Kumar v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 603
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 603
File number(s): SYG 1774 of 2018 Judgment of: JUDGE LAING Date of judgment: 3 August 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant the applicant a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa – whether the applicant was denied a reasonable opportunity to be heard before the Tribunal after his Migration Agent ceased acting one week before the hearing – whether the Tribunal took into account irrelevant considerations and did not take into account relevant considerations – whether the Tribunal inflexibly applied policy - whether the Tribunal’s decision was affected by apprehended bias – whether the Tribunal’s decision was affected by jurisdictional error – application dismissed. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), 5(1)(a), 5 (1)(e), 5(2)(a), 5(2)(b), 5(2)(f), 5(2)(g), 6(1)(a), 6(1)(e)
Migration Act 1958 (Cth) 116, 116(1)(b), 189, 198, 360
Cases cited: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76
Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 26 July 2022 Place: Sydney Solicitor for the Applicant Applicant appeared in person with the assistance of a Hindi interpreter Solicitor for the First Respondent Ms S. Sangha, Mills Oakley Solicitor for the Second Respondent Did not participate ORDERS
SYG 1774 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PARMINDER KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
3 AUGUST 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs, fixed in the amount of $5,400.
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 LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 May 2018. The Tribunal affirmed a decision made by a delegate (Delegate) of the first respondent (Minister) to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (student visa).
BACKGROUND
The applicant is a citizen of India. He was granted the student visa on 21 July 2014.
On 13 September 2016, the Department of Immigration and Border Protection (as it was) (Department) issued a notice of intention to consider cancellation (NOICC) of the applicant’s student visa under s 116(1)(b) of the Migration Act 1958 (Cth) (Act). The NOICC raised that it appeared that the applicant had not been enrolled in a registered course since 7 August 2015, and had therefore breached condition 8202 on his student visa.
Upon request, the applicant was granted an extension of time to 7 October 2016 to respond to the NOICC. He was informed that no further extension could be provided. The applicant did not provide any response by 7 October 2016.
On 10 October 2016, the applicant emailed the Department requesting further time to respond to the NOICC. He stated that he was still waiting for some documents, including a report from his psychologist.
On 20 October 2016, the Delegate cancelled the applicant’s student visa under s 116 of the Act. The Delegate was satisfied that the applicant had not complied with condition 8202(2)(a) as he had not maintained enrolment in a registered course of study. The Delegate found that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.
On 27 October 2016, the applicant applied to the Tribunal for review of the Delegate’s decision. The application for review recorded that the applicant was represented by a registered migration agent (Migration Agent).
On 28 March 2018, the Tribunal sent the applicant’s Migration Agent an invitation to attend a hearing before the Tribunal on 10 May 2018. The response to the hearing invitation sent to the Tribunal on 15 April 2018 recorded that the Migration Agent would be attending the hearing with the applicant.
On 2 May 2018, the Migration Agent wrote to the Tribunal. The letter stated (inter alia):
I have had initially reviewed the case and found that there are merits for review. However, upon requesting the applicant all the supporting evidence as discussed on the initial interview and on our last meeting, the applicant has not provided the evidence we requested nor contactable as of today. Despite our numerous emails, calls and requests, we have not heard back from the applicant.
In view of this, I hereby notify the Tribunal that I am no longer acting on behalf of the applicant nor will be represented by me on the forthcoming hearing.
The Migration Agent requested that future communications be directed to personal contact details held for the applicant. On 3 May 2018, the Tribunal wrote to the applicant (through the Migration Agent, but also copied to the direct contact details that had been provided) noting that the applicant would need to provide a form to the Tribunal regarding the cessation of the appointment and the change in contact details.
No response was received. However, the applicant attended the hearing before the Tribunal on 10 May 2018. He did so with two witnesses and the assistance of an interpreter.
On 17 May 2018 and 18 May 2018, the applicant sent the Tribunal documents in support of his application.
On 28 May 2018, the Tribunal affirmed the Delegate’s decision to cancel the applicant’s student visa.
THE TRIBUNAL’S DECISION
The Tribunal found on the evidence before it that the applicant had not been enrolled in a registered course since 7 August 2015, and had therefore not complied with condition 8202(2). The Tribunal noted the applicant had enrolled in a Bachelor degree course the day before the hearing, however considered that he had not been enrolled in a registered course between 7 August 2015 and early May 2018 (at [9]-[10]).
