Karki v Minister for Immigration
[2019] FCCA 319
•18 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KARKI v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 319 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister to cancel a Student visa under s.116 of the Migration Act 1958 (Cth) for non-compliance with Condition 8202 – common ground that the applicant had not complied with Condition 8202 – Tribunal alleged to have committed a factual error – held that the Tribunal had not and in any event even if there was a factual error such did not constitute jurisdictional error because not “fundamental” or “important” or “overwhelming” – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth) |
| Cases cited: BIL17 v Minister for Immigration & Border Protection [2019] FCAFC 6 |
| Applicant: | SATISH KARKI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1087 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 14 February 2018 |
| Date of last submission: | 19 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. R. Young of Counsel |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the First Respondent: | Mr J. Hutton |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Insofar as is necessary, grant leave to the Applicant to file the Amended Application dated 24 January 2018.
Admit PAM3 into evidence marked “Exhibit B”.
The Amended Application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1087 of 2017
| SATISH KARKI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Nepal aged 27 years, having been born on 9 June 1991.
By Amended Application filed in this Court on 24 January 2018 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 16 March 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 15 June 2016 cancelling his Student (Temporary) Higher Education Sector (Class TU) (Subclass 573) visa (Student visa).
Background
The Applicant was granted the Student visa on 27 September 2013 which was subject to Condition 8202 of Sch.8 to the Migration Regulations 1994 (Cth) and by force of Condition 8202(2)(a) required him to be enrolled in a registered course of study.
Initially the Applicant completed an English language course from 9 December 2013 until 21 February 2014. The Applicant then enrolled in a Diploma of Commerce course at Curtin University commencing 26 February 2014, but the Applicant withdrew from this course which was cancelled on 25 November 2014.
It is common ground between the parties that the Applicant ceased enrolment in any registered course of study on 25 November 2014 and that therefore from that date he was in breach of, and in non-compliance with Condition 8202, and that accordingly the Minister was empowered under s.116(1)(b) of the Migration Act 1958 (Cth) to cancel the Student visa.
By Notice of Intention to Consider Cancellation (NOICC) of the Student visa dated 23 May 2016 the Department of the Minister advised the Applicant that he appeared to be in breach of Condition 8202 and extended an opportunity for him to comment on the grounds identified in the NOICC and to give reasons why his Student visa should not be cancelled.
By Written Submission (Written Submission) dated 27 May 2016 the Applicant’s solicitor and registered migration agent, Mr K R Timsina of EP Migration Australia, advised the Department of the Minister in substance as follows:
a)agreed that there appeared, prima facie, to be a ground for cancellation of the Student visa for breach of Condition 8202;
b)confirmed that the Applicant had not enrolled in any registered course since 25 November 2014, which it was claimed was due to extenuating and compassionate grounds as a result of consequences to his family in Nepal due to the Nepal earthquake of 25 April 2015;
c)the Applicant’s family in Nepal was devastated and suffered harm as a result of the Nepal earthquake and the father of the Applicant had suffered economic loss of AUD$175,000 due to damage caused to his house in Nepal by the earthquake and had also suffered a business loss of AUD$60,000;
d)the Applicant had come to Australia to improve his educational and employment opportunities to support his family in Nepal;
e)the Applicant had suffered extreme distress, anxiety and hardship as a result of the problems caused by the Nepal earthquake and his inability to afford to return to Nepal which collectively prevented the Applicant from embarking on course enrolment and commencing formal studies in Australia due to psychological and financial strain;
f)further and in particular submitted that the Applicant had:
…demonstrated his willingness to comply by obtaining enrolment in a registered course before earthquake. Mr Karki has received offer letter from Kings Own Institute on 16 Jan 2016 after he left his last education provider and paid partial payment of $2,500 on 21 January 2016. However, KOI has not issued COE without explaining the reason and Mr Karki has to seek refund of the tuition fees (evidence attached).
It is to be noted that the dates of 16 January 2016 and 21 January 2016 are well after the date of the Nepal earthquake said to have occurred on 25 April 2015. However, the attached evidence referred to in the Written Submission relevant to the Kings Own Institute was dated, respectively, 16 January 2015, 21 January 2015 and 16 March 2015, not the year 2016 as stated in the Written Submission; and
g)concluded by asking the Department for compassionate consideration and continuation of the Student visa.
