EII17 v Minister for Immigration

[2018] FCCA 1276

FEDERAL CIRCUIT COURT OF AUSTRALIA

EII17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1276

Catchwords:
MIGRATION – Administrative Appeals Tribunal – cancellation of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – whether the applicant had a real and meaningful hearing – whether the Tribunal complied with its statutory obligations in the conduct of the review – whether the adverse findings by the Tribunal were reasonable – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: EII17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2995 of 2017

Judgment of: Judge Street

Hearing date: 18 May 2018

Date of Last Submission: 18 May 2018

Delivered at: Sydney

Delivered on: 18 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S Given
HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2995 of 2017

EII17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 September 2017 affirming a decision of the delegate to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.

2. The applicant was found to be a citizen of China. By letter dated 5 July 2016, the applicant was sent a Notice of Intention to Consider Cancellation of his visa under s 116 of the Act for breach of condition 8202 and that according to the Provider Registration and International Student Management System’s records, the applicant had not been enrolled in a registered course of study since 8 August 2015 and accordingly, was in breach of condition 8202(2)(a).

3. On 26 July 2016, the delegate found the applicant was in breach of condition 8202 and was not satisfied, notwithstanding considering the applicant’s circumstances, that the grounds for not cancelling the visa outweighed the grounds for the cancelling the visa and decided to cancel the visa.

The Tribunal

1. The applicant lodged an application for review with the Tribunal on 4 August 2016. By letter dated 15 June 2017, the applicant was invited to attend a hearing on 20 July 2017. The applicant appeared on that date to give evidence and present arguments. The Tribunal’s reasons identified the background to the application for review and the Tribunal and that the applicant attended on 20 July 2017 to give evidence and present arguments. The Tribunal noted that during the hearing the applicant acknowledged that he had ceased to be enrolled in a registered course on 8 April 2015 and had not been enrolled in a registered course since that date.

2. The Tribunal identified giving the applicant an opportunity to put on further submissions after the hearing, providing three weeks, and that the Tribunal then provided a further 14 days. The applicant then requested more time which the Tribunal declined to provide and proceeded to make its decision. The Tribunal found that the applicant did not comply with condition 8202(2) and turned to consider whether to exercise the discretion to cancel the visa.

3. The Tribunal expressly took into account the applicant’s circumstances as he had explained and the applicant’s desire to study as well as the psychologist’s report suggesting that he was suffering from depression and anxiety. The Tribunal noted that the applicant would have been able to meet his visa obligations had he sought a deferral from the relevant course on medical grounds and the applicant said that he was not aware of that option.

4. The Tribunal referred to the applicant’s desire to study and that he had proposed that after studying English to progress to a Bachelor degree in business. The Tribunal informed the applicant that it was unlikely to make a favourable decision on its discretion to reinstate the visa unless the applicant was in fact enrolled in a higher education sector course.

5. The Tribunal found the applicant was in breach of condition 8202 for a period of more than 15 months. The Tribunal assessed whether there were extenuating circumstances beyond the applicant’s control. The Tribunal was not satisfied that the depression and anxiety had been as significant as claimed by the applicant. The Tribunal also noted that the applicant had taken no steps to seek a Mandarin-speaking psychologist and that this was at odds with the indication in the psychologist’s report that the applicant accepted the need for consultation. The Tribunal did not accept that that condition was as severe as the applicant alleged.

6. The Tribunal found that the applicant must have been aware that not being enrolled in a registered course of a higher education sector course for many months created a risk in terms of his visa obligations. The Tribunal found the applicant did not take any significant steps to explore options in relation to potential breaches until after he received his notice of intention to cancel the visa. It was in those circumstances the Tribunal was not satisfied there were extenuating circumstances beyond the applicant’s control that justified the breach of condition 8202 of more than 15 months.

