RASOOL v Minister for Home Affairs
[2019] FCCA 1016
•30 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RASOOL v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1016 |
| Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal to affirm a cancellation of a student visa – where applicant has mental health issues – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth), sch.8, condition 8202 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Craig v State of South Australia (1995) 184 CLR 163 DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 1 |
| Applicant: | KAMRAN RASOOL |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 125 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 6 September 2018 and 24 January 2019 |
| Date of Last Submission: | 24 January 2019 |
| Delivered at: | Perth |
| Delivered on: | 30 January 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Applicant’s application for judicial review is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 125 of 2018
| KAMRAN RASOOL |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-tempore; Revised from transcript)
Introduction
The applicant in these proceedings is a citizen of Pakistan. He was granted a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa (the “visa”) on 30 June 2014 (Court Book (“CB”) 1-5).
On 9 November 2016, a delegate of the Minister for Home Affairs (the “delegate”) issued the applicant with a Notice of Intention to Consider Cancellation (the “NOICC”) of his student visa pursuant to s.116 of the Migration Act 1958 (Cth) (the “Act”) because it appeared that he had not complied with condition 8202 in Schedule 8 to the Migration Regulations 1994 (“Regulations”) (CB 6-11) – those provisions that require an applicant to be enrolled in a registered course.
The applicant did not respond to the NOICC.
On 21 November 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 23-24).
The applicant appeared before the Tribunal on 22 January 2018 to give evidence and present arguments (CB 49-51).
On 31 January 2018, the Tribunal affirmed the delegate’s decision to cancel his visa (CB 64-69). Relevantly, the Tribunal did not find any “exceptional circumstances” that could justify it not cancelling the student visa.
By application dated 1 March 2018, the applicant seeks judicial review of the Tribunal’s decision.
To succeed, the applicant must show that the Tribunal engaged in jurisdictional error.
The Tribunal’s Decision
The Tribunal’s decision appears at 152-158 in the Court Book. The Court has reviewed the Tribunal’s decision in detail and adopts the Minister’s summary of the Tribunal’s decision as provided at [11]-[22] in the Minister’s written submissions. That summary was not disputed and provides relevantly as follows.
The Tribunal identified the issues before it as being:
a)whether the applicant had breached condition 8202 of the Regulations; and
b)if so, whether it should exercise the discretion, pursuant to s.116(1)(b) of the Act, to cancel his visa (CB 65 at [2] and [6]).
The Tribunal also correctly identified that condition 8202 required the applicant to be enrolled in a registered course and not cease being enrolled (CB 65 at [7]).
The Tribunal noted that the Provider Registrar and International Student Management System (“PRISMS”) records that the Department had obtained and relied on in its decision to cancel the Visa showed that the applicant had not been enrolled in a registered course of study since 30 October 2015 (CB 65 at [8]). Specifically, the PRISMS records revealed that the applicant’s enrolment in an Advanced Diploma of Business, a Diploma of Human Resources and a Certificate IV in Human Resources were all cancelled on 30 October 2015 (CB 65 at [8]) – some 13 months before the applicant appeared before the delegate.
Accordingly, the Tribunal found that the applicant had breached condition 8202(2)(a) of his visa (CB 65 at [9]) and was satisfied that the ground for cancellation in ss.116(1)(b) existed (CB 65 at [10]).
The Tribunal then considered whether it should exercise its discretion to cancel the applicant’s visa (CB 65 at [10]).
In so doing, the Tribunal took into account a number of matters, including those raised by the applicant and the Department’s Procedures Advice Manual (CB 65-66 at [11]).
The Tribunal noted (CB 66 at [12]) that on 9 November 2016 the Department issued the applicant with a NOICC because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa.
It was noted that the applicant did not respond to the NOICC (CB 66 at [13]).
The Tribunal then noted that it had before it, and had considered, the applicant’s evidence provided prior to and at the Tribunal hearing, including a medical prescription issued to him on 27 July 2017, evidence of communication between him and the Business Technology Institute of Australia and medical evidence in relation to his mother’s medical conditions of hepatitis and a liver condition (CB 66 at [14]-[15]). The applicant had also provided a letter from DNA Kingston Training dated 9 November 2015 advising of a Conditional Offer of a place in a Diploma of Management course. The letter confirmed that the applicant had acknowledged that he was able to pay $4,500 for his first semester. The commencement date of the course was 2 December 2015 (as noted by the Tribunal at CB 66 at [16]).