Having found the applicant had not complied with a condition of the student visa, the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal noted that there were no matters specified in the legislation as being required to be considered in exercising the discretion. However, the Tribunal considered matters raised by the applicant and the matters set out in the policy guidelines. These included the following:
(a)Purpose of the visa holder’s travel to and stay in Australia – The Tribunal considered the applicant’s claim that he intended to study an approved higher education course, but that the evidence indicated his last recorded day of study was 17 May 2015. The Tribunal was satisfied “the applicant was aware of the need to maintain enrolment at the time his Student visa was granted” (at [13]).
(b)Degree of hardship that may be caused – The Tribunal accepted at [14] that the applicant or his family may be subject to some hardship if the visa was cancelled, noting the applicant’s claim that his family would not understand his ‘situation’ and that he would have to ‘start again’ in India. The Tribunal was however satisfied (at [22]) that the applicant would be able to find work in India commensurate with his skills, noting that the tertiary studies the applicant had completed in Australia would assist him in finding work. The Tribunal also had regard to country information which indicated that the Punjab was a “wealthier” state in India with a lower poverty rate (at [21]-[22]).
(c)Past and present conduct of the visa holder towards the Department – The Tribunal found at [15] that there was no evidence that the applicant had been uncooperative towards the Department or the Tribunal.
(d)Whether there were mandatory legal consequences of cancellation – The Tribunal accepted at [16] that the applicant may be subject to detention under s 189 of the Act, and removal under s 198 of the Act if his visa was cancelled. The Tribunal was not satisfied that the applicant would be subject to indefinite detention. The Tribunal considered the consequences of cancellation for future visa applications, but concluded these were “intended consequences” of visa cancellation. The Tribunal considered that there was no evidence before it of any consequential visa cancellations or that Australia’s international obligations might be breached (at [17]).
(e)Circumstances in which the grounds for cancellation arose and matters raised by the applicant – The Tribunal considered the claims made by the applicant as follows:
·The Tribunal considered the applicant’s claim (confirmed by his friend) that he had been deceived into lending around AUD$10,000 to a former flat mate in 2014 or 2015, and that the applicant had an outstanding debt of AUD$5,000 to $6,000 to Commonwealth Bank. The Tribunal believed, given the amount of debt still outstanding, that “this would constitute an ongoing impediment to the applicant continuing studies at the appropriate level in Australia” (at [18]).
·The Tribunal considered at [20] the applicant’s evidence that his Migration Agent had ceased acting for him on 3 May 2018, 7 days before hearing. The Tribunal stated that it had received no “formal notification” of this before the hearing.
·In considering the applicant’s claim that his capacity to study was affected by the breakdown of his relationship with his girlfriend in May 2015, and that if returned to India, he may have to confront his former girlfriend and rival, the Tribunal stated at [25]:
With respect, and though I accept the applicant may have been distraught due to cessation of the relationship, and given the applicant is said to now be ‘better’, I am not satisfied that some three years after the relationship ceased, the applicant will have any serious or significant problems on return to India. Furthermore, and though I accept the applicant was distraught by the cessation of his relationship, the fact that it had incapacitated him for such a period of time, has concerned the Tribunal that he may not even now have learnt to contend with personal or other problems, should any of same arise in future.
·The Tribunal had regard to the applicant’s claims that he had experienced mental health issues which had affected his capacity to continue his studies but that he was “now healthy and wished to continue to study in Australia” (at [21]). The Tribunal took into account post hearing submissions and psychological reports provided by the applicant. This included reports referring to psychological problems experienced by the applicant at various times. At [29], the Tribunal referred to a Consultant Forensic Psychologist report dated 18 April 2018, which stated, inter alia, “that ‘in 2017’ the applicant presented with symptoms of depression and anxiety, but that now he was ‘well placed in terms of responsibility and organisation to resume his studies’”.
·The Tribunal found the evidence given by the applicant’s brother at hearing – to the effect that the applicant’s family in the Punjab could not care for the applicant better than his brother could – to be unreliable. Having found the applicant’s brother not to be a reliable witness, the Tribunal accepted at [30], by reference to the applicant’s evidence, that his “family could and would assist him should he return to the Punjab.”
