Poudel v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 387
•2 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Poudel v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 387
File number: SYG 565 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 2 May 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – extension of time request – extraordinary delay – no prejudice – inadequate explanation provided – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198, 357A, 359AA, 360 & 477 and Division 5 of Part 5
Migration Regulations 1994 (Cth), Condition 8202 in Schedule 8
Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 115 Date of hearing: 24 April 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms E Maker Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 565 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROHIT POUDEL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) be dismissed.
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 KENDALL:
BACKGROUND
The applicant is a citizen of Nepal (Court Book (“CB”) 20).
He was granted a granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (the “visa”) on 28 June 2014 and was initially enrolled in a Bachelor of Information Technology degree (from 17 November 2014 to 30 November 2017) (CB 1 & 61). The applicant’s enrolment was cancelled on 20 September 2016 due to “unsatisfactory course progress”. He subsequently enrolled in a Bachelor of Business Information Systems degree from 5 December 2016 to 1 December 2019. That enrolment was cancelled on 14 June 2017 for “non-payment of fees” (CB 61).
On 24 January 2018, the Department of Home Affairs (the “Department”) sent the applicant a “Notice of Intention to Consider Cancellation” letter (the “NOICC”) under s 116 of the Migration Act 1958 (Cth) (the “Act”) (CB 1-5). The NOICC referenced a breach of Condition 8202(2)(a) in Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”), noting that the applicant had “not been enrolled in a registered course of study since 14 June 2017” (CB 2).
On 2 February 2018, a registered migration agent (the “representative”) wrote to the Department on behalf of the applicant and provided completed “Form 956 – Advice by a migration agent/exempt person of providing immigration assistance” and “Form 929 – Change of address and/or passport details” documents. He also requested an additional five working days within which to respond to the NOICC (CB 6-12). That same day (being 2 February 2018), the Department granted that request, notifying the representative that the response to the NOICC was now due on the extended date of 19 February 2018 (CB 13-14).
No response was provided by or on behalf of the applicant.
On 6 March 2018, the applicant’s visa was cancelled by a delegate of the first respondent (the “Minister”) (CB 20-25). The delegate explained (in the cancellation decision) that he had spoken with the applicant’s representative (on 5 March 2018) reminding him that the Department had not received a response to the NOICC and that the due date (as extended) had already lapsed. The delegate noted that the representative had assured him that he was going to submit a response by 5.00pm that day (being the day prior to the cancellation decision). The delegate noted that, at the time of decision, no response had been received from the applicant or his representative (CB 21).
The delegate also noted that, based on the evidence before him obtained from the Provider Registration and International Student Management System records, he had determined that the applicant had not been enrolled in a registered course of study since 14 June 2017. On that basis, the delegate found that the applicant was in breach of Condition 8202(2)(a) in Schedule 8 of the Regulations (CB 22). The delegate then considered whether the visa ought to be cancelled (CB 22-24), ultimately determined that the applicant’s visa ought to be cancelled and did so pursuant to s 116(1)(b) of the Act (CB 25).
The applicant was notified of the visa cancellation by email on 6 March 2018 (CB 15-19).
On 12 March 2018, the applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 26-27). In that review application, the applicant again nominated his representative to assist him with the Tribunal review (CB 27).
On 17 October 2019, the Tribunal invited the applicant (via email and through his representative) to attend a hearing before it scheduled for 6 November 2019 (CB 33-36).
On 6 November 2019, the applicant appeared at the Tribunal hearing to give evidence and present arguments (CB 37-39). The applicant’s representative did not attend at that hearing but the applicant was assisted by a Nepali interpreter (CB 37).
The applicant provided the Tribunal with additional documents at that hearing (CB 40-52).
On 12 November 2019, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa (CB 56-64).
On 13 November 2019, the applicant was notified of the Tribunal’s decision (via email and through his representative) (CB 53-55). With that notification, the applicant was also provided with an information sheet containing “information about decisions” which, relevantly, detailed how the applicant could seek review of the Tribunal’s decision (CB 65-67).
On 8 December 2021, another registered migration agent appointed by the applicant (the “new representative”) contacted the Tribunal, provided copies of completed “Appointment of Representative” and “Form 956 – Appointment of a registered migration agent, legal practitioner or exempt person” documents and asked the Tribunal to provide a copy its decision (CB 69-76).
