Shafait v Minister for Home Affairs
[2019] FCCA 2026
•30 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAFAIT v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2026 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal to affirm a cancellation of a student visa – where applicant alleges corruption from education provider – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116,476, pt.5 Migration Regulations 1994 (Cth), Condition 8202 |
| Cases cited: Aon Risk Services Australia Limited v The Australian National University (2009) 239 CLR 175 |
| Applicant: | MUHAMMAD WALEED SHAFAIT |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 639 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 28 May and 23 July 2019 |
| Date of Last Submission: | 23 July 2019 |
| Delivered at: | Perth |
| Delivered on: | 30 July 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms M Jackson |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 639 of 2018
| MUHAMMAD WALEED SHAFAIT |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed in this Court on 29 November 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 25 October 2018.
The Tribunal affirmed a decision of a delegate of the now Minister for Home Affairs (the “Minister”) to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa (the “visa”).
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.
Factual background
The Minister’s written submissions filed 6 May 2019 accurately summarise the background to this matter at [3]-[7]. That summary was supplemented by further background material at [2] in further written submissions filed by the Minister on 2 July 2019.
Having reviewed the Court Book (“CB”) filed in these proceedings, the Court is satisfied that the summary provided by the Minister (which was not disputed) is accurate. It is not argumentative in nature and the Court adopts it as its own. That summary provides, relevantly, as follows.
The applicant arrived in Australia on 6 February 2015 as the holder of a student visa. He intended to study a Bachelor degree in Science (Cyber Security). His student visa was granted on 28 January 2015 and was valid until 9 August 2017 (CB 11 and 17). The applicant completed a Tertiary Access Program at Edith Cowan University between 12 February 2015 and 22 May 2015 (CB 17 and 55) but his enrolments in a Diploma and the Bachelor degree were subsequently cancelled in January 2016 (CB 17).
Between 8 February 2016 and 5 February 2017 the applicant was enrolled in, and successfully completed, a Diploma of Business Management at World College Group (the “college”). A Certificate IV in Business in which the applicant was enrolled concurrently was not commenced or completed (CB 17).
On 25 July 2017, the applicant was sent a Notice of Intention to Consider Cancellation (“NOICC”) which stated that, according to the Provider Registration and International Student Management System (“PRISMS”) records, the applicant was not in a registered course of study between 5 February 2017 and 19 July 2017 as required by condition 8202(2)(a) as attached to his student visa (CB 11-15).
On 31 July 2017, the applicant responded to the NOICC. He conceded that he was not enrolled but claimed that family issues caused him to become stressed, resulting in an inability to study (CB 16).
On 9 August 2017, the Department cancelled the student visa pursuant to s.116(1)(b) of the Act on the basis that the applicant had breached condition 8202 (CB 19-32).
The applicant sought review of the delegate’s decision before the Tribunal.
The applicant attended a hearing before the Tribunal on 23 October 2018 (CB 69-71). It is noted that, prior to that hearing, the applicant submitted a letter to the Tribunal and further supporting documents (CB 52-68).
On 25 October 2018 the Tribunal affirmed the delegate’s decision to cancel the applicant’s student visa.
The Tribunal’s Decision
The Tribunal’s decision is dated 25 October 2018. It is six pages long and spans 47 paragraphs.
The Court again notes the Minister’s submissions dated 6 May 2019 at [11]-[14]. These submissions accurately summarise the Tribunal’s decision. The Court adopts the summary provided by the Minister as its own. That summary provides, relevantly, as follows.
The Tribunal identified that the core issue before it was whether the relevant ground for cancellation was made out and, if so, whether the discretion to cancel the visa should be exercised (CB 75 at [2] and [6]).
The Tribunal referred to the PRISMS records relied on by the delegate (as summarised in the delegate’s decision record – which was provided to the Tribunal). These records indicated that the applicant was not enrolled in a course for 163 days between 5 February and 19 July 2017 (CB 75 at [9]). The applicant also gave oral evidence that he had not been engaged in study since February 2017 (CB 75 at [10]).
In light of the above, the Tribunal found that the applicant had not complied with condition 8202(2) and the ground for cancellation existed (CB 75 at [11]).
Turning to the discretion as to whether to cancel the visa, the Tribunal acknowledged that there were no matters specified in the Act or Migration Regulations 1994 (Cth) (the “Regulations”) that must be considered before exercising this discretion but that it would have regard to the circumstances of the applicant’s case (including matters raised by the applicant) and the matters detailed in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ (CB 76 at [12]).
