Ramaswamy v Minister for Immigration

[2019] FCCA 2181

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMASWAMY v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2181

Catchwords:
MIGRATION – Cancellation of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – review of decision of Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – whether there was a failure to consider compelling reasons – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.5, div.5, ss.116, 189, 198, 476

Migration Regulations 1994 (Cth), reg.1.40A, cll.573.111, 573.223, 573.231 of sch.2, condition 8516 of schedule 8

Cases cited:

AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant: GIRIKRISHNA AMBUJAM RAMASWAMY

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 629 of 2018

Judgment of: Judge Kendall

Hearing date: 5 August 2019

Date of Last Submission: 5 August 2019

Delivered at: Perth

Delivered on: 5 August 2019

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Ms M Jackson

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The first respondent’s name be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 629 of 2018

GIRIKRISHNA AMBUJAM RAMASWAMY

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-Tempore; Revised from Transcript)

Introduction

1. By application filed in this Court on 23 November 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 23 October 2018.

2. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) not to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (the “visa”).

3. The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.

4. The Court has before it a Court Book (“CB”) comprising 76 pages (which has been marked as Exhibit 1). It also has the applicant’s application and the Minister’s outline of submissions filed 11 July 2019.

Background

1. The Minister’s submissions (at [3]-[8]) accurately summarise the factual background to this matter. The Court is satisfied that, on the basis of the materials in the Court Book, the Minister’s submissions accurately reflect the background to this matter. The summary provided was not disputed and the Court adopts these submissions as its own. They provide, relevantly, as follows.

2. The applicant is a citizen of India who was born on 15 October 1992 (CB 28 and 61). He arrived in Australia on 20 February 2016 on a student visa which was granted on 9 February 2016 (CB 21, 28 and 34). The applicant’s student visa was subject to condition 8516 of Schedule 8 to the Migration Regulations 1994 (Cth) (the “Regulations”).

3. On 11 July 2017, the then Department of Immigration and Border Protection (the “Department”) issued a notice of intention to consider cancellation (the “NOICC”) of the applicant’s student visa under s.116 of the Act based on non-compliance with condition 8516 (CB 5-9).

4. The applicant responded to the NOICC by email to the Department dated 17 July 2017 in which he conceded that he had not complied with condition 8516 (CB 10-12).

5. On 31 July 2017 a delegate of the Minister cancelled the applicant’s student visa pursuant to s.116(1)(b) of the Act (CB 21-27). The applicant was advised of the delegate’s decision by letter dated 31 July 2017 (CB 15-20).

6. On 5 August 2017 the applicant applied to the Tribunal for review of the delegate’s decision (CB 39-40). He provided a further submission to the Tribunal dated 20 October 2018 (CB 55-57) and appeared before the Tribunal on 22 October 2018 to give evidence and present arguments (CB 58-60).

7. On 23 October 2018 the Tribunal affirmed the delegate’s decision to cancel the applicant’s student visa (CB 58-60).

Tribunal Decision

1. The Minister’s submissions at [15]-[21] also accurately summarise the Tribunal’s decision. Having reviewed the Tribunal’s decision in detail, the Court finds that the Minister’s submissions are accurate.  The Court adopts those submissions as its own. They provide, relevantly, as follows.

2. The Tribunal first noted that under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that the holder did not comply with a condition of their visa (CB 69 at [5]).

3. The Tribunal noted that the applicant’s student visa was subject to condition 8516 which requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In the present case, the applicant was required to meet, among other criteria, sub-cll.573.231 or 573.223(1A) of Schedule 2 to the Regulations (CB 69 at [6]).

4. The Tribunal noted that cl.573.231 provides that, unless a person is an eligible higher degree student as set out in cl.573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under reg.1.40A of the Regulations that was in effect at the time of the visa application (CB 69 at [7]).

5. The Tribunal referred to the definition of ‘eligible higher degree student’ in cl.573.111 which requires that the applicant be enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters degree by coursework or, for visa applications made on or after 23 November 2014, an advance diploma in the higher education sector (CB 69 at [8]).

6. The Tribunal referred to the Provider Registration and International Student Management System (“PRISMS”) record before the delegate which showed that the applicant was no longer enrolled in a higher education course (CB 69 at [9]).

