Kaur v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 968
•2 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 968
File number(s): MLG 905 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 2 October 2024 Catchwords: MIGRATION – student (subclass 500) visa – visa cancelled – breach of condition 8202(2)(a) of Schedule 8 of the Migration Regulations 1994 - decision of the Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal denied the applicant procedural fairness – whether Tribunal failed to consider applicant’s genuine reasons and circumstances – Tribunal’s decision not affected by jurisdictional error – application for judicial review dismissed Legislation: Migration Act 1958 (Cth) s 116, 116(1)(b), 359A, 359A(4), 359A(4)(b), 359A(4)(ba), 360, 360A, 476(2)(a), 476(4)(a)
Migration Regulations 1994 (Cth) sch 8 condition 8202
Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
BYM16 v Minister for Immigration and Border Protection [2018] FCA 326
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 8 July 2024 Date of hearing: 9 September 2024 Place: Melbourne Counsel for the Applicant: Self-represented litigant Counsel for the Respondents: Mr Orchard Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 905 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUKHBEER KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
2 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application for judicial review be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Gostencnik
This is an application for judicial review of an Administrative Appeals Tribunal (Tribunal) decision made on 28 February 2018: Court Book (CB) 85. The Tribunal affirmed a decision of a delegate of the (then) Minister for Immigration and Border Protection to cancel the applicant’s Student (Class TU) (Subclass 500) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (Act).
The application for judicial review is dismissed. My reasons follow.
The applicant, a citizen of India, was granted a student visa on 29 September 2015.
On 14 March 2017, a delegate of the Minister issued the applicant with a notice of intention to consider cancellation of her visa under s 116 of the Act: CB3-CB7. The applicant was invited to respond. The notice was issued because the applicant had apparently not complied with a condition of her visa, specifically condition 8202(2)(a) of sch 8 of the Migration Regulations 1994 (Cth) (Regulations). The Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study since 12 July 2016. Condition 8202(2)(a) of the Regulations provides that a relevant visa holder must be enrolled in a full time registered course.
A delegate of the Minister cancelled the applicant’s visa on 7 April 2017 under s 116(1)(b) of the Act because the applicant had not complied with a visa condition and the grounds for cancelling the visa outweighed the grounds for not doing so: CB17.
On 21 April 2017, the applicant applied to the Tribunal for a review of the delegate’s decision: CB20-CB21.
By correspondence to the applicant dated 8 January 2019, the applicant was invited to attend a hearing before the Tribunal scheduled for 11 February 2019 at which she could give evidence and present arguments relating to the issues arising in her case: CB28-CB29. The correspondence also informed the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision based on that information alone, and that any additional documents or information on which the applicant may wish to rely on during the hearing be provided to the Tribunal by 4 February 2019.
On 14 January 2019, the applicant provided the Tribunal with a response to the hearing invitation: CB30-CB32, and on 4 February 2019, she provided further supporting material: CB33-CB77. The applicant appeared at the scheduled Tribunal hearing. She gave evidence and presented arguments with the assistance of a Punjabi interpreter: CB80-CB82, CB86 at [5].
The Tribunal affirmed the delegate’s decision on 28 February 2019: CB85. The Tribunal’s Statement of Decision and Reasons (Decision) was sent to the applicant by email dated 4 March 2019: CB83.
By her application made on 28 March 2019, the applicant seeks judicial review of the Tribunal’s decision.
The Tribunal’s Decision records a summary of the background and the outcome at [1]-[6].
The Tribunal identified the issue as whether the applicant, a holder of a student visa, had breached condition 8202 of sch 8 to the Regulations, and if so whether the visa should be cancelled at [7].
The Tribunal sets out in summary form that which condition 8202 requires of a visa holder and the reasons the Minister’s delegate cancelled the applicant’s visa at [9]-[10].
The Tribunal noted at [10], the applicant's admission during the hearing and in the explanatory statement she sent to the Tribunal dated 4 February 2019, that she was not enrolled in a registered course.
Consequently, the Tribunal found at [10] that the applicant had not complied with condition 8202(2).
The Tribunal records the matters to which it had regard in deciding whether to cancel the applicant’s visa in the circumstances at [11]-[14]. These included:
(1)matters raised by the applicant;
(2)matters in the Department's Procedures Advice Manual (PAM3) ‘General visa cancellation powers’;
(3)the applicant's evidence and information provided at the hearing; and
(4)the written documentation provided to the Tribunal by the applicant on the 4 February 2019, which included:
(a)the applicant's explanatory statement;
(b)mobile phone records; and
(c)a course assignment the applicant had completed.
The Tribunal records the circumstances in which the applicant came to study in Australia at [15]-[16]. The applicant’s claims about the circumstances that led to her dropping out of her studies are recorded at [16]-[17]:
(1)the exploitative living arrangements which she had to endure while staying with a relative of a former teacher; and
(2)her emotional state emanating from her brother's health issues and the death of her grandmother that occurred in February 2016 and July 2016 respectively.
