Handa v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 66
Federal Circuit and Family Court of Australia
(DIVISION 2)
Handa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 66
File number(s): PEG 58 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 9 February 2023 Catchwords: MIGRATION – Cancellation of a Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s claim to fear harm – whether the Tribunal failed to consider that the applicant is now reconciling with his wife – whether the Tribunal failed to consider that the applicant showed remorse or that he had repaid the stolen amount – remittal futile in any event – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 37A, 116, 133, 134D, 375A and 476
Migration Regulations 1994 (Cth), reg 2.43(1)
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BOJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 990
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gupta v Minister for Immigration [2016] FCA 1004
Makwasa v Minister for Home Affairs & Anor [2018] FCCA 1179
Martin v Minister for Immigration & Multicultural Affairs [1999] FCA 1256
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZXHY v Minister for Immigration [2007] FCA 622
Patel v Minister for Immigration & Anor [2014] FCCA 2000
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATI v Minister for Immigration & Border Protection [2015] FCA 923
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 2 February 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 58 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROHIT HANDA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
9 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
Background
The applicant is a citizen of India (Court Book (“CB”) 5, 18 & 272). He first arrived in Australia as the holder of a visitor visa in July 2019 (CB 78). He was granted a Student (Class TU) (Subclass 500) visa (the “visa”) on 30 August 2019 (CB 1 & 5). The visa was due to expire on 3 December 2021 (CB 272).
On 1 February 2021, the Department of Home Affairs (the “Department”) obtained a “Check Results Report” document from the Criminal Intelligence Commission which detailed six criminal offences that the applicant had been convicted of in December 2020 (Affidavit of Cody Nathalie Allen affirmed and filed on 19 January 2023 (the “Allen affidavit”), pp 7-8).
On 9 March 2021, the Department sent the applicant a notice of intention to consider cancellation (the “NOICC”) letter under s 116 of the Migration Act 1958 (Cth) (the “Act”) (CB 5-8).
That letter was sent to the applicant by email (CB 4). It explained that the ground for cancellation being considered in relation to the applicant was defined at reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (CB 5). It was noted that, on the evidence before the Department, it appeared the applicant had been convicted of six counts of stealing in the Perth Magistrates Court in December 2020 (CB 6). The applicant was advised that this might be a ground for counselling his visa pursuant to s 116(1)(g) of the Act and he was invited to respond to the NOICC letter within five working days (CB 6).
On 12 March 2021, a representative of Tang Law (the “applicant’s former representative”) wrote to the Department requesting an extension of time within which to respond to the NOICC on behalf of the applicant (CB 9-12).
Later that day, on 12 March 2021, the Department granted the applicant (through his former representative) an additional five working days within which to respond to the NOICC (CB 13-14).
On 22 March 2021, the applicant’s former representative provided written submissions to the Department on the applicant’s behalf (CB 17-24) via email (CB 15-16). Those submissions detailed that the applicant had indeed committed the criminal offences (CB 19) and included a declaration signed by the applicant confirming the contents of the submissions “accurately and completely present[ed the applicant’s] claims” (CB 24). Attached to those submissions were various supporting documents (CB 25-70).
On 29 June 2021, a delegate of the first respondent (the “Minister”) cancelled the applicant’s visa (the “cancellation decision”) (CB 75-88). The applicant, through his former representative, was notified via email of the cancellation decision (CB 71-74).
On 30 June 2021, the applicant’s former representative applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the cancellation decision on behalf of the applicant (CB 89-96).
On 20 August 2021, the Tribunal invited the applicant (through his former representative) to attend a hearing before it scheduled for 15 September 2021 (CB 102-105). That invitation was sent via email (CB 101).
On 27 August 2021, the applicant’s former representative advised the Tribunal that the firm had ceased to represent the applicant (CB 111-112).
On 14 September 2021, a representative from Saharan Family & Criminal Lawyers (the applicant’s “new representative”) contacted the Tribunal (via email) (CB 123) attaching a letter which sought an adjournment of the Tribunal hearing (scheduled for the following day) (CB 124-129).
Later that day (also on 14 September 2021), the Tribunal advised the applicant’s new representative (via email) that it would not postpone the hearing (CB 130-133).
On 15 September 2021, the applicant appeared at a hearing before the Tribunal. He was assisted by his new representative and an interpreter in the Punjabi language (CB 138-140).
