Jada v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1131

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Jada v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1131   

File number(s):

MLG 2470 of 2018

Judgment of:

JUDGE SYMONS

Date of judgment:

5 December 2023

Catchwords:

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicant breached condition 8202(2)(a) in Schedule 8 to the Migration Regulations 1994 (Cth) requiring enrolment in a registered course of study – whether the Tribunal should exercise its discretion to cancel the visa having regard to the applicant’s circumstances – where proper basis established for finding of a breach of condition 8202(2)(a) based on enrolment records and applicant’s own admissions – whether Tribunal should have adjourned hearing in recognition of applicant’s status as self-represented litigant - no jurisdictional error established – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth) ss 116, 359A, 359AA, 363, 368D, 476, 477

Migration Regulations 1994 (Cth) sch 8, condition 8202(2)(a).

Cases cited:

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

SZVLE v Minister for Immigration and Border Protection [2017] FCA 90

Division:

Division 2 General Federal Law

Number of paragraphs:

55

Date of last submissions:

14 November 2023

Date of hearing:

14 November 2023

Place:

Melbourne

The applicant:

In person

Solicitor for the Respondents:

Mills Oakley

ORDERS

MLG2470 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

RAJESH JADA
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:

JUDGE SYMONS

DATE OF ORDER:

5 DECEMBER 2023

THE COURT ORDERS THAT:

1.The application for judicial review filed on 17 August 2018 be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $8250.

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 SYMONS:

INTRODUCTION

1. By an application filed on 17 August 2018, the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 2 August 2018.  The Tribunal affirmed an earlier decision made by a delegate of the Minister to cancel the applicant’s  Student (Temporary) (Class TU) (Subclass 500) visa (student visa). The application to this Court is brought under s 476 of the Migration Act 1958 (Cth) (Act).

2. For the reasons set out below, I have found that there is no jurisdictional error in the Tribunal decision.  Accordingly, the application to this Court is dismissed.

   BACKGROUND

3. The applicant is a non-citizen who was granted a student visa on 8 October 2016.

4. On 24 August 2017, the Minister’s Department sent an email to the applicant attaching a Notice of Intention to Consider Cancellation (NOICC) of the student visa. The NOICC stated that there appeared to be grounds for cancellation of the applicant’s visa under s 116(1)(b) of the Act. The particulars advised the applicant that it appeared he had not complied with condition 8202(2)(a) in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations), which required that he be enrolled in a registered course of study.  The evidence available through the Provider Registration and International Student Management System (PRISMS) suggested that the applicant had not been enrolled in a registered course of study since 16 November 2016.  The applicant was invited to comment and give reasons as to why he thought the ground for cancellation did not exist and why his student visa should not be cancelled.

5. By email to the Department on 31 August 2017 the applicant responded to the NOICC.  In his response, the applicant said (CB 10):

   a)He had been suffering from depression for the last few months but with the help of a psychologist he had overcome the depression; and

   b)He could submit full medical reports and could provide a clear explanation about his studies but would like a further 28 days to do so.

6. By email to the applicant sent on 31 August 2017, the Department granted the applicant a five working day extension in which to provide a written response to the NOICC (CB 11).  Despite this, the applicant did not provide any further information to the Department within this timeframe.

7. On 11 September 2017 the delegate cancelled the applicant’s student visa (CB 18-23).

8. On 14 September 2017 the applicant applied to the Tribunal for review of the delegate’s decision (CB 24-25).

9. On 16 July 2018 the Tribunal invited the applicant to attend a hearing on 2 August 2018 to give evidence and present arguments (CB 71–72).  The applicant appeared at the hearing before the Tribunal on 2 August 2018 (CB 81-84).

10. The Tribunal affirmed the decision under review on the same date and gave an oral statement of reasons (CB 97-99).

11. On 23 October 2018 the Tribunal produced a written statement of decision and reasons (Reasons) which it sent by email to the applicant on the same date (CB 100-106).

    TRIBUNAL DECISION  

12. The issues before the Tribunal were whether the applicant had breached condition 8202 and, if so, whether the Tribunal should exercise its discretion to cancel the visa having regard to the applicant’s circumstances (Reasons, [5]).