7. On the basis of the information before it, including the applicant’s own oral evidence given at the hearing, the Tribunal was satisfied that when the applicant ceased to be enrolled in a higher education course he did not continue to satisfy cll.573.231 or 573.223(1A) and did not continue to be a person who would satisfy the primary or secondary criteria for the grant of a student visa. The Tribunal therefore found that the applicant had breached condition 8516 of his student visa and was satisfied that the ground for cancellation in s.116(1)(b) of the Act existed (CB 70 at [10]-[11]).

8. Noting that mandatory cancellation was not required under s.116(3), the Tribunal proceeded to consider whether the power to cancel the applicant’s visa should be exercised, having regard to the circumstances of the case, including matters raised by the applicant and matters in the Department’s Procedures Advice Manual (PAM 3) ‘General visa cancellation powers’ (CB 70 at [11]-[12]).

9. The Tribunal:

   a)found the applicant’s breach of condition 8516 to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia (CB 70 at [16]);

   b)considered that the applicant’s non-engagement in the study for which his visa was granted and the absence of compelling reasons for him to remain in Australia, weighed in favour of visa cancellation (CB 71 at [18]);

   c)found that the breach did not occur in circumstances beyond the applicant’s control and found that this weighed in favour of visa cancellation (CB 71 at [23]);

   d)considered the extent of compliance with visa conditions and found this weighed in favour of visa cancellation (CB 71 at [24]);

   e)accepted that the applicant would suffer some hardship if he were to have his visa cancelled and found that this weighed in favour of the applicant (CB 71 at [26]);

   f)considered the past and present conduct of the applicant towards the Department and considered this factor neutral in considering whether to cancel the visa (CB 71 at [27]-[28]);

   g)was not aware of any other persons in Australia whose visa would be impacted if the applicant’s visa was cancelled (CB 71 at [29]);

   h)noted that there was nothing to suggest that Australia’s international obligations would be breached as a result of the cancellation (CB 72 at [30]);

   i)was mindful that the applicant would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act and would have limited options to apply for further visas in Australia but found this to not be sufficient to weigh in the applicant’s favour (CB 72 at [31]); and

   j)considered the totality of the applicant’s circumstances and concluded, on balance, that the applicant’s visa should be cancelled (CB 72 at [32]-[33]).

Proceedings in this Court

1. The applicant’s judicial review application contained two grounds as follows:

   1. The Administrative Appeals Tribunal (“AAT”) made a jurisdictional error by failing to afford the Applicant procedural fairness:

   Particulars:

   a. The AAT failed to give the Applicant a meaningful opportunity to provide a Confirmation of Enrolment or offer of enrolment for a higher education course;

   b. The AAT’s decision to affirm the decision of the delegate of the Department was made the day after it notified the Applicant orally of the requirement to have a current offer of enrolment or Confirmation of Enrolment in a higher education course;

   2. The AAT failed to consider whether there were any compelling reasons for the Applicant to remain in Australia:

   Particulars:

   a. There was no consideration by the AAT why the evidence before it, particularly of the Applicant, did not satisfy the AAT that there were compelling reasons for the Applicant to remain in Australia.

2. Prior to the hearing, the applicant was afforded an opportunity to file further documents including any affidavits and an outline of submissions. He did not file anything further.

3. The applicant appeared on his own behalf.  Ms Jackson appeared on behalf of the Minister.

4. Noting that the applicant was unrepresented, the Court told the applicant that this Court can only assist him if it finds that the Tribunal engaged in jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap.  It was explained that 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 (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 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and

   f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

5. It was also explained to the applicant that this Court cannot review the merits of the Tribunal decision or make a decision not to cancel his visa. Rather, the role of the Court is limited to determining if the Tribunal made a material error in arriving at the decision it had on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

6. The Court then invited the applicant to make submissions on the grounds he had articulated in his judicial review application, and asked him to outline to the Court any other concerns he had in relation to the Tribunal’s decision.

7. Unfortunately, the applicant was unable to provide submissions that assisted him in relation to the issue of jurisdictional error.  In effect, he simply appealed to the merits of the Tribunal’s decision.

Consideration

1. Before turning to the grounds of review the Court will briefly reference the legislative framework (which was accurately set out at [11]-[14] of the Minister’s submissions).

