Dhungana v Minister for Immigration and Border Protection
[2018] FCA 139
•16 February 2018
FEDERAL COURT OF AUSTRALIA
Dhungana v Minister for Immigration and Border Protection [2018] FCA 139
Appeal from: Dhungana v Minister for Immigration and Border Protection [2017] FCCA 678 File number: NSD 912 of 2017 Judge: BROMBERG J Date of judgment: 16 February 2018 Catchwords: MIGRATION – cancellation of student visa – appeal from Federal Circuit Court – where discretion to cancel engaged through appellant’s non-satisfaction of enrolment condition – where appellant claimed compelling circumstances – whether Tribunal failed to take account of circumstances in exercise of discretion – no appellable error identified – appeal dismissed Legislation: Migration Act 1958 (Cth), s 116 Cases cited: Dhungana v Minister for Immigration and Border Protection [2017] FCCA 678 Date of hearing: 16 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The Appellant appeared in person assisted by an interpreter Solicitor for the First Respondent: Ms J Strugnell of MinterEllison Counsel for the Second Respondent: The Second Respondent filed a submitted notice, save as to costs ORDERS
NSD 912 of 2017 BETWEEN: SARAYU DHUNGANA
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
16 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
The appellant is a citizen of Nepal. She appeals from a decision of the Federal Circuit Court of Australia, published as Dhungana v Minister for Immigration [2017] FCCA 678. In that decision, the primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent (“Tribunal”) made on 30 June 2016. The Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) to cancel the appellant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (“visa”).
The delegate had cancelled the appellant’s visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the appellant did not comply with condition 8202 attached to her visa. Relevantly, the appellant was found to have not complied with condition 8202 because she had not been enrolled in a registered course as required by condition 8202(2).
The Tribunal found that the appellant was not enrolled in a registered course and had not complied with condition 8202(2). Having made that finding the Tribunal turned to consider whether, in the exercise of the Tribunal’s discretion, the appellant’s visa should be cancelled. Ultimately, the Tribunal was satisfied that the visa should be cancelled and affirmed the cancellation decision made by the delegate.
Given the grounds raised by this appeal, it is only necessary to extract that part of the Tribunal’s reasons in which consideration was given to the appellant’s explanation for the breach of her visa condition.
At [19]–[22], the Tribunal said this:
[19]The Tribunal has carefully considered the applicant’s explanations. The Tribunal accepts as plausible that the applicant’s father had a motorbike accident which led to his hospitalisation and that her grandmother had an ongoing and long-term mental health condition. The Tribunal accepts that there was an earthquake in Nepal that occurred in Nepal on 25 April 2015 which damaged the family home, however and as noted in the course of the hearing, the earthquake occurred towards the last few months of the relevant period of non-enrolment and consequently the Tribunal is not satisfied that the earthquake had contributed to the applicant’s inability to pay her tuition fees as she has claimed. As discussed in the course of the hearing, when the applicant applied for the student visa, she had to provide evidence that she had access to sufficient funds for tuition fees, living and other expenses. However evidence about the source of fund was confused, incoherent and she was unable to explain to the Tribunal what has happened to the claimed loan of equivalent $50,000.
[20]The Tribunal appreciates that the applicant is a young person and it is plausible that her parents made arrangements for the loan but her inability to explain to the Tribunal raised some doubts about the information that had been provided in support of the visa application, as well as her evidence to the Tribunal. The applicant was not enrolled for a period of one year which is a substantial period of time and it is reasonable to expect that she would have resolved the claimed financial issues in order to ensure that she complied with the conditions of her visa. Her claim that she was depressed is unsupported and the Tribunal has serious doubts.
[21]On the basis of the available information, the Tribunal does not accept that the applicant was depressed and was not in a position to resolve the issues that were facing her. She was granted a visa to study in Australia yet she did not enrol for a year. It is also important to consider this in the context of the applicant’s academic performance prior to the non-enrolment period as discussed in the course of the hearing. Given her own admission that her performance was not satisfactory, it is difficult to accept that the applicant did not take active steps to ensure that she would not breach her visa conditions; not to enrol for a whole year is a serious matter in the case of a holder of a student visa; it goes to the core of the purpose of the visa.
