Mittakanti v Minister for Immigration, Citizenship & Multicultural Affairs

Case [2024] FedCFamC2G 1089

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Mittakanti v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FedCFamC2G 1089

File number: SYG 917 of 2020
Judgment of: JUDGE D HUMPHREYS
Date of judgment: 28 October 2024
Catchwords: MIGRATION - Administrative Appeals Tribunal (AAT) – Higher Education Sector (subclass 573) visa – visa cancellation due to breach of condition 8202(2)(a) – whether the AAT heard and considered the applicant’s evidence – application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 116(1)(b), 359AA, 360, 425.

Migration Regulations 1994 (Cth) sch 8 para 8202(2).

Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

SZQBN v Minster for Immigration and Border Protection (2014) 226 FCR 68; [2014] FCA 686

SZVFD & Anor v Minister for Immigration & Anor [2015] FCCA 2746

Division: Division 2 General Federal Law
Number of paragraphs: 43
Date of hearing: 24 October 2024
Place: Parramatta
Solicitor for the Applicant: Self-represented litigant
Solicitor for the First Respondent: Mr Gao (HWL Ebsworth)
Solicitor for the Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 917 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

VISHVAJEET REDDUY MITTAKANTI

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE D HUMPHREYS

DATE OF ORDER:

28 OCTOBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to ‘Minister for Immigration and Multicultural Affairs’.

2.The application filed on 16 April 2020 is dismissed.

3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5600.00

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).

REASONS FOR JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

  1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 20 March 2020, which affirmed a decision of a delegate of the then  Minister for Immigration and Border Protection to cancel the applicant’s Higher Education Sector (subclass 573) visa (“the visa”).

    BACKGROUND

  2. The applicant is a male citizen of India who arrived in Australia in July 2015. The applicant had been granted the visa on 28 July 2015 which had a stay period until 30 September 2017.

  3. The applicant was enrolled in a Master of Planning degree at Western Sydney University. He had previously obtained a Bachelor of Civil Engineering degree in India and worked as an engineer at his father’s company for approximately 3 years.

  4. The applicant claimed that he had…

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Mittakanti v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FedCFamC2G 1089
Case
[2024] FedCFamC2G 1089
Decision Date

CaseChat Overview and Summary

The case of Mittakanti v Minister for Immigration, Citizenship & Multicultural Affairs involves the applicant, an Indian citizen, who sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the cancellation of his Higher Education Sector (subclass 573) visa. The applicant had arrived in Australia in July 2015 and was initially granted a visa until September 2017, which required him to be enrolled in a registered course of study. He was enrolled in a Master of Planning degree at Western Sydney University but experienced difficulties, including failing one subject by a single mark. The death of his paternal grandfather, who had been supporting his studies, led to the applicant becoming depressed and subsequently withdrawing from his studies. Despite his circumstances, he did not seek to enrol in another course of study. The delegate of the Minister decided to cancel the applicant's visa for breaching the enrolment condition, a decision affirmed by the AAT.

The key legal issues in this case centred on whether the AAT adequately heard and considered the applicant’s evidence, and whether the Tribunal’s decision was lawful. The applicant argued that the AAT failed to properly consider his evidence, which included his mental health issues and the impact of his grandfather’s death. The court needed to determine if the AAT had correctly applied the relevant legal principles and exercised its discretion appropriately. The court's task was to review the decision for legality and not to substitute its judgment for that of the Tribunal.

In its reasoning, the Court found that the AAT had indeed heard and considered the applicant’s evidence. The decision record detailed the applicant's mental health issues, the death of his grandfather, and his attempts to seek medical assistance. The Tribunal also recorded the applicant's explanation for not enrolling in another course of study, despite his intention to do so. The Court held that the AAT had considered all relevant evidence and exercised its discretion within the legitimate bounds. The decision was based on a balanced consideration of the factors, including the applicant's failure to comply with the enrolment condition, the degree of hardship caused by the cancellation, and the applicant's past and present behaviour. The Court concluded that there was no merit in the applicant's submission that the AAT had failed to properly consider his evidence, and dismissed the application for judicial review.

