Patel & Anor v Minister for Immigration & Anor

[2015] FCCA 2598

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2598

Catchwords:
MIGRATION – Review of Refugee Tribunal decision – no jurisdictional error found – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth); ss.424A, 424AA, 140

First Applicant: AMITKUMAR JAYANTILAL PATEL

Second Applicant: ASHABEN AMITKUMAR PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 126 of 2015

Judgment of: Judge Vasta

Hearing date: 1 September 2015

Date of Last Submission: 1 September 2015

Delivered at: Brisbane

Delivered on: 1 September 2015

REPRESENTATION

The Second Applicant appearing on his own behalf

Solicitors for the Applicant: Sparke Helmore

ORDERS

1. That the Application filed 12 February 2015 be dismissed.

2. That the Applicant pay the costs of the First Respondent in the amount of $5,800.00.

3. That the name of the Second Respondent be amended to the “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 126 of 2015

AMITKUMAR JAYANTILAL PATEL

First Applicant

ASHABEN AMITKUMAR PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant, by application filed in this Court on 12 February 2015 brings an application for review of a decision made by the Migration Review Tribunal on 15 January 2015. 

2. That Migration Review Tribunal itself reviewed a decision of 3 September 2014 made by the delegate of the Minister for Immigration to cancel the Applicant’s subclass 573 education visa. 

3. The chronology roughly is that the Applicant who was born in 1986 is a national of India.  He was granted the subclass 573 visa in July 2013.  He then came to this country. 

4. On 20 August 2014, he was issued with a notice of intention to consider cancellation because the Applicant was considered by the delegate to have not complied with condition 8202 of his visa. 

5. He gave a response to that notice, it seems, that same day. 

6. On 2 September 2014, the delegate cancelled the visa on the basis that there had been a breach of condition 8202. 

7. The review was sought on 11 September 2014 and he appeared before the Tribunal on 15 January 2015.

8. With regard to condition 8202, it requires that the Applicant be enrolled in a registered course or, in limited cases, a full-time course of study or training; that the Applicant not be certified by his education provider as not achieving satisfactory course progress; and that the applicant not be certified by his education provider as not achieving satisfactory course attendance.  In other words, a condition of the visa is that applicants be enrolled; that they be passing or at least doing satisfactorily in the course; and that they be attending as they are supposed to. 

9. In the present case the Applicant has not been enrolled in a registered course since 25 March 2014. 

10. He acknowledged to the Migration Review Tribunal, at the hearing, that he was not enrolled in any course and he admitted to the Tribunal that he had not complied with condition 8202 of the visa. 

11. The Tribunal could consider whether to exercise the discretion and cancel the visa, given that there had been a breach of the condition. 

12. In asking for the Tribunal to exercise the discretion given to the Minister, the Applicant said that he came to Australia to study and fulfil his dream to become a health promotion officer; that his father had previously provided financial support but now is in a critical financial position, as is the Applicant himself. 

13. The Applicant has been unable to obtain employment in Australia. 

14. He came here on a bank loan but the bank has ceased providing finance. 

15. He suffered chest pains for a couple of months and he gave, to the Tribunal, doctors’ certificates certifying that he was suffering from chest pains from 21 August 2013 to 20 September 2013 and from 2 October 2013 to 25 October 2013.  He said that he informed his university about the chest pains. 

16. He told the Tribunal, as he has told me here today, that all he wants to do is study and he will do whatever he needs to study.  He told the Tribunal that the severe financial difficulties are frustrating his desire to study. 

17. The fact is that there was a breach and there really has been little for the Migration Review Tribunal to look at when considering whether or not they should exercise the discretion. 

18. I have to be satisfied that on all of the evidence that was before the Migration Review Tribunal that no reasonable decision maker could have come to the view that the Migration Review Tribunal have come to. 

19. The main findings of the Tribunal were obviously that the Applicant was not enrolled in the registered course and had not complied with condition 8202 and that, though he did suffer chest pains in August, September and October 2013, this was several months before March 2014 when he ceased being enrolled in a registered course. 

20. But whilst the financial difficulties may be unfortunate, they did not obviate the obligations of the Applicant to meet the terms and conditions of his visa. 

21. The Tribunal noted that there would be a degree of hardship caused to the Applicant by the cancellation of the visa, including that he would not be able to pursue further study in Australia. 

22. The Tribunal also said there were no persons whose visas may be cancelled under s.140 because they are connected to the Applicant.

23. There were no children in Australia who would be affected by the cancellation of this visa. 

24. The Tribunal took into consideration all the material circumstances of the applicant.  They looked at all factors that would influence them as to whether to exercise the discretion to cancel the visa. In all those circumstances the Tribunal concluded that the Applicant’s visa should be cancelled. 

25. On those findings, and that being the state of the evidence before the Tribunal, it is difficult to see how the Tribunal has committed any jurisdictional error. 

26. Notwithstanding that, the application here has two grounds

27. Ground One is as follows:

    “1. The Tribunal constructively failed to exercise its jurisdiction;

    Particular

    The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents”. 

28. Any examination of the Tribunal’s decision shows that this is nonsense. 

29. The Tribunal not only received the medical certificates, which were the only documents given, and they accepted it.  Their finding was that he did suffer the chest pains and they accepted the force of those documents. 

30. It is a matter where it could not be clearer that those matters that the Applicant put before the Tribunal were accepted and they were in his favour.  There is no substance in this ground.

31. Ground Two is:

    “The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon, and to invite the application to comment upon or respond to that information”.

32. There is nothing that could be illustrated that would demonstrate where the Tribunal has done anything but tell the Applicant what it is that it is thinking and then asking him to respond. 

33. He responded with regard to the chest pains, with regard to his financial circumstances and on every other issue raised by the Tribunal. 

34. The Tribunal has complied with its obligation under s.424A and s.424AA. 

35. The fact is that notwithstanding everything that the Applicant said, the Tribunal found that it was an appropriate matter for which the visa should be cancelled because of the non-compliance with condition 8202 of the visa. 

36. In the circumstances, both grounds fail and on my reading of the whole of the evidence there is no jurisdictional error that has been shown. 

37. This application is nothing more than an attempt to garner sympathy in the hope that a Judge may forget their oath and act according to that sympathy.

38. Therefore, I dismiss the application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 22 September 2015