SENCHURY v Minister for Immigration

[2015] FCCA 1000

FEDERAL CIRCUIT COURT OF AUSTRALIA

SENCHURY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1000

Catchwords:
MIGRATION – Migration Review Tribunal – Vocational Education and Training Sector (class TU) visa – procedural fairness – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, s.476
Migration Regulations 1994 Schedule 8, condition 8201

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: MAUSAM SENCHURY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 733 of 2015

Judgment of: Judge Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms E. Warner-Knight
Australian Government Solicitor

ORDERS

1. The application for an extension of time be dismissed.

2. The proceedings be summarily dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 733 of 2015

MAUSAM SENCHURY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 9 February 2015 affirming a decision of the delegate to cancel the applicant’s Vocational Education and Training Sector (class TU) visa. 

2. The application identified the following grounds:

   1. I was in Australia for about 4 years already and my parents were giving me financial support all that time. At the mean time my grandfather got ill and because of his medical expences, it was hard for my parents to support me here, so I was unable to pay my tuition fee on due date.

   3. I wasn’t able to attend class until I clear the due tuition fees. So I had poor attendance and I wasn’t able to submit online assignment which lead me to fail the subject. And after few terms my college gave me attendance and acedemic warning and they cancelled my coe.

   4. Few days later my grandfather who was the person I loved a lot. Because of him I am here. He died. That news got me a bad shock. I couldn’t go back and see him one last time.

   5. At the same time my relationship with my wife was going down hill. So, I didn’t get all the bad things happening to my at the same time.

   6. I got hopeless and I couldn’t stand the mental stress. And I sort of gave up.

   7. Now I am having to get back on track and live my life. [sic]

3. The application identified under the first Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. The Response of the first respondent asserts that the application fails to disclose an arguable case. The first respondent said there was no reason why the matter should not be dealt with summarily. The Court then raised with the applicant that having looked at the application and read the decision of the Tribunal, it was concerned the application failed to disclose an arguable jurisdictional error and that the Court was minded to consider dealing with the matter under its summary jurisdiction.  In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118.

5. The content of what is set out in the application identifies circumstances of the applicant that go to the merits of the application.  This is not a Court of Appeal, and this Court is not able to revisit the merits in relation to an application.  This Court is confined to dealing with jurisdictional error in the conduct of the review.  There is nothing in the grounds that identifies any arguable jurisdictional error. 

6. The applicant identified that, at para.15 in the Tribunal’s reasons, there was reference to fees that had been unpaid, and the applicant identified that he had located an email to 1 February 2013 relating to the payment of fees.  The applicant also complained that the Tribunal had not accurately identified his academic performance and the circumstances surrounding his financial difficulties in making a payment of those fees.  It is clear from para.9 of the Tribunal’s reasons that the factors that had impacted on the applicant’s inability to maintain his enrolment were identified and considered by the Tribunal in relation to the issue of whether there was non-compliance with condition 8201 of the applicant’s subclass 572 Vocational Education and Training Sector visa. 

7. The applicant appeared before the Tribunal on 2 February 2015 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter.  The Tribunal concluded that the decision of the delegate should be affirmed. 

8. The Tribunal identified that the issue in the present case was whether the applicant as the holder of a student visa breached condition 8202 of Schedule 8 of the Migration Regulations 1994, and if he has breached the condition under s.116(1) of the Act, the visa may be cancelled.

9. It is clear at the hearing that the applicant confirmed that he had not been enrolled in the registered course of study since December 2013. Accordingly the Tribunal found that he had not complied with condition 8202(2).  That finding was clearly open on the material before the Tribunal, and indeed, not contested by the applicant.  The applicant’s complaint is in relation to the consideration of the discretion to cancel the visa, which was a matter within the jurisdiction of the Tribunal to determine on the merits.  The Tribunal carefully addressed the reason for and the extent of the breach clause of condition 8202, and relevantly said:

   14. The applicant has told the Tribunal that he was enrolled in a Diploma of Hospitality course at the Evolution Hospitality Institute (“Evolution”). The course was to have run between November 2012 and November 2014. However, the applicant has confirmed that his enrolment was cancelled on 5 December 2013 due to unsatisfactory course progress. He said that this situation had arisen because he had had not paid his fees and that, as a consequence the College refused to mark his attendance and refused him access to online facilities which meant that he could not lodge assessments.