Later that day, the Tribunal provided the applicant with a s 375A Certificate issued by the Department and the material covered by that certificate (with some redactions) (CB 145-189). The letter from the Tribunal explained that the Tribunal was “not satisfied that the certificate ha[d] been validly issued”. Further, the Tribunal also stated that it “found no material relevancy in the information in assessing whether the grounds for cancelling the applicant’s student visa ha[d] been made out” (CB 146).
On 29 September 2021, the Tribunal invited the applicant to attend a resumed hearing before it on 20 October 2021 (CB 190-192).
On 20 October 2021, the applicant attended a resumed hearing (with the assistance of his new representative and an interpreter in the Punjabi language) (CB 210-212). The applicant requested a further adjournment to allow him time to obtain access to his Department file through a freedom of information (“FOI”) request (CB 273).
On 20 October 2021 (after the hearing), the applicant again became self-represented (CB 213-214).
On 13 December 2021, the Tribunal invited the applicant to attend a further resumed hearing before it on 20 January 2022 (CB 217-219).
On 20 January 2022, the applicant attended the further resumed hearing before the Tribunal (with the assistance of an interpreter in the Punjabi language) (CB 223-225).
On 10 February 2022, the applicant sent further submissions and additional materials to the Tribunal in support of his application (CB 231-267)
On 25 February 2022, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa (CB 270-282).
On 29 March 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
The Tribunal’s decision
The Tribunal’s decision is 13 pages long and spans 94 paragraphs.
The Tribunal began by explaining that under review was a decision to cancel the applicant’s visa. The Tribunal noted that the issue in the present case was whether a ground for cancellation had been made out (and, if so, whether the visa should be cancelled) (at [1]-[2]).
The Tribunal also confirmed that the applicant had appeared at three hearings before it (on 15 September 2021, 20 October 2021 and 20 January 2022). The Tribunal further confirmed that the hearings were conducted via Microsoft Teams and that the applicant’s then “new representative” had only attended the first two hearings (at [3]-[6]).
The Tribunal then outlined the applicant’s migration history, relevant background information and the applicant’s evidence provided at hearing. The Tribunal noted that:
(a)the applicant was born in India in September 1984 (at [11]);
(b)the applicant arrived in Australia in July 2019 as the holder of a visitor visa. He subsequently applied for a student visa and claimed to be married with a daughter. The applicant was granted a student visa on 30 August 2019 (which was due to expire on 3 December 2021) and commenced a commercial cookery course in September 2019 (at [12]-[13]);
(c)on 9 March 2021, the applicant was issued a NOICC which set out that the applicant had been convicted of six counts of stealing in the Perth Magistrates Court. The applicant was invited to respond to the NOICC in writing by 22 March 2021 (at [14]-[15]);
(d)on 22 March 2021, the applicant’s former representative provided written submissions on behalf of the applicant (including a declaration signed by the applicant, declaring the accuracy of its contents). The response confirmed that the applicant had been convicted of the offences referenced in the NOICC (at [16]-[17]);
(e)the delegate found that there were grounds for cancellation (under s 116(1)(g) of the Act) and cancelled the applicant’s visa on 29 June 2021 (at [18]);
(f)the applicant sought review of the delegate’s cancellation decision on 30 June 2021 (at [19]);
(g)on 8 July 2021, the Tribunal received a non-disclosure certificate pursuant to s 375A of the Act, explaining that a number of documents could not be released as it would be contrary to the public interest (at [20]); and
(h)on 15 September 2021, the Tribunal gave the applicant a copy of the non-disclosure certificate and advised him that it “found no material relevancy in the information”. The Tribunal also provided the applicant with copies of the documents with personal particulars redacted. The Tribunal confirmed that it was satisfied that the certificate had not been validly issued and that the applicant had been provided with an adequate opportunity to address the information (at [21]-[22]).
The Tribunal continued:
23.During the first hearing on 15 September 2021 , the Tribunal commented that it appeared the grounds for cancellation existed on the basis of six convictions resulting in an intensive supervision order for nine months, not least because the applicant provided a statement acknowledging he had a conviction for breaching laws in Western Australian, and asked whether the applicant had any comment The applicant responded that he could not comment because his previous representation had not provided him or his current representative with a copy of file and he had an FoI request under s 362A of the Act to access his Departmental file which had not been fully processed. The Tribunal pointed out to the applicant that his FoI request lodged on 4 September 2021 had been for the Tribunal's file and he had not included a request for the Departmental file. (The Tribunal provided complete access to the file on 9 September 2021 (Folios1-72).) The Tribunal provided the applicant an adjournment to the hearing to address this.
