Humayan v Minister for Immigration
[2017] FCCA 1495
•16 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUMAYAN v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1495 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 359A, 360 Migration Regulations 1994 (Cth), r.2.43 |
| Cases cited: Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; [2012] FCAFC 30 |
| Applicant: | J AZAD HUMAYAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3501 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 16 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2017 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3501 of 2015
| J AZAD HUMAYAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal dated 24 November 2015. The Tribunal affirmed a decision of a delegate of the First Respondent to cancel the Applicant’s Subclass 572 Vocational Education and Training Sector (Student) visa.
The Applicant, a citizen of Bangladesh, was granted a Subclass 572 student visa on 15 May 2013. On 19 March 2015 he was issued with a Notice of Intention to Consider Cancellation (the NOICC) pursuant to s.116(1)(fa) of Migration Act 1958 (Cth) (the Act) on the basis that he was not, or appeared not to be, a genuine student.
The NOICC drew to the Applicant’s attention departmental records (PRISMS records) that indicated the courses he had undertaken and the occasions on which his enrolment in those courses had been cancelled for non-commencement of studies, a matter to which I will return. The NOICC also indicated that the education provider had reported that the Applicant had failed to achieve satisfactory course progress and that his rate of attendance had been below the minimum 80% course attendance requirements and that warning letters had been sent to him. The Applicant was given an opportunity to comment on whether the grounds for a cancellation existed and why he thought the visa should not be cancelled.
On 2 April 2015, the Applicant responded to the NOICC. He stated that in March 2014 he had a serious accident and broke his leg. He claimed he notified the college and was on bed rest for two months and unable to do any daily activities. He claimed that he still had a problem with his leg. The Applicant stated that he had all his medical certificates and could provide them if he had time to organise them. He requested a two-week extension to provide further documents.
The Department gave the Applicant an extension of time until 13 April 2015 to provide a written response and supporting evidence. No further submissions or documents were received by the Department.
On 7 May 2015 the delegate decided to cancel the Applicant’s visa. In the reasons for decision, the delegate referred to information from departmental records which included references to three occasions on which his enrolment was cancelled by his education provider for non-commencement of studies and also stated:
Australian College of Vocational Studies Pty Ltd [02474E] has reported that your rate of attendance was below the minimum 80% course attendance requirements and warning letters had been sent to you.
Based on the information that the Applicant had poor attendance at the Australian College of Vocational Studies Pty Ltd, that he had made unsatisfactory course progress at the college and that he had not successfully completed any course since his student visa was granted on 15 May 2013, the delegate found that it appeared that the primary purpose for the Applicant holding a student visa was not for the purpose of study.
The delegate was satisfied that the Applicant was not a genuine student. After weighing all the information available, the delegate was satisfied the grounds for cancelling the visa outweighed the reasons for not cancelling the visa.
The Applicant sought review by the Tribunal. He provided the Tribunal with a copy of the delegate’s decision and also copies of medical records which indicated that he had fractured toes on one foot in a work incident in March 2014. He included a medical certificate that stated that he would be unfit for school from 17 April 2014 to 17 June 2014.
The Applicant also provided a note to the Tribunal in which he claimed that he could not attend the college because of an accident on 19 March 2014 when four toes of his left foot were broken. He claimed this injury could not be operated on and that he was sent home and told to have complete bed rest for the next six months. He claimed that after two months he was told to let the foot heal by itself. He then decided to go home and for the next four months he spent most of his time in Bangladesh in bed. He claimed he then returned and started going to college, but the difficulties of putting shoes on made him depressed and from then on he could not attend college regularly. He stated that if he could be given the opportunity, he wanted to finish his course. He also indicated that he had some monetary difficulties and, in that context, seemed to seek a fee waiver.
The Applicant was invited to and attended a Tribunal hearing on 20 November 2015. The only evidence before the Court as to what occurred in the Tribunal hearing is the material in the Courtbook. I note that there is material in the Courtbook indicating that on the day of the hearing the Tribunal liaised with the Department to confirm whether the Applicant was currently on a bridging visa and, if so, the conditions attached to it and was informed that the Applicant did not have a bridging visa or work rights. There is no suggestion that this discussion is of any relevance to the application presently before the Court.
