Luthra v Minister for Immigration

[2018] FCCA 1689

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUTHRA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1689

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – student temporary (class TU) higher education sector visa –Applicant did not comply with condition 8202 of Schedule 8 to the Regulations – where Applicant seeks impermissible merits review – no jurisdictional –  application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116

Migration Regulations 1994 (Cth), Schedule 8, condition 8202

Applicant: PRABHDEEP SINGH LUTHRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1507 of 2016

Judgment of: Judge Hartnett

Hearing date: 22 May 2018

Delivered at: Melbourne

Delivered on: 22 May 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms McInnes

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1507 of 2016

PRABHDEEP SINGH LUTHRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 15 July 2016 wherein the Applicant seeks judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 14 June 2016, wherein the Tribunal affirmed a decision made by a delegate of the First Respondent (‘the Minister’) to cancel the Applicant's student temporary (Class TU) higher education sector (Subclass 573) visa (‘the visa’) pursuant to s.116(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The grounds of application are as follows:-

   “1.    I hold a genuine intention to study and to achieve a better future in my home country.

   2.  I was misled by the education provider and I was never informed about the COE cancellation

   3.  I never acted intentionally to get my enrolment cancelled.”

3. The Applicant filed also, at the time of filing of his application on 15 July 2016, an affidavit affirmed by him on that date which annexed a copy of the Tribunal Statement of Decision and Reasons (‘the Decision Record’) of 14 June 2016, and otherwise in the body of the affidavit essentially restated his grounds of application, and otherwise included relevantly that the Applicant desired to continue his study and then return to his home town.  He said further, in paragraph 2 of that affidavit:-

   “When I reached Australia, after sometime my mother was not well and went under depression because she was a single mum.  I didn't go college sometime and even my university did not contact me to enroll (sic) for next semester. And then I went to my university they said we cancel your COE and we didn't want to inform you.”

4. The First Respondent by response filed 22 July 2016 seeks dismissal of the application and that a costs order follow.

5. By consent orders made by Registrar Caporale on 21 December 2016, the Court ordered that on or before 8 February 2017 the Applicant file and serve any amended application with proper particulars of the grounds of the application and written submissions.  The Applicant has not filed any amended application nor any written submissions.  The Applicant was nevertheless given an opportunity this day on the hearing of the matter to make oral submissions to the Court both generally, and in answer to the First Respondent's written submissions dated 22 February 2017, which had been served upon him many weeks before the hearing. In his oral submissions made this day, the Applicant claimed that the Tribunal member indicated to him that he was not going to listen to him; that the Tribunal hearing itself took only five to ten minutes; that the Applicant had made a mistake and he apologised to the Tribunal; and finally, that the Applicant was not happy with the decision of the Tribunal.

6. Before the Court in evidence was also the contents of the Court Book filed by the First Respondent on 17 January 2017. The Court Book indicates at pages 65 to 66 that the Tribunal hearing commenced at 10.08am and concluded at 10.28am, a period of some 20 minutes.  The Applicant did not put before the Court any transcript of the Tribunal hearing to establish that the Tribunal member indicated to him that he was not going to listen to the Applicant.  What the Court has before it is the Decision Record which indicated that the Tribunal did indeed listen to the Applicant and considered those matters put before the Tribunal by the Applicant.

Background

1. The Applicant is a citizen of India who arrived in Australia on 27 December 2013 as the holder of the visa.  The visa was granted to him on 23 November 2013.  The Applicant told the Tribunal that he came to Australia to study accounting, his mother running a family gold business in India.  He said, as set out in paragraph 17 of the Decision Record, that:-

   “…He wanted to know more before he went back to work in the family business.  He had completed Year 12 in Commerce in India.  He came to Australia to study a Bachelor course in Commerce (Accounting) but found it too hard.  He stated he wanted to enrol in a Diploma course, but did not do so.”

2. The Applicant (in March 2014) commenced a Bachelor of Commerce (Accounting) at the Melbourne Institute of Technology (‘MIT’). He studied for one semester but then stopped attending classes and failed to re-enrol.  On 4 August 2014, the Applicant's enrolment at the MIT was cancelled.

3. On 24 June 2015, the Department of Immigration and Border Protection (‘the Department’) sent the Applicant a notice of intention to consider cancelling the visa.  The notice specified that there appeared to be grounds for cancellation as the Applicant had not complied with a condition of the visa, namely condition 8202 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), which required the Applicant, relevantly, to be enrolled in a registered course (‘condition 8202(2)’). The notice stated that based on the information available from the Provider Registration and International Student Management System (‘PRISMS’), it appeared that the Applicant had ceased to be enrolled on 4 August 2014. The delegate of the Minister for Immigration and Border Protection (‘the delegate’) invited the Applicant to respond to the notice with reasons why he thought the ground for cancellation did not exist or why the visa should not be cancelled.