·The Tribunal did not accept the applicant’s claims that he would “sit at home” in India, finding at [24] that the applicant could study in India though he believed that the standard of education was better in Australia.
The Tribunal observed that whilst the applicant had submitted that no one would understand his situation in India, he did believe that his family would provide him with some support (at [31]).
At [31], the Tribunal also had regard to country information indicating that although India’s health indicators had improved, problems existed and care varied across the states. However, the Tribunal concluded at [32]:
32.Based on the evidence, the Tribunal understands the applicant had only attended a psychologist in Australia on three (or possibly four) occasions. No other attendance with a medical practitioner was claimed. The applicant’s mental condition did not apparently require him to seek ongoing assistance and support (though in the most recent report, it was said that he could seek assistance if his mood or anxiety problems re-appeared). Further, after discussing it with him at the hearing, the Tribunal notes his mental health condition had not prevented him from continuing to work and function in Australia (notwithstanding it was claimed he was depressed at the time); and therefore the Tribunal is also satisfied the applicant’s capacity for study during this period was greater than he now claims. That being said, if the applicant did need any medical assistance, the Tribunal is satisfied he could access the medical assistance he required in India. However, and based on all the evidence before the Tribunal, I am not now satisfied the applicant genuinely proposes to continue his studies in Australia; or given his aforementioned debt, that he would be financially capable of doing so.
33.Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
Accordingly, the Tribunal affirmed the Delegate’s decision (at [34]).
RELEVANT LEGISLATION
Section 116(1)(b) of the Act confers upon the Minister a discretionary power to cancel a visa in the following terms:
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; …
The applicant’s student visa was subject to condition 8202 in Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations), which relevantly required as follows:
8202 …
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; ...
PROCEEDINGS BEFORE THIS COURT
The present proceedings were commenced by application for judicial review filed on 26 June 2018. This contained the following grounds:
1.Breach of the rule of natural justice under section 5 (1)(a) and section 6(1)(a) of the Administrative Decision (Judicial Review) Act 1977 (ADJR Act).
a.Failure to provide appropriate opportunity to be heard, before the decision.
Particulars
a.The applicant's migration agent ceased to act just prior to the hearing.
b.The Tribunal failed to provide the applicant an opportunity to engage new migration agent by not granted him an additional time.
c.The time granted to provide additional evidence was not reasonable in the circumstance that the applicant had to hire new agent who then needed time to review all the evidence and assist the applicant to prepare the submissions and submit the additional evidence.
2.Improper exercise of power under section 5 (1)(e) and section 6 (1)(e) of the ADJR Act.
a.A failure by the decision maker to comply with the duty not to take into account irrelevant considerations: section 5(2)(a) of ADJR Act and to take into account relevant considerations: section 5(2)(b) of the ADJR Act in the exercise of the power.
b.An exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case section 5 (2)(f) of the ADJR Act
c.An exercise of power that is so unreasonable that no reasonable person could have so exercised the power: section 5 (2)(g) of the ADJR Act.
d.The decision was based on irrelevant considerations and thus, reached a mistaken conclusion.
3. The Tribunal's Decisions is affected by apprehended bias.
Particulars
a.The Tribunal didn't show any interest on the applicant and witness statement and continued to face against them.
b.The Tribunal appeared to have made up his mind prior to review the full evidence.
4. Decision amounts to jurisdiction error.
Grounds 1 and 2 refer to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The ADJR Act does not apply: see Schedule 1 (da) and (db). However, I have considered the applicant’s complaints under those grounds more generally below.
Ground 1
By ground 1, the applicant contended that he was denied a reasonable opportunity to be heard before the Tribunal. This was because his Migration Agent ceased acting just prior to the hearing and the Tribunal only gave him one week after the hearing in which to provide additional evidence. The applicant submitted that this was not sufficient time to allow him to obtain assistance from another agent.
The evidence before the Court indicates that the applicant’s Migration Agent notified the Tribunal by letter dated 2 May 2018 that they had ceased acting for the applicant due to difficulties in obtaining evidence from him and contacting him. The Tribunal wrote to the applicant on 3 May 2018 confirming that his Migration Agent had notified the Tribunal they had ceased acting. The applicant was asked to complete a form, “as soon as possible” formally notifying either a change of contact details, or notifying the appointment of another authorised recipient or representative should the applicant wish to appoint one.
