Naveed v Minister for Immigration
[2020] FCCA 1847
•7 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAVEED v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1847 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – cancellation of a Student (Temporary) (Class TU) Higher Education Sector (Subclass 572) visa – whether the Tribunal – whether the Tribunal correctly applied the relevant law and complied with its statutory obligations – whether the Tribunal took into account irrelevant considerations – whether the Tribunal’s decision is affected by bias – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 119, 476 |
| Applicant: | MUHAMMAD NAVEED |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 273 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 7 July 2020 |
| Date of Last Submission: | 7 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 July 2020 |
REPRESENTATION
The Applicant appeared in person via Microsoft Teams
| Solicitors for the First Respondent: | Ms C Allen via Microsoft Teams Sparke Helmore |
ORDERS
The order of 6 May 2020 is varied so as to allow the matter to proceed by video and or audio link.
The oral application for an adjournment is refused.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.00
Date of order: 7 July 2020
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 273 of 2019
| MUHAMMAD NAVEED |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 June 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 572) visa (“Student visa”).
The applicant was found to be a citizen of Pakistan. The applicant first arrived in Australia in 2012. The applicant’s last course that he finished was a Diploma of Business on 25 August 2015.
On 22 June 2017, the applicant was sent a Notice of Intention to Consider Cancellation that complied with the requirements of s 119 of the Act.
On 20 July 2017, the Delegate found that the Student visa should be cancelled.
On 30 July 2017, the applicant applied to the Tribunal for review of the Delegate’s decision.
By letter dated 27 August 2018, the Tribunal invited the applicant to attend a hearing on 21 September 2018. The applicant appeared on that day to give evidence and present arguments. The Tribunal also provided the applicant a further opportunity to provide additional information on or before 28 September 2018. The applicant did so and the Tribunal took the same into account in its decision.
The Tribunal in its reasons identified the background to the review application. The Tribunal identified the relevant law, including in an attachment to the Tribunal’s reasons incorporated by pagination.
The Tribunal identified first whether or not the ground for cancellation existed under s 116(1)(fa)(i) of the Act. In that regard, the Tribunal referred to raising with the applicant the information in the Provider Registration and International Student Management System (“PRISMS”) record consistent with s 359AA of the Act. The Tribunal identified the applicant’s response and his assertions that there was no gap in his studies and his assertions in relation to the payment of fees.
The Tribunal also identified the material provided by the applicant at the hearing and the subsequent material provided in respect of the transactions showing payments to the Perth College of Business and Technology.
The Tribunal found the applicant’s evidence not to be plausible. The Tribunal acknowledged that the card transactions appeared to be periodic payments towards some training from June 2017 to July 2018, however, could not identify what the payments were for, taking into account the PRISMS record indicated that during that time course enrolments were cancelled because the applicant did not commence studies. The Tribunal preferred the PRISMS record evidence. The Tribunal also referred to the applicant providing a subsequent Confirmation of Enrolment in respect of an Advanced Diploma of Hospitability Management.
The Tribunal found that the applicant knew that his enrolment in the Advanced Diploma of Business had been cancelled because of the non-payment of fees. The Tribunal also referred to the applicant’s last completed course of study.
The Tribunal found that the evidence did not support a finding that the applicant is a genuine student.
The Tribunal was satisfied that the grounds for cancellation under s 116(1)(fa) of the Act exist.
The Tribunal turned to the question of whether or not, as a matter of discretion, the applicant’s Student visa should be cancelled. The Tribunal referred to the relevant Procedures Advice Manual (“PAM3”) and to the applicant’s circumstances and evidence, including the purpose for the applicant’s travel and stay in Australia.
The Tribunal took into account the applicant’s submissions, including that there is nothing to indicate that the applicant had not cooperated with the Department of Home Affairs. Taking into account the applicant’s circumstances and considering the information cumulatively, the Tribunal was satisfied that the applicant’s Student visa should be cancelled.
Accordingly, the Tribunal affirmed the decision under review.
Before the Court
These proceedings were commenced on 23 July 2019.
On 4 September 2019, a Registrar of the Court made orders fixing the matter for show-cause hearing on 26 November 2020 and providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed.
On 6 May 2020, this Court made an orders varying the Registrar’s order and fixing the matter for a final hearing today. The applicant has appeared by audio link.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.
The applicant orally sought an adjournment. The applicant referred to communications he had sent to the Court by email on 3 July 2020 asserting that he was suffering from depression and anxiety and was getting treatment and that he would not be able to proceed with the hearing.
The Court responded by email on 3 July 2020 identifying that:
The request for an adjournment is at this stage refused. Any further request for an adjournment must be made by an application in a case and supported by affidavit and appropriate medical evidence.
