Karki v Minister for Immigration & Border Protection

[2015] FCCA 1940

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARKI v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1940

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal’s exercise of its discretionary power to cancel a student visa on the ground that the applicant breached Condition 8202 was legally unreasonable – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 474
Migration Regulations 1994 (Cth), Sch 2, Sch 8

Cases cited:
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant: ANIL KARKI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 332 of 2014

Judgment of: Judge Emmett

Hearing date: 11 March 2015

Date of Last Submission: 11 March 2015

Delivered at: Sydney

Delivered on: 20 July 2015

REPRESENTATION

Counsel for the Applicant: Mr. J.R. Young

Solicitors for the Applicant: Shamser Thapa & Associates

Solicitor for the Respondents: Ms Natasha Blake
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 332 of 2014

ANIL KARKI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal, dated 14 January 2014, affirming a decision of a delegate of the first respondent to cancel the applicant’s student visa (“the MRT”).

2. The first respondent’s submissions accurately summarise the background of the applicant’s claims, the relevant legislation and the MRT’s decision, as follows:

   “Background

   3. The applicant was granted the Student Visa on 10 August 2011.  The applicant ceased to be enrolled in a registered course on 28 June 2012. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) on 31 July 2013. The applicant was granted an extension of time to respond, which he subsequently did through his migration agent.

   4. On 19 August 2013, the Minister's delegate decided to cancel the Student Visa. The delegate found that the applicant had breached condition 8202 and that the breach was not due to exceptional circumstances beyond the control of the applicant such that the visa should not be cancelled.

   5.  On 23 August 2013, the applicant applied to the Tribunal for review of the delegate's decision. The Tribunal affirmed the delegate's decision on 14 January 2014.

   6.  On 14 February 2014, the applicant commenced the current proceedings.

   Relevant law

   7. Subsection 116(1) of the Migration Act 1958 (Cth) (Act) provides the Minister with power to cancel a visa upon satisfaction of certain matters. That power is discretionary. Relevantly, subsection 116(1)(b) provides that the Minister may cancel a visa if he is satisfied that its holder has not complied with a condition of the visa.

   8.  The applicant's Student Visa was subject to condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations). Condition 8202(2) required the applicant to be enrolled in a registered course at all relevant times throughout the duration of the visa: Liu v MIMIA [2003] FCA 1170.  

   9.  Further, condition 8516 required the applicant to continue to be a person who would satisfy the criteria for the grant of the visa, including the requirements relating to financial capacity in Part 573 of Schedule 2.

   10. The applicant did not dispute that he was in breach of the requirements of his visa. The issue in question was accordingly whether the Minister should exercise his discretion to cancel the visa.

   11. The Regulations and the Act do not specify matters which the Minister must take into account when exercising this discretion.

   Tribunal's decision

   12. The submissions provided on behalf of the applicant to the Tribunal and to the Minister's delegate raised the following matters:

   (a)

   (i) The applicant commenced studying a Bachelor of Accounting at Holmes Institute (education provider) in July 2011.

   (ii) He was unable to pay his fees for the second semester of 2012. The applicant submitted that this was because his family in Nepal could not supply him with funds as they had to spend money on treatments for an illness suffered by his mother. The applicant provided evidence that she was treated for this in December 2012.

   (iii) The education provider allowed him to commence the second semester of 2012 with some fees outstanding on the condition that the remainder of the fees be paid by June 2012. The applicant did not do so, and his enrolment was cancelled.

   (iv) The applicant suffered mental health problems as a consequence of his mother's illness. He did not seek medical assistance for these problems.

   (b) The Tribunal did not accept that the lack of funds was a circumstance beyond the applicant's control, as it was his responsibility to ensure possession of the necessary funds. Specifically, the Tribunal put to the applicant that it may not accept that a lack of funds due to his mother's treatment outweighed the grounds for cancelling the visa, “because non-enrolment due to lack of funds is not justifiable for an overseas full fee-paying student.” The Tribunal also put to the applicant that, in any event, the claimed reason for the lack of funds was an expenditure for his mother's illness that arose 6 months after the fees were due. 

   (c) The Tribunal did not accept, in the absence of any documentary or medical evidence, that the applicant's mental health was adversely affected by his mother's illness as claimed. The Tribunal noted that the applicant could have prevented his non-compliance with condition 8202 by taking reasonable steps such as obtaining a deferment of study from his education provider and/or seeking guidance from the Department.

   (d) For these reasons, the Tribunal found that there was no circumstance in this case that outweighed the grounds for cancelling the Student Visa.”

The proceeding before this Court

1. The applicant was represented before this Court by Mr J.R. Young, of counsel.

2. Mr Young confirmed that he relied on the grounds contained in the applicant’s Amended Application filed by consent at the commencement of the hearing. The grounds of the Amended Application are as follows:

   “1. The decision of the second respondent is affected by jurisdictional error in that its exercise for a discretionary power was legally unreasonable.

