Kaur v Minister for Immigration
[2017] FCCA 3369
•12 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3369 |
| Catchwords: MIGRATION – Student visa – automatic cancellation by notice from education provider – whether notice sent in accordance with Migration Act 1958 – declaration that visa not cancelled by operation of Act. |
| Legislation: Migration Act 1958 (Cth), ss.137J, 137L, 476 Education Services for Overseas StudentsAct 2000, s.20 |
| Cases cited: Kaur v Minister for Immigration & Anor [2014] FCCA 1282 |
| Applicant: | MANPREET KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2627 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 12 December 2017 |
| Date of Last Submission: | 12 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 12 December 2017 |
REPRESENTATION
| The Applicant appeared on her own behalf |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE COURT DECLARES THAT:
Section 137J of the Migration Act 1958 (Cth) did not result in the cancellation of the Applicant’s Student (Temporary) (Class TU) visa by operation of law as a result of a notice sent to the application pursuant to s.20 of the Education for Overseas Students Act 2000 (Cth) in 2010.
THE COURT ORDERS THAT:
The application be otherwise dismissed.
THE COURT NOTES THAT:
In light of the lengthy history of this matter:
(i)The Department of Immigration and Border Protection is requested to deal with any of the Applicant’s outstanding visa applications expeditiously.
(ii)Should there be further judicial review applications by the Applicant, the Registrar is requested to deal with them expeditiously.
(iii)The parties are at liberty to request the Registry to add any further judicial review applications by the Applicant to Judge Riethmuller’s docket.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2627 of 2016
| MANPREET KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 November 2016. The applicant is a citizen of India. On 4 February 2009, the applicant applied for a Student (Class TU) visa, trying to take an English course, a Certificate III in Food Processing (Retail Baking – Cake and Pastry) and a Management course. The details of these appear in the court book at pp.36 to 38.
The applicant was granted the student visa on 29 March 2009 and, relying upon that visa, arrived in Australia on 6 April 2009. Partway through her cookery studies (after she had done over half the classes), she ceased studying because she was ill, depressed and very worried about family problems which, on her evidence, resulted in both her sister and her father passing away. It seems that around Easter 2010 (on her evidence) she discovered that she no longer had a student visa and confirmed this with a migration agent and then the Department.
How the applicant’s student visa came to an end was, it seems, at that point a mystery to her. The student visa was not due to expire until 15 June 2011. It appears that on 22 July 2010, the education provider, Della International College Pty Ltd says that they sent a notice to the applicant, certifying that she had not achieved satisfactory course progress in relation to the Certificate III course and that the applicant had therefore breached condition 8202 of her visa. The notice was in the usual form under s.20 of the Education Services for Overseas StudentsAct 2000 (“the Overseas Students Act”), which provides:
(1) Subject to subsection (4A), a registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
The notice gave the applicant two options to avoid having her visa automatically cancelled, both of which required her to attend at an office of the Department within 28 days. The notice warned the applicant that if she did not do so, her visa would be automatically cancelled under s.137J of the Migration Act 1958 (Cth).
The applicant says she never received that notice.
The only document that has been able to be identified appears to be a copy of a notice to her, but without an address. Despite efforts by the lawyers for the Minister, they were unable to obtain a witness from the college to give evidence as to the notice being sent or even the usual business process around such notices, nor have they been able to obtain evidence from the college as to the address to which the notice would have been sent to. I note in passing that, in this case, there is evidence that the applicant had changed her address in December 2009 and that she had told the receptionist at the college who she saw put the new address into the computer.
The practical result on the evidence is that there is evidence from the applicant that she never received the notice nor knew of it, and there is no evidence, either directly or by way of business records evidence, that the notice was ever sent to her at her last known address to the college. This, however, seems to have been unknown to the Department, at least until most recently. The result was that the Department, having been notified by the college that the notice had been sent, proceeded to treat the visa as having been automatically cancelled under s.137J of the Act. That section provides:
(1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).
Note 1: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen's visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.
Note 2: Under subsection 20(4A) of that Act, a registered provider must not send a notice on or after the day that subsection commences.
(2) The non-citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non-citizen complies with the notice; or
(b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette ;
makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.
As appears at court book p.76, relying upon information from the college, the Department then treated the visa as having been cancelled by operation of law. The date of cancellation by operation of law was set as 20 August 2010.
In the meantime, the applicant had, in fact, applied for a Protection visa on 20 April 2010. This application was refused by a delegate in February 2011, and was then the subject of review by the Refugee Review Tribunal (as it then was). The RRT also reviewed that visa application and refused it on 4 October 2010, following which there was a judicial review application lodged in October 2011, which, at one point, was discontinued and then recommenced, until it was ultimately dismissed on 18 December 2015. An appeal to the Federal Court was dismissed on 17 May 2016, and then a special leave application to the High Court dismissed on 30 August 2016.
It also appears that, at least through part of this period, the applicant had applied for and been declined a spouse visa. The Partner visa application was made on 11 April 2012 and was the subject of proceedings in the Tribunal and, ultimately, judicial review proceedings in this Court, reported as Kaur v Minister for Immigration & Anor [2014] FCCA 1282, which was then subject to an appeal to the Federal Court. The appeal was dismissed for the reasons set out in Kaur v Minister for Immigration and Border Protection [2014] FCA 1251.