[22]Whilst the Tribunal accepts as plausible that the explanations advanced by the applicant in relation to the family difficulties might have played part, on balance, the Tribunal is not satisfied that those circumstances mean that the visa should not be cancelled. The applicant was granted the visa in order to study in Australia.
There were five grounds of appeal raised before the primary judge. Each was rejected. To some extent, those grounds raised issues different to those raised here.
On this appeal, the appellant has raised the following grounds of appeal:
1.While I accept His Honour's judgment in that my lack of enrolment and non compliance for about a year was inconsistent with that purpose His Honour as well as the Tribunal failed to accept my compelling circumstances and the consequences of the earthquake in Nepal 1n April 2015 which damaged the family home and which attributed to my depression and inability to honour my visa conditions and study.
2.I do believe that the Tribunal's failure not to exercise its discretion in my favour is indeed a denial of procedural fairness and natural justice because the Tribunal had my severe circumstances yet acted contrary to them.
3. I ask the Honourable Court to deal with my review as I believe that the Tribunal's process was unfair and failed to take into account a relevant consideration.
Ground 1
I have some doubt that ground 1 was raised before the primary judge. Certainly, it was not raised in the specific terms in which it is now raised. The substance of ground 1, being that the Tribunal erred by failing to accept what the appellant has described as her “compelling circumstances”, may well have been encompassed in the more broadly put challenge to the Tribunal’s exercise of its discretion raised by grounds 1 and 2 before the primary judge. I will proceed on the basis that leave to raise ground 1 is not required. In my view, there is no merit in ground 1 in any event.
The appellant’s circumstances which she describes as “compelling” were considered by the Tribunal as the extract from the Tribunal’s reasons which I have earlier set out demonstrates. The Tribunal doubted that financial difficulties were the cause of the appellant’s non-enrolment. The Tribunal did not accept that the appellant was depressed, and therefore did not accept that depression was the cause of the non-enrolment.
Those were matters for the Tribunal to assess and weigh up in the exercise of the Tribunal’s discretion. The Tribunal was entitled to reject, or not regard as of great significance, those circumstances that the appellant asserted explained her non-enrolment. Whilst the appellant may disagree with the conclusions reached by the Tribunal, there was no jurisdictional error in the Tribunal coming to the conclusions that it did and no appellable error in the primary judge not identifying any jurisdictional error made by the Tribunal.
Ground 1 must therefore be rejected.
Ground 2
This ground misunderstands the principle of procedural fairness and the right to be heard which the appellant was entitled to under the Act. It is suggested the appellant was denied a right to be heard because what she had to say was not accepted. The non-acceptance of the appellant’s case is not demonstrative of a failure to hear and take into account the case put by her. It seems to me that the ground reagitates ground 3 before the primary judge. As to that ground, at [16(c)], the primary judge said this:
there is no evidence to support a contention that the Tribunal did not comply with its statutory procedural fairness obligations, and in particular, ss. 359A and 360 of the Migration Act. In particular, the Tribunal correctly invited Ms Dhungana to a hearing on 23 June 2016 in accordance with s.360 of the Migration Act, and Ms Dhungana was on notice of the issues arising in relation to the decision under review, including Ms Dhungana’s lack of enrolment and the PRISMS record.
There is no error in the primary judge’s reasoning. I reject ground 2.
Ground 3
This ground essentially seeks to reagitate ground 4 before the primary judge. As to that ground, the primary judge said this at [16(d)] (citations omitted):
the Tribunal did not fail to consider a mandatory consideration and did not consider a matter that it was prohibited from considering. In particular, the Tribunal had regard to the relevant parts of the Migration Act and the Regulations, as well as the department’s PAM3.
Again, I can see no error in the primary judge’s reasoning. Ground 3 must also be rejected.
In submissions made by the appellant this morning, the appellant referred to ground 5 that was before the primary judge. It is not clear to me whether she agitates any error in the way in which his Honour dealt with ground 5. Nothing said in the submission identifies any error in the way in which ground 5 was dealt with. I have considered his Honour’s reasoning for rejecting ground 5 and no appellable error is apparent to me.
For all of those reasons, this appeal must be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 23 February 2018
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