Gul v Minister for Immigration
[2016] FCCA 2642
•18 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2642 |
| Catchwords: MIGRATION – Judicial review – decision of former Migration Review Tribunal – Student Visa – whether Tribunal failed to conduct a review – whether Tribunal adopted decision of delegate – whether Tribunal applied relevant statutory criteria – whether Tribunal undertook a proper, genuine or realistic inquiry – whether Tribunal took into account irrelevant considerations – whether Tribunal failed to consider a relevant consideration or ignored relevant material. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth) ss.19, 20 Migration Act 1958 (Cth), ss.116, 140, 349(2), 476 Migration Legislation Amendment Regulation 2013 (No.1) (Cth) |
| Cases cited: Bala v Minister for Immigration & Anor [2014] FCCA 1370 Harris v Caladine (1991) 172 CLR 84; (1991) 65 ALJR 280; (1991) 99 ALR 193; (1991) 14 Fam LR 593 Maan v Minister for Immigration & Citizenship [2009] FCAFC 150; (2009) 179 FCR 581; (2009) 112 ALD 25 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Rani v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379; (1997) 49 ALD 619 Singh v Minister for Immigration & Border Protection & Anor [2016] FCCA 1225; (2016) 308 FLR 63 Singh v Minister for Immigration & Citizenship [2012] FMCA 1005 SZELX v Minister for Immigration & Anor [2007] FMCA 209 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 |
| First Applicant: | SHABAB GUL |
| Second Applicant: | SUMAIRA NASEEM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 56 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 July 2014 |
| Date of Last Submission: | 29 July 2014 |
| Delivered at: | Perth |
| Delivered on: | 18 October 2016 |
REPRESENTATION
| For the Applicants: | Mr Gul (the first applicant) |
| Counsel for the First Respondent: For the Second Respondent: | Mr P R Macliver Submitting appearance, save as to costs | |
| Solicitors for the Respondents: | Australian Government Solicitor | |
ORDERS
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 56 of 2014
| SHABAB GUL |
First Applicant
| SUMAIRA NASEEM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, Shabab Gull (“Mr Gul”) and Sumaira Naseem (“Ms Naseem”), have applied for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal” and “Second Tribunal Decision” respectively) made on 28 January 2014. The Second Tribunal Decision is at Court Book (“CB”) 299-304. The Second Tribunal Decision affirms a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the then Minister for Immigration & Citizenship, now the Minister for Immigration & Border Protection (“Minister”), to cancel Mr Gul’s Class TU (Student) visa (“Student Visa”).
Background
The background to the application is as follows:
a)Mr Gul is a citizen of Pakistan who first arrived in Australia on 5 May 2007 as the holder of a Student Visa: CB 183;
b)between 1 June 2007 and 23 December 2011 Mr Gul was granted a number of visas and bridging visas. The Student Visa held by Mr Gul was granted on 23 December 2011, and was subject to a number of mandatory conditions, including Condition 8202 of Sch 8 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) (“Condition 8202”): CB 181-183; Migration Regulations, Sch 2, cl.572.611(1)(a);
c)at the time of his being granted a Student Visa on 23 December 2011, Mr Gul was a student at Perth College of Business and Technology (“PCBT”), having just completed his Certificate IV in Business, and due to commence his Diploma of Business on 30 January 2012: CB 62;
d)on 13 February 2012 PCBT advised Mr Gul that he was making unsatisfactory course progress and that this could lead to him being reported to the then Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (“Department”), and could result in the cancellation of his Student Visa: CB 70;
e)on 7 May 2012 PCBT certified Mr Gul as not achieving satisfactory course progress in his Diploma of Business course for the purposes of s.19 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) and standard 10 of the National Code of Practice for Registration Authority and Providers of Education and Training to Overseas Students (“Standard 10”): CB 90;
f)PCBT also issued a notice to Mr Gul on 7 May 2012 pursuant to s.20 of the ESOS Act advising him that as a result of its certification that he was not achieving satisfactory course progress he was thereby in breach of Condition 8202(3): CB 91-95;
g)on 22 May 2012 the Department issued Mr Gul with a Notice of intention to consider cancellation of the Student Visa (“NOICC”) under s.116 of the Migration Act. The NOICC invited Mr Gul to provide his comments at an interview on 29 May 2012: CB 75-82;
h)Mr Gul attended at the Department’s Perth office on 29 May 2012 and provided reasons as to why the Student Visa should not be cancelled. Following the interview the Delegate’s Decision, pursuant to s.116(1) of the Migration Act, was to cancel the Student Visa, and Mr Gul was notified of the Delegate’s Decision on 29 May 2012: CB 121-129;
