PYANEEANDEE v Minister for Immigration
[2017] FCCA 861
•5 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PYANEEANDEE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 861 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal is under a duty to inquire –whether the Tribunal misunderstood the applicant’s claims – hearing for an order to show cause – no arguable case raised – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13 Migration Legislation Amendment (2016 Measures No.1) Regulation 2016 (Cth), reg.5404 |
| Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 |
| First Applicant: | ROJAMBA PYANEEANDEE |
| Second Applicant: | TAARANEE PYANEEANDEE |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1907 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 10 February 2017 |
| Date of Last Submission: | 27 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2017 |
REPRESENTATION
| Applicants: | First applicant in person and as litigation guardian of the second applicant |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application made on 20 July 2016, amended on 25 October 2016 and further amended on 20 January 2017 is dismissed.
The first applicant pay the first respondent’s costs set in the amount of $3,606 .
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1907 of 2016
| ROJAMBA PYANEEANDEE |
First Applicant
TAARANEE PYANEEANDEE
Second Applicant
And
| MINISTER FOR IMMIGRATION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 20 July 2016, amended on 25 October 2016, and further amended on 20 January 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 30 June 2016, which affirmed the decision of the Minister’s delegate to cancel the applicant’s student (Class TU) visa, and consequently the visas of her husband and daughter, who were her dependants.
On 2 November 2016, the application was set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) on 10 February 2017.
The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard, that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.
If the Court cannot be satisfied that an arguable case is raised against the respondent (“the Minister”), the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where a claim is clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
In evidence before the Court is a bundle of relevant documents, filed and tendered by the Minister (“the Court Book”, “CB” – “RE1”). The applicant also filed affidavits on 25 October 2016 and 20 January 2017. They were not read into evidence as they repeated the complaint in the grounds of the application and asserted errors of law. The applicant also provided an affidavit said to be made on 27 February 2017 pursuant to Court orders made on 10 February 2017 (see further below).
Background
Having regard to the evidence before the Court the background to this case, as set out in the Minister’s written submissions, filed on 3 February 2017, is in my view, a fair summary of the relevant events
([3] – [8] of the Minister’s written submissions filed on 3 February 2017):
“[3] The first applicant (the applicant) is a citizen of Mauritius who was granted a Student (Class TU) Subclass 573 Higher Education Sector visa on 18 September 2012 (see CB 9). The second applicant is the applicant’s daughter. The applicant’s daughter and spouse were granted dependant visas. The applicant’s spouse departed Australia for Mauritius in July 2015 (see CB 234, [20]) and is not a party to these proceedings.
[4] The applicant’s Student visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations), which required the applicant to be ‘enrolled in a registered course’: cl 573.611(a) in Schedule 2 to the Regulations. Section 116(1)(b) provides that the Minister may cancel a visa if he or she is satisfied that the holder of a visa has not complied with a condition of the visa.
[5] On 20 August 2015, the applicant was issued with a Notice of Intention to Consider Cancellation because a delegate of the Minister considered that she had not complied with condition 8202 on the basis of evidence in the Department’s Provider Registration and International Student Management System (PRISMS) that she had not been enrolled in a registered course since 7 August 2014: CB 8-15.
[6] On 7 September 2015, the applicant’s representative responded to the NOICC in an email: CB 16-106. The email attached a statement of the applicant (CB 21-23) which stated that she had been enrolled in a Bachelor of Business since 12 November 2012, but that due to her husband’s deteriorating health, she could not afford to finish her degree. She claimed that the break in her studies was due to ‘compelling and compassionate circumstances which were beyond [her] control’ and asked the delegate not to exercise the discretion to cancel the visa. She further claimed that she has since enrolled in a Certificate IV in Marketing and a Diploma in Marketing and that she was a genuine student with genuine intentions to study. The email attached the applicant’s confirmations of enrolment (CoE) in a Bachelor of Business, Diploma of Marketing and Certificate IV in Marketing (CB 24-28) as well as medical records relating to her husband: CB 29-106.