In this regard:
a)the Tribunal relevantly found (regarding the purpose of the applicant’s travel history and stay in Australia) that, having regard to the applicant’s study history, the applicant’s breach of condition 8202 was significant as he was not engaging in study for which the visa was granted (CB 76 at [22]). Further, the Tribunal found that there were no compelling reasons for the applicant to remain in Australia (CB 76 at [23]). Ultimately the Tribunal concluded that the applicant’s non-engagement in study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighed in favour of cancelling the visa (CB 76 at [24]);
b)the Tribunal found (in relation to the extent of the applicant’s compliance with the visa conditions) that the applicant’s breach of enrolment conditions (having regard to the purpose of the visa and the extent of the breach) weighed heavily in favour of cancelling the visa (CB 77 at [25]-[27]);
c)the Tribunal found that the applicant and his family members would suffer some emotional and financial hardship if he were to return to Pakistan without any qualifications. The Tribunal accepted that this weighed in favour of not cancelling the visa (CB 77 at [28]-[32]);
d)in relation of the circumstances in which ground for cancellation arose, the Tribunal had regard to the evidence and submissions made by the applicant concerning his grandmother’s death and his sister’s divorce (CB 77 at [33]-[35]). The Tribunal also noted the applicant’s evidence about incorrect advice he received from an education agent and an assault he suffered at work (CB 77-78 at [37] and [40]). Despite finding that the applicant’s evidence was somewhat confused in relation to how these matters impacted his studies, the Tribunal accepted that some of the circumstances in which the ground of cancellation arose were beyond the applicant’s control and gave this some weight in favour of the applicant’s visa not being cancelled (CB 78 at [39] and [41]);
e)the Tribunal noted that, with regard to the applicant’s past and present conduct, nothing adverse was known in relation to this factor (CB 78 at [42]); and
f)in relation to the legal consequences of its decision, the Tribunal noted the operation of s.48 of the Act, which limited the applicant’s options for future visa applications in Australia, and noted that the applicant would be liable for detention and removal under ss.189-198 of the Act if he remained in Australia without a visa (CB 78 at [43]). The Tribunal acknowledged that this would cause the applicant difficulty but found this was insufficient in itself to weigh against cancelling the visa (CB 78 at [44]).
In conclusion, the Tribunal found that the breach of condition 8202 was serious. It indicated that the applicant was not fulfilling the purpose of his travel to, and stay in, Australia and there were no compassionate circumstances, nor any breach of international obligations, that would lead the Tribunal to consider not cancelling the visa. Further, any hardship faced by the applicant did not outweigh any countervailing considerations (CB 78 at [45]).
On the basis of the above, the Tribunal affirmed the decision under review (CB 78 at [46]-[47]).
Proceedings in this Court
The applicant seeks the issue of constitutional writs setting aside the Tribunal’s decision. As outlined in his application for judicial review, he also seeks the following:
1. Revoke the cancellation of my student visa
2. Cancel the AAT and DHS decisions
3. Give me the permission to travel to my country for my dental treatment
The applicant’s application for judicial review also outlines three grounds of review:
1.AAT and DHA have ignored these important facts in my case, that i was very stressed and sick because of which i couldn’t continue my studies
2.AAT have ignored the important fact of the college’s mistake.
3. The AAT and DHS have ignored the fact that i was not aware of the breach of the visa condition at the time of the breach.
The applicant also filed a supporting affidavit affirmed 29 November 2018 in which he states:
1. I came here in Australia 06/02/2015, as a student of perth institute of business and technology, i have studied there 2 trimesters, I changed the college because of misguidance, then i went to World group college, where i studied the Diploma of business management, where i have submitted my all the assignments but at the end when i went there to collect my diploma certificate, the principle of the college ask me to give here $800 extra then she will give me the diploma. i refused to pay that money because i have already paid my full fee, that’s why they didn’t give me my certificate.
2. The main reason for my visa cancellation was that i didn’t study for 5 months, the reason behind that was, firstly i was very stress because of my family problems, as i have few deaths of my very close family relatives and i couldn’t answer properly at the AAT for the question that “that how my grandmother died” the reason behind that is, that I forgot the disease name in english because i was very nervous and confused. Secondly the college made the confusion in my mind by sending the wrong COE, which was ending in 02/05/2017. I was thinking i am enrolled till May. It was the mistake of college. I will attach that coe with the file too.
3.i was wanted to continue the studies at the end of last year but i couldn’t continue because first i got assaulted very badly and then i had the severe dental problem came up, because my all the wisdom teeth got enclaved. I am a genuine student and my only aim is to gain knowledge and study, and i also have started my studies because i am feeling bit better but it’s still very painful for me, Coe’s as a proof are attached with the file health issues for me and my baby.
The applicant was given an opportunity by a Registrar of this Court to file any amended application, further evidence and written submissions. The applicant filed a further affidavit affirmed 23 April 2019 (outside of the time period within which to file further materials). In that affidavit, the applicant annexed a death certificate and airline tickets. The applicant affirmed:
I am submitting the documents related to my file number PEG639/2018. First document is death certificate of my grandmother which I said was not correct, this the correct one and then I am submitting my flight tickets which shows in my case that I had the plan to travel overseas.
Shortly after midday on 27 May 2019 (the day before the hearing of this matter), the applicant sent the Registry an email as follows:
Hey there i am emailing regarding my hearing tomorrow 28/05/2019 that i am unable to attend the hearing. I have attached the medical certificate
The attached medical certificate was signed by a Dental Surgeon from “eDental Perth”. It was dated 22 May 2019. The certificate stated:
To whom it may concern,
This is to certify that Waleed Shafait, who attended eDental Perth on 22/05/2019, will remain unfit to return to work or study for the duration stated below:
27/05/2019 until 02/06/2019 (inclusive)
…
After this medical certificate was brought to the Court’s attention, the Court indicated that the hearing was to proceed as listed on 28 May 2019 and that any request/application for an adjournment would be addressed at that time.
No response was received from the applicant once advised of this decision.
On 28 May 2019, the applicant attended the hearing. He indicated that he still pressed the request for an adjournment. Having heard from the applicant and the Minister, the Court advised that it did not propose to grant an adjournment and the matter proceeded. While, ultimately, the matter was adjourned part heard, the Court will still provide brief reasons as to why it did not allow the adjournment on 28 May 2019.
In Gulati v Minister for Immigration and Border Protection [2017] FCA 255 (“Gulati”), it was noted that an email to the Registry for an adjournment supported only by a medical certificate in similar terms to those in this matter was an insufficient and unacceptable means (unless in urgent circumstances) by which to seek a scheduled hearing be adjourned.