The Court's determination was that the AAT's decision to affirm the cancellation of the applicant's visa was lawful. The AAT had correctly identified that a ground for cancellation existed due to the applicant's breach of the enrolment condition. The Tribunal's consideration of the evidence and its weighing of the relevant factors demonstrated that the decision was within the legitimate decisional freedom of the Tribunal. The Court rejected the applicant's request for the Court to conduct merits review, which was outside its jurisdiction.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 20 March 2020, which affirmed a decision of a delegate of the then Minister for Immigration and Border Protection to cancel the applicant’s Higher Education Sector (subclass 573) visa (“the visa”). BACKGROUND The applicant is a male citizen of India who arrived in Australia in July 2015. The applicant had been granted the visa on 28 July 2015 which had a stay period until 30 September 2017. The applicant was enrolled in a Master of Planning degree at Western Sydney University. He had previously obtained a Bachelor of Civil Engineering degree in India and worked as an engineer at his father’s company for approximately 3 years. The applicant claimed that he had a very close relationship with his paternal grandfather who encouraged him to study in either Australia or the United States of America. The applicant stated that he completed one semester of study for the Master of Planning degree in 2015. He passed three subjects but failed one by a single mark. The applicant claimed that he consequently became depressed as he had previously been a high achieving student. He then started to avoid classes and fell behind with his academic work. In May 2016, the applicant’s paternal grandfather died. The applicant said that he spoke to an International Student Liaison officer at Western Sydney University (“WSU”) in February 2016, when his grandfather had been ill, about visiting him. According to the applicant, he was asked to provide a medical certificate stating that his grandfather was ill, which would be hard, as he had a difficult relationship with his parents and did not want to burden his younger brother. The applicant stopped attending classes at WSU in March 2016 and was contacted repeatedly by WSU following his absence and failure to pay course fees. The applicant stated that his grandfather had been paying the course fees and he did not want to ask his grandfather for payment because his grandfather was ill. The applicant did not want to ask his parents for financial assistance to pay course fees. The applicant stated that he was told by WSU that his enrolment had been cancelled in about May 2016. In a letter dated 23 May 2017, the applicant was provided with a Notice of Intention to Consider Cancellation (NOICC) of his visa under section 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that as the visa holder, he had not complied with a condition of his visa. The delegate stated that it appeared the applicant had not complied with condition 8202(2)(a) in Schedule 8 of the Migration Regulations 1994 (Cth) of his visa, which required him to be enrolled in a registered course. The applicant was given five working days to provide a response and give reasons as to why his visa should not be cancelled. On 26 May 2017, the applicant responded via email and provided supporting documents. In his statement, the applicant detailed how the deterioration and death of his Grandfather impacted his ability to study as he experienced depression and mental health difficulties. He expressed his intentions to study a Master of Business (“MBA”) from Group Colleges Australia at the earliest available intake.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In a letter dated 20 June 2019, the applicant was invited to attend a hearing on 11 July 2019. The applicant attended the hearing. The Tribunal affirmed the decision to cancel the applicant’s visa in a decision dated 20 March 2020. The applicant now seeks judicial review of the Tribunal’s decision in this Court. ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION The applicant provided additional material to the Tribunal which included: · A statement by the applicant dated 20 June 2017; · A psychology report dated 4 March 2017;· A death certificate for his grandfather with the date of death as 30 May 2016;· A conditional offer letter valid for 60 days from Group Colleges Australia to study a ‘Masters of Business Administration’ (MBA) dated 26 June 2019. The Tribunal considered the following factors with regard to the applicant: · Purpose of travel and stay in Australia and whether there was a compelling need to travel to or remain in Australia · Extent of the compliance with visa conditions · Degree of hardship that may be caused including financial, psychological, emotional or other hardship · Circumstances in which grounds of cancellation arose · Past and present behaviour towards the Department · Whether there would be consequential cancellations under section 140 · Whether there are mandatory legal consequences · Whether there are any intentional obligations · Whether the visa was a permanent visa and consequent considerations· Any other relevant matters The Tribunal noted that the applicant’s failure to enrol in a registered course of study after 20 May 2016 was inconsistent with his visa condition and a lengthy breach. The Tribunal accepted that the applicant’s original purpose of travel and stay in Australia was to study for the Master of Planning degree and gave this factor some weight. The Tribunal accepted the applicant had some mental health issues in late 2015 and in 2016 due to several facts. These included difficulty in adjusting to studying in Australia, disappointment at failing a subject, as well as concern and later grief over his grandfather. However, weighed against these circumstances is that the applicant did not seek any significant assistance from the support services available at WSU when enrolled, any medical assistance before or after a sole consultation with a psychologist, nor enrol in any registered course of study after the consultation, despite saying that he intended to return to study and the advice he received to do so. The Tribunal accepted the cancellation of the visa will cause a degree of hardship as the applicant’s family had expended money and will be disappointed. The applicant will return to his home county without any academic qualifications in Australia. The applicant will feel upset due to his belief of his late grandfather’s ambition for him to study in Australia. Weighed against this was the applicant’s statement that he can study for a MBA in India or another country, and is likely to adopt this course of action should the visa cancellation be upheld. The Tribunal held that the degree of hardship caused by the cancellation would not be significant and gave the factor little weight.