No such application in a case was provided and no medical evidence was provided.
The applicant’s oral submissions that he was unable to meaningfully participate in the hearing are inconsistent with the applicant’s conduct in the course of the hearing. It is apparent that the applicant was able to meaningfully participate in the hearing.
The Court was not satisfied that an adjournment was warranted, taking into account the want of merits in the substantive application. The Court found that an adjournment was not warranted in the interests of the administration of justice. It was for these reasons that the applicant’s oral application for an adjournment was refused.
The applicant orally submitted that he disagreed with the adverse findings of the Tribunal and contended reasons as to why he had not been aware of the cancellation of his course. The Tribunal provided logical and rational reasons, as summarised above, in support of the adverse credibility finding in respect of the applicant’s knowledge.
The applicant also referred to his evidence concerning the payment of fees. It is apparent that that was referred to and taken into account by the Tribunal.
The applicant also referred to a suggestion that the Tribunal agreed to give him another hearing. There is no evidence to support such a contention. It is apparent, as the Court has referred to, that the applicant was given an opportunity to put on more information after the Tribunal hearing and that the applicant did so.
The applicant’s oral submissions, in substance, invited the Court to engage in merits review.
Nothing submitted orally by the applicant identified any jurisdictional error.
Grounds in the application
The grounds in the application are as follows:
The Second Respondent committed jurisdictional errors in that it:
1. Adopted and affirmed a decision of a delegate of the Minister for Immigration and Border Protection which was itself affected by jurisdictional error and accordingly of no effect in law; and
2. failed to accord procedural fairness; and or
3. took into account irrelevant considerations.
Particulars of the grounds of review
(a) The Second Respondent erred by basing its decision on the issue whether at the time of its decision the applicant was enrolled in a course or not.
(i) While the Second Respondent found "the letter from Perth College of Business and Technology dated 4 October 2018 suggests ambiguously that the applicant was enrolled in the Advanced Diploma of Hospitality Management from 13 July 2017 to 12 March 2019, but that information is not consistent with the information contained in the PRISMS record which indicates that enrolment was cancelled prior to the hearing on 21 September 2018". [par 19] And, acknowledged "Tribunal acknowledges the card transaction accrual appears to be periodic payments towards some training from June 2017 to July 2018 however cannot discern what those payments are for taking into account the PRISMS record indicates course enrolments during that time were cancelled because the applicant did not commence studies" [par 19]; it erred to prefer the information as found on the PRISM record in failing to undertake any proper, genuine or realistic inquiry to all the facts which was also breach of the rules of procedural fairness; and
(b) Failed to apply the relevant statutory criteria objectively to the applicant’s situation and circumstances.
Ground 1
In relation to ground 1, on the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and made adverse findings that were open to the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in conducting the review and the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, the Tribunal complied with its obligations under s 359AA of the Act in relation to the PRISMS record. Further, on the face of the Tribunal’s reasons, the Tribunal had a genuine intellectual engagement with the applicant’s evidence and submissions. Any error in the Delegate’s decision is not capable of giving rise to any jurisdictional error by the Tribunal. The Tribunal was correct to determine whether the ground for cancellation existed and that concerned whether the applicant was enrolled. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, on the face of the material before the Court, as referred to above, the Tribunal complied with its statutory obligations in the conduct of the review. The Court has found that the applicant had a real and meaningful hearing before the Tribunal. There is no basis to find that the applicant was denied procedural fairness in the conduct of the review. No jurisdictional error as alleged in ground 2 is made out.
Ground 3
In relation to ground 3, no irrelevant consideration has been identified that the Tribunal failed to take into account. Accordingly, no jurisdictional error is made out by ground 3.
Particulars
In relation to particular (a)(i), which refers to the Tribunal’s reasons in relation to the applicant not being enrolled in a course of study, the application submitted that the Tribunal had failed to engage in a proper and realistic consideration of the applicant’s circumstances. The Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s evidence. There has been no evidence identified that the Tribunal failed to take into account. The adverse findings were open for the reasons given by the Tribunal. No jurisdictional error relating to grounds 1 to 3 is made out by particular (a)(i).
In relation to particular (b), the applicant asserts that the Tribunal failed to objectively consider the applicant’s circumstances. This appears to be an allegation of bias. Bias must be clearly alleged and properly proved. No bias has been proved. Insofar as the allegation seeks to advance an assertion of actual bias, on the face of the material before the Court, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. This is supported by the reasoning of the Tribunal and the review process to which the Tribunal refers in its reasons. So far as the applicant alleges apprehended bias, no conduct has been identified to support the same. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by particular (b).
As the application fails to make out any jurisdictional error and as nothing submitted orally by the applicant identified any jurisdictional error, the application is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 July 2020 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Date: 16 September 2020
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