The Tribunal noted that, at the second hearing before it (on 20 October 2021), the applicant sought a further adjournment as he had not been provided with access to his Departmental file following his FOI request. The Tribunal also noted that the applicant was provided with a “Notification of Intention to Refuse Access Request” in October 2021 and did not respond to that notice (at [24]-[25]).
The Tribunal explained that at the third hearing before it (on 20 January 2022), the applicant indicated that he had not been given access to his Departmental file. The Tribunal confirmed that it had proceeded with the hearing because the applicant had not responded to the access refusal notification (at [26]).
The Tribunal also noted that the applicant had failed to comment in relation to the information put to him (on 25 September 2021) regarding the non-disclosure certificate and related documents. The applicant told the Tribunal that “he did not have any comments” (at [27]).
The Tribunal continued:
28.The Tribunal then sought comment as to whether the applicant had breached six Western Australian laws which would make up the grounds for cancellation pursuant to s 116(1)(g) of the Act because the prescribed ground for cancellation at reg 2.43(1)(oa) applies to his circumstances.
29.The applicant admitted he had and that he had pleaded guilty to six offences of stealing while employed with a freight distributor, StarTrack, that he repaid the full amount of the required reparation and that he was sentenced to six concurrent intensive supervision orders over nine months which he has completed.
The Tribunal confirmed that it had given the applicant an opportunity to provide further documents or submissions (post-hearing) and that he was again provided with a copy of the non-disclosure certificate (originally sent to him on 15 September 2021) (at [30]).
The Tribunal acknowledged receipt of post-hearing submissions on 11 February 2022 in which the applicant stated that grounds for cancellation did not exist and that he had “recompensed Australia Post”. The applicant also provided an Indian “court order” and associated documents relating to his divorce “from his former spouse” (at [31]).
The Tribunal confirmed that it had before it a criminal history check dated 1 February 2021 from the Departmental file which confirmed that the applicant had been convicted of six counts of stealing (at [32]).
The Tribunal found that, with no contrary evidence, the grounds existed to cancel the applicant’s visa pursuant to s 116(1)(g) of the Act. Noting that the ground did not require mandatory cancellation, the Tribunal explained that it also needed to consider whether the applicant’s visa should be cancelled (at [33]-[34]).
The Tribunal considered the purpose of the applicant’s travel and stay in Australia and whether the applicant had a compelling need to travel to or remain in Australia and:
(a)noted that the applicant arrived in Australia in July 2019 and was granted a student visa on 30 August 2019 (at [36]);
(b)noted that the applicant initially enrolled in a Certificate IV in commercial cookery and later enrolled in Certificate III, Certificate IV and Diploma of Hospitality Management through another education provider (at [37]);
(c)explained that the applicant had completed the Certificate III and commenced the Certificate IV but that his visa was cancelled shortly afterwards. On that basis, the Tribunal accepted that the applicant had achieved steady academic progress and placed notable weight on those aspects, in favour of the applicant’s visa not being cancelled (at [38]);
(d)noted the applicant’s oral evidence at hearing the that he had travelled to Australia to address outstanding debts he had accumulated prior to arriving in Australia. The applicant claimed that those debts amounted to $80,000 AUD in money borrowed from loan sharks and his uncle and that the money was borrowed in relation to a credit sales business. The Tribunal accepted that the applicant had borrowed those funds and that loan sharks had harassed him and his family due to late payments (at [39]-[43]);
(e)accepted supportive statements from the applicant’s wife and father in law about money the applicant owed to “dangerous people” and considered that they carried “a credible weight of authenticity” (at [44]);
(f)noted that, in a Genuine Temporary Entrant statement (the “GTE statement”) provided by the applicant in support of his visa application (Allen affidavit, pp 4-5), the applicant claimed that he planned to open a restaurant in India with his wife, however, the applicant admitted that the GTE statement was not true. On that basis, the Tribunal did not accept that the applicant was genuinely interested in commercial cookery (at [45]-[46]);
(g)noted that the applicant had confirmed (in oral evidence before the Tribunal) that he had paid his debts to the loan sharks. Having accepted that evidence, the Tribunal considered that the most compelling reason for the applicant to travel to Australia no longer existed. Further, the applicant only had an outstanding debt of $2,000 AUD owed to his uncle. The Tribunal found that was not a significant amount and thus not a compelling reason for the applicant’s visa to be reinstated (at [47]-[48]);
(h)noted that the applicant had also told the Tribunal that he had borrowed money from his parents and brother to repay Australia Post for the value of the goods he stole. However, as this was only about $8,000 AUD, the Tribunal again found it was not a compelling reason for the applicant’s visa to be reinstated (at [49]);
(i)considered the applicant’s claim that he owed his wife $50,000 AUD following his divorce. However, the Tribunal noted that the Court order provided by the applicant stated that the applicant would not have to pay any money to his wife for “any dowry or alimony or child support”. On that basis, the Tribunal found that this was not a compelling reason to reinstate the applicant’s visa (at [50]);
(j)placed some weight on the applicant being a genuine student in Australia on a temporary basis. However, the Tribunal placed considerable weight on the applicant providing incorrect information in his GTE statement and misrepresenting money owed to his ex-wife in favour of the visa not being reinstated. The Tribunal ultimately placed very little weight on the applicant’s “compelling reasons to have his visa reinstated” (at [51]-[52]).
