MEHDI v Minister for Immigration
[2020] FCCA 1121
•12 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEHDI v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1121 |
| Catchwords: MIGRATION – Student visa – decision to cancel student visa – whether non-genuine student – evidentiary burden – insufficient evidence – whether decision affected by error – applicable principles – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 116, 474, Migration Regulations 1994 (Cth), reg.2.43. |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 |
| Applicant: | JAMAL MEHDI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1989 of 2015 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 8 May 2020 |
| Date of Last Submission: | 30 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitor advocate for the First Respondents: | Ms Stone |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to: “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application dated 1 September 2015 be dismissed.
The applicant pay the first respondent’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1989 of 2015
| JAMAL MEHDI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 1 September 2015 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 August 2015 affirming a decision of a delegate of the first respondent (Minister) to cancel the applicant’s subclass 573 Student visa.
I have concluded that the application should be refused. In summary, the Tribunal’s decision was readily open and from my examination of the materials comprising the court book, it is not tainted by jurisdictional error. There is no substance in the applicant’s grounds of review.
Background
The applicant, a male citizen of Pakistan aged 27 years, arrived in Australia on 12 June 2013 having been granted a subclass 573 Student (Higher Education Sector) visa expiring 10 April 2017.
At the time of entry into Australia, the applicant was enrolled in a Bachelor of Business which he did not undertake. Instead, the applicant pursued study in a series of English language courses which he completed on 14 May 2014. The applicant did not complete any study thereafter, and his enrolment in the Bachelor of Business was cancelled for unsatisfactory performance.
On 21 August 2014, when contacted by the Department the applicant stated that he was not in school because he was sick and that he would go to school the next day. The applicant was afforded an opportunity to furnish a medical certificate but did not do so.
On 5 September 2014 the applicant was sent a Notice of Intention to Consider Cancellation of his visa.[1] The notice identified that the applicant had not completed any study since 15 May 2014 and surmised that he appeared to not be a genuine student. It stated that the applicant’s visa may be cancelled pursuant to par 116(1)(fa)(i) of the Act on the basis that he was not a genuine student.
[1] Act, s 116.
The applicant appointed a migration agent, who, on 10 September 2014 responded to the notice, submitting that the applicant was “very sick during the period of question and underwent medical treatment as well as medically advised rest due to a medical condition”. The submission attached three documents. First was a letter dated 4 December 2012 from Liaquat National Hospital, Pakistan, which stated that the applicant had presented with back pain on that date, and required bed rest for the period of 5 December 2012 to 4 January 2013. Secondly, was a statutory declaration by the applicant dated 9 September 2014 which stated that he was unable to “perform [his] usual occupation” from 20 March 2014 to 10 August 2014, this being due to another episode of severe back pain. Thirdly, was attached a document dated 23 September 2014 suggesting that the applicant had now enrolled in a Bachelor of Business.
On 23 September 2014, the delegate cancelled the applicant’s visa.
The delegate found that the applicant was granted the subclass 573 visa to study a Bachelor of Business (Accounting); that he had not completed any study in this Bachelor degree; that the applicant had instead undertaken English courses which he had completed on 14 March 2014; and, that he had not studied at all since 15 March 2014. The delegate concluded that the applicant’s primary purpose for holding the visa was not for the purpose of study and that he was not, or was not likely to be, a genuine student. The delegate accordingly found that a ground for cancellation of the visa existed under s 116(1)(fa)(i) of the Act.
The delegate considered the applicant’s claim to have been unable to study for medical reasons and found that there was no medical certificate in relation to the relevant period of illness and no evidence that he sought a deferral of his studies. The delegate found that the written agreement from Cambridge International College was not evidence that the applicant had actually enrolled in a course of study. The delegate considered a number of factors and concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling the visa.
On 24 September 2014 the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant was invited to attend a hearing before the Tribunal, scheduled to occur on 25 February 2015.