[7] On 9 December 2015, a delegate of the Minister cancelled the visa under s 116(1) of the Act: CB 108-127. The delegate found that there was a ground for cancellation under s 116(1)(b) of the Act because the applicant had breached visa condition 8202 by failing to remain enrolled in a registered course since 7 August 2014. The delegate exercised the discretion to cancel her visa and as a consequence, the dependent visas were also cancelled.
[8] On 13 November 2015, the applicants (together with the applicant’s spouse) applied for review of the delegate’s decision: CB 128-130. They were invited to (CB 134-137) and attended a hearing before the Tribunal on 14 June 2016: CB 138-141. The applicant provided the Tribunal with documents relating to her husband’s medical condition (CB 142-222) and evidence that she had completed a Certificate IV in Marketing: CB 224-226. The Tribunal affirmed the delegate’s decision on 30 June 2016:
CB 231-238.”
Similarly, the Minister’s written submissions also provide, in my view, a fair summary of the Tribunal’s analysis ([9] – [20] of the Minister’s written submissions):
“[9] The Tribunal noted that the delegate’s decision, which the applicant provided to the Tribunal, recorded that she had ceased to be enrolled in a registered course of study from 7 August 2014. It further noted her evidence at the hearing that she had not been enrolled in a registered course from 7 August 2014: CB 233, [11], [13]. For these reasons, the Tribunal found that the applicant had not complied with condition 8202(2): CB 233, [14].
[10] In determining whether to exercise its discretion to cancel the applicant’s visa, the Tribunal had regard to matters raised by the applicant as to why her visa should not be cancelled and matters set out in the policy guidelines: CB 233, [16].
[11] The applicant provided evidence about her study history: CB 233-234, [17]-[19]. She claimed that she completed a Diploma of Business in July 2010 and a Diploma of Tourism in July 2012. She commenced a Bachelor of Business in November 2012, which was cancelled due to non‑commencement of studies on 7 August 2014. She had not been enrolled or studying in any other course until her enrolment in a Diploma of Marketing that had been due to commence on 16 May 2015, although she did not commence this course. Instead, the applicant had commenced and completed a Certificate IV in Marketing from 17 August 2015 to 15 May 2016. She provided evidence that she commenced an Advanced Diploma in Hospitality Management on 16 May 2016 and was currently studying the course.
[12] In relation to the circumstances that gave rise to the applicant’s failure to commence her Bachelor of Business, she explained that her husband’s health deteriorated in 2014 and that she faced financial stress as a result of having to care for him, her daughter and manage the household. The applicant put off enrolling and did not realise that she had not enrolled. The husband’s health deteriorated further and he returned to Mauritius in July 2015: CB 234, [20]. It was unaffordable for the applicant to continue her degree, and she instead enrolled in a Certificate IV in Marketing followed by a Diploma in Marketing. The applicant claimed that she spoke to the education provider about her difficulties with her husband and was told to enrol in the subsequent semester. She stated that she forgot to enrol by the time enrolment began for the next semester and that she could not afford the costs: CB 234, [23].
[13] The Tribunal accepted that from 2008 until 7 August 2014, the applicant was fulfilling the purpose for which her visa was granted, i.e. to study. However for the one year period from August 2014 to 17 August 2015 (when she commenced her Certificate IV in Marketing), the Tribunal was not satisfied that she had been studying. It accepted that she had been studying since 17 August 2015: CB 235, [27].
[14] Despite finding that the applicant had renewed her studies and continued to study, it found that the applicant had nevertheless been in breach of condition 8516 of her visa since her Bachelor of Business was cancelled in August 2014. It observed that condition 8516 and cl 573.231 in Schedule 2 to the Regulations required that the applicant be enrolled in, or subject of an offer of enrolment in a course of study that is specified in a Ministerial instrument for a Subclass 573 visa in the Higher Education Sector. It found that the applicant had failed to be enrolled in such a course since the cancellation of her visa and therefore, that she failed to meet cl 573.223(1A) in Schedule 2 to the Regulations, an alternative primary criterion for the visa: CB 235, [28].
