MANANDHAR v Minister for Immigration
[2018] FCCA 1070
•1 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANANDHAR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1070 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error - whether all the applicant’s relevant circumstances were considered – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65(1), 116(1), 357A, 360, 360A, 474, 476 Migration Regulations 1994 (Cth), r.2.01 Sch 2 cls 572.223(1A) and 573.111 Department of Immigration and Border Protection, Procedures Advice Manual 3 (PAM 3) – General Visa Cancellation Powers |
| Cases Cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 |
| Applicant: | KIRAN MANANDHAR |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 332 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 1 May 2018 |
| Date of Last Submission: | 1 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2018 |
REPRESENTATION
| The Applicant appeared in person with the assistance of a Nepali interpreter |
| Solicitors for the Respondents: | Mr Aaron Day, DLA Piper Australia |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 332 of 2017
| KIRAN MANANDHAR |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the then Migration Review Tribunal dated 22 April 2015 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 3 February 2015 refusing the applicant a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (“Student visa”).
Background
On 9 January 2014, the applicant was granted a Student visa.
On 14 November 2014, the applicant was issued with a Notice of Intention to Consider Cancellation (“NOICC”). The NOICC stated that Provider Registration and international Student Management System (“PRISMS”) records indicated that although the applicant was enrolled in a principle course of study for a bachelor’s degree or a masters degree by course work, he was not enrolled in another course of study before and for the purposes of the principle course of study. Therefore, the NOICC stated that it appeared that the applicant no longer satisfied the definition of "eligible higher degree student" and the circumstances that enabled him to satisfy clause 573.223(1A) no longer existed.
On 19 November 2014, the applicant responded to the NOICC the applicant claimed he commenced his course but failed all of the subjects. As a result, he was depressed and found studying difficult. As a result, the applicant cancelled his confirmation of enrolment and subsequently informed his parents of the same. His parents insisted he not return home without having completed his courses. The applicant decided to resume his studies but could not obtain a placement within an approved education provider. He then made contact with a friend who had just moved to Sydney and made the decision to move to Sydney and study hospitality. He obtained a placement at Holmes Institute to commence a Certificate IV in Commercial Cookery as a prerequisite to a Bachelor of Business as a packaged course. At this point, the applicant believed he had satisfied the requirements of his visa.
On 3 February 2015, the Delegate refused the applicant’s application for a Student visa under s.116(1)(a) of the Act The delegate found that the applicant no longer satisfied the definition of "eligible higher degree student" and that the circumstances which permitted the grant of the visa no longer existed.
PRISMS records accessed by the Tribunal on 17 April 2015 showed that all enrolments held by the applicant had been cancelled and that he was not enrolled in any course.
On 4 February 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 22 April 2105, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Student visa.
On 6 February 2017, the applicant filed an application in this Court seeking an extension of time to seek judicial review of the Tribunal’s decision, together with substantive grounds of review.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act).
Relevantly, pursuant to s.360 of the Act the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 360A of the Act provides for the information to be provided to an applicant in the Notice of Invitation to Appear.
Relevantly, clause 573.223(1A) of Schedule 2 to the Regulations requires that an applicant be an "eligible higher degree student". Clause 573.111 of Schedule 2 to the Regulations defined "eligible higher degree student" as follows:
“"eligible higher degree student" means an applicant for a Subclass 573 visa in relation to
whom the following apply:
(a) the applicant is enrolled in a principal course of study for the award of:
(i) a bachelor's degree; or
(ii) a masters degree by coursework;
(b) the principal course of study is provided by an eligible education provider;
(c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:
(i) the applicant is also enrolled in that course; and
(ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.”
Section 116 of the Act provides the Minister with the power to cancel visas in certain circumstances, including where the Minister is satisfied that a circumstance which permitted the grant of the visa no longer exists, pursuant to s.116(1)(a).