Gulati makes it clear that the following factors should be assessed in determining whether to grant an adjournment:
a)the merits of the judicial review application;
b)the evidence in support of the requested adjournment; and
c)the circumstances surrounding the requested adjournment.
As to the evidence that the applicant provided, the Court references the medical certificate provided by the applicant.
The Court notes that in CLU16 v Minister for Home Affairs [2019] FCA 147 (“CLU16”), an adjournment was refused in circumstances where a medical certificate asserted that the applicant was unfit for work or study because of a medical condition. It was noted that this certificate did not say that the applicant was not fit to attend in Court.
The medical certificate before this Court also fails to say that the applicant is unfit for Court. Rather, it simply says that he is unfit for work or study. The medical certificate also lacks any reference to a “medical condition”. Rather, it merely states that the applicant is “unfit”.
The Court also notes the remarks in Gulati at [14] that appellate Court’s ought not act on a “formulaic document” in matters of this sort and evidence of a medical practitioner on oath or affidavit is preferred. Noting the legislative objectives that govern this Court – in particular, that the Court should act “informally” – the Court does not place significant weight on the fact that the medial evidence was here not provided in affidavit form. Nonetheless, the Court does place significant weight on the “formulaic” nature of the document and the inadequacy of the explanation provided as to why the applicant is “unfit”.
Overall, the Court is not satisfied that the medical certificate here provided a sufficient basis for an adjournment. In this regard, the Court references CLU16 at [11], as follows:
Applications for an adjournment based on medical evidence of the insubstantive kind above are inadequate to justify the grant of an adjournment.
Turning to the circumstances in which the adjournment here was sought, the Court notes as follows:
a)the applicant emailed the Court just over 24 hours prior to the listed hearing time attaching a medical certificate dated 22 May 2019. The applicant had been in possession of the medical certificate since that time and only acted on it the day prior to the hearing (27 May 2019). This weighs against the request for an adjournment;
b)the hearing date had been listed for 3 months. If the Court was to adjourn, it would be difficult to return the matter for hearing in a reasonable period – noting that the Court, as currently constituted, is now listing into May 2020; and
c)there would be additional expense and wastage of public resources if the matter were to be adjourned as the Court had arranged for the assistance of an interpreter (who had attended and who would be required to attend at a further hearing). Further, the Minister had prepared for the hearing to proceed on the date set and there were a number of matters listed for hearing that could have been heard on the same day.
In those circumstance, the case management principles outlined in Aon Risk Services Australia Limited v The Australian National University (2009) 239 CLR 175 tell against the Court granting an adjournment.
The hearing proceeded. The applicant was unrepresented. He advanced arguments which are discussed in detail below in relation to his ground 2. Somewhat unusually for this Court, the applicant was required to provide evidence in the witness box in relation to a fraud allegation. He was subject to cross-examination. This is discussed further below.
Given what had emerged during the course of the hearing, and in light of the applicant suggesting that he had further material he wished to submit to the Court, the Court ultimately adjourned the hearing and granted leave for the filing of further affidavit evidence and written submissions from both the applicant and the Minister.
One further issue needs to be addressed before analysing the applicant’s grounds of review and his submissions as presented over the two day hearing of this matter. This relates to the use of translation services.
At the hearing on 29 May 2019 the applicant had requested an Urdu interpreter. At the commencement of the hearing the Court explained to the applicant that the interpreter who was there to assist him was not an “accredited” interpreter but was nonetheless fluent in the Urdu language. The applicant indicated that he was content for the hearing to continue and that he would, in fact, only need the interpreter if he felt something was legally difficult or if he did not understand what was being said to him. The Court advised the applicant that if, at any time, he required the assistance of the interpreter he should advise the Court. At no time did the applicant take issue with any interpretation services offered.
The Court notes that a lack of “accreditation status” does not mean that the standard of interpretation offered falls below a required level such that an applicant is denied procedural fairness: CPN16 v Minister for Home Affairs [2018] FCA 872. There does not appear to be any statutory obligation or requirement for an “accredited” interpreter. Rather, a minimum level allowing for translation in a legal setting is preferred by the Court.
The Court is mindful that it is not the fact that a person can speak some English that matters in a hearing of this sort. What matters is whether the applicant’s comprehension and English language skills are sufficient to enable him to understand the case against him and to put his case to the Court.
The Court is satisfied here that the applicant was able to do that. Indeed, he expressed himself with clarity and was able to respond during cross examination without difficulty and at length. In this regard, the Court re-iterates that the applicant raised no issue in relation to translation. The Court is satisfied that the applicant was able to be meaningfully heard, understood the case against him and was able to advance his own case throughout the two hearings before this Court.
The applicant filed a further affidavit affirmed 18 June 2019 in which he annexed a copy of the transcript of the Tribunal hearing (the “Tribunal Transcript”). The Minister filed an affidavit of Rebecca Hanna Sara Hawthorne affirmed 2 July 2019, which annexed a copy of the transcript that took place before this Court on 29 May 2019. The Court also received further written submissions from the Minister on 2 July 2019. No written submissions were received from the applicant.
The matter returned for hearing on 23 July 2019. Shortly prior to the commencement of the hearing, the applicant sent an email to Chambers stating: “I can’t attend the hearing today. I have very bad stomach flu”. Given the very short notice (40 minutes prior to the hearing commencing) and noting that there was no evidence before the Court to substantiate any claimed illness the Court requested that the applicant provide a telephone number. The applicant provided a mobile number and was contacted at that number. The applicant did not request an adjournment of the matter and did not object to appearing via telephone. Once again, an interpreter was available to assist the applicant. Ultimately, however, her services were not required.