13. The Tribunal found that the applicant had not complied with condition 8202(2). This reflected the applicant’s concession made at hearing that he had not been enrolled in a registered course since his enrolment in a Master of Business Administration was cancelled on 16 November 2016 for non-payment of fees (Reasons, [6]-[7]).

14. The Tribunal then considered its discretion to cancel the student visa.  The Tribunal took into consideration the matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) (Reasons, [8]).

15. The Tribunal recorded that it had put to the applicant “in the required way” his PRISMS records which outlined his study history and relevantly indicated that he was not enrolled in a course from March 2015 until 2 May 2016. The Tribunal noted that at hearing, the applicant had contended that he was in fact enrolled in a Diploma of Management from March 2015 to February 2016 (Reasons, [9]).

16. The Tribunal found that even if the applicant’s version of events was to be accepted, he had not studied anything from December 2014 (having first arrived in Australia on a student visa in August 2014) to March 2015, and again from February 2016 to May 2016, which constituted, on each occasion, a breach of condition 8202 (Reasons, [13]).

17. The Tribunal noted further that as the applicant had initially been the holder of a subclass 573 visa, he had been required under condition 8516 to remain enrolled in a higher education course. His failure to maintain his enrolment in a Master of Information of Technology course (which ceased on 7 January 2015) meant that from this date he was also in breach of condition 8516 (Reasons, [15]).

18. The Tribunal noted the explanations given by the applicant that his ability to pay for course fees and to maintain his enrolment had been compromised due to being the victim of fraud in the amount of $70,000-$80,000 and being homesick and depressed (Reasons, [20]).

19. The Tribunal recorded that the applicant had made the admission during the hearing that if given the opportunity, he would complete the MBA and then attempt to remain in Australia. He had agreed with the suggestion that it had never been his intention to come to Australia to study temporarily (Reasons, [24]).

20. The Tribunal also recorded that when asked whether he or any of his family members would suffer hardship if his visa remained cancelled, the applicant had said that they would not (Reasons, [25]).

21. The Tribunal found, having regard to enrolment information and the applicant’s responses, that the applicant did not have the ability, will or desire to successfully undertake an education course in Australia and that he would not meet the criteria for the grant of a further temporary visa given his desire to remain in Australia permanently (Reasons, [26]-[27]).

22. The Tribunal acknowledged that the applicant and his family members might suffer disappointment and be upset if his visa was cancelled before he could complete a higher education course in Australia. The Tribunal also accepted that the applicant loved Australia and wished to remain here permanently. However, this intention ran counter to the purpose of the student visa (Reasons, [29]).

23. The Tribunal took into account the fact that, as the applicant’s visa was cancelled for breach of condition 8202, he would be excluded from successfully applying for another visa for three years after cancellation. However, it found that the applicant’s lack of desire and ability to successfully undertake an education course in Australia heavily outweighed any hardship that he or his family members might face because of the cancellation of his visa (Reasons, [30]).

24. The Tribunal found further that the applicant’s stated desire to remain in Australia permanently weighed in favour of the exercise of the discretion to affirm the decision to cancel the visa (Reasons, [31]).

25. The Tribunal concluded, based on a consideration of the circumstances as a whole, that the visa should be cancelled (Reasons, [32]).

    PROCEEDINGS BEFORE THIS COURT

26. The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Act.

27. The applicant advances three grounds of review in his written application, as follows:

    1.The tribunal failed to act according to substantial justice and merits of the case.

    2.As an unrepresented litigant, from another country, I believe that the tribunal member should have adjourned my case until I sought legal advice.

    3.I believe that it is against the rule of law, natural justice and procedural fairness for the tribunal to not automatically provide me with written reasons for the decision.

28. The application was accompanied by an affidavit, which annexed the notification of oral decision document dated 3 August 2018.  It also contained the following paragraphs which although not framed in terms of review grounds raise issues that the applicant clearly wished to ventilate about the Tribunal decision and process, and which expand upon matters identified in the grounds referred to above.

    8.The lack of written reasons makes it difficult for me to exercise my rights.  I believe that I have been denied natural justice and procedural fairness as I am a self-represented litigant, my matter should have been adjourned so that I could obtain legal advice and at the very least I should have been provided with a detailed written decision record.  I believe it is unfair for the tribunal to assume that I understand what the member was saying.  As you can imagine attendance at a hearing is a very stressful event particularly when it is not in your home country.

