Luitel v Minister for Immigration and Border Protection
[2017] FCA 529
•18 May 2017
FEDERAL COURT OF AUSTRALIA
Luitel v Minister for Immigration and Border Protection [2017] FCA 529
Appeal from: Luitel v Minister for Immigration & Anor [2016] FCCA 3018 File number: NSD 2237 of 2016 Judge: MARKOVIC J Date of judgment: 18 May 2017 Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth) rr 36.03, 36.05
Migration Regulations 1994 (Cth)
Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
Date of hearing: 11 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 45 Solicitor for the Applicant: Mr M Newman, Newman & Associates Solicitor for the First Respondent: Ms C Hillary, DLA Piper Australia Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs. ORDERS
NSD 2237 of 2016 BETWEEN: ASHOK KUMAR LUITEL
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
18 MAY 2017
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 30 December 2016 be dismissed.
2.The applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
The applicant applies pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (Rules) for an order that an extension of time be granted to appeal from orders made and judgment given in the Federal Circuit Court of Australia (Federal Circuit Court) on 24 November 2016: Luitel v Minister for Immigration & Anor [2016] FCCA 3018 (Luitel). The Federal Circuit Court dismissed with costs an application for review of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal), dated 2 October 2014. The Tribunal had affirmed a decision by a delegate of the first respondent (Minister) to cancel the applicant’s student visa.
BACKGROUND
The applicant is a citizen of Nepal who first travelled to Australia in March 2009. On 19 June 2012 he was granted a Subclass 573 Student visa which was subject to condition 8202 of Sch 8 to the Migration Regulations 1994 (Cth) (Regulations). Condition 8202 relevantly required that the applicant be enrolled in a registered course.
At the time the visa was granted the applicant was enrolled in a Bachelor of Business course at the Holmes Institute. He ceased to be enrolled in a registered course on 20 September 2012.
On 12 August 2013 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC). The delegate considered that the applicant did not comply with condition 8202 because he had ceased to be enrolled in a registered course. The applicant responded to the NOICC by letter received by the Minister’s Department on 19 August 2013. The Minister’s Department also received an email from the applicant’s mother dated 30 September 2013.
In his letter the applicant stated that his agent had told him in August 2012 that the education provider had cancelled his enrolment and that it had later suggested that he join the course the next semester, but that it had failed to return a subject fee that he had paid. The email from the applicant’s mother stated that the applicant’s family had experienced financial difficulties, which had affected the applicant’s study from August 2012.
The delegate cancelled the applicant’s visa on 1 October 2013 pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (Act). The applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant attended a hearing before the Tribunal as originally constituted (First Tribunal) on 4 February 2014. The First Tribunal found that the applicant had breached condition 8202 and affirmed the delegate’s decision.
The applicant sought judicial review of the First Tribunal’s decision and on 30 June 2014 orders were made by consent remitting the matter to the Tribunal for reconsideration. The Minister conceded that the First Tribunal erred by not considering the email from the applicant’s mother. The First Tribunal had made no reference to the email in its decision record and made a finding that the applicant had provided no documentary evidence in support of his claims.
On 26 September 2014 the applicant attended a hearing before the Tribunal as reconstituted (which I refer to as the Tribunal) at which he provided evidence of an enrolment application made to Evolution Hospitality for a Certificate III in Hospitality.
The Tribunal made a decision on 2 October 2014 affirming the decision under review.
THE TRIBUNAL DECISION
The Tribunal identified that the issue for determination was whether the applicant, as the holder of a student visa, had breached condition 8202 of Sch 8 to the Regulations. It noted that if the applicant had breached that condition then, under s 116(1) of the Migration Act, his visa may be cancelled.
The Tribunal found that the applicant had not been enrolled in any registered course since September 2012 and noted that the applicant had informed it at the hearing that he was still not enrolled in any registered course. The Tribunal acknowledged the evidence provided by the applicant that he had recently applied for enrolment in a Certificate III in Hospitality (Commercial Cookery) course but noted that at the time of the hearing he had not yet been formally enrolled in the course. On the basis of the evidence before it, the Tribunal found that the applicant had breached condition 8202(2)(a) of his visa and therefore breached condition 8202 as a whole. Accordingly, it found that there was a ground for cancellation under s 116(1)(b) of the Act.
