Khattri v Minister for Immigration

[2018] FCCA 768

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHATTRI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 768

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision to cancel the applicant’s visa pursuant to s.116 of the Migration Act 1958 was affected by jurisdictional error by reason that a notice under s.20 of the Education Services for Overseas Students Act 2000 had not been given to him.

Legislation:

Migration Act 1958, ss.116, 474, 477

Education Services for Overseas Students Act 2000, ss.19, 20
Migration Regulations 1994, reg.2.43, cl.570.611 of sch.2 and condition 8202 of sch.8

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Wei v Minister for Immigration & Border Protection (2015) 257 CLR 22

Applicant: DURGA BAHADUR KHATTRI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2241 of 2014

Judgment of: Judge Cameron

Hearing date: 31 January 2017

Date of Last Submission: 31 January 2017

Delivered at: Sydney

Delivered on: 29 March 2018

REPRESENTATION

Solicitors for the Applicant: Mr M. Newman of Newman & Associates

Counsel for the First Respondent: Mr J. Kay-Hoyle

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for an extension of time to bring this proceeding be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2241 of 2014

DURGA BAHADUR KHATTRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Nepal who, according to his statutory declaration declared on 21 January 2014, arrived in Australia in 2008 on a dependent student visa.  On 12 August 2011 he was granted a Student (Temporary) (Class TU) subclass 570 Independent ELICOS Sector visa but a delegate of the first respondent (“Minister”) cancelled that visa on 10 April 2012 on the basis that the applicant had failed to comply with a condition of his visa.  The applicant subsequently applied to the second respondent (“Tribunal”) for a review of that departmental decision but on 13 June 2014 the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa. 

2. On 11 August 2014 the applicant applied to this Court for judicial review of the Tribunal’s decision. That application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Migration Act”) and so the applicant has applied for an extension of that limitation period.

3. For the reasons which follow, the application for an extension of time within which to bring this proceeding will be dismissed.

APPLICATION FOR AN EXTENSION OF TIME

1. Section 477 of the Migration Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time the applicant commenced this proceeding, it relevantly provided:

   477 Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)     In this section:

   date of the migration decision means:

   …

   (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …

2. The Tribunal’s decision was dated 13 June 2014 which means that the applicant had until 18 July 2014 to commence this proceeding.  As the application was not filed until 11 August 2014, it was brought out of time.

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time specifying why the applicant considers that it is necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made. In this case, the applicant made an application in writing for an extension of time by making such a request, albeit not in quite those terms, in the affidavit of his solicitor, Mr Newman sworn 8 August 2014. The initial criteria for the granting of an extension of time have therefore been satisfied.

Interests of the administration of justice

1. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for the delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial.

Satisfactory explanation for delay

1. In his affidavit sworn on 8 August 2014 Mr Newman deposed that he had prepared the application for judicial review on 4 July 2014 but had overlooked its filing.  He deposed that a short time later he suffered an injury and was consequently away from the office and in much pain.

2. Although Mr Newman might have taken steps which resulted in the filing of the application within time, I accept that his failure in that respect was an administrative oversight aggravated by ill health and should not prejudice this applicant.  I find that a satisfactory explanation for the delay has been provided.

Merits of the substantive application

1. In relation to the question of the merits of the substantive application, it should be noted that in a proceeding for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial. I have concluded that the present applicant has not done that.

Relevant legislation

1. Section 20 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) in the form which applied to the present case, provided:

   20 Sending students notice of visa breaches

   (1)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.

   (2)The registered provider must send the notice as soon as practicable after the breach.

   (3)The notice must be in a form approved by the Secretary of the Immigration Minister’s Department.

   (4)The notice must:

   (a)contain particulars of the breach; and

   (b)state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and

   (b)state that the student must present photographic identification when so attending; and

   (c)set out the effect of sections 137J and 137K of that Act.

   Unincorporated registered providers

   (5)If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.

   (6)A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.

   Penalty: 60 penalty units.

   (7)An offence under subsection (6) is an offence of strict liability.

2. The applicant’s subclass 570 visa was subject to condition 8202 which, amongst other things, required that he be enrolled in a registered course: cl.570.611 of sch.2 and condition 8202(2)(a) of sch.8 to the Migration Regulations 1994 (“Regulations”).

3. The consequences of breaching condition 8202 are set out in s.116 of the Migration Act which at all material times relevantly provided:

   116   Power to cancel

   (1)Subject to subsections (2) and (3), 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; …

   …

   (3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

4. At the time the delegate cancelled the applicant’s visa, the prescribed circumstances referred to in s.116(3) were found in reg.2.43 of the Regulations which relevantly provided:

   2.43 Grounds for cancellation of visa (Act, s 116)

   …

   (2)For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

   …

   (b)     in the case of a Student (Temporary) (Class TU) visa:

   …

   (ii)     that the Minister is satisfied that:

   (A) the visa holder has not complied with condition 8202; and

   (B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

5. By the time the Tribunal made its decision on the applicant’s review application, reg.2.43(2)(b) had been omitted and no prescribed circumstances under s.116(3) for Student (Temporary) (Class TU) visas applied to the applicant or to Student (Temporary) (Class TU) visas.