   15. However, as discussed with the applicant at the hearing in accordance with the requirements of s.359AA of the Act, Evolution advised the Tribunal that his difficulties in relation to attendance and course progress were evident before any financial difficulties arose. Specifically, the he was warned about his academic performance on 20 March 2013 because he had not yet competent in more than 50% of the course units in his particular term. It was only after he failed to pay fees due on 1 May 2013 that he was issued with a warning letter about his fees. The warning did mention that he would be denied access to classes if he did not pay the fees and explicitly warned him that this might result in him failing to meet

   academic requirements. The warning letter mentioned appeal rights that he had. It is

   apparent that he paid the fees soon after that because no further warnings about fees were

   issued for some time. He was given a second warning about his academic performance on 22

   May 2013, but these were not mentioned. He attended a discussion about his course progress

   on 9 July 2013 and signed documents relating to an intervention strategy. That document

   acknowledged that he had missed some classes because of his financial difficulties.

   16. The applicant again failed to pay fees on 1 August 2013 and he was given a second warning,

   in similar terms to the earlier one. On 6 November 2013 he was warned that they were

   intending to report him for failing to meet attendance requirements and academic

   performance, subject to his right to submit an appeal. On 8 November he advised that they

   were intending to report him for non-payment of the fees which had been due on 1 August

   and 1 November 2013. He was told, that, subject to any appeal he might make, his enrolment

   was subject to cancellation. Finally, on 5 December 2013 he was notified that his enrolment had been cancelled because of his unsatisfactory course progress. Lack of attendance was also mentioned.

   17. While the Tribunal accepts that the applicant’s inability to attend classes because of his failure to pay fees would have adversely impacted both his attendance and his academic progress, his problems started before fees became an issue. Evolution said he had not turned up to classes and that that would have prevented him being able to submit assessments. At the time the applicant’s enrolment was cancelled, it appears that he was competent in 5 units but not yet competent in 13 other units he had attempted up until that time.

10. The Tribunal made adverse findings in relation to the reasons advanced by the applicant in para.19 as follows:

    19. Given the limited evidence before it, the Tribunal does not accept that the applicant’s difficulties with his academic progress and payment of fees arose because of family difficulties. In particular, the poor academic progress was evident before there was any failure to pay fees. The Tribunal does not accept that the applicant’s failure to pay fees was a circumstance beyond his control.

    …

    21. He said that one of the reasons he was not enrolled and had no offer of enrolment was because he was going through a lot of stress with his wife. However, when questioned about the circumstances of his marriage, he said that they had married in 2008 but his wife had left him for the first time in 2010. She had returned to the relationship but had left for the last time in 2011. She had applied for divorce in 2013. He said that he expected the divorce to be finalised in the very near future. In those circumstances, given that the separation took place in 2013, the Tribunal does not regard this as an adequate reason for the applicant’s failure to enrol in further courses in 2014.

    …

    23. In all the circumstances, the Tribunal considers the applicant’s failure to be enrolled for some 15 months to be a serious breach of Condition 8202(2)(a).

11. It is in light of that finding that the applicant’s failure to be enrolled for some 15 months that the Tribunal identified that as a serious breach of condition 8202(2)(a).  In those circumstances, the Tribunal identified the purpose of the applicant’s travel and stay in Australia, and relevantly in relation to the applicant’s failure to be enrolled for more than a year, the Tribunal said the fact that the applicant came to Australia for the purpose of study was not a sufficient reason for it to decide not to cancel his visa. 

12. The Tribunal turned to the issue of hardship.  They noted the applicant had been in Australia for approximately six years, during which time he had enrolments in a variety of fields, including community welfare, business and management, information systems, and most recently, hospitality.  The Tribunal found that there is not any clear career goal identified by the applicant’s studies, and was of the view that the applicant’s inability to pursue further studied in hospitality is not a sufficient reason not to cancel the visa. 

13. The Tribunal took into account the past and present conduct, and also the consequences that would arise from cancellation under s.140.  The Tribunal also took into account international obligations and whether there was any other matter raised by the applicant, and relevantly said:

    31. The applicant has told the Tribunal that his parents were initially opposed to him studying hospitality because they wanted him to get a degree. However, he stated that they were now resigned to him studying hospitality and would support him. He said that if he were to return to his home country without any further qualifications his parents would be disappointed as they did not know that his visa had been cancelled. He said it would be very shameful for him. The Tribunal considers this is not sufficient reason for a decision not to cancel the visa.

14. It was in those circumstances the Tribunal concluded that the visa should be cancelled and that the decision by the delegate should be affirmed.  The findings made by the Tribunal were clearly open.  The applicant clearly had a genuine hearing, and it cannot be said the findings lack an evident and intelligible justification.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate: 

Date:  20 April 2015