Giri v Minister for Immigration

[2017] FCCA 2807

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIRI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2807

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.116, 117, 359A, 360, 426
Migration Regulations 1994 (Cth)

Applicant: KESHAV GIRI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1162 of 2017

Judgment of: Judge Driver

Hearing date: 16 November 2017

Delivered at: Sydney

Delivered on: 16 November 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Saunders of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1162 of 2017

KESHAV GIRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Giri, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 March 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Mr Giri’s student visa.  Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 9 November 2017. 

2. Mr Giri is a male citizen of Nepal born on 5 January 1989[1].

   [1] Court Book (CB) 21

3. On 12 May 2014 Mr Giri was granted a student (subclass 573) higher education sector visa[2].

   [2] CB 2

4. Mr Giri’s subclass 573 visa was subject to condition 8202, pursuant to clause 573.611(a) of Schedule 2 to the Migration Regulations 1994 (Cth) as in force at date of the visa grant. Condition 8202(2)(a) relevantly required that Mr Giri be enrolled in a registered course.

5. Section 116 of the Migration Act 1958 (Cth) (Migration Act) provides the Minister with the power to cancel visas in certain circumstances, including where the visa holder has not complied with a condition of the visa[3].

   [3] Section 116(1)(b)

6. On 12 May 2016 Mr Giri was sent a Notice of Intention to Consider Cancellation (NOICC) which advised that it had come to the attention of the delegate that there appeared to be a ground for cancelling his visa under s.116(1)(b) of the Migration Act, namely that he was in breach of condition 8202[4]. 

   [4] CB 2

7. Mr Giri responded on 18 May 2016, seeking an extension of four weeks[5].  A visa cancellation officer notified Mr Giri the following day that in accordance with the legislation, he had been provided with a five working day extension[6].  Mr Giri did not provide anything further to the Minister’s Department.

   [5] CB 7

   [6] CB 8

8. On 31 May 2016 the delegate cancelled Mr Giri’s student (subclass 573) (higher education sector) visa under s.116(1)(b) of the Migration Act[7].  The delegate found that Mr Giri had not been enrolled in a registered course of study since 28 October 2014, and therefore breached condition 8202[8].

   [7] CB 11

   [8] CB 12

9. Mr Giri applied for review of this decision[9].  The delegate’s notification of cancellation was attached to the application.  It contained a statement that Provider Registration and International Student Management System (PRISMS) records indicated that Mr Giri had not been enrolled in a registered course of study since 28 October 2014.

   [9] CB 21

10. Mr Giri appeared before the Tribunal on 21 March 2017[10].  The Tribunal affirmed the decision under review on the same day[11].

    [10] CB 40

    [11] CB 47

The decision of the Tribunal

1. The Tribunal noted that Mr Giri had intended that two witnesses give evidence however he had been unable to contact them, so they did not appear at hearing and neither of the witnesses had provided statements to the Tribunal in support of Mr Giri’s claims[12].

   [12] See CB 49, [9]

2. On the evidence before it, the Tribunal found that Mr Giri was not enrolled in a registered course and accordingly had not complied with condition 8202(2) [13]. Having found that Mr Giri had not compiled with a condition of the visa, the Tribunal then considered whether to exercise its discretion to cancel the visa[14]. The Tribunal noted that there are no matters specified that are required to be considered in relation to the exercise of its discretion as to why the visa should be cancelled, and so it looked to the government policy guidelines (PAM3) [15].

