KAUR v Minister for Immigration
[2018] FCCA 2680
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2680 |
| Catchwords: MIGRATION – Cancellation of Student visa – first applicant’s enrolment in course of study cancelled for non-commencement of that course – first applicant notified of cancellation seeks review of decision by Tribunal – first applicant confirms that enrolment in course of study was cancelled for non-commencement – application for judicial review – no error demonstrated – show cause hearing – no arguable case shown – no discretionary reason indicated why matter should not be dismissed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 Migration Act 1958 (Cth), ss.116, 140, 474, 476. |
| Cases cited: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 |
| First Applicant: | RANDEEP KAUR |
| Second Applicant: | GURPREET SINGH UPPAL |
| Third Applicant: | HARJASHANPREET SINGH UPPAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1062 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 18 September 2018 |
| Date of Last Submission: | 18 September 2018 |
| Delivered at: | Melbourne |
| Orders pronounced: | 18 September 2018 |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| The First Applicant: | In person |
| Solicitor for the First Respondent: | Mr van der Westhuizen |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
Pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001, the application filed on 23 May 2017 be dismissed.
The first applicant pay the costs of the first respondent fixed at $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1062 of 2017
| RANDEEP KAUR |
First Applicant
| GURPREET SINGH UPPAL |
Second Applicant
| HARJASHANPREET SINGH UPPAL |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 23 May 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 April 2017 affirming a decision of a delegate of the first respondent (Minister) to cancel the first applicant’s Subclass 573 Higher Education Sector visa under s 116(1)(b) of the Migration Act 1958 (Cth) (Act).
Subject to certain express constraints, s 116(1)(b) confers a discretionary power on the Minister to cancel a visa where the holder of the visa has not complied with a condition of their visa.
Background
The applicants are a family unit. The first applicant, a 31 year old Indian National, arrived in Australia in 2008 as the holder of a student visa. The second applicant is the first applicant’s spouse. The third applicant is their child.
On 20 January 2015, the applicant was granted a subclass 573 visa. Her enrolment in a course of study was cancelled on 21 April 2015 by reason of her non-enrolment in that course.
On 3 August 2016, the Department of Immigration and Border Protection (Department) wrote to the first applicant giving notice of intention to consider cancellation of her Student visa (Notice). By the Notice, the Delegate referred to condition 8202 of the first applicant’s visa and which relevantly imposed a condition that required her to be enrolled in a registered course: see condition 8202(2)(a).
The first applicant was afforded an opportunity to comment on the stated ground for cancellation as identified in the Notice and to give reasons why the visa should not be cancelled.
By email transmitted on 10 August 2018, the first applicant requested an extension of two weeks to provide information and evidence in response to the Notice. The Department granted the first applicant an extension.
On 17 August 2016, the first applicant’s migration agent responded to the Notice setting out the reasons why the first applicant considered her visa should not be cancelled. Attached to that email was an Overseas Student Confirmation-of-Enrolment which stated that the first applicant had enrolled in a one year advanced diploma of leadership and management, commencing in August 2016.
On 26 August 2016, a delegate of the Minister cancelled the first applicant’s Student visa on the ground that the first applicant had not been enrolled in a registered course of study since 21 April 2015 and was for that reason in breach of condition 8202. Upon cancellation of her visa and by operation of s 140(1), the visas held by her husband and child, the second and third applicants, were also cancelled.
On 5 September 2016, the applicants applied to the Tribunal for review of the delegate’s decision.
On 3 February 2017, the applicants were invited to a hearing before the Tribunal on 2 March 2017 to give evidence and present arguments relating to the issues arising in their case. The first applicant attended the hearing and was assisted by a Punjabi interpreter. The hearing commenced at 11.15am and concluded at 1.41pm.
On 19 April 2017, the Tribunal affirmed the delegate’s decision to cancel the first applicant’s Student visa, providing a statement of its reasons for doing so (Reasons).
The Tribunal found on the evidence before it that the applicant was not enrolled in a registered course and accordingly was in breach of condition 8202(2) of the conditions attaching to her visa: Reasons, [13].
Upon being so satisfied, the discretion conferred by s 116 of the Act to cancel the visa was engaged.
The Tribunal considered in detail whether it should exercise its discretion to cancel the visa: Reasons, [14]-[55]. The Tribunal identified a series of matters which were considered relevant to the exercise of its discretion including: (a) the purpose of the visa holder’s travel to and stay in Australia; (b) the circumstances in which the ground for cancellation arose; (c) the extent of the first applicant’s compliance with visa conditions; (d) the degree of hardship that may be caused to the visa holder and any family members; (e) the first applicant’s behaviour towards the department; (f) whether there were any mandatory legal consequences flowing from cancellation; (g) possible breach of international obligations; (h) whether there are persons in Australia whose visas would or may be cancelled under s 140; and (i) any other relevant matters. The Reasons identified where the Tribunal decided that it should attach weight, some weight or no weight to the considerations that it addressed. In my view, it was open to the Tribunal to do so.