i)Mr Gul sought review of the Delegate’s Decision to cancel the Student Visa, and on 14 August 2013 the Tribunal (differently constituted) made a decision affirming the Delegate’s Decision to cancel the Student Visa: CB 134 and 149 (“First Tribunal Decision”);
j)on 25 October 2013 this Court quashed the First Tribunal Decision and ordered the Tribunal to reconsider the application for review of the Delegate’s Decision: CB 299 at [5];
k)by letter dated 19 November 2013 the Tribunal invited Mr Gul to comment upon PCBT’s certification that he had not achieved satisfactory course progress in his Diploma of Business course, to give comments or to respond to information provided by PCBT, and also invited him to provide certain information in writing as set out in the letter: CB 186-189;
l)on 5 December 2013 Mr Gul provided to the Tribunal a response to the Tribunal’s invitation to provide information, and affidavits sworn by his wife and himself which annexed various documents: CB 198-276;
m)by letter dated 19 December 2013 the Tribunal invited Mr Gul and his wife to appear before the Tribunal on 23 January 2014 to give evidence and present arguments in relation to the issues arising in his case: CB 191-192;
n)on 20 January 2014 Mr Gul’s representative provided the Tribunal with submissions which emphasised statements made by Mr Gul in his response of 5 December 2013, and submitted that the Tribunal should set aside the Delegate’s Decision and substitute a decision that the Student Visa not be cancelled: CB 278-281;
o)on 23 January 2014 Mr Gul appeared before the Tribunal to give evidence and present arguments: CB 299; and
p)on 28 January 2014 the Second Tribunal Decision affirmed the Delegate’s Decision to cancel the Student Visa: CB 298 and 304.
Tribunal Decision
In summary the Tribunal Decision:
a)noted that the Student Visa was subject to Condition 8202: CB 299 at [1];
b)set out the relevant facts and law: CB 299-300 at [2]-[10];
c)found Mr Gul had been certified by PCBT as not achieving satisfactory course progress, had been issued with a NOICC, and had not complied with Condition 8202(3)(a): CB 299 and 300 at [2]-[3] and [11];
d)exercised its discretion whether to cancel the Student Visa, noting that the matters for consideration were not limited by the Migration Act or Migration Regulations, but had regard to the Department’s Procedure Advice Manual (“PAM 3”): CB 300 at [13];
e)rejected Mr Gul’s claim regarding depression caused by the death of Osama Bin Laden in his home town: CB 300 at [16];
f)rejected the claim that the closure of Perth Institute of Western Australia (“PIWA”) affected his academic progress at PCBT: CB 301 at [17];
g)rejected Mr Gul’s claims regarding his depression caused by “unspecified family issues”, and found that even it did accept the evidence that Mr Gul was depressed the fact he had not deferred his studies, and returned to Australia (following a visit to Pakistan), had applied for another visa, and had looked for suitable courses, knowing he would be required to actively pursue his studies, suggested that Mr Gul’s ability to engage with his studies was not affected by the alleged depression: CB 301-302 at [18]-[23];
h)found that the fact Mr Gul mistakenly thought he could transfer from PCBT to Cambridge International College (“CIC”) without approval, and that it was sufficient to just tell PCBT he was transferring, did not matter. It was his responsibility to determining what the Student Visa conditions required: CB 302 at [24];
i)found that the only reason for Mr Gul’s certification and breach of the Student Visa conditions was his transfer from PCBT to CIC, however, without approval to transfer Mr Gul was required to meet PCBT’s course requirements. The breach had been caused by Mr Gul’s own actions, not something outside his control, and that there were no extenuating or compassionate circumstances outweighing grounds for cancelling the Student Visa: CB 302 at [25];
j)accepted Mr Gul’s submissions that the cancellation of the Student Visa may cause hardship to his family if they had to return to Pakistan, but noted that the Student Visa is for a person to study in Australia, not to enable them and their family to settle: CB 303 at [27];
k)rejected Mr Gul’s evidence that hardship would be caused because he would be unable to obtain employment in Pakistan without higher qualifications than the ones he had already obtained: CB 303 at [28];
l)found that Mr Gul made a deliberate attempt to mislead the education provider by providing a bogus document, namely, a medical certificate: CB 303 at [29];
m)did not accept Mr Gul’s unspecified claims that it was in the best interests of his child to stay in Australia: CB 304 at [31];
n)concluded, having considered Mr Gul’s circumstances as a whole, that the Student Visa should be cancelled, and affirmed the Delegate’s Decision: CB 303 at [32]-34]; and
o)further concluded that it had no jurisdiction with respect to Ms Naseem. This was because her visa was cancelled automatically on cancellation of the Student Visa by operation of s.140(1) of the Migration Act, and there was therefore no reviewable decision for the Tribunal to review: CB 299 and 304 at [4] and [35].