Relevantly, the agent’s correspondence stated as follows (emphasis in original):
I have been appointed as Authorized Representative for Mr Poudel to deal with AAT.
According to him, he had a review application at AAT which has been finalized already.
Now he would like to request AAT to get Notification and Decision Record of his past review application.
Duly signed AAT Authorisation Form, 956 form and passport are attached for your reference.
On 9 December 2021, the Tribunal provided that new representative with copies of the Tribunal’s notification letter and decision record (CB 77).
On 7 April 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision. Unfortunately, that application was filed 842 days outside of the 35-day time limit specified in s 477 of the Act.
In the circumstances, the applicant requires an extension of time to pursue the substantive proceeding.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court has concluded that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for judicial review (including an application for extension of time within which to make that application) and supporting affidavit filed by the applicant on 7 April 2022, a court book numbering 78 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 10 April 2024.
The Court notes that on 5 July 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court (via video link) on 24 April 2024 without legal representation. He was assisted at the hearing by a Nepali interpreter. The Court confirmed with the applicant that he had received a copy of the Minister’s material outlined above.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. In this matter, the Tribunal’s decision is dated 12 November 2019. The date by which the applicant was required to file his application in this Court was 17 December 2019. Unfortunately, the applicant did not file his substantive application until 7 April 2022.
As noted above, the delay here is 842 days.
The Court explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided “grounds” explaining why he believes that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting that the applicant appeared without any legal assistance, the Court explained to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level” only: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
The Court invited the applicant to highlight anything he considered relevant to his request for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Length of delay
The Court notes that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above, the delay in this matter is 842 days.
This is an extraordinary delay (being over two years and three months) and weighs heavily against the grant of an extension of time.
Prejudice
In written submissions filed in this Court, the Minister conceded that there is no prejudice to the Minister beyond the public interest in the finality of administrative decision making: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67.
The Court agrees.
This weighs in favour of granting the extension of time.
Explanation
The longer the delay in question, the more satisfactory the explanation for that delay needs to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 (“Manna”) at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
In his judicial review application, the applicant provides three grounds for the extension of time which, relevantly, provide as follows (without alteration):
1.I did not know about 35 days to lodge an application to court after AAT decision. My previous Migration Agent did not properly inform about this date. In fact, he even did not send me the AAT decision. After few months I was very concerned about my application and called AAT. They informed me that the final decision has been made already and they provided me the decision.
2.After getting decision record from AAT, I started looking for a Lawyer to assist to lodge application at Federal Circuit court. I quickly realised that the fee they charge is too high. As I do not have work right, I have little money to spend. When I found that I am not in position to hire a lawyer, I started to know about the application process and got late to lodge this application.
3.I am not very good in English, where ever I went to seek help, I was not understanding well, so this delay happened due to little knowledge about the application process.
The applicant raised similar concerns to those outlined above (in relation to his agent) in oral submissions before this Court. In particular, the applicant stressed that he was not able to contact his agent and that he was not provided with any updates or “next steps” about what was happening with his matter.
The applicant also told the Court that he had not done anything between 2020 and 2022 because in 2020, he discovered that his agent had been deregistered and he was not sure what he should be doing and in 2021 he was infected with the COVID-19 virus (which, he stressed, is why he was “late in doing everything”).
To the extent that the applicant claims that he had “little knowledge of the application process” and was unaware of the timeframe within which such an application must be made, the Court sympathises. However, ignorance is no excuse in matters of this sort. In this regard, the Court references comments made by the Federal Court in in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, as follows:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
An applicant seeking review of a decision made by the Tribunal must take all necessary steps to ensure that they do what is required of them. The applicant in this matter does not appear to have done so. There is no evidence, for example, that the applicant sought assistance from the Court or the Tribunal in relation to what was required of him.
Further, the Court notes that the Tribunal provided the applicant with an information sheet when notifying him of its decision (CB 65-67). This was sent to the applicant via email (through his representative) on 13 November 2019 and relevantly provided (CB 66):
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
The applicant was thus on notice that that an application for review would need to be filed in the then Federal Circuit Court of Australia within 35 days of the Tribunal’s decision.
Turning to the claim that the applicant did not file his application for judicial review because the costs of hiring a lawyer were too high and he could not afford it (because he had no working rights), the Court is, of course, sympathetic to the plight of all applicants who appear before this Court in similar circumstances. However, as this Court has previously stated in other similar matters, claimed impecuniosity is not an acceptable explanation for failing to lodge a judicial review application within the requisite time period: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]-[26] per Barker J.