The Tribunal considered the applicant’s claim that a teacher at the Business Technology Institute of Australia (“BTIA”) committed fraud upon him, as he had paid his outstanding course fees into the teacher’s bank account (CB 66 at [17]- [18]).
The Tribunal then raised with the applicant (CB 66 at [19]) that the PRISMS records showed the cancellation of his enrolment at BTIA was due to “unsatisfactory course progress”.
In response, as outlined by the Tribunal, the applicant claimed that he was not permitted to attend classes because he had outstanding fees (CB 66 at [19]).
The Tribunal then considered the applicant’s oral and documentary evidence and outlined the applicant’s attempts to enrol in another course (CB 66 at [16] and [20]).
The Court notes, in particular, [20]-[22] in the Tribunal’s decision which provide:
20.The Tribunal put to the applicant that he would have known he was in breach of a condition of his visa following cancellation of his enrolment. He said he attempted to rectify the breach by enrolling in a course at DNA Kingston Training however his enrolment was not accepted because he was unable to obtain a Letter of Release from BTIA.
21.The Tribunal asked the applicant the reason he did not contact the Department once he was aware that he was no longer enrolled in a course. He said he discussed the matter with his friends and they told him not to go to a lawyer because a lawyer would advise him to contact the Department.
22.The applicant said another reason he did not contact the Department was because he thought that if he waited until his visa ceased, he would be able to obtain a Letter of Release from BTIA and then he could enrol in another college.
The Tribunal then considered the applicant’s submission that he was at fault in not contacting the Department when his enrolment was cancelled on 30 October 2015, but that the reason he did not do so was because he was under stress (due to the outstanding fees issue) and his mother’s ill health (CB 66 at [23]).
The Tribunal then considered the applicant’s evidence regarding his mother’s health and his own mental health claims (CB 67 at [24]).
The Tribunal found that there was no evidence to support the applicant’s contention that he attended a doctor 12 to 18 months prior to the hearing but noted that, even if this was accepted, it would mean he attended sometime after July 2016 – several months after the cancellation of his enrolment (CB 67 at [24]).
The Tribunal noted that, when queried by the Tribunal as to why he did not respond to the NOICC (CB 67 at [25]-[26]), the applicant indicated that he was at fault but explained that he was unable to manage his affairs due to stress (CB 67 at [27]).
The Tribunal then noted that the applicant explained to it that, following cancellation of his enrolment in October 2015, he worked in 2016. However, in 2017 he was not permitted to work. Further, according to the Tribunal, the applicant said that in 2017 he used his savings to pay for his living expenses (CB 67 at [28]).
The Tribunal then outlined that it asked the applicant the reason he came to Australia to study. According to the Tribunal, the applicant gave evidence that he wanted to study Business Management and Business related things. Further, he is described as saying that he intended to use the qualification to work in his family’s heavy machinery and trading business in Pakistan and that a qualification would assist him to manage and grow the business and lead it to more success (CB 67 at [29]).
The Tribunal noted (CB 67 at [30]) that the PRISMS record showed that the applicant was previously enrolled in Hospitality and Cookery courses. The Tribunal asked the applicant the reason for those enrolments. The Tribunal writes that the applicant said that his passion is cooking and a business qualification would also assist him in starting a hospitality related business.
In assessing the evidence before it, the Tribunal noted (CB 67 at [32]) that it had considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s oral evidence and in the documentary evidence provided prior to and at the hearing.
The Tribunal highlighted that the applicant did not dispute that he was aware he was in breach of a condition of his visa (CB 67-68 at [33]):
33.The applicant did not dispute that he was aware that he was in breach of a condition of his visa following cancellation of his enrolment on 30 October 2015. He attempted to enrol with another education provider but was unable to do so without a Letter of Release from BTIA. The applicant did not contact the Department or a lawyer prior to the issuing of the NOICC, some 12 months later.
The Tribunal then considered the applicant’s claims that the cancellation of his enrolment was due to the fraudulent actions of a teacher.
In this regard, the Tribunal concluded that “whether or not a fraud was committed, the outstanding fees were payable by the applicant to BTIA and there was no evidence to suggest that he was unable to pay the fees” (CB 68 at [34]).
The Tribunal then noted (CB 68 at [35]) that the purpose of the student visa is to enable the visa holder to undertake study in Australia, the applicant had not been enrolled in a registered course since 30 October 2015 and over 12 months had elapsed from that date until the NOICC was issued.
The Tribunal found the applicant’s breach of condition 8202 was 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 68 at [36]).