Having considered the circumstances as a whole, the Tribunal exercised its discretion to cancel the first applicant’s visa and affirmed the delegate’s decision to do so: Reasons, [54]-[55].
The Tribunal held that it had no jurisdiction with respect to the second and third applicants: Reasons, [56]. It did so because their visas were cancelled by operation of s 140(1)(b) of the Act; that is to say, as the delegate had made no decision respecting those parties, the Tribunal had no jurisdiction to review the cancellation of those visas.
Procedural History
On 23 May 2017, the applicants filed an application for judicial review of the Tribunal’s decision. The applicants sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the decision of the Tribunal made on 19 April 2017.
The first applicant swore an affidavit in which she deposed that the Tribunal made a jurisdictional error and attached a copy of the Tribunal’s decision, but which adduced no further evidence in support of the application for judicial review. She deposed that:
I am not satisfied with the decision of Immigration Department and [Tribunal] as they made the jurisdiction (sic) error during the processing of my case.
By a Response filed on 14 June 2017, the Minister opposed the orders sought by the application on the basis that no arguable case for the relief sought is raised.
On 6 December 2017, orders were made listing the matter for a Show Cause Hearing pursuant to r 44.12 of the Federal Circuit Court Rules2001, and appointing the first applicant as the litigation guardian of the third applicant. Those orders also afforded the applicants an opportunity to file an amended application with proper particulars of the grounds of the application, together with a supplementary court book and written submissions in support of their application.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).
Rule 44.12(1) confers power on the Court, in the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding or to adjourn the proceeding for a final hearing or otherwise to make final orders in relation to the claims for relief.
The course which the Court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal: MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection [2015] FCCA 1383, [10] (Smith J).
As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: see Spencer v The Commonwealth (2010) 241 CLR 118.
Caution must be exercised when considering whether to grant summary judgment. Such caution is equally appropriate upon the determination of a show cause hearing.
The power to grant summary judgment is expressed in permissive terms; the Court may give judgment and order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the Court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. So too, the power to dismiss an application for judicial review on a show cause hearing is engaged only where the applicant has not satisfied the Court that an arguable case for relief has been raised.
In Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122 IPR 190, Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra stated a series of further propositions, including the following:
(a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
(b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
(c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
(d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;
see at [46]-[49]. The propositions stated above in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).
In SZUTB, supra, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application: (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.” That is, the residual discretion remains to be applied.
I apply those principles in determining this show cause application.
Grounds
The application contains the following grounds of review:
1. I came to Australia on student visa in 2008.
2.I was continuously studying when all of the sudden my 573 via [sic] got cancelled.
3.I applied in AAT for the review of my application and tribunal wrote to me to comment on my case and have not provided the checklist of documents I need to submit.
4. I attended the hearing and provided declarations and all the verbal and documentary evidences in support of my application.
5. I received my affirmation record and after seeing my decision record, I was shocked to see that the tribunal affirms the decision of DIBP.
6. The reason why I was not satisfied are listed below:
7. The Schedule, the member implied is Schedule 8, but according to the law, I satisfy the following points given in the schedule
8. 8202 (1) The holder must be enrolled in a full-time course of study or training if the holder is:
(a) enrolled in a full-time registered course; and
(b) maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder
(d) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress
(e) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance.
(f) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) Is enrolled in a course at the Australian Qualifications Framework level
Particulars: According to law
I satisfy schedule 8202 because I am a genuine student I been enrolled in the registered course with a registered education provider.
I have provided the medical and completion certificate which was relevant to my case but member failed to consider the documents and evidences I provided.
My arguments got contradicting because I became nervous when the member starts re-questioning the answer I gave her.
I never stopped studying and always maintained my enrolment in the registered course.
DIBP member considered that, I was have sufficient evidences that meet the GTE criteria and the only problem was non- commencement of study which happened due to my medical condition (surgery)
I can provide the proof of surgery as well during the hearing
9. AAT member failed to consider that each case has its own facts, merits and compelling reasons.
10. They made the jurisdiction error and misinterpreted the Sch 8.
11. I believe that I was not afforded natural justice.
12. I believe the member made his own mind to refuse my visa by considering the matter which was not even relevant to my case and neglecting the actual requirement for not to cancel the visa.