   [13] See CB 50, [18]

   [14] See CB 51, [19]

   [15] See CB 51, [20]

3. The Tribunal considered the following factors[16]:

   a)Mr Giri did not provide a response to the NOICC and did not approach the Minister’s Department about asserted difficulties concerning him not being able to continue his studies because of financial difficulties;

   b)Mr Giri conceded that he was in breach of his student visa conditions by not being enrolled and that his last studies were in late 2013;

   c)Mr Giri completed some courses and also completed half of a professional accounting degree.  In those circumstances, the Tribunal noted that Mr Giri’s study activities in Australia had not been entirely wasted;

   d)Mr Giri indicated that he had no difficulties in returning to Nepal;

   e)the Tribunal conceded that there may be some financial hardship caused to Mr Giri and his parents if the student visa remains cancelled but as Mr Giri had indicated that he completed some courses in Australia and those studies may assist him if he were to return to Nepal;

   f)the Tribunal acknowledged that the cancellation would mean that Mr Giri would not be able to pursue further studies in Australia;

   g)apart from Mr Giri’s girlfriend and his friends, there were no other people in Australia who would be affected if his student visa was cancelled; and

   h)the Tribunal found there was nothing to suggest and Mr Giri did not claim that Australia's international obligations would be breached as a result of the cancellation of Mr Giri’s student visa.

   [16] See CB 51, [21]

4. The Tribunal was not aware of any other reasons or factors in assessing whether Mr Giri’s student visa should be cancelled[17].  Accordingly, the Tribunal concluded that the visa should be cancelled[18].

   [17] See CB 51, [21]

   [18] See CB 51, [22]

The present proceedings

1. These proceedings began with a show cause application filed on 18 April 2017.  There are three grounds in it:

   1.The Administrative Appeals Tribunal denied me the requested four weeks to respond to the Notice. Such denial is contrary to natural justice because the Tribunal was aware that I was not represented by a registered migration agent and that I intended to have two witnesses to give evidence in support of aspects of my claim and the witnesses were overseas and were not available to give evidence. The Tribunal acted contrary to my request and failed to give me the opportunity to have enough time to present my case and denied me the opportunity to have the support from two witnesses.

   2.The Tribunal was aware that I had undertaken 8 units in a Bachelor of Professional Accounting Course and that I had to discontinue because my parents would no longer afford to provide me with the financial support and that I had received advice from a student advisor that I should enrol in the Hospitality Course in order to maintain my enrolment to comply with my student visa conditions.

   3.The Tribunal failed to accept the difficulties I faced caused by the earthquake in Nepal and failed to give me the opportunity to start again and failed to consider that my circumstances were beyond my control.

2. In his response to the application filed on 11 May 2017, the Minister indicated a willingness to concede that the application disclosed an arguable case of jurisdiction error.  However, as the basis of that concession was not apparent to me, and following consultation with my chambers, the matter was listed for a show cause hearing today.

3. In addition to the court book filed on 14 June 2017, I have before me as evidence the affidavit of Mr Giri filed with his show cause application and the affidavit of Toufic Laba Sarkis made on 6 October 2017, to which is annexed a transcript of the hearing conducted by the Tribunal on 21 March 2017. 

4. Only the Minister prepared written submissions in accordance with the Registrar’s procedural orders. 

5. I invited oral submissions from Mr Giri this morning.  He first drew my attention to [8] of the Tribunal’s reasons[19]:

   The Department file indicates that on 12 May 2016 the applicant was sent by email a notice to consider cancellation of his student Visa. In summary the notice set out the statutory basis for the consideration of the cancellation of the applicant's visa. The notice informed the applicant that it appeared that he had not been enrolled in a registered course of study since 28 October 2014 and as such the applicant appeared not to meet the requirements of condition 8202(2)(a) of his Visa. The notice in summary set out the consequences for the applicant if the student Visa was cancelled. The notice invited the applicant to provide written comments as to why he student Visa should not be cancelled within five working days from the receipt of the notice. On 12 May 2016 the applicant wrote to the Department and requested that he be allowed four weeks to respond to the notice. That request was denied but he was offered an additional 5 days to respond.  He provided no comments. A department delegate considered the applicant's situation and decided to cancel his student Visa on 31 May 2016. The applicant was advised by email on 31 May 2016 that his student Visa had been cancelled.