The Tribunal went on to consider whether to exercise its discretion to cancel the applicant’s visa. The Tribunal found that, at the time the delegate issued the NOICC in August 2013, the applicant had remained in Australia for almost a year as a holder of a student visa while not enrolled in any registered course. The Tribunal also found that the situation remained unchanged, such that he had now been living in Australia for approximately two years while not enrolled in a registered course and not undertaking any study. It also noted that, even if he were to secure enrolment in a Certificate III in Hospitality (Commercial Cookery) course, that would not be a course of study in the Higher Education Sector. In light of those findings the Tribunal found that the applicant was not fulfilling the purpose of a student visa and the purpose of his travel to and stay in Australia.
The Tribunal considered the applicant’s explanation for not maintaining his enrolment. The reasons given by the applicant were his father’s abandonment of the family business; the family and his father’s refusal to provide financial support for the applicant’s study; and that, as a result, he felt financial and psychological pressure. In summary, the Tribunal did not accept those claims for the following reasons:
(1)while accepting that there was no onus on the applicant to provide evidence to support his claims, it noted that the only evidence about the applicant’s loss of funds or loss of financial support from his family was a submission by his mother. The Tribunal noted that, if the family’s financial situation had deteriorated as the applicant claimed, it would have expected the applicant to provide some relevant evidence from sources outside the family;
(2)the applicant told the First Tribunal that his mother had effectively taken over the business and had been in a position to provide him with financial support since around November 2013. Despite being asked on several occasions, the applicant was unable to provide any convincing reason why, if financial support was now available, he had not enrolled in a course of study;
(3)the applicant claimed that he was too depressed by the cancellation of his visa to know what to do and that he had nobody to advise him. The Tribunal noted that he had the services of a migration agent who had advised him to first enrol in a course which involved more practical skills, given his mental state, and that he could enrol in a degree course at a later stage. The Tribunal observed that, if that had been the case, it would have expected the applicant to have sought enrolment much earlier. It noted that the evidence submitted by the applicant indicated that he had only sought enrolment in the Certificate III course less than two weeks before the hearing;
(4)even if the Tribunal were to accept that the applicant had lacked the funds to support his study after September 2012, this would have indicated that there were separate grounds for cancelling his visa because the circumstances which permitted the grant of the visa, namely, having financial support for his study, no longer existed;
(5)the Tribunal put considerable weight on the fact that the applicant had not enrolled in an appropriate course soon after November 2013, when he said that funds became available. That fact led the Tribunal to disbelieve the applicant’s claims regarding the circumstances leading to his temporary lack of financial support between 2012 and 2013. It thus gave little weight to the submission made by the applicant’s mother;
(6)the Tribunal noted that, because the applicant was last paid by his family in April 2012, he would have known before the visa was granted in June 2012 that he had no funds to support his study and that he had an obligation to inform the Minister’s Department of that circumstance. He did not do so. The Tribunal’s view was that this most likely meant that his claim that he had no funds with which to sustain his study in late 2012 was false. It considered that this view was particularly likely given that the applicant now claimed that financial support had been available since late 2013 but that he had not yet enrolled in any course; and
(7)the Tribunal did not accept that the applicant had experienced any mental issues. The applicant had not sought professional advice and there was no relevant medical evidence. Further, the fact that the applicant chose to remain in Australia rather than return home when not actively engaged in studies suggested to the Tribunal either that the applicant was able to continue with his studies or that the purpose of his presence in Australia was for reasons other than study. The applicant had also maintained employment for 20 hours per week, which supported the Tribunal’s view that he did not have any emotional difficulties or psychological illness. Finally, when asked by the First Tribunal why he was able to work but not able to study, the applicant said that he had to work to support himself and that it was a necessity. The Tribunal found that the context of his remarks indicated that, at the time, he did not regard study as a necessity. This suggested to the Tribunal that the applicant was not a genuine student and that he had decided to remain in Australia for reasons other than study.
The Tribunal was not convinced that the applicant’s breach of condition 8202 occurred in circumstances beyond his control and considered that there were not any extenuating or compassionate circumstances that outweighed the grounds for cancelling the visa. The Tribunal found, on the basis that the applicant had failed to engage in any study since September 2012, that he was no longer a genuine student and, in considering the applicant’s circumstances as a whole, concluded that his visa should be cancelled.
PROCEEDING BEFORE FEDERAL CIRCUIT COURT
At the time the applicant sought review in the Federal Circuit Court he was self-represented. However, at the hearing, he had representation. His solicitor, Mr Newman, provided an outline of written submissions to the Federal Circuit Court which did not address the grounds contained in the application filed by the applicant but raised different bases on which jurisdictional error was alleged. The primary judge gave leave to the applicant to file an amended application after the hearing to reflect the grounds addressed in the outline of submissions and in oral submissions. The amended application set out two grounds, which were, as written:
1. The Tribunal erred in law and in its jurisdiction when it drew adverse inferences from the fact that the applicant had not enrolled at a college for some considerable period of time ignoring the impediment the applicant laboured under, viz., the lack of any lawful entitlement to study owing to the earlier cancellation of his student visa.