The Tribunal then considered the applicant’s compliance with his visa conditions and noted that there was no evidence to suggest that the applicant had been non-compliant with the conditions of his visitor visa. Further, the applicant gave evidence that he did not work more than the 40 hours a fortnight he was permitted to work. The Tribunal thus placed some weight on the applicant’s compliance with his visa conditions in favour of the visa being reinstated (at [53]-[56]).
The Tribunal also considered the degree of financial hardship the applicant may suffer and noted that:
(a)the applicant gave evidence that his is the “primary breadwinner” and, as such, “will experience a high degree of hardship” (at [57]);
(b)the applicant had told the Tribunal (at the hearing) that he and his wife were divorced and that he paid maintenance for his child. The applicant also claimed that schools were expensive. The Tribunal noted that the applicant had submitted a copy of a court order following the hearing (as requested by the Tribunal) and the Tribunal noted that the court order dated 2 September 2021 stated that the marriage had “been dissolved”, that the applicant would “not have any custody or visitation rights of his child” and that the parties had “forgone repayment of any dowry and any future requirement for alimony or child support”. On that basis, the Tribunal did not accept that the applicant would have any financial responsibilities for his child (at [58]);
(c)the Tribunal referenced money that the applicant claimed to owe to loan sharks and family members and noted that the applicant had admitted to “having no outstanding debts to loan sharks in India and manageable debt owing to family members”. On that basis, the Tribunal did not accept that the applicant would have any significant hardship in relation to any debts owed (at [59]); and
(d)the applicant claimed (in his NOICC response) that he intended to return to India to run a restaurant and that, if his visa is cancelled, the study undertaken in Australia would be futile and put his family’s future on hold. The Tribunal noted that the applicant was divorced and had no legal dependents. The Tribunal ultimately assessed that any financial hardship to the applicant would be “insignificant and manageable” (at [60]-[61]).
The Tribunal then considered the degree of emotional and psychological hardship and noted that:
(a)the applicant had claimed that he was depressed and advised to undertake counselling. The Tribunal accepted that the applicant suffered from depressive mental health symptoms but noted that there was no medical evidence to suggest that his symptoms could not be treated. The Tribunal did not accept that the applicant’s mental health symptoms could be “characterised as considerable, significant or severe” (at [62]);
(b)it accepted that the mental health support in Australia was “more advanced than in India” but considered that the applicant would be able to afford counselling in India (at [63]);
(c)while the applicant claimed to have strong ties to Australia, he had only been in Australia since mid-2019, was estranged from his brother (who lives in Brisbane) and the applicant has a sister residing in Punjab. Noting that the applicant’s parents also travel between India and Australia, the Tribunal assessed that the applicant’s ties to the Indian community were significantly stronger than his ties to Australia (at [64]);
(d)the Tribunal accepted that there was a genuine degree of emotional hardship arising from stigmatisation (due to his convictions and the cancellation of his visa) and that it might contribute to the applicant’s mental health problems. However, the Tribunal did not accept that any stigmatisations would be severe or significant and noted that the applicant had family support and access to counselling (at [65]); and
(e)overall, the degree of emotional and psychological hardship “was notable but not considerable or significant” (at [66]).
In relation to the circumstances in which the ground of cancellation arose, the Tribunal explained that:
(a)it accepted that the applicant was “living with a degree of financial distress and emotional turmoil at the time of his offending” (at [68]);
(b)it did not accept that the applicant suffered any temporary loss of sanity due to his financial distress or that there were any extenuating circumstances arising from any debt he owed. Further, the Tribunal considered that it was open to the applicant to remain in India and arrange to repay his debts or to seek assistance from the authorities (in relation to any claimed harassment from debt collectors) (at [69]);
(c)it found that the applicant had knowingly and wilfully stolen approximately $30,000 AUD worth of goods because the applicant thought that he could “evade being charged and prosecuted” (at [70]); and
(d)while it accepted that the applicant experienced “extenuating circumstances” when he offended, it did not accept that the circumstances which led to the applicant’s offending were beyond his control (at [71]).