On 24 February 2015, the Tribunal received a response to the hearing invitation, which attached three documents, each being letters from the Liaquat National Hospital, Pakistan, as follows:
a)the first letter, dated 9 March 2010, stated that the applicant, who had presented with backache and abdominal pain on 4 March 2010, was advised to consult a gastroenterologist and an orthopaedic specialist. The letter did not state whether he had done so.
b)the second letter, dated 11 July 2011, stated that the applicant, who had presented with abdominal pain and backache had been examined, with no pathology being found. He was advised to avoid junk food;
c)the third letter, dated 16 February 2012, stated that the applicant had presented with backache on 10 February 2012 and required bed rest from 15 February 2012 to 14 April 2012.
Each of those letters predated the applicant’s arrival in Australia.
On 25 February 2015, the applicant appeared at a hearing before the Tribunal and on 26 February 2015 the applicant’s agent provided a written submission to the Tribunal, attaching the following documents:
a)a statutory declaration by the applicant describing his history of back pain in the period March-August 2014;
b)emails between the applicant and Cambridge College in 2014:
i)the first email, transmitted on 11 March 2014, advised the applicant that because of his poor attendance he was required to submit a complaint and appeals form;
ii)the second email, transmitted on 6 May 2014, advised that the college would revise his proposed enrolment upon his executing an agreement and returning it to the college;
iii)the third email transmitted on 21 August 2014, and marked “extremely urgent” from the college to the applicant advised he did not have an active certificate of enrolment (COE) and sought his advice of his study status, offering to reinstate his COE. It does not appear whether this occurred;
c)an agreement for re-enrolment from Cambridge College dated 6 May 2014, but which appears to be unexecuted and incomplete.
On 15 July 2015, the applicant was invited to attend a further hearing before the Tribunal on 3 August 2015.
On 3 August 2015, the applicant appeared before the Tribunal.
PRISMS records from March 2013, indicated that the applicant’s enrolment in courses of study had been cancelled in some ten courses.
Applicable law
The Minister may cancel a visa if satisfied that the applicant is not likely to be a genuine student.[2] Relevantly, subject to provisions which are not presently material, the Minister may cancel a visa if satisfied that:
(fa) in the case of a student visa:
(i)its holder is not, or is likely not to be, a genuine student; or
(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
[2] Act, par 116(1)(fa)(i).
Subsection 116(1A) of the Act provides that:
The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
Relevantly, Reg 2.3 of the Migrations Regulations 1994 (Cth) reads:
(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in sub-regulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.
(1D)For sub-regulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:
(a) because of the conduct of the holder; or
(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or
(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or
(d)on the basis of evidence or a document given to the provider about the holder's circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder's circumstances.
Tribunal’s decision
On 13 August 2015, the Tribunal made its decision, affirming the delegate’s decision to cancel the applicant’s visa, providing a statement of its reasons for doing so (Reasons). The Tribunal identified the source of its power to cancel a visa if satisfied that the holder was not, or was not likely to be, a genuine student or that the holder had engaged in conduct not contemplated by the visa or was likely to do so. The Tribunal had regard to the applicable principles as stated in Minister for Immigration and Multicultural Affairs v Hou.[3] There, Conti J had regard to the purposes of par 116(1)(fa)(i), observing that the use of the expression ‘genuine student’ in that regulation was directed to addressing circumstances in which a visa holder, albeit in literal compliance with the visa conditions, had not conducted him or herself as a genuine student but was generally occupying a place in a tertiary institution which, otherwise, might be taken up by a genuine student. The Tribunal also attached a copy of the applicable regulations.
[3] [2002] FCA 574, [72].
The Tribunal was satisfied that a ground for cancellation existed and proceeded to consider whether that power should be exercised and in doing so, had regard to the evidence which was presented by the applicant, in particular as concerned his back condition and the matters addressed in the departmental procedures advise manual, PAM3.
The Tribunal discussed the matter with the applicant in some detail and found that his evidence lacked credibility. Having considered the evidence and submissions placed before it, the Tribunal was not satisfied that any of them, individually or cumulatively, outweighed the reasons for cancellation of the visa and in those circumstances affirmed the decision under review. The Tribunal affirmed the delegate’s decision to cancel the visa.
Procedural history
On 1 September 2015, the applicant lodged his application for judicial review together with an affidavit in which he deposed that he sought for the delegate’s decision to be “squashed”, and that his non-compliance (with unstated obligations) was for circumstances beyond his control. He further deposed that he would be submitting further documents in due course. In the event, he has not done so.