Further, the Court notes that there is no right to legal representation in migration proceedings: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099. Nor is a lack of legal representation a sufficient explanation alone for an extension of time: Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [27], [32] & [36]; Manna at [17].
There is also no evidence to suggest to this Court that the applicant contacted the Court registry to obtain assistance with filing his application or to discuss the issue of obtaining a fee waiver or reduction in filing fees or to seek any advice or assistance in this regard.
The applicant also claimed (in his application and in his oral submissions to this Court) that he was unable to contact his agent (and that he ultimately found out that the agent had had their licence revoked or had otherwise become deregistered) and that he was unaware that the Tribunal had made its decision. The applicant further claimed that he was not made aware of the decision until he became very concerned about his application “after a few months” and called the Tribunal (who informed him that “the final decision ha[d] been made already”).
The Court notes that there is no evidence in the Court Book (or otherwise before this Court) to indicate that the applicant called the Tribunal “after [a] few months” (or at all) to enquire about his case or to obtain a copy of the Tribunal’s decision record (CB 78). Documentation before the Court suggests that the applicant appointed a new representative in December 2021 and that new representative sought copies of the Tribunal’s decision record and associated notification letters. It is also noted that the correspondence from the new representative to the Tribunal indicates that the applicant had informed him that the review application had “been finalised already” (CB 69).
Even if the Court were to accept that the applicant was not aware of the Tribunal’s decision until December 2021 (when the new representative requested, and was provided, copies of the Tribunal’s decision record and notification letters), the applicant has not provided an adequate explanation for the further four month delay in filing his review application (from December 2021 to April 2022 when the review application was ultimately filed by the applicant).
For the reasons outlined above, the Court does not consider that the explanation provided by the applicant is satisfactory to justify such a lengthy delay.
This weighs against granting an extension of time.
Merits
The most critical factor for consideration when determining if an extension of time ought to be granted is generally whether the proposed substantive application, viewed at an impressionistic level only, has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant in this matter was unrepresented, the Court gave him an opportunity to outline any concerns that he might have in relation to the Tribunal’s decisions. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court is whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or reinstate the applicant’s cancelled visa. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant told the Court that he has “an intention to study” and that he wants “to do everything legally”. The applicant also said that he is “seeking some time so if this case can be referred back, [he] is looking at that [option] as well”.
When asked by the Court what evidence he thought the Tribunal did not look at, the applicant discussed his mother’s medical history and, in particular, a “small lump that she found in her left breast” which, at the time, the applicant thought was serious and which he did not handle very well due to his young age. The applicant acknowledged that now this issue is “not such a big deal”. He explained, however, that at the time he was highly emotional and quite sensitive and believes the Tribunal did not take all of this into account when assessing his case.
The applicant’s oral submissions, to the extent that they address an arguable case of error, will be considered by the Court below.
The Tribunal’s decision
In determining whether there is an arguable case of error, it is useful to first detail the Tribunal’s decision.
The Tribunal’s decision is 9 pages in length and spans 56 paragraphs. The final page contains a relevant extract from the Regulations.
The Tribunal explained that a delegate of the Minister had cancelled the applicant’s visa on 6 March 2018 because he had breached Condition 8202(2)(a) in Schedule 8 of the Regulations. Specifically, the applicant had not been enrolled in a registered course of study since 14 June 2017. The Tribunal noted that the applicant had appeared at a hearing before it to give evidence and present arguments (with the assistance of a Nepali interpreter). The Tribunal also noted that the applicant had been represented by a migration agent who had not attended the hearing (at [1]-[4]).
The Tribunal identified that the issue before it was whether the applicant had breached Condition 8202 in Schedule 8 of the Regulations and, if so, whether the applicant’s visa should be cancelled pursuant to s 116(1) of the Act) (at [6]).
The Tribunal summarised Condition 8202 in Schedule 8 of the Regulations and confirmed that the applicant’s visa was subject to that condition. The Tribunal explained that the applicant had been sent a NOICC on 24 January 2018 because he had not been enrolled in a registered course of study since 14 June 2017. The Tribunal noted that the applicant was given an opportunity to comment or give reasons as to why his visa should not be cancelled but did not do so. The Tribunal confirmed that the applicant’s visa had been cancelled on 6 March 2018 and that the applicant had applied to the Tribunal for review of that decision on 12 March 2018 (at [7]-[10]).