Decision of Delegate
By decision dated 15 June 2016 the Delegate cancelled the Student visa. In short, the Delegate considered that the grounds for cancelling the Student visa outweighed the grounds for not cancelling it and decided that it should be cancelled.
Tribunal Decision
The Applicant lodged an application for merits review with the Tribunal on 20 June 2016.
The Applicant attended a hearing before the Tribunal on 15 March 2017 to give evidence and present arguments with the assistance of an interpreter in the Nepali and English languages. The Applicant was also accompanied by his wife and a migration agent from EP Migration Australia.
In the result, by its Decision Record of 16 March 2017 the Tribunal affirmed the decision of the Delegate to cancel the Student visa.
At [10] and [16] of its Decision Record the Tribunal noted that the Written Submission had conceded that the Applicant had not been enrolled in any registered course since 25 November 2014 and that this was confirmed by the Applicant at the hearing before it.
At [15] of its Decision Record the Tribunal stated as follows:
[15]Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to 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).
At [16] of its Decision Record the Tribunal generally foreshadowed its conclusion that in the circumstances it was not satisfied that the Applicant’s intention in residing in Australia from 25 November 2014 was for the purpose of study.
At [17] the Tribunal recorded that at the hearing the Applicant had said that he had withdrawn from his studies due to personal stress and that he could not afford to study in Australia from 25 November 2014.
At [18] of its Decision Record the Tribunal again recorded the concession of the Applicant that he “… was unable to afford to study in Australia from November 2014, and the earthquake in Nepal added to that ongoing situation”.
At [20] of its Decision Record the Tribunal recorded:
[20]When discussed at hearing, the applicant said he did not obtain any medical assistance while in Australia (including from a Student counsellor). It is also the case the applicant's psychological condition did not prevent him from working as cleaner for 18 months (he claimed to have ceased this work around 17 months prior to the March 2017 hearing). It also did not prevent him from entering into a relationship and marrying in Australia on 7 January 2016. It is also the case the applicant did not seek a deferment or otherwise seek to explain to the Department why he could not continue to study at that time.
At [30] the Tribunal noted, as had the Delegate, that Australia’s international obligations would not be breached if the Student visa was cancelled.
The ultimate conclusions of the Tribunal were expressed in [31] and [32] of its Decision Record as follows:
[31]The Tribunal accepts the Nepal earthquake on 25 April 2015 would have negatively impacted the applicant's family, and possibly the applicant. However, the applicant's last day of enrolment was well before that time, being 25 November 2014 (almost 5 months before the earthquake in Nepal took place). Since then, he had not apparently been able to afford to continue his studies in Australia. In the circumstances, and notwithstanding his wife's evidence and the evidence lodged at hearing, the Tribunal believes it appropriate to exercise the discretion to cancel the visa.
[32]Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
Grounds of Attack on Tribunal Decision in this Court
The Applicant by his Amended Application relied upon the following Grounds:
1. The Second Respondent made jurisdictional error by adopting an erroneous view of the facts that affected the exercise of its discretion under section 116(1)(b) of the Migration Act 1958.
Particulars
a) The Second Respondent based its decision upon the erroneous assumption of fact that the Applicant had not taken any steps in relation to enrolment until 16 January 2016.
b) In fact the Applicant had applied and his application had been accepted for admission to Kings Own Institute (KOI) on 16 January 2015.
c) Records of KOI at CB 23 confirm that the Applicant could not commence that course and requested withdrawal on 16 March 2015 because he could not get a release letter from Curtin University.
2. The Second Respondent made jurisdictional error by making a decision which was unreasonable.
Particulars
a) The Applicant refers to Ground 1 above.
3. The Second Respondent at [30] CB 105 failed to give regard to relevant obligations of Australia which might be breached if the student visa was cancelled.
At the hearing Mr J R Young of Counsel appeared for the Applicant where he argued Grounds 1 and 2 together, and Ground 3 separately.
Consideration
Grounds 1 and 2
Ground 1 asserts that a factual error constituting jurisdictional error was committed by the Tribunal in finding that the Applicant had not attempted to enrol at the Kings Own Institute until 16 January 2016 when in fact he had done so as of 16 January 2015.
