Joshi v Minister for Immigration

[2020] FCCA 2938

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSHI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2938

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Class TU) (Subclass 572) Vocational Education and Training Sector visa – whether the applicant was denied natural justice – whether the Tribunal failed to exercise jurisdiction by failing to give proper weight to aspects of the applicants’ claims – whether there is jurisdictional error – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 140, 357A.

Migration Regulations 1994 (Cth), Sch 8, cl 8202

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510.

Applicant: NITIKA JOSHI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1787 of 2019

Judgment of: Judge Humphreys

Hearing date: 28 October 2020

Date of Last Submission: 28 October 2020

Delivered at: Parramatta

Delivered on: 30 October 2020

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Mr Pipolo - Mills Oakley Solicitors

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1787 of 2019

NITIKA JOSHI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is an Indian national. The applicant arrived in Australia on 7 July 2015 on a Student, (Class TU), (Subclass 572), Vocational Education and Training Sector visa for the purpose of undertaking an Advanced Diploma of Hospitality at Le Cordon Bleu Australia.

2. On 18 April 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) cancelled the applicant’s Student visa on the basis that the applicant was not enrolled in a registered course of study from 6 January 2017 until the date of the delegate’s decision on 18 April 2017.

3. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 20 June 2019, the Tribunal affirmed the delegate’s decision to cancel the applicant’s Student visa.

4. The applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeals Tribunal’s Decision

1. At paragraph 6 of its decision, the Tribunal noted that the issue in the case was whether the applicant, as the holder of a Student visa, had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”). If the applicant had breached that condition, under s 116(1) of the Migration Act 1958 (Cth) (“the Act”), the visa may be cancelled.

2. Condition 8202 of the Regulations, as it applies in this case, requires that the applicant be enrolled in a registered course of study or training

   
   

   [cl 8202(2)], has not been certified by his or her education provider as not achieving satisfactory progress in the course [cl 8202(3)(a)], or has not been certified by his or her education provider as not achieving satisfactory course attendance [cl 8202(3)(b)].

3. In this case, the issue was that the applicant’s visa had been cancelled on the basis that the applicant was not enrolled in a registered course. The applicant told the Tribunal that she had completed a Certificate III course in Hospitality. The applicant’s enrolment in the Advanced Diploma of Hospitality course at Le Cordon Blue was cancelled in January 2017, following an incident in December 2016, where she was charged by New South Wales Police with the theft of property of another student. The applicant provided evidence to the Tribunal that she pleaded guilty to the charge, and on appeal to the District Court, the offence was proven but no conviction was recorded against her.

4. During evidence before the Tribunal, the applicant confirmed that her enrolment had been cancelled and that she had not been enrolled in a registered course of study since 6 January 2017. Accordingly, the Tribunal was satisfied that there were grounds for the cancellation of the applicant’s visa. The Tribunal then went on to consider the discretionary criteria set out in the Department’s Procedures Advice Manual

   
   

   (“PAM 3”) in relation to whether the visa should be cancelled.

5. In relation to the purpose of the applicant’s travel and stay in Australia and whether she had a compelling need to travel to or remain in Australia, the Tribunal noted informal evidence from Le Cordon Bleu, that, as she had admitted the offence to Police, only a Court finding that the applicant was not guilty would give them the ability to revoke the termination of her enrolment.

6. The Tribunal questioned the applicant as to whether she had made any other attempts to undertake study at another institution. The applicant stated that she had not because of the fees that she would have to pay.

7. At paragraph 28 of its decision, the Tribunal was concerned that over two years had elapsed since the applicant’s criminal conviction was dismissed on appeal by the District Court. No material was produced to indicate that the applicant had made formal inquiries of her previous institution as to whether or not she would be re-enrolled. The Tribunal considered that formal approaches to the prior institution would have been reasonable, given that her conviction was overturned by the District Court. Although the offence was proven, the applicant was released without a conviction being recorded.

8. At Paragraph 31 of its decision, the Tribunal found that while the applicant’s original purpose to travel to Australia was to undertake the Advanced Diploma in Hospitality, there was little to suggest that it remained a priority for her, or that she has had a compelling reason to remain in Australia.

9. In relation to the extent of the applicant’s compliance with visa conditions, the applicant conceded that her enrolment with her education provider was terminated as a result of disciplinary action taken by Le Cordon Bleu. Stealing from a fellow student was also a breach of a condition of the applicant’s Student visa. The Tribunal noted that the applicant gave evidence that, other than a non-enrolment, she has otherwise complied with the conditions of the visa. The Tribunal gave this matter some weight against cancelling the applicant’s visa.