Ratio Decidendi

Legal Principle Established

The first respondent submits that the Tribunal's reasons show that it engaged closely with the applicant's oral and written evidence. The applicant's contention that the Tribunal did not consider the evidence he submitted cannot be sustained.CONSIDERATION In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it. The applicant claims the Tribunal did not ‘hear’ the applicant and did not ‘consider’ the evidence he submitted. That assertion cannot be sustained. First, the Tribunal was correct to find that a ground for the cancellation of the applicant’s visa existed as he did not maintain enrolment in a registered course of study as required by condition 8202(2) of Schedule 8 to the Regulations. What follows in the decision record is an orthodox consideration of the matters put before the Tribunal by reference to the Department’s Procedural Instruction ‘General visa cancellation powers’. Secondly, the Court is satisfied that the Tribunal ‘heard’ and recorded the applicant’s evidence and set out that evidence in some detail in the decision record. This included his mental health issues, the death of his paternal grandfather, and his attempts to obtain medical assistance [18] – [30]. Further, the Tribunal specifically considered and recorded the evidence of the applicant in relation to the death of his grandfather at [49] – [51]. The loss of funds associated with his cancelled enrolment is set out at [35]. The Court rejects the submission that the Tribunal did not hear and later consider any of the evidence of the applicant that was before it. The documentary evidence it considered is set out at [4] of the decision record and includes all relevant material. The applicant’s oral evidence is set out in detail at [14] onwards. Third, the Tribunal weighed this evidence as against the fact that the applicant had not sought to enrol in another approved course of study subsequent to the cancellation enrolment in his course at WSU in May 2016, noting that the date of the Tribunal decision was March 2020. The Court is satisfied that the Tribunal came to a decision that was based on all the evidence, both oral and documentary, that was before it and the decision it arrived at was within the legitimate decisional freedom of the Tribunal. There is nothing to indicate that the Tribunal did not ‘consider’ each of the matters put forward by the applicant in his favour. The Tribunal specifically attributed the appropriate weight to each of the factors it set out and then came to an appropriate conclusion. That conclusion is not infected by irrationality or illogicality or any other jurisdictional error. The sole ground of judicial review has no merit. It is simply a request for the Court to conduct impermissible merits review.DETERMINATION