The Tribunal then said that it was positively satisfied that the applicant’s non-compliance with the visa condition was not due to exceptional circumstances beyond his control (CB 68 at [37]) and there were no extenuating or compassionate circumstances on the evidence before it (CB 68 at [38]).
The Tribunal did accept that the applicant would suffer hardship by cancellation of his visa because he would not be able to apply for a visa to return to study in Australia in the near future and also that his family would disapprove if he returned home before completing his studies (CB 68 at [39]).
Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled (CB 68 at [42]) and, accordingly, affirmed the delegate’s decision under review (CB 68 at [43]).
Proceedings in this Court
The applicant filed his application for judicial review in this Court on 1 March 2018. In his judicial review application, the applicant sets out various grounds of review. They are extensive and provide:
1. I was born on [omitted] at Chakwal in Pakistan.
2. I Did my Senior Secondary Education from Rawalpindi in [omitted].
3. After that, I did Diploma in Business from Board of Technical Education Peshawar in 2002.
4. After Completing my diploma, I got enrolled in Bachelor’s in Commerce and completed in 2005.
5. After completing my study in Pakistan, I always had dreamed of excelling in business.
6. I did some research about my Higher study prospects to achieve my career goals.
7. I did some research with the help of friends and family to figure out country suitable for my higher study.
8. After doing some research, I wished to pursue my higher study in Australia.
9. I decided to commence my further study in Australia & my parents agreed for the same.
10. I applied for my student visa and was successfully granted on 27/02/12.
11. I got enrolled in Cert IV in Business at Business Technology Institute of Australia from 07 /05/12 to 05/12/12.
12. After that, I got enrolled in Diploma in Business from Kingdom College Subiaco from 4/02/13 to 13/05/13.
13. I applied for my student visa extension on 14/05/13 & successfully got my visa granted on 14/06/2013.
14. After that, I got enrolled in Diploma in Marketing from Kingdom College Subiaco from 11/11/2013 to 12/05/2014.
15. I applied for student visa extension again & was successfully granted one on 30th of June 2014.
16. After that, I got enrolled in Advance Diploma in Business from Kingdom College Subiaco from 02/06/2014 to 03/12/2014.
17. After that, I got enrolled in Business Technology Institute of Australia leading to Diploma in Human Resource Management.
18. I received Notice of intention to consider cancellation from Immigration Department on 09/11 /2016.
19. I didn’t understand the letter; I thought my Visa had been cancelled.
20. After that, I received another letter from Immigration Department on 17/ 11 /2016 saying my Visa has been cancelled.
21. I was under a lot of stress and mental trauma during that period suffering from anxiety & depression.
22. I applied for merit review at Migration Review Tribunal.
23. I appeared before the tribunal on 22nd of January 2018 to give evidence and present my case.
24. Tribunal considered mine no response to notice issued by Immigration Department, which I have already mentioned I misunderstood it & thought my visa had been cancelled.
25. Due to which my health has been poorly affected causing many health issues.
26. In front of Immigration Department, I elaborated my case that how I have paid my fees in the personal account of BTIA & they refused the same as it was on a saving account of one of the owner’s brothers.
27. Due to that, they informed immigration about my poor academic, but they never informed me or gave me any notice about the same.
28. At all times, they were asking about fees only & didn’t allow me to attend classes.
29. I tried to explain to the director of BTIA that how I have already paid my fees, but they refused my claim.
30. Tribunal highlighted I was not enrolled since 30/10/2015, but my COE & Visa was cancelled due to which I suffered many health and mental problems.
31 My whole career plans were shattered due & I couldn’t discuss with my family members back home as it may worsen the medical condition of my mother suffering from a liver condition.
32. I think my case hasn’t been handled properly by Tribunal.
33. I would like to bring to the attention of Federal Circuit Court that Decision maker has made an error in judgement.
(Birth date omitted, otherwise without alteration)
On 23 June 2018, the Court made orders permitting the applicant to file and serve any amended application giving complete particulars of each ground of review as well as any affidavit containing any additional evidence. The applicant was also given the opportunity to file and serve written submissions prior to the scheduled hearing date.
The Minister filed written submissions dated 16 August 2018. Relevantly, these submissions provide:
18.In his application for judicial review filed in this Court, the applicant pleads 33 grounds of review. These are effectively repeated in his supporting affidavit.
19.The applicant’s grounds merely outline the history of the matter, and contain a vague allegation at 33 that the “decision maker made an error of judgment”. The first respondent submits that they are not proper grounds of review, amount to nothing higher than a request for impermissible merits review and should be dismissed on this basis.