    9.I believe that it is against the rule of law, natural justice and procedural fairness for the AAT to not automatically provide me with an appropriate decision record.  This effectively takes away my rights.  It is for these reasons I respectfully request a review of the decision.

29. On 27 February 2020 a Registrar of this Court made orders to progress the matter to hearing.  Those orders required the applicant to file and serve 28 days before the hearing any amended application, supplementary court book and written submissions.  More recently, at a call over conducted on 6 September 2023 at which the applicant participated, a Registrar of the Court noted that the procedural orders for filing of documents continued to apply and that the applicant had confirmed that he had retained a copy of the court book prepared for this application.  The applicant did not file any documents in accordance with these orders.

30. The matter came before me for final hearing on 14 November 2023.  The applicant was self-represented, and the Minster was represented by Mr A Gardner.

    SUBMISSIONS OF THE PARTIES

    Applicant’s submissions

31. As indicated above, the applicant did not file any written submissions.

32. I gave the applicant an opportunity at the hearing to explain to the Court what he believed the Tribunal did wrong when it made the decision to affirm the cancellation of his student visa. 

33. The applicant sought to challenge the administrative decision to issue the NOICC on the basis that the Department had not given him more than five days to respond to it and that it was the result of a miscommunication about his payment of fees for the MBA course.  The applicant told the Court that he had paid the course fees and that he could produce evidence of having made the payment, although he acknowledged that such evidence had not been provided to the Tribunal.  The applicant was critical of what he submitted was the failure, generally, of the Tribunal to request supporting documents from him.

34. The applicant was also critical of his “agent” who he implied had not passed on all of his supporting documents.

35. The applicant also told the Court that the Tribunal should not have applied a three-year ban for his breach of condition 8202.

    Minister’s submissions

36. The Minister filed written submissions in accordance with the orders made on 27 February 2020.  Those submissions addressed the matters identified in the applicant’s originating application.

37. Insofar as ground 1 alleges a failure by the Tribunal to act according to “substantial justice and the merits of the case” the Minister submitted that the Tribunal had complied with the procedural fairness requirements prescribed by Division 5 of Part 5 of the Act. In particular, the Tribunal had invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review in accordance with s 360(1) of the Act and had considered the applicant’s claims and evidence prior to making a decision.

38. The Tribunal had also recorded that it had put to the applicant information in his PRISMS records “in the required way” (Reasons, [9], [12]-[13] and [17]) which, in the absence of any transcript evidence to the contrary, should be understood as an indication that the Tribunal had complied with the procedure stipulated in s 359AA of the Act as the means of giving to the applicant orally the clear particulars of dispositive information otherwise required, by s 359A, to be given to the applicant in writing.

39. The Minister submitted, in relation to ground 2, that there was no indication in the decision record that the applicant had requested an adjournment of the proceedings on either of the bases described (an opportunity to obtain legal advice or because the applicant was from another country) or at all.  In the absence of any request, the Tribunal’s failure to voluntarily adjourn the proceedings should not be characterised as legally unreasonable.  In this regard, the Minister submitted that there was no statutory right to legal representation before the Tribunal.  Further, the Court has held that there is no common law entitlement or absolute right to legal representation, no matter how serious the consequences of the proceedings might be (referring to SZVLE v Minister for Immigration and Border Protection [2017] FCA 90 at [40] per Katzmann J).

40. In relation to ground 3, the Minister submitted that the Tribunal was empowered to make an oral decision under s 368D(1) of the Act and that if it did so, it was required to make a written statement in compliance with s 368D(2)(b), which it did in this case. However, there was no requirement, absent a written request made by the applicant within the period prescribed by regulation (being within 14 days of the date of the oral decision) for the Tribunal to give a copy of the written statement to the applicant within a period of 14 days from such request. The Minister also noted that the legislative scheme operates such that any procedural irregularity (such as, for example, a failure to provide an applicant with a written statement following a request) would not result in the invalidity of the Tribunal’s decision (refer s 368D(7) of the Act).

