Miglani v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2023] FedCFamC2G 292

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Miglani v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 292  

File number:

MLG 2731 of 2022

Judgment of:

JUDGE RILEY

Date of judgment:

27 March 2023 

Catchwords:

MIGRATION – Administrative Appeals Tribunal – cancellation of dependent student visa – applicant accepting that the grounds for cancellation existed – whether there was any jurisdictional error in the exercise of the Tribunal’s discretion.

Legislation:

Migration Act 1958 ss.116(1)(g), 140, 359A

Migration Regulations 1994 r.2.43(1)(oa)

Division:

Division 2 General Federal Law

Number of paragraphs:

37

Date of hearing:

27 March 2023 

Place:

Melbourne

Advocate for the Applicant:

In person

Advocate for the First Respondent:

Catherine Oppel

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitor for the Second Respondent:

Australian Government Solicitor

ORDERS

MLG 2731 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SUNNY MIGLANI
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE RILEY
DATE OF ORDER:	27 march 2023

THE COURT ORDERS THAT:

1.The application filed on 12 December 2022 be dismissed.

2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8,371.30.

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).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE RILEY:

1. This is an application to review a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister cancelling the applicant’s dependent student visa.

2. The applicant’s wife obtained a student visa and the applicant obtained a visa as her dependant. That visa was cancelled by a delegate of the Minister after the applicant was convicted of two counts of sexual assault and one count of false imprisonment.

3. The ground of cancellation was under regulation 2.43(1)(oa) of the Migration Regulations 1994 which permits cancellation where a person holds a temporary visa and the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, or a state or territory, whether or not the holder held a visa at the time of the conviction and regardless of the penalty imposed, if any. Under s.116(1)(g) of the Migration Act 1958, the Minister can cancel a visa where that regulation applies. 

4. The applicant pleaded guilty to the three charges previously mentioned and conceded to the Tribunal that he had been convicted of those three offences. The Tribunal considered that the ground for cancellation was made out but then turned to the discretionary factors about whether the visa should in fact be cancelled.

5. The Tribunal noted that following his conviction, the applicant had been registered as a sex offender for eight years. The Tribunal also noted that the applicant had failed to comply with certain obligations as a sex offender and pleaded guilty to eight charges relating to such failures.

6. The Tribunal set out its reasons for decision at considerable length. The Tribunal addressed in detail the various factors set out in the department’s procedures advice manual under the heading “General Visa Cancellation Powers”. 

7. The Tribunal considered for the purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to remain in Australia. The Tribunal noted that the applicant came to Australia to support his wife while she was studying. However, it appears that they are now separated and the applicant’s wife wishes to divorce him. The Tribunal considered that the applicant no longer had a compelling reason to remain in Australia.  The Tribunal considered that factor weighed in support of cancellation.

8. The Tribunal then considered the extent of the applicant’s compliance with his visa conditions. The Tribunal considered that there was no information indicating that the applicant had been found to have breached any visa condition. The Tribunal considered this factor weighed in the applicant’s factor. 

9. The Tribunal then considered the degree of hardship the cancellation may cause to the applicant and any family members. The Tribunal examined the evidence provided by the applicant including psychological evidence. The Tribunal accepted that the cancellation would cause the applicant great psychological and emotional hardship. The Tribunal accepted that the visa cancellation would cause the applicant’s parents significant emotional hardship and potentially some financial hardship. The Tribunal accepted that the cancellation may cause the applicant’s brother some emotional hardship. The Tribunal considered that some other relatives and friends who had supported the applicant may suffer some short-term emotional hardship. The Tribunal did not accept that the cancellation would cause the applicant’s estranged wife hardship. Overall, the Tribunal considered that the factor weighed against the cancellation of the applicant’s visa. 

10. The Tribunal then considered:

    The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

11. The Tribunal noted that the circumstances were that the applicant had committed offences. The Tribunal noted various psychiatric reports and the applicant’s own statements about this. The Tribunal considered that the applicant was in control of his interactions with his two victims, one of whom was only 16 years old. The Tribunal did not accept there were extenuating circumstances, such as an undiagnosed mental health condition or other circumstances, beyond the applicant’s control.

12. In relation to the breaches of his obligations as a registered sex offender, the Tribunal did not accept that the breaches were due to a misunderstanding or to extenuating circumstances outside the applicant’s control. The Tribunal considered that this factor weighed in support of the cancellation. 