[15] The Tribunal accepted that the applicant’s husband had a range of serious illnesses which created difficulties for the applicant’s study. However it found that in these circumstances, the applicant had failed to take the appropriate steps of maintaining enrolment and seeking deferral. It did not accept the claim that the education provider told her to enrol in the next semester. It expressed some doubt about her evidence that she forgot to enrol and considered that the applicant had a lax attitude to her obligations, including investigating deferral: CB 235, [29].
[16] The Tribunal identified that the applicant provided shifting evidence about whether financial issues were the key cause of her not progressing with the Bachelor of Business, and considered that this gave rise to concerns about the credibility of the claim: CB 235, [30]-[31].
[17] The Tribunal accepted that if the applicant was unable to complete her current Advanced Diploma of Hospitality Management, there would be some hardship to the applicant and her family and that it may impact on her career options in Mauritius. It acknowledged that she had undertaken a number of years of successful study in Australia: CB 236, [32].
[18] The Tribunal considered other discretionary factors. It found that there was no evidence to suggest that the applicant acted in an adverse way towards the Department: CB 236, [34]. While the Tribunal noted that she could become an unlawful non-citizen if her visa was cancelled, it considered that she would be eligible for a Bridging visa to make her status lawful: CB 236, [35]. It acknowledged that the cancellation of the applicant’s visa would result in the cancellation of her husband’s and child’s visas. It noted that the husband had already returned to Mauritius. While it accepted that there would be disruption to the daughter’s schooling in Australia, it did not accept that the disruption amounted to significant hardship as the applicants always intended to return to Mauritius: CB 236, [36], [38]. It acknowledged that the cancellation of the visa may impose restrictions on the ability to apply for other visas: CB 236, [37]. It noted that the applicant did not claim to fear persecution or significant harm on return to Mauritius: CB 236, [39].
[19] The Tribunal concluded that while there were some mitigating circumstances due to the applicant’s husband’s ill health, the applicant should have considered other options and did not accept that she forgot to enrol. The Tribunal fund that the applicant had not given candid evidence regarding financial issues: CB 236, [40]. It did not consider that the hardship to the applicant and her family, her past record of study, some mitigating circumstances due to husband’s illness and other discretionary factors in the applicant’s favour, weighed in favour of reinstating the visa. The Tribunal found it particularly concerning that the applicant allowed herself to not be enrolled for study for a period of one year, and further that she had also breached condition 8516 from 7 August 2014 up until the visa was cancelled: CB 236, [41]. [Errors in original]
[20] The Tribunal concluded, having considered the circumstances ‘as a whole’ that the visa should be cancelled: CB 237, [42].”
In addition to what is stated above at [7], I note that the Tribunal found that it had no jurisdiction to review the application made to it by the applicant’s husband and daughter (see [5] at CB 232). There is no challenge by the applicant to this finding. In any event, no arguable legal error is apparent in relation to this matter.
The Application Before the Court
The grounds of the amended application filed on 25 October 2016 are in the following terms:
“1. The AAT member misunderstood my claim and situation.
2. The AAT member did not consider the disruption we will face if we are return without completion of my study.
3. I believe the AAT member erred in denying the grant of my student visa because of the subclass number. According to my research there is only one subclass 500 for student visa 2016. I will demonstrate my genuiness of being a student in Australia.”
[Errors in original.]
The applicant sought, and was granted, leave to file a further amended application by Court orders made on 2 November 2016. The grounds of the further amended application, filed on 20 January 2017, are as follows:
“1. The AAT member did not make a decision according to the law.
2. The AAT member had consider my situation. But did not consider the facts when making his decision.”
[Errors in original.]
At the hearing, the applicant appeared in person. Leave was granted for the applicant’s friend to sit at the bar table to provide support to, and assist her where possible. The applicant had also been appointed as the litigation guardian for the second applicant by orders made by a Registrar of the Court on 29 September 2016. Her husband, who had been an applicant before the Tribunal, was not an applicant before the Court.
It is the case that at a hearing pursuant to Part 44 of the FCC Rules, the applicant is confined to the grounds of the application (r.44.13 of the FCC Rules).
