RAJA v Minister for Immigration
[2020] FCCA 1626
•19 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAJA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1626 |
| Catchwords: MIGRATION – Application for judicial review – student visa – review of Administrative Appeals Tribunal decision – visa cancelled – condition 8202 not met – adjournment sought – mental health issues – potential hardship – legally unreasonable – adjournment refused – discretion for lower level studies – section 359A of the Migration Act 1958 – no matters of principles – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.359A |
| Cases cited: DME16 v Minister for Immigration and Border Protection [2019] FCA 2135 |
| Applicant: | ASIF RAJA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINSITRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 3513 of 2019 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 20 March 2020 |
| Date of Last Submission: | 20 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 19 June 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Amani Lawyers |
| Counsel for the First Respondent: | Mr Murano |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 3513 of 2019
| ASIF RAJA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZANSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINSITRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) delivered on 16 September 2019 with respect to the applicant’s student visa that was cancelled by a delegate of the Minister.
The applicant is a citizen of Pakistan who came to Australia on a Student (Temporary) (Class TU) (Subclass 500) visa. The student visa was granted on 23 December 2016 with an original expiry date of 1 November 2018. The visa provided for a stay of one year and 10 months, during which the applicant was permitted to reside in Australia for the purpose of undertaking full time study. The visa contained the usual conditions, including condition 8202 (whilst a copy of the Visa Grant Notice is not in the Court Book, it has been annexed as exhibit ‘DAV-4’ to an Affidavit filed on 5 March 2020 on behalf of the Minister), which requires student visa holders to be enrolled in a course of study in Australia.
The delegate cancelled the applicant’s student visa on the ground that the applicant did not comply with condition 8202 as he was not enrolled full time in a registered course of study. A review of this decision came before the Tribunal on 16 September 2019. At the hearing there were two matters of substance before the Tribunal that were dealt with: first, whether or not the hearing should proceed or should be adjourned; and second, whether or not the visa ought to have been cancelled. The Tribunal member found that the hearing ought to proceed and concluded that the cancellation decision ought to be affirmed.
Grounds for judicial review
The judicial review application filed 11 October 2019 provided only one ground in the following terms:
1. In exercising its discretion to cancel the applicant’s visa, the AAT failed to give proper consideration to an integral matter, which is the applicant’s request to complete studies, in that it failed to consider whether the applicant can complete lower level studies during his treatment.
Particulars
a) The AAT accepted at [25] the applicant’s breach of Condition 8202 was largely out of his personal control.
b) The AAT accepted at [32] that it would be difficult for the applicant where he was not allowed to complete successfully a further Australian qualification.
a) Having accepted the above matters, the AAT was required to assess whether it should exercise its discretion to permit the applicant to remain in Australia and complete lower level studies during his treatment.
b) The AAT failed to exercise its discretion properly in these circumstances.
The case also included an argument raised in oral submissions that the Tribunal member erred in failing to adjourn the application and that the decision with respect to an adjournment request was legally unreasonable.
A third issue raised before me was identified by Counsel for the Minister, which was that on the face of the decision, there may have been some query as to whether section 359A of the Migration Act 1958 (Cth) (‘the Act’) had been complied with It was Counsel’s submission that it had, for reasons that are apparent from the transcript, and it would not in any event have made a difference to the decision.
Adjournment Argument
The substance of the argument made by the applicant was that the Tribunal member ought to have adjourned the application until such time as the applicant’s health had improved. The applicant had provided a letter from a doctor indicating that he had been suffering from a depressive disorder and sought that the matter be adjourned. This issue was considered carefully by the Tribunal member, who said:
[5] The Tribunal convened a hearing to consider the merits of the application 16 August 2019. The Applicant appeared before the Tribunal in person to give evidence and present arguments.
[6] The hearing of this application had originally been scheduled to take place on 17 July 2019. However, that hearing had been postponed at the request of the Applicant. The Applicant's registered migration agent wrote to the Tribunal on 12 July 2019 requesting that the 17 July 2019 hearing date be postponed due to the Applicant not being in a sufficiently fit state of mental health to attend to the hearing. In support of this request, the Applicant's migration agent produced a letter from the Applicant's treating psychiatrist, Dr Dulip Dharmage, dated 11 July 2019. Dr Dharmage stated that the Applicant was suffering severe depression and that he had prescribed antidepressant medication for the Applicant. He also stated that the Applicant had recently stopped taking that medication and that his mental health had deteriorated. Dr Dharmage stated that the Applicant was not mentally fit to attend the hearing scheduled for 17 Jul 2019.
[7] Having regard to the circumstances as outlined by Dr Dharmage, and given that the Applicant had not previously made a request for a postponement, the Tribunal granted the request. The hearing originally scheduled for 17 July 2019was rescheduled to take place on 16 August 2019. The Applicant's migration agent was advised in writing of the new hearing date.