4. On 1 July 2015, the Applicant responded to the notice.  He claimed that he had been "attending classes on regular basis", and said further:-

   “I am shocked with the news that my COEs have been cancelled by the Education Provider and nobody from the college felt the need to inform me.  Neither had I received any EMAIL from them nor any post.  I have up to date contact details in the college record, but I have never received any notification of this.”

5. On 30 July 2015, a delegate of the Minister cancelled the visa under s.116(1)(b) of the Act. The delegate took into account the Applicant's response to the notice but was satisfied that the visa should be cancelled. The delegate was not convinced that the Applicant was unaware that his enrolment had been cancelled or that he continued to study after 4 August 2014.

6. On 4 August 2015, the Applicant applied to the Tribunal for review of the delegate's decision.  He provided a copy of the delegate's decision to the Tribunal with his review application.  He also provided a written submission to the Tribunal in substantially the same terms as his response to the notice. In those submissions, the Applicant stated:-

   “It is my request to the honourable tribunal member officer that there is no mistake I can see in myself and it is my true intention to study in Australia. With the same intention I came here and started my studies. The wrong decision I took was choosing the wrong and careless education provider, and I am paying cost of the same.  I am requesting the department to kindly look into this matter and review the decision, and also requesting the Honourable Officer to ask College Authorities how they inform me about the cancellation of COEs and if they have not, what is the reason behind that.”

7. On 14 June and in response to the Tribunal's hearing invitation, the Applicant appeared before the Tribunal to give evidence and present arguments in respect of the issues in his case.  At the conclusion of that hearing, the Tribunal affirmed the decision of the delegate to cancel the visa.

Legislative framework

1. At the time the visa was granted, the conditions attached to subclass 573 visas included condition 8202 of Schedule 2 to the Regulations.[1] Condition 8202 was relevantly set out in Schedule 8 to the Regulations as follows:-

   [1] Migration Regulations 1994 (Cth) Schedule 2 cl.573.611(a).

   “(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2)  A holder meets the requirements of this subclause if:

   (a)  the holder is enrolled in a registered course; or

   (b)  in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student—the holder is enrolled in a full‑time course of study or training…”

2. At the time of the delegate's decision to cancel the visa, s.116(1)(b) of the Act provided that the Minister may cancel a visa if he or she is satisfied that:-

   “…its holder has not complied with a condition of the visa.”

   Under s.119 of the Act, the Minister was required to notify the Applicant of the ground that existed for cancelling a visa and invite him to show (within a specified time) that the ground did not exist or that there was a reason why the visa should not be cancelled.

Tribunal Decision

1. In paragraph 2 of the Decision Record, the Tribunal said the following:-

   “The delegate cancelled the visa on the basis that it did not appear that the applicant was enrolled in a registered course of study since August 2014, as per PRISMS records, with specific reference in the decision that ‘with comments in the notification stating that “student failed to re-enrol in Trimester 2, 2014.” Also noted was an entry that the student's last day of study was 28 June 2014.’ The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.”

2. The Tribunal considered whether the Applicant had complied with condition 8202 of Schedule 8 to the Regulations. The Tribunal was cognisant of the fact that if the Applicant had breached that condition, the visa "may" be cancelled.

3. As set out in paragraph 10 of the Decision Record, the Tribunal noted that it discussed the Applicant's circumstances with the Applicant from the time he came to Australia in December 2013.  The Tribunal noted that the Applicant first did an English course, which he passed, before commencing his Bachelor of Commerce (Accounting) at MIT in March 2014.  The Tribunal noted that the Applicant had stated that he found the Bachelor course too hard and the PRISMS information that the Applicant's last day of study was 28 June 2014.  The Applicant stated that he had wished to do a diploma course but that his visa had been cancelled before he could enrol in a diploma course.

4. The Tribunal noted to the Applicant that the visa was cancelled on 30 July 2015, being over a year after he had stopped studying and a year since his enrolment had been cancelled.  The Tribunal asked the Applicant what he had done in the period from when he stopped studying and having his visa cancelled.  The Applicant:-

   “…stated he had stayed at home because he was depressed.  His mother had been sick, though she was now better.  He had thought to return to India, but his cousin, whom he calls his brother, convinced him to stay in Australia.  The Tribunal asked if he had received any treatment because he was feeling depressed.  The applicant stated he had not gone to a doctor. Later in the hearing the applicant stated he had been working part-time at a car wash.”