20.Condition 8202(2)(a) requires that a holder of a student visa be currently enrolled in a registered course. The Tribunal found, and the applicant did not disagree, that the applicant was not currently enrolled in a registered course and that he had not been enrolled in a registered course since 30 October 2015 ([8]). Due to this, the Tribunal found that he was in breach of condition 8202.2. The first respondent submits that this finding was entirely open to the Tribunal on the evidence before it and does not disclose any jurisdictional error.
21.To the extent that the applicant cavils with the weight the Tribunal gave to various considerations in deciding whether to exercise its discretion under s116(1)(b), it is well established that the attribution of weight is a matter for the Tribunal. Accordingly, the first respondent submits that the Tribunal’s findings were open to it on evidence before it and for the reasons it gave and that no jurisdictional error can be made out.
The applicant appeared before this Court on 6 September 2018. On that day, the applicant filed detailed written submissions. These provided:
In the green book at page 66 point. 16.
Tribunal noted that I was able to pay fee of $4500 for the first semester to DNA Kingston. I do believe I was able to pay but it doesn’t mean that I have to pay fee again and again which I have paid already. I paid the full fee for the last semester then why I pay it again? It was better to pay $4500 to another college and start a new course rather than staying in the same college where fraud staff is setting.
In the green book at page 66 point. 17
According to the tribunal I told them that I have transferred the fee in the teacher’s bank account which is totally wrong. I have transferred the fee into the college bank account provided by the teacher Mujahid Hussain. Clear screenshot of text message from Mujahid Hussain and a payment receipt is attached at page 52 and 53. Before I was thinking that Mr Mujahid Hussain committed fraud with me but now I 100% believe that it was the world college group involved in fraud. They were trying to threat the students because it was easy way for them to make money.
In the green book at page 66 point 18.
When I told Tribunal that teacher committed a fraud with me in response the Tribunal asked me that I am committing fraud with Australia.
In the green book at page 66 point 19.
I totally oppose the obligation of “unsatisfactory progress” because if the progress was unsatisfactory then according the rules college has to send me warning notice. Tribunal didn’t have any notice of unsatisfactory progress by the college. If it was issue of unsatisfactory course progress then why the college asked the debt collector for the recovery. College played double game, first cancelled my enrolment without any warning notice blaming unsatisfactory course progress and second they sent my case to the debt collectors for the outstanding fee recovery. I believe that college is responsible for the break in my regular studies.
In the green book at page 66 point 21.
Tribunal stated that I said that my friends asked me not to go to lawyers which totally wrong or misunderstanding by the Tribunal. I told the Tribunal that “my mistake is that I did not go to the lawyer to discuss the matter because lawyers charge very high fee, if I went to lawyer he could have told me to inform the department”
In the green book at page 67 point 30.
June 2013 I applied for the visa renewal and I got enrolment in the hospitality course just because hotel business is going on its boom and it’s good to have education before I step in to hospitality business. The department didn’t grant me visa for the hospitality course, I accepted the decision of department and I cancelled my enrolment in hospitality course.
In the green book at page 68 point 34
There was no outstanding fee because I have already paid the full fee for the whole course of Advance diploma of business. It is totally illegal to pressurize the students to pay the fee again and again. I still believe it was the fraud committed by the teacher and college this could be the reason that world college group pty ltd is allowed to run business by the department.
Breach of condition 8202.
Since the visa was granted in Feb 2012 I was studying regularly till October 2015.
In the month of October 2015 dispute regarding the fee was started.
In October 2015 I got call from college receptionist that I have some outstanding fee which I have to pay before I go to attend my class in following week. I told her that I have already paid full fee for the advance diploma of business, and my next course will start on 04/01/2016 and I will pay the fee before the commencement of class in January 2016. She advised me to attend the accounts department before I go to class next week.
Following week before going to class I went to accounts department and I realized that all the staff in accounts department has been changed and the College Record was showing that the fee which I have already paid is outstanding, which was nothing less than a shock for me, because unfortunately I have paid some of that fee in cash and fortunately some in college bank account with the total of approximate $3500 out of which $1000 transferred in bank account.
College totally denied accepting that I have paid the fee including the amount which I have transferred in college bank account. It was also very stressful for me. I asked about Mr Mujahid Hussain and the accountant told me that he is fired from college.
Meanwhile the trainers didn’t let me to sit in the class.