On 24 November 2015 the Tribunal affirmed the Delegate’s decision. The Tribunal set out the basis on which the visa had been cancelled. It referred to matters to be considered in relation to cancellation under s.116 of the Act and to the fact that if satisfied the ground for cancellation was made out, it must consider whether the visa should be cancelled having regard to all the relevant circumstances, which may include matters of government policy. The Tribunal referred to consideration of the concept of “genuine student” in s.116(1)(fa)(i) of the Act in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574. It also referred to prescribed matters to be taken into account in this context under reg.2.43 of the Migration Regulations 1994 (Cth).
The Tribunal referred to the NOICC and the Applicant’s response. It had regard to the fact that the Applicant had been granted a student visa in May 2013 and to the PRISMS records as referred to in the delegate’s decision. It stated that this information indicated that from April 2014 to April 2015 the Applicant had undertaken a Certificate III in Tourism at the Australian College of Vocational Studies Pty Ltd, that on 9 March 2015 the education provider had cancelled his certificate of enrolment citing non-commencement of studies and around 19 February 2015 had reported that the Applicant had not achieved satisfactory course progress and had failed to pass a single unit of the course. It also took into account the information that from April 2013 to April 2015 the Applicant had undertaken an Advanced Diploma of Tourism with the same college, that in March 2015 the education provider had advised that his certificate of enrolment had been cancelled on 31 July 2014 citing non-commencement of studies because the Applicant had failed to start the course for the July 2014 term. It recorded that in September 2014 the Applicant’s certificate of enrolment was reinstated for this course, but that on 25 February 2015 it was cancelled for non-commencement of studies for the January 2015 term and the education provider had reported that as at 19 February 2015 the Applicant had failed to achieve satisfactory course progress. The Tribunal also had regard to the fact that the education provider had reported that the Applicant’s rate of attendance was below the minimum 80 per cent course attendance requirements and that warning letters had been sent to him.
A footnote to this part of the Tribunal’s reasons refers to the Departmental file “from folio 35”. As drawn to the Court’s attention by the solicitor for the First Respondent, it is apparent from the numbers in the top right-hand corner of the pages in the Courtbook that this is a reference to pages in the Courtbook which contain copies of letters sent to the Applicant by his education provider which, among other things, indicated that his attendance had fallen below the required level thus breaching the conditions of his visa on the basis that condition 8202 required a minimum 80 per cent attendance at all times.
The Tribunal found, based on the evidence before it, that it was satisfied that the Applicant had “inadequate” attendance at the Australian College of Vocational Studies PL; that he had unsatisfactory course progress; and that he had not successfully completed any course since his student visa was granted on 15 May 2013. The Tribunal referred to the fact that on those grounds the delegate had been satisfied that the primary purpose of the Applicant holding a student visa was not for the purpose of study and that the Applicant was therefore not a genuine student.
For the same reasons, the Tribunal was satisfied that the grounds for cancellation in s.116(1)(fa)(i) of the Act existed.
The Tribunal went on to consider whether the power to cancel the visa should be exercised. It recognised that the Act and Regulations did not specify matters that had to be considered in relation to the exercise of the discretion. It referred to departmental policy.
The Tribunal had regard to the Applicant’s oral evidence that his attendance and course progress was adequate until he broke four toes in his foot. The Tribunal accepted that the Applicant’s initial purpose in traveling to and residing in Australia was to study.
However the Tribunal stated that the reason the visa was cancelled was because the Applicant had not engaged in a course of study for six months after he broke four toes in his left foot in March 2014 and had not successfully engaged in a course of study after that time. The Tribunal believed that the breach was significant.
The Tribunal accepted that the Applicant may be caused some financial difficulty should his visa be cancelled and that he may become an unlawful citizen, liable to detention and removal. However it also had regard to his return to his home country in 2014 and the absence of evidence that he would be subject to indefinite detention if his visa were to be cancelled.