   (error in original)

   [19] CB 48

6. Mr Giri confirmed to me the accuracy of the factual statements in that paragraph.  Mr Giri is concerned that the Minister’s Department denied him the four week delay he sought before his visa was cancelled.  As I explained to him, however, the Court is reviewing the decision of the Tribunal, not the decision of the Minister’s Department.  Also, as I explained to Mr Giri, the Tribunal at [14] of its reasons[20] was troubled that not only was Mr Giri unable to produce the documents he had told the Minister’s Department he wanted time to produce, but he was unable even to describe clearly what the documents were about.

   [20] CB 50

7. Secondly, Mr Giri made submissions in relation to two witnesses he had hoped to call before the Tribunal.  This is discussed at [9] of the Tribunal’s reasons[21].  Mr Giri conceded in oral argument that he had been unable to contact his proposed witnesses at the time of the Tribunal hearing.  The solicitor for the Minister took me to pages 1 and 33 of the transcript, which confirm that Mr Giri told the Tribunal his witnesses were no longer contactable.  The transcript also reveals that Mr Giri did not seek any adjournment in order to make further attempts to get in contact with his proposed witnesses.

   [21] CB 49

8. Thirdly, Mr Giri drew my attention to [21] of the Tribunal’s reasons[22].  Mr Giri explained that he wanted the opportunity to complete the course which he had only partially completed.  It is apparent, however, from the Tribunal’s reasons that the Tribunal was aware of Mr Giri’s wishes and took them into account in considering its exercise of discretion.  The case turned on that exercise of discretion as there was no dispute that Mr Giri was in breach of the condition on his visa that he remain enrolled in a course of study. 

   [22] CB 51

9. I took Mr Giri to the transcript at page 37, which indicates that the Tribunal was frank in discussing with Mr Giri its concerns about the matters bearing on its exercise of discretion.  In my view, it is plain that the hearing opportunity afforded Mr Giri was a fair one.  In other respects, I agree with the Minister’s submissions in relation to the grounds of review advanced. 

10. In relation to Ground 1, there is no evidence within the Tribunal’s file or the Tribunal decision record which indicates that Mr Giri sought an adjournment of the hearing.  In the absence of any adjournment request, the Tribunal did not act unreasonably by making a decision on the same date of the Tribunal hearing.  Mr Giri was on notice since the delegate’s decision on 31 May 2016 as to why his visa was cancelled, however before and at the hearing, failed to provide the Tribunal any further evidence as to why his visa should not be cancelled.

11. In respect of compliance with s.426 of the Migration Act, Mr Giri provided details of two witnesses in the response to hearing invitation, however no further statutory obligations arose from s.426 where Mr Giri could not contact his witnesses in order to obtain oral evidence from them.[23]

    [23] CB 49, at [9]

12. In relation to Ground 2 the Tribunal considered this evidence at [11] of its decision[24] and therefore this ground fails to establish any jurisdictional error on the part of the Tribunal.

    [24] CB 49

13. Mr Giri’s third ground alleges that the Tribunal failed to accept Mr Giri’s evidence in relation to the earthquake in Nepal, failed to give Mr Giri the opportunity to start again, and failed to consider that Mr Giri’s circumstances were beyond his control.  Mr Giri’s grounds in effect seek to cavil with the Tribunal’s findings.  The Tribunal considered all of the circumstances advanced by Mr Giri, and that its findings were reasonably open to it on the material before it.

14. This ground goes no higher than to seek impermissible merits review and accordingly does not reveal any jurisdictional error by the Tribunal.

15. I accept that the Tribunal complied with its statutory obligations of procedural fairness in circumstances where:

    a)Mr Giri was invited to and attended a hearing in compliance with s.360 of the Migration Act; and

    b)there was no information that enlivened the Tribunal’s s.359A obligations. The Tribunal’s reliance on PRISMS records[25] was expressly drawn from the information contained in the delegate's decision, a copy of which was provided with Mr Giri’s application for review. The information therefore fell under the exception pursuant to s.359A(4)(b) of the Migration Act.

    [25] CB 23

16. I conclude that Mr Giri is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

17. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  Mr Giri indicated that he might require time to pay but did not oppose the making of a costs order.

18. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:   17 November 2017