The Court has read and received into evidence all of the affidavit materials before it and also reviewed the Court Book in detail (marked as Exhibit 1).
Consideration
The Court is mindful that it will rarely be appropriate to dismiss a ground of review in a migration case for lack of particularisation alone. It is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. This was recently confirmed by Justice Anastassiou in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant in this matter, the Court explained to him that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. 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: see 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: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant what the Court can and cannot do. It was explained to him that this Court cannot undertake what is referred to as a merits review. This Court cannot choose not to cancel the visa. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
At the first hearing of this matter (on 28 May 2019), the Court invited the applicant to explain what he thought the Tribunal “did wrong”.
In effect, the applicant’s oral submissions sought to explain discrepancies in the dates on his grandmother’s death certificate. While the applicant appeared to refer to this in the context of “ground one” of his application for judicial review, this issue actually relates to his affidavit affirmed 23 April 2019. This will be addressed below.
Otherwise, the applicant’s oral submissions were largely irrelevant to this Court’s task on judicial review and appealed substantively to the merits of the Tribunal’s decision.
When the matter returned on 2 July 2019, the applicant advanced submissions that sought to explain evidence he had given at the first hearing concerning an alleged fraud by his education provider. This issue was also the subject of extensive written and oral submissions from Counsel for the Minister, Ms Jackson. The Court will return to this issue below.
Before turning to the grounds of review and the applicant’s arguments generally, the Court notes that two of the orders the applicant seeks are orders and relief the Court cannot grant. Specifically, the Court cannot revoke the cancellation of the student visa and it cannot give the applicant permission to travel for dental treatment.
Further, insofar as the applicant seeks the Court to “cancel” the DHS decision (which the Court has taken to mean the delegate’s decision), again, it has no jurisdiction to assist in that regard.
Further, to the extent that the applicant can be seen to be asking the Court to review the delegate’s decision, the Court is prohibited from doing so pursuant to s.476(4) of the Act.
As to the merits of the application, the Court finds as follows.
Ground 1
1.AAT and DHA have ignored these important facts in my case, that i was very stressed and sick because of which i couldn’t continue my studies
The Court asked the applicant to discuss this ground of review and elaborate to the extent that he was able to do so.
The applicant explained that the stress he experienced and his ill health was the main reason he did not continue his studies.
It is noted that in response to the NOICC dated 31 July 2017 the applicant stated “Actually what happened I was so stressed and became sick from few things” and explained that this was the reason for his non-completion of his studies (CB 16). The “few things” referred to here were:
a)his grandmother’s death;
b)his sister’s divorce;
c)the fact that he could not face his family in India as they would criticise him; and
d)his father’s ill health and heart condition.
The applicant also detailed three additional matters to the Tribunal:
a)his uncle’s passing;
b)an assault he suffered at the hands of a drunk individual at his work; and
c)dental problems.
The Court notes the Minister’s submissions at [22]-[23] as follows:
22.The Tribunal clearly considered, and indeed it accepted some aspects, regarding the applicant’s explanation about the explanation for his breach of visa conditions and the extent of hardship: see [33]-[41] and [28]-[32] of the reasons. It specifically referred to each of the matters raised by the applicant.
23.The Tribunal accepted that his family would suffer some emotional and financial hardship: [31]. It also found his evidence confusing as to how his family circumstances affected the continuation of his studies, but that the situation with his family may have affected his ability to study and to that extent was beyond his control: [38], [39], [41]. It therefore expressly considered these explanations advanced, and this ground cannot succeed.
The Court agrees.
It cannot be said here that the Tribunal ignored “important facts” – namely, that the applicant was very stressed and sick and that this was why he did not complete his studies.
The Tribunal expressly referred to the applicant’s grandmother’s death at [15] and [33]-[34], his sister’s divorce at [16] and [35]-[36], criticism he said he would face at [30] and his father’s health condition at [29].
The Tribunal also referred to the applicant’s uncle’s death at [17], the alleged assault and his dental problems at [41].
If the applicant is arguing the Tribunal failed to give proper consideration to these matters, the Court again disagrees.
The Tribunal referred to the evidence in support of these matters and accepted that these matters weighed against cancelling the visa.
That the overall weight the Tribunal afforded these issues was still insufficient to warrant the non-cancellation of the visa is not something this this Court can question here. The Tribunal is entitled to give such weight to the evidence as it sees fit: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
Further, there was nothing illogical, irrational or unreasonable in relation to the Tribunal’s consideration of these matters. Notwithstanding that the Tribunal gave them some weight, the Tribunal considered the breach overall to be substantial. It noted in its consideration that the applicant’s evidence was confusing and, while it did accept the effect of some of these matters on his ability to study, it noted that the applicant himself could not persuasively explain how these matters affected his studies. The Tribunal ultimately considered that, on balance (and having considered the circumstances of the case as a whole) the applicant’s visa should be cancelled. This finding was open to it on the evidence.
Having found that the Tribunal expressly and properly considered the matters the applicant alleges were ignored in a way that is logical and reasonable, the Court finds that ground 1 must fail.
Ground 2
2.AAT have ignored the important fact of the college’s mistake.
Ground 2 needs to be read with the following “particulars” provided in the applicant’s affidavit evidence:
1. I came here in Australia 06/02/2015, as a student of perth institute of business and technology, i have studied there 2 trimesters, I changed the college because of misguidance, then i went to World group college, where i studied the Diploma of business management, where i have submitted my all the assignments but at the end when i went there to collect my diploma certificate, the principle of the college ask me to give here $800 extra then she will give me the diploma. i refused to pay that money because i have already paid my full fee, that’s why they didn’t give me my certificate.