The Tribunal noted that, had the applicant been honest in his GTE statement (and told the Department that his primary purpose for travelling to Australia was to repay debts), he likely would not have been granted the student visa in this first instance. The Tribunal placed significant weight on the applicant’s past deceptive behaviour towards the Department (at [72]).
The Tribunal also placed some weight on the mandatory legal consequences of the visa cancellation and noted that this weighed against the visa remaining cancelled (at [75]).
The Tribunal noted that, whilst the applicant claimed (in his NOICC response) that he feared returning home because of debts owed to loan sharks, during the Tribunal hearing, the applicant told the Tribunal that he no longer owed money to loan sharks but that he would have to repay as much as $50,000 AUD to his wife and her family in repayment of a dowry. However, the evidence before the Tribunal showed that the applicant did not have any legal obligations to repay any such money. The Tribunal also considered that removing the applicant from Australia would not breach Australia’s non-refoulement obligations. The Tribunal also noted that the applicant could apply for a protection visa and that that migration option was still open to the applicant (at [76]-[77]).
The Tribunal considered any adverse effect the applicant’s criminal convictions and consequential visa cancellation may have on his child, however, the Tribunal noted that an Indian court had already determined the best interests of the child and that the applicant did not have any visitation or custody rights or any financial responsibility with respect to the child (at [78]-[79]).
The Tribunal considered the seriousness of the Applicant’s offending, noting that the property stolen was worth approximately $30,000 AUD, being a considerable sum. The Tribunal acknowledged that the applicant had expressed some remorse, which the Tribunal accepted as genuine. Further, the applicant had repaid Australia Post for the stolen amount quite quickly and there was no evidence he had been convicted in India or on any other occasion while in Australia. The Tribunal also considered that, while stealing was not at the higher end of criminal offending, it is likely that the applicant would have continued stealing in that manner if his offending was not discovered. The Tribunal placed notable, but not considerable or significant weight on the seriousness of the offending against the reinstatement of the applicant’s visa (at [83]-[86]).
The Tribunal ultimately found as follows:
88.In this matter, the grounds for cancellation under s 116(1)(g) were made out. The review applicant has engaged in criminal offending by stealing valuable items worth almost AUD30,000 - not an insignificant amount.
89.Nevertheless, it is the role of the Tribunal in assessing reviews of cancellation decisions to weigh up all the factors and all the available evidence before exercising its discretion.
90.There were a number of favourable considerations arising from the applicant’s academic progress and his history of compliance with visa conditions.
91.The Tribunal has, however, assessed the seriousness of the offending to be notably but not significantly beyond community standards. It accepts the applicant had some extenuating circumstances leading to the grounds for cancellation, but these were not beyond his control. With the dissolution of this marriage and with no custody or visitation rights for the applicant's child back in India, the applicant has no compelling reasons to remain in Australia and there are no international obligations owing to the applicant. The overall degree of hardship to be faced by the applicant is assessed as notable but not significant. The applicant has considerably more ties to the Indian community than the Australian community. The Tribunal has placed particular emphasis on his past behaviour towards the Department as deceptive and lacking in honesty.
The Tribunal assessed that the factors in favour of reinstating the applicant’s visa did not outweigh those in favour of the applicant’s visa remaining cancelled. In the circumstances, the Tribunal concluded that the visa should be cancelled and affirmed the delegate’s decision to cancel the applicant’s visa (at [92]-[94]).
Application to this Court
The application for judicial review filed by the applicant on 29 March 2022 contains two “grounds of review”, as follows (without alteration):
1.Their is jurisdiction Erorr in my decision, Which is made By the member of AAT.
2.There is an error in the decision that AAT Member have not judge my immigration decision correctelly and AAT Member pushing my life in jeopardize and putting in to a Situation in which there is a danger of [illegible] harm and [illegible] of my future.
On 20 June 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence. Unfortunately, no additional materials were provided by or on behalf of the applicant.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicant on 29 March 2022, a Court Book numbering 282 pages (marked as Exhibit 1), written submissions and the Allen affidavit, both filed on behalf of the Minister on 19 January 2023 and the affidavit of service of Georgina Ellis affirmed and filed on 27 January 2023.