Background facts - proceedings before the Department

1. As previously indicated, the applicant’s subclass 570 visa was granted by what is now the Department of Home Affairs (“Department”) on 12 August 2011.  On 8 March 2012 the Department sent the applicant a Notice of Intention to Consider Cancellation (“NOICC”) of his visa on the basis that he had failed to comply with condition 8202(2).  The Department noted in this regard that the applicant had been enrolled in an Intensive English (Beginner to Advanced) course at Castle College Pty Ltd (“Castle College”).  It went on to observe that that enrolment had ceased on 15 September 2011 and that the applicant had not been enrolled in a registered course since that date.

2. The applicant wrote to the Department on 22 March 2012 and 3 April 2012. According to a departmental file note, the applicant also provided information by telephone. Relevantly, the applicant claimed that:

   a)while his enrolment had been cancelled on 15 September 2011, he continued to attend classes until 14 December 2011;

   b)he was sick in the period after 14 December 2011; and

   c)he was in custody from 9 February 2012 to 20 March 2012 and, consequently, had been unable to attend classes during this period.

3. In support of his claims, the applicant provided the Department with a student report from Castle College dated 14 December 2011 and an x-ray report dated 6 January 2012.  The medical report stated that the applicant had been suffering left loin and lower back pain for one year.

4. The delegate cancelled the applicant’s visa on 10 April 2012. The delegate found that the applicant had not complied with condition 8202(2) of his visa as he had not been enrolled in a registered course of study after 15 September 2011. The delegate also found that the applicant’s non-compliance had not been due to exceptional circumstances beyond his control. In the circumstances, the delegate found that s.116 of the Migration Act required the applicant’s visa to be cancelled.

Background facts - proceedings before the Tribunal

1. The Tribunal decision the subject of this proceeding is the second such decision relating to the applicant.  A previous Tribunal decision was quashed by this Court and the applicant’s application for review of the delegate’s decision remitted for reconsideration.

2. The applicant provided evidence and submissions to the first Tribunal on 8 October 2012.  Those submissions are referred to in the Tribunal’s decision the subject of this proceeding but have not been reproduced in the Court Book which was exhibit A.

3. On 23 January 2014 the applicant filed submissions with the Tribunal as secondly constituted and on 30 January 2014 he appeared before the Tribunal at a hearing.  Relevantly, he made the following claims: 

   a)he continued to attend classes until his arrest in February 2012;

   b)he was traumatized by the time he had spent in gaol and had developed a “complex psychological condition” as a result;

   c)although the case against him was dismissed, he could not return to Nepal as he would be ostracized because he had been imprisoned in Australia.  He had already been harassed by his close relatives;

   d)he did not continue with his studies after his release from gaol because his migration agent told him that he was unable to do so;

   e)he had not been in a position to pay his course fees since September or October 2011; and

   f)he wished to continue his studies in Australia and did not want to return to Nepal without a degree.

4. After considering the claims and evidence before it, the Tribunal found that the applicant had not been enrolled in a registered course since 15 September 2011 and, consequently, had not complied with condition 8202(2) of his visa.  In considering whether the applicant’s non-compliance was due to exceptional circumstances beyond his control, the Tribunal had regard to the following:

   a)it accepted that the applicant continued to attend classes beyond 15 September 2011 but noted that there was a difference between attending and being enrolled in a registered course;

   b)the applicant provided inconsistent evidence about when he stopped attending classes, about how his back condition affected his ability to attend college and about why he did not continue with his studies after he was released from gaol;

   c)by not being enrolled in a registered course, the applicant was not fulfilling the purpose of his student visa or the purpose of his travel to and his stay in Australia.  The Tribunal considered the applicant’s breach to be significant in the circumstances;

   d)the applicant did not submit any evidence to indicate that he had a medical condition which interfered with his study (apart from a few days around his medical consultations) or that he had a medical condition which prevented him from remaining enrolled from 15 September 2011 or from when he was released from gaol;

   e)the applicant’s inconsistent evidence, together with his inability to pay his course fees since September or October 2011, caused the Tribunal to doubt that anything other than this inability to pay his course fees was the reason for him not being enrolled;

   f)the fact that the applicant did not provide any evidence of having been enrolled in a registered course of study since 15 September 2011 caused the Tribunal to doubt that he had a genuine intention to enrol in a course and to undertake study in Australia;

   g)the Tribunal was not satisfied that the cancellation of his visa would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations; and

   h)the Tribunal took into account the government’s policy guidelines as contained in the Department’s Procedures Advice Manual (PAM3).

