Kaur v Minister for Immigration

[2016] FCCA 970

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 970

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal decision – Student (Temporary) Class TU visa – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.116, 359AA, 474, 476

Migration Regulations 1994 (Cth), Sch.8

Cases cited:
Kaur & Anor v Minister for Immigration & Border Protection & Anor (2014) 144 ALD 292; [2014] FCA 1046
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1; (2001) 62 ALD 225; (2001) 75 ALJR 1105
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Applicant: NARINDER KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 298 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 26 April 2016

Date of Last Submission: 26 April 2016

Delivered at: Perth

Delivered on: 28 April 2016

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Mr PJ Corbould

For the Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

2. That the applicant pay the first respondent’s costs in the sum of $6825 by 26 May 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 298 of 2015

NARINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore and later edited)

The application for judicial review

1. On 13 May 2015 the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal”), made a decision (“Tribunal Decision”) to affirm a decision of a delegate (“Delegate” and “Delegate’s Decision”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to cancel a Student (Temporary) Class TU visa (“Temporary Student Visa”) held by the applicant, Ms Narinder Kaur (“Ms Kaur”). A copy of the Tribunal Decision appears at the Court Book (“CB”) at 115-120.

2. Under s.476 of the Migration Act1958 (Cth) (“Migration Act”) Ms Kaur has now made an application to this Court for judicial review of the Tribunal Decision (“Judicial Review Application”).

Factual and procedural background

1. The factual and procedural background to the matter is as follows:

   a)Ms Kaur is a citizen of India who was granted the Temporary Student Visa on 19 September 2013: CB 16;

   b)on 16 September 2014, 30 October 2014 and 17 November 2014 the Department of Immigration and Border Protection (“Department”) received copies of Ms Kaur’s payslips in respect of work done in August, September and October 2014: CB 1-9;

   c)on 21 November 2014 the Delegate gave Ms Kaur notice of intention to consider cancelling the Temporary Student Visa under s.116 of the Migration Act: CB 16-31, on the basis that Ms Kaur had worked more than 40 hours a fortnight and therefore breached condition 8105 (“Condition 8105”) of the Temporary Student Visa, set out in Schedule 8 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 34. Later that day, after interviewing Ms Kaur: CB 18, 20, 24 and 26, the Delegate decided to cancel Ms Kaur’s Temporary Student Visa on that basis: CB 42, and notified Ms Kaur: CB 46;

   d)on 26 November 2014 Ms Kaur sought review of the Delegate’s Decision in the Tribunal: CB 49-50. On 28 May 2015 and 15 June 2015 Ms Kaur appeared before the Tribunal to give evidence and present arguments, accompanied by her registered migration agent: CB 82-85 and CB 116 at [3]-[4];

   e)on 17 June 2015 the Tribunal affirmed the Delegate’s Decision: CB 115;

   f)on 2 July 2015 Ms Kaur sought review of the Tribunal Decision in this Court;

   g)on 16 September 2015 a Registrar of this Court ordered, by consent that:

   i)Ms Kaur file and serve on or before 11 November 2015 any amended application giving particulars of the grounds of review, and any further affidavits upon which Ms Kaur intends to rely at the hearing of the matter; and

   ii)Ms Kaur file and serve an outline of submissions not less than 42 days before the final hearing listed for 2.15pm on 26 April 2016; and

   h)to date Ms Kaur has not filed any amended application, any affidavits, or an outline of submissions.

Tribunal Decision

1. The Tribunal:

   a)identified that the key issues were whether Ms Kaur had breached Condition 8105 and, if so, whether the Tribunal should exercise its discretion under s.116(1) of the Migration Act to cancel Ms Kaur’s Temporary Student Visa: CB 116 at [6];

   b)noted that Condition 8105 relevantly provides that a visa holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the visa holder's course of study or training is in session: CB 21 and CB 120;

   c)accepted that Ms Kaur:

   i)began working at Morley Cleaning Service in May or June 2014 and Glad Commercial Cleaning in December 2013;

   ii)commenced studying a Diploma of Business/Bachelor of Business course at Edith Cowan University in October 2013 but failed after one trimester;

   iii)enrolled in a Certificate IV in Business at Kingdom College for the period June 2014 to December 2014, and