The Tribunal had regard to the fact that the Applicant may have limited opportunities to apply for further visas in Australia if his visa were to be cancelled and he was required to return to his country of origin, but found no evidence that any family members in Australia would be negatively impacted by cancellation of the Applicant’s visa.
The Tribunal considered the Applicant’s evidence about the work accident and what occurred thereafter. It also referred to his claims about interactions with a migration agent and his claims that he wanted another chance to study.
The Tribunal considered the Applicant’s explanation that he went home to Bangladesh after he broke the toes in his foot and then returned to Australia and recommenced work in Australia around September 2014. It acknowledged that he said that after working he found it too difficult and painful to attend college, was depressed and feeling pain. However it also had regard to his evidence that he had also worked (on occasion) in 2015. The Tribunal found that the Applicant had not engaged in the principal purpose of his travel to and residence in Australia, being to study, even though he was able to work.
The Tribunal observed there was no evidence the Applicant had been uncooperative with the Department or Tribunal. It discussed his evidence about his work and situation in Bangladesh. It was not satisfied that Australia’s international protection obligations would be breached should the visa be cancelled. The Tribunal also found no evidence of any potential impact on victims of family violence.
Having considered the evidence as a whole, the Tribunal was not satisfied it should exercise the discretion not to cancel the visa. The Tribunal affirmed the delegate’s decision.
The Applicant sought review by application filed in this Court on 23 December 2015. The Applicant did not file any amended application or subsequent affidavit evidence. Nor did he file written submissions by the time provided for in directions. However on the day before the hearing, Mr Zipser of Counsel sent my chambers and the solicitor for the First Respondent an email containing a written submission for the Applicant. Mr Zipser explained that “last week” he had been asked by a migration agent on behalf of the Applicant to prepare a written submission for the hearing, that he would not appear for the Applicant at the hearing and that the Applicant had not explained why he had waited until a fortnight before the hearing to seek a written submission.
In the hearing today the solicitor for the First Respondent indicated that she was in a position to address the issues raised in this submission. In effect, the submission seeks to raise a fresh ground without the formality of an amended application. Despite this, I have considered the written submission as well as the grounds in the application.
When given the opportunity today to address the grounds in his application and the issue raised in the written submission, the Applicant had nothing to say.
Grounds 1 and 2 in the application are as follows:
“The Second Respondent made an error in deciding this claim no [sic] to set aside the decision.
“The Second Respondent made an error in making this decision without any basis.”
In the absence of particulars, these grounds are not meaningful and as pleaded cannot succeed. More generally, it cannot be said that the Tribunal had no basis for its decision. It was reasonably open to it on the material before it for the reasons it gave. As set out above, the Tribunal set out in some detail the matters to which it had regard in concluding that the ground for cancellation existed and the visa should be cancelled. It referred to matters the Applicant had raised with it. It addressed factors relevant to the exercise of its discretion. Insofar as the Applicant seeks merits review, as I indicated to him today, merits review is not available in this court. Grounds 1 and 2 are not made out.
Ground 3 is that the Second Respondent “did errors in regard to this case not providing an opportunity to the applicant to comment on the materials, which materials were core in making this decision.” The Applicant did not identify any “materials” which should have been put to him for comment.
It may be that this is intended to be an allegation that the Tribunal breached s.359A of the Act in respect of information from PRISMS records about the Applicant’s recent study history. However, in this case, the exception in s.359A(4)(b) of the Act would apply in circumstances where the information in question set out in the Tribunal decision was as referred to in the Delegate’s decision, a copy of which was provided by the Applicant to the Tribunal (see Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; [2012] FCAFC 30 at [74], citing Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241).
If this ground is intended to refer to the evidence that the Applicant provided to the Tribunal, such as the medical evidence and the brief submission in relation to his circumstances, the Tribunal was not under an obligation to put to the Applicant information he had provided to it (see s.359A(4)(b) of the Act).
