Nehal v Minister for Immigration

[2016] FCCA 838

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEHAL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 838

Catchwords:
MIGRATION – Review of a decision by the Migration Review Tribunal – application for a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa – applicant found not to be a genuine student – cancellation of applicant’s visa under s.116(1)(fa)(i) of Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 116(1), 116(1)(fa)(i), 116(1A), 116(3), 140(1), 338, 348
Migration Regulations 194 (Cth), rr.2.43(1C), 2.43(1D)
Ombudsman Act 1978 (Cth)

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24

First Applicant: RAVNEET KAUR NEHAL

Second Applicant: DAVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 96 of 2015

Judgment of: Judge Hartnett

Hearing date: 18 March 2016

Delivered at: Melbourne

Delivered on: 18 March 2016

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Kowalewska

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Application is dismissed.

3. The Applicants pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 96 of 2015

RAVNEET KAUR NEHAL

First Applicant

DAVINDER SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. The Applicants are citizens of India.  The First Applicant is the principal visa applicant.  She arrived in Australia on 7 November 2013 on a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa (‘the visa’) accompanied by her husband who is the Second Applicant and the dependant Applicant.

2. The First Applicant was granted the visa on 31 October 2013. On 29 April 2014 the Department of Immigration and Border Protection (‘the Department’) issued a notice of intention to consider cancellation of the visa pursuant to s.116 of the Migration Act 1958 (Cth) (‘the Act’). The First Applicant was informed that it appeared there was a ground for cancellation of her visa under s.116(1)(fa)(i) of the Act. Notice was provided to the First Applicant of the particulars of grounds for cancellation. That part of the notice is relevantly as follows:-

   “…

   It has come to my attention that you appear not to be a genuine student.

   The Department has access to the Provider Registration and International Students Management System (PRISMS) that is administered by the Department of Education. 

   Records available on PRISMS in relation to you indicate that you were enrolled in course English Language Course at education provider University of Tasmania for the period 11 November 2013 to 7 February 2014.  On 24 April 2014 the University of Tasmania advised:-

   - you did not meet satisfactory attendance for course English Language Courses for the period 11 November 2013 to 7 February 2014.

   - you failed to meet entry requirements for Masters of Business Administration degree which you were enrolled in.

   - you have failed to enrol in further English courses for the purpose of studying a Masters of Business Administration degree.

   The information before me indicates you are currently in Australia on a subclass TU 573 Higher Education Sector visa granted on 31 October 2013 and you are not enrolled in a registered course of study.

   Based on the evidence from PRISMS, the University of Tasmania and that you are not currently enrolled in a registered course of study, it appears that your primary intention is not to undertake study.

   As such, it appears that you are not, or are not likely to be, a genuine student. 

   If this is the case, your visa may be cancelled under s 116(1)(fa)(i) not a genuine student which sets out the following ground for cancellation:

   s116.(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (fa) in the case of a student visa:

   (i) the holder is not, or is likely not to be, a genuine student;”[1]

   [1] Letter from Department of Immigration and Border Protection to Ms Ravneet Kaur Nehal dated 29 April 2014.

3. The notice of intention to consider cancellation of her visa of 29 April 2014, which was sent by registered mail to the First Applicant at her address in Wyndham Vale, provided her with an opportunity to comment on the ground for cancellation identified in the notice and to give reasons why the visa should not be cancelled.  It was noted that if the First Applicant determined to respond to the notice, she was required to do so without making any incorrect statements.  Further, that if another person was going to provide information to the Department of Immigration and Border Protection as part of the First Applicant's response to the notice, it was important for her to ensure that the information they provided did not contain incorrect statements. For that reason the notice set out information from third parties, other than an authorised recipient which formed part of the First Applicant's response, was required to be provided directly by the First Applicant to the Department of Immigration and Border Protection.

4. On 30 April 2014 the First Applicant responded to the notice of intention to consider cancellation of the visa.  She did not agree that grounds for cancellation existed.  She claimed that she was unable to enrol into another course because the University of Tasmania had refused to give her a release letter as her Certificate of Enrolment had been cancelled.