On 30th October 2015 College cancelled my COE without sending me any prior notice of unsatisfactory course progress or any email regarding outstanding fee November 2015 I went to college and I have been told that my COE has been cancelled. According to my information it is rule that the college have issue three warning notice if the student progress is unsatisfactory before the cancellation of enrolment. I totally oppose the obligation of unsatisfactory course progress from the college because they didn’t issue me a single notice of unsatisfactory course progress.
Immediately after the cancellation of my COE I went to another college which is DNA Kingston to start my study again without any gap and I obtain offer letter, college advised me that I have to bring the release letter from world college group before the commencement of course on 2nd December 2015.
Again I approached the world college group many time for the grant of release letter but they denied providing me release letter after that I could not get the COE from DNA Kingston and my studies stopped
In December 2015 I approached to another college which is trading as Kinggdom Institute of Management, it was also my provirus college where I had completed my studies previously, I informed them whole story and I requested for COE but at the end of December Kinggdom Institute refuse to provide me COE without release letter.
When I was already suffering from such kind of hectic and stressful process, I got call from debt collectors and been threaten if I didn’t pay the money they will create my bad credit history. I don’t understand that if my progress was unsatisfactory then why they transferred my case to debt collector as debt collector has nothing to do with my course progress.
Throughout whole year of 2016 I was dealing with debt collectors. With the passage of everyday my stress started increasing due to worrying about Mother’s Health, fraud of fee, Cancellation of COE, unable to get new COE because of release letter and on top of that Debt collectors I was already attending doctor for anxiety and stress issue since 2015 because of some family problems and this whole process put me under the traumatic stress and I couldn’t manage my affairs. This is the main cause for the stop of my studies. Medical history certificate is attached.
Recently it came into my knowledge that the registration of World college group has been cancelled by the department. I strongly believe that the college has committed fraud with the other student also that’s why they went through investigation process and the department had cancelled the registration of the college without the consent of the organization, RTO report is attached.
My mistake is only that I did not contacted the department regarding the cancellation of enrolment and release letter, just because level of stress was already increased and I was unable to think properly. Medical certificate is attached, previously I was taking one tablet daily but now doctor advised me to take two tablets daily to control the stress. When stress level is that high then possibility of mistake increase, especially when you are in a country where you don’t know the laws, rules and regulation. Your understanding is limited when you are not speaking mother tongue. Your stress level increase when you are away from family.
These are the factor and reason behind breach of condition. I solemnly affirm that I did not breach this condition intentionally, it’s just because lack of knowledge about the law and also couldn’t manage my affairs because very high level of stress and the other reasons stated above.
Keeping all this in mind I will request the Honourable judge to order the department to grant me visa.
(Without alteration)
A medical certificate, dated 4 September 2018, was attached to the applicant’s submissions. The Court notes the content of that medical certificate and accepts it as evidence before this Court, despite the Minister’s objections in that regard.
At the hearing of this matter, the applicant stressed his concerns about his mental health. He seemed to suggest (although this was somewhat unclear) that:
a)the Tribunal ignored the evidence before it; and/or
b)the hearing should not have continued as he was clearly too unwell to participate.
In the circumstances, the Court felt that the Minister should be provided more time to both respond to the applicant’s written submissions (which were filed very late) and the applicant’s concerns about his medical condition.
The Court adjourned to allow the Minster to file further submissions. The applicant was given a right of reply.
The Minister’s further submissions relevantly provided:
3The supplementary submissions address:
3.1the applicant’s submissions filed by leave on 6 September 2018;
3.2an issue raised at hearing, namely whether there had been a breach of s 360 of the Migration Act 1958 (the Act).
4The applicant’s submissions demonstrate no jurisdictional error in the Tribunal’s decision.
5In the first respondent’s submission these paragraphs should properly be characterised as a request for impermissible merits review.
6It is apparent that, in affirming the delegate’s decision the Tribunal considered all of the evidence before it including the evidence relating to:
6.1The fee dispute with BTIA (CB 66, [17]-[19]; CB 68, [34]).
6.2The assertion that a teacher had committed a fraud upon him (CB 66, [18]; CB 68, [34]).
6.3His enrolment with BITA being cancelled as a result of “unsatisfactory course progress” as he was not permitted to attend class owing to the outstanding fees (CB 66, [19]).
6.4The reason for the applicant’s enrolment in the hospitality course (CB 67, [30]).
6.5The applicant’s attempts to obtain enrolment with another college (CB 66, [20]).
6.6Stress suffered by the applicant caused by inter alia, the fee dispute with BITA (CB 67, [24]).
