’s Orders allowing him to do so. In the absence of such evidence, or evidence on the face of the Tribunal record making out the claim, any allegation that the Tribunal did not allow the applicant to properly deal with these matters, or that the Tribunal did not deal with these matters (properly or otherwise), cannot succeed: NAOA vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ; SZTBR v Minister for Immigration & Border Protection [2014] FCA 582 at [6] per Pagone J; Brar v Minister for Immigration & Border Protection & Anor (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev;
c)Mr Choudhary provided the Tribunal with additional documentation and submissions in support of his application for review of the Delegate’s Decision, and attended the Tribunal Hearing to further present his case. Mr Choudhary was not denied procedural fairness, nor was he deprived of an opportunity to meaningfully present his case to the Tribunal; and
d)the evidence given by Mr Choudhary at hearing before this Court did not establish any fraud on the Tribunal, and indeed his evidence, both in-chief and in cross-examination, was that he did not seek or obtain representation or advice from a migration agent in relation to the application to the Tribunal for review of the Delegate’s Decision, but, in any event he did not attribute any conduct to a migration agent such as to demonstrate the Tribunal had been misled or deceived (as to the latter see [32(b)] above).
Even if Mr Choudhary received poor, incompetent or even negligent, advice from migration agents regarding his choice of visa and education course prior to coming to Australia, and then in Australia until the time of the cancellation of the Student Visa, if such advice was the cause of the cancellation of Mr Choudhary’s Student Visa, and that, it must be said, is extremely doubtful on the evidence, it is not sufficient, for the reasons set out above, to have been a fraud on the Tribunal which vitiated the Tribunal Decision, and does not warrant judicial intervention: SZSXT v Minister for Immigration & Border Protection [2014] FCAFC 40; (2014) 222 FCR 73; (2014) 307 ALR 31 at [52] per Perram, Robertson and Griffiths JJ; SZLIX at [33] per Tamberlin, Finn and Dowsett JJ. Likewise with respect to the Tribunal Decision, save that that conclusion as to the lack of warrant for judicial intervention is made more manifest by Mr Choudhary’s evidence that he did not rely upon a migration agent for the purposes of conducting his review application before the Tribunal, and thus there can be, on Mr Choudhary’s own evidence, no evidence of a fraud on the Tribunal involving a migration agent. Otherwise, and in any event, any evidence that there is does not satisfy the requisite standard of proof (on the balance of probabilities) to sustain such a grave complaint as fraud on the Tribunal: Evidence Act, s.140; Gama at [128]-[129] and [137]-[139] per Branson J. In relation to the Tribunal there is no evidence of what was said to be fraudulent, how it was fraudulent, or how it was acted upon by the Tribunal: SZFDE at [41] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; BLH15 at [46] per Judge Driver.
The Court finds no jurisdictional error in the Tribunal Decision on the basis of Further Ground A.
Further Ground B – whether failure to give sufficient weight to the evidence
Further Ground B asserts that the education provider, the Department and the Tribunal either did not consider, or did not give sufficient weight to, Mr Choudhary’s “situation, circumstances and mental pain.” What was done by any education provider or by the Department is not relevant for present purposes when assessing on judicial review whether or not the Tribunal committed a jurisdictional error.
Questions as to the weight to be attached to evidence and material before the Tribunal is generally not a matter for this Court: Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at [32] per Sundberg, Emmett and Conti JJ; Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The Tribunal considered Mr Choudhary’s “situation, circumstances and mental pain” when having regard to other relevant factors when considering whether to exercise the discretion to cancel the Student Visa: CB 184-185, expressly noting that:
… the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department's Procedures Advice Manual (PAM3).
CB 184 at [36].
The Tribunal specifically considered Mr Choudhary’s mental health claims, including the February 2014 Medical Invoice from the doctor he saw on 19 February 2014, but did not consider that the February 2014 Medical Invoice supported Mr Choudhary’s claims that he was depressed and had contemplated suicide: CB 185 at [41]. There was no error, jurisdictional or otherwise, in the Tribunal’s conclusion in that regard. In circumstances where the February 2014 Medical Invoice did no more than set out the details of the doctor and practice which Mr Choudhary attended, and the fact of the receipt of $65 from Mr Choudhary for a “standard consult Item 23”, and Mr Choudhary’s date of birth: CB 141, the Tribunal’s conclusion is unsurprising. There is no indication in the February 2014 Medical Invoice of any medical or mental health condition that Mr Choudhary might have had, or which might have adversely affected him, as at 19 February 2014. There are judgments of the Federal Court and this Court that establish that a person alleging a medical condition, and seeking to rely upon that medical condition, cannot rely upon a bare medical certificate, and that they need to provide sworn evidence to the Court concerning the medical condition from a person in a position to give such evidence, which is necessarily expert in its content: see NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [5]-[10] per Lindgren J; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [35] per Perry J; Singh v Minister for Immigration & Border Protection [2016] FCA 108 at [2] per Pagone J; AJY16 v Minister for Immigration & Anor [2017] FCCA 565 at [33] per Judge Lucev. There was no evidence which could sustain a finding either that Mr Choudhary had a medical or mental health condition, or a medical or mental health condition of sufficient seriousness, to warrant his adopting the course that he chose to undertake in abandoning the educational course in respect of which the Student Visa was originally granted. There is no evidence of a kind that would justify a conclusion that the Tribunal made a jurisdictional error by failing to have proper regard to Mr Choudhary’s claims concerning his medical or mental health condition.
For the sake of completeness, the Court observes that Mr Choudhary has not pointed to any claim which was not addressed by the Tribunal. The Court considers the Tribunal has dealt with each claim made by Mr Choudhary. A finding that the Tribunal has failed to consider an integer of a claim or engage in an active intellectual process concerning a claim should not be lightly made in the absence of clear evidence: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [47] per Griffiths, White and Bromwich JJ, and in this matter no such finding can be made concerning the Tribunal Decision.
The Court finds no jurisdictional error in the Tribunal Decision on the basis of Further Ground B.
Conclusion and orders
For the reasons set out above the Court has concluded that Mr Choudhary has failed to establish any jurisdictional error in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 28 February 2018
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