The applicant did not reply to this correspondence, but did attend the Tribunal hearing on 10 May 2018. The Tribunal’s decision (at [20]) records that at the hearing, the Tribunal offered not to finalise its decision until 5pm on 17 May 2018. This was in response to the applicant’s indication that he wanted the Tribunal to consider psychological reports that he could access on his phone. Paragraph 20 of the Tribunal’s decision record also states that the Tribunal “advised that it would consider any reasonable request to delay finalising its decision”.
The applicant provided further evidence to the Tribunal, including psychological evidence, through emails sent on 17 May 2018 and 18 May 2018. The applicant did not request any extension of time in which to provide evidence or submissions.
At the hearing before the Court, the applicant accepted that he did not seek additional time. He stated that the reason that he did not do so was because he thought that such request would be refused. The applicant noted that the Department had not granted a second request that he had made to it for an extension of time.
Even accepting this, I am not satisfied that the approach taken by the Tribunal denied the applicant a reasonable opportunity to be heard in accordance with s 360 of the Act, or lacked an “evident and intelligible justification” (see Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225 at [76] per Hayne, Kiefel and Bell JJ). This was in circumstances where:
(a)the applicant attended a hearing before the Tribunal at which he was given the opportunity to make submissions and give evidence;
(b)the Tribunal’s offer at the hearing to allow the applicant a week to provide additional evidence appears to have been made in response to the applicant’s indication that he would be able to access the material that he wished to submit on his phone;
(c)the Tribunal expressly indicated to the applicant that it would consider any reasonable request for additional time; and
(d)no request for additional time was made by the applicant.
Within this context, I do not accept that the Tribunal conducted itself unreasonably by failing to grant additional time that had not been sought. Nor do I accept that the applicant was denied a reasonable opportunity to be heard.
I am therefore not persuaded that ground 1 is able to succeed.
Ground 2
Ground 2 suggests the Tribunal erred in (a) taking into account irrelevant considerations, (b) not taking into account relevant considerations, (c) applying policy without regard to the merits of the case, and (d) exercising power unreasonably.
No particulars were provided to the ground. At hearing, the applicant did not seek to explain what relevant or irrelevant considerations he was referring to under the ground. Nor did he explain what policy he contended had been applied inflexibly, nor how. Aside from what was raised in relation to ground 1, the applicant did not explain how the Tribunal’s exercise of power was contended to have been unreasonable.
On my own review of the materials, I have not identified any matter capable of supporting the ground. In these circumstances, without any particularisation, the ground is unable to succeed.
Ground 3
By ground 3, the applicant contended that the Tribunal’s decision was affected by apprehended bias. The particulars to the ground contended the Tribunal “didn't show any interest on the applicant and witness statement”, “continued to face against them” and appeared to have made up their mind before reviewing the evidence fully.
In an affidavit filed with the originating application, the applicant stated:
That during the hearing the Tribunal appeared to have made up his mind to affirm the department’s decision, even though I informed that I wish to make further submissions and provide further evidence.
The applicant also referred to the Tribunal only providing him with an additional week to provide evidence and submissions, in circumstances where he could not find someone to assist him on such short notice.
In this regard, the ground overlaps to some extent with ground 1. For the reasons I have given in relation to that ground, I do not accept that the Tribunal behaved unreasonably in not granting the applicant additional time after the hearing in which to provide submissions or evidence. For similar reasons, I do not accept that a properly informed “fair-minded lay observer” might reasonably have apprehended from this that the Tribunal “might not bring an impartial and unprejudiced mind” to determination of the matter (see CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [17] per Kiefel CJ and Gageler J).
The applicant did not explain how this could be demonstrated in circumstances where (a) he had not asked for additional time, and (b) the Tribunal had expressly identified to him at the hearing its willingness to consider such a request. The Tribunal’s identification of this, in particular, indicated that the Tribunal was approaching the matter with an open mind that was interested in the applicant’s evidence and willing to give him further time in which to submit it.