[8] Another request for the postponement of the hearing of the application, which was now scheduled for 16 August 2019, was received by the Tribunal on 13 August 2019. In support of this request, another letter from Dr Dharmage dated 1 August 2019 was provided. In that letter, Dr Dharmage referred to having reviewed the Applicant at his clinic on 12 August 2019. He also referred to his previous attendance on the Applicant at his clinic on 11 July 2019. Dr Dharmage reiterated that he was currently treating the Applicant for major depressive disorder. Dr Dharmage stated that he had observed mild improvement in the Applicant since he had seen him on 11 July 2019. However Dr Dharmage also stated that the Applicant 'needs at least three months to recover from his depression and is not fit to appear before the Tribunal at present.'
[9] The rescheduling or adjournment of a scheduled hearing at a review applicant’s request will only occur where there are cogent reasons for the granting of an adjournment. The Tribunal is mindful that a request for an adjournment must be carefully considered and the decision to grant or not grant an adjournment must be made in a manner which is reasonable with genuine consideration of the facts and circumstances of the case.
[10] On this occasion of a second request for a postponement of the hearing, the Tribunal was not prepared to delay proceeding with the hearing of the application any further. The Tribunal is mindful that the Applicant's student visa was only ever intended to provide him with temporary residence in Australia as a student. It has now been almost 1 year since it was cancelled by the delegate. He has remained in Australia on a bridging visa since. In refusing to grant a further adjournment, the Tribunal took into account that the length of time requested to delay the hearing of this application, being 3 months, seemed somewhat excessive without further explanation. The Tribunal also took into account that, given the Applicant was able to instruct his migration agent to seek a request for an adjournment, and attend the clinic of his psychiatrist and to communicate his concerns, it was likely that he would also be able to participate at a hearing before the Tribunal. For these reasons, the second request for a postponement of the hearing was refused. The Tribunal advised the Applicant's migration in agent in writing on 15 August 2019 that the hearing would take place as scheduled on 16 August 2019.
[11] When the Applicant appeared at the hearing on 16 August 2019, the Tribunal made an assessment of the Applicant's ability to participate in the hearing. The Tribunal concluded that the Applicant was competent to participate. He was able to understand questions put to him by the Tribunal and his answers were able to be understood by the Tribunal. He did not request an interpreter and it was app rent throughout the hearing that none was required given his proficiency in English. The Applicant did not make any further request for an adjournment of the hearing of his application. The hearing therefore proceeded as scheduled.
There is no suggestion that the Tribunal member failed to properly consider the material before them when determining this issue. The case was put on the basis that the decision not to adjourn the matter was legally unreasonable. The difficulties that confront the applicant in this case are that the Tribunal member considered the delays that had already taken place and the period of the applicant’s illness. There was no evidence before the Tribunal member that the applicant was likely to be fit to appear before the Tribunal to conduct the hearing, in terms described by his doctor, at any particular time in the future. It was simply put that the applicant would need at least three months. Furthermore, the applicant presented as being able to participate in the hearing and put his case.
In circumstances where there is no likely period of time by which an applicant is going to be in a significantly better condition medically and an applicant appears able to engage with and discuss the issues before the Tribunal, it is difficult to conclude that a Tribunal member’s decision to proceed with the hearing could be categorised as legally unreasonable or illogical. It cannot be the case that a person can delay a hearing of this type indefinitely because they suffer a medical condition which is not so severe as to require them to have a guardian appointed to manage their affairs. Ultimately, it is a matter of discretion for the decision-maker. In the circumstances of this case I am not persuaded that the discretion was exercised unreasonably.
I therefore find that this argument has not been made out. I note that had I found that this argument had been made out I would have allowed an amendment to formalise a ground. However, in circumstances where the argument is not made out, there is no point to such a course.
Ground One
The substantive ground in this case is set out above: see paragraph [4].
When the Tribunal turned to consider the discretion to cancel the visa, the Tribunal member considered the variety of factors required by it, in the Procedural Advice Manual and set them out under headings at paragraphs [21] to [38].
Importantly, as noted by the applicant in his grounds, the Tribunal concluded:
[25] The Tribunal recognises that mental health conditions, such as those suffered by the Applicant, are not attributable to conscious decision-making processes. No blame or fault can be attributed to the Applicant for suffering depression. The Tribunal accepts that, in these circumstances, his breach of Condition 8202 was largely out of his personal control.
This finding was made after recounting the evidence with respect to the applicant’s depression and notably after the earlier discussion of the decision adopting the adjournment outcome. There is no dispute that the Tribunal accepted that the breach of condition 8202 was largely out of the applicant’s personal control.
