Gupta v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUPTA v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1915

Catchwords:

MIGRATION – Review of Migration Review Tribunal decision – Visa – student visa – breach of condition 8615 – decision affirmed.

Legislation:

Migration Act 1958 (Cth), ss.116, 430

Applicant:

RAHUL GUPTA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 259 of 2015

Judgment of:

Judge Vasta

Hearing date:

7 July 2015

Date of Last Submission:

7 July 2015

Delivered at:

Brisbane

Delivered on:

7 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr P.A. Travers

Solicitors for the Applicant:

Chand Lawyers

Counsel for the First Respondent:

Mr S.T. Richardson

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Amended Application filed on 19 June 2015 be dismissed.
The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 259 of 2015

RAHUL GUPTA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

This is an application for Judicial Review of a decision of the Migration Review Tribunal made on 25 February 2015. The decision of the Migration Review Tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection to cancel the visa of the Applicant because there had been a breach of condition 8615.
The relevant chronology is that on 22 January 2014, a student visa was granted to the Applicant. The Applicant’s visa was granted as a subclass 573 visa for the study of a Bachelor of Business.
On the evidence before the Tribunal the Applicant said that within two weeks of entering Australia he decided to change from the Bachelor of Business to a cooking course. He gave various reasons for wanting to do that. On my reading of condition 8615, that would have immediately put him in breach of the conditions of his visa.
It seems then that a certificate of enrolment for a certificate IV in Commercial Cookery between 24 March 2014 and 14 June 2015 was given. It seems that the Applicant did complete that course. It does not seem as though there was any further study after the completion of that course.
On 18 November 2014, by registered post, the Department sent to the Applicant a Notice of Intention to Consider Cancellation under s.116 of the Migration Act 1958 (Cth). That notice detailed that:
“According to the Provider Registration and International Student Management system, it appears that you are no longer enrolled in a bachelor’s degree or master’s degree course and you are not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A.”
On 17 December 2014 the delegate of the Minister confirms cancellation of the visa. On 24 December 2014 the Applicant filed an application for review with the Tribunal. In late January 2015, the Tribunal sent the applicant an invitation to appear before the Tribunal on 25 February 2015. It seems on 16 February 2015, some nine days before the Tribunal was to hear the matter, the Applicant applied for enrolment in a Bachelor of Business (Management) at Cambridge International College and in responding to the pro forma application stated:
“I wish my enrolment to commence on 2 March 2015.”
On 25 February 2015 the Applicant’s Tribunal hearing occurred. As an exhibit to the affidavit of Pamesh Chand that was affirmed on 18 June 2015, is a transcript of that hearing (Annexure PC1). In particular at the end of the hearing, after asking a number of questions to the Applicant, the Tribunal asked if there was anything that the advisor wanted to say.
I should mention that the Tribunal hearing was conducted in a situation where the member of the Tribunal was sitting in Sydney and the Applicant was in Brisbane with his advisor and they were appearing by telephone. As such, the Tribunal was sitting in daylight saving time in Sydney, so a hearing starting at 9.40 am was occurring at 8.40 am Brisbane time. The transcript has recorded in it, at page 12 at line 10, the advisor spoke to the Tribunal member about the provision of the enrolment. I will read directly from the transcript:
“Advisor: I have just two things, Member, and I will be brief. On the question of responsibility placed on the applicant, it is my view that I think he did whatever he needed to do and he went to the education provider, relied on their advice and enrolled in the course within the cookery. On the question of getting a letter (indistinct) for the sake of money (indistinct) 365 days. But having said that, I would like to make a comment that (indistinct) colleges, and to the best of my knowledge there is only one in Brisbane would like to do everything that (indistinct), and I have spoken to American college because he approached them in January and it took them basically six weeks to give him a letter of offer for the management course simply because there were (indistinct) letter released from Spencer College.
And in terms of getting the letter of offer from Cambridge College, he showed me late yesterday afternoon an email from Cambridge College asking to do a 10-week English course prior to doing the bachelor course. So when he approached my office late in the afternoon I said (indistinct) to do that. So subsequently (indistinct) the university, and if you are kind enough to allow us three or four days (indistinct) letter of offer (indistinct).”