The applicant appeared before this Court on 2 February 2023 without legal representation. He was assisted by an interpreter in the Punjabi and English languages. The Court confirmed with the applicant that he had received copies of the Court Book, the Minister’s written submissions and the Allen affidavit.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker ignores relevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or reinstate the applicant’s cancelled visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that, whilst there is reference in the Tribunal’s decision to his divorce, that divorce has not yet come through. Further, the applicant now thinks that there is a chance that he and his wife may no longer be separating. The applicant also told the Court that he acknowledged that he had made a mistake, but he had repaid Australia Post for the amount stolen. The applicant stressed that, while he had “done the wrong thing”, he should be given another chance to “show remorse” and “be given another opportunity”.
These issues to the extent that they address jurisdictional error will be considered below.
Consideration
Grounds of review
Ground 1
Ground 1 states:
1.Their is jurisdiction Erorr in my decision, Which is made By the member of AAT.
This ground of review is vague and lacks particularisation. Unfortunately, the applicant’s oral submissions before this Court did not resist in this regard.
Without any further clarification, ground 1 does not raise any issue of the sort that this Court can address.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
2.There is an error in the decision that AAT Member have not judge my immigration decision correctelly and AAT Member pushing my life in jeopardize and putting in to a Situation in which there is a danger of [illegible] harm and [illegible] of my future.
Again, this ground of review is not clear and it is difficult to ascertain the type of danger or harm the applicant is referencing.
To the extent that the applicant claims to fear harm on the basis of money owed, this fails on a factual level. Relevantly, the Tribunal stated:
43.It further accepts the applicant, in early 2018, borrowed around AUD15,000 from three loan sharks and that he borrowed around AUD12,000 from his uncle to cover some of the costs involved in the unpaid purchase order. It accepts the loan sharks harassed him and his family due to late payments, that his wife and child moved to his in-laws' residence due to this harassment in late December 2019 and that the primary reason the applicant departed India was to repay these outstanding debts.
44.The applicant provided statements from his wife and his father-in-law, a retired policeman, supporting these claims about owing money to dangerous people. It accepts them as a supportive statement carrying a credible weight of authenticity.
…
47.At the hearing, the applicant was asked if he had paid down all his debts to the loan sharks, to which he responded 'yes'. Given this, and accepting that paying these debts to loan sharks threatening his family had been the most compelling reason for his travel to Australia, then it follows that the most compelling reason no longer exists at the time of making this decision.
…
59.The applicant has also provided an explanation that he owes money to loan sharks and family members. As outlined above, the applicant has admitted to having no outstanding debts to loan sharks in India and a manageable debt owing to family members. The Tribunal does not accept the applicant has any significant hardship arising from these circumstances if his visa is not restored.
…
76.The applicant is a citizen of India. He had indicated in his NOICC response that he fears returning to his home country as he owed debts, During the hearing, the applicant explained he no longer owed money to loan sharks., but he would owe as much as AUDS0,000 to his wife and in-laws to repay a dowry. As discussed above, the applicant has no legal obligations to restitute such monies as part of the court order concerning the divorce agreement. Even when considering a manageable amount of debt owing to other family members, the Tribunal does not consider cancelling the visa will potentially lead to the visa holder being removed in breach of Australia's non-refoulement obligations under the Refugees Convention, or in breach of Australia's obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
As outlined above, the Tribunal accepted that the applicant had been harassed by loan sharks on the basis of money owed and that the applicant had come to Australia to earn money to repay those debts. However, the Tribunal also noted that the applicant had given evidence that he had since repaid those debts and that the “most compelling reason” for the applicant travelling to Australia no longer existed. Further, the Tribunal considered that the applicant could have sought protection from authorities in India, particularly in circumstances where his wife’s father was a retired police official (at [69]).
No error arises in this regard.
In the event that the applicant is referring to danger or harm from his ex-wife’s family (for money owed in repayment of a dowry following the applicant’s divorce), the Tribunal disagreed. The Tribunal found that the materials provided by the applicant in relation to his divorce stated that he did not owe any money or have any obligations in relation to alimony or child support.
Specifically, the Tribunal stated:
50.The applicant advanced his debt of around AUD50,000 to his wife as a compelling reason to remain in Australia. The amount owing was for the dowry to be returned to the applicant's wife after their divorce. However, a court order (which was made prior to the last hearing) indicates that his marriage was dissolved in September 2021 - considerably earlier than the last hearing - and he will not have any custody or visitation rights in relation to his child. It further states that any repayment by the applicant of any dowry or alimony or child support to the other parties has been forgone. This significantly undermined this oral claim outlined at the hearing and further invited credibility concerns about aspects of the applicant's claims to have this visa reinstated. The court document clearly states the applicant will not owe his ex-spouse restitution for the divorce or that he had any legal obligations to provide material support for his child back in India. As a result, the Tribunal finds there are no compelling reasons for the applicant to have this visa reinstated.