13. No time was provided to give additional evidences.
14. My visa application raises an arguable case in relation to not refuse the Student visa.
15. That the DIBP Case Officer and AAT member erred in affirming the review and not according substantial justice to the applicants.
Consideration
Only the first applicant appeared at the hearing. She said nothing in relation to the second applicant, but told me that her son is now aged seven years and nine months. As the first applicant was self-represented before me, I have considered the Reasons and the materials contained in the court book. The Reasons confirm that the Tribunal identified and applied the correct legal test to the merits review of the application. I am satisfied that the Tribunal brought an active intellectual process to, and gave genuine consideration to the matter: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248.
As the applicants did not file any submissions in relation to their application, the submissions of the Minister were responsive to the Reasons, the matters contained in the application for judicial review and the materials contained in the court book.
Grounds 1-6 do not identify any error on the part of the Tribunal. Instead they set out a factual background to the application. While it was clear that the first applicant first came to Australia in 2008, she agreed that, contrary to ground 2, she had not been studying continuously and that she had confirmed with the Tribunal that one of her courses of study had been cancelled by reason of non-commencement in April 2015: Reasons, [10]. The first applicant further agreed that she had only re-enrolled in a further course of study in August 2017. Grounds 1-6 are rejected.
Grounds 7-8 contain an assertion that the first applicant in fact satisfied Condition 8202. Although the applicant had produced a more recent version of Condition 8202, the Tribunal proceeded by reference to the then applicable version of that Condition. In any event, as was submitted by the Minister, each version of Condition 8202 prescribed that the visa applicant was required to be enrolled in a registered course. The first applicant was not so registered. The Tribunal correctly found that the first applicant was in breach of this requirement of Condition 8202.
The first applicant submitted that she had been prevented from undertaking her study by reason of a period of illness. The Delegate had accepted that the first applicant had been ill for a period. The Tribunal considered the first applicant’s medical history in detail, noting that she had been granted an extension of time on compassionate grounds by reason of certain medical treatment: Reasons, [18]. The Tribunal also recognised that the first applicant had suffered another bout of illness some six months after the cancellation of her course of study by reason of the non-commencement of that course: Reasons, [26], [35]-[38]. The Tribunal found some of her evidence as to both medical and marital issues to be contradictory and vague: Reasons, [27]-[29].
I reject Grounds 7-8.
Grounds 9-12 and 14-15 make vague allegations of error. I have re-examined the Reasons and the materials contained in the court book and discern no substance in the matters complained of by the applicants.
Ground 13, complained that the first applicant had not been provided additional time within which to provide evidence. This seemed contrary to the course of events which occurred during the hearing. The Tribunal denied the first applicant a request for an adjournment, but afforded her an opportunity to furnish additional documents to it. The first applicant did not take the opportunity to furnish any further documents: Reasons, [5]. Ground 13 is rejected.
Other matters
Insofar as the grounds of review contained complaints which may be understood as being directed at the Department or the Minister’s delegate, any decisions which they have made are primary decisions which are not reviewable by this Court: ss 476(2)(a), 474(4).
In submissions made before me, the first applicant also stated that the decision to enrol in a further course of study in August 2017 had been a decision of which she had been unaware. She attributed responsibility for this to a migration agent. She also suggested that the agent had made decisions of which she seemed to be critical. As the Reasons indicate, the first applicant seemed to have enrolled in whatever course of study had been recommended by her migration agent.
In a claim for judicial review, reliance upon an agent’s bad or negligent advice or other mishap does not afford the first applicant a valid basis for complaint. Nor would any detriment arising in consequence of such matters suffice to vitiate the administrative decision of a decision-maker the subject of challenge: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, [53]; cf Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, [33] (Tamberlin, Finn and Dowsett JJ). SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73, [52], [60] (Perram, Robertson and Griffiths JJ).
In the course of the hearing, the first applicant also told me that she in fact accepted the Tribunal’s decision but that she simply wanted a chance for a better future for herself and her son (she made no mention of her husband). The first applicant repeated this submission and formulated it both in terms of that which she had sought from the Tribunal and also from this Court. The first applicant’s request of this Court may otherwise be understood as seeking a further review in this Court of the merits of the cancellation of her Student visa. This is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291 (Kirby J).
None of those matters afford a basis for judicial review.
Conclusion
I am not satisfied that the applicants had raised an arguable case for relief. Nor was I persuaded that discretionary considerations militated in favour of a conclusion that the show cause application should be adjourned for a final hearing: r 44.12(b).
For the reasons above, I ordered that the application be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 21 September 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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