5. On 26 June 2014 a delegate of the Minister for Immigration and Border Protection cancelled the visa on the basis that the First Applicant was not a genuine student.[2] The Second Applicant's visa was cancelled by operation of law pursuant to s.140(1) of the Act. The delegate took into account the relevant legislation contained in the Act and Migration Regulations 1994 (Cth) (‘the Regulations’), the information contained in the Department of Immigration and Border Protection's Procedures Advice Manual PAM3 ‘General visa cancellation powers’, documents and information provided by the First Applicant and other relevant information held on Departmental files. The delegate gave little weight to the First Applicant's claim that she had submitted an external appeal on 23 April 2014 to obtain a release letter from the University of Tasmania for the reasons set out in that decision as set out at page 75 of the Court Book.

   [2] Migration Act 1958 (Cth), s.116(1)(fa)(i).

6. The Applicants applied to the Tribunal, for review of the decision to cancel the First Applicant's visa, on 30 June 2014.  On 14 October 2014 the Tribunal sent a letter to the Applicants inviting them to attend a hearing at the Tribunal on 5 November 2014 to give evidence and present arguments relating to the issues arising in their case.  On 20 October 2014 the Tribunal received a request that the hearing be postponed. The presiding member agreed to the request and rescheduled the hearing to 2 December 2014. 

7. Further documents were lodged with the Tribunal on behalf of the Applicants by their migration agent. Included in such additional documents for the Tribunal's consideration were, relevantly, the cancelled CoE from the University of Tasmania, a copy of email communication with the University of Tasmania to obtain a release document and the outcome from the Tasmanian Ombudsman of 4 August 2014 in respect of the First Applicant's complaint as to the University of Tasmania. 

8. The Ombudsman was of the view that the University of Tasmania complied with Commonwealth legislation, the national code and its own policies when it was dealing with the First Applicant's stated desire to transfer to another registered provider and obtain a letter of release.  The correspondence of 4 August 2014 said, relevantly:-

   “Unfortunately, most of the problems that you have had are as a result of your failure to follow the proper processes that you were advised to follow.”[3]

   [3] Letter from Office of the Ombudsman and Health Complaints Commissioner to Ms Ravneet Kaur Nehal dated 4 August 2014.

9. The Ombudsman concluded that the First Applicant's complaint did not require investigation under the Ombudsman Act 1978.

Tribunal Hearing

1. The Applicants appeared before the Tribunal on 2 December 2014 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The First Applicant gave oral evidence. The Applicants were represented in relation to the review by their registered migration agent whom attended the Tribunal hearing.  The Tribunal determined to affirm the decision of the delegate by decision record of 6 January 2015. 

2. The First Applicant's claims before the Tribunal are accurately set out in the First Respondent's Contentions of Fact and Law as follows:-

   “ 11.  The applicant claimed before the Tribunal that: 

   11.1 She arrived in Australia on 7 November 2013 to study ELICOS for 15 weeks followed by her main course of Master of Business Administration (MBA) to commence on 21 February 2014 at the University of Tasmania (UTAS).

   11.2 Due to the delay in the visa processing she arrived in Australia 5 weeks late to complete her English course and to satisfy the English language requirement to qualify for the MBA. The visa was granted on 31 October 2013 and the delay in the grant of her visa led to problems.

   11.3 She attended all English course classes and did not know why UTAS advised the Department that she had not achieved satisfactory course attendance for ELICOS course.

   11.4 She submitted a medical certificate to UTAS which explained her lack of attendance at the English course from 20 January 2014 to 20 February 2014.

   11.5 She failed to meet entry requirements for the MBA and did not commence it because she had not completed level 7 of the English course in time for the enrolment. The MBA started on 24 February 2014 and the ELICOS finished on 7 February 2014.  She did not have sufficient time to complete the IELTS 7 test.