   Particulars

   (a) The second respondent failed to consider the inferences arising from the oral evidence provided by the applicant that the applicant’s mother required medical treatment prior to December 2012, and whether such inferences impacted upon the assessment of whether the applicant’s non-payment of fees causing non-enrolment was a circumstance beyond the applicant’s control or sufficient to warrant the exercise of the discretionary power;

   (b) The second respondent relied on the applicant’s failure to attend Nepal to see his mother and deferment of his studies to reject the applicant’s claims notwithstanding that such conduct would be contrary to the applicant’s stated intention to enter and stay in Australia for the purpose of study, and, conduct that would affect the assessment of whether the applicant’s stated intention was genuine; and

   (c) In the premises, the outcome of the second respondent’s exercise of power was unreasonable.

   (d) The Second Respondent treated as separate breaches exhibiting adverse behaviour to the First Respondent that the Applicant had breached both Condition 8202 and condition 8516 when the finding in respect of condition 8516 was irrational, unreasonable and/or capricious.

   2. The Second Respondent failed to deal with or make relevant findings upon the Applicant’s claim that his educational institution had failed to adopt and apply standard 13.4 National Code of Practice.

   3. Further or in the alternative to 3 above [sic], the findings of the Second Respondent at CB 101 at [27] were unreasonable.

   4. Further or in the alternative, the Second Respondent made an unreasonable finding at [17] at CB 99 that the Applicant had breached condition 8516 in a manner which adversely affected consideration of “his behaviour towards the Department.”

3. Ground 1 asserts that the MRT’s exercise of its discretion was legally unreasonable. For the reasons below, none of the particulars in support of that contention are made out.

4. The applicant held a student visa subject to Condition 8202. Condition 8202 had the following relevant requirements:

   a)that the applicant be enrolled in a relevant registered course;

   b)that the applicant has not been certified by his education provider as not achieving satisfactory course progress; and

   c)the applicant has not been certified by his education provider as not achieving satisfactory course attendance.

5. The applicant concedes that he failed to comply with Condition 8202, in that he was not enrolled in a registered course, as he ceased to be enrolled in a registered course on 28 June 2012. Pursuant to s.116(1) of the Act, in such circumstances, the applicant’s visa may be cancelled.

6. The MRT also found that the applicant had also breached Condition 8516 of his student visa by failing to remain enrolled in a registered course due to the lack of funds.

7. Ultimately, the MRT concluded that the applicant’s visa should be cancelled because, having regard to all the circumstances of the case, there was no circumstance that outweighed the grounds for cancelling the visa.

8. The applicant contended that the exercise of the MRT’s discretion to cancel his visa was exercised in a way that was plainly unjust.

9. In relation to his failure to remain enrolled due to lack of funds, the applicant stated that he could not pay the course fees because he did not have the funds and this was because his family in Nepal could not supply him with the funds as they had had to spend a lot of money treating the applicant’s mother’s illness. The applicant provided medical evidence that showed that his mother had medical treatment in December 2012.

10. The applicant gave further evidence to the MRT that his mother’s illness adversely affected his mental health. However, the MRT noted that the applicant did not seek any medical or psychological help; nor did he go to Nepal to see his mother. The MRT also noted that the applicant did not apply for deferment of his studies on medical grounds. Neither did the applicant contact the Department of Immigration and Border Protection (“the Department”) to discuss his options, when he knew that he risked the cancellation of his visa for non-payment of fees.

11. The MRT noted that it put to the applicant at the hearing that it may not accept his reasons for not remaining enrolled, being lack of funds because of the expense of his mother’s illness, because non-enrolment due to lack of funds is not justifiable for overseas, full fee-paying students. The MRT found that the need for the mother’s medical treatment expenditure arose in December 2012 and this should not have affected the applicant’s ability to pay fees six months earlier, in June 2012. The applicant had ceased to be enrolled in a registered course on 28 June 2012.

12. The MRT also noted that it put to the applicant that it may not accept his mental health was adversely affected by news of his mother’s illness because the applicant had failed to provide any further independent supporting evidence, such as evidence of a doctor or psychologist, and because the applicant had continued to be able to work during this period.

13. The MRT did not accept that the lack of funds, as a reason for non-payment of fees, resulting in the non-enrolment, was a circumstance beyond the applicant’s control because he was an overseas, full fee-paying student and it was his obligation to ensure that he had the necessary funds.

14. Further, the MRT found that the applicant’s explanation that he had no funds because of the expense of his mother’s illness, arose six months after the time his fees were due.

