GUPTA v Minister for Immigration

[2016] FCCA 3212

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUPTA & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3212

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa – whether the applicant failed to meet the requirements of condition 8202 – whether the Tribunal’s reasoning was illogical or irrational –whether the Tribunal failed to take into account relevant considerations – Tribunal’s reasons cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Migration Regulations 1994, condition 8202 of Schedule 8.

First Applicant: DEEPIKA GUPTA

Second Applicant: AJAY MAHAJAN

Third Applicant: AMEN MAHAJAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1411 of 2016

Judgment of: Judge Street

Hearing date: 12 December 2016

Date of Last Submission: 12 December 2016

Delivered at: Sydney

Delivered on: 12 December 2016

REPRESENTATION

Counsel for the Applicant: Ms J Lucas

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Solicitors for the Respondents: Mr J Pinder
Minter Ellison Lawyers

ORDERS

1. The amended application is dismissed.

2. The First and Second Applicants to pay the First Respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1411 of 2016

DEEPIKA GUPTA

First Applicant

AJAY MAHAJAN

Second Applicant

AMEN MAHAJAN

Third 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 29 April 2016 affirming the decision of the delegate to cancel the first applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa.

2. The first applicant is a citizen of India and came to Australia on a student visa. On 16 February 2015, the first applicant was sent a notice of intention to consider cancellation of a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa under s.116 of the Act.

3. The letter identified that the applicant had not complied with para. 8202(2)(a) of condition 8202 of Schedule 8 to the Migration Regulations 1994 (“the Regulations”) which is that the visa applicant was required to be enrolled in a registered course. The letter indicates the applicant was not enrolled in a registered course.

Before the Delegate

1. On 31 March 2015, the delegate considered the issues raised under s.116 of the Act and found that grounds of cancellation arose and that the applicant had failed to maintain enrolment in a registered course of study.

2. The delegate was satisfied the grounds for cancellation existed and was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

Before the Tribunal

1. On 8 April 2015, the first applicant applied for a review of the delegate’s decision. By letter dated 11 March 2016, the first applicant was invited to attend a hearing on 29 April 2016. That letter identified that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.

2. The first applicant appeared on that date to give evidence and present arguments. The first applicant also provided the Tribunal with a psychologist’s report dated 24 September 2015 and a psychologist’s report dated 29 March 2016 in relation to the consequences upon her of her child birth on 11 February 2014.

3. The Tribunal identified the delegate’s decision and correctly identified the issue in the present case as whether the first applicant as the holder of a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa breached condition 8202 of Schedule 8 to the Regulations and identified that if that breach has occurred, there is a discretion in respect of cancellation.

Consideration of the applicant’s compliance with condition 8202

1. The Tribunal found that the first applicant was not enrolled in a registered course and accordingly, the Tribunal found that the first applicant had not complied with condition 8202(2) of the Regulations.

Consideration of the discretion to cancel the visa

1. The Tribunal identified that having found that the first applicant had not complied with the condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. The Tribunal identified the purpose of the visa holder’s travel to and stay in Australia. The first applicant studied a Masters of Information Systems at Federation University when she first came to Australia and the Tribunal was satisfied that the first applicant travelled to Australia with the intention to study and has given this factor some weight in her favour.

2. The Tribunal has taken into account that the breach of the condition 8202 occurred over a period of time from 21 March 2014 to 31 March 2015 when the first applicant’s visa was cancelled. The Tribunal considered the extent of the breach as a significant factor pointing towards cancellation of the visa. The first applicant told the Tribunal that she had attended classes in the Master of Information Systems but found it difficult and passed only one of the four subjects. The first applicant discovered that she was pregnant and decided to do a Masters of Business Administration (MBA) at Charles Darwin University and was due to start in the November 2013 intake.

3. Because of the first applicant’s expected baby, the first applicant deferred her enrolment until March 2014. The first applicant again approached Charles Darwin University and asked them to again defer her course because of issues in relation to her baby. The first applicant claimed that she had contacted the Australian Technical and Management College and that they told her they were going to defer the course for the first applicant to the second semester. The first applicant alleged that she provided medical evidence. The Tribunal did not consider the first applicant’s claims in this matter to be credible. The Tribunal provided cogent and logical reasons in respect of the inconsistency in rejecting the applicant’s credit on that issue.

4. The first applicant informed the Tribunal that she did not seek to enrol in any other course up until 31 March 2015 because of her baby and because of her state of mind. The Tribunal raised with the first applicant why she did not enrol in a course in early 2015 and that the first applicant had said that she could not mentally free herself and talk with friends. The Tribunal asked the first applicant about whether she tried to be enrolled at the start of 2015. The first applicant did not indicate that she had applied for enrolment in the course at that time and has not submitted any supporting evidence that she did.

5. The Tribunal made reference to a referral letter dated 21 August 2015 from the applicant’s GP as well as the psychologist’s reports and, in particular, the identification of the applicant having Adjustment Disorder with Mixed Anxiety and Depressed Mood.

6. The Tribunal expressly referred to taking into account the psychologist’s reports but noted that they are based on only two visits to the psychologist and that they were both conducted a significant period of time after the period of non-compliance with the condition. The Tribunal found based on the evidence as a whole that the applicant suffered post-natal depression and anxiety after childbirth and that she had problems as such. The Tribunal was not satisfied on the available evidence that any of this was of sufficient severity that it meant the first applicant was unable to enrol in a registered course for such a long period of time from 21 March 2014 to 31 March 2015.

