Deol v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 859
Federal Circuit and Family Court of Australia
(DIVISION 1)
Deol v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 859
File number(s): SYG 2608 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 21 October 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – whether the Tribunal fell into jurisdictional error in making its decision – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed Legislation: Migration Act 1958 (Cth) ss 116, 362, 476
Migration Regulations 1994 (Cth)
Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 18 October 2022 Date of hearing: 18 October 2022 Place: Sydney Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Wong appeared on behalf of the First Respondent. ORDERS
SYG 2608 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: GURBAGEECH SINGH DEOL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
21 OCTOBER 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant to pay the First Respondents costs, fixed in the amount of $4500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 HUMPHREYS
Introduction
The applicant is a citizen of India. On 1 July 2014, the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. The visa was subject to condition 8202, which relevantly required that the applicant be involved in a registered course of study.
On 1 December 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Migration Act 1958 (“the Act”). The NOICC notified the applicant that his Provider Registration and International Student Management System (“PRISMS”) records indicated he had failed to comply with condition 8202(2)(a) on the basis that he had not been enrolled in a registered course since 6 April 2017.
On 4 December 2017, the applicant responded to the NOICC. The applicant stated that his enrolment had been cancelled because of a “shortage of funds” and lack of knowledge. The applicant stated that he was trying to find a “good college” and would work hard to meet his visa requirements again. The applicant requested that the Department not cancel his visa.
On 16 January 2018, delegate of the Minister for Immigration (“the delegate”) made a decision to cancel the applicant’s visa on the basis that the applicant had failed to comply with condition 8202 and the grounds for cancelling the visa outweighed those in favour of not cancelling the visa.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). The applicant did not attend a scheduled hearing before the Tribunal on 23 September 2019. That day, the Tribunal affirmed the delegate’s decision to cancel the applicant’s Student visa.
The ADMINISTRATIVE APPEALS Tribunal Decision
The Tribunal decision is relatively short. At paragraph 2 of the decision, the Tribunal noted that the applicant’s visa was granted on the basis that he was enrolled in and would successfully complete a number of educational courses.
At paragraph 5 of its decision, the Tribunal noted the applicant was invited to attend the hearing scheduled for 23 September 2019. On 13 September 2019 the Tribunal received an email from the applicant’s registered Migration Agent in response to the invitation, requesting that the hearing be postponed “due to [the Applicant’s] personal circumstances”. No further elaboration upon these circumstances was provided to the Tribunal.
At paragraph 6 of its decision and onwards, the Tribunal noted that request for adjournment of a scheduled hearing would not be granted simply on the basis of the convenience of the review applicant or the representative.
Further, the Tribunal was not satisfied that the request for adjournment was reasonable. Accordingly, the Tribunal determined pursuant to s 362B(1A)(a) of the Act to consider the matter and make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
At paragraphs 12 through to 16, the Tribunal noted that the applicant’s visa was subject to condition 8202(2)(a) that he remain enrolled in a registered full-time course. Information gained from the applicant’s records contained within PRISMS indicated that he had not been enrolled in a registered course of study from 6 April 2017, due to non-payment of fees.
A NOICC was sent to the applicant on 1 December 2017 noting the non-compliance. The applicant responded via email on 4 December 2017. The applicant did not dispute that he was in breach of the full-time enrolment condition. Accordingly, the Tribunal concluded that the applicant was in breach of the conditions on his visa.
Having found that there was a breach, the Tribunal at paragraph 17 and onwards of its decision, considered whether or not it should exercise its discretion to cancel the applicant’s visa. In so doing, the Tribunal considered the relevant matters identified in the Department’s Procedures and Advice Manual (PAM3- General Visa Cancellation Powers).
In relation to the circumstances giving rise to the breach, the applicant stated that he was unable to remain enrolled in a registered course of study because of a shortage of funds. The applicant stated that he was unaware that his course provider had cancelled his enrolment. The applicant was apologetic for his non-compliance. The Tribunal did not accept that the applicant was unaware that his course provider had cancelled his enrolment. It would be inevitable, if the applicant did not pay the required fees, that the course provider with terminate his enrolment. Further, there was no evidence before the Tribunal to suggest the applicant took any steps to seek a formal deferral of his studies or negotiate a payment plan with his course provider. Further, there were no extenuating circumstances which justified the applicant remaining in breach of the enrolment condition for more than nine months.
At paragraphs 21 and 22 of its decision, the Tribunal was not satisfied that there was a compelling need for the applicant to remain in Australia.
At paragraph 23 of the Tribunal decision, beyond the non-compliance with condition 8202, there was no information that the applicant had been otherwise non-compliant with conditions attached to his visa.
At paragraph 24, the Tribunal gave consideration to the applicant’s expressed desire to remain in Australia. However, the applicant was granted the visa to enable him to study. The applicant did not provide a satisfactory explanation for not complying with that fundamental condition.
The Tribunal noted that there was no adverse evidence in terms of the applicant’s behaviour towards the Department, and that it did not appear that there would be any consequential cancellations if the applicant’s visa was cancelled. The Tribunal considered the legal consequences of the cancellation and whether or not the cancellation would result in the engagement of any of Australia’s international obligations. This was not the case.