10. In terms of any degree of hardship that may be caused, the Tribunal noted  the applicant’s evidence that she would be unable to complete a Certificate IV in Hospitality and this was what she came to Australia for. The applicant also noted that if her visa was cancelled, it may restrict her opportunities to travel to other countries. Further, since arriving in Australia, she had married a man who was also on a Temporary visa. The applicant’s parents in India were unaware of the marriage. The Tribunal was satisfied that the applicant may experience some hardship as a result of her visa being cancelled and gave this some weight.

11. In terms of the circumstances in which the ground of cancellation arose, the Tribunal noted that the applicant’s enrolment was cancelled due to stealing another student’s money at her education institution. The Tribunal was told that the applicant paid the money back and she had attempted to apologise. The applicant stated that at the time of the incident, her partner was not getting any work and she had a number of unpaid bills and was feeling helpless. The Tribunal accepted the applicant’s account of the circumstances in which the ground for cancellation arose, but found that the circumstances were not beyond her control. The applicant may have been experiencing financial difficulties, however, this was not an excuse for the behaviour which resulted in her enrolment being cancelled. The Tribunal found that there were no extenuating circumstances beyond the visa holders control and in the circumstances, gave this issue significant weight in favour of cancelling the visa.

12. The Tribunal was not satisfied that there would be any consequential cancellations under s 140 of the Act, if the applicant’s visa was cancelled. Further, the Tribunal took account of the fact that the applicant may become an unlawful non-citizen and that she may face difficulties in being granted further visas in Australia and could be subject to a three-year exclusion period. The Tribunal did not give these issues significant weight.

13. There was nothing to suggest that there would be any international obligation issues nor were there any children involved. The Tribunal considered references that were provided, but gave them only little weight against cancelling the visa.

14. At paragraph 57 of its decision, after considering all the circumstances as a whole, the Tribunal was of the view that the stated purpose of completing the Advanced Diploma in Hospitality did not remain a priority for the applicant and a compelling reason to remain in Australia. Accordingly, the Tribunal concluded that the visa should be cancelled and affirmed the delegate’s decision.

Grounds for Judicial Review

1. The grounds for judicial review are set out in an application filed with the Court on 16 July 2019: they are as follows verbatim:

   Ground One

   During the processing of Student visa cancellation review, Ms Nitika is denied natural justice due to the fact that the Tribunal failed in giving weightage to the review applicant's claim of compassion and fair dealing.

   Ground 2

   The Tribunal and Minister failed to acknowledge the reason for visa cancellation which was primarily based on cancellation of CoE (Confirmation of enrolment). Wherein the CoE cancellation was in turn based on an allegation that was Dismissed in the court of law and the applicant discharged from the charges made.

   Ground 3

   Hence the basis of cancellation of CoE and in tum visa cancellation did not exist. The Tribunal failed to accept the claim and denied fair decision. Tribunal requested unreasonable evidences that are beyond the applicant's discretion and control and depended mainly on third parties like Le Cordon Bleu College.

   Ground Four

   The applicant is denied fair chance to complete the course of study due to floor in migration legislation and that has ended the student’s career and ruined immigration history.

   Ground Five

   The offence (which was minor in nature) and that was "dismissed" in the court was the basis of visa cancellation- The Minister failed to consider the applicant's side of matters (see tribunal decision-Para (18). The Tribunal clearly mentions that the circumstances that led to non-compliance with student visa conditions may have been affected by the Christmas holidays and "these are matters for consideration in the exercise of the discretion to cancel the visa" Clearly the applicant was denied Natural justice by not considering the circumstances leading to cancellation of CoE and the closure of College/ education centres due to Christmas break.

   Ground 6

   The Tribunal failed to consider the fact that Education Provider(s) do not enrol Onshore students, once the visa is cancelled. Hence requesting the student to prove efforts made towards enrolment in study course between Apr 2017 till date, sounds un-reasonable and intensifies the student's feeling of helplessness. Situation is complicated by the erroneous legal framework:

   ·   Course provider cancels enrolment based on matter that was dismissed in court

   ·   Minister cancels student visa for not enrolling in course-not maintaining enrolment in study course

   ·   Course provider requires documents from court-that proves the Court matter dismissed (based on which initial CoE was cancelled) (see Tribunal decision-Para 24-25)

   ·   Due to visa cancellation, regardless of the success at the Court, the CoE is not re-instated - discretion of Course provider and legislative framework for Education providers that restrict re-enrolment of students where gap of study is more than 2 months (see Tribunal decision-Para27- 28)

   ·   Requirement of student to be enrolled in course during the period case if heard at the Tribunal in spite of the above regulations around course providers. (See Tribunal decision-Para-28)

   Ground 7

   The applicant is engulfed in a “chicken and egg” situation and has always received unfair and unjust response from the Authorities involved.