   11.6 She did not defer her entry to the MBA because:

   11.6.1. She discovered she was pregnant

   11.6.2. 6 months was “too long a gap”, she did not want such a gap and tried to find another course instead

   11.6.3. Her husband relocated from Hobart to Melbourne on 28 December 2013 because there was no accommodation provided for couples.  They could not simply move to another accommodation as “Hobart is a congested area and there was no space”. Her husband moved to Melbourne to work.

   11.6.4. On 9 February 2014 she travelled from Tasmania to Victoria to join her husband (who was working in Melbourne). Even if she had remained in Tasmania she could not start the MBA on 24 February 2014 as she needed “a month bed rest for her [unplanned] pregnancy".

   11.6.5. She moved to Melbourne before her MBA start date as her friends and family were there.  She had no moral support in Tasmania. She wanted to find another course to study but UTAS did not give her a release letter.”[4]

   [4] First Respondent’s Contentions of Fact and Law filed on 1 March 2016 at [11].

Tribunal’s Findings

1. The Tribunal commenced its consideration of the First Applicant’s claims and evidence by stating that under s.116(1) of the Act the Minister may cancel a visa if he or she is satisfied that certain grounds specified in the provision are made out. Relevantly, to the case before it those grounds included the ground set out in s.116(1)(fa) of the Act. The Tribunal noted that if so satisfied, it was required to consider whether the visa should be cancelled. Having regard to all the relevant circumstances, which may include matters of government policy. Included in that consideration were prescribed matters as contained in s.116(1A) of the Act, r.2.43(1C) and (1D) of the Regulations. These Regulations and s.116 of the Act are relevantly as follows:-

   s.116:

   “(1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (a)  the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

   (aa)  the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

   (b)  its holder has not complied with a condition of the visa; or

   (c)  another person required to comply with a condition of the visa has not complied with that condition; or

   (d)  if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

   (e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

   (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or

   (ii)  the health or safety of an individual or individuals; or

   (f)  the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

   (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

   (g)  a prescribed ground for cancelling a visa applies to the holder.

   (1AA)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity.

   (1AB)  Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa ) if he or she is satisfied that:

   (a)  incorrect information was given, by or on behalf of the person who holds the current visa, to:

   (i)  an officer; or

   (ii)  an authorised system; or

   (iii)  the Minister; or

   (iv)  any other person, or a tribunal, performing a function or purpose under this Act; or

   (v)  any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and

   (b)  the incorrect information was taken into account in, or in connection with, making:

   (i)  a decision that enabled the person to make a valid application for a visa; or

   (ii)  a decision to grant a visa to the person; and

   (c)  the giving of the incorrect information is not covered by Subdivision C.

   This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.

   (1AC)  Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa ) if he or she is satisfied that:

   (a)  a benefit was asked for or received by, or on behalf of, the person (the visa holder ) who holds the current visa from another person in return for the occurrence of a sponsorship-related event; or

   (b)  a benefit was offered or provided by, or on behalf of, the person (the visa holder ) who holds the current visa to another person in return for the occurrence of a sponsorship-related event.

   (1AD)  Subsection (1AC) applies:

   (a)  whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and

   (b)  whether or not the sponsorship-related event relates to the current visa or any previous visa that the visa holder held; and

   (c)  whether or not the sponsorship-related event occurred.

   (1A)  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.

   (2)  The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3)  If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

   (4)  In this section:

   “benefit” has a meaning affected by section 245Q

   “sponsorship-related event” has the meaning given by section 245AQ”

   Rule 2.43(1C) and (1D) of the Regulations:

   “…

   (1C) For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D) For subregulation (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.

