Pabla v Minister for Immigration

[2018] FCCA 858

FEDERAL CIRCUIT COURT OF AUSTRALIA

PABLA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 858

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.116, 359A, 360, 362B

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

AZAFB v Minister for Immigration [2015] FCA 1383
CER15 v Minister for Immigration & Anor [2016] FCCA 329

COT15 v Minister for Immigration (No 1) [2015] FCAFC 190

SZOPV v Minister for Immigration & Anor [2016] FCCA 182

Applicant: HARDEEP SINGH PABLA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1896 of 2017

Judgment of: Judge Driver

Hearing date: 10 April 2018

Delivered at: Sydney

Delivered on: 10 April 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Day of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,550.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1896 of 2017

HARDEEP SINGH PABLA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction and background

1. The applicant, Mr Pabla, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 May 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Mr Pabla’s higher education sector visa. 

2. Background facts related to this matter are conveniently set out in the Minister’s outline of submissions filed on 29 March 2018. 

3. Mr Pabla is a male citizen of India who arrived in Australia as the holder of a student (subclass 573) (higher education sector) visa which was granted on 22 August 2014 and valid until 15 March 2018.[1] 

   [1] Court Book (CB) 57.

4. Mr Pabla was granted the visa on the basis that he met, amongst other criteria, the secondary criteria that he was a member of the family unit of Mamanjot Kaur Gill (Ms Gill), as prescribed in regulation 1.12 of the Migration Regulations 1994 (Cth) (Regulations).[2]

   [2] CB 20.

5. On 22 June 2016, Mr Pabla was notified by the delegate of the intention to cancel his visa (NOICC).  The NOICC stated the basis of the cancellation was due to evidence before the delegate which indicated that Mr Pabla had ceased to be in an ongoing relationship with Ms Gill from approximately 20 April 2016 and therefore, was no longer a member of Ms Gill's family unit.[3] 

   [3] CB 19 - 24.

6. Mr Pabla provided a response to the NOICC on 11 July 2016 outlining that:[4]

   a)he had moved to Australia to live with his wife, however moved to Sydney from Tasmania as he could not find work;

   b)after insisting that he earn more money, Mr Pabla’s wife left him;

   c)he had spent his father’s money coming to Australia to support his wife in her studies and is concerned what his father would do for spending all the money.  Nor does he know what his wife (now separated) told her relatives about their separation;

   d)he had concerns about his wife’s relatives and family and does not know what the consequences would be if he returned to India; and

   e)he wished to study in Australia and requests the Minister’s Department not to cancel his visa.

   [4] CB 41.

7. On 18 July 2016, the delegate cancelled Mr Pabla’s student (subclass 573) (higher education sector) visa under s.116(1)(a) of the Migration Act 1958 (Cth) (Migration Act). The delegate found that the relationship between Mr Pabla and Ms Gill had ceased prior to 20 April 2016 and therefore Mr Pabla no longer satisfied the secondary criteria for the grant of the visa.[5]

   [5] CB 53.

8. On 21 July 2016, Mr Pabla lodged an application for review of the delegate's decision with the Tribunal.[6]

   [6] CB 63.

9. On 3 April 2017, Mr Pabla was invited to attend a hearing before the Tribunal on 31 May 2017.[7]  By email response on 3 April 2017 Mr Pabla advised he would attend the hearing.[8]

   [7] CB 83.

   [8] CB 86.

10. On 31 May 2017, Mr Pabla did not appear before the Tribunal.  The Tribunal proceeded to affirm the decision of the Minister’s Department on the same day.

The decision of the Tribunal

1. The Tribunal found that Mr Pabla had conceded that he was no longer the spouse or de facto partner of Ms Gill and the Tribunal was therefore satisfied that the ground for cancellation in s.116(1)(a) of the Migration Act existed.[9]

   [9] At [10] - [11].

2. In considering whether to exercise its discretion under s.116(1)(a) of the Migration Act, the Tribunal had regard to the relevant circumstances of Mr Pabla, including but not limited to matters identified in the Minister’s Department’s Procedures Advice Manual (PAM3) “General visa cancellation powers”.[10]

   [10] At [12].