PARTICULARS
(a) The applicant relies on a passage from Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 180 ALR 1; 75 ALJR 1105 (31 May 2001), where in the joint judgment of McHugh, Gummow and Hayne JJs Craig v S. Australia is cited:
“in Craig v South Australia [50], if an administrative tribunal (like the Tribunal) falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
(b) The applicant’s student visa was cancelled on 1.10.2013 – see Delegate’s letter of same date at CB 27. At para 15 of the Tribunal’s decision of 2.10.14 at CB135, the tribunal noting that the applicant had ceased enrollment on 20.12.2012, said, “…so he has now been living in Australia for approximately two years while not enrolled in a registered course and undertaking any study”. See also para 12. NB: Proceedings commenced in this Court in or about February 2014. [emphasis added]. See also the opening remarks at para 16 CB135.
2.The Tribunal erred in law and in its jurisdiction when it drew adverse inferences from the fact the applicant had no medical evidence to support his claim that he had suffered from depression and was unable to attend to his studies despite making no call for such evidentiary material when it wrote to the Applicant on 9 July 2014 – CB 80 advising that it “may do one of” four things, namely (inter alia) “seek your comments or response to particular information” particularly when in para 30 CB137 it partly founded its decision to disbelieve the applicant because at the T1 stage he stated that he had not sought professional advice.
In relation to the first ground, the primary judge found that the applicant had established neither that the Tribunal ignored relevant material in a manner constituting jurisdictional error, nor illogicality or legal unreasonableness on the basis on which it was contended: Luitel at [59].
The primary judge noted that, as pleaded, the ground asserted a jurisdictional error of the type considered in Craig v South Australia (1995) 184 CLR 163, as referred to in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The primary judge also noted that the applicant did not otherwise address the authorities concerning ignoring relevant material. Her Honour observed that the applicant’s contention was that the Tribunal had “ignored” what was said to be “the law” that a person on a bridging visa would not be permitted to study under the conditions imposed on such a visa. Her Honour found that the fundamental difficulty that faced the applicant was that the premise underlying this contention, namely, that as a matter of law he must have been unable to study lawfully after his student visa was cancelled, was not made out: Luitel at [60]-[63].
Her Honour noted that, when regard is had to the Regulations, the fact that an applicant’s student visa has been cancelled does not entail a conclusion, as a matter of law, that such a person either held no visa at all or that he or she had no right to study. The primary judge found that it did not necessarily follow from cancellation of the applicant’s student visa that he did not have any legal entitlement to study. Her Honour said at [66]:
… The Applicant has not established any legal basis for the proposition that a person whose student visa had been cancelled would be prohibited from undertaking study or being enrolled in a course of study. Although his student visa had been cancelled, this did not entail the conclusion that as a matter of law he had no right to study.
Her Honour concluded that the first ground was not made out: Luitel at [70].
The primary judge noted that “the Applicant appeared to disavow reliance on [his] contentions” that the Tribunal’s decision was illogical or unreasonable and that, strictly speaking, it was not necessary to consider illogicality or unreasonableness. Her Honour nonetheless went on to do so and concluded that the Tribunal’s reasoning process had not been shown to lack an evident and intelligible justification or to be otherwise irrational, illogical or legally unreasonable: Luitel at [78].
In relation to the second ground, the primary judge found that, insofar as the ground was intended to maintain the contention that the Tribunal failed to comply with s 359A of the Act, the applicant had failed to identify any information which would give rise to an obligation under s 359A(1). Her Honour further found that, insofar as the applicant asserted that the absence of documentary evidence, whether financial or medical, was information that should have been put to the applicant pursuant to the Act, a lack of information does not amount to information within s 359A of the Act, citing SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26. Her Honour noted that there was no obligation on the Tribunal under s 359A to alert an applicant to gaps in his or her evidence, nor was there an obligation on the Tribunal to ask the applicant to provide evidence of his claimed depression or to inform him that his failure to do so was adverse to his case: Luitel at [97].
The primary judge rejected the applicant’s submission that the Tribunal’s letter of 9 July 2014 somehow “lulled” him into thinking that he was not required to submit any information. Her Honour held that procedural fairness did not require the Tribunal to make a specific request for particular information from an applicant: Luitel at [98].
