HAMMOUD v Minister for Immigration

[2016] FCCA 3287

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMMOUD v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3287

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – whether the applicant had a real and meaningful hearing before the Tribunal – whether the Tribunal failed to give the applicant the opportunity to give evidence and present arguments relating to the issues under review – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 360, 476

Migration Regulations 1994 (Cth), reg.8202 of Sch.8.

Applicant: MAJD HAMMOUD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1910 of 2016

Judgment of: Judge Street

Hearing date: 16 December 2016

Date of Last Submission: 16 December 2016

Delivered at: Sydney

Delivered on: 16 December 2016

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Mr P Bodisco

Australian Business Underwriter

Solicitors for the Respondents:

Mr A Keevers

Sparke Helmore

ORDERS

1. Leave is granted to the applicant to rely on the ground in the amended application dated 9 December 2016.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $7,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1910 of 2016

MAJD HAMMOUD

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 in s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 June 2016 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. The applicant is a citizen of Lebanon.

2. The applicant was issued on 23 October 2015 with a notice of intention to consider cancellation of his visa. The cancellation notice referred to s.116(1)(b) of the Act, advancing that there was a condition that had not been complied with. The letter explained that based on the evidence available, it appears that the applicant had not enrolled in a registered course of study since 7 April 2014 and accordingly that the applicant did not meet the requirements of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”). 

The Delegate

1. On 11 November 2015, the delegate found that the ground for cancelling the Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa had been made out and found that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. Accordingly, the delegate decided to cancel the visa. The delegate made reference to the fact that the applicant was notified of the intention to cancel and that the applicant was given an opportunity to respond and had failed to respond. 

The Tribunal

1. On 16 November 2015, the applicant filed an application for review before the Tribunal. On 6 May 2016, the applicant was sent a letter which informed the applicant that the Tribunal had considered the material before it and was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing, to take place on 14 June 2016.

2. Prior to the hearing, on 1 June 2016 the applicant’s migration agent provided a written submission to the Tribunal. That written submission sought to explain why the applicant did not enrol in March 2014. Part of the explanation was that the applicant’s financial sponsor for his visa to come to Australia was his uncle and that soon after the death of his grandmother, there was a legal fight between the applicant’s uncle and the applicant’s father. The submissions noted that since the legal fight, the applicant’s uncle decided to discontinue his financial support for the applicant’s education in Australia and informed the applicant’s father just before the course was to begin. The submission submitted that that made a huge effect on the applicant’s life and future in Australia and that it was the key reason why the applicant could not continue his course.

3. The submissions asserted that the applicant was very close to a first cousin of a different name, who had decided to provide the applicant with financial support if his student visa can be reinstated.  The applicant attended the hearing to give evidence and present arguments and was assisted also by his migration agent, present at that hearing. 

4. On the transcript before the Court, early in the hearing, the Tribunal raised with the applicant that an issue that needed to be considered was whether the applicant had financial capacity to engage in further study.  In relation to the submissions that have been made in respect of the applicant’s cousin, the Tribunal expressly raised that it needed to consider whether that was a person who was going to be able to provide support to the applicant in Australia.

Consideration of the applicant’s financial capacity to engage in further study

1. The Tribunal noted that it may not think that the cousin would be able to provide effective support to the applicant in Australia.  It is apparent that the ability of the cousin to provide financial support to the applicant was an issue raised prior to the hearing by the applicant’s migration representative and was a live issue in respect of which the applicant, at the hearing had a genuine and meaningful opportunity to address that issue. 

2. In the course of the hearing, the issue in relation to the ability of the cousin to financially assist the applicant was further raised, identifying the number of children that the first cousin had and the Tribunal member made a reference to the fact that the Tribunal had not been provided with bank statements. The Tribunal member made apparent that the Tribunal member was not asking for those, as that was a matter which the applicant’s migration agent must have understood were relevant to the applicant’s case. 

3. The applicant was asked whether he understood what had been said and was also given an opportunity to comment on what had been said in relation to the potential relevance of the bank statements. On the face of the transcript, it was apparent that the applicant had ample opportunity to take steps to seek to ask for adjournment or put on the bank statements that the Tribunal had flagged as relevant to the issue that was up in lights. The Tribunal gave the applicant a further opportunity during the hearing to identify whether there was anything else the applicant wished to raise. The Tribunal also made reference to the notice of assessment that was tendered in the course of the hearing and in that regard that the Tribunal would still have to consider whether the cousin could adequately provide for the applicant.

Consideration of the applicant’s breach of condition 8202

1. The Tribunal’s reasons identify that the issue was whether the applicant, as the holder of a student visa, has breached condition 8202 of schedule 8 to the Regulations and, if the applicant has breached that condition, under s.116(1) of the Act, the applicant’s visa may be cancelled. The Tribunal turned to the issue of breach and found that it was satisfied the applicant was not enrolled in a registered course of study since 7 April 2014. In the course of those reasons, the Tribunal made reference to the applicant’s submissions dated 1 June 2016 in relation to the paternal uncle, who was identified as the financial supporter at the time of the application for the student visa. The Tribunal referred to the paternal uncle’s fight with the father and that the applicant claimed that the key reason for his withdrawal from the course was the withdrawal of financial support by the paternal uncle.