13. The Tribunal then considered:

    The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)

14. The Tribunal found that the applicant had been truthful and cooperative and that this factor weighed against the cancellation.

15. The Tribunal then considered:

    Whether there are persons in Australia whose visas would or may be cancelled under s.140 of the Act.

16. The applicant submitted that the cancellation of his visa would lead to his wife’s application for a subclass 485 visa to be refused. The Tribunal was unconvinced by these submissions and regarded the factor as neutral. 

17. The Tribunal then considered:

    Whether there are mandatory legal consequences to a cancellation decision, such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

18. The Tribunal noted that there would be certain mandatory legal consequences arising from the cancellation. The Tribunal considered that as the consequences flowed from the applicant’s criminal offences, it could be regarded as weighing in support of cancellation. The Tribunal invited a submission on this issue. The applicant’s representative provided a submission which did not address the issue. The Tribunal ultimately concluded that the factor was neutral. 

19. The Tribunal then considered:

    Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration that would be breached as a result of the visa cancellation.

20. The Tribunal noted that the applicant does not have any children and did not claim Australia owes him non-refoulement obligations. The applicant claimed that he could be harmed by his brother-in-law or ostracised as a sex offender or even tortured or beaten. The applicant did not provide any information in support of these claims and the Tribunal regarded them as speculative.

21. The Tribunal invited submissions post hearing on this issue, but the submissions provided did not address the question of international agreements. The Tribunal considered this factor to be neutral. 

22. The Tribunal then considered:

    If the applicant holds a permanent visa, whether the applicant has strong family, business, or other ties in Australia.

23. The applicant did not hold a permanent visa and the Tribunal found this factor to be neutral. 

24. The Tribunal then considered whether there are any other relevant matters. The Tribunal noted that the applicant said that he had an unblemished criminal history in India and an unblemished migration record in countries such as Thailand, Sri Lanka, and Malaysia.

25. The Tribunal also noted that the applicant had been assessed as having low or low to moderate risk of sexual re-offending. The Tribunal further accepted that the applicant had completed his 200 hours of unpaid community work pursuant to his sentence in the County Court. 

26. The Tribunal then set out the various matters in support of cancellation, the matters against cancellation, and the matters that were neutral. The Tribunal then said that weighing all the various matters, it considered that the applicant’s visa should be cancelled. 

27. The application to this Court has three grounds. The applicant did not provide written submissions and did not have anything to say in oral submissions.  The Minister relied wholly upon his written submissions filed on 21 March 2023.

28. Ground 1 in the application filed on 12 December 2022 is as follows:

    The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application.

29. I have been unable to detect any such error. 

30. Ground 2 in the application filed on 12 December 2022 is as follows:

    The Administrative Appeals Tribunal failed to accord procedural fairness and thereby erred in the exercise of its jurisdiction to review the decision of the delegate.

31. The Minister submitted that the applicant’s grounds were generic and unparticularised. The Minister submitted that the Tribunal had complied with all of its procedural fairness obligations. In particular, the Minister noted that there was no information which engaged s.359A of the Act. The Minister noted that the applicant was invited to and attended a hearing before the Tribunal. The Tribunal, at the applicant’s request, adjourned the hearing to enable the applicant to obtain some further documents from his criminal law barrister.

32. The Tribunal conducted a three hour hearing with the applicant in the presence of his migration agent. The Tribunal confirmed during the hearing that the applicant understood the interpreter and allowed the applicant to have a break to consider what was put to him. The Tribunal invited written submissions post hearing on particular issues and clearly considered those submissions.

33. In the circumstances, I am not persuaded that the Tribunal failed to give the applicant procedural fairness or failed to observe the principles of natural justice.

34. Ground 3 in the application filed on 12 December 2022 is as follows:

    The Administrative Appeals Tribunal failed to consider all circumstances of the case and to observe the principles of natural justice.

35. The applicant did not point to anything that the Tribunal had overlooked. I have been unable to detect anything that the Tribunal should have considered, but did not. 

36. All in all, it seems to me that that there is no reasonable or proper ground for overturning the Tribunal’s decision.  The application will be dismissed.

37. I note that the applicant absented himself from the court during the delivery of these reasons. Normally, I would ask him what he would like to say about costs.  In the circumstances, I will just make the usual costs order. 

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Riley.

Associate:

Dated:       27 March 2023