2. The main reason for my visa cancellation was that i didn’t study for 5 months, the reason behind that was, firstly i was very stress because of my family problems, as i have few deaths of my very close family relatives and i couldn’t answer properly at the AAT for the question that “that how my grandmother died” the reason behind that is, that I forgot the disease name in english because i was very nervous and confused. Secondly the college made the confusion in my mind by sending the wrong COE, which was ending in 02/05/2017. I was thinking i am enrolled till May. It was the mistake of college. I will attach that coe with the file too.
Although not entirely clear, ground 2 seems to relate to concerns that the applicant details about his education provider providing incorrect advice and/or demanding an unwarranted payment before the applicant could receive his certificate.
The Minister’s submissions in relation to ground 2 provided as follows:
24.This ground appears to complain about the education agent’s incorrect advice. The applicant raised this explanation for the first time in oral evidence before the Tribunal. At [37] of the Reasons, the Tribunal noted:
[37] The applicant indicated he had received incorrect advice from an education provider who was also his lecturer at the World Group College and that the College itself was allegedly corrupt, asking for bribes in return for assessment.
25.The Tribunal found at [38] that the applicant’s evidence was confusing as to why he did not seek to study elsewhere if he was unable to continue at the World Group College. Overall, the Tribunal was satisfied that some of the circumstances in which the ground of cancellation arose were beyond the applicant’s control and gave this some weight in his favour. It is clear from the reasons that the applicant’s explanation was considered by the Tribunal, and was given some weight in his favour, but did not outweigh the other factors.
26.It is well established that where the Tribunal prepares a written statement of reasons of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 368 of the Act: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [43]; citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5]. Therefore, the Tribunals’ reference to the applicant’s explanation about the advice from World Group College at [37] and its subsequent findings means that the Court must find that it had regard to this consideration.
27.Further, the applicant’s complaint does not rise to the level of suggesting any fraud on the part of World College Group. An allegation of fraud must be distinctly pleaded and proved: SZFDE and Ors v Minister for Immigration and Citizenship & Anor (2007) 237 ALR 64 at [15]. There is nothing to suggest that the applicant seeks to allege that the actions of a third party were anything more than negligent or incorrect.
Ground two seems to suggest two issues that need to be addressed by the Court:
a)the Tribunal failed to assess the fact that the applicant received incorrect advice as to his enrolment; and
b)the Tribunal failed to assess what the applicant seems to believe was fraud on the part of his educational provider.
In relation to the provision of incorrect advice, the Court refers to the applicant’s first affidavit at [2] (dated 29 November), which provides:
… Secondly the college made the confusion in my mind by sending the wrong COE, which was ending in 02/05/2017. I was thinking i am enrolled till May. It was the mistake of college.
The Court notes that the alleged incorrect advice and the CoE was not a matter raised in response to the NOICC. Nor was it raised in the letter the applicant sent to the Tribunal. Rather, it was raised for the first time during the Tribunal hearing where the applicant stated that “because of the confusion…I had that CoE thing which is finishing in May 2017” (Tribunal Transcript, p.3).
While the applicant may have been under the impression that the CoE meant that he was enrolled until May 2017, the fact is that that the applicant ceased studies in February and his enrolment was cancelled on 5 February 2017 (CB 17).
Whether the applicant was aware of this is not clear; however, it is the applicant’s responsibility to know the status of his enrolment.
When one looks at the CoE, it does not state the applicant is “enrolled” until May 2017. It simply indicates that the course end date is May 2017. The applicant has misunderstood the CoE. Had he continued in the course, he would have been enrolled until May 2017 (when the course was due to end). However, he did not do so and his enrolment was cancelled. What was indicated on the CoE was largely irrelevant to the cancellation. The CoE indicated that the applicant was enrolled in a course that would end in May 2017; however; the applicant ceased studying in that course in February. The CoE the applicant relies on was, therefore, null and void as he was no longer enrolled in the course the subject of the CoE.
Suffice it to say the applicant’s submission to this Court in relation to this issue were not entirely clear. This is not a criticism. The applicant was legally unrepresented and did his best to address the complexities inherent in any analysis of jurisdictional error.
It is arguable from what was submitted by the applicant, however, that the applicant was confused about the meaning and effect of the CoE. He thought he had been given “incorrect advice” by his educational provider. The question for this Court, however, is whether the Tribunal failed to consider this evidence when determining whether or not the visa should be cancelled.
Here, the Court does not conclude that the Tribunal failed to consider any alleged “incorrect advice” received by the applicant from his educational provider. Importantly, there is no evidence that “incorrect advice” was actually provided. Secondly, to the extent that the CoE can be seen (as is suggested by the applicant) to constitute “advice”, the effect of that advice is addressed by the Tribunal when it acknowledges that some of the circumstances that lead to the applicant not being formally enrolled at the relevant time were not entirely his fault:
41. The Tribunal is satisfied that some of the circumstances in which the ground of cancellation arose were beyond the applicant’s control. The Tribunal finds this gives some weight in the applicant’s favour.
Arguably, “confusion” falls under the category of “not entirely his fault”. Those “circumstances” were considered but not seen to outweigh those matters that weighed in favour of cancelling the applicant’s visa.