15. The MRT did not accept that the applicant’s mental health was adversely affected by virtue of his mother’s illness because of lack of independent supporting evidence and because he was able to work. The MRT found that this ground did not outweigh the grounds for cancellation of the visa because the predicament that the applicant was in was of his own making. The MRT found that the applicant failed to take any reasonable steps, such as obtaining a deferment of study and/or seeking guidance from the Department, which “could have” seen him remain enrolled in a registered course.

16. The MRT noted that the applicant had not been enrolled for 12 months from the middle of 2012 until August 2013, when he recommenced study.

17. The MRT also noted Standard 13.4 of the National Code of Practice, which stated as follows:

    “The registered provider must inform the student of its intention to suspend or cancel the student’s enrolment where the suspension or cancellation is not initiated by the student and notify the student that he or she has 20 working days to access the registered provider’s internal complaints and appeals process as per Standard 8.1.”

18. The MRT did not accept that the applicant’s education provider had failed to follow that standard because the applicant’s evidence at the hearing before the MRT was that he understood the education provider’s advice that if he did not pay the outstanding fees before the commencement of the second semester, in the middle of 2012, his enrolment would be cancelled.

19. Counsel for the applicant, Mr Young, submitted that the applicant’s enrolment was cancelled by the education provider because the applicant could not pay the fees and to treat that cancellation of enrolment and the applicant’s financial difficulties leading to his failure to be enrolled as separate breaches that effectively exacerbated the applicant’s conduct, was unreasonable. Counsel for the applicant submitted that the applicant was entitled to be treated as a person who had committed a single breach and for the MRT to find that there was a further breach of Condition 8516 was unreasonable.

20. However, Condition 8516 required the applicant to continue to be a person who would satisfy the requirements of the visa, including the requirements relating to financial capacity in Part 573 of Schedule 2 to the Regulations. The MRT did no more than note that there was evidence that this Condition may have been breached where the applicant failed to remain enrolled due to lack of funds. The MRT noted that Condition 8516 required the applicant to maintain eligibility for the visa, which included maintaining the financial capacity to remain enrolled. That was a correct statement of the effect of the relevant legislation.

21. I do not accept the applicant’s contention at Ground 1(d) that the reference by the MRT to the applicant’s failure to meet Condition 8516 was unreasonable, or affected the exercise of the MRT’s discretion in circumstances where the applicant conceded that he was in breach of Condition 8202.

22. In relation to Ground 1(a), the applicant contended that the MRT failed to consider inferences available to it that the applicant’s mother required medical treatment prior to December 2012; and the impact of those inferences on the assessment of the applicant’s ability to pay the required fees as a circumstance beyond the applicant’s control sufficient to warrant the exercise of the discretionary power.

23. However, a fair reading of the MRT’s decision record makes clear that the MRT understood the applicant’s evidence relating to his assertion that he could not pay the fees because he did not have the funds as they were necessary to treat his mother’s illness. The MRT noted that it put to the applicant that the need for the treatment expenditure arose in December 2012, yet the applicant was required to pay the fees some 6 months earlier. In the circumstances, there was an opportunity for the applicant to provide evidence in relation to his mother’s medical treatment. In the absence of such evidence, the MRT was not obliged to draw inferences about possible medical expenses that the family may have incurred in relation to the mother’s illness in about June 2012, or between June 2012 and December 2012.

24. The MRT was also entitled to take into account the failure of the applicant to take reasonable steps to obtain a deferment of his studies, or to seek guidance from the Department, as well as his failure to return to see his mother and the lack of supporting evidence for his assertion that his mental health was affected by his mother’s illness.

25. The MRT was entitled to have regard to all the evidence before it in concluding that the lack of funds was a reason for the applicant’s non-payment of fees; and that the applicant’s non-enrolment was not a circumstance beyond his control because, as an overseas full fee-paying student, it was his responsibility to ensure possession of the necessary funds. At paragraph 21 of the MRT decision record, the MRT stated as follows:

    “21. The applicant gave oral evidence that his mother’s illness adversely affected his mental health. However, he did not seek any medical or psychological help. He did not go to Nepal to see his mother. He did not apply for deferment of his studies from Holmes Institute on medical grounds. He did not contact the Department of Immigration to discuss his options when he knew that he risked the cancellation of his enrolment for non-payment of fees.”

26. In the circumstances, the findings made by the MRT were open to it on the evidence and material before it and for the reasons it gave. The exercise of the MRT’s discretionary power was not legally unreasonable.

27. Grounds 1(b) and 1(c) are no more than a disagreement with those findings.

28. Accordingly, Ground 1 is not made out.

29. In Ground 2, the applicant asserts that the MRT failed to make relevant findings that the applicant’s education provider had failed to adopt and apply Standard 13.4 of the National Code of Practice, or alternatively in Ground 3, that the MRT’s findings on this were unreasonable.