The Tribunal notes at [17] that during the hearing, the applicant confirmed she did not seek to defer her studies nor return home to deal with her personal family circumstances. In the same paragraph, the Tribunal also records the applicant’s claim that she telephoned her education provider in December 2016 to discuss her problems but observed that no documentation was given to the Tribunal to indicate that the applicant submitted any claim for compassionate and compelling circumstances. The Tribunal reproduces extracts of the applicant’s written explanatory statement to the Tribunal in which she set out the interactions with the education provider about her enrolment and personal detail changes, and her interaction with the Department and with Bajwa Immigration at [17] and [18].
Ultimately, the Tribunal accepted at [19] of the Decision that the applicant:
(1)dropped out of her studies because of the personal issues she had described and that, despite condition 8202, she had not been enrolled in a registered course of study since 12 July 2016;
(2)visited her education provider in January 2017 when she was advised that her Confirmation of Enrolment (CoE) was cancelled; and
(3)she endeavoured to apply for another CoE.
The Tribunal considered the applicant’s claim that she was unaware of the status of her enrolment. It regarded the applicant as having a responsibility to notify various parties, including her education provider of any changes to her personal details. The Tribunal reasoned that it was reasonable to expect the applicant to advise the education provider and the Department about any changes to her address or contact details, to enable effective communication. Consequently, the Tribunal gave little weight to the applicant’s educational provider communication claims.
The Tribunal reasoned at [20] of the Decision that the combination of the significance of the breach of condition 8202(2), the applicant’s admission that she studied for a period of only four months, that she did not advise her education provider or the Department of her changed circumstances, and, that she did not seek to defer studies nor consider returning home to address her family circumstances, outweighed any weight given in favour of not cancelling the applicant's visa.
The Tribunal recounted the applicant’s evidence about her exploitative landlord, her brother’s illness, her financial problems, and her grandmother’s death at [21]-[22]. The Tribunal accepted at [23]-[24] that these events were disruptive, and except for the first mentioned matter, the Tribunal gave these matters some weight. As to the first mentioned matter, the Tribunal reasoned at [22] that it was reasonable to expect the applicant would face some initial adjustment in moving to Australia and it had regard to the support the applicant indicated she received from her parents. Accordingly, the Tribunal ascribed little weight to this claim.
However, the Tribunal concluded the length of breach of condition 8202 was significant in the context of the total period of the course. The Tribunal noted that the applicant did not attempt to defer her course of studies, she did not advise the Department of her changed circumstances, nor did she return to India to deal with her family circumstances. The Tribunal also considered the applicant’s limited submissions about her attempts to comply with condition 8202 and reasoned that this together with the matters described earlier in this paragraph outweighed any weight given to not cancelling the applicant’s visa: CB90 at [25] and [26]. The Tribunal noted at [27] that there was nothing to indicate the applicant had breached any other visa conditions but ascribed the consideration minimal weight because the Tribunal expected a visa holder generally to adhere to visa conditions and it was mindful of the significance of the breach.
The Tribunal considered the degree of hardship that may be caused by the visa cancellation at [28]-[34]. It considered and appeared to accept the applicant’s evidence about her experience with an exploitative landlord when she first arrived in Australia and about the poor advice the applicant apparently received from a migration agent. The Tribunal noted the applicant’s evidence that she was unaware of the conditions attached to her visa but reasoned that it was reasonable to expect the applicant to be aware of the conditions. The Tribunal considered the applicant’s evidence that her dream to study would be “finished” if her visa was cancelled and that her parents had invested a lot of money in giving her the opportunity to study in Australia. However, the Tribunal reasoned that the applicant would be able to pursue her studies in India or another international destination and that cancelling the applicant’s visa would not exclude her from those studies. And it observed, there was no evidence suggesting the applicant’s parents would stop supporting her. Consequently, the Tribunal gave little or limited weight to the applicant’s circumstances compared to the weight given in favour of cancelling the applicant’s visa.
The Tribunal next considered the applicant’s past and present conduct towards the Department and concluded at [35] of the Decision that there was nothing to indicate the applicant had not cooperated with the Department or the Tribunal, but reasoned that this was expected of all visa holders and so should not outweigh the significance of the breach. The Tribunal opined at [36] that it was unlikely the applicant would be detained if her visa was cancelled. Rather, the Tribunal considered the applicant would likely be given time to leave the country or apply for review of the Tribunal’s decision. The Tribunal concluded there was nothing before it to indicate that there were international obligations to consider at [37].
The Tribunal considered whether there were any other relevant matters at [38]-[39]. The Tribunal considered the applicant’s evidence about her engagement and desire to re-enrol in a course of study in the tourism sector. The Tribunal noted the applicant had not made any inquiries about course options or the associated fees and that she did not raise any concerns for her engagement should her student visa be cancelled. The Tribunal reasoned that these matters did not outweigh the significance of the breach, and it placed significant weight on the length of the breach. The Tribunal accorded more weight to the length and significance of the breach than the applicant’s explanations for the breach.
The Tribunal concluded on balance considering the circumstances individually and cumulatively in the context of the breach, that the applicant’s visa should be cancelled, and the delegate’s decision affirmed: CB93 at [40]-[42].
The applicant’s application for judicial review contains three grounds.