The Delegate’s decision
The Delegate set out cl.573.223(1A) of Schedule 2 to the Regulations.
The Delegate was satisfied on the information available that there were grounds for cancelling the applicant’s visa.
The Delegate went on to make an assessment of relevant factors in determining whether to cancel the applicant’s visa.
The Delegate gave little weight to the applicant’s submissions, noting a lack of evidence in support. The Delegate also noted that the applicant ceased his studies with Queensland Institute of Business and Technology Pty Ltd (“QIBT”) on 20 June 2014. The Delegate also noted that the PRISMS disclosed that the applicant had withdrawn from his course to go back to Nepal.
The Delegate was satisfied that there was a ground for cancelling the applicant’s Student visa and that the grounds for cancelling the visa outweigh the grounds for not cancelling the visa.
The Tribunal’s review and decision
On 4 February 2015, the applicant lodged an application for review of the Delegate’s decision with the Tribunal.
The applicant provided further documents in support of his review application including a submission, his QIBT student profile and confirmation of enrolment at the Holmes Institute.
On 27 March 2015, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 22 April 2015 to give oral evidence and present arguments.
On 22 April 2015, the applicant and his representative attended the Tribunal hearing and the applicant gave evidence.
The Tribunal found that the applicant was granted a Student visa in January 2014 on the basis of his enrolment in a Diploma of IT at QIBT and a Bachelor of IT at Griffith University. The applicant’s enrolment in a Diploma of IT was cancelled and that course was a prerequisite for the applicant’s enrolment in a Bachelor course and to meet the requirements of the Regulations.
The Tribunal found that as the applicant ceased to be enrolled in such a course, that he ceased to be an eligible higher degree student and he no longer met the requirements of cl.573 of Schedule 2 to the Regulations. The Tribunal noted that the purpose of a subclass 573 visa was to undertake study at the higher education level and that the applicant was not fulfilling the purpose of his travel to and stay in Australia.
The Tribunal found that the circumstances which permitted the grant of the visa no longer existed and that there were grounds for cancelling the visa under s.116(1)(a) of the Act.
The Tribunal then considered the applicant’s relevant circumstances including but not limited to matters identified in the Department’s Department of Immigration and Border Protection, Procedures Advice Manual 3 (PAM 3) – General Visa Cancellation Powers (“PAM3”).
Otherwise, the decision of the Tribunal is accurately summarised in the first respondent’s written submissions as follows:
“15 At [13], the MRT considered the circumstances in which the ground for cancellation arose and in doing so considered the applicant’s response to the NOICC ([14]-[16]). The MRT accepted the applicant became stressed living in a new country and studying away from his family. The MRT also accepted the applicant found it difficult to adjust to a new teaching style. However, ultimately the MRT did not accept those matters justified the applicant's decision to abandon the study for which he was granted the visa, particularly so quickly after having commenced his course ([18]).
16 The MRT was concerned that the applicant’s decision to abandon the IT course after only six months of study indicated that he had been less than truthful in his initial student visa application ([19]).
17 The MRT also noted that the applicant had the option of obtaining another visa that was more appropriate for the course he wanted to do, and was not satisfied there was any good reason for the applicant’s decision not to seek a more appropriate course ([20]).
18 The MRT determined the applicant's evidence, that the applicant cancelled his enrolment to return to Nepal having contacted his family and was then subsequently pressured by his family into staying in Australia, was not plausible. The MRT considered it more likely the applicant did not have a genuine intention of departing Australia, cancelled his enrolments and then informed QBIT to that effect in order to obtain his release letter from the provider ([21]).
19 The MRT also accepted the applicant was able to obtain enrolment at Holmes Institute, however, ultimately found that the issue was not that the applicant failed to enrol with an approved provider, but that he abandoned the course which was a prerequisite to the principal course for which he was granted the visa ([22]).