The primary judge also found that the applicant’s assertion that the Tribunal had failed to put dispositive issues to him under s 360 of the Act was not made out. Insofar as that assertion related to the Tribunal hearing, in the absence of a transcript, there was no evidentiary basis for such an assertion. In any event, her Honour found that the applicant was on notice of the significance of the absence of medical evidence based on the delegate’s decision and based on the decision of the First Tribunal. The primary judge also found that it had not been established that the Tribunal failed to raise dispositive issues with the applicant in a manner constituting jurisdictional error: Luitel at [100]-[102].
Finally, her Honour rejected the applicant’s claim that the Tribunal had erred in failing to offer him further time to submit any documentary evidence, finding that there was no evidence that the applicant had sought any further time to submit such evidence: Luitel at [103].
Once again, the primary judge noted that, if the second ground intended to go beyond the matters addressed by the applicant in his submissions and assert illogicality or unreasonableness, then that assertion was not made out: Luitel at [104]-[105]. Her Honour concluded that the second ground was not made out.
APPLICATION FOR AN EXTENSION OF TIME
By application filed on 30 December 2016 the applicant seeks an extension of time in which to file a notice of appeal from the whole of the judgment and orders of the primary judge.
An affidavit sworn by Mr Newman on 30 December 2016 was filed with the application. In that affidavit Mr Newman says that he suffers from a “major illness” and that throughout December he had been unwell, had undergone a number of tests, was admitted to hospital and had had surgery. As a result, Mr Newman says that he was unable to file the draft notice of appeal by mid-December.
Mr Newman also deposed that the applicant’s appeal concerns “the lower court’s determination that a bridging visa may act as a substitute for a cancelled substantive visa”.
The applicant has provided a draft notice of appeal which includes one ground as follows:
Her Honour erred in law by upholding the Tribunal’s decision not to reinstate the applicant’s cancelled substantive Student visa, ignoring relevant material that the cancellation prohibited his attendance at college to study. Her Honour speculating that a subsequent Bridging visa might have allowed study [para 65] notwithstanding that there was no or not a sufficient evidentiary basis for such a finding.
LEGAL PRINCIPLES
Rule 36.03(a)(i) of the Rules requires a notice of appeal to be filed within 21 days after the date on which the judgment appealed from was pronounced or the orders were made. Rule 36.05 of the Rules then sets out the procedure to be followed by a party who wishes to apply for an extension of time within which to file a notice of appeal.
In SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [18] Murphy J noted that the Court has treated the factors set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 as the principles which should guide the Court in determining whether an extension of time should be granted. At [19] his Honour then observed that an application for an extension of time requires consideration of the following factors:
(1)satisfaction that it is proper to extend time, noting that the prescribed period is not to be ignored. His Honour noted that this usually requires an acceptable reason for the delay;
(2)any prejudice to the respondent, noting that the mere absence of prejudice is not enough to satisfy the grant of an extension; and
(3)the merits of the appeal.
EXPLANATION FOR THE DELAY
The primary judge gave judgment and made orders on 24 November 2016. Pursuant to r 36.03, the last day on which a notice of appeal could be filed was 15 December 2016. The application for an extension of time was filed on 30 December 2016. The applicant therefore requires an extension of time of 15 days.
The explanation provided for the delay is that the applicant’s solicitor was unwell and thus unable to file the application in time. The Minister does not take issue with this explanation. In the circumstances I am satisfied that the applicant has provided an acceptable reason for the delay. I would infer that the applicant was reliant on his solicitor to file his notice of appeal within time and that it was his solicitor’s illness and nothing more which caused the delay.
PREJUDICE
The Minister submitted that he can point to no prejudice should the extension of time be granted in the present case.
MERITS OF THE APPEAL
The Minister relies on this factor to oppose the application for an extension of time. The Minister submitted that there is insufficient merit in the appeal to justify the Court granting the application.
The applicant has filed submissions in support of the application. Those submissions seem to go to the merits of the appeal and, given their brevity, it is convenient to set them out in full:
1.The applicant held a student visa which was cancelled by the Dept. for reasons that do no (sic) not concern us. He managed to obtain a bridging visa and remained lawful while the appeal process ran.
2.At the Tribunal he was found to have not studied for 18 months which included the time dating from the Department's cancellation of his student visa until the date of the Tribunal hearing. The court below found no fault in the tribunal’s reasoning speculating that a bridging visa, obtained after the loss of the student visa, might yet allow study.