However, in my view the Tribunal made no such finding. In its Decision Record the Tribunal made two references to January 2016, and both of these references merely involved a summary of claims made by the Applicant as expressed in the Written Submission.
At [21] it stated as follows:
[21]… The Tribunal acknowledges the applicant's evidence that he did attempt to obtain a COE in January 2016, however same was not obtained.
Then at [27] of its Decision Record the Tribunal stated:
[27]Next, it was claimed the applicant had sought a COE from the Kings Own Institute on 16 January 2016, after he left his last education provider…
These paragraphs of the Decision Record correctly recapitulate the claims made on behalf of the Applicant in the Written Submission and in my view do not constitute any actua.l finding of fact by the Tribunal itself on these issues. It is true of course that the actual documents forwarded under cover of the Written Submission do appear to indicate that an attempt to enrol at the Kings Own Institute was made in January 2015. However, in my view the Tribunal cannot be blamed for taking at face value the Written Submission as the description of the Applicant’s claims in this regard and no jurisdictional error was thereby committed. There is no evidence before me that the disconformity between the documentary evidence from the Kings Own Institute of January and March 2015 and the Written Submission were brought to the attention of the Tribunal at the hearing before it.
By consent orders of 17 May 2017 the onus was on the Applicant to tender any transcript of the Tribunal hearing if reliance was to be placed on anything which transpired there. Such transcript was not tendered. In the circumstances I would infer that neither the Applicant himself nor the migration agent from EP Migration Australia did at the Tribunal hearing correct the attribution of events relating to the Kings Own Institute as having occurred in early 2016, rather than in early 2015, because otherwise the Tribunal would have noted any such correction in its Decision Record.
Further, even if the Tribunal did make an error of fact by finding that the events in relation to the Kings Own Institute occurred in early 2016 rather than early 2015, such error of fact does not mean that it committed jurisdictional error. Generally, it is not jurisdictional error for the Tribunal to make a wrong finding of fact: MZWBW v Minister for Immigration [2005] FCAFC 94 at [28] per Black CJ, Sundberg and Bennett JJ. As North and Lander JJ likewise said in Minister of Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 309 [28]:
[28]… an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the [Tribunal] has not considered the applicant’s claim…
Further intertwined with this principle is the fact that the issues in connection with the Kings Own Institute were not material which could be regarded as so “fundamental”, “important” or “overwhelming” such that a failure to have regard to them by the Tribunal would constitute jurisdictional error: see Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [60] per Tracey J. They were not of pivotal or fundamental importance to the Applicant’s claims.
Rather, the Tribunal was legally entitled to have regard to the fundamental failure of the Applicant to have meaningfully enrolled in any course of study for a period of 2 years and 5 months from 25 November 2014 to the Tribunal hearing date of 15 March 2017 and the fact that the Applicant had conceded that he could not afford to study in Australia from 25 November 2014. An acceptance by the Applicant of an offer of enrolment on 21 January 2015 with the Kings Own Institute, which was then withdrawn by the Applicant on 16 March 2015, could not be reasonably said to have been of pivotal or fundamental importance in the circumstances. Whether the enrolment or withdrawal of enrolment occurred in early 2015 or early 2016 was not of central importance to the reasoning of the Tribunal or to its conclusion expressed at [21] of its Decision Record that it was not satisfied the Applicant had made any serious attempt to study beyond November 2014. In other words, Ground 1 in this respect seeks to inflate the importance of the issues relating to the Kings Own Institute, both in the general circumstances of the Applicant’s position and in terms of the findings of the Tribunal and jurisdictional error is not made out in this regard.
Ground 1(c) refers to and relies upon an email of 16 March 2015 from the Kings Own Institute which stated as follows:
This email is to inform you that your student, Mr Satish Karki, has requested withdrawal from his studies at KOI on 16 March 2015. The reason being he could not get the Release Letter from Curtin University and now seeking refund.
However, the Applicant’s own evidence at the Tribunal hearing indicated this statement was not correct, as recorded at [28] of the Decision Record:
[28] When discussed at hearing, the applicant said that his initial education service provider (Curtin University) refused to cancel his COE and forced him to continue studying there. When it was put to him the Tribunal did not accept this was plausible, he eventually conceded that Curtin University told him he would be required to continue to study there but that if he did not, they would have to advise the Department of Immigration about his change of circumstances.
(emphasis added)
In other words, the position seems to have been conceded by the Applicant that all that Curtin University substantively told him at the relevant time was that if he did not continue to study there that the Department of the Minister would have to be so advised. Nothing in relation to this issue establishes jurisdictional error.
In my view Ground 1 fails to establish that the Tribunal committed jurisdictional error and is not made out.
Ground 2 asserts that the decision of the Tribunal was unreasonable and relies on the same particulars supporting Ground 1. Ground 2 also fails. In my view the decision of the Tribunal appears to constitute a rational and reasonable consideration of the relevant issues and to the claims for compassion made by the Applicant. The Tribunal appears to have given proper, genuine and realistic consideration to the evidence and it has performed its statutory task of undertaking a review by reference to the available evidence and the claims made by the Applicant before it: see BIL17 v Minister for Immigration & Border Protection [2019] FCAFC 6 at [59] and [61] per Griffiths, Gleeson and Colvin JJ.
I further note that even if, contrary to my view, the Tribunal did make a factual error in relation to the timing of the offer of enrolment of the Kings Own Institute, that would not establish legal unreasonableness. As Sackville J stated in Todea v Minister for Immigration & Ethnic Affairs (1994) 35 ALD 735 at 747 – 748:
Mistakes in the fact-finding process (if there were a mistake in the present case) are not the equivalent of unreasonableness in the so-called Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) in the decision-making process.
In my view, the Tribunal’s decision was not unreasonable or erroneous in point of law such as to constitute jurisdictional error.
Ground 2 is not made out.
Ground 3
This Ground attacks the finding of the Tribunal in its Decision Record at [30]. The Tribunal was reviewing the decision of the Delegate, where it had been stated relevantly by the Delegate as follows:
- Whether Australia has international obligations that would or may be breached as a result of cancelling SATISH KARKI's visa.
The circumstances of this case are not such that would engage Australia's international obligations, and the cancellation of the visa would not lead to a beach of Australia's international obligations. I am therefore unable to place any weight on this consideration in the clients favour.
The Applicant never identified any international obligation to which the Tribunal ought to have had regard and which might be breached if the Student visa was cancelled. No such claim was made in the Written Submission. In my view, the Tribunal’s satisfaction that Australia’s international obligations would not be breached if the Student visa was cancelled was simply part of its consideration of the various factors which might be relevant to the exercise of the Minister’s unfettered discretion to cancel the Student visa.
It is clear law that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into Australian municipal law: Tajjour v New South Wales (2014) 254 CLR 508 at 567 [96] per Hayne J.
Ground 3 does not particularise any specific international obligations to which it is said the Tribunal should have had regard and at the hearing Mr Young was not able to meaningfully point to any international treaty obligations which had been incorporated into Australian domestic law to which the Tribunal should have had regard.
Accordingly, the following statement from the judgment of Dowsett, Pagone and Burley JJ in Kaur v Minister for Immigration & Border Protection [2017] FCAFC 184 at [22] is applicable:
[22]First, the incorrect premise underlying the appellants’ arguments is that the Tribunal was under an obligation to apply the Convention. In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error; Snedden v Minister for Justice; (2014) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101]; Le v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; AB v Minister for Immigration & Citizenship [2007] FCA 910; (2007) 96 ALD 53 at [22]…….
I note that at [15] of its Decision Record the Tribunal recorded that in exercising its discretion in cancelling the Student visa it had considered government policy guidelines contained in PAM3. At pages 129 – 130 of PAM3 there is reference to Australia’s international obligations in terms of the Convention on the Rights of the Child and family unity. However, there was no child of the marriage between the Applicant and his wife to take into account. At [29] of its Decision Record the Tribunal considered that there might be a temporary separation between the Applicant and his wife and so consideration was given by the Tribunal to the issue of family unity, but in the result the possibility of temporary separation was not sufficient to persuade the Tribunal into overturning the decision of the Delegate to cancel the Student visa.
In my view Ground 3 also fails to establish jurisdictional error.
Conclusion
All three Grounds fail to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application filed in this Court is to be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 18 February 2019
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