   iv)did not finish the Certificate IV in Business course as the Temporary Student Visa was cancelled in November 2014: CB 117 at [11]; and

   d)noted that Ms Kaur’s payslips from Morley Cleaning Service and Glad Commercial Cleaning indicated that Ms Kaur had worked more than 40 hours per fortnight in August, September and October 2014: see CB 3, 6 and 8-9, and indeed worked and was remunerated, for at least eight consecutive weeks in August and September 2014 for more than 80 hours per fortnight, and the Tribunal put this information to Ms Kaur at the Tribunal hearing pursuant to s.359AA of the Migration Act: CB 117 at [12]-[13];

   e)noted that Ms Kaur conceded at the Tribunal hearing that she had breached Condition 8105 but stated that she had no option as her husband had withdrawn his financial support for her after his applications for a dependent student visa and a tourist visa were refused: CB 117 at [12]-[13];

   f)found that Ms Kaur had worked more than 40 hours per fortnight while she was enrolled in the Certificate IV in Business course, and on this basis found that Ms Kaur had breached Condition 8105 of the Temporary Student Visa: CB 117-118 at [14]-[16];

   g)noted the discretionary nature of the power to cancel under s.116 of the Migration Act, and that the Migration Act and Migration Regulations did not specify any matters that were required to be considered in relation to the exercise of that discretion: CB 118 at [18];

   h)had regard to the matters set out in the Department’s Procedures Advice Manual (“PAM3”): CB 118-119 at [18]-[27]. The Tribunal noted Ms Kaur’s evidence that:

   i)cancellation of the Temporary Student Visa would cause her hardship and may ruin her life: CB 118 at [21]-[22];

   ii)her contravention of Condition 8105 was an honest mistake that would not be repeated as her mother was now in a position to support her: CB 118 at [21];

   iii)her husband had initiated divorce proceedings against her: CB 118 at [21]; and

   iv)in March 2014 she lodged a complaint at a local police station in India complaining that her husband's family was threatening to harm her after she refused to repay money spent to obtain the Temporary Student Visa: CB 118 at [24];

   i)in respect of Ms Kaur’s claim of domestic violence, that is to fear harm from her husband’s family, had regard to a document (and its translation) provided by Ms Kaur, purporting to be police notes regarding her complaint: CB 103-104, and noted:

   i)that the complaint indicated that Ms Kaur wished to withdraw it, and that the complaint was therefore dismissed on 4 March 2014; and

   ii)on the basis of the handwritten and unofficial nature of the document, and Ms Kaur’s lateness in making her claim of being threatened by her husband's family (which the Tribunal recorded as being raised during a second Tribunal hearing on 15 June 2015), the Tribunal found that Ms Kaur had not received threats of harm as claimed: CB 118-119 at [24];

   j)accepted that some hardship would be caused to Ms Kaur by cancellation of the Temporary Student Visa as she would not be able to continue her studies, but found that this was a circumstance faced by students whose visas are cancelled generally: CB 118 at [22] and [25];

   k)found that Ms Kaur’s breach of Condition 8105 was significant, as she had worked well in excess of the permitted hours limit: CB 119 at [25];

   l)accepted that Ms Kaur’s husband had withdrawn financial support, but found that it was Ms Kaur’s responsibility to ensure she had funds, and observed that difficulties in payment of fees was not an extenuating circumstance but rather was a common occurrence facing international students: CB 119 at [25]; and

   m)concluded that Ms Kaur’s Temporary Student Visa should be cancelled, and affirmed the Delegate’s Decision: CB 119 at [27]-[28].

Judicial Review Application

1. Ms Kaur’s Judicial Review Application grounds are as follows:

   1. I first arrived in Australia in September 2013 as a holder of the TU-573 student visa. Initially, I was enrolled in a Diploma of Business/Bachelor of Business at Edith Cowan University. However, upon failing to clear my tests repeatedly, I decided to switch my choice of educational institutions to Kingdom International College, in addition to enrolling for a Certificate IV in Business.