2. Section 116(1)(b) of the Act relevantly provides:

   Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (b) its holder has not complied with a condition of the visa;

3. The applicant’s visa was subject to condition 8516 which states:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

4. The applicant was required to meet, among other criteria, cl.573.231 or cl.573.223(1A) of Schedule 2 to the Regulations. Clause 573.223(1A) is not relevant, but cl 573.231 provided:

   If subclause 573.223(1A) does not apply:

   (a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

   (b) the principle course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i) made under regulation 1.40A; and

   (ii) in force at the time the application was made.

5. Eligible higher degree student was defined in cl.573.111 in the following terms:

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a) the applicant is enrolled in a principal course of study for the award of:

   (ia)    an advanced diploma in the higher education sector; or

   (i)      a bachelor’s degree; or

   (ii)     a masters degree by coursework;

   (b) the principal course of study is provided by an eligible education provider;

   (c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i)     the applicant is also enrolled in that course; and

   (ii)     that course is provided by the eligible education provider or an educational business partner of the eligible education provider

6. The Court notes further that the power to cancel a visa under s.116(1)(b) is discretionary. That is, the Tribunal retains the power to choose not to cancel the visa if it is satisfied that there are reasons not to do so. There are no prescribed matters to be taken into account in relation to this provision.

Ground 1

1. The Administrative Appeals Tribunal (“AAT”) made a jurisdictional error by failing to afford the Applicant procedural fairness:

Particulars:

a. The AAT failed to give the Applicant a meaningful opportunity to provide a Confirmation of Enrolment or offer of enrolment for a higher education course;

b. The AAT’s decision to affirm the decision of the delegate of the Department was made the day after it notified the Applicant orally of the requirement to have a current offer of enrolment or Confirmation of Enrolment in a higher education course;

1. The Court notes the Minister’s submissions at [28]-[33], which provide:

   28. This ground is misconceived and appears to be premised on the erroneous view that the Tribunal decision was based on the applicant’s failure to provide a current confirmation of enrolment or offer of enrolment for a higher education course and that a different decision would have been made if such a confirmation of enrolment or offer of enrolment had been provided.

   29. As is evident from the summary of the Tribunal’s decision above, its decision was not based on the absence of a current confirmation of enrolment or offer of enrolment for a higher education course. There is no evidence that the Tribunal notified the applicant at the hearing of any requirement to have a current confirmation of enrolment or offer of enrolment, as alleged in particular (b) to this ground.

   30. In any event, giving the applicant an opportunity to provide a confirmation of enrolment or offer of enrolment for a higher education course could not have rectified the applicant’s non-compliance with condition 8516 which provided the ground for cancellation under s 116(1)(b) of the Act. A confirmation of enrolment or offer of enrolment for a higher education course was also not a requirement for a favourable exercise of the discretion not to cancel the applicant’s student visa.

   31. There was no denial of procedural fairness to the applicant. The Tribunal complied with the relevant statutory procedural fairness requirements contained in Division 5 of Part 5 of the Act. In particular, it invited the applicant to appear before it to give evidence and present arguments relating to the issues in the decision under review, as required by s 360 of the Act. There was no ‘adverse information’ which was required to be given to the applicant pursuant to s 359A of the Act.

   32. The dispositive issues before the Tribunal were the same issues identified in the delegate’s decision and the Tribunal was not required to bring any issues to the applicant’s attention: cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]. The applicant did not seek the opportunity to provide a current confirmation of enrolment or offer of enrolment for a higher education course and procedural fairness did not require the Tribunal to give him any such opportunity. There is no evidence to suggest that the applicant was not given a real and meaningful opportunity to be heard. In all the circumstances, there was no denial of procedural fairness to the applicant, as alleged, or at all.

   33. Ground one is not made out

2. The Court agrees with these submissions.

3. The obligations of procedural fairness are exhaustively set out in div.5 of pt.7 of the Act (and a small number of other provisions that are not otherwise relevant to the circumstances of this case). The particulars of the ground appear here to suggest that the Tribunal erred in failing to grant an adjournment, or allowing sufficient time for the applicant to provide a current confirmation of enrolment.

4. Without a transcript of the Tribunal hearing (which the applicant had an opportunity to provide) it is unclear what the applicant is referring to in particular (b) of ground 1. On the face of the Tribunal’s decision, there is nothing to suggest that the Tribunal told the applicant he was required to have a current offer of enrolment in a higher education course. Rather, the applicant indicated that he had completed his courses and now wished to obtain work experience.