First, the applicant contends that the Tribunal decided her case unfairly, that her visa should not have been cancelled and that “the decision was made by the tribunal member and immigration department . . . contrary to natural justice”. Second, the applicant contends that the “tribunal and immigration department did not apply procedural fairness to genuine intention and personal circumstances”. Third, the applicant contends that the Tribunal did not consider her genuine reasons and circumstances so that she could save her student visa.
Two preliminary observations may be made about these review grounds.
First, grounds one and two appear to engage with both the decision made by the Tribunal and that made by the delegate (or as the applicant has described, by the “immigration department”). It is not the Court's function in this application to review the delegate's decision: s 476(2)(a) and s 476(4)(a) of the Act. However, a review by the Tribunal of a delegate’s decision to refuse a visa application (or in the instant case to cancel a visa for breach of a condition) is a merits review unencumbered by the earlier delegate's decision or the delegate’s reasoning. Therefore, any procedural deficiencies or other errors that may have been associated with the delegate's decision were capable of cure before the Tribunal.
Second, grounds one and two are bare assertions of jurisdictional error without particulars and are vague and meaningless. No further particulars were provided before the hearing despite orders from Registrar Cummings made on 12 June 2024 requiring the applicant to file and serve any amended application with proper particulars of the grounds of the application. The lack of particulars would provide a basis on which the Court might dismiss the judicial review application: WZAVW v Minister for Immigration and Border Protection[2016] FCA 760 at [35]; WZATH v Minister for Immigration and Border Protection[2014] FCCA 612 at [60]; AQN15 v Minister for Immigration and Border Protection[2016] FCA 571 at [5]; BYM16 v Minister for Immigration and Border Protection[2018] FCA 326 at [12]-[13].
At the hearing of this application the applicant added little to these grounds by way of particulars. She said that she thought it was unfair that the Tribunal had cancelled her student visa and sought to relitigate matters she had raised with the Tribunal (earlier noted) which are said to explain the circumstances or reasons for her failure to comply with condition 8202(2). The applicant contended that the Tribunal did not consider her circumstances, which led to the breach of condition 8202. She said the Tribunal “just looked at, and considered, the breach [of] condition 8202, but [the Tribunal] did not see the circumstances that led to it”. The applicant said the Tribunal should have given her one chance.
The applicant also sought to rely on an affidavit affirmed by her on 26 July 2024 and filed on the same day. The affidavit annexes several documents related to her enrolment in studies, which all postdate the Tribunal’s decision. The material is not relevant to establishing whether the Tribunal committed jurisdictional error in affirming the delegate’s decision to cancel the applicant’s student visa. Consequently, I agree with the Minister that the affidavit and the annexures thereto should not be admitted into evidence.
To the extent that grounds one and two of the applicant’s judicial review application contend that the Tribunal denied her procedural fairness, that contention must be rejected. On the material it seems clear enough that the Tribunal complied with its procedural fairness obligations in Division 5 of Part 5 of the Act.
As earlier noted, by invitation dated 8 January 2019 the applicant was invited to a hearing before the Tribunal in compliance with s 360 and s 360A of the Act, which she attended on 11 February 2019. The applicant was on notice from the delegate’s decision and the Tribunal member’s questions at the hearing that the determinative issue on review was the applicant’s compliance with condition 8202 and whether the discretion to cancel the visa should be exercised.
On the material before the Court, there does not appear to have been any “information” that was required to be put to the applicant in accordance with s 359A of the Act. The only information on which the Tribunal relied was the applicant’s written evidence to the Department, material contained within the delegate’s decision which was provided to the Tribunal by the applicant and the applicant’s oral and written evidence given to the Tribunal. All this falls within the exceptions in ss 359A(4)(b) and (ba) of the Act. Moreover, at the hearing before the Tribunal, the applicant was given an opportunity and took up the opportunity to give evidence and make arguments with the assistance of a Punjabi interpreter. No jurisdictional error is established.
Ground three, and in some respects the first two grounds, contend that the Tribunal failed to consider the applicant’s “genuine reasons and circumstances”, or as the applicant put it during the hearing of this application, the Tribunal just looked at, and considered, the breach of condition 8202, but it did not see the circumstances that led to it. This contention must also be rejected. The Tribunal plainly had regard to the applicant’s reasons and alleged circumstances leading to her failure to remain enrolled and accepted some of those circumstances. So much is clear from the summary of the Decision discussed earlier above.
Ultimately, the Tribunal took account of the applicant’s evidence and circumstances, but it was not satisfied that these outweighed the reasons for cancelling the visa - namely the lengthy period the applicant had not complied with the visa condition, the lack of any step to defer, nor to travel overseas to attend to her personal family circumstances.
The Tribunal’s conclusion that the applicant’s student visa should be cancelled was in my view open on the materials before the Tribunal. No jurisdictional error is established. It seems plain enough that by this application the applicant seeks another merits review. That is not something this Court can do.
As the applicant is self-represented before the Court, I have reviewed the Decision and the material in the Court Book filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with the grounds of review the applicant advanced. I have not identified any arguable case of jurisdictional error.
The application for judicial review is dismissed.
I will hear the parties on costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 2 October 2024
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