The Tribunal answered:
“I’m happy to accept that you can get a letter of offer. I think my point really is it shouldn’t have taken three months, if you had a genuine intention - if your client had a genuine intention of pursuing a higher education study by November when the notice of intention was issued. Your client would have been aware that there was a problem with condition 8516. I’m happy to accept that in another few days you will probably get your offer from Cambridge. The question before me is: Is there a genuine intention of pursuing that course?”
The advisor replied:
“Member, in my short period that I have known him, for about two and a half months, I think he is making a genuine effort, and I’m just saying that there are very few colleges who (indistinct). That’s exactly what American college did. So when he had his vocational letter of offer for courses and (indistinct), he submitted them to Cambridge University. So they were considering that. And just yesterday they wrote back to say – because I told my client to tell Cambridge University (indistinct) issue a letter of offer, so (indistinct) you will have to do another 10 weeks of English course. So that’s where we are. But, as I said, if you’re kind enough to allow us a few days, we will follow it up.”
The Tribunal said:
“Look, I don’t see the point. I’m happy to accept it’s forthcoming. I mean, I accept that evidence. I don’t quite see the point of giving you more time. I accept that he will get an offer within the next few days. That’s not really my concern. My concern is the timing of it. In the past three months (indistinct) I’m happy to accept that you will be able to obtain an offer from Cambridge.”
The advisor replied:
“In relation to the past three months, as I said to you, Member, (indistinct) simply because it has taken that time. There are few colleges and very few that want to do the right things.”
The Tribunal said:
“I understand that but ...”
The advisor interrupted with something indistinct. The Tribunal continued:
“Sorry. I’m just trying to explain why (indistinct) obtaining the offer. I’m happy to accept that it’s possible to do that, so I accept that evidence.”
Advisor said:
“Okay, Member. Thanks.”
The Tribunal said:
“Anything else from either of you before we conclude this hearing?”
The advisor said:
“No, Member. Thank you very much.”
The Tribunal said:
“Mr Gupta.”
To the Applicant
“do you want –“
And the applicant replied:
“No. Thank you.”
The Tribunal said:
“No? All right. If there’s nothing further, we’re going to conclude the hearing. What will happen next is I’m going to go away and consider all the evidence. I will try to make my decision as quickly as I can, hopefully today, but in any case in the next day or so. Thank you very much for speaking to me. We will conclude the hearing now.”
The transcript notes that was at 10.27 am. At 12.57 pm it is noted that the decision is made. That decision appears both at what is realistically page 15 of the bundle of documents. It is also Annexure RG1 to the affidavit of the Applicant affirmed on 25 March 2015. The decision advises that the statement was made on 25 February 2015 at 12.57 pm.
Considering that these are New South Wales times, at 2.19 pm New South Wales time the solicitor, who was the adviser in the hearing, sent an email to the Tribunal. It said:
“Dear Member, I am forwarding a scanned copy of the letter (letter of offer) which the applicant handed to me early this afternoon. At the hearing today the applicant mentioned he was in the process of getting a letter of offer from Cambridge College. The applicant informs me that he had, through American College, made applications for higher studies to both Alphacrucis and both Cambridge International and that up to yesterday afternoon only Cambridge had responded, asking him to also enrol for a 10-week English course. The applicant wishes to inform the Tribunal that he will withdraw his application from Cambridge College now that he as a letter of offer for higher studies at Alphacrucis. Kind regards, Chand Lawyers.”
Attached to that is a letter addressed from American College Australia to whom it may concern, dated 25 February 2015, stating:
“This letter is provided to confirm that Mr Rahul Gupta has been conditionally offered admission as a SVP student of American College in articulation for bachelor of business, subclass 573, with Alphacrucis for the following courses...”
The enrolment was to commence in August 2016 (over 12 months from today’s date). It is signed by a Bernard Malik, Director. Now, that was received at 2.19 pm. It seems at 3.23 pm the decision of the Migration Review Tribunal was communicated to the Applicant and his solicitor.
As was evident from my reading of the transcript, the solicitor or advisor of the Applicant had on two occasions asked for a few days to follow up this issue of enrolment. On both occasions the Tribunal had said that they did not see the point and that they accepted that there would be a letter of offer from one of the colleges.