As to the Tribunal’s obligations under s.360 of the Act, it is apparent that the Applicant’s study history, his evidence and relevant issues were the subject of discussion at the hearing. There is no evidence to suggest that the Tribunal failed to raise dispositive issues with the Applicant at the Tribunal hearing. It appears from its decision that there was a discussion at the hearing of the ground for cancellation and matters relevant to the exercise of discretion. The Tribunal considered the Applicant’s evidence in relation to his broken toes, the impact of this, and what occurred thereafter. Ground 3 is not made out.
The written submission prepared for the Applicant contends that the Tribunal failed to have regard to the evidence concerning attendance rates in the document at CB37 and that this evidence was significant such that the Tribunal’s failure constituted a jurisdictional error. Page 37 of the Courtbook is a copy of a letter from the education provider to the Department dated 19 March 2015 relevantly stating that the student “was cancelled for non-commencement” for failing to start the July 2014 term and again for failing to start the January 2015 term. It also stated that “Prior to that he had respective attendance rates of 18 per cent and 34 per cent” and had “been sent warning letters”.
After recording the background to and basis for the Tribunal’s reasons, the submission accepted that there was evidence before the Tribunal which supported its findings, such as the fact that the Applicant’s academic progress in the period he had been in Australia on a student visa had been poor. However, it was submitted that if the Tribunal had overlooked material to which it was required to have regard, this could be a jurisdictional error.
There was said to be evidence before the Tribunal that the Applicant had “attended some classes in his courses”, specifically the document recording his attendance rates prior to July 2014 of 18 per cent and 34 per cent.
It was contended that “The fact that the Applicant attended some classes in his courses in contrast to no classes, is relevant to:
a)whether the applicant is a genuine student; and
b)if the applicant is found not to be a genuine student, the exercise of discretion under s.116(1).”
It was suggested that the fact that the applicant attended some classes could support a conclusion that he was a genuine student, even if his participation rate was less than 80 per cent. Issue was taken with the fact that the Tribunal did not, in its decision, refer to the Applicant’s pre July 2014 attendance rates of 18% and 34%.
It was pointed out that to overlook or fail to have regard to significant evidence could be a jurisdictional error. Reference was made to the decision of the Full Court of the Federal Court in WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21].
In WAFP the Full Court was considering a failure by the Refugee Review Tribunal to refer to the appellant’s interview with the delegate and to take it into account in considering whether the appellant had departed his home country illegally. This was found to amount to an error of law because it constituted a failure to have regard to relevant material which was “so fundamental” that it went to jurisdiction in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82].
The submissions in this case are to the effect that the Tribunal’s failure to refer to the specific information concerning attendance rates prior to July 2014 in the document at CB37 was a failure to have regard to relevant material that was so fundamental that it went to jurisdiction.
The First Respondent contended that the Tribunal had not overlooked any evidence in a manner constituting or giving rise to jurisdictional error. It was pointed out that in its reasons for decision the Tribunal had referred to the evidence of inadequate attendance (below the minimum 80% requirement) from the Australian College of Vocational Studies and the fact that warning letters had been sent to the Applicant. The Tribunal made a finding of “inadequate attendance” on the basis of all the evidence described in its reasons.
It was acknowledged that there was no express reference in the Tribunal reasons for decision to the actual attendance rates of 18% and 34% prior to July 2014. However it was submitted that the Tribunal was not required to refer to every piece of evidence before it and that, in essence, the significant information about attendance rates to which the Tribunal did refer was to the effect that the Applicant’s rate of attendance was below the minimum 80 per cent requirement prior to July 2014 and that thereafter he did not commence any studies. It was also submitted that the early attendance rates of 18% and 34% were consistent with and supported the Tribunal’s overall finding that the Applicant had inadequate attendance.
The First Respondent also submitted that insofar as it was intended to be asserted that the fact that the Applicant had attended some classes, as distinct from no classes at all, was somehow relevant to whether the Applicant was a genuine student and the exercise of the discretion to cancel, involved a mischaracterisation of the Tribunal’s findings. It was pointed out that the Tribunal had not in fact made a finding that the Applicant attended no classes at all.