The Tribunal set out the applicant’s evidence to the Tribunal that he had not been enrolled in a registered course between 14 June 2017 and 15 July 2018 and had agreed that he had breached Condition 8202 of his visa. The Tribunal observed that the applicant’s evidence was consistent with records from the Department of Education (which indicated that the applicant had only completed an English course in Australia in 2014). The Tribunal explained that it had put that information to the applicant pursuant to s 359AA of the Act. The applicant told the Tribunal that he had no comment but explained that he had not completed the Diploma of Information Technology because “he got frustrated” (at [11]-[13]).
The Tribunal found that, on the evidence before it, the applicant was not enrolled in a registered course from 14 June 2017 to 15 July 2018 and, accordingly, had not complied with Condition 8202(2)(a) of his visa (at [14]).
Having found that the applicant had not complied with a condition of his visa, the Tribunal identified that it was required to consider whether the applicant’s visa should be cancelled.
Noting that there were no matters specified in the Act or Regulations that were required to be considered, the Tribunal explained that it had regard to the circumstances of the applicant’s case (including matters raised by the applicant) and matters in the Department’s Procedures Advice Manual (at [15]).
The Tribunal considered the circumstances in which the ground for cancellation arose and noted that the applicant had told the Tribunal that an earthquake in Nepal affected his father’s business. The applicant also provided a financial report for that business which he claimed showed that his father could no longer pay his tuition fees. Having considered that report, the Tribunal noted that it showed that the net cash flow in his father’s business in 2017 was substantially better than the previous year. The applicant also told the Tribunal that “when he asked for financial support [his parents] were having a hard time and he did not feel he could ask for help”. The Tribunal did not accept that the applicant’s father’s business was impacted by the earthquake to the extent that he was unable to assist the applicant with his tuition fees or that the bad financial position of the applicant’s father’s business was the reason the applicant could not pay his tuition fees (resulting in the cancellation of his COE) (at [16]-[19] & [26]).
The Tribunal also outlined the applicant’s evidence regarding his mother’s health issues, noting that she was “not well and the doctor [had] found symptoms of breast cancer”. The Tribunal explained that the applicant had said that “this distressed him and he did not ask his parents for financial help”. The Tribunal considered hospital records provided by the applicant in this regard and accepted that the applicant may have been upset that his mother had found a lump in her breast and had to undergo surgery. However, the Tribunal found that the evidence suggested that the issue had resolved quickly and results indicated the lump “was negative for malignant cells and compatible with fibroadenoma”. The Tribunal did not accept that the reason the applicant did not pay his tuition fees was because he could not ask his father for money due to his mother’s illness (at [20]-[21] & [27]-[28]).
The Tribunal also noted that the applicant had told the Tribunal that his education provider would not allow him to sit his exams because he had not paid his tuition fee and then cancelled his COE. The Tribunal considered correspondence between the applicant and his education provider and noted that the correspondence was over five months after the applicant’s COE was cancelled. The Tribunal found that it was the applicant’s responsibility to ensure he was aware of the education provider’s fee policy and to comply with it and the Tribunal did not accept that the education provider was to blame for the applicant’s failure to comply with his visa condition (at [22]-[24] & [29]).
The Tribunal considered that it was incumbent on the applicant to ensure that he complied with the his visa conditions and that, if there was a change in the applicant’s circumstances such that he could not pay his fees or enrol, he ought to have contacted his education provider and arranged to pay by way of instalments or defer his studies. The Tribunal ultimately determined that this consideration did not weigh in the applicant’s favour (at [30]-[31]).
The Tribunal also considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant had a compelling need to travel to or remain in Australia. In doing so, the Tribunal set out the applicant’s study history in Australia, noting that the applicant had only completed an English language course in Australia (between 21 July 2014 and 7 November 2014). The Tribunal also noted that the applicant had not completed any tertiary studies in Australia and that it had not accepted the applicant’s explanation as to why he did not pay his tuition fees (leading to his COE cancellation). The Tribunal accepted that the applicant had come to Australia for the purpose of studying but considered that his purpose had changed since then. Further, the Tribunal was not convinced that the applicant would return to study if his visa was not cancelled. The Tribunal also did not consider that the applicant had demonstrated a compelling need to remain in Australia and was of the view that this consideration did not weigh in the applicant’s favour (at [32]-[35]).