In any event, even if the Court is incorrect in this regard, to the extent that the Tribunal did not address this “confusion” issue, it cannot be said that that failure affects the Tribunal’s ultimate finding overall given the Tribunal’s finding that the applicant was not enrolled at the relevant time and its analysis of the applicant’s evidence overall. The Tribunal did, ultimately, weigh the circumstances in which the cancellation arose in favour or the applicant. Thus, there can be no practical injustice: Minister for Immigration & Border Protection v SZMTA (2019) 93 ALJR 252 at [38].
In relation to corruption or fraud on the part of his educational provider, the Court references the written submissions filed by counsel for the Minister on 2 July 2019.
Those submissions accurately summarise the applicant’s evidence about
“corruption” in relation to the applicant’s agent and college.
Those submissions point out that the applicant did not raise the allegations about his education agent and the college in written submissions to the Department or the Tribunal.
As explained by Counsel for the Minister, the applicant’s oral evidence to the Tribunal regarding the conduct of his education agent and the college can be summarised as follows;
a)the education agent told him he could pay lower course fees at college than where he was studying. The applicant followed his advice and enrolled in the college. This education agent was also a teacher at the college;
b)the applicant knew that the college was ‘fake’ because when he went to get his diploma, he was asked to pay a bribe of $800. The applicant told the college he would not give them any more money because he has already paid his fees in full and submitted all his assignments;
c)the applicant did not report this incident; and
d)the college is now closed.
Further, when invited to give evidence to the Federal Circuit Court regarding the allegations, the applicant’s sworn evidence included statements that:
a)the principal of the college was a woman named Amanda;
b)the principal asked the applicant to pay $600 to get his diploma certificate;
c)when the applicant returned the following week to pay the $600, the principal refused to accept the money or give him the diploma.
d)this occurred around 2 or 3 months after the applicant completed his course in February 2017.
e)another student told the applicant that he gave $600 to the college to get his diploma certificate. The applicant did not see the other student pay $600 to the principal, but he saw him receive the certificate;
f)another friend of the applicant who was a student at the college paid $1,200 by card to get his Certificate IV in Business and Diploma of Business Management. The applicant witnessed his friend paying the money at the college reception counter;
g)the college had been shut by Immigration and the Department of Education because they had ‘dodgy things going on.’ The principal was ‘taking money from everyone’ to give them certificates; and
h)there was a relationship between the agent and the college.
The Minister’s submissions on this issue were as follows:
a)the applicant submits that the Tribunal’s decision is affected by jurisdictional error by reason of incorrect advice from an education agent who was also his teacher at the college and that the college itself was allegedly corrupt by asking for bribes in return for issuing certificates. It is for the applicant to make good that submission, and he has not discharged the heavy onus of proving that there was any third party fraud, much less that it had any bearing upon the validity of the Tribunal’s decision.
b)in rare instances, fraud of a third party can disable the Tribunal from performing its statutory task: SZFDE v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189 at [51]-[52]. That is not the case here.
c)first, the applicant’s evidence regarding the alleged conduct of his education agent and college should not be accepted. Fraud is a serious matter that must be proved “clearly”, “strictly” or “with certainty”. The applicant’s allegations of bribery and corruption do not discharge the heavy onus of proving fraud: SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445 at [51] per Allsop CJ (“SZRUR”). In particular, there are several aspects of the applicant’s evidence which should lead the Court to find that no fraud has been proven:
i)his oral evidence to the Tribunal and this Court is vague and inconsistent, including in respect of key details regarding his interactions with the college such as how much he was asked to pay, and whether or not he agreed to pay the bribe;
ii)his account of being asked to pay a bribe to receive his diploma is also objectively implausible. On his account, he was asked to pay a bribe, then when he tried to pay the bribe, told his money would not be accepted and he would not be given the diploma. But the evidence before the Tribunal establishes that he successfully completed the diploma; and
iii)the claim was first made very late in the review process. It was not raised before the delegate, and was not raised in written submissions provided to the Tribunal. It was raised for the first time in oral evidence to the Tribunal. He did not report the alleged corruption at the time;
d)secondly, the alleged corruption at the college has no relationship with the relevant statutory decision-making processes under the Act. The conduct, even if accepted, does not stultify any relevant aspect of the Tribunal’s review. The actions of the college in accepting bribes for certificates even at its highest could never have disabled the Tribunal’s Part 5 review. Nor could the advice of the education agent regarding changing from a higher education course to a cheaper college degree have any connection to the Tribunal review process. On the applicant’s own evidence, the alleged incident of bribery nor the advice of the agent was the trigger for the applicant ceasing his studies; in fact, it occurred after the applicant had stopped studying. The claimed fraud did not have any consequence in terms of the applicant’s visa cancellation process, as the ground for cancellation had already arisen once the applicant ceased enrolment on 5 February 2017. It is clear that any fraud on the visa applicant does not have the requisite connection to constitute fraud ‘on the Tribunal’: Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [33] per Tamberlin, Finn and Dowsett JJ (“SZLIX”);
e)the applicant has not contended that the fraud by the college affected the process by which his original student visa application was made, such that the visa application was invalid and that he never held a visa which could have been cancelled; and
f)the Court should not accept the applicant’s claim to have been a victim of fraud by the college. It cannot be established that any third party fraud stultified a process or processes under the Act.
In full, the applicant’s evidence before the Tribunal in relation to this issue was as follows:
MR SHAFAIT: No, they enrolled me first, because, like, what happened, I got misguided by the teacher who was teaching in the World Group College, and he was agent too.
MEMBER: So he was your education agent?