7. The Tribunal took into account the applicant’s claims of hardship and desire to remain studying in Australia. The Tribunal also took into account the consequences for the applicant in cancelling the visa as well as the applicant’s statement that he ultimately intended to return to China.   The Tribunal found there were no non-refoulement obligations that were enlivened in relation to the applicant’s case. The Tribunal found the breach of the conditions were significant breaches given the period of time and was not satisfied there were extenuating circumstances beyond the applicant’s control that justified the breaches. Whilst the Tribunal accepted that the applicant may suffer some hardship, balancing the discretionary factors, the Tribunal was of the view that it should exercise its discretion to cancel the visa and the Tribunal affirmed the decision under review.

Before this Court

1. On 15 November 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

The applicant’s submission from the bar table

1. From the bar table, the applicant maintained that the Tribunal were aware of his circumstances and invited him to enrol in a higher education course. The applicant contended that because he did not have a substantive visa he could not enrol in any such course. No evidence was put on in support of that contention. The Tribunal’s reasons reflect giving the applicant a further opportunity after the hearing, which the applicant attended, to put on further submissions. No further submissions were put on in that regard and a second opportunity was provided by the Tribunal to put on submissions. When no submission were put on it was legally reasonable for the Tribunal to proceed to determine the matter in the circumstances. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the originating application are as follows:

   1. AAT is not satisfied that the depression and anxiety has been as significant, one of the reason is that I failed to seek any medical or mental health treatment until after receipt of the NOICC. I think AAT does not consider my practical situation. When I arrived to Australian, I could not adapt to the living environment due to language barrier and cultural differences, and the study pressure and the expectation from my parents made me more pressed. In the beginning, I did not think I feel so anxiety and I only adjusted my condition by myself, I also hoped I could recover as soon as possible. However, I could not imagine that my pressure had a negative impact on my education. Therefore, I sleeked help from my friends and relatives and I screwed up my courage to see the psychologist. The whole process indeed last for a long time, because only people who are seriously ill would see a psychologist in my culture.

   2. The diagnosis of the psychologist indicate that I had long-standing depression and anxiety, but AAT does not believe this, they state that I stopped taking antidepressants within 3 to 4 weeks. The reasons for stopping antidepressants is that the psychologist told me that I should not rely on medicine, if I felt better I could stop taking antidepressants. But AAT stated that I did not act on the advice of the psychologist and was at odds with the indication in the psychologist’s report. There is no scientific evidence proving that.

   3. I understand that 576 student visa requires me to be enrolled in a higher education sector course, and I know my English level is not enough, so I have completed two English courses. Although AAT understands my study goal, why did not they forgive the breach of condition 8516? I am only student who wants to study hard and can not understand the visa requirements. If AAT are human-based management enough, they should understand my practical situation.

Ground 1

1. Ground 1 refers to the applicant’s condition and the steps he took to see a psychologist. Nothing in that ground identifies any relevant legal error by the Tribunal. The Tribunal found the applicant’s depression and anxiety was not as severe as the applicant had contended and found that the breaches in the present case were significant over a significant period of time.

2. On the face of the material before the Court, the applicant had a real and meaningful hearing. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. As explained to the applicant at the outset, the Court has also considered whether the Tribunal’s decision is unfair. In that regard, there is nothing on the material before the Court to satisfy the Court that the review was conducted contrary to the requirements of procedural fairness. Nothing in ground 1 of the grounds of the application identifies any jurisdictional error.

Ground 2

1. In relation to ground 2, the applicant taking antibiotics and acting or not acting on the advice of his psychologist does not identify any relevant error by the Tribunal. In summary, what ground 2 seeks to do is invite this Court in engage in impermissible merits review. This Court does not have power to review the merits. Ground 2 the application fails to make out any jurisdictional error.

Ground 3

1. In relation to ground 3, the applicant acknowledged that he had to be enrolled in a higher education sector and that his English requires attention and, in essence, asked for the breach to be forgiven and that the Tribunal should have understood his situation. It is apparent that the Tribunal did address the applicant’s personal circumstances in detail in considering whether to exercise the discretion not to cancel the visa There is no applicable error in the exercise of the discretion by the Tribunal in the circumstances of the present case. The adverse finding by the Tribunal in the exercise of its discretion to determine the review was reasonable and cannot be said to lack an evident and intelligible justification. No jurisdictional error is disclosed by ground 3 of the application.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 July 2018