   …”

2. In the Tribunal's consideration of the First Applicant's claims and evidence, the Tribunal put matters of concern to the First Applicant for her response.  In particular, the Tribunal spent some time going through with the First Applicant the copy of the Tasmanian Ombudsman's response to the First Applicant's complaint against the University of Tasmania, which she had provided in pre-hearing submissions.  The Tribunal said in paragraphs 19 to 21 of its Statement of Decision and Reasons (‘the Decision Record’) relevantly:-

   “19. ...In summarising this I noted to the applicant that it appeared to indicate that she was given warnings in September 2013 that she may not have time to complete her English course and start her MBA, and may need to sit an IELTS test, that the applicant had been consistently advised in January 2014 that her reasons for transfer were probably not sufficient, which indicated to me that this was something she wished to do, because her husband was working in Melbourne and she wished to be with him and that she was not advised as she had claimed that she could transfer to another place.  It also indicated that the applicant was advised in January that her reasons for transfer were probably insufficient.  On 4 February 2014 the applicant was told that she had not been attending her English classes and had to email International Compliance officers on 5 March 2014 or would be reported for breach.  This she did not do, instead requesting a release letter from UTAS on 3 March, at which stage she was already in Melbourne. 

   20.  I explained to her that on the basis of the Ombudsman's letter, it appeared that she wanted to move to Melbourne as her husband was working in Melbourne.  She said this was not true,  she had no moral support and no community in Tasmania.  I asked when her husband had moved and she said he had moved here on 28 December 2013.  I asked why he had moved to Melbourne and she said that in Tasmania the accommodation is not provided for couples, there is no living space for husband and wife.  I asked why they had not just moved accommodation and she said that Hobart is a congested area and there was no space.  I pointed out to her that this did not make sense - if they were unhappy with not living together, then it made no sense for him to move States.  She then said that that was the first reason but also her husband had been depressed in his free time and had no friends in Hobart, and her in-laws were here and his circle of friends.  I asked if he had moved to Melbourne to work and she said he had.

   21. The applicant's representative then claimed that the Ombudsman had just relied on information from UTAS. I explained that I did not agree, I considered that they had investigated the situation and come to a conclusion based on information available to the Ombudsman.  I indicated that I found this letter helpful in setting out the chronology and as a contemporaneous record of what actually happened.  I explained that the Ombudsman letter sets out the applicant going back and forth with UTAS, with UTAS repeatedly asking the applicant to apply for withdrawal on the appropriate form, and from her UTAS email account, and the applicant repeatedly not doing this, UTAS repeatedly telling the applicant that, as she had been told earlier, she had been breached for unsatisfactory course attendance, and her COE had therefore been cancelled.” [5]

   [5] Migration Review Tribunal Decision Record dated 6 January 2015 at [19] – [21].

1. The Tribunal explained to the First Applicant that, from the evidence she had put before it, it had real concerns about whether she had ever intended to undertake the MBA at University of Tasmania. The Tribunal gave considerable weight to the information from the University of Tasmania and gave less weight to the First Applicant's claims at hearing and in submissions because the Tribunal found them to be "contradictory and at points illogical". 

2. The Tribunal found the First Applicant chose “unilaterally to disengage from her studies at UTAS, and was heedless as to the correct process to follow to transfer her studies, despite all attempts to advise and assist her”.  The Tribunal found the First Applicant chose to relocate from Tasmania to Melbourne independently of her studies and any issues with timing of the start of the MBA because her husband was working in Melbourne. The Tribunal found the First Applicant not to be interested in her studies and instead was focused on being with her husband and her in-laws in Melbourne.  The Tribunal was satisfied that the First Applicant was not, or is likely not to be, a genuine student. 

3. The Tribunal noted that the ground for cancellation, as set out in s.116(1)(fa)(i) of the Act, did not require a mandatory cancellation under s.116(3) of the Act and thus the Tribunal proceeded to consider whether the power to cancel the visa should be exercised. The Tribunal set out its consideration of the discretion in the Decision Record from paragraphs 26 to 33 inclusive.