5. The Tribunal expressed its concern to the Applicant as to his activities in the period between when his enrolment was cancelled in August 2014 and his visa was cancelled in July 2015, including the Applicant not approaching MIT regarding his studies or seeking a new course to study.  On the evidence before the Tribunal, the Tribunal determined the Applicant was not enrolled in a registered course.  Accordingly, the Applicant had not complied with condition 8202(2) of Schedule 8 to the Regulations.

6. The Tribunal then proceeded to consider whether the Tribunal should exercise its discretion to cancel the visa. The Tribunal noted in its Decision Record that there were no matters specified in the Act or Regulations which were required to be considered in relation to exercising that discretion. However, the Tribunal had regard to matters raised by the Applicant as to why the visa should not be cancelled and government policy guidelines contained in the Department's Procedures Advice Manual (‘PAM3’).

7. As set out in paragraph 20 of the Decision Record, the Tribunal noted in response to its consideration of the Applicant's circumstances that it was:-

   “…extremely concerned at the applicant's attitude towards his studies in Australia. Finding his initial commerce course too difficult, the applicant chose not to continue. Instead of seeking a more appropriate course, or getting advice about such a course, but did not turn up when his second semester commenced.  The applicant has sought to blame his education provider that he was not informed about his classes starting or that his enrolment had been cancelled.  The Tribunal is extremely concerned that the applicant himself did nothing to find out about his study, he stopped attending his course and did not make contact with MIT until after his visa was cancelled.  The visa cancellation was over a year after his last study day and almost to the day of his enrolment cancellation.  That the applicant chose not to contact his education provider for over a year, despite being in Australia to study, leads to significant concerns for the Tribunal about the applicant's intention to study in Australia.  The Tribunal does not consider the education provider's failure to communicate with the applicant, as he claims, does not explain the failure of the applicant to attend MIT and seek to understand or resolve any issues he had with his enrolment. The Tribunal does not accept that this is a reason why he was not studying for the year prior to his visa cancellation … the Tribunal places significant weight on the inactivity of the applicant in the year between his enrolment cancellation and his visa cancellation, and his failure to engage with any education provider and have an enrolment during this time.”

8. The Tribunal did not accept that the Applicant's depression led to him being unable to study in Australia.  It noted he had not seen a doctor, nor had his depression stopped him from working part-time in the year after he ceased studying. The Tribunal also did not accept that the Applicant was seeking alternative enrolment in a diploma course at the time his visa was cancelled.  It noted that the Applicant had not provided any letter of offer or made any mention of the enrolment attempt in his letters to the delegate or the Tribunal.

9. The Tribunal placed no weight on the impact of the cancellation of the Applicant's employment opportunities in India, given that he would be employed in his family business on return to India.  The Tribunal noted that the Applicant had been unlawfully in Australia for an extended period of time after the visa was cancelled but did not rely on that fact,  as the Tribunal found:-

   “…there is a common misconception that applying to the Tribunal from a decision to cancel a visa grants an automatic Bridging Visa.”

10. Considering the Applicant's circumstances as a whole, the Tribunal concluded that the visa should be cancelled, thereby affirming the delegate's decision.

Consideration

1. Essentially, the Applicant seeks merits review of the Tribunal decision.  As he said in submissions this day, personally, he is not happy with the decision.

2. The Tribunal expressly considered the Applicant's evidence that he had a genuine intention to study and had regard to all of the evidence as put before it by the Applicant. The Tribunal discussed the Applicant's circumstances with him and highlighted to him those matters with which it had some concern.  Additionally, the Applicant was on notice of the determinative issues in the review because they were the same issues as before the delegate. The Tribunal complied with its obligations of procedural fairness as set out in the statutory regime by affording to the Applicant an opportunity to give evidence and present arguments on the issues in his matter.

3. There was no bias in any part of the Tribunal decision, and the Applicant's suggestion that the Tribunal member indicated that he would not listen to him, has no basis in the evidence before the Court.  The Tribunal took all of the Applicant's circumstances into account when considering whether to cancel the visa, and in respect of that evidence, the findings made by the Tribunal were open to it.  The Tribunal had regard to the relevant policy set out in PAM3, and otherwise correctly considered condition 8202 of Schedule 8 to the Regulations.

4. No jurisdictional error attends the decision of the Tribunal and the application must be dismissed.  Costs shall follow that dismissal.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  27 June 2018