Gunawan v Minister for Immigration

[2019] FCCA 2445

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUNAWAN v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2445

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Student visa cancellation – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to cancel a Student visa under s.116(1)(fa) of the Migration Act 1958 (Cth) as the applicant was not a genuine student – applicant had not studied for a period of over 19 months and was not enrolled in a full-time registered course of study for a period of 12 months – no jurisdictional error identified by the applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 357A, 359, 422B, 424

Applicant: I KADEK EKO JULIYADI GUNAWAN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3463 of 2018

Judgment of: Judge Dowdy

Hearing date: 16 August 2019

Delivered at: Sydney

Delivered on: 16 August 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr D. Baddeley

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 11 December 2018 is dismissed.

2. The Applicant is to pay the First Respondent’s cost of the proceeding in the sum of $5,400. 

3. The name of the First Respondent be amended from ‘Minister for Home Affairs’ to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

4. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 27 September 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3463 of 2018

I KADEK EKO JULIYADI GUNAWAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a male citizen of Indonesia aged 30 years, having been born on 30 July 1989. 

2. By Application filed in this Court on 11 December 2018 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 16 November 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 21 November 2016 cancelling his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (Student visa) under s.116 of the Migration Act 1958 (Cth) (the Act).

Background

1. The Applicant was granted the Student visa on 4 March 2014 with a planned study process leading to a Bachelor of Business Degree over a course extending from 28 July 2014 to 21 July 2017 with Australian Institute of Higher Education Pty Ltd.

2. By Notice of Intention to Consider Cancellation of the Student visa dated 2 November 2016 (NOICC) the Department of the Minister advised the Applicant that it appeared that he was not a genuine student because, in short:

   a)he had not studied for a period of over 19 months;

   b)he was not currently enrolled in a higher-education course as required for the Student visa; and

   c)he had not met the entry requirements for the Bachelor of Business Degree and his enrolment in that course had been cancelled.

3. The NOICC further advised the Applicant that under s.116(1)(fa) of the Act, the Minister might cancel the Student visa as the Applicant was not, or likely not to be, a genuine student. The Applicant was invited to comment on the grounds for cancellation which had been identified in the NOICC and to give his reasons why the Student visa should not be cancelled.

4. The Applicant responded to the NOICC by email dated 9 November 2016 in which he said:

   …

   First of all, I would like to express my deepest regret and apology for not being compliant to my visa conditions.

   Yes it is true that I had about 18 months study gaps during my studies in Australia.

   The reason is because I experienced depression and continuous anxiety during the above mentioned studies period. I had problems with literally everything and it stopped me from doing things that I usually do.

   It was started because I broke up with my girlfriend and let me to this problem.

   Now I feel much better and I have already started the course which is Diploma of Business as Sydney Metro College.

   I was about to enrolled in Bachelor of Business however all the bachelor course rejected my applications due to the studies gap and for now the best option is to enrolled in Diploma of Business first and continue to Bachelor of Business afterwards and to get the credit transfers from Diploma course.

   I sincerely apologize and I wish that you will consider not [to] cancel my student visa.

   Please kindly give me another chance to continue my studies here and go home to Indonesia with the qualification in Australia.

5. The Applicant also forwarded a report from a registered psychologist Dr Dadgostar dated 8 November 2016 (psychological report) which stated, in short, as follows:

   …

   Based on the information gathered during the assessment, his reported symptoms during the period in question are suggestive of the presence of high levels of Clinical Depressive symptoms. He also reported high levels of Anxiety symptoms that are commonly associated with diagnosis of Adjustment Disorder with Mixed Emotions (Anxiety & Depression). He continues to experience these depressive and anxiety symptoms, as evidence from his current reported symptoms and the K-10 results.

   Mr Gunawan’s Depressive and Anxiety symptoms appear to have developed as a direct consequence of the emotional distress caused by his lack of ability to perform in his course, and the end of his relationship with his girlfriend. This distress was further exacerbated by his feelings of worthlessness because she had left him for another man, and further compounded by feelings of loneliness and isolation due to his absence from his family and friends in Indonesia. Given his age, his prior protective family background, and good peer support in Indonesia, it is not unexpected that he has found it more challenging and difficult to continue with his studies, particularly after the overwhelming emotional impacts of recent events.

Decision of Delegate

1. In his Decision Record of 21 November 2016, the Delegate found as follows:

   …[The applicant] was granted his first Student visa at the Higher education level on 4 March 2014. He has been in Australia for approximately two years and six months but has only completed a two-month general English course. PRISMS also indicate that [the applicant] did not study for a period of 19 months and was not enrolled for 12 months.

   Due to the lack of study, academic progress and the extensive period of non-enrolments over a substantial period of time, whilst nonetheless choosing to remain in Australia indicate that [the applicant] is not a genuine student…

   …

   Based on the above assessment, I consider that [the applicant] is not, or is likely not to be, a genuine student, and consider the extent of his non-compliance to be very significant.