The Tribunal, however, went on to consider the purpose of the applicant staying in Australia, noting that:
[29] While the Tribunal accepts the Applicant is suffering a chronic mental health condition through no fault of his own, the Tribunal gives consideration to the extent to which the Applicant is capable of using the visa for the express purpose it was designed to serve. The Regulations are clear in that student visa holders must continue to remain enrolled and make satisfactory progress towards the attainment of an Australian qualification for the currency of their visa. The Regulations make no provision for the maintenance of a student visa in circumstances where the visa holder is unable to fulfil study requirements due to long-term incapacitation arising from mental health conditions such as those suffered by the Applicant.
The Tribunal was not aware of any other breaches other than condition 8202 that might relate to this case.
As the applicant identifies, the Tribunal considered the potential hardship to the applicant, saying:
[32] The Tribunal has given consideration to the Applicant's expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully a further Australian qualification. The psychological impact would also be significant having regard to the Applicant's current state of mental health. The Tribunal has given this significant consideration, although the Tribunal does not consider this consideration should be given primacy over the purpose for which the visa is designed to serve.
The Tribunal went on to consider other relevant matters and ultimately concluded that the visa ought to have been cancelled.
Lower level studies
The applicant argues that the Tribunal was required to assess whether it should exercise a discretion to permit the applicant to remain in Australia to complete a lower level course of study during his period of treatment.
There are difficulties with this argument. First, the argument does not appear to have been put to the Tribunal member by the applicant, either in writing or in the oral submissions. Thus there was no suggestion that the applicant was going to complete any particular lower level course of study in this case. Secondly, , the applicant had no certificate of enrolment or offer of enrolment, nor was he putting forward any evidence that he would soon obtain one in some different form of study.
In these circumstances, it does not appear to me to be open to the applicant to complain that the Tribunal did not turn its mind to such matters. The further difficulty that confronts the applicant is that it is not clear whether or not the particular visa would have permitted lower level studies, given the complex visa rules. In any case nothing was put before the Tribunal or this Court to show that some other form of study at a lower level may well have been within the visa conditions.
In this regard, Counsel for the Minister referred to the comments to the court in Gupta v Minster for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486, in paragraphs [53] to [54], where the court said:
53. The appellant accepts that the Tribunal correctly identified the obligation to consider whether to cancel the visa, in its discretion, once the breach of Condition 8202 was made out. She also accepts that neither s 116 nor the Regulations set out any mandatory relevant considerations for the Minister in the exercise of the discretion to cancel a visa.
54. Thus the appellant, correctly, accepts that the discretion under s 116 of the Act is broad but submits that as an exercise of a statutory power it must be exercised reasonably: Singh [[2014] FCAFC 1; (2014) 231 FCR 437] at [43]; Minister for Immigration and Border Protection v Stretton[2016] FCAFC 11 at [61(b)] per Griffiths J.
I am not persuaded that the Tribunal acted in a way that was legally unreasonable, nor that the Tribunal failed to consider the relevant material before it. It was not for the Tribunal to seek out possible alternative courses of study for the applicant.
In the circumstances, I am not persuaded that the applicant has made out this ground for judicial review.
Section 359A Submissions
In this matter, Counsel for the Minister raises the question of whether or not there may be some argument with respect to the operation of s.359A of the Act. That provision is set out as follows:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
The relevant material that gives rise to this potential argument appears in paragraphs [14] to [18] of the Tribunal’s decision, where the Tribunal said:
[14] Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a full-time registered course. In the delegate's decision record, the delegate identified the period from 9 September 2017 to 7 April 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to almost 7 months during which the Applicant was alleged to be in continuous breach of the visa.
[15] The delegate's finding was based on a report which the delegate had obtained from the department of Education and Training's Provider Registration and International Student Management System ('PRISMS'). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) ('the ESOS Act').3 It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student's enrolment status and to notify the Department of Education and Training of any issues arising from a student's general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student's Confirmation of Enrolment ('CoE') in a course for which they had previously been enrolled and the reasons or doing so.
[16] The PRISMS report obtained by the delegate indicated that the Applicant's course provider had cancelled the Applicant's enrolments in a Certificate Ill in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis, and a Diploma of Automotive Technology on 9 September 2017.
[17] The Department of Home Affairs wrote to the Applicant on 11 June 2018, notifying him of its intention to consider cancelling his student visa ('the NOICC'). That notice set out particulars of the alleged breach by the Applicant of Condition 8202. At this point in time, the Department was of the view that the Applicant had been in breach of his visa for a substantially longer period of time than that which subsequently formed the basis for cancelling his visa. The NOICC alleged that he had not been enrolled in a registered course of study from 12 December 2016 to 9 April 2018. It is apparent that the Department reached this conclusion due to there being evidence of other courses, in which the Applicant had been enrolled, having been cancelled. However, it is clear that, prior to the Department moving to cancel his visa, the Department reviewed the period of breach and revised the breach allegation in the Applicant' favour.