During the hearing of this matter, the applicant additionally contended that the Tribunal had made a remark to his brother at the Tribunal hearing (after learning his father’s age) that suggested, “Your father is healthy enough and able to look after himself”. The applicant submitted that the remark was unfair, because age may not be an indicator of how strong a person is. The applicant submitted that the remark responded to his brother’s claim that his father was not healthy enough and that he would be better placed to look after the applicant. The applicant submitted that his brother felt from the remark that the Tribunal was against him and that his brother therefore ceased giving evidence to the Tribunal.
For the Minister, Ms Sangha observed that [30] of the Tribunal’s decision appeared to be relevant to this issue. That paragraph stated (footnotes omitted):
30.Regarding the applicant’s mental health, at hearing and when discussing whether he might be better cared for by his family in the Punjab (by his parents, sisters and uncles), the brother said their father is old and their uncles were not close (and therefore they could not – words to the effect – take care of the applicant). He said he could care for the applicant in Australia. However, later in the hearing the applicant contradicted the brother and said his father and uncles would all (at the least) attempt to assist him on return. Given the country information contradicting the brother’s evidence (about the state of the Punjab economy) and the applicant’s concession about the assistance of his family in the Punjab, the Tribunal has decided to find that the brother is not a reliable witness (and as also stated herein, the applicant has withheld information from the brother), and I accept the applicant’s family could and would assist him should he return to the Punjab; and that he would be able to see some form of work commensurate with his skills in the Punjab.
At a footnote relating to the finding that the brother was not a ‘reliable witness’, the Tribunal stated: “By ‘reliable’, the Tribunal is referring to the ‘dependability’ of evidence”.
Ms Sangha observed that other parts of the Tribunal’s decision indicated that the applicant’s brother had given additional evidence, which was considered by the Tribunal (including at [22]-[23]). Ms Sangha also observed that the applicant had not placed any transcript into evidence that was capable of substantiating his submissions in this regard.
I discussed with the applicant the possibility that a Tribunal member might put a proposition to a witness out of fairness, in order to allow them the opportunity to respond and to address particular concerns. I queried whether this might have occurred in the present case. In response, the applicant accepted that it was possible that this was the Tribunal’s purpose. However, he also submitted that different people respond differently to such situations. His brother’s response was to stop giving evidence.
Even if I accepted that the Tribunal made the remark contended, I would not be satisfied that this would indicate to a “fair-minded lay observer”, who was properly informed, that the Tribunal may not bring an impartial mind to the matter. Rather, I consider that such an observer would have taken the remark to indicate that the Tribunal was putting its concerns to the applicant’s brother in order to allow him the opportunity to respond. Such an action would not (without more) meet the high threshold for a ground of apprehended bias. To the contrary, it would indicate that the Tribunal was open to considering the brother’s evidence in response to its concerns.
For the above reasons, I am not persuaded that ground 3 is able to succeed.
Ground 4
Ground 4 simply asserted that the Tribunal’s decision amounted to jurisdictional error. At the hearing, the applicant confirmed that this ground relied upon the matters raised in relation to his other grounds. For the reasons given above, I do not accept that those matters are capable of demonstrating jurisdictional error.
A further matter
The applicant did raise one further matter at the hearing. This was that he disagreed with the Tribunal’s finding at [18] that the amount of his outstanding debt “would constitute an ongoing impediment to the applicant continuing studies at the appropriate level in Australia”.
The applicant submitted that it was the emotional injury that he had suffered, from his former friend to whom he had loaned the money, that had impeded his studies. The applicant disagreed that the amount of debt was an ongoing impediment, as he was supported by his father and brother.
The applicant’s submissions in this regard appeared to be directed to the merits, rather than the lawfulness, of the Tribunal’s decision. As I explained during the hearing, I am unable to simply revisit the factual findings of the Tribunal. The applicant did not explain why the Tribunal’s finding in this regard was not open to it on the evidence that was before it (beyond disagreeing that this was the effect of his evidence). I am therefore unable to see how this additional matter would be capable of justifying a finding of jurisdictional error.
CONCLUSION
For the above reasons, I conclude that the application must be dismissed with costs.
The Minister indicated that if he was successful, he would seek costs fixed in the amount of $5,400. As this amount is substantially below the Court’s scale, I am satisfied that it is reasonable.
52 I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.
Associate:
Dated: 3 August 2022
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