20 The MRT found that there were no extenuating or compassionate circumstances in this case ([23]).
21 The MRT found that the circumstances which permitted the grant of the visa ceased to exist because the applicant ceased to be enrolled in a course that was a prerequisite to his principle course ([25]).
22 The MRT acknowledged that the cancellation might cause hardship to the applicant, but found that it would not cause significant hardship to the applicant's family or affect anyone else's visa or give rise to Australia's international obligations ([26]).
23 Considering the circumstances as a whole the MRT concluded that the visa should be cancelled ([27]).”
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Nepali interpreter.
On 20 February 2017, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents in English. The applicant was also given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.
At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.
The applicant’s initiating application, filed on 6 February 2017, sought an extension of time to seek judicial review of the Tribunal’s decision dated 22 April 2014. However, at the directions hearing, directions were made setting the matter down for final hearing without reference to the applicant’s application for an extension of time. In the circumstances, the solicitor for the first respondent, Mr. Day, did not oppose an extension of time being granted to the applicant to seek judicial review of the Tribunal’s decision. Accordingly, the matter proceeded today as a final hearing.
The applicant confirmed that he relied on the grounds contained in the Application, filed on 6 February 2017, as follows:
“1. The Migration Review Tribunal, currently a division of the Administrative Appeals Tribunal, refused to revoke the decision made by the Department of Immigration and Border Protection to cancel my Subclass 573 Higher Education Sector visa without properly considering the circumstances I was going through at that time, when it was obvious that the DIBP made a mistake and improperly cancelled my visa. I have been deprived of being considered in full at a full hearing, or at least show cause hearing at the Migration Review Tribunal.
2. I was only wishing to change my courses to a more practical field and be able to utilize it after my studies and although the process was quite messy and may have not completely gone through as I wish it would have now, the intentions and result fully justify the fact that it was my intention to do so and nothing else.
3. But the DIBP and MRT have not considered these facts along with the fact that I had just started studying and become an adult to cope with matters myself. Procedures are important but the justification can come from the end result and the end result is as I have said all along.
4. Once my original visa gets cancelled, acquiring the right visa also becomes almost impossible as there will be a record of visa cancellation. So simply wishing to wait and change my visa was what I wanted but now have been deprived of the right to do so because of the wrongful decision by the DIBP.
5. Thus I wish to have the decision by the DIBP to cancel my original visa cancelled and become void so I can simply apply and change for my visa status to the appropriate one and finish my studies in Australia.
6. For the above reasons, I file this appeal and pray the court grant my appeal.”
The applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
The applicant said nothing more than that he had tried hard to complete the course.
I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
The substance of the applicant’s complaints appear to be that his circumstances were not “properly” considered by the Tribunal and that he was deprived of a “full hearing”. To the extent that the grounds of the application refer to the Delegate’s decision, this Court has no jurisdiction to consider those complaints.
The applicant had the assistance of his migration agent at the hearing.
The Tribunal’s findings summarised above at [33] were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
There is nothing in the Tribunal’s decision record to suggest that the applicant did not have a “full hearing”. There is no evidence before the Court of any complaint either by the applicant or his migration agent about the hearing. The Tribunal discussed the applicant’s claims with him at the hearing and considered all relevant issues in relation to whether extenuating or compassionate circumstances existed. The Tribunal accepted that the cancellation may cause hardship for the applicant but also noted that it would not affect any other person’s visa and would not result in the breach of Australia’s international obligations.
The Tribunal stated “considering the circumstances as whole, the Tribunal concludes that the visa should be cancelled” and affirmed the decision under review.
The Tribunal’s decision record makes clear that the Tribunal considered all of the applicant’s circumstances and did so in light of PAM3.
Accordingly, the applicant’s complaints that his circumstances were not “properly” considered and that he was deprived of a “full hearing” are not made out.
Otherwise, grounds 2, 4, 5 and 6 of the application make bare assertions that do not disclose an error capable of review by this Court. The applicant’s complaints appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 1 May 2018
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