I note two matters. First, the applicant, with the assistance of her friend, essentially raised two matters before the Court. Neither the applicant nor her friend attempted to link these two matters to the grounds of the amended or further amended application. Nonetheless, given that the applicant was unrepresented, I did consider whether to dispense with r.44.13 of the FCC Rules pursuant to r.1.06 of the FCC Rules in the interests of justice. However for the reasons set out below I could not see it was appropriate to do so.
Further, and in that light, the applicant and her friend submitted that their complaints could be supported by a transcript of the hearing before the Tribunal. However, the applicant claimed that she had not received from the Tribunal, or the Minister’s solicitors, any recording of the hearing from which a transcript could be made. The Minister’s solicitor submitted that the applicant had been given such a recording.
Given that the applicant was unrepresented, I continued with the hearing, then gave her the opportunity to file, within three weeks, any further material after the Court hearing which she felt may support her complaints. The arrangement was that she would be given another copy of the audio recording of the Tribunal hearing by the Minister.
If, after receiving the recording, the applicant felt a transcript would not assist her, the matter would then become reserved at the end of the three weeks. If she did file any further material, the Court would consider it, and if necessary, resume the hearing of her matter or, if appropriate, reserve the matter and proceed to handing down judgment.
The applicant did file an affidavit sworn by her on 27 February 2017. The affidavit “enclosed” with it, a hand written document which, on its face, purports to be a transcript of the Tribunal hearing (“T”). There is nothing from the applicant to say who authored this document or made the transcription, let alone their qualification to do so.
Further, the affidavit directs attention to the following “submissions” (see page 2 of the applicant’s affidavit sworn on 27 February 2017):
“The member did not consider the fact it was the migration agent fault to give me a [word] subclass course when I was not aware of [s]ubclasses number mean. The member did not question me more so I would get a chance to [t]ell infront of the agent that it has nothing [t]o do with me. I was following my agent [a]dvise.
…
The member did not consider that the school should [r]esponse to my request from my side I done what [I] could think was right at that time. The member did not investigate more from the school. The member had ask me for a deferral and compassionate sickness when I had only said no and the member [d]id not ask me more where I could get a chance [t]o explain why I don’t have a deferral.”
[Errors in original. I further note that the pages of the filed document were slightly “cut off” on the left side, including some of the script.]
For the reasons set out below, I did not consider it necessary to hear further from the parties. In short even if the transcript were to be read into evidence, it either does not provide a probative basis for some aspects of the applicant’s (also made by her on behalf of her daughter) complaint to the Court, or in other respects, provides a clear basis to reject the applicants’ complaints (see further below).
The background to the applicant’s complaints made orally, and subsequently in writing, emanate from the following. It is to be remembered that there were two issues before the Tribunal in reviewing the delegate’s decision to cancel the applicant’s student visa.
The first issue was, whether the applicant complied with condition 8202 of the Migration Regulations 1994 (Cth) (“the Regulations”) which attached to the applicant’s student visa. The Tribunal found that as she had not been enrolled in a registered course at the relevant time, she had not complied with this condition.
The Tribunal then considered whether to exercise the discretion to cancel the applicant’s visa. The Tribunal had regard to the applicant’s claims and circumstances in this context. In particular, it considered what the applicant’s claims were in relation to “compelling circumstances” beyond her control that led to her not enrolling in the relevant course at the relevant time.
Paragraph 29 (at CB 235) of the Tribunal’s analysis is a part of this consideration:
“[29] In terms of compelling circumstances beyond the applicant’s control for the breach, the Tribunal accepts that the applicant’s husband had a range of serious illnesses which would have created difficulties for the applicant in studying. However, the appropriate course, if these factors caused an impediment to study, would have been for the applicant to have maintained enrolment and sought a deferral on compassionate grounds. The Tribunal considers that the applicant failed to undertake necessary steps in this regard. The Tribunal is not satisfied with the applicant’s evidence that she would have been simply told by the education provider that she could enrol in the next semester without taking steps to defer. The applicant’s lax attitude to obligations, including investigating deferral, is apparent from the applicant’s evidence that she forgot to reenrol, which the Tribunal has some difficulty accepting, unless the applicant has little regard for her study future or obligations.”