Judicial Review Application
The Judicial Review Application made on 25 February 2014 was accompanied by an affidavit sworn by Mr Gul on 25 February 2014 (“Mr Gul’s Affidavit”). Mr Gul’s Affidavit is essentially a reproduction of his affidavit sworn on 5 December 2013 provided to the Tribunal (“Mr Gul’s Tribunal Affidavit”) at CB 205-276.
On 19 March 2014 a Registrar of the Court ordered that Mr Gul file and serve any amended Judicial Review Application giving particulars of the grounds of review, and any further affidavits upon which he intends to rely. No amended Judicial Review Application and no further affidavits were filed.
At hearing Mr Gul’s Affidavit was admitted into evidence, subject to relevance, the Minister observing that it was essentially a reproduction of Mr Gul’s Tribunal Affidavit: Transcript, page 3.
Grounds of Judicial Review Application
The Judicial Review Application sets out two grounds and particulars as follows:
The Second Respondent committed jurisdictional errors in that it:
1.Adopted and affirmed a decision of a delegate of the Minister for Immigration which was itself affected by jurisdictional error and accordingly of no effect in law.
2.took into account irrelevant considerations.
Particulars of Jurisdictional Error of the delegate of the Minister for Immigration and Citizenship
The delegate of the first respondent in his decision of 14 August 2013.
(a)failed to properly address the statutory question posed by regulation r.2.43(2)(b)(ii) that included “(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control”;
(b)failed to undertake any proper, genuine or realistic inquiry to:
(i) the ‘all of the facts of case of the case in total’ to ascertain whether the non-compliance of the condition 8202 was due to exceptional circumstances beyond the applicant control; and
(ii) failed to apply the relevant statutory criteria objectively to the applicant’s situation and circumstances.
c.Applicant submissions – ground 1
(Transcribed from the Judicial Review Application without amendment)
There were no particulars with respect to ground 2.
Consideration
Jurisdictional error required
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
thereby affecting the Tribunal Decision and resulting in the Tribunal exceeding or failing to exercise the authority or powers given to it under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [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.
Legislation
Section 116(1)(b) of the Migration Act relevantly provided that the Minister may cancel the Student Visa if satisfied that Mr Gul has not complied with a condition of the Student Visa.
Condition 8202 also relevantly provided that an applicant for a Student Visa who has not been certified by their education provider as not achieving satisfactory course progress as specified is in breach of Condition 8202: Condition 8202(3)(a).
Ground 1
Mr Gul’s submissions
Mr Gul submits that the Tribunal fell into jurisdictional error by adopting the Delegate’s Decision which was itself affected by jurisdictional error. In particulars in support of the claim Mr Gul identified the date of the “Delegate’s Decision” as 14 August 2013. That date is the date of the First Tribunal Decision which was quashed by this Court on 25 October 2013.
Minister’s submissions
The Minister submits in relation to ground 1:
a)there is no substance to Ground 1;
b)whether or not the Delegate’s Decision was affected by jurisdictional error is irrelevant. The Delegate’s Decision has been reviewed on the merits by the Tribunal, and the Tribunal has made a fresh decision as to whether or not the Student Visa should be cancelled based upon the evidence and material before the Tribunal;
c)the Second Tribunal Decision demonstrates that the Tribunal did not simply “adopt” the Delegate’s Decision, but considered afresh whether the Student Visa should or should not be cancelled;
d)the Tribunal correctly concluded that, as a result of the PCBT’s certification that Mr Gul was not achieving satisfactory course progress in his Diploma of Business course, Mr Gul had not complied with Condition 8202(3)(a): CB 300 at [11];
e)having found that Mr Gul had not complied with Condition 8202(3)(a) of the Student Visa, the Tribunal on reviewing the Delegate’s Decision was required to consider whether or not to exercise its discretion to cancel the visa pursuant to s.116(1) of the Migration Act. The Tribunal properly considered the exercise of its discretion, and its conclusion that the Student Visa should be cancelled was one that was reasonably open on the basis of the evidence and material before it; and
f)having concluded that the Student Visa should be cancelled, the Tribunal was bound to affirm the Delegate’s Decision: Migration Act, s.349(2)(a). The fact that the Tribunal affirmed the Delegate’s Decision cannot of itself give rise to jurisdictional error on the part of the Tribunal, irrespective of whether the Delegate’s Decision involved jurisdictional error.