   Ground 8

   The appellant wishes to challenge the legal framework and the injustice provided to her. The Department of Home Affairs Delegate and the Administrative appeals Tribunal have failed to consider the practical aspects of the course enrolment process and the complexities in the admission process faced by students. Expecting the appellant to have evidences of communication with Le Cordon Bleu while not giving weightage to the verbal communication with course provider, clearly shows the error of law.

The Applicant’s Submissions

1. Due to Covid-19 health restrictions, the hearing was conducted by telephone. The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an interpreter. The Court was satisfied that the applicant’s English language skills were sufficient for her to engage in a meaningful way in the Court process. Prior to the hearing commencing, the Court ensured that the applicant was in possession of the relevant Court Books and a copy of the first respondent’s written submissions.

2. At the commencement of the hearing, the Court carefully explained the difference between judicial review and merits review. The Court also explained the process by which the Court hearing itself, would be undertaken.

3. Despite Court orders, no written submissions or other material was provided by the applicant in support of the case. The applicant told the Court that her issues were compounded by the closure of her educational institution over the Christmas break. The applicant was unable to communicate with them or get them to respond to the material she was providing to them. The applicant confirmed to the Court that she has not subsequently enrolled in any further educational courses in the time since the Tribunal’s decision.

4. Following the first respondent’s oral submissions, the applicant was invited to, again, make any further submissions that she may wish to. The applicant stated that she was asking the Court to give her a second chance.

The First Respondent’s Submissions

1. In relation to ground one, it is claimed that the Tribunal failed to consider the applicants “history of fair dealing”. This was expressly considered at paragraph 49 of the Tribunal’s decision, and was accorded some weight. This ground ultimately expresses disagreement with the Tribunal’s assessment of the totality of the evidence and cannot be made out.

2. Ground two contends that the Tribunal failed to consider the applicant’s visa was cancelled due to cancellation of her Confirmation of Enrolment (CoE) as a result of the criminal matter which was “dismissed” in Court. It was submitted that the complaint cannot succeed, because the Tribunal considered this matrix of facts at great length in its decision record. The Tribunal was well aware of the applicant’s criminal charge which resulted in the cancellation of her enrolment and consequently her visa. The Tribunal noted that the offence was proven although no criminal conviction was recorded. Ultimately, it was not the applicant’s criminal charge but the lack of evidence to indicate the applicant had taken steps to obtain either re-enrolment or new enrolment in the ensuing two years that the Tribunal found weighed heavily in favour of cancelling her visa.

3. Ground three contends that because a criminal charge was dismissed in the District Court, the basis of the cancellation of the applicant’s CoE did not exist. It is submitted that this ground is misconceived.

4. The Tribunal cancelled the applicant’s visa on the basis that a ground for cancellation was made out and the exercise of discretion weighed in favour of cancelling the visa. The applicant’s circumstances surrounding the criminal charges were relevant to the exercise of discretion and were properly considered. The Tribunal found that the lack of any documentary evidence of efforts to contact the applicant’s education provider following the District Court appeal, led the Tribunal to consider the purpose of the applicant stay in Australia might not be primarily for the completion of her course. It was reasonably open to the Tribunal to have regard to these matters when considering whether or not to exercise its discretion to cancel the visa.

5. Ground four is not a proper ground of review and states that the applicant was denied a fair chance to complete a course of studies because of a “flaw in migration legislation”.

6. Ground five argues that the Tribunal failed to consider the dismissal of the applicant’s criminal matter and the difficulties that she encountered in communicating with her education provider during December 2016 and January 2017. It is submitted that the Tribunal did consider this issue. The Tribunal found that under the applicant’s education provider’s policy, cancellation of her enrolment flowed automatically from her criminal charge. The claimed communication difficulties did not play a significant part in the college’s decision to cancel the applicant’s enrolment. The ground cannot be made out.

7. Ground six argues that the suggestion by the Tribunal that the applicant should provide evidence of efforts to obtain enrolment after April 2007 was unreasonable, given that educational providers do not in enrol onshore students once they had their visa cancelled. The applicant has not provided any evidence of further particulars to support her claim. Ordinarily, the provision of letters of offer to international students lacking a substantive visa is a matter for an individual educational provider policy. This ground cannot be made out

8. Ground seven alleges unfair and unjust treatment, and claims that the applicant is engulfed in a “chicken and egg” situation. It is submitted that without further particulars the ground does not identify how the Tribunal’s decision was “unjust and unfair”, particularly in circumstances where the applicant is not owed common-law procedural fairness and s 357A of the Act provides that Division 5, Part 5, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule.

9. Ground eight simply reiterates the claim of unfair and unjust treatment and repeats earlier grounds regarding the Tribunal’s failure to consider elements of the claims. Accordingly, it cannot be made out. Further, the applicant’s supporting affidavit essentially repeats the complaints contained in the eight grounds of judicial review but does not identify any additional jurisdictional error in the Tribunal’s decision.