It would appear from the material that the Applicant and his advisor were of the opinion that the Tribunal had expressly given them permission to put further material before them. It was submitted that the fact that the Applicant and the solicitor went out and chased the letter down as quickly as they did gives an illustration as to their state of mind in the way in which the Tribunal hearing was conducted. Notwithstanding that that is clearly the state of mind that they had, I do not see anything in the reading of the transcript that is confusing at all.
It seems to me that the Tribunal was quite firm that there was no need for any more material, because the Tribunal accepted that there would be a letter with the offer very soon. The grounds of this application are;
“1. The Tribunal engaged in conduct which amounted to jurisdictional error in that the conduct of the hearing was in breach of the Tribunal’s obligation to afford natural justice to the applicant by failing to give the applicant the right to be heard, in circumstances where the Tribunal agreed to allow the Applicant further time after the hearing within which to submit further material, but then failed to provide said time and made its judgment without consideration of that material.
2. The Tribunal engaged in conduct which amounted to jurisdictional error in that it failed to consider a relevant consideration, being the offer of enrolment in the American College and Alphacrucis College.
The proceedings before the Migration Review Tribunal were to review the decision of the Minister in cancelling the visa pursuant to s.116 of the Migration Act 1958 (Cth). That section relevantly is headed,
“ 116 Power to Cancel.
(1)Subject to subsections (2) and (3), the Minister may cancel the visa if he or she is satisfied that:
…
(b)its holder has not complied with a condition of the visa;…”
It has been pointed out that the power to cancel is a discretionary one because of the words “…may cancel a visa if he or she is satisfied that… its holder has not complied with a condition of the visa”.
It would seem on the evidence, and as I said at the beginning of these reasons, it is obvious that the Applicant had not complied with a condition of the visa in that he did not continue to be enrolled in a course which was a subclass 573 course.
It would seem that he had not been enrolled in that course since at least a week or two weeks after arriving in Australia. He had not been enrolled in the course at the time of the hearing, though the relevant matter under 573.231 was:
“If... the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course...”
The reality is that the offer that I have referred to earlier, and is in the bundle of documents at page 7, is a conditional offer of admission and was not before the Tribunal at the time of the hearing. But nevertheless there is no question that there has been a breach of the condition, and that the prerequisite, or the threshold point, of s.116 had been reached.
The matter then before the Tribunal was then one of an exercise of a discretion. Whether the discretion has been exercised properly is only on very rare occasions the subject, or could be the subject, of jurisdictional error.
As has been pointed out, a hearing such as this is not a merits review. The matter before me is whether, in exercising the discretion that it had, did the Tribunal fail to give the Applicant the right to be heard?
Ground 1 is predicated upon there being circumstances where the Tribunal agreed to allow the Applicant further time after the hearing within which to submit further material but then failed to provide that time. As I have said, in reading the transcript I do not see that there were circumstances where the Tribunal agreed to allow the Applicant further time to submit further material.
It may be that the Applicant believed that, and it is certainly the case that the advisor or solicitor believed that, but in my reading of the transcript I cannot see that the transcript could in any way, shape or form be construed as illustrating that the Tribunal was allowing further time.
However, the Tribunal does have an obligation to afford natural justice to the Applicant. If it were that the Tribunal was not receptive to the factual basis of what it was that the Applicant was submitting to it, then one would say that it has not given the Applicant the right to be heard. Paragraph 24 of the decision reads thusly:
“24. The Tribunal also considers it significant that to date, the applicant has not obtained an offer or a CoE for a higher education course. As noted above, the applicant presented to the Tribunal an offer from the American College for diploma courses. While he had approached Cambridge College to enrol in a bachelor course, he has not obtained an offer or a COE for such a course. The Tribunal accepts that if given time, the applicant will be able to obtain the offer. However, the Tribunal’s concern is not that the applicant is not presently the subject of an offer of enrolment in a higher education course, but rather with the fact that the applicant does not appear to have made adequate effort to enrol in a higher education course. The applicant informed the tribunal he approached Cambridge College about a week