The applicant’s complaints before the Court were as follows. One, the applicant told the Tribunal that the education provider had told her, in the context of her husband’s medical difficulties, that she could “simply” re-enrol in the subsequent semester. The Tribunal found that in light of her husband’s difficulties (which it accepted were, at the relevant time, “difficulties for the applicant in studying”), the “appropriate course” for the applicant was to maintain her enrolment and seek deferral of her study on compassionate grounds.
The Tribunal did not accept the applicant’s evidence that the education provider “simply” told her that she could re-enrol later, without taking steps to defer her study. The Tribunal found this demonstrated the applicant’s “lax attitude” to relevant obligations involved in her “study future”, and in context, her immigration status (see 29 at CB 235).
The transcript provided by the applicant to the Court now does not assist in revealing that the complaint could lead to some arguable case that the Tribunal fell into error. The Tribunal’s account of what relevantly occurred at the hearing is not challenged by the transcript. Nor could the transcript assist the applicant in any event. That is because the applicant’s complaint seeks to complain about factual findings made by the Tribunal, which were reasonably open to it to make on what was before it. The applicant’s complaint seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). It does not support dispensing with r.44.13 of the FCC Rules using r.1.06 of the FCC Rules, as it does not raise an arguable case for the relief sought.
This complaint was repeated by the applicant in her “written submissions” attached to her affidavit of 27 February 2017. It appears however, that the written complaint also seeks to lay the “fault” for her not seeking a deferral of studies, first on the education provider, and then on the Tribunal.
In relation to the education provider, the complaint appears to be, or may be, that the education provider should have given her different advice, that is, the “school should response… to my request” (see the affidavit of the applicant sworn 27 February 2017). It is important to note that the Tribunal did not accept the applicant’s account that the education provider “simply” told her that she could re-enrol in the next semester. This finding was reasonably open to the Tribunal on what was before it. In that light, the complaint seeks impermissible merits review.
In the context of the apportionment of “fault”, whether the education provider told her what she now says she was told, or whether she was told what the Tribunal found, does not assist the applicant. That is because whatever the advice the education provider gave her, on the evidence before the Court, does not rise to, or even indicate, the level of fraudulent conduct such that an arguable case is raised and therefore that the Tribunal’s decision was vitiated by third party fraud (SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 and SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73).
The second aspect of the complaint appears to be that the Tribunal should have made inquiries of the education provider (see the affidavit of the applicant sworn 27 February 2017, and in particular the reference to, “investigate more from the school”), presumably to ascertain what the education provider told her.
The applicant’s “submissions” direct attention to page 7 of the transcript at items 30 and 31:
“[30]Member = Alright so they the college said because [nor]mally what you should have done was to have the [enr]ollement cancelled you should have fought a deferral compassionate ground sickness of your husband and [de]fer the course wouldn’t have cancell the [en]rollement.
[30](a)Applicant = I did told them my husband is sick just give me sometime to enrol but even when they report me to the immigration they didn’t let me any notice by mail or email. They didn’t sent me anything or let me know.
[31] Member = did you discuss the deffering
[31](a) Applicant = No”
[Errors in original.]
What is immediately apparent from the applicant’s transcript is that the Tribunal’s account of this part of the hearing was fair. There is nothing to indicate the Tribunal misunderstood or misrepresented the applicant’s claims in her evidence to it.
What remains is the complaint that the Tribunal should have contacted the education provider and made its own “investigation” as to what was said to the applicant. In this regard, there is no general duty on the Tribunal to “investigate” in the way urged by the applicant now (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (“SZIAI”), Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594).
The role of the Tribunal is generally inquisitorial and is not, in the strict sense, adversarial, as is used to describe proceedings in a Court (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [47], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 [187] per Gummow and Hayne JJ and Re Ruddock & Anor; Ex parte Applicant 154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ and [81] per Kirby J, Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [97], SZIAI at [18], SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [57]).