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58.During the hearing, the applicant explained that he was now divorced and that his wife has custody of his child while he had to pay maintenance for his child. He could not explain to the Tribunal how much he would owe but surmised schools were expensive. At the end of the hearing, the Tribunal requested that the applicant provide a copy of the court order relating to his divorce. As previously outlined, the applicant submitted a copy of the court order as requested. The court order, dated 2 September 2021, states that: the marriage has been dissolved; the applicant will not have any custody or visitation rights of his child; and that the parties have forgone repayment of any dowry and any future requirement for alimony or child support. The applicant's father represented the applicant in reaching this agreement as outlined in the court order. Based on this court order, the Tribunal does not accept the applicant will have any financial responsibilities towards his child that are enforceable by Indian law or that he will be the primary bread winner of his immediate family. Should this visa remain cancelled, the Tribunal finds the degree of financial hardship arising from the legal and familial burden of supporting dependants to be negligible, at best.
In the event that the applicant claims to fear harm from his family in relation to debts owed, the Tribunal accepted that he owed some money to family members – however, the Tribunal determined that these amounts were not significant and that the applicant could manage repayment of those debts.
Relevantly, the Tribunal stated:
48.The Tribunal notes the applicant also said that he had an outstanding debt of about AUD2,000 to his uncle in the family garment industry. Given this is not a significant amount, the Tribunal finds this is not a compelling reason for this visa to be reinstated.
49.The Tribunal enquired into whether the applicant had repaid Australia Post for the value of computer equipment he stole. The applicant said he had but he had borrowed money from his parents and his brother. He added he still owed his brother around AUD8,000. Given this is not a large amount of money, the Tribunal finds this is not a compelling reason to remain in Australia or for the visa to be reinstated.
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59.The applicant has also provided an explanation that he owes money to loan sharks and family members. As outlined above, the applicant has admitted to having no outstanding debts to loan sharks in India and a manageable debt owing to family members. The Tribunal does not accept the applicant has any significant hardship arising from these circumstances if his visa is not restored.
On the basis of the above, it is clear that the Tribunal considered all of the applicant’s circumstances relating to his “fear” that he may be “harmed” or in “danger” on the basis of any moneys owed in India and made determinations based on the materials before it.
Finally, the Tribunal also noted that, in the event that the applicant continues to fear harm, he is able to apply for a protection visa.
In that regard, the Tribunal stated:
77.Moreover, the Tribunal notes the applicant is eligible to apply for a protection visa to argue he is owed Australia's protection obligations, but he has not yet applied. It places considerable weight on this migration option being open to the applicant in favour of the visa remaining cancelled.
The Court is satisfied that the Tribunal assessed the applicant’s claims and the evidence before it in relation to debts owed and any claimed “danger” on the part of the applicant.
No error arises in relation to ground 2.
Applicant’s oral submissions
Applicant’s divorce
As outlined above, in oral submissions before this Court, the applicant explained that, while there is reference to a divorce in the Tribunal’s decision, the applicant’s divorce has not yet been finalised and the case is still ongoing in the Courts. Further, the applicant and his wife “have been talking over the phone” and that, based on “the way that things are progressing”, he no longer thinks that he and his wife will be separating.
That information does not appear to have been before the Tribunal.
The Court notes that an application for judicial review (being a matter of the sort the subject of this proceeding) is ordinarily confined to materials which were before the Tribunal: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145. The Court also notes that it is not open for an applicant to ask that the Court admit new evidence for the purpose of disagreeing with a factual conclusion reached by the Tribunal: MZXHY v Minister for Immigration [2007] FCA 622 at [8] and Gupta v Minister for Immigration [2016] FCA 1004 at [27]. Further, it is generally not open to the Court, on a judicial review application, to consider materials which were not before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. That principle applies here.
Unfortunately, while the applicant may now be trying to reconcile with his wife, there was no evidence before the Tribunal in this regard. The Tribunal could only assess the information before it at the time. In that regard, the applicant provided the Tribunal (via email on 10 February 2022) with court materials relating to his divorce only (CB 232-262), with no evidence provided in relation to any subsequent reconciliation.
No error arises in this regard.
Remorse
Before this Court, the applicant admitted that he had “made a mistake” but stressed that he had repaid the value of the goods stolen from Australia Post of his own volition (and before the Court made any decision about the charges against him). The applicant also told the Court that, while he had “done the wrong thing”, he was of the view that he should be given another chance to “show his remorse”.