before the hearing. However, the applicant was issued with NOICC in mid-November. At least by that time, the applicant was aware of condition 8516 and its requirements. And in the tribunal’s view, prior to November 2014 the applicant should have been aware of that condition, yet in that period the applicant had not obtained an offer of enrolment in a higher education course as his visa required him to do. The applicant claims the college was on holidays in that period; the tribunal does not accept that evidence. The tribunal does not accept that any education institution which is in the business of offering education to students would not offer enrolment to a paying student for three months, even in the courses were not in session. The applicant’s advisor suggested the college followed correct procedures, required the letter of release, and informed the applicant he had to complete English studies first. The tribunal acknowledges that evidence, but the tribunal does not accept that if the applicant made any effort to enrol in November 2014 he would not have been enrolled by the time of this decision. The applicant’s own evidence to the tribunal is that he approached Cambridge College shortly before the tribunal hearing. The tribunal finds that the applicant did not make adequate effort to enrol in a higher education course. The tribunal is not satisfied the applicant has a genuine intention of pursuing higher education study in Australia
In that paragraph, the applicant has made submissions that the first sentence, “The tribunal also considers it significant that to date the applicant has not obtained an offer or a COE for a higher education course …” is factually incorrect because of the letter that is page 7 of the bundle of relevant documents. Further they also submit the next sentence, “As noted above, the applicant presented the tribunal an offer from the American College for diploma courses…” is in contradiction to that first sentence.
The argument is then that, “if the Tribunal had had all the proper evidence before it, it would have not made that mistake. In making that mistake it may very well be that the decision may have been different, though it may be that the decision was not different. Whether it would have changed things is not the point. The fact is that the Tribunal did not have that information before it. It should have had that information before it, and so therefore in not allowing itself to be fully informed it has not given proper justice to the Applicant and therefore is in jurisdictional error.”
I am not in agreement with that submission for this reason. The Tribunal clearly says in that same paragraph that, “The Tribunal accepts that if given time the applicant will be able to obtain the offer.” That statement is a further illustration of what the Tribunal had said in the transcript at P12, line 29, where they said: “I’m happy to accept that you can get a letter of offer”.
Later at P13, line 4, when asked if she would be kind enough to allow the Applicant a few days to follow up getting a letter of offer, it was said:
“Look, I don’t see the point. I’m happy to accept it’s forthcoming. I mean, I accept that evidence. I don’t see the point of giving you more time. I accept that he will get an offer within the next few days.”
In both of those extracts from the Tribunal and the sentence that I have already highlighted from paragraph 24, it seems to me that the Tribunal had accepted the evidence and taken everything which the Applicant sought to put before the Tribunal as actually being fact. It is not that the Applicant was not heard. The Applicant was heard. Notwithstanding the opening sentence of paragraph 24, the Tribunal accepted that an offer, in terms greater than what was eventually made to the Applicant, would be made and proceeded as if that offer had been actually made. The Tribunal instead looked at the other aspects that I have already spoken of in paragraph 24 in exercising its discretion. For that reason I do not see that Ground 1 has been made out.

With regard to Ground 2, that “the Tribunal engaged in conduct which amounted to jurisdictional error in that it failed to consider a relevant consideration, being the offer of enrolment”, one must look at s.430 of the Migration Act 1958 (Cth),
“430 Refugee Review Tribunal’s decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
…
How and when written decisions are taken to be made
(2) A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
…
(2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.”
It is clear that on the front of the decision, as I have already said, there is a notation that the statement was made at 12:57 pm on 25 February 2015.
It is the submission of, and I accept as the correct submission, of the Respondent that at the time of 2.19pm, when page 7 of the relevant bundle was given to the Tribunal, the Tribunal was then functus officio and could not have considered that physical document there and then. So in my view Ground 2 also has no substance.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 15 July 2015

[2015] FCCA 1915

7 July 2015

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction