Karki v Minister for Immigration

[2017] FCCA 2235

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARKI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2235

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for review of a decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa – Tribunal complied with its statutory obligations in the conduct of the review – Tribunal complied with the requirements of procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 476

Migration Regulations 1994, condition 8202 of Schedule 8

Applicant: RANJAN KARKI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 956 of 2017

Judgment of: Judge Street

Hearing date: 13 September 2017

Date of Last Submission: 13 September 2017

Delivered at: Sydney

Delivered on: 13 September 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore Lawyers

ORDERS

1. Leave to the first respondent to rely upon the photocopy of the affidavit of Kirby Dunlop of 11 September 2017 and dispense with need for the electronic filing of the same.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 956 of 2017

RANJAN KARKI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 February 2017 affirming a decision of the delegate to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa.

2. The applicant is a citizen of Nepal and on 31 May 2016, a delegate made a decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa under s.116(1)(b) of the Act. The delegate’s decision was provided with the application for review to the Tribunal.

3. The delegate cancelled the visa on the basis of the applicant was in breach of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (“the Regulations”). The delegate was satisfied the ground for cancellation of the visa under s.116(1)(b) of the Act for a breach of condition 8202 of the Regulations was made out.

4. The delegate then turned to the issue of whether the visa should be cancelled and took into account the applicant’s submissions but found that the applicant had remained in Australia for an extended period of time without being enrolled or studying in any registered course of study and had not demonstrated a pathway to an educational qualification. 

5. The delegate identified the hardship that may be caused to the applicant and his family by reason of cancellation. The delegate also noted the applicant had been working to cover his living costs in Australia and earn his tuition fees and to support his family. Due to the applicant’s family’s financial situation, he had requested to pay his tuition fees by monthly instalments however, the university declined.  The delegate did not accept that the applicant’s circumstances lead to the applicant stopping his studies and being in breach of the condition and therefore and did not accept that the grounds for cancellation were due to circumstances entirely beyond his control. The delegate found that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. 

The Tribunal’s decision

1. The applicant applied for review on 9 June 2016. By letter dated 6 January 2017, the applicant was invited to attend a hearing on 20 February 2017. The applicant appeared on that date to give evidence and present arguments. The Tribunal identified the applicant’s background in relation to the review application and the decision of the delegate. 

2. The Tribunal identified that the issue in the present case was whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Regulations and if so, whether the visa may be cancelled. The Tribunal identified that the visa was cancelled by the delegate on the basis that the applicant was not enrolled in a registered course.

3. The Tribunal made reference to the notice of intention to consider cancellation dated 2 May 2016 in which the applicant was advised that evidence on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered course of study since 30 December 2014.

4. The Tribunal noted that the applicant’s response did not dispute that the grounds for cancellation existed. The Tribunal, accordingly, found that the applicant was not enrolled in a registered course and that the applicant had not complied with condition 8202(2) of Schedule 8 to the Regulations.

5. The Tribunal then turned to the consideration of the discretion as to whether the visa should be cancelled. The Tribunal noted that the applicant conceded that he had never even commenced a degree course or higher, being the level of course anticipated by the Higher Education Student visa he was granted on 8 August 2013. The Tribunal found that the circumstances giving rise to the cancellation of the applicant’s visa include that he was not enrolled in a registered course of study since 30 December 2014.  

6. The Tribunal found that at the time of the delegate’s decision, it had been over two years and nine months since the applicant had been granted the Higher Education Student visa and had not maintained the study plan he outlined when he had applied for the visa. The Tribunal found the applicant had only completed Vocational Education and Training Sector registered courses, though he held a Higher Education Student visa. 

7. The Tribunal made reference to the applicant’s evidence concerning an earthquake in Nepal and the financial problems that the applicant then faced. The Tribunal referred to the applicant saying that he was aware that he had to continue to study to meet his visa conditions but he was shattered emotionally and mentally and decided that if his family cannot afford to pay his fees he would find a job and earn the tuition fees. The Tribunal referred to the applicant’s evidence that he decided to take a semester break and earn money. The Tribunal made reference to the applicant seeking to earn his tuition fees and support his family. The Tribunal accepted that the applicant’s family were impacted by the earthquake. The Tribunal accepted that the applicant remained in Australia in order to work and assist his family.

8. The Tribunal, however, found that the applicant intentionally breached his visa conditions for many months. The Tribunal noted the applicant said that his family would be badly affected if his visa was cancelled.  It was in these circumstances the Tribunal concluded that the visa should be cancelled and affirmed the decision under review. 

Before this Court

1. On 11 May 2017, a Registrar of the Court fixed the matter for hearing and provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

The grounds

1. The grounds in the application as follows:

   1. Department of Immigration didn’t consider the hardship I faced due to the massive earthquake.

   2. So for I have completed Cert IV in marketing and Diploma of Business and Department of Immigration did not let me to continue my study.

   3. AAT did not quashed the decision taken by DIBP even though it has right to do so.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary this meant that the Court was considering whether the Tribunal’s decision was unlawful or unfair. 

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair the decision would be set aside and sent back for further hearing.  The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed with costs.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Adjournment application raised from the bar table

1. From the bar table, the applicant identified that he was still looking for a solicitor and could not present his case and wanted an adjournment.  The applicant confirmed that he had given no earlier notice of an adjournment to the first respondent. The Court enquired of the applicant what would be the utility of providing the applicant with a further adjournment and the applicant provided no satisfactory response. The Court raised with the applicant that he had had since 29 March 2017 to obtain legal representation if he was able to do so. The adjournment was opposed by the first respondent.

2. The Court is not satisfied that an adjournment would give rise to the applicant being able to obtain legal representation. Further, the Court is not satisfied that there would be any utility in the granting of adjournment. The Court is satisfied the applicant has had a real and proper opportunity to obtain representation if he is able to do so. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. It is for these reasons that the adjournment was refused. 

The Applicant’s submissions from the bar table

1. From the bar table, the applicant explained that his problems with study had been due to financial circumstances. It is apparent from the Tribunal’s reasons that the Tribunal took into account the applicant’s explanation in relation to the tragedy in Nepal. That tragedy, however, did not in any way give rise to the applicant being in breach of the relevant condition. The finding by the Tribunal that the applicant had intentionally breached his visa conditions for many months, was open on the material before the Tribunal and cannot be said to be irrational, illogical or unreasonable. Nothing said by the applicant from the bar table did other than invite the Court to engage in an impermissible merits review. This Court does not have power to revisit the merits or to make fresh findings of fact nor, can the Court grant relief on compassionate grounds. 

Consideration

1. In relation to ground 1, no relief can be granted in respect of any error by the delegate as this Court does not have jurisdiction to do so.  Insofar as ground 1 is referring to the decision of the Tribunal, it is apparent that the Tribunal expressly referred to the earthquake in Nepal and took it into account in its reasons. Ground 1 does not identify any jurisdictional error. 

2. In relation to ground 2, this in substance reflects a disagreement with the adverse findings by the Tribunal and is an invitation for this Court to engage in an impermissible merits review. No jurisdictional error is made out by ground 2. 

3. Ground 3, reflects the disagreement with the adverse findings by the Tribunal and does not identify any jurisdictional error. On the face of the material before the Court, I am satisfied that the Tribunal complied with its statutory obligations in the conduct of the review. Further, on the face of the material before the Court, I am satisfied that the Tribunal complied with its obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out by the application. 

4. Accordingly, the application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 October 2017