3.The applicant says that there is only one type of bridging visa that permits study as the attached advisory to the Parliament attests and that is a bridging visa E (subclass 050) and (subclass 051) which is clearly not the case here.
4.There is clearly no prejudice to the respondent.
The submissions refer to and annex a document titled “Appendix F: Bridging visa conditions and entitlements”. The applicant abandoned his reliance on that document in the course of argument.
In oral submissions the applicant submitted that “when you’re exercising a discretion, you’ve got to have the facts right”. He further submitted that both the Tribunal and the primary judge erred by dealing with the status of the applicant’s ability to study inferentially; that the error made by the Tribunal and the primary judge was that there was no positive finding of an entitlement to study by reason of the applicant’s bridging visa or otherwise after his student visa was cancelled; that any conclusions reached by the Tribunal and the primary judge ought to have been based on such a finding; and that if the Tribunal, in exercising its discretion, took into account a period during which the applicant’s visa was cancelled then that would be an error.
The applicant’s proposed ground of appeal has no merit. The applicant is correct when he submits that the Tribunal made no positive statement about his entitlement to study. However, that was not the issue before the Tribunal. As noted above, the Tribunal identified the issue as being whether the applicant had breached condition 8202 of Sch 8 to the Regulations and, if he had breached that condition, whether the discretion under s 116(1) of the Act to cancel the visa should be exercised. The Tribunal found, on the basis of the applicant’s own evidence, that he had ceased to be enrolled in a registered course in September 2012 and that he had remained unenrolled for more than two years. The applicant did not claim in giving his evidence about his lack of enrolment that he had no entitlement to study. Based on the applicant’s evidence, the Tribunal found that the applicant had breached condition 8202 and then went on to consider the exercise of the discretion to cancel the visa.
In relation to the exercise of the discretion, the Tribunal noted that there were no matters specified in the Act or the Regulations that were required to be considered, but that it had had regard to matters raised by the applicant as to why the visa should not be cancelled and the government policy guidelines contained in the Department’s Procedures Advice Manual. It then proceeded to consider the issues raised by the applicant, which concerned his financial difficulties and his mental state. In considering those issues there was no requirement for the Tribunal to make a positive statement or a finding about the applicant’s entitlement to study.
The applicant put no evidence before the Tribunal of what bridging visa he held or what, if any, conditions were placed on it. Further, the applicant’s claims as presented to the Tribunal did not suggest that he was not legally entitled to undertake study. As the Minister submitted, when asked why he was able to work but not able to study, the applicant did not point to his visa conditions as a relevant matter.
The primary judge addressed this aspect of the first ground raised in the applicant’s amended application and the applicant’s contentions that “‘the law of student visas’ was that ‘to study in this country you have to have a visa’” and that “in deliberating upon its discretionary powers in relation to cancellation the Tribunal had taken into account the period of time the Applicant did not possess a student visa in considering the time he did not attend college” at [63] to [66] of her reasons. In doing so her Honour noted that, when regard is had to the Regulations, it is clear that the fact that an applicant’s student visa has been cancelled does not lead to the conclusion, as a matter of law, either that such a person holds no visa at all or that he or she has no right to study. In particular, at [65] her Honour observed that a person in the position of the applicant would normally have been entitled to be granted a bridging visa after his or her student visa was cancelled. The primary judge further noted that, while visas are subject to conditions which are set out in Sch 8 of the Regulations and that one of the specified conditions prohibits visa holders to whom it applies from undertaking studies in Australia, a bridging visa can be granted without this condition being imposed. In setting out these matters her Honour was addressing the applicant’s contention that it was “the law” that a person on a bridging visa would not be permitted to study under the conditions imposed on such a visa.
The primary judge found that it did not necessarily follow from cancellation of the applicant’s student visa that he did not have any legal entitlement to study. Her Honour found that the applicant had not established any legal basis for the proposition that a person whose student visa had been cancelled would be prohibited from undertaking study or being enrolled in a course of study. Her Honour did not ignore relevant material as alleged in the proposed ground of appeal. The issue of whether the cancellation prohibited the applicant’s attendance at college to study was not a matter that was raised before the Tribunal and there was no error in her Honour’s approach in addressing this aspect of the applicant’s first ground as argued before her.
CONCLUSION
In light of the conclusion I have reached about the merits of the applicant’s proposed appeal, the applicant’s application for an extension of time should be dismissed and the applicant ordered to pay the Minister’s costs. I will make orders accordingly.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 18 May 2017
0
6
3