[18] The NOICC invited the Applicant to comment on the allegation that he had been in beach of Condition 8202 before the Department moved to cancel his visa. The applicant did not respond to the NOICC.
As Counsel for the Minister quite properly identified after his careful review of the Court Book, the applicant had not uploaded any documents with the review application (as appears in the document at CB p.39) and therefore the applicant did not provide to the Tribunal either the record, the delegate’s decision or the Notice of intention to cancel, which are referred to in this part of the Tribunal’s reasons.
The Federal Court in Kaur v Minister for Immigration and Border Protection [2016] FCA 132, considered whether PRISMS information is ‘information’ for the purpose of s.359A of the Act, saying at paragraph [44]:
44. So understood it is apparent that the PRISMS record was not a mere absence of evidence on an essential statutory criterion. It was evidentiary material showing that there was no record of any current enrolment by the appellant in that database, contrary to the statutory criterion requiring that there be enrolment. That evidentiary material in turn formed part of the reason for the decision that the appellant had failed to satisfy that statutory criterion and therefore for affirming the decision on review. The fact that the evidentiary material was used by the Tribunal as, in effect, “proof of a negative”, that is in support of its finding that there was an absence of evidence in the appellants’ favour, did not exempt the Tribunal from complying with s 359A and affording the appellants an opportunity to comment on the adverse evidentiary material.
Importantly, however, in this case the applicant admitted that he was not enrolled in a registered course of study for the relevant period, as recounted in paragraph [19] of the decision. It seems that the relevant finding was based upon the oral evidence of the applicant, as appears in the Transcript at T8.9 to T8.21 (Annexure ‘DAV-3’), where the applicant confirmed that position when asked by the Tribunal member.
Answering a question is ‘information’ being given by the applicant, as confirmed in SZTVGv Minister for Immigration and Border Protection [2016] FCA 1172, where Burley J, said:
24. The second argument was that the Tribunal had misunderstood the appellant’s claims about whether K had escaped or had been released from custody. The primary judge reviewed the transcript of the hearing before the Tribunal and, over the course of paragraphs [48] – [78] of the judgment, considered the appellant’s complaint. It noted at [49] that the Tribunal had considered that there was an inconsistency in the evidence given by the appellant in relation to whether K had been released from custody or escaped. The primary judge found (at [60]) that a reading of the transcript of the hearing indicated that the Tribunal was aware of and discussed with the appellant the issue of whether K had escaped or had been released, and that it noted on a number of occasions that the evidence for and on behalf of the appellant in this regard was inconsistent.
25. The primary judge noted that the Tribunal had put to the appellant the various competing versions of events that emerged from his own statutory declaration, his advisers’ submissions, his advisers’ correspondence and the evidence given by the appellant before the Delegate and the Tribunal.
Similarly, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 the Full Court said at paragraph [91]:
91. While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source.
Counsel for the Minister also identified that even if there is a failure to comply with s.59A, such a failure does not necessarily lead to an automatic right of relief, but rather a discretion remains. In this regard, Counsel pointed to the decision of DME16 v Minister for Immigration and Border Protection [2019] FCA 2135, where Flick J, said:
42. In the alternative, the conclusions of Hayne and Kirby JJ in SAAP, it is respectfully considered, do not preclude the discretionary refusal of relief even in circumstances where a contravention of s 424A has been made out.
43. In SZBYR v Minister for Immigration and Citizenship[2007] HCA 26, (2007) 235 ALR 609 Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in obiter comments observed:
Discretion
...
[28] This Court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903(Cth). In Aala, Gaudron and Gummow JJ noted that:
Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:
For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.
(footnotes omitted)
In this case, the relevant point in question was whether the applicant was enrolled in a course of study for the relevant period set out in paragraph [19] of the Tribunal’s decision. This is a simple fact that is easily determined. That question has been determined, based upon the admissions of the applicant. It is not suggested that the applicant was enrolled in this period. It is not suggested that any different outcome could flow in the case. If it were that there were some breach of s.359A of the Act, it has been an entirely technical one and appears to me to have had no impact upon the outcome, nor does it admit of there being any reasonable prospect of a different outcome if the matter were remitted for further hearing.
As a result, I am of the view that, first, s.359A has not been breached in the context of this decision, particularly based on the oral evidence of the applicant. Secondly, even if there were some non-compliance with that section it would not be a case where it would be appropriate to remit the matter, and I would exercise the discretion not to grant relief.
In the circumstances I therefore dismiss the application.
Costs
It was agreed by the parties that cost would follow the event fixed at $7,467.00. I therefore order that the applicant pay the Minister’s costs in that amount.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 19 June 2020
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