3. In assessing Mr Pabla’s circumstances the Tribunal had regard to:

   a)Mr Pabla’s initial intention to travel and stay in Australia as a member of the family unit of Ms Gill, though that purpose had ceased;[11]

   b)Mr Pabla subsequently wished to study in Australia (per his email of 11 July 2016), however the Tribunal found there was no further evidence to substantiate this intention;[12]

   c)Mr Pabla’s compliance with other conditions of his visa, potential hardship faced by Mr Pabla if his visa were to be cancelled and the fact he would become an unlawful non-citizen and liable to detention and removal;[13]

   d)Mr Pabla’s circumstances in applying for future visas if his visa were to be cancelled,[14] Mr Pabla’s cooperation with the Minister’s Department and Tribunal and the impact on any other person’s visa if Mr Pabla’s visa were cancelled;[15] and

   e)Mr Pabla’s claims in his response to the NOICC dated 11 July 2016.[16]

   [11] At [13].

   [12] At [14].

   [13] At [15]-[16].

   [14] At [17].

   [15] At [18].

   [16] At [19].

4. In respect of Mr Pabla’s concerns as to what consequences would await him in India, the Tribunal considered the Full Federal Court's findings in COT15 v Minister for Immigration (No 1),[17] where the Court affirmed the cancellation of a subclass 101 (child) visa on the basis that the claims raised in the case could be better canvassed in an application for a protection visa.  The Tribunal was satisfied that the claims made by Mr Pabla could be better canvassed in an alternate visa application.[18]

   [17] [2015] FCAFC 190.

   [18] At [20].

5. Considering the circumstances as a whole, the Tribunal concluded the visa should be cancelled.[19]

   [19] At [21].

The present proceedings

1. These proceedings began with a show cause application lodged on 19 June 2017.  Mr Pabla continues to rely upon that application. 

2. Under the heading “Grounds of Application”, Mr Pabla has referred the reader to his affidavit filed with the application.  In that affidavit, Mr Pabla refers to what happened before the Minister’s Department and the Tribunal and states that he believes the Minister’s Department and the Tribunal made a “judicial error” which needs to be rectified.  I received that affidavit as a submission. 

3. I have before me as evidence the court book filed on 11 September 2017. 

4. I invited oral submissions from Mr Pabla this afternoon.  Notwithstanding my prodding, he was unable to expand upon his general assertion of jurisdictional error.  He told me that he wants to study and to remain in Australia.  He was not, however, able to advance any argument concerning any legal issue arising from the Tribunal decision. 

5. The Minister’s submissions deal with the Tribunal decision.  I agree with those submissions.

6. The application fails to raise any arguable case of jurisdictional error on the part of the Tribunal. The application should accordingly be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

7. Insofar as Mr Pabla’s affidavit is to be taken as the grounds of the application, the only discernible complaint is that Mr Pabla considers the Minister’s Department and Tribunal made a jurisdictional error which needs to be rectified.  This complaint lacks any meaningful content and without any further particularisation, is incapable of establishing any jurisdictional error by the Tribunal.

8. In any event, the Tribunal complied with its statutory obligations pursuant to Division 5 of Part 5 of the Migration Act.

9. Mr Pabla was invited to a hearing as required under s.360 of the Migration Act, and was clearly on notice of the dispositive issues in the review from the delegate's decision. However, in light of Mr Pabla’s non-appearance at the hearing and pursuant to s.362B of the Migration Act, the Tribunal decided to make its decision on the review without taking any further action to enable Mr Pabla to appear before it:

   a)in the circumstances of this case, the Tribunal’s discretion was exercised in a reasonable manner, including in light of AZAFB v Minister for Immigration  (AZAFB);[20] and

   b)this matter can be factually distinguished from AZAFB, because SMS hearing reminders were sent to Mr Pabla,[21] Mr Pabla provided a response to the hearing invitation,[22] and the Tribunal was entitled to assume that Mr Pabla was aware of the hearing.[23]

   [20] [2015] FCA 1383. For the avoidance of doubt, the Minister considers AZAFB to have been wrongly decided. However, nothing turns on this as that case is clearly distinguishable.

   [21] CB 88 - 89.

   [22] CB 85 - 87.

   [23] See SZOPV v Minister for Immigration & Anor [2016] FCCA 182; CER15 v Minister for Immigration & Anor [2016] FCCA 329.

10. Finally, the Tribunal’s s.359A obligations were not enlivened in this matter.

Conclusion

1. I conclude that Mr Pabla is unable to advance an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules, the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,550.  Mr Pabla indicated that he may require time to pay.  I will not require payments of costs within any particular time.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,550.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     11 April 2018