5. The Tribunal accepted that the applicant suffered from a back condition but was not satisfied that this prevented him from bring enrolled in a registered course or from undertaking a course of study.  Further, while the Tribunal accepted that the applicant had been unable to study during the period of his imprisonment, it did not accept that this prevented him from being enrolled.  In the Tribunal’s view, it was the applicant’s inability to pay his course fees which resulted in him not being enrolled.  Given that this continued to be the case, the applicant was unable to undertake study, which was the purpose of his stay in Australia. 

6. Having considered the applicant’s circumstances as a whole, the Tribunal concluded that the applicant’s visa should be cancelled.

Grounds for judicial review

1. In his amended application the applicant alleged:

   1.The Tribunal erred in law and in its jurisdiction when it failed to consider the effect of s.20 of the Education Services for Overseas Students Act 2000 as undermining the Departmental action that followed under s.116 of the Migration Act 1958

Consideration

1. The evidence before the Court does not support a conclusion that Castle College advised the applicant in writing pursuant to s.20 of the ESOS Act that he had breached a prescribed condition of a student visa. It may be accepted that such a written notification was not provided.

2. The applicant submitted that because Castle College had not provided him with a notice under s.20 of the ESOS Act, the Minister had had no power under s.116 of the Migration Act to cancel his visa. He argued that a notification under s.20 of the ESOS Act was the “essential trigger” for a decision under s.116(1) of the Migration Act. He relied in this connection on Wei v Minister for Immigration & Border Protection (2015) 257 CLR 22.

3. In Wei’s case it was held that:

   The “satisfaction” required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law. Equally, it is a state of mind which must be untainted by a material breach of any other express or implied condition of the valid exercise of that decision-making power. The imperative duty imposed on a registered provider by s 19 of the ESOS Act is such a condition. (reference omitted) (at 35 [33] per Gageler and Keane JJ)

4. Earlier, their Honours had said:

   … considerations of justice and convenience tell in favour of the conclusion that a duty is imperative where a material breach would work to the peculiar disadvantage of an individual. (at 34 [28])

5. At the time of the delegate’s decision in this matter s.19 of the ESOS Act provided:

   19 Giving information about accepted students

   (1)A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:

   (a)the name and any other prescribed details of each person who becomes an accepted student of that provider;

   (b)for each person who becomes an accepted student—the name, starting day and expected duration of the course for which the student is accepted;

   (c)the prescribed information about an accepted student who does not begin his or her course when expected;

   (d)any termination of an accepted student’s studies (whether as a result of action by the student or the provider or otherwise) before the student’s course is completed;

   (e)any change in the identity or duration of an accepted student’s course;

   (f)any other prescribed matter relating to accepted students.

   (2)A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.

   (3)Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.

   Unincorporated registered providers

   (4)If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the Secretary the information as required under this section.

   (5)A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.

   Penalty: 60 penalty units.

   (6)An offence under subsection (5) is an offence of strict liability.

1. As the present application seeks an extension of time to bring a proceeding, it is not appropriate to undertake a particularly detailed analysis of the matters which that proceeding would raise if the extension of time were to be granted.  However, a detailed analysis is not required in order to conclude that there is insufficient merit in the substantive part of the applicant’s application to warrant it being considered at a trial.

2. Although it is superficially attractive to apply the reasoning in Wei’s case to s.20 of the ESOS Act, to do so is fallacious. Section 19 of the ESOS Act is concerned with various of the duties education providers have to the Department and, as the majority found in Wei’s case, with the proper operation of the “integrated statutory scheme” which the Migration Act and the ESOS Act implement: Wei at 28 [6]. Section 20 is concerned with an obligation to alert students in breach of their visa conditions to the fact that they are in breach and to direct them to report to the Department to make submissions about the breach failing which the visa will be automatically cancelled after 28 days pursuant to s.137J of the Migration Act. If a s.20 notice is not sent, the visa can still be cancelled but pursuant to s.116 and not before the student is provided with a NOICC under s.119 of the Migration Act. Provision of a s.20 notice is not an essential precondition to the cancellation of a student’s visa for breach of a visa condition. It is certainly not a “trigger” for a decision under s.116(1) of the Migration Act as the applicant argued, indeed the case is quite otherwise in that it is instead a trigger for automatic cancellation under s.137J.

3. An implication in the applicant’s submissions was that service of a s.20 notice would have given him an opportunity to explain to Castle College why he had not paid his tuition fees and, presumably, be given some latitude such that his default would not amount to a breach of his visa conditions. However, s.20 does not operate to provide for such opportunities.

CONCLUSION

1. For these reasons, I conclude that it is not in the interests of the administration of justice for time for the commencement of this proceeding to be extended. 

2. Consequently, the application for an extension of time will be dismissed. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  29 March 2018