Paragraphs 4, 7, 15, 16, 19-20 and 23 of the applicant’s submissions
7These paragraphs appear to make assertions that were not raised before the Tribunal. For example, there was no evidence that the applicant claimed before the Tribunal that:
7.1The cancellation of enrolment owing to unsatisfactory course progress was incorrect and processed without warning (see paragraphs 4, 15, 16 and 20 of the applicant’s submissions).
7.2He cancelled enrolment in the hospitality course owing to refusal of a visa application (see paragraph 7 of the applicant’s submissions).
7.3He attempted to obtain enrolment at Kinggdom institute (see paragraph 19 of the applicant’s submissions).
7.4The registration of World College Group Pty Ltd had been cancelled by the Department (see paragraph 23 of the applicant’s submissions).
8The first respondent submits that there is no evidence that those claims were expressly articulated to the Tribunal or otherwise squarely arose on the material before the Tribunal such that the Tribunal was required to consider them.
Paragraphs 2 and 6 of the applicant’s submissions
9These paragraphs cavil with the Tribunal’s recount of the applicant’s oral evidence given at hearing. The applicant has provided no evidence to support the allegation that the Tribunal misunderstood or misconstrued his evidence and accordingly, no jurisdictional error is established.
Paragraph 3 of the applicant’s submissions
10To the extent that the applicant’s assertion that Tribunal stated that he was “committing fraud with Australia” could be seen to be an allegation of bias, it cannot succeed.
11It is well-established that an allegation of bias is a serious claim which must be firmly and distinctly made and clearly proven. The applicant has made no attempt to particularise this serious allegation or provide any evidence to establish that the Tribunal made the claimed comment or to otherwise suggest that the Tribunal member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, a proper evaluation of the matter. Nor is there anything on the material before the Court to indicate that a fair minded and informed person might reasonably apprehend that the Tribunal member might not have brought an impartial mind to bear on the decision. The Tribunal’s decision record reveals that it invited the applicant to attend a hearing and considered his evidence in reaching its decision. No inference of bias can be drawn from the mere fact of adverse findings in the Tribunal’s reasons.
12There is nothing on the evidence before the Court to support an allegation of actual or apprehended bias.
Compliance with s 360 of the Act
13At the hearing, Judge Kendall queried whether the medical evidence sought to be tendered by the applicant could demonstrate a breach of s 360 of the Act.
14First, the first respondent submits that the evidence sought to be tendered was submitted in support of the assertion that anxiety was the main cause of the applicant’s cessation of studies (see paragraph 22 of the applicant’s submissions).
15Second, the first respondent submits that the evidence before the Court does not establish that the applicant was not given a “real and meaningful” opportunity to participate in the Tribunal for reason of his mental health (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37]).
16It was primarily for the Tribunal to evaluate the ability of the applicant to participate in the hearing; the fact that the Tribunal was aware of the potential mental health difficulties faced by the applicant and continued with the hearing is indicative that the applicant was not denied the opportunity to participate in the hearing (CB 67 at [24]; SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 at [47]-[49] per Flick J).
17Further, the applicant has not adduced any evidence that he was unfit (in the sense of being unable) at the time of the hearing to give evidence, present arguments and answer questions, and in these circumstances any suggestion that he was denied a “real and meaningful” opportunity to participate in the hearing should be rejected (see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; Minister for HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115].
18The only medical evidence before the Tribunal were prescriptions dated July 2017 (CB 47-48). The applicant has then sought, at hearing on 6 September 2018, to tender a letter from Dr Stephen Adam dated 4 September 2018. The letter indicated only that the applicant was a patient since January 2015 and had been on treatment for anxiety since October 2016.
The applicant filed a reply (dated 4 October 2018) which contended as follows:
1.I am the applicant and have proposed the submission in response to the First respondent submission pursuant to the orders made by the Judge Kendall on the 6 September 2018.
Paragraph 6.6 of the first respondent submission
2. Tribunal considered my stress issue started in July 2016, several months after the cancellation of enrolment, while my actual mental health issue was diagnosed in January 2015 several month before the cancellation of enrolment. According to my understanding Tribunal is on error of not seeking information under the migration Act 1958 - Sect359 and section 366
Paragraph 10, 11 and 12 of the first respondent submission
3. I am very sure about the Tribunal comments about me that I have committed fraud with Australia, after these comments by the Tribunal I was very depressed and I started thinking in my mind that the Tribunal has already made the decision. I strongly believe that my hearing in the Tribunal must be audio and video recorded the court can get an easy access to it I do believe that providing false information in the court is considered as crime.