41. Responding to matters raised orally by the applicant, the Minister submitted that the PRISMS record relied upon by the Tribunal and identified for the applicant during the Tribunal hearing (reproduced at CB 30), contained a record of the various courses that the applicant had been enrolled in and which were subsequently cancelled.  There was a proper basis for the finding by the Tribunal that the applicant did not satisfy condition 8202(2).

42. The Minister also submitted that to the extent the applicant’s complaint about his migration agent suggested some measure of misconduct, this did not rise beyond an allegation of agent negligence which, falling short of fraud, would not involve jurisdictional error.

    CONSIDERATION

    Jurisdictional error

43. In order to be entitled to relief, the applicant must establish that the Tribunal decision is affected by jurisdictional error.

44. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):

    The categories of jurisdictional error are not closed.  Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirements of procedural fairness.  As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]]:

    “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

    Grounds 1 and 2

45. Grounds one and two are principally concerned with an alleged denial of procedural fairness relating to the failure of the Tribunal to adjourn the hearing in recognition of the applicant’s status as a self-represented review applicant and a person from another country. 

46. The Tribunal has the discretionary power under s 363(1)(b) of the Act to adjourn the review from time to time. This power must be exercised reasonably. However, there is nothing in the circumstances of this case that suggests the occasion for its consideration arose or that a failure to adjourn the hearing was unreasonable.

47. The applicant does not submit that he made a request for an adjournment and there is no indication from the Reasons that an application of this kind was made. Furthermore, there is nothing in the Reasons to suggest that the applicant experienced difficulty in his communication with the Tribunal or that he was denied opportunities to provide information to the Tribunal so as to warrant a conclusion that he was denied a meaningful opportunity to appear and present his case. Although the applicant was critical of the failure of the Tribunal to request from him supporting documentation, I make the observation that the applicant did in fact produce four documents to the Tribunal on the day of the hearing (these appearing at CB 85 to 91) and that at least two of these documents - the CQUniversity English Language Centre – Course Results and the certificate issued by Pacific International College on 1 March 2015 - were referred to by the Tribunal in its decision (Reasons, [11] and [16]).

1. I accept that otherwise, as a matter of principle, the applicant did not have an absolute right to legal representation and that in circumstances where he did not make a request for an interpreter and was in Australia, ostensibly at least for the purpose of studying a Master of Business Administration, the fact that he was from another country was not a circumstance that ought have suggested to the Tribunal that the applicant’s participation in the hearing was compromised to the extent that warranted an adjournment.

   Ground 3

2. By ground three the applicant contends that his rights were taken away by the failure of the Tribunal to provide him with a written decision record.

3. Quite apart from the position that a failure to provide a written decision record does not invalidate a decision on a review (refer [40] above), the fact that the Tribunal did not, within the statutory time-frame for the making of applications to this Court, provide the applicant with a written statement, does not produce any material consequences for his ability to prosecute his application. 

4. This is because the applicant had the benefit of a written statement of reasons from 23 October 2018 when the Tribunal sent this to him.  A copy of the written statement also appears in the court book prepared for this proceeding and as noted above, the applicant acknowledged that he retained a copy of the court book when he participated in a call over earlier in the year.  The procedural orders for this matter permitted the applicant to, at any time prior to 28 days before the final hearing, file an amended application.  Further, the applicant was not limited at the hearing before me as to the matters he wished to raise by way of criticism of the Tribunal decision or process.

5. I am not persuaded that there is any merit in ground three.

6. I further consider that the Tribunal complied with its statutory obligations of procedural fairness and that there was a rational basis disclosed in the evidence (primarily the PRISMS record) and the applicant’s own admission (Reasons, [24]) for the Tribunal’s finding that the applicant was not enrolled in a registered course for the purpose of meeting the requirements of condition 8202(2)(a). 

7. The Tribunal did not make a decision to apply a three-year ban to the applicant.  This was the statutory consequence of the Tribunal’s decision to affirm the cancellation decision.[1]  The Tribunal had an appreciation of this consequence and took it into account when it exercised its discretion.

   [1] The cancellation decision engaged Public Interest Criterion 4013(2)(b) of Schedule 4 to the Regulations.

   CONCLUSION

8. The applicant’s grounds do not establish jurisdictional error in the Tribunal decision.  It follows that the application to the Court filed on 17 August 2018 is dismissed with costs.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons .

Associate:

Dated: 5 December 2023