I have borne in mind that whether the Tribunal is required to have regard to a document or particular evidence depends on the circumstances of the case and the nature of the evidence in question, the cogency of the material and its place in the assessment of the Applicant’s claims and the issues before the Tribunal (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 and the consideration by the Full Court in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16) In this case, the fundamental question would be the importance of the actual attendance rates prior to July 2014 to the exercise of the Tribunal’s function and the seriousness of any failure to consider that particular information. I am not persuaded that the evidence was sufficiently fundamental or cogent to the Applicant’s claims as to demonstrate a failure by the Tribunal to perform its statutory task, having regard to the nature of the issues before the Tribunal and the nature of the material in question.
Insofar as the ground in the Applicant’s written submission is based on a contention that the Tribunal made, either expressly or inferentially, a finding that the Applicant had attended no classes at all, that is not the case. The Tribunal clearly understood that the Applicant’s rate of attendance prior to July 2014 had been reported as below the minimum 80% course attendance requirements. Indeed, the Tribunal’s acceptance that the Applicant’s initial purpose to travel to and to reside in Australia was to study is consistent with its understanding of his study from his arrival in May 2013 to July 2014. However the Tribunal distinguished this from the subsequent circumstances in which his enrolment had been cancelled on more than one occasion because he had failed to start courses (in particular in July 2014 and in January 2015) and the fact that as at February 2015 he had not achieved satisfactory course progress. The Tribunal made the point that after the Applicant broke his toes in March 2014, he had not successfully engaged in a course of study.
As the First Respondent also submitted, if the Applicant’s submission is to be seen as raising a more general contention that the specific evidence as to the Applicant’s actual attendance rates was significant evidence to which the Tribunal had to have express regard, that is not made out. The Tribunal assessed the circumstances before it and was satisfied that the Applicant’s attendance was inadequate. The finding of inadequate attendance was reasonably open to it for the reasons which it gave on the material before it to which it referred. The evidence as to actual attendance rates prior to July 2014 was not to the contrary. There is no evidence to suggest that the Applicant relied on his attendance rates prior to July 2014 in relation to whether he was a genuine student. In exercising its discretion in the context of considering whether the applicant was a genuine student, the Tribunal accepted that the Applicant’s initial purpose in traveling to and residing in Australia was to study. It was not necessary for it to refer to the actual attendance rates in this respect.
The evidence of the Applicant’s actual attendance rates prior to July 2014 was not evidence that was cogent or of critical significance in relation to whether the Applicant was a genuine student or in relation to the exercise of discretion. Hence insofar as it was contended that there was relevant evidence that was significant in the sense considered in WAFP, such contention must fail.
No jurisdictional error has been established on the basis contended for in the written submission.
Having regard to the Tribunal’s reasoning as a whole, this is not a case in which the actual attendance rates are such as to cast a different light on the issue of whether either the Applicant was a genuine student or the Tribunal’s exercise of its discretion. As the First Respondent submitted, it was open to the Tribunal on the material before it (including the actual attendance rates) to be satisfied the Applicant had inadequate attendance. Moreover this was not the sole basis for its conclusion. The Tribunal also had regard to the Applicant’s unsatisfactory course progress and the fact that he had not satisfactorily completed any course since his student visa was granted in May 2013 in finding that he was not a genuine student. In the exercise of the discretion, the Tribunal made clear that it accepted that the Applicant’s initial purpose in travelling and residing in Australia was to study, and it was in that early period that the attendance rates in issue were achieved. However the Tribunal had regard to the fact that the Applicant had not successfully engaged in any course of study after his toes were broken, even at a time when he was able to work. At that later time he had not engaged in the principal purpose of his travel to and residence in Australia.
The issues raised in the written submission are not such as to demonstrate a failure by the Tribunal amounting to jurisdictional error. As no jurisdictional error has been established on any of the bases contended for the Applicant, the application should be dismissed.
The Minister seeks costs in the amount of $5,800. This is less than the suggested scale amount applicable at the time that these proceedings were commenced. It is appropriate that the unsuccessful Applicant should meet the costs of the First Respondent. Having regard to the circumstances of this case and other similar matters, I am satisfied that this amount is appropriate and reasonable.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 29 June 2017
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