Section 360 of Migration Act1958
4. The Tribunal was in error by not complying with Section 360 and requests me to provide further detailed material about my mental health to determine my ability to represent in a real and meaningful way. Because I have serious mental issue and on top of that Tribunal comments about me that I have committed fraud with Australia. It was not a real and meaningful opportunity to participate in the Tribunal.
Paragraph 17 of first respondent submission
5.I informed the Tribunal that I did not seek advice from lawyers also the Tribunal was well aware of my mental health at the time of hearing even then the Tribunal did not allow me to provide further detailed evidence about my mental health (S-360) and the Tribunal was also in error by not complying with Migration Act 1958 Sec 359 of seeking information. The Tribunal was also in error by not complying with Migration Act 1958 Sec 366 Oral evidence by telephone etc.
Paragraph 18 of First Respondent submission
6. It is very clearly stated in letter from Dr Stephen Adams that I have been attending him since 27/01/2015 and initially I was suffering from anxiety but in October 2016 it started increasing. It clearly shows that I was patient of mental health issue before 27/01/2015, that’s why I have started seeing Dr Stephen Adams.
7. Applicant continues to object the decision of the Tribunal under section 359, Sec 360 and Sec 366 of migration Act. It was not a real and meaningful opportunity to participate in the Tribunal
(Without alteration)
At the resumed hearing of this matter on 24 January 2018 the applicant was not legally represented. He presented oral arguments related to his two sets of written submissions. The Minister was represented by Ms Tattersall. The Court had before it the submissions outlined above and a detailed Court Book.
Did the Tribunal fall into Jurisdictional Error?
The question before this Court is whether the Tribunal fell into jurisdictional error.
The possible categories of jurisdictional error are not exhaustive, and sometimes overlap. For migration decisions of this sort, they most commonly include a number of 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] (“SZMDS”); Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44] (“Singh”).
Did the Tribunal fall into jurisdictional error here?
It is important to note that the applicant here was not legally represented before this Court. While he did his best to articulate his main concerns, and while the Court understands, and is sympathetic, to the difficulties that unrepresented applicants face when trying to deal with complex legal concepts such as “jurisdictional error” and “merits review”, the Court did struggle somewhat here in relation to what the applicant thought the Tribunal “did wrong”.
Broadly, the applicant seems to seek “merits review”. He believes the Tribunal’s decision is wrong and would like the Court to review the material that was before the Tribunal and give him the student visa he seeks. This Court cannot do that as this would amount to an “impermissible merits review”. In this regard, the Court notes the decision in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 136 ALR 481 at 491 as follows:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone
To the extent that the applicant is saying (and, again, it is somewhat unclear) that he believes the Tribunal’s decision is illogical given the evidence before the Tribunal, the Court disagrees.
In SZMDS, Justices Crennan and Bell set out the test for irrationality or illogicality as follows:
131.The test for illogicality or irrationality must be to ask whether logical or irrational or reasonable lines might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical, rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
SZMDS sets a very high threshold for findings of irrationality or illogicality. In this context the Court is also guided by the decision in Gupta v Minister for Immigration & Border Protection (2017) FCAFC 172 at [34]–[36] and DAO16 v Minister for Immigration & Border Protection (2018) FCAFC 1 at [30].
The Court also notes that in SZMDS per Crennan and Bell JJ further explained that:
135. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision maker does not come to that conclusion or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The Court also notes the various references to multiple decisions in relation to the test for unreasonableness: see, for example Li and Singh.
It cannot be said here that the Tribunal’s ultimate finding – that there were no exceptional circumstances that would justify it exercising its discretion to, in effect, overturn the delegate’s decision to cancel the applicant’s visa – was not open to it on the evidence before the Tribunal.
A careful reading of the Tribunal’s decision shows that the Tribunal did look at all of the evidence that it had before it. This included evidence about the financial hardship the applicant was having, the considerable stress that this had caused him and its effect on his mental health, his difficulties with his educational providers and allegations of fraud on the part of his educational providers.
Having assessed all of this evidence, the Tribunal found that nothing in the evidence before it justified a finding that exceptional circumstances arose that would justify the exercise of its discretion. Whilst this Court might have come to a different conclusion, that is not the test here. Here, the Tribunal considered the facts of the case, the legislation it was required to examine and the evidence it had been given. On the evidence before this Court, all relevant material was examined. No irrelevant material was relied on, and no relevant material was ignored.