30. However, the MRT noted that the applicant’s representative argued that the applicant’s education provider had failed to follow Standard 13.4 of the National Code of Practice and referred to it specifically as follows:

    “27. The Tribunal notes that the applicant's representative argued that Holmes Institute failed to follow Standard 13.4 of the National Code which states “The registered provider must inform the student of its intention to suspend or cancel the student's enrolment where the suspension or cancellation is not initiated by the student and notify the student that he or she has 20 working days to access the registered provider's internal complaints and appeals process as per Standard 8.1.” The Tribunal does not accept this argument because the applicant's evidence at the hearing was that he understood Holmes Institute’s advice that if he did not pay the remaining fees before the commencement of the second semester in the middle of 2012, his enrolment will be cancelled.”

31. I accept the submission of the first respondent that the applicant’s representative’s assertion to the MRT that the applicant’s education provider failed to follow Standard 13.4 of the National Code of Practice, should be understood in the context of the fact that the applicant had made similar submissions to the delegate of the first respondent (“the Delegate”). The Delegate had rejected the submission on the ground that the records of the Department of Employment, Education & Workplace Relations (“DEEWR”) indicated that the applicant was notified by the education provider. However, the applicant chose not to access the appeals process within the requisite period. As a result, the Delegate gave limited weight to the applicant’s submission.

1. The applicant had understood his visa would be cancelled if he was unable to pay the fees due. The applicant did not provide any evidence to this Court to dispute the MRT’s version of the applicant’s evidence at the hearing.

2. In the circumstances, in light of that evidence indicating it would not have made any difference whether or not the applicant had been notified in accordance with Standard 13.4 of the National Code of Practice, it was open to the MRT to find the applicant’s argument insufficient to warrant the favourable exercise of its discretion.

3. Moreover, given that there are no matters that the MRT is bound to take into consideration in exercising its discretion under s.116(2) of the Act, it was not necessary for the MRT to make a conclusive finding on whether or not the applicant’s education provider complied with Standard 13.4 of the National Code of Practice (see: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39).

4. To the extent that the applicant submitted that, had the applicant’s educational provider complied with the National Code of Practice, there would have been a reasonable chance of a different outcome. I do not accept that submission. On the applicant’s own evidence, he was unable to pay the fees because he did not have the funds. Further, the applicant’s submission overlooked the evidence contained in the DEEWR records that Standard 13.4 of the National Code of Practice had in fact been complied with, as referred to by the Delegate.

5. Accordingly, Grounds 2 and 3 are not made out.

6. Ground 4 asserts that the MRT unreasonably found that the applicant had breached Condition 8516 in a manner that adversely affected consideration of his behaviour towards the Department. Such an assertion appears to be based on paragraph 17 of the MRT’s decision record, which stated as follows:

   “17. There is evidence before the Tribunal that the applicant breached another of his student visa conditions being condition 8516 by failing to remain enrolled due to lack of funds. This condition required him to maintain eligibility for the visa which he breached by not having the financial capacity to remain enrolled.”

7. In addition to my reasons at paragraph 22 above in relation to Condition 8516, plainly there is some overlap between the circumstances in which the applicant failed to meet Conditions 8202 and 8516. However, the MRT considered in some detail the reasons why the applicant was unable to continue to meet the financial requirements of his visa and the reasons why he had failed to maintain enrolment in breach of Condition 8202, thereby placing him also in breach of Condition 8516.

8. The applicant was in breach of both Condition 8202 and Condition 8516 of his visa. I do not accept the applicant’s submission that the MRT’s finding at paragraph 17 was treated by the MRT as a further matter adverse to the applicant. The MRT was doing no more than noting that, if the applicant had failed to remain enrolled due to lack of funds, he would also be in breach of Condition 8516 of his visa.

9. Accordingly, Ground 4 is not made out.

10. For the sake of completeness, the MRT’s decision record noted that there are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of its discretion to cancel the applicant’s visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the MRT identified various matters to which it did have regard, including the following matters:

    “The guidelines include factors such as the purpose of the applicant's travel to Australia; the degree of hardship that may be caused by the cancellation to the applicant and other family members; the applicant's past and present behaviour towards the Department; whether the cancellation would lead to removal in breach of Australia's obligations under relevant international agreements, including Australia's non-refoulement obligations; the reason for and extent of the breach; circumstances that were beyond the applicant's control that caused the breach or the ground for cancellation of the visa; and any other relevant matters raised by the applicant.”

11. The MRT made various findings in relation to those matters, all of which were open to it on the evidence and material before it and for the reasons it gave.

12. The applicant does not identify any further matter that the MRT was obliged to consider in the exercise of its discretion beyond those identified in the grounds of his Amended Application.

Conclusion

1. A fair reading of the MRT’s decision record makes clear that the MRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and had regard to all material provided in support. The MRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.

2. The MRT then made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings it made and to which it applied the correct law.

3. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  20 July 2015