2. The Delegate took into account the Applicant’s email response to the NOICC dated 9 November 2016 and the psychological report, but in the result, after considering the information before him, was satisfied that the grounds for cancelling the Student visa outweighed the grounds for not cancelling.

3. Accordingly the Delegate cancelled the Applicant’s Student visa.

Decision of Tribunal

1. The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 24 November 2016 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.

2. The Applicant appeared at a hearing before the Tribunal on 12 November 2018 to give evidence and present arguments with the assistance of an interpreter in the Indonesian and English languages. At the hearing the Applicant conceded that:

   a)the only course he had completed over the four years since being granted the Student visa in 2014 was a two month general English course, which he completed between 24 March 2014 and 30 May 2014;

   b)he had obtained the psychological report in an attempt to meet his visa requirements and negate the breach of his Student visa conditions; and

   c)he was working two to three days a week in a coffee shop and sending money home to his parents in Indonesia.

3. From [23] – [49] of its Decision Record the Tribunal considered a range of relevant discretionary factors relating to the decision of whether the Student visa should be cancelled or not, including the psychological report and the Applicant’s claimed anxiety and depression, but concluded at [49] as follows:

   [49] On the evidence before it the Tribunal is of the firm view that the applicant’s primary purpose for holding a visa was not for the purpose of study and he was not, or likely not to be, a genuine student.  The grounds for cancellation have been clearly made: the Tribunal notes that over a period of more than four and half years the applicant has only successfully passed a two-month General English course over four years ago. He has never on the evidence before the Tribunal successfully completed a 573 Higher Education visa course. The decision record he supplied states that, according to PRISMS records, the applicant did not study between his return to Australia in February 2015 until enrolling in a Diploma of Business in September 2016: a course he admitted to the Tribunal was cancelled due to his non-attendance and non-commencement of studies. The applicant has stated he wishes to study but the evidence before the Tribunal is the applicant’s stronger desire to remain in Australia is for employment-related purposes and to generate income to send to his family in Indonesia. The Tribunal has carefully considered relevant factors for not cancelling the visa that have been put forward both to the delegate two years ago in response to the NOICC as well as to the Tribunal at hearing. The Tribunal has determined on the basis of the information before it that the visa should be cancelled.

4. Accordingly the Tribunal affirmed the Delegate’s decision to cancel the Student visa.

Grounds of Attack on the Tribunal Decision in this Court

1. The Applicant relied upon the following Grounds:

   1. Under Section 424 of the Migration Act 1958 (Cth), the Tribunal is obliged to consider all relevant circumstances when considering any application. However, I believe that the Tribunal failed to thoroughly consider all circumstances relevant to my matter.

   2. In particular, I concede that the review done by the Tribunal failed to consider the affirmed decision in light of my psychological and mental conditions, explained in the report attached alongside my application.

   3. Thence, I believe that I have been denied access to the natural justice hearing rule, pursuant to section 422B of the Migration Act 1958 (Cth).

   4. For the reasons stated in the Tribunal's decision, I believe that the Tribunal member had erred in its finding of facts that I am not a genuine student and I intend to use the student visa to seek employment for the purpose of providing financial support to my family in Indonesia.

   5. There were also instances where the Tribunal member drew wrongful inference from the facts and arrived at the wrong conclusion, consequently reaching prejudicial and unjust conclusions.

Consideration

Ground 1

1. The analogue section to s.424 of the Act for Part 5 reviewable decisions is s.359, which empowers the Tribunal to “…get any information that it considers relevant” and requires the Tribunal to “…have regard to that information in making the decision on the review”: see s.359(1).

2. [In my view, the Tribunal performed this function.] Its Decision Record is extensive and comprehensive, evidencing a full and meaningful consideration of the facts relevant to the decision whether to affirm or set aside the Delegate’s decision. 

3. At [33] and [34] of its Decision Record the Tribunal expressly refers to and considers the Applicant’s email response to the NOICC dated 9 November 2016 and the psychological report dated 8 November 2016. Further, the Applicant has not particularised or identified the circumstances which he asserts the Tribunal “failed to thoroughly consider”.

4. In my view, Ground 1 is not made out.

Ground 2

1. This Ground also fails. The psychological report was referred to and considered at [14], [34], [36], [38], [40] and [45] of the Decision Record of the Tribunal. The Tribunal clearly gave meaningful consideration to the Applicant’s claimed psychological and medical conditions.

2. In my view, Ground 2 is not made out. 

Ground 3

1. This Ground is to be taken as referring to s.357A of the Act which is the analogue to s.422B and which confines natural justice to the matters dealt with in Part 5 of the Act. However, the simple fact of the matter is that there is no evidence that the Applicant was not afforded natural justice or procedural fairness and once again, the assertion of denial of natural justice is not particularised.

2. In my view, this Ground also fails.

Grounds 4 and 5

1. These Grounds seek, in their essence, to invoke a merits review which is not available in this Court. They are unparticularised and the asserted errors and wrongful inferences are not identified or particularised.

2. In my view, these Grounds also fail.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  30 August 2019