To the extent that the applicant claims that the Tribunal failed to consider that he was remorseful or that he had repaid Australia Post for the stolen items, this fails on a factual level.
The Tribunal expressly referenced the repayment of the stolen amount and the applicant’s remorse as follows:
83.As discussed in the hearing, the seriousness of the offending that was the grounds for cancellation is relevant to the Tribunal's considerations as to whether this visa should remain cancelled or not. The property stolen had a value of around AUD30,000. This can be reasonably characterised as a considerable amount. The theft, as the applicant acknowledged, had a significant effect on those individuals or businesses relying on their timely delivery. The applicant expressed some remorse for the victims at the hearing which the Tribunal accepts as genuine.
84.The Tribunal accepts there is evidence the applicant repaid Australia Post the stolen amount as quickly as he was able to. There is no evidence he had offended while in India or that he had been further charged or convicted while in Australia. The penalty or sentence imposed on the applicant did not involve paying fines, community service orders or imprisonment, indicating the stealing was not at the higher end of criminal offending.
As outlined above, contrary to the applicant’s claim that he was not given an opportunity to express remorse, he was given that opportunity and the Tribunal accepted that he was remorseful. The Tribunal also accepted that there was evidence before it that the applicant had repaid Australia Post the stolen amount “as quickly as he was able to”.
However, notwithstanding the repayment of the amount stolen and the applicant’s remorse, and after weighing all of the circumstances and evidence before it, the Tribunal still found that the factors weighing in favour of cancellation outweighed those in favour of reinstatement.
That finding was open to the Tribunal and no error arises in this regard.
Futility
In written submissions filed by the Minister on 19 January 2023, the Minister submitted that, even if the applicant were able to demonstrate any jurisdictional error on the part of the Tribunal, the Court should refuse to grant relief. In the Minister’s submission, because the applicant’s visa was due to expire on 3 December 2021, it would be futile to remit the matter to the Tribunal.
The Court agrees.
In this regard, the Court references its decision in BOJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 990 (citing Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868). That analysis applies equally in this matter and is repeated below.
Sections 37A, 133 and 134D of the Act allow the Minister to extend the period in which a visa is in effect in certain circumstances. The Court notes, however, that none of these provisions relate to the particular circumstances that arise in this case (that is, they do not relate to a Safe Haven Enterprise visa, the applicant is located in Australia and the cancellation was not an “emergency cancellation”).
Accordingly, there appears to be no statutory power for the Tribunal to extend the visa if the matter is remitted. Put simply, if the Court remits the matter and the Tribunal finds in the applicant’s favour, it would be of no utility as the applicant’s visa would have ceased and would no longer be in effect.
It is also noted that in Martin v Minister for Immigration & Multicultural Affairs [1999] FCA 1256, Justice French (as His Honour then was) considered an application for judicial review of a decision to refuse a bridging visa. The refusal of the bridging visa was made by a delegated officer on 4 June 1999. The Tribunal affirmed the decision on 24 June 1999. The applicant sought judicial review of the decision. On judicial review, the applicant was claiming that a decision on his application was not made within the required two-day limit and he was therefore deemed by the Act to have been granted the bridging visa (and the refusal was invalid). The Minister’s argument was that the visa was refused within the required time. Relevantly, the visa that the applicant claimed he was deemed to have been granted was in effect for, at most, 14 days from the date of the grant of the visa.
Justice French made findings that the visa was refused on 4 June 1999 and that this refusal was within the two day time period. Hence, the applicant was not deemed to have been granted the visa. His Honour continued:
21.If my conclusion be wrong and a Bridging Visa E was granted, then the visa has long expired and there is no useful purpose to be achieved by making any order in relation to the decision of the Tribunal or the purported decision to refuse the grant of a bridging visa made by Mr Cain. That is only a hypothetical question, of course, because I have found on the balance of probability that, in fact, he made the decision within the two days. Even if he had not, I would consider that the relief which is sought would at this stage be futile…
The visa in this matter is also “long expired”. It expired in December 2021 (over a year ago).
In Patel v Minister for Immigration & Anor [2014] FCCA 2000 and Makwasa v Minister for Home Affairs & Anor [2018] FCCA 1179, this Court found that in circumstances where the student visa under review had expired, it would be an exercise in futility to grant relief as any relief would have no practical consequence.
That reasoning applies equally here.
It would, in the circumstances of this matter, be futile to remit the matter to the Tribunal because the applicant’s student visa would have expired on 3 December 2021.
Conclusion
The application for judicial review filed by the applicant on 29 March 2022 has failed to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 9 February 2023
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