2. The Tribunal noted that the applicant claimed that he had a cousin who was an Australian citizen and that this was a person with whom the applicant had lived for one month after arriving in Australia but he had been unable to continue to stay there. The submissions noted that the applicant’s father’s first cousin was submitted to be able to provide assistance to the applicant, footnoting financial information that was lodged, being a reference to a notice of assessment that identified a small taxable income of $22,912.00 in relation to the applicant’s first cousin, a father of six. The Tribunal found the applicant was not enrolled in a registered course and that the applicant did not comply with condition 8202(2)(a) of Schedule 8 to the Regulations. The Tribunal found that the applicant, not having complied with the condition of the visa, the Tribunal must consider whether to exercise the discretion to cancel the visa.

3. The Tribunal referred to taking into account the Department’s Procedures Advice Manual (PAM3) guidelines. The Tribunal made reference to the purpose for which the applicant travelled to Australia was to study. The Tribunal made reference to the applicant’s alleged circumstances in respect of the cousin being able to assist the applicant financially. The Tribunal made reference to the small taxable income of the cousin and the Tribunal found that the cousin with his six children, did not satisfy the Tribunal that the cousin was sufficiently able to financially assist the applicant to engage in a registered course of study for the purpose of the Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. Having considered all the circumstances as a whole, the Tribunal concluded that the visa should be cancelled. 

Proceedings before this Court

1. The grounds of the application and the ground in the amended application are as follows:-

   1. The Administrative Appeals Tribunal has erred to provide reasons for its decision pursuant to Section 116(1) of the Migration Act 1958.

   Particulars: In dealing with the Applicant's claim under Section 116 of the Migration Act 1958 (Cth) the tribunal has failed to establish grounds to it consideration

   2. The Administrative Appeals Tribunal has failed to apply the correct test as set in Section 116 of the Migration Act 1958 (Cth)

   Particulars: In dealing with Applicant's claim under Section 116 the Administrative Appeals Tribunal has erred in reasoning and the Applicant view has been denied by adopting a strict principal with wrong application of the section.

   3. The Tribunal has breached section 360 of the Migration Act I 958 (Cth).

   Particulars:

   At paragraph [25] of the decision, the Tribunal held that it was not satisfied that the Applicant's first cousin, with six children of his own, is sufficiently able to financially assist the applicant to engage in a registered course of study, in circumstances where the Applicant was not invited to give evidence and present arguments on the point and nor was he provided an opportunity to lead further evidence on the point.

Consideration

1. Mr Bodisco, of Counsel on behalf of the applicant skilfully endeavoured to argue that the Tribunal on the face of the transcript had shut the door on the applicant in relation to the adducing of evidence and in particular, the adducing of the bank statements. Mr Bodisco contended that the transcript revealed that the Tribunal member had not provided the applicant with a real opportunity to address the issue as to whether the cousin had the financial capacity to support the applicant.

2. Mr Bodisco contended that there may have been a conflict between the applicant and the migration agent present in that they had explained the failure of the migration agent to raise a request for an adjournment to adduce the bank statements. On a fair reading of the transcript, the Tribunal did not shut the door on the applicant and the applicant had a proper opportunity and a real and meaningful hearing in relation to the issues. 

3. Further, the issue in relation to the financial ability of the applicant’s cousin to support the applicant had been raised by the applicant’s migration agent and it was for the applicant to satisfy the Tribunal that there were reasons why the visa should not be cancelled in circumstances where the applicant had been in breach of the condition imposed on the visa and had not enrolled in a registered course of study since 7 April 2014.

4. The Tribunal did not in the course of the hearing shut the door on the applicant but rather to the contrary, squarely raised and flagged the importance of the financial ability of the cousin to support the applicant as a live and real issue. The Tribunal went further and flagged the potential importance of bank statements. It was a matter for the applicant and the applicant’s migration representative as to what material was advanced in relation to the financial position of the cousin.

5. The only financial material provided was the notice of assessment. The applicant and the applicant’s migration agent had ample opportunity to seek an adjournment or to provide further comment or respond in relation to the Tribunal having flagged that no bank statements had been adduced in relation to the cousin. There is no breach of s.360 of the Act in the conduct of the review by the Tribunal. I do not accept that there was any conflict or opposition between the migration agent and the applicant.

Conclusion

1. I accept the submissions of the first respondent that the presence of the migration agent as well as the earlier submissions on 1 June 2016 in response to the invitation to attend the hearing made apparent that the applicant was well alive to the live issue in respect of the financial ability of the cousin to assist the applicant. There was no denial of procedural fairness in the conduct of the review by the Tribunal. No jurisdictional error as alleged is made out.

2. The amended application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 January 2017