Consideration

1. The applicant came to Australia to study an Advanced Diploma in Hospitality at a particular educational institution. Approximately 18 months after arriving in Australia, the applicant’s enrolment in her chosen educational institution was cancelled, as the applicant was detected stealing from a fellow student. The applicant was charged and pleaded guilty at the Local Court. On appeal to the District Court, the offence was found proven, but the applicant was released without a conviction being recorded. The applicant’s educational institution refused to allow her to re-enrol. No evidence was provided of any attempts to enrol in another educational provider.

2. The Tribunal correctly found that, as the applicant was not enrolled in a course of study, she breached condition 8202 of her visa and that her visa may be cancelled.

3. The Tribunal then went on to consider the various discretionary considerations, outlined by the Department in PAM 3 as to whether the applicant’s visa should be cancelled. The Tribunal correctly listed all the relevant considerations and discussed each of them in detail, including the applicant’s evidence. The Tribunal considered the applicant’s explanations and evidence but was not ultimately convinced that her reasons for staying in Australia outweighed the reasons in favour of cancellation of her visa. There is nothing to indicate that the process followed by the Tribunal was other than in accordance with the relevant legislation and Departmental policies.

1. The Court is not satisfied that any of the considerations by the Tribunal were illogical or irrational, such that it amounted to legal unreasonableness. The complaints, such as they are, largely amount to a disagreement with the findings and conclusions of the Tribunal. The complaints invite the Court to undertake impermissible merits review: (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54]).

2. In relation to ground one, this suggests that the applicant was denied natural justice as the Tribunal failed to give weight to the applicant’s claim of compassion and fair dealing. The ground is somewhat unclear given that no particulars are provided. The Court is satisfied that the Tribunal considered all relevant matters, including the circumstances that led to the applicant’s enrolment being cancelled and her history of cooperation with the Department. Having considered the totality of the material, the Tribunal came to the view that the material in support of the cancellation of the applicant’s visa outweighed those matters in favour. Ground one reveals no jurisdictional error.

3. Ground two suggests that the allegation against the applicant of criminal activity was “dismissed”. This assertion does not accurately reflect the facts in the matter, where offence was found proven by the Court and the applicant was discharged without a conviction being recorded. The applicant’s educational provider was of the view that unless she was found to have not committed the offence, the cancellation of her enrolment would stand. The Court is satisfied that the Tribunal understood the material put to it by the applicant, that she regretted her actions and had paid the money back. The Court agrees with the first respondent however, that it was the fact that the applicant had failed to take steps to obtain re-enrolment or new enrolment in the ensuing two years following finalisation of the District Court proceedings that weighed heavily against her. Ground two reveals no jurisdictional error.

4. Ground three is factually incorrect. The claim that the charge was dismissed by the District Court is legally wrong, in that the offence was found proven, but the applicant was released without a conviction being recorded. This was taken into account by the Tribunal. It is clear that the Tribunal questioned the applicant as to whether she had been in contact with the educational institution in April 2017 and found, that there was a lack of any documentary evidence of efforts to contact the education provider. It was on this basis that the Tribunal found that the applicant’s stay in Australia might not be primarily for the completion of her studies. The Court is satisfied that the Tribunal adopted a permissible approach in the way it dealt with this issue and no jurisdictional error is made out.

5. Ground four is not a proper ground of review. It merely alleges a flaw in the legislation which is not a matter that the Court can be concerned with.

6. In regards to ground five, the Court is satisfied that the Tribunal did properly consider the claims that the applicant was unable to communicate with the education provider over the Christmas break. The Tribunal was more concerned as to the applicant’s subsequent failure to either seek re-enrolment with her education provider or to seek enrolment in another alternative provider. The Court is not satisfied that there was any denial of natural justice and that the Tribunal complied with all statutory requirements as set out in the Act.

7. Ground six argues that the Tribunal’s request for evidence of attempts to enrol in alternative courses of study was unreasonable. As noted by the first respondent, no evidence was provided of any particular attempt to inquire or attempt to enrol in either another, or a similar course. It is not unusual for the Court to be provided with letters of offer even where a certificate of enrolment has not been provided. The Court is not satisfied that ground six is evidence of jurisdictional error.

8. Ground seven is a bare assertion, and lacks any particulars. It is incapable of being properly responded to, and does not reveal any jurisdictional error.

9. Ground eight again simply traverses matters that have already been raised. The Tribunal considered all the material that was before it, however, concluded that the material in favour of the applicant’s visa being cancelled outweighed the material in favour of the applicant being allowed to stay and complete her studies. If anything, this ground simply invites the Court to undertake impermissible merits review.

10. As the applicant is unrepresented, the Court has perused the decision of the Tribunal. No jurisdictional error which has not been articulated by the applicant is apparent on the face the record.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 29 October 2020