On 20 September 2016, the applicant applied to the Tribunal for review of the cancellation decision on her student visa. The applicant had also sought access to documents by Freedom of Information to ascertain exactly what had gone on in the past with respect to this visa. On 28 September 2016, the Tribunal invited the applicant to comment on the validity of the application for review and forward written submissions to the Tribunal by 12 October 2016. The letter from the Tribunal advised the applicant that the Tribunal member was:
… of the view that [the] application is not a valid application as a decision to review under section 137J automatic cancellation of a Student visa is not a decision which can be reviewed by us. Furthermore, even if this was a reviewable decision, the timeframes to apply for review is 7 days after the notification of the decision. As your decision was made and you were notified on 20 August 2010, it is significantly out of time. However, this is a matter which must be determined by a Member.
On 12 October 2016, the applicant responded by email (at Court Book p.72) to the Tribunal, advising that she still did not have a complete record of her initial application and that she was attempting to obtain this information through a Freedom of Information request. The applicant attached a copy of a letter to the Department whereby the Department acknowledged receipt of her Freedom of Information request on 15 September 2016. The applicant also said that she was able to give “strong verbal evidence at the hearing session”, although did not elaborate at this stage with any written statement or documentary evidence.
On 9 November 2016, the Tribunal member decided that the Tribunal did not have jurisdiction to review the delegate’s decision, saying:
8. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 20 August 2010. Therefore the prescribed period within which the review application could be made ended on 31 August 2010. As the application for review was not received by the Tribunal until 20 September 2016 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
The applicant’s written grounds for judicial review as stated in her application were as follows:
Department of Immigration did not provide my student visa records despite requested through FOI. Probably they have lost my record.
AAT was informed that I was awaiting retrieval of my record from the department and evidence for which was provided. I cannot understand how the tribunal can make a decision without looking into specific information that was not provided by the department.
On 5 December, the applicant applied to this Court for judicial review. On 7 June, Registrar Allaway made orders directing her to file submissions by 12 July 2017, although she failed to do so.
When the matter came on for hearing before me, it was ascertained that the arguable point within the applicant’s case related to whether or not s.137J had, in fact, been engaged as a result of the dispute as to whether or not a notice was actually sent in accordance with s.20 of the Overseas Students Act.
It is not surprising that the lawyers for the Minister would not have ascertained from that material the true basis of her application as it was ultimately formulated. I gave the applicant leave to amend her application to seek a declaration as to the operation of s.137J in her case and adjourned the matter to also allow the Minister to make inquiries to obtain any further evidence that may be available.
Turning then to the substance of the case, the notice that was allegedly sent to the applicant under the Act is set out in the supplementary court book at pp.1 to 3. It is not clear on the face of the notice as to where the notice was, in fact, sent, as there is not an address on the face of the notice. It is clear from the affidavit evidence that the lawyers for the Minister have made significant attempts to obtain proper business records and someone to swear to those from the education provider, all to no avail. If anything, it appears from the affidavit material that they met with some degree of prevarication from the education provider, although a subpoena was not ultimately issued to the provider.
For present purposes, there is no evidence as to the address to which the notice was allegedly sent, nor any admissible evidence by way of direct evidence or business records to show that the notice itself was, in fact, sent by the education provider. The evidence of the applicant is that she never received the notice.
In the circumstances, I am persuaded to accept the evidence of the applicant that she never received a notice, and I am not persuaded that a notice was sent in accordance with s.20. As a result, s.137J does not appear to have been engaged, and therefore the visa would not have been automatically cancelled.
The question that then arises is whether or not it is appropriate for this Court to grant declaratory relief as an incident of the relief available on the application currently before the Court. In this regard, I have had regard to Singh v Minister for Immigration and Border Protection & Anor [2016] FCAFC 141 where the Full Court considered the power of this Court to grant declaratory relief in matters such as this. It was concluded in Singh’s case that the Court does have power to grant declaratory relief. I note, in particular, that this case does not concern a primary decision as referred to in s.476(2)(a) of the Act and as defined in s.476(4) because this is not, in fact, a decision under the Act, but a cancellation said to be by operation of law. Had the applicant been aware of the cancellation and brought an application to revoke the cancellation under s.137L, that decision would have been a Part 5 reviewable decision, and therefore that would have fallen within the definition of primary decision under section 476. That is not, on the facts, the case here.
In the circumstances, therefore, and for the same reasons as set out in Singh, it appears to me that I have jurisdiction to grant declaratory relief as to the proper operation of the statutory provisions in this case.
As a result, I find that it is appropriate to grant a declaration that, in this case, s.137J did not result in the cancellation of the applicant’s visa by operation of law as a result of a notice sent to the applicant, pursuant to s.20 of the Overseas Students Act in 2010.
Given the lengthy history of applications and Court proceedings in this case, it seems to me to also be appropriate to make a notation requesting that the Department deal with any outstanding visa applications with expedition and noting that should there be further judicial review applications, they should also be dealt with expeditiously. It is appropriate for the registry, at the request of the parties (or either of them) to add any further applications to my docket (with priority), given that I am now aware of the complex migration history in the matter.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 14 February 2018
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