The Tribunal then considered the extent of the applicant’s compliance with visa conditions and noted that he had not been enrolled in a registered course of study between 14 July 2017 and 15 July 2018 or since 8 May 2019. The Tribunal found that the evidence did not provide a satisfactory explanation for the applicant’s non-enrolment over such an extended period of time. The Tribunal found that this consideration did not weigh in the applicant’s favour (at [36]-[37]).
The Tribunal also considered the hardship that may be caused if the applicant’s visa was cancelled and accepted that returning to Nepal without a degree would result in disappointment and embarrassment for the applicant. However, the Tribunal did not consider that the applicant had demonstrated any significant hardship that would be caused by the cancellation and was of the view that the consideration weighed “marginally” in the applicant’s favour (at [38]-[39]).
The Tribunal considered the applicant’s past and present behaviour and found that there was no evidence to suggest that the applicant had not cooperated with the Department and found this consideration had some weight in the applicant’s favour (at [40]-[41]).
The Tribunal found that there was no evidence to indicate that the cancellation of the applicant’s visa would result in any consequential cancellations (pursuant to s 140 of the Act) and the Tribunal considered this did not weigh in the applicant’s favour (at [42]-[43]).
The Tribunal considered the legal consequences if the applicant’s visa was cancelled and noted that the applicant would become an unlawful non-citizen and may be detained (pursuant to s 189 of the Act) or removed (pursuant to s 198 of the Act). The Tribunal also noted that the applicant may be eligible for a bridging visa to allow him to finalise his affairs in Australia before departing. The Tribunal acknowledged that the applicant would be subject to a statutory bar (pursuant to s 48 of the Act, limiting his options to apply for further visas whilst in Australia) for a period of three years from the date of cancellation but noted that was the intended consequence of the relevant legislation when a visa is cancelled. The Tribunal found that this consideration did not weigh in the applicant’s favour (at [44]-[47]).
The Tribunal considered whether there were any international obligations arising for Australia in the event of cancellation and was of the view that this consideration did not weigh in the applicant’s favour (at [48]-[50]).
The Tribunal also considered two holidays the applicant took to Kuala Lumpur in 2016 and a trip the applicant took to China in 2017 and put this information to the applicant (pursuant to s 359AA of the Act). Whilst the Tribunal acknowledged that the applicant was entitled to travel, the Tribunal considered that the applicant’s two trips in 2016 indicated that travel was a higher priority for the applicant than paying for his tuition fees. The Tribunal was of the view that this consideration did not weigh in the applicant’s favour (at [51]-[54]).
Having considered the evidence before it (cumulatively), the Tribunal found that the grounds for cancelling the applicant’s visa outweighed the grounds for not cancelling his visa and determined that the applicant’s visa should be cancelled. The Tribunal ultimately affirmed the delegate’s decision to cancel the applicant’s visa (at [55]-[56]).
Proposed application for judicial review
The application for judicial review (filed by the applicant on 7 April 2022) contains three proposed “grounds of review” as follows (without alteration):
1.Immigration cancelled my Student Visa without proper examine of my evidences. Yes I was without CoE at that time but I was on the process of getting it soon.
2.Immigration did not give me enough time to obtain CoE. I came to Australia on the sole purpose of studying. This right was totally ignored by Department of Immigration.
3.AAT decision was done without proper process. I was not provided enough time to present my case. I would have commenced my study already, had AAT listened my case properly.
Having considered all of the materials before the Court (including the applicant’s proposed grounds of review and his oral submissions before this Court) and noting that the applicant was unrepresented in this matter, the Court has interpreted the applicant’s concerns as broadly as possible (as per the principles in MZAIB).
On that basis, the Court considers the applicant to raise the following concerns:
(a)whether the Tribunal failed to properly consider the applicant’s evidence;
(b)whether the Tribunal erred by failing to give the applicant additional time to obtain a new COE; and
(c)whether the Tribunal failed to afford the applicant procedural fairness or natural justice.
These issues will be considered below.
Whether the Tribunal failed to properly consider the applicant’s evidence
The applicant claims that his visa was cancelled without proper consideration of all of his evidence. The applicant did not provide any details of which evidence he considered the Tribunal had overlooked in his proposed grounds of review. However, as outlined above, in oral submissions before this Court, the applicant told the Court that this related to information regarding his mother’s health issues. In particular, the applicant referenced his mother finding a lump in her breast and the medical evidence that the applicant had provided to the Tribunal in that regard.