At paragraph 30 of the decision, considering all of the matters discussed above, the Tribunal was satisfied that the applicant’s visa ought to be cancelled.
Grounds of Judicial Review
The grounds of judicial review relied upon are set out in the applicant’s Initiating Application filed with the Court on 9 October 2019. They are as follows (without alteration except to redact some personal information):
1. My name is Gurbageech Singh Deol (DOB 29/XX/XXXX) and I am the holder of passport No XXXXX .
2. My visa with was cancelled under s116(1)(b) of the migration act because I was not enrolled for full-time study at some stage. The immigration send me notice that they want to cancel my visa and to explain why they should not. I tried to explain what happened in that it was due to funding problems for me but the immigration did not listen to my reasoning and they cancelled my visa.
3. I then applied to the Administrative Appeals Tribunal (AAT) for a review of this decision as I knew if I could get funding I could study again and meet my conditions for the visa.
4. The AAT did not consider my reasons and justification fairly and affirmed the decision of the immigration Department on 23 September 2019.
5. I believe that both the AAT and Department of Home affairs did not consider the facts, reasons and evidence I provided to support my application and they did not give me a proper chance to show I am genuine student
6. The unfair decision of the Department and the AAT will have a horrible impact on my life I would like the Federal Circuit Court to consider this when looking at my case.
7. I think the AAT has made jurisdictional error in making decision for my application and I would like the Federal Circuit Court to review this.
8. I would like the court to find this jurisdictional error so that my application will be returned to the AAT for further reassessment.
9. I can provide the court any information they need to help me in the situation and I think the court for taking time to consider my application.
10. I realise I could not remain enrolled due to my finances but I genuinely tried to fix my situation. I guarantee that I’m a goodhearted person who will abide by all laws and conditions that are put on me and respect the values of Australia during the short time I am here.
THE Applicant’s Submissions
The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wished to.
At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant initially told the Court that he had nothing to say in relation to the grounds of judicial review. The applicant claimed that his lawyer had drafted something and he could not add anything to those grounds.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. The applicant answered that had he been aware that he needed to enrol in a registered course before the Tribunal hearing, he would have done so. The applicant stated that he received no advice from his migration agent.
Consideration
Grounds one, two and three are background narrative and do not allege any jurisdictional error. To the extent that the applicant takes issue with the delegate’s decision in grounds 2 and 5, the Court notes that it does not have any power to review that decision pursuant to s 476(2)(a) of the Act.
Ground four and five can be dealt with together. The grounds contend that the Tribunal did not consider the applicant’s “reasons and justification” and “facts, reasons and evidence” to demonstrate that he was a genuine student. It was submitted on behalf of the first respondent, that no particulars were provided to identify what was allegedly overlooked by the Tribunal. If the grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35]).
The only information before the Tribunal was the applicant’s response to the NOICC. The applicant claimed that the reason for his non-compliance was a shortage of funds. This was not a satisfactory explanation as it was a requirement of all international students that they maintain a sufficient level of personal finances to meet their tuition costs and living expenses while in Australia.
The Court is satisfied the Tribunal clearly set out its findings in relation to each of the matters before it, by reference to the relevant Departmental Policy contained in PAM 3. The Court is satisfied that there is nothing legally unreasonable, irrational, or illogical, or lacking in sufficient evidentiary basis, for any of the conclusions reached by the Tribunal. The first respondent submitted that these grounds at the highest, simply express emphatic disagreement with the findings of the Tribunal and should fail. The Court accepts this submission.
Ground six states that the decision will have a horrible impact on the applicant’s life and asks the Court to consider this assertion. The Court understands this, if it is anything other than a simple statement of the impact of the decision, to be a request for impermissible merits review by the Court.
The first respondent submitted that to the extent that this ground contends that the Tribunal failed to consider the impact of the cancellation upon the applicant, this clearly fails. This was clearly considered at paragraph 24 of the decision together with the legal consequences that would follow at paragraphs 27 to 28 of its decision.
The Tribunal noted that the applicant’s desire to remain in Australia was “tempered” with the extent of his non-compliance of the conditions of his visa. All relevant matters were considered by it. It was further submitted by the first respondent that, to the extent that the applicant takes issue with the Tribunal’s decision to proceed to make a decision on the review pursuant to
s 362B(1A)(a) of the Act, there was nothing unreasonable in this decision. The applicant was clearly on notice that his request for a postponement had been refused but never the less failed to attend: (see; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30). The Court accepts these submissions. Ground six has no merit.
Grounds seven and eight blandly assert jurisdictional error but provide no particulars of what these errors are. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW at [35]). Grounds seven and eight have no merit.
Grounds nine and ten do not assert jurisdictional error. Ground nine offers to provide additional information. Ground ten simply seeks impermissible merits review.
As the applicant is unrepresented, the Court is considered the relevant materials in the matter including the decision record of the Tribunal. The Court is unable to find any unarticulated jurisdictional error.
CONCLUSION
Accordingly, the application must be dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate: Nazrana Saheb
Dated: 21 October 2022
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