MR SHAFAIT: Yes, he was the agent and he was teacher as well. Like, I was dealing with him all the things, and later on I got - like, I knew that that college is fake because when I went there to ask them to give my diploma certificate to me and different ..... asked me to get $800 for a bribe.
MEMBER: The World Group College asked you to do a bribe?
MR SHAFAIT: Yeah, and -
MEMBER: Did you report that?
MR SHAFAIT: Pardon?
MEMBER: Did you report them?
MR SHAFAIT: No, I didn’t report them and I know the guy who like didn’t even submit his assignments and they give him the certificate, but I was - I had completed my assignments. I have submitted my assignments to that teacher who was agent and teacher and he didn’t …like my assignments. And I don’t know what was going on within the college and that teacher and that college has suspended and closed now. And then when I asked them, they said to give them $800, I said, “No, I’m not going to give you any money because I have paid my fees in full.”
MEMBER: They’re quite hefty fees as well.
MR SHAFAIT: Yeah. So, ‘“Why I would give you 800 more extra when I have submitted all the assignments?”
…
MR SHAFAIT: Like after that I applied for the release because I met this teacher and agent, like, through a friend and, like, he gave me a little bit greed(?), like, I would pay less fees in the college than here where I was studying. Because I was new in country and his words all those tricks, so I listened him and I followed him and I went to that college, which was my biggest mistake, I think. I was on the path and I was going all right.
…
MR SHAFAIT: …I got the visa, I came here. And that was, like, I was going very well with this college, like, where I can and I was studying good and then I met this guy and he just ..... and take me there to that college. I wasn’t aware that he’s the agent or the teacher. I was not confirmed that. It was first or second meeting of mine with him when he tell me all these things and, like, when I started there, I was going to the college and studying, yeah, and then, like, these things start happening and first the divorce, and the death.
The Tribunal assessed that evidence as follows:
37. The applicant indicated he had received incorrect advice from an education provider who was also his lecturer at the World Group College and that the College itself was allegedly corrupt, asking for bribes in return for assessment.
38. The applicant’s evidence was confusing in that he was unable to explain how his family circumstances affected the continuation of his studies and why he didn’t seek to study elsewhere if he was unable to continue at the World Group College.
Although this analysis is brief, the Court is not satisfied that the Tribunal has failed to consider the applicant’s evidence regarding the conduct of the college. Further, nothing in the applicant’s evidence in this regard was relevant to why he had actually ceased his studies in February 2017. The applicant’s evidence pertained to his having to pay a bribe for a course he had already completed (the Diploma in Business). Before this Court, the applicant said he was asked to pay a bribe for the certificate two or three months after February 2017. Hence, the “corruption” or “bribery” the applicant refers to took place after he had been in breach of the condition for “two to three months”.
In relation to whether any alleged corruption or bribery disabled the Tribunal from performing its statutory task, the Court notes the applicant’s evidence to this court as follows:
a)the applicant was asked to pay $600 for the certificate and the next week when he returned to pay the money (additional to the $12,000 course fees he had already paid). They refused his money and would not give him his certificate of completion;
b)the applicant knows of one student who paid $600 to receive their certificate of completion and he has another friend who he believes paid $1,200 for his certificate of completion;
c)the applicant went to the college two or three months after February 2017 to pay $600 and he was not enrolled in any course at that time but went to TAFE to enrol in another course during that time;
d)he was with a friend when (though he then suggested his friend told him) he paid $1,200 by “card” at the reception of the college. His friend was not paying the course fees; he was paying to get his certificate because the college was shutting down as they had “dodgy things going on”;
e)the applicant does not know anyone personally who paid to get their certificates but the “story came in” and there were lots of students who were going through this; and
f)the college principal asked the applicant to pay her $600 in order for him to obtain the certificate.
Overall, the applicant’s evidence was again vague.
The Minister identified various inconsistences in the applicant’s evidence. It was noted that the applicant had said to the Tribunal that he declined to pay the bribe. However, when cross-examined he said he had sought to pay the bribe but that it was not accepted.
The Minister contended that this refusal to accept the bribe after one had been requested is implausible.
The Minister also points to the lateness of this claim and the fact that the applicant did not report the corruption at the time it occurred.
Overall, there are aspects of the applicant’s account as to what the college did or did not do that are entirely implausible. This includes evidence that the applicant’s friend paid a “bribe” by card at reception, that his friend (who the Court notes was enrolled in the same two courses as him) was required to pay $1,200 and that the applicant went to pay the bribe but that his money was refused. It seems inherently unlikely that the applicant would be approached for, and asked for a bribe only to be turned away. Further, it does not appear to the Court that a college would be openly accepting bribes through the front reception – particularly at a time when, according to the applicant, the college was being investigated because of “dodgy things”.
An allegation of fraud is a serious matter. Here, the applicant bears a heavy onus to clearly, strictly and with certainty satisfy the Court that there has been an act of fraud and, further, that the alleged act of fraud stultified the Tribunal from performing its statutory task: SZRUR at [51].
In the circumstances of this case, the Court finds that the allegation of bribery here is little more than an embellishment on the part of the applicant. It does little more than repeat “stories” he has heard from others and has been provided to add legitimacy to his application for judicial review. Having assessed the evidence before it, the Court does not accept that the applicant was a victim of fraud or had any fraud as alleged practiced upon him.
In the absence of fraud of any sort, no error can be identified on the part of the Tribunal.
Even if the Court were wrong in finding that the applicant had been asked for a bribe and that the college had acted corruptly, the Court accepts the Minister’s submissions that this cannot be seen to have stultified the Tribunal’s power of review under pt.5 of the Act. Nor can it be said to have invalidated the original visa application or caused the applicant to breach his conditions.