Analysis and conclusion – ground 1
Mr Gul refers to the “Delegate of the first respondent’s” decision made 14 August 2013. The Delegate’s Decision was made 29 May 2012. Subsequently, the Tribunal made the First Tribunal Decision on 14 August 2013 which was quashed by this Court: see [2(i) and (j)] above.
The conclusion in the Second Tribunal Decision was that the Student Visa should be cancelled. The fact that the Second Tribunal Decision arrived at the same conclusion as the First Tribunal Decision and the Delegate’s Decision does not mean that the Tribunal making the Second Tribunal Decision has simply adopted the reasoning from the earlier decisions or failed to undertake any, or a proper, review of the Delegate’s Decision. In this case the assertion that the Tribunal failed to carry out a fresh review and failed to give independent consideration to the matters raised by Mr Gul is at odds with the nature and content of the Second Tribunal Decision. In a careful and thoughtful manner the Tribunal has, over six pages and 35 paragraphs:
a)set out the nature of and background to the application to the Tribunal for review: CB 299 at [1]-[6];
b)identified the issue for the review, namely whether Mr Gul had breached Condition 8202, and identified that if Mr Gul had done so that the Student Visa “may be cancelled” (emphasis in Second Tribunal Decision), thereby indicating that it understood that there was a discretion involved as to whether or not it cancelled the Student Visa: CB 299 at [7];
c)set out the relevant provisions of Condition 8202, identifying the fact that the Student Visa had been cancelled because the education provider certified Mr Gul as not achieving satisfactory progress for the purposes of s.19 of the ESOS Act and Standard 10, and that it was the certification itself and not the unsatisfactory progress which constituted the breach of Condition 8202, citing Maan v Minister for Immigration & Citizenship [2009] FCAFC 150; (2009) 179 FCR 581; (2009) 112 ALD 25 at [44]-[45] per Dowsett, Greenwood and Collier JJ (“Maan”); and
d)considered whether Mr Gul had complied with Condition 8202 in light of PCBT’s certification of not achieving satisfactory progress, and in light of a finding that Mr Gul had not complied with Condition 8202(3)(a), went on to consider whether or not it should exercise its discretion to cancel the Student Visa: CB 300 at [10]-[12], and in so doing had regard to:
i)the fact that there were no matters specified in the Migration Act or Migration Regulations required to be considered in the exercise of the discretion: CB 300 at [13];
ii)identified, and acknowledged that it must have regard to government policy guidelines contained in the Department’s Procedures Advice Manual (“PAM 3”): CB 300 at [13];
iii)noted that Mr Gul had not achieved satisfactory course progress and that this was a significant breach in the context of the purposes of a Student Visa and, therefore, the purpose of Mr Gul’s travel and stay in Australia: CB 300 at [14]; and
iv)considered each of the matters put forward as a response to, or reason for, Mr Gul’s unsatisfactory course progress, including the killing of Osama Bin Laden in his home town of Abbotabad and Mr Gul’s alleged depression as a result, the closure of a previous college at which he was studying and the necessity to find a new education provider giving rise to further depression, difficulty in finding a suitable course for the subjects that Mr Gul says he was interested in, various family issues which caused him to travel to Pakistan during this period during which he said he saw a medical practitioner for his depression and during which period he also claims to have got married, difficulties with enrolment at CIC following his transfer from PCBT, evidence of a motor vehicle accident in November 2010, the effect on his family of having to leave Australia and return to Pakistan, and the effect upon his capacity to obtain future employment if he did not obtain the relevant qualifications he was studying for in Australia: CB 300-304 at [15]-[33].
See [2(e)-(n)] above.
The Tribunal undertook the above consideration of the claims and evidence in a manner which does not indicate at any point an adoption, slavishly or otherwise, of the Delegate’s Decision or of the First Tribunal Decision, but rather a thorough and independent assessment of Mr Gul’s application for review of the Delegate’s Decision to cancel the Student Visa.