However, there are of course limited circumstances where the Tribunal may need to investigate (SZIAI at [25] and SZGUR at [78]). In SZIAI the High Court relevantly stated (at [25]):
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case…”
It is important to note that the Tribunal did not make a finding that the applicant did not have a discussion with the education provider. Rather, the Tribunal’s finding was that it could not accept the applicant’s evidence that she was “simply” told to re-enrol in the next semester.
The applicant’s complaint before the Court was also that the Tribunal did not “investigate” the question as to why she was told to re-enrol, and not seek deferral of her studies. That is, the Tribunal did not check this with the education provider.
The Tribunal’s finding in this regard was that the applicant had a “lax attitude to obligations”, and should herself have investigated what the “necessary steps” were to maintain the relevant visa conditions. This was reasonably open to the Tribunal on what was before it. The Tribunal relied on the applicant’s own evidence to make its assessment ([29] at CB 235).
In the circumstances, there was nothing for the Tribunal to “investigate”. It relied on the applicant’s own evidence. The issue of the “deferral” was “investigated” by the Tribunal with the applicant herself ([31] at T7 to [36] at T8):
“[31] Member = did you discuss the deferring
[31](a) Applicant = No
[32] Member = what they say in enrolling in 3 months
[32](a) Applicant = they say when the time come you enrol
[33] Member = Alright well why then have not subsequently enrol in that course
[33](a) Applicant = When that time came I didn’t have the much money to pay my school fees
[34]Member = Alright you just said that you actually [for]got that you have to re-enroll
[34](a) Applicant = At that point I was too stress with my husband health
[35] Member = How could you forget your obligation Australia for being studying
[35](a) Applicant = I know
[36] Member = How could you forget
[36](a) Applicant = I take the whole credit I do accept that its my fault.”
[Errors in original.]
Further, and contrary to the applicant’s complaint now, before the Tribunal the applicant gave evidence that this matter was “my fault” (see [36](a) at T8 and as reproduced above at [39]).
The second complaint made orally before the Court, concerned the claimed conduct of the applicant’s then migration agent. That is, that the migration agent caused her to enrol in the “wrong” educational course.
The complaint appears to be repeated in the written “submissions” (see the affidavit of the applicant sworn on 27 February 2017):
“The member did not consider the fact it [w]as the migration agent fault to give me a no subclass course when I was not aware of [s]ubclasses number mean. The member did not [q]uestion me more so I would get a chance to [t]ell infront of the agent that it has nothing [t]o do with me. I was following my agent [a]dvise.
[R]efer to transcript page 26 no 105(0).”
[Errors in original.]
The applicant’s written “submissions” direct attention to T26 at item 105:
“[105] Member = She will be in breach but I have concern [word] that she doesn’t have the intention to study degree course first evidence you can what you say to be honest I’m not incline to accept that [word] you originally said but the key issue is the [ad]vance diploma falls in the list it doesn’t.”
[Errors in original.]
The complaint appears to be that the migration agent “enrolled” the applicant in an educational course appropriate to a subclass 573 visa, when she should have been enrolled in a subclass 572 related course. She now submits this was the “fault” of her migration agent.
The transcript provided by the applicant to the Court, reveals that the Tribunal discussed the matter of the applicant’s relevant study course, and the visa class, at the hearing. It was particularly raised by the migration agent (see for example T25 to T26).
There is nothing in the transcript to show that the applicant made any complaint to the Tribunal about the agent in this regard, nor is there evidence of her raising it otherwise with the Tribunal. The applicant did not satisfactorily explain to the Court why she needed any specific question from the Tribunal “accusing” the agent of having made a mistake, as opposed to raising it herself with the Tribunal.
Importantly, even if the agent was at “fault” and enrolled her in the “wrong” course, there is nothing in the evidence to indicate this was as a result of, or part of some fraudulent conduct by the agent. In this light, no arguable case is raised.