This ground fails on a factual level.
The Tribunal expressly referenced and considered that evidence in its written reasons as follows:
20.The applicant also gave evidence to the Tribunal that at that time his mother was not well and the doctor found symptoms of breast cancer. He stated that this distressed him and he did not ask his parents for financial help. He stated that his mother told him that she had to have an operation and if the lump was not removed from her body it would cause cancer in the future. He stated that she had surgery and was on medication for three months. When asked what the medication was for, he responded “regular recovery”. When asked how this impacted on his studies, he stated that he was told that his parents could not support him financially because his mother was not well. He stated that he was disturbed emotionally. He stated that at the same time his COE was cancelled. He stated that since he had to “encounter all these issues” he did not take any steps in relation to the cancellation of his COE. He stated that he was unable to get credit for the subjects he did and had difficulties enrolling with another education provider. He stated that he then received the NOITCC.
21.The Tribunal has considered the documents from the Grande International Hospital provided by the applicant. The first is a pathology report dated 23 June 2017 which indicates that an aspirate was conducted on a lump in the left breast and it indicated that it was negative for malignant cells. The second is a pathology report dated 3 July 2017 which indicates a clinical diagnosis of ‘fibroadenoma of left breast’. A Factsheet from the Royal Women’s Hospital in Melbourne indicates that fibroadenomas are quite common, they are not cancerous and do not put anyone at increased risk of breast cancer. It indicates that a fibroadenoma may be removed by surgery, the operation is performed with a general anaesthetic and usually women go home on the same day.
Having considered the applicant’s evidence in relation to his mother’s health, the Tribunal then made findings as follows:
27.The Tribunal accepts that the applicant may have been upset that his mother had found a lump in her left breast and had to undergo surgery approximately a month later. The documentary evidence he provided indicates that this issue was resolved very quickly. The pathology reports indicate that a sample was collected on 21 June 2017 by way of an aspirate, the results reported on 23 June 2017 indicate that it was negative for malignant cells and compatible with fibroadenoma, a biopsy was conducted on 29 June 2017 following surgery and the results reported on 3 July 2017 confirmed the diagnosis of fibroadenoma of the left breast.
28.The Tribunal does not accept that the reason why the applicant did not pay his tuition fees was because he could not ask his father for money because of his mother’s illness. The Tribunal would expect that his not continuing his studies in Australia and having his Student visa cancelled would have been a greater source of concern and stress for his parents than if he had asked his father to pay his tuition fees. The Tribunal would expect that if he was motivated by concern for his parents he would have ensured that he enrolled in the next semester and continued his studies so that he could complete his degree in Australia.
It is clear from the passages above that the Tribunal considered the applicant’s evidence regarding his mother’s health (in the form of medical records) and made findings. Specifically, the Tribunal accepted that the applicant may have been upset by his mother’s condition. However, the Tribunal did not accept that the applicant did not pay his tuition fees due to his mother’s illness.
To the extent that the applicant disagrees with or otherwise takes issue with the findings made by the Tribunal in this regard, the Court notes that the Tribunal is entitled to accept or reject or give such weight to an applicant’s evidence as it thinks appropriate in all of the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464. This is entirely a matter for the Tribunal as a part of its fact-finding function: Wu Shan Liang at 281-282.
No arguable case of jurisdictional error arises in this regard.
Whether the Tribunal erred by failing to give the applicant additional time to obtain a new COE
The applicant also claims that he was “in the process” of obtaining a new COE and that the Tribunal did not give him sufficient time to do so.
The fact that the applicant was attempting to obtain a new COE would not necessarily have assisted the applicant. That is because whether the applicant was currently enrolled in a registered course or held an updated COE was not one of the questions the Tribunal had to answer.
In this matter, the Tribunal was first required to determine whether the applicant had breached Condition 8202 in Schedule 8 of the Regulations. Relevant to this matter was whether the applicant had been enrolled in a course of study between 14 June 2017 and 15 July 2018. Having considered the evidence before it (including information from the Department of Education and the applicant’s own evidence that he had not been enrolled in a registered course during the relevant period and had breached his visa conditions), the Tribunal found that the applicant had not complied with Condition 8202(2)(a) of his visa (at [14] in the Tribunal’s statement of reasons). That finding was open to the Tribunal.