4. The Tribunal put all relevant matters to the First Applicant and discussed the Tribunal's considerable concerns with her past behaviour and conduct as a student which might lead the Tribunal to affirm the decision. On the basis of the material before it, including the First Applicant's evidence and considering the circumstances as a whole, the Tribunal formed the view that, were the cancellation of the visa to be set aside, the First Applicant would not, in fact, study and thus concluded that the decision to cancel her visa should be affirmed.

5. The Tribunal found that it did not have jurisdiction to review the cancellation of the Second Applicant’s visa because that cancellation had been effected ‘by operation of s.140(1) of the Act’ and, thus, not a ‘decision’ (ss.338 and 348 of the Act).

Consideration

1. The application for judicial review of the Tribunal’s decision by the Court was filed on 20 January 2015. 

2. The single ground set out in that application, which was filed by the First Applicant, is as follows:-

   “The MRT erred in not giving consideration to the evidence that the Applicant being myself did have a genuine reason as to why I could not continue with my study for a short period.  Accordingly MRT failed to give consideration to the evidence as a matter of law.”

3. The matter proceeded before Registrar Burns on 29 April 2015. The Court made consent orders on that day.  Included in those orders were orders that the Applicants file and serve an amended application, if any, with proper particulars of the ground of application and written submissions.  The Applicants filed no amended application nor any written submissions.

4. The First Respondent, who seeks that the application be dismissed and that the Applicants pay the First Respondent's costs of this proceeding, has filed and served Contentions of Fact and Law dated 1 March 2016 which are relied upon.  There is also before the Court in evidence the material as contained in the Court Book.

5. It is clear that the application should be dismissed as no jurisdictional error attends the decision of the Tribunal.  The ground of review itself is not particularised and it does not refer to any particular evidence which the First Applicant claims the Tribunal failed to consider.  The First Applicant was given an opportunity on the hearing of the matter to make oral submissions.  She did so.  All of her submissions went to merits review of the Tribunal decision.

6. The First Applicant was assisted by an interpreter this day. The First Applicant indicated to the Court that she had other grounds of judicial review.  In summary those grounds were as follows:-

   a)that she had a lawyer who did not represent her this day, and who effectively abandoned her at the last minute; 

   I note that no notice of address for service has ever been filed by a lawyer in these proceedings on behalf of the Applicants, nor was the application completed by a lawyer and nor were any submissions prepared.  In any event, this is not a ground of judicial review.

   b)the First Applicant complained about her migration agent who represented her at the Tribunal hearing.  She implied that matters were not put before the Tribunal because the agent misguided the Applicants. No relevant particulars were provided; and

   c)the First Applicant complained about the interpreter who provided assistance to her before the Tribunal.  I note no complaint was made by the migration agent or the Applicants themselves as to the quality of the interpreting at any stage during the Tribunal hearing or at any stage following the hearing and before delivery of the Decision Record.  No transcript is before the Court this day as to that matter, and no amended grounds are before the Court relying on that as a basis of jurisdictional error. No particulars were provided by the First Applicant as to any failure by the interpreter to translate her word directly into English nor any failure that lead to a failure to convey accurately her meaning and have it understood by the Tribunal.

7. The First Applicant also submitted that the University of Tasmania did not provide her with all her options and that it was at fault. Thus her application for judicial review should succeed on that basis. This does not establish jurisdictional error in the Tribunal decision. I note there was before the Tribunal the outcome of the First Applicant's complaint to the Ombudsman about the University of Tasmania finding non-legitimate complaints concerning the University’s treatment of the First Applicant.

8. The First Applicant further submitted that as a matter of human rights, her application should succeed this day and that a range of people and the University of Tasmania had not been fair to her.   

9. The Tribunal did not fail to consider a relevant matter.  It had regard to the oral evidence given by the First Applicant and to all of the material and evidence put before it by the First Applicant.  The decision was not manifestly unreasonable.[6] The Tribunal gave proper weight to the evidence before it and its findings of fact and exercise of discretion were on the evidence open to it.  No jurisdictional error attends to the Tribunal decision. The application shall be dismissed and costs follow the event.

   [6] Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at 41.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  14 April 2016