The transcript reveals that the applicant herself accepted personal responsibility for not deferring her enrolment, and the “breach” of the visa condition that the Tribunal found in circumstances where she enrolled in a “Bachelors of Business” course. The applicant reports that she stated to the Tribunal (T13 at item 64(a)):
“[64](a) Applicant = I won’t do it again. I won’t breach [w]as my fault. I know”
The three grounds of the amended application filed on 25 October 2016 are unparticularised general assertions. Ground one of the amended application asserts that the Tribunal misunderstood the applicant’s claim and situation. The applicant has not provided any satisfactory explanation as to what claims, or aspects of her situation, the Tribunal misunderstood.
On what is before the Court, the applicant’s complaint appears to relate to the Tribunal’s consideration of circumstances raised by the applicant as to why her visa should not be cancelled. That is, in the Tribunal’s consideration of the exercise of the discretion to the cancel the applicant’s visa.
In light of the evidence now, the Tribunal had regard to the applicant’s explanation for her failure to enrol in a “registered course” at the relevant time, which was the basis for the cancellation.
The applicant’s claims and situation were that her husband’s illnesses created difficulties in her ability to complete her studies. However, the Tribunal placed greater weight on what it considered to be the applicant’s unsatisfactory explanation for failing to apply for deferment of her course, and its concerns about the credibility of her claim that she could not afford to undertake a relevant course. This was in plain contradiction to her claim that she wanted to undertake such a course and could meet the relevant financial requirements.
There is nothing before the Court to show that the Tribunal misunderstood or failed to consider her claims. Its findings were reasonably open to it on what was before it. In essence, and in the circumstances, the ground invites impermissible merits review. No arguable case is raised.
Ground two asserts that the Tribunal did not consider the disruption which the applicant and her daughter would face if they were to return to Mauritius without the applicant having completed her study.
On what is before the Court, the Tribunal expressly considered the applicant’s claims in this regard including the claims relating to her daughter. It accepted there would be some hardship for the applicant and disruption to her daughter’s education (see [32] at CB 236). The ground again does not rise above a complaint about the Tribunal’s relevant finding of the fact that, notwithstanding these elements, they did not outweigh the elements expressed in other findings made in relation to the totality of the applicant’s case and circumstances (see [41] at CB 236). Again, the ground seeks impermissible merits review. No arguable case is raised.
Ground three asserts that the Tribunal erred in relation to the subclass of visa relevant to the applicant. The ground asserts that there is only one subclass 500 for student visas.
It is the case now, that there is only one subclass “500 Visa”. The Migration Legislation Amendment (2016 Measures No.1) Regulation 2016 (Cth) amended the Regulations at Schedule 4, and had the effect of collapsing the previous multiple subclasses of student visas into one subclass.
However, when regard is had to the relevant transitional arrangements (reg.5404 (A) and (B) of the Migration Legislation Amendment (2016 Measures No.1) Regulation 2016 (Cth), this amendment only applies to applications for visas made on or after 1 July 2016.
In the current case, the visa which was the subject of the cancellation was granted on 18 September 2012. This predates the commencement date of the amendment to the Regulations and therefore these amendments do not apply. The Tribunal was correct to proceed to consider the matter by having regard to Schedule 2, and Schedule 8, and Part 573 of the Regulations. No arguable case is raised.
Ground one of the further amended application filed on 20 January 2017 asserts that the Tribunal did not make a decision according to the law. No particulars are provided. The ground, in the absence of any further explanation, does not give rise to any arguable case.
Ground two asserts that the Tribunal did not consider the applicant’s situation or “the facts”. This appears to be a repetition of ground two of the amended application. It fails to set out an arguable case for the same reasons.
As mentioned previously, it is the case that at a hearing pursuant to r.44.12 of the FCC Rules, the applicant is confined to the grounds mentioned in the application. However, I did consider whether to apply r.1.06 of the FCC Rules to dispense with compliance with r.44.12 of the FCC Rules. However, there is nothing in the circumstances presented to warrant such a course.
The grounds of the application as amended, and further amended, do not raise an arguable case for the relief that the applicant seeks. In this light, it is appropriate to dismiss the application. I will make that order.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 5 May 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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