The Tribunal weighed up the material before it and determined, objectively, that the visa should remain cancelled. As indicated above, that conclusion was open to it on the evidence even though the applicant strongly disagrees with it. The Tribunal’s decision had an intelligible and rational basis. The findings made were open to it on the evidence and were legally sound.
The applicant has also made an allegation of bias in relation to what he says were statements by the Tribunal alleging some sort of fraud.
The Court does not agree that bias of any sort exists here.
It is noted that there is no transcript before this Court. The applicant believed this Court would have a copy of the transcript and/or that the Court would get one. While this Court does everything it can to assist applicants who are legally represented – and the Court notes, in particular, the considerable assistance provided by Ms Tattersall in relation to the applicant’s submissions and the clarity of her submissions and the assistance she provided – there are limits as to what the Court can and cannot do on the day of the hearing.
This Court cannot assist applicants by going out and getting evidence that might better support their case. The applicant here had ample opportunity to file and present in further evidence in Court. The matter was adjourned on one occasion so that the applicant might have an opportunity to respond to further argument.
Having assessed the evidence as a whole and determining what evidence is and is not credible, it cannot be said here that the Tribunal’s conduct in relation to this case was biased.
There is also no evidence of procedural unfairness.
It is clear that the Tribunal did what it could do to assist the applicant. There is nothing here that leads the Court to believe that the Tribunal did not assess the evidence before it objectively and in an impartial way.
It cannot be said that the Tribunal came to the hearing with a pre-conceived view as to what should and should not happen, and it is also clear that the applicant was given every opportunity on the evidence to submit the evidence that he needed.
On the available, credible, evidence it cannot be said here that the applicant either requested or was denied an opportunity to present further evidence generally, particularly in relation to his mental health condition. No issue of unreasonableness arises in this context.
On the evidence, the Tribunal did assess the medical evidence it had before it – in particular, a medical script – and determined that the applicant’s mental health was not such that exceptional or compassionate circumstances arose. That finding, again, was open to it.
This Court also does not accept that the current medical evidence, filed late by the applicant in this Court and which the Minister objected to, evidences that the applicant was medically unfit at the time he was invited to attend before the Tribunal.
The Court accepts that an applicant must be given a real and meaningful opportunity to attend and participate at a hearing before the Tribunal. In this context, the Tribunal’s invitation cannot be seen to be a hollow shell, or an empty gesture: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31].
Where an applicant is not mentally fit to participate in a hearing, the invitation sent to him or her will not be a meaningful one, and the Tribunal will, accordingly, be found to have fallen into jurisdictional error. This is so even where the Tribunal is not aware of the applicant’s mental health issues: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553.
However, the mere fact that a person has a mental illness is not enough to vitiate the Tribunal’s decision. The question is whether, on the evidence, by reason of the illness, the applicant was unable to give evidence, present arguments and answer questions: Minister for Immigration & Citizenship v SZNCR [2011] FCA 369 at [30]-[34].
On the medical evidence before this Court it cannot be said that, by reason of his mental health issues (which the Court does not dispute and which the Court sees as credible), the applicant was unable to give evidence, present arguments and answer questions. The applicant was clearly distressed between the relevant periods and was medicated for an anxiety-related condition, but there was nothing in the medical evidence that suggests that he could not have appeared before the Tribunal and presented evidence as requested.
There is also nothing credible on the evidence that indicates that the applicant sought an adjournment during which time he could seek further evidence in relation to his mental health condition, or, indeed, that the applicant sought an adjournment because of his mental health condition generally.
In this context, the Tribunal’s actions were appropriate.
For the reasons outlined above, it cannot be said that the Tribunal has engaged in jurisdictional error for any of the reasons articulated by the applicant or for any other reason.
The application for judicial review must, accordingly, fail.
Conclusion and Orders
None of the many grounds of review articulated by the applicant point to any jurisdictional error on the part of the Tribunal. Nor can any other error be found on the record as a whole.
While the Court is sympathetic to the concerns raised by this applicant and understands the complexities of his situation and the frustration this decision will cause to him, this Court at the relevant law and evidence before it as it relates to the issue of jurisdictional error.
Having reviewed the Tribunal’s decision in relation to the law, as it pertains to jurisdictional error, this Court, regrettably, cannot assist this particular applicant. In the circumstances, the Court will dismiss the application for judicial review.
The Minister seeks costs fixed in the amount of $7,328. Noting this is in accordance with the scale of costs that guides the Court and that the matter required two hearings and additional submissions from the Minister, the Court is satisfied the sum sought is appropriate. The Court will further order the applicant pay the first respondent’s costs fixed in that amount.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 15 April 2019
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