7. The Tribunal noted in that regard that its finding was supported by the fact that the first applicant did not seek to defer her studies at the Charles Darwin University in 2014 despite the institution having previously agreed to that course of action in late 2013. The Tribunal expressly referred to, taking into account the applicant’s father’s death in February 2011, the accident that killed her brother-in-law in May 2013 and that she had had health problems during her pregnancy and that these had had a psychological effect on her.

8. The Tribunal, however, found that it was not satisfied that these events were extenuating circumstances beyond the first applicant’s control which led to the breach of the condition. The Tribunal found that having had her course deferred due to her pregnancy, the Tribunal was not satisfied on the available evidence, that her medical state prevented her from seeking that again. The Tribunal also took into account that the applicant did not contact the Department at all during the long period of non-compliance to seek advice on her situation.

9. The Tribunal expressly found, having taken into account all the evidence, that it did not accept that the breach of condition occurred in extenuating circumstances beyond the first applicant’s control. The Tribunal made reference to taking into account that it is likely the first applicant will have to return home and that the first applicant will lose the opportunity to study in Australia. The Tribunal made reference to the fact that an Australian qualification of an MBA may give the first applicant some advantage with employers. However, as the first applicant has already obtained an MBA, the Tribunal considered her choice of the same course she had already qualified in as casting doubt, (combined with her lack of enrolment in any course for over a year), over whether the first applicant had a genuine intention to undertake an MBA or study in Australia.

10. It was that same issue of doubt in respect of the first applicant’s claimed genuine intention to enrol and undertake studies in Australia to which the Tribunal referred in respect of her failure to make contact with any potential education provider or to seek an offer of enrolment to secure her admission. The Tribunal referred to having given weight to these factors which support the cancellation of the visa.

11. The Tribunal concluded that the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the first applicant’s Class TU visa.

Before this Court

1. The second applicant is the first applicant’s partner and the third applicant is the first applicant’s child. The grounds of the amended application are as follows:-

   1) The Tribunal's finding at paragraph 38 that the applicant's failure to make contact with a potential education provider or seek an offer of enrolment in July 2016 casted doubt on whether she was a genuine student, was illogical, irrational or otherwise unreasonable.

   Particulars

   a) The Tribunal's finding was illogical, irrational or otherwise unreasonable in circumstances where:

   i) the Tribunal knew that the applicant's student visa had been cancelled on 26 February 2015 and that she had sought review of that decision to the Tribunal;

   ii) following the cancellation of her student visa she held a bridging visa and was not entitled to study.

   2) The Tribunal's finding at paragraph 27 that the breach of the applicant's visa condition did not occur in “extenuating circumstances beyond the applicant's control” was irrational, illogical or otherwise unreasonable.

   a) The Tribunal's finding was illogical, irrational or otherwise unreasonable, in circumstances where the Tribunal had already accepted that:

   i. the applicant had a child in February 2014;

   ii. the applicant suffered from post-natal depression, anxiety and hypertension and associated problems with her child;

   iii. that the applicant thought she was a failure;

   iv. that in 2014 she discovered a lump in her breast which caused her concern and worry;

   v. that the applicant's father died of a heart attack; and

   vi. that the applicant's brother in law was killed in a car accident.

   3) In the alternative to ground 2, the Tribunal failed to have regard to the cumulative impact of the applicant's circumstances, particularised in ground 2 above, in considering whether the breach of the visa condition had occurred in extenuating circumstances beyond her control.

Consideration

1. In relation to Ground 1, Counsel for the first applicant contended that because the applicant was on a bridging visa, there was a no-study condition and that, accordingly, the reasoning of the Tribunal in relation to its doubts concerning the applicant’s credibility was irrational and illogical in respect of para.38 of the Tribunal’s reasons. It was apparent from the transcript that the Tribunal raised with the applicant the issue identified in para.38 of the Tribunal’s reasons in respect of the failure to make contact with the potential education providers. It is apparent that that was raised with the first applicant in the context of whether the applicant was a genuine student.

2. The finding of doubt by the Tribunal in relation to whether the first applicant was a genuine student was a finding that was open to the Tribunal on the evidence before the Tribunal. The findings at para.38 in the Tribunal’s reasons cannot be said to lack an evident and intelligible justification. The contention that the finding of the Tribunal in para.38 was unreasonable, illogical or irrational is not made out. It was open to the Tribunal to make a finding in relation to the matters casting doubt upon whether the first applicant was a genuine student. The fact that the first applicant may have had a no-study condition on her visa is not a matter that renders unreasonable or illogical the observation made by the Tribunal in relation to the first applicant’s failure to contact the Charles Darwin University if, in fact, she had a genuine intention to enrol and undertake studies as the applicant claimed. Ground 1 fails to make out any jurisdictional error.

3. In relation to Ground 2, Counsel for the first applicant expanded this to include the adverse finding in para.25 of the Tribunal’s reasons. The findings made by the Tribunal in paras.25 and 27 of the Tribunal’s reasons were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 2 is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal. No jurisdictional error is made out by Ground 2.

4. Ground 3 is, in substance, an assertion that the Tribunal did not take into account all the evidence cumulatively, despite the Tribunal having said so. The Tribunal’s reasons reflect a cumulative consideration of the first applicant’s evidence and relevant claims, and no material was pointed to that was not taken into account by the Tribunal. Ground 3 is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal. Ground 3 fails to make out any jurisdictional error.

Conclusion

1. The amended application is dismissed.

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

Date: 16 January 2017