As noted already, the applicant visited the college, and was asked for a payment to obtain his diploma, two to three months after February 2017. The applicant was thus already in breach of his visa requirements. Any corruption (via a request for payment) could not have been causally connected to the applicant ceasing his studies in February 2017. The allegations made by the applicant occurred after he had ceased studying.
Further, the applicant’s evidence to the Tribunal was that the reason he stopped studying was:
I was really stressed because of the family matters and my father was not very well either and as I mentioned that my sister got divorced because it was the marriage in the family and it was big problem in the family.
…
I got the visa, I came here. And that was, like, I was going very well with this college, like, where I can and I was studying good and then I met this guy and he just ..... and take me there to that college. I wasn’t aware that he’s the agent or the teacher. I was not confirmed that. It was first or second meeting of mine with him when he tell me all these things and, like, when I started there, I was going to the college and studying, yeah, and then, like, these things start happening and first the divorce, and the death.
(Emphasis added)
Here, there is no requisite connection to the alleged fraud and the Tribunal’s statutory task, nor any fraudulent behaviour resulting in the applicant breaching the conditions relevant to his student visa: SZLIX.
In light of the above, the Court concludes that ground 2, and those portions of the applicant’s first affidavit relevant to alleged fraudulent conduct on the part of the college do not disclose any jurisdictional error and must, accordingly, be dismissed.
Ground 3
3. The AAT and DHS have ignored the fact that i was not aware of the breach of the visa condition at the time of the breach.
In relation to ground 3, the Court notes the Minister’s submissions at [29]-[30] in the Minister’s first set of written submissions as follows:
29.This ground proceeds on a misunderstanding of the facts: the applicant did not raise any claim before the Tribunal that he was ignorant of his visa conditions. To the contrary, in the applicant’s response to the NOICC he effectively conceded he did not have any enrolment in the period from 5 February 2017 to 19 July 2017, but advanced an explanation that he was stressed and sick as to why he was not enrolled. In his letter to the Tribunal received 16 October 2018 he similarly claimed that he could not study because of his stress and inability to return to his home country. At no point did the applicant claim that he was unaware of his visa conditions which required him to maintain enrolment.
30.The Tribunal was not required to consider a case that is not expressly made or does not arise clearly on the materials before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]. The applicant did not advance his ignorance as a reason for exercising the discretion not to cancel the visa in his favour, and therefore the Tribunal was not required to consider it.
The Court agrees with these submissions.
The applicant’s email of 31 July 2017 can be read as a concession that he was aware he was not enrolled in a course of study. The letter to the Tribunal can be read to the same effect.
Further, even if the applicant was unaware of what was required of him at the time of the breach in question, the applicant did not, at any point, raise this as an issue. This best explains why the Tribunal did not address this issue. It cannot address issues it has no knowledge of or cannot ascertain from the materials.
In this regard, the Court also notes that before this Court the applicant said that he was not “totally unaware” of the relevant condition. He indicated that he knew that he was not studying but was not aware that he would be required to leave the country because he was not doing so. At the Tribunal hearing, the applicant agreed that he knew he was breaching his visa not being enrolled: Tribunal Transcript, page 17.
On the evidence here it cannot be said that the Tribunal failed to engage with any issue in this regard.
Ground 3 is dismissed.
Applicant’s Affidavits
As to the applicant’s affidavits, the Court has addressed parts of the applicant’s first affidavit in ground 2 as necessary.
As to the balance, the Court notes that the statements made do no more than invite impermissible merits review of the Tribunal’s decision. These statements offer explanations as to why the applicant was not enrolled and plead that the applicant is now feeling better and can undertake further studies. None of these are matters the Court can consider on judicial review.
As to the applicant’s second affidavit, the annexed materials do not appear to have been before the Tribunal and invite the Court to disagree with the Tribunal’s (or delegate’s) findings on certain matters: Tesic v Minister for Immigration & Border Protection [2017] FCAFC 93 at [55].
The applicant made oral submissions at the hearing referencing one of the documents in the second affidavit. He indicated that that document was the “correct one” in relation to his grandmother’s death certificate and suggested that this verifies his evidence that his grandmother did pass away on 25 July 2017 (as opposed to 25 June 2017 as was stated on the death certificate the applicant originally provided to the Tribunal).
It appears that the purpose of this evidence is to suggest that the Tribunal erred in determining that the applicant’s grandmother passed away on 25 June 2017 (as indicated on the death certificate he provided to the Tribunal), when she actually died on 25 July 2017 (as was said in oral evidence to the Tribunal).
The Court accepts the Minister’s submission that whether the Tribunal accepted the grandmother died in June or July was immaterial to the Tribunal’s decision as a whole. The Tribunal ultimately found (at [41]) that the circumstances in which the cancellation arose, including the applicant’s family situation – which impliedly included his grandmother’s ill health and death, weighed in favour of not cancelling the visa. Hence, any error made in this regard did not deprive the applicant of a successful outcome.
Conclusion
The Court is satisfied that the Tribunal considered the facts of the case before it, including the circumstances surrounding the applicant’s non-compliance with the requirements relevant to his student visa, and applied the legislation and policy materials it was required to consult in relation to the circumstances and evidence relevant to the matter before it.
Overall, the Court is satisfied that the Tribunal’s decision to affirm the delegate’s decision to cancel the applicant’s student visa was sound and open on the evidence before the Tribunal.
There is no jurisdictional error demonstrated by the applicant’s grounds of review or otherwise apparent in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 30 July 2019
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