Even if the applicant had been in the process of obtaining a new COE (or had in fact obtained a new COE), that would not have changed the fact that the applicant had breached his visa conditions by failing to be enrolled in a registered course for a period of 13 months.
Having determined that the applicant had not complied with a condition of his visa, the Tribunal was then required to consider whether the applicant’s visa should be cancelled (at [15] in the Tribunal’s statement of reasons). The Tribunal considered the applicant’s circumstances and the evidence provided by the applicant in some detail (at [16]-[54] in the Tribunal’s statement of reasons) and ultimately found that the grounds for cancelling the applicant’s visa outweighed the grounds for not cancelling his visa (at [55] in the Tribunal’s statement of reasons).
To the extent that the applicant claims that he did not have sufficient time to obtain a COE, the Court notes that the applicant was given multiple opportunities to provide evidence in support of his case. The applicant was first given an opportunity by the Department to provide information in response to the NOICC (CB 1-5). Despite being given an extension of time within which to provide information to the Department, neither the applicant nor the applicant’s representative did so (CB 6-14 & 58).
The Tribunal gave the applicant an opportunity to provide information prior to the Tribunal hearing by way of the hearing invitation letter (sent to the applicant via his representative on 17 October 2019) (CB 33-36). That invitation letter relevantly stated as follows (CB 36):
We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 30 October 2019.
If you bring an original document to the hearing to submit as evidence, you should also bring a copy of the document. If you do not bring a copy, the original may not be returned until the end of the review.
The enclosed leaflet ‘Information about hearings - MR Division’ contains important information about hearings, dismissals and your rights.
Please read and complete the enclosed ‘Response to hearing invitation - MR Division’ form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written arguments sent to us should be in English or be translated by a qualified translator.
The applicant attended the Tribunal hearing on 6 November 2019 and gave oral and documentary evidence to the Tribunal in support of his case (CB 37-52). The documents provided by the applicant at his Tribunal included medical records relating to his mother’s health and a report relating to his father’s business.
There is no evidence before the Court to suggest that the applicant ever told the Tribunal that he was in the process of obtaining an updated COE and needed more time to do so or that the applicant (or his representative) ever sought and adjournment or any additional time from the Tribunal to provide any further information (including an updated COE). The Court asked the applicant (at the hearing of this matter on 24 April 2024) if he had done so and the applicant confirmed that he had not sought any extension of time from the Tribunal for any reason.
The Court is satisfied that the applicant was given an opportunity to provide evidence to the Tribunal in support of his case and did so. The Tribunal considered the information before it and there is no evidence to suggest that the applicant sought additional time to provide further information to the Tribunal.
No arguable case of jurisdictional error arises in this regard.
Whether the Tribunal failed to afford the applicant procedural fairness or natural justice
The applicant also claims that he was not afforded procedural fairness. The Court disagrees for the reasons that follow.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this case and notes that:
(a)the Tribunal invited the applicant to attend a hearing before it on 6 November 2019 (via email and through his representative) and the applicant did so (CB 33-39). He applicant gave evidence at that hearing in support of his review application (both oral and documentary evidence) (CB 37-52). Accordingly, the Tribunal complied with s 360 of the Act;
(b)during the course of the hearing, the Tribunal put information to the applicant in relation to his study history (in particular, records from the Department of Education) and holiday travel (in particular, two trips he took to Kuala Lumpur in 2016 and a trip to Chine in 2017) and asked the applicant to comment in that regard. There is no evidence to suggest that the applicant requested additional time or that he was unable to respond to the information put to him because he did not have sufficient time to do so. The Tribunal thus complied with s 359AA of the Act;
(c)the applicant was on notice that the issues for the Tribunal to consider would be whether to exercise its discretion to cancel the applicant’s visa (being the dispositive issue before the delegate). Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(d)there is no evidence before this Court to suggest that the Tribunal was anything but impartial and objective: SZRUI.
The Court is satisfied that the Tribunal afforded the applicant procedural fairness in this matter.
No arguable case of jurisdictional error arises in this regard.
Conclusion regarding merits of the substantive application
The applicant’s proposed grounds of review and oral submissions, assessed at an “impressionistic level” only, do not identify any arguable case of jurisdictional error on the part of the Tribunal.
This weighs heavily against the granting of an extension of time.
CONCLUSION
The lack of a satisfactory explanation for the extraordinary delay and the lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at a reasonably impressionistic level only) are such that it is not in the interests of the administration of justice for the Court to grant the applicant an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 2 May 2024
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