1. With no evidence of past enrolment (and acknowledging that he had been advised that that was the core issue for the delegate), the Tribunal had no choice but to turn its attention as to whether the Tribunal was satisfied that it should exercise the discretion to not cancel the visa.

2. Having reviewed the Tribunal’s extensive reasons for not exercising the discretion (at [13]-[33]), the Court is satisfied that no error is evident in the analysis provided. 

3. Importantly, the applicant conceded that he was in breach of the relevant Condition. The applicant was aware of the need to be enrolled in a higher education course at the relevant time. There was no evidence before the Tribunal that the Confirmation of Enrolment for the relevant period existed.

4. As for the Tribunal’s obligations of procedural fairness generally:

   a)the Tribunal invited the applicant to a hearing where he was able to make submissions and arguments such that he meaningfully participated;

   b)there was no information or material that the Tribunal was required to “put” to the applicant;

   c)the dispositive issue before the delegate (the exercise of the discretion) was the same dispositive issue before the Tribunal;

   d)as already discussed, there is no evidence that warranted the Tribunal exercising any discretion to grant an adjournment to allow the applicant to obtain further evidence (in particular, a Confirmation of Enrolment); and

   e)there is nothing on the face of the Tribunal’s decision to suggest it was actually or apprehensively biased in its consideration of the applicant’s circumstances and his visa application.

5. The applicant has failed to satisfy the Court that he was denied procedural fairness.

6. Ground 1 is dismissed.

Ground 2

2. The AAT failed to consider whether there were any compelling reasons for the Applicant to remain in Australia:

Particulars:

a. There was no consideration by the AAT why the evidence before it, particularly of the Applicant, did not satisfy the AAT that there were compelling reasons for the Applicant to remain in Australia.

1. The Court notes the Minister’s submissions at [34]-[38], as follows:

   34. Ground two alleges that the Tribunal failed to consider whether there were any compelling reasons for the applicant to remain in Australia.

   35. This ground fails on the facts. The Tribunal noted that it questioned the applicant whether there were any compelling reasons for him to remain in Australia and he said there were not. 28 In the absence of a transcript or other evidence to the contrary, the Tribunal decision record must be accepted as accurate: see NAOA v Minister Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21].

   36. Although the applicant did not claim any compelling reasons for him to remain in Australia, he did provide evidence and submissions as to why his visa should not be cancelled. The Tribunal gave ‘proper, genuine and realistic consideration’ to the applicant’s evidence and submissions: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [29], [32] - [33]. It was open to the Tribunal to not be satisfied, on the evidence before it, that there were compelling reasons for the applicant to remain in Australia and to conclude that the applicant’s visa should be cancelled.

   37. The Tribunal’s findings and conclusions were not irrational or unreasonable and have an ‘evident, transparent and intelligible’ justification and were within the Tribunal’s ‘area of decisional freedom’: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28], [66], [76] and [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44] - [45].

   38. Ground two is not made out.

2. The Court again agrees with these submissions.

3. As indicated previously, there are no prescribed matters that the Tribunal must take into account in determining whether it should cancel a visa.

4. The Court notes that the Tribunal took into account each of the reasons the applicant put forward as a reason for not cancelling his visa. Specifically:

   a)that the applicant could not cope with his studies which is why he ceased his enrolment to which the Tribunal noted that the applicant had conceded he deliberately chose not to apply for a different visa because he feared he would be refused that visa;

   b)that the applicant had unintentionally (though this is contradicted by other evidence) breached the Condition and thought enrolling in a lower level of course was sufficient to which the Tribunal found that it was the applicant’s responsibility to familiarise himself with the conditions of his visa;

   c)that the applicant would suffer some level of hardship if the visa were cancelled and this weighed in favour of his visa not being cancelled; and

   d)despite not being raised by the applicant, noted that he may be liable to detention if he did not depart voluntarily and that future visa applications may be limited, nonetheless this was not sufficient.

5. The Tribunal considered each of the matters the applicant put forward to justify his non-compliance. None of these matters were sufficient to warrant the Tribunal exercising the discretion not to cancel the visa. That was a matter for the Tribunal.  The decision made was open to it.

6. Ground 2 is, accordingly, dismissed.

Conclusion

1. The Court is not satisfied that the applicant has identified any jurisdictional error in the Tribunal’s decision. The Court is satisfied that there is no errors of any sort in the Tribunal’s decision.

2. Accordingly, the application is dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date:  12 August 2019