Gurrampati v Minister for Immigration

[2020] FCCA 2522

FEDERAL CIRCUIT COURT OF AUSTRALIA

GURRAMPATI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2522

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Higher Education Sector (subclass 573) visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal misconstrued a statutory provision– where the Tribunal did not carry out the statutory task it was required to – jurisdictional error made out – application allowed.

Legislation:

Migration Act 1958 (Cth), s. 476

Applicant: VIJAYA BHASKAR REDDY GURRAMPATI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3138 of 2019

Judgment of: Judge Street

Hearing date: 8 September 2020

Date of Last Submission: 8 September 2020

Delivered at: Sydney

Delivered on: 8 September 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Mr A Moss, Clayton Utz, via Microsoft Teams

ORDERS

1. A writ in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision made on 2 November 2019.

2. A writ in the nature of mandamus is issued requiring the second respondent to determine the review application according to law.

3. The first respondent pay the applicant’s filing fee and or any Court costs that have been incurred in listing the matter for hearing.

DATE OF ORDER: 8 September 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3138 of 2019

VIJAYA BHASKAR REDDY GURRAMPATI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 6 November 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) to cancel the applicant’s Higher Education Sector (subclass 573) visa.

2. The applicant is a citizen of India and was sent a notice of intention to cancel his visa dated 1 December 2017. The notice identified that the applicant needed to be enrolled in a current course of study, and the applicant was not. 

3. On 19 February 2018, the Delegate found that the applicant’s visa should be cancelled. The cancellation expressly identified that the applicant did not comply with the condition on which his visa was granted because he was not in a registered course of study. 

4. The applicant applied for a review on 21 February 2018. The Tribunal wrote to the applicant on 16 October 2019 and identified it was unable to make a favourable decision on the information currently before it. The letter invited the applicant to appear at a hearing on 31 October 2019. The applicant appeared on that date to give evidence and present arguments and was represented by his migration agent.

5. The Tribunal identified the background to the visa application and identified that the ground for cancellation of the visa is established. 

6. The Tribunal did correctly identify, in paragraph 16 of its reasons that it had to consider whether the visa should be cancelled, and that there are no specific matters that must be considered in the exercise of this discretion. 

7. Contrary to the applicant’s submissions, it is patent that the Tribunal considered the applicant’s mental health and the circumstances relating to his father’s health. There is no substance in the applicant’s submissions in relation to not being aware of the reason why his visa was cancelled, and his criticisms of the decision, in substance, invited merits review. Nor was there any substance in the assertion of a denial of procedural fairness in his originating application. 

8. However, Mr Moss, the solicitor for the first respondent, consistent with his duty as a model litigant, took the Court to a paragraph in the Tribunals’ reasons that identifies the Tribunal making a finding in relation to there not being exceptional circumstances. This was a proper discharge by Mr Moss of the model litigant’s duties, and Mr Moss fairly and skillfully put every argument that he could as to why the Court should find it was not a jurisdictional error. 

9. In that regard, Mr Moss, drew attention to the consideration of the general factors consistent with the Procedural Advice Manual (“PAM”) taken into account by the Tribunal member, and drew attention to the obligation not to read the Tribunal’s decision with a keen eye for error, and argued that as the Tribunal had correctly identified the relevant tests in paragraph 16, the Court should find that the finding in paragraph 58 did not deflect the Tribunal from the correct application of the test. 

10. Mr Moss also relied in that regard upon the consideration by the Tribunal of any other relevant matters as supporting that the Tribunal correctly understood the relevant tests. Mr Moss also submitted that paragraph 59 might be read as an independent, correct application of the test. The difficulty, which Mr Moss had clearly recognised, is that paragraph 58 is a critical finding under the heading ‘Conclusion’.  It clearly identifies the Tribunal making a finding as to the existence of exceptional circumstances that were not a relevant criteria under the statutory provision. 

11. The finding under paragraph 58 immediately precedes the conclusion found in paragraph 59. That conclusion expressly refers to considering the circumstances as a whole. However, the circumstances that the Tribunal member had immediately identified in the preceding paragraph are whether or not there were exceptional circumstances. 

12. Whilst on one reading, Mr Moss is right, it might be said that the Tribunal disregarded the finding of exceptional circumstances, the Court is not satisfied that that is what has occurred. The structure of the Tribunal’s reasons under the heading ‘Conclusion’ identifies three ultimate findings, one of which was as to the existence of exceptional circumstances. This supports the conclusion that the Tribunal has misconstrued the statutory provision in respect of the discretion that the Tribunal had to exercise. 

13. Accordingly, the Tribunal has not carried out the statutory task it was required to, and there has been a jurisdictional error. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 8 September 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 26 November 2020