Insofar as ground 1 alleges failure by the Tribunal to properly undertake the review, or to carry out a fresh review, ground 1 is not made out.
Mr Gul alleges one of the errors adopted by the Second Tribunal Decision was that it failed to apply reg.2.43(2)(b)(ii) of the Migration Regulations. The Tribunal did not commit jurisdictional error in not considering or applying reg.2.43(2)(b)(ii) of the Migration Regulations because reg.2.43(2)(b)(ii) of the Migration Regulations was repealed on 13 April 2013: Migration Legislation Amendment Regulation 2013 (No.1) (Cth). The Tribunal Decision was made on 28 January 2014. The Tribunal was therefore not required to take reg.2.43(2)(b)(ii) of the Migration Regulations into consideration as it had been repealed prior to the Second Tribunal Decision: Bala v Minister for Immigration & Anor [2014] FCCA 1370 at [29] per Judge Lucev, and the Tribunal conducting a re-hearing of whether to cancel the Student Visa was required to apply the law as at the time of the re-hearing: see Singh v Minister for Immigration & Border Protection & Anor [2016] FCCA 1225; (2016) 308 FLR 63 at [27]-[32] per Judge Dowdy and the cases there cited, in particular Harris v Caladine (1991) 172 CLR 84; (1991) 65 ALJR 280; (1991) 99 ALR 193; (1991) 14 Fam LR 593; CLR at 125 per Dawson J:
On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing.
Mr Gul further alleges that the Tribunal, in adopting another decision (that is, the Delegate’s Decision or the First Tribunal Decision) had failed to undertake a proper, genuine or realistic inquiry into “all the facts of the case” in assessing whether his breach of Condition 8202 was due to exceptional circumstances beyond his control. An assessment whether a breach was “due to exceptional circumstances beyond his control” was required by reg.2.43(2)(b)(ii) of the Migration Regulations. As reg.2.43(2)(b)(ii) of the Migration Regulations had been repealed, the Tribunal did not have to make that assessment and, therefore, no jurisdictional error can arise in relation to the failure to have regard to a statutory criteria not in force at the time of the Second Tribunal Decision: see [18] above.
Mr Gul also alleges that the Tribunal failed to apply the relevant statutory criteria objectively to his situation and circumstances. The Tribunal Decision considered all of Mr Gul’s claims. The Tribunal did so in accordance with the relevant law and having regard to the Department’s policy guidelines as set out in PAM 3. Nothing in the Second Tribunal Decision suggests anything but proper and objective assessment of Mr Gul’s application for review of the Delegate’s Decision.
For all of the above reasons, ground 1 is not made out, and does not establish jurisdictional error in the Second Tribunal Decision.
Consideration – ground 2
Mr Gul’s submissions – ground 2
At hearing Mr Gul made submissions concerning various documents at CB 65 (a request to defer course form for medical reasons) and CB 87-88 (student intervention forms), but was unable to explain how these documents were relevant in establishing jurisdictional error by the Tribunal, on the basis of irrelevant considerations or otherwise, in circumstances where it appears that the Tribunal did not have regard to those documents.
Minister’s submissions
The Minister submits in relation to ground 2:
a)ground 2 raises a bare allegation that the Tribunal took into account irrelevant considerations, but provides no particulars of the alleged irrelevant considerations claimed to have been taken into account by the Tribunal in reaching its conclusion that the Student Visa should be cancelled;
b)where, as here, “a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.”: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; CLR at 40 per Mason J (“Peko-Wallsend”); and
c)having regard to the unconfined nature of the discretion in s.116(1) of the Migration Act, the Second Tribunal Decision does not disclose that the Tribunal took into account any irrelevant considerations in exercising its discretion under that provision to conclude that the Student Visa should be cancelled.
Insofar as Mr Gul had referred to the documents at CB 65 and 87-88 the Minister in oral submissions submitted that there was not a consideration of irrelevant matters because these documents were not considered by the Tribunal in arriving at the Second Tribunal Decision.
Analysis and consideration – ground 2
Insofar as ground 2 contains unparticularised assertion it cannot succeed: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM, and see now WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited).
In relation to the oral submissions made at hearing the discretion conferred by the Migration Act and Migration Regulations is unconfined, therefore, the factors the Tribunal may take into account are similarly unconfined: Peko-Wallsend. The Tribunal considered the evidence and claims put forward by Mr Gul and made findings reasonably open to it. The Court notes that the Tribunal:
a)took into account the NOICC and Standard 10 which are clearly relevant considerations;
b)considered whether to cancel Mr Gul’s visa on the basis that he had breached Condition 8202; and
c)considered whether to exercise its discretion to cancel the Student Visa, and in so doing took into account:
i)matters raised by Mr Gul and the PAM 3 guidelines as to the cancellation of visas: CB 300 at [13];
ii)Mr Gul’s claim that NOICC was defective because he was no longer a student: CB 300 at [14]; and
iii)Mr Gul’s circumstances that he raised with the Department in response to receiving the NOICC: CB 300 at [15], as set out above: see [2(e) to (n)] above (and see CB 300-304 at [16]-[33]).
There is nothing on a fair reading of the Second Tribunal Decision that indicates anything that it took into consideration may have been an irrelevant consideration. In the circumstances, ground 2 is not made out, and does not establish any jurisdictional error in the Second Tribunal Decision.
Consideration – ground 3
Mr Gul’s submissions
At the hearing Mr Gul alleged that the Tribunal had erred by failing to take into account a “Student Intervention Form” dated 22 March 2012 (CB 87-88) which he says was not signed by him and is fraudulent. Mr Gul’s complaint seemed to be that the allegedly fraudulent Student Intervention Form was disregarded and the Tribunal said to him at the hearing essentially they were not interested in it or what the PCBT had done, but rather what he had done. Mr Gul submitted that the Student Intervention Form was relevant to whether the certification provided by PCBT was correct and on that basis the Tribunal should have regard to it. The Court will consider this as an additional ground of the Judicial Review Application, being ground 3, alleging a failure to consider a relevant consideration or the ignoring of relevant material by the Tribunal.
Minister’s submissions
The Minister submitted with respect to this additional ground that the Second Tribunal Decision was properly founded on PCBT issuing a certificate as to unsatisfactory course progress, and that resulted in a breach of Condition 8202. Having found that there was a breach the Tribunal then considered whether to exercise its discretion to cancel. The documents identified by Mr Gul did not have anything to do with the Second Tribunal Decision.
Analysis and consideration– ground 3
It is the Second Tribunal Decision, not PCBT’s conduct, which the Court must review. The certification of unsatisfactory course constitutes a breach of Condition 8202, not the unsatisfactory progress itself: CB 300 at [10], Maan at [4] and [44]-[45] per Dowsett, Greenwood and Collier JJ; see also Singh v Minister for Immigration & Citizenship [2012] FMCA 1005 at [24]-[28] per Whelan FM. Once the breach of Condition 8202 was established it was open for the Tribunal to determine whether to exercise the discretion to cancel the Student Visa.
The issue of the Student Intervention Form does not assist Mr Gul. This is because there is no evidence that the Student Intervention Form of 22 March 2012 played any part in the determination by PCBT on 7 May 2012 of whether there was a breach of Condition 8202(3)(a). Mr Gul’s own evidence: CB 210-211 at [19] was that he had moved from PCBT to CIC, and assumed he no longer had not to meet the academic progress requirements: CB 300 and 302 at [14] and [24]-[25], a position he re-stated at hearing before this Court: Transcript, pages 6-10. The Tribunal found Mr Gul’s belief was wrong, and that it was his responsibility to ensure compliance with the conditions of the Student Visa. The Student Intervention Form is therefore irrelevant, because Mr Gul’s own evidence separately establishes the breach of Condition 8202. Mr Gul’s argument about changing education providers implicitly accepts the basis for issuing the certificate which was that he was not making satisfactory course progress, the reason being that he mistakenly believed he did not have to. Having found that that belief was wrong it was open to the Tribunal to make the finding that it did.
For the above reasons Mr Gul’s ground 3 is not made out, and does not establish jurisdictional error in the Second Tribunal Decision.
Jurisdiction with respect to Ms Naseem
The Tribunal found that it had no jurisdiction with respect Ms Naseem. The Tribunal was correct to do so because Ms Naseem’s visa was cancelled automatically by reason of s.140(1) of the Migration Act, and there was therefore no reviewable Tribunal Decision concerning Ms Naseem’s visa: CB 299 and 304 at [4] and [35]: Rani v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379; (1997) 49 ALD 619; FCR at 399 per Sackville J.
Conclusion and orders
The Court has concluded that the Second Tribunal Decision is not affected by jurisdictional error. It follows that the application must be dismissed.
The name of the Tribunal should be amended to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 18 October 2016