On 16 September 2015, a response was filed on behalf of the Minister opposing the grant of relief on the basis that the grounds of the application did not disclose any jurisdictional error and that no arguable case for relief was demonstrated.
On 3 February 2016, orders were made by a registrar of the court dismissing the application with costs by reason of the applicant’s failure to appear at a directions hearing.
However, the order dismissing the proceeding was void: Minister for Immigration and Border Protection v BJC16.[4] In short, at the relevant time, a registrar of the court did not have power to dismiss a proceeding.
[4] [2017] FCAFC 114.
On 7 November 2019, the proceeding was reinstated and directions were made, by consent, to regulate the preparation of the matter for final hearing. Included in those directions each of the parties was required to file submissions. In addition, the applicant was afforded an opportunity to file any amended application with proper particulars for his grounds of review together with any further evidence. Those opportunities were not taken by the applicant.
In those circumstances, the Minister’s submissions were responsive to the grounds of review contained in the original application.
The proceeding was listed for final hearing on 30 April 2020, this being during the Covid-19 pandemic. As a result, the parties were given instructions to attend the hearing via audio and/or video link, including directions as to the means of accessing the hearing either via Microsoft Teams or via dialling into a conference phone number. To that end, each of the parties had provided their email addresses and phone numbers.
On 30 April 2020, when the matter was called for hearing, the Minister’s solicitor advocate attended the hearing via video link without issue, however, there was no appearance by or on behalf of the applicant. The hearing was temporarily adjourned so as to ascertain whether communication with the applicant could be established. Although several attempts to call the applicant on his mobile number were made, the first connection, whilst initially successful was lost when the recipient appeared to hang up. Further attempts to contact the applicant via his mobile phone either rang out or, when a successful contact appeared to have been made, was subsequently terminated.
In those circumstances, the court of its own motion adjourned the matter to Friday, 8 May 2020 and directed that a copy of its order be sent via email to the applicant as soon as was reasonably practicable.
Following the hearing, the applicant sent to chambers two emails. In summary, the applicant stated that his calls were; “disconnected for some reason maybe poor network or I don’t know I have no clue it was network problem” and that “I’m waiting for your response”. Responding to that email, the applicant was provided with a copy of the order and informed of the further hearing date. Further, having regard to the supposed difficulty in establishing network connection, on the day prior to the adjourned hearing, a trial connection was made with the parties.
When the matter was called on for hearing on Friday, 8 May 2020, a successful connection was made to each of the parties.
Judicial review
If the Tribunal’s decision was a privative clause decision,[5] it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[6] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[7] Whether it should do so is a separate issue.
[5]Act, s 474(2).
[6]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[7]Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[8] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[8]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[9] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[10] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[9]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[10]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
As the applicant was self-represented before me, I have examined the materials on the court book including the Tribunal’s decisions and the grounds of judicial review set out in the application.
In his originating application, the applicant identified three grounds for review which are set out below:
I seek an order that the decision of the delegate of the minister and the migration review be squashed and be replaced with a more favourable one.
I claim that the circumstances due to which my non-compliance of the visa occurred were beyond my control.
I shall submit more evidence and statements in due course of time.
The first of those grounds misconceives the nature of the court’s jurisdiction on judicial review. It is no part of the court’s jurisdiction to undertake merits review of a decision or to ‘replace’ any decision made by an administrative decision-maker. This ground is rejected.
The second of those grounds was merely repetitious of the assertion contained in the applicant’s affidavit that his non-compliance with the visa had occurred in circumstances which were beyond his control. Having made that affidavit in 2015 and not taken any opportunity in the intervening five years to explain, whether by evidence or submissions, what were the circumstances which resulted in non-compliance with the conditions of his visa and why such circumstances were “beyond his control”, this supposed ground of review is rejected.
The third of those grounds is not a ground of review.
I discern no other basis upon which the decision is affected by jurisdictional error. I agree in the Minister’s submission that the Reasons do not expose a potential basis for challenge and that it was open to the Tribunal to find that the applicant was not a genuine student. The Tribunal, which recognised that it was called upon to exercise a discretionary power, weighed up a number of factors before concluding that the visa should be cancelled. I accept that the Tribunal’s findings were reasonably open to it.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Associate:
Date: 12 May 2020
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