   2. During my enrolment at ECU, I was working within the 40 hours per fortnight condition. It was also during this period of time when I attempted to apply for a student-dependent visa for my husband so he could join me here. Although this application was refused, I decided to lodge an application for a tourist visa for him. However, this was unsuccessful as well. For reasons unknown to me, my husband held me responsible for the fruitless applications and subsequently ceased his financial support for my studies in Australia. This abrupt end of his financial assistance occurred during my switch of educational institutions. Therefore, in order to continue my stay in Australia and successfully complete my studies, I was left with no other choice but to work for additional hours.

   3. Presently, my husband has initiated divorce proceedings against me and has also asked me to repay all the monies which he spent on me for my student visa and my study in Australia. Upon my refusal, his family has sent repeated threats to me as well as my family back in India. My family has also lodged a complaint against him and his family at the local police station but no action was taken. I fear that if I return to India, my husband and his family would pose a serious threat to mine and my family's well-being.

   4. In conclusion, I wish to affirm that my reasons are genuine. The only reason behind my working beyond the permissible limits is the severe and unforeseen financial hardship caused by my husband's sudden withdrawal of financial assistance. Additionally, I would like to indicate that my mother has agreed to provide any and all financial assistance I may need during my stay and study in Australia.

Consideration

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal only makes a jurisdictional error if it:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1; (2001) 62 ALD 225; (2001) 75 ALJR 1105 at [82] per McHugh, Gummow and Hayne JJ.

2. Section 116 of the Migration Act relevantly provides:

   (1) …, the Minister may cancel a visa if he or she is satisfied that:

   …

   (b) its holder has not complied with a condition of the visa; or ...

3. The Tribunal found on the material before it that Ms Kaur had breached Condition 8105 of the Temporary Student Visa. Having made that finding, the Tribunal considered, as it was required to do, whether to exercise its discretion to cancel Ms Kaur’s Temporary Student Visa. Neither s.116 of the Migration Act nor the Migration Regulations set out any mandatory relevant considerations for the Tribunal in the exercise of its discretion under s.116(1)(b) of the Migration Act: Kaur & Anor v Minister for Immigration & Border Protection & Anor (2014) 144 ALD 292; [2014] FCA 1046 at [33] per Mansfield J.

4. The Tribunal then considered the matters raised by Ms Kaur, and the relevant factors set out in the PAM3 guidelines, before concluding that it should exercise its discretion to cancel the Ms Kaur’s Temporary Student Visa. The Tribunal's consideration in the Tribunal Decision of the matters raised by Ms Kaur, and the matters in the PAM3 guidelines, reveals no jurisdictional error. The Tribunal:

   a)identified the issues and question to be considered, namely firstly, whether there was a breach of Condition 8105, and, secondly, whether it ought to exercise its discretion to cancel the Temporary Student Visa, or not;

   b)took into account and considered material put to it by Ms Kaur, and the PAM3 guidelines, which were relevant to the exercise of its discretion; and

   c)does not appear to have relied on any irrelevant material.

5. Ms Kaur’s grounds - which are in essence, submissions - are consistent with her claims and evidence as recorded and considered in the Tribunal Decision.

6. Ms Kaur’s grounds do not attempt to identify any jurisdictional error in the Tribunal Decision, and do no more than invite the Court to engage in impermissible merits review of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

7. Ms Kaur’s grounds of review do not in fact identify any jurisdictional error. The grounds are merely a reiteration of the claims made by Ms Kaur to the Tribunal. The Tribunal considered those claims, and the PAM3 guidelines, and determined it should exercise its discretion to cancel Ms Kaur’s Temporary Student Visa as she had breached Condition 8105. Nothing in Ms Kaur’s grounds establishes jurisdictional error in the Tribunal Decision, and the Court finds that the Tribunal Decision is not affected by jurisdictional error.

8. In oral submissions at hearing before this Court, Ms Kaur did not identify any jurisdictional error, but rather pleaded that the Court reconsider the Tribunal Decision on the bases that it was unfair, and because she wanted to finish her studies.

9. The Tribunal Decision is not affected by jurisdictional error. It follows that:

   a)the application must be dismissed. There will be an order accordingly;

   b)notwithstanding Ms Kaur pleaded an inability to pay costs, costs must follow the event, and there will be an order that Ms Kaur pay the Minister’s costs in the sum of $6825, by 26 May 2016.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  28 April 2016