Shahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 814
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 814
File number: MLG 3210 of 2019 Judgment of: JUDGE FORBES Date of judgment: 6 September 2024 Catchwords: MIGRATION – student visa cancelled – application for judicial review of decision of Administrative Appeal Tribunal to affirm cancellation decision – extension of time required – consideration of matters relevant to exercise of Court’s discretion to extend time – where substantive grounds of review have no realistic prospect of success – extension of time denied – application dismissed Legislation: Migration Act 1958 (Cth) s 359A, 360, 360A, 477
Migration Regulations 1994 (Cth) cl 8202
Cases cited: ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639
Attorney-General (NSW) v Quin [1990] 170 CLR 1
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
M211/2003 v Refugee Review Tribunal [2004] FCAFC 293
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 27 August 2024 Place: Melbourne Applicant: In person Solicitor for the Respondents: Mr Slevison; Australian Government Solicitor ORDERS
MLG 3210 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SURAJ SHAHI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to the “Minister for Immigration and Multicultural Affairs”.
2.The Applicant’s application for extension of time, filed 24 September 2019, to seek review of the Second Respondent’s decision dated 19 August 2019 is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $4,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 19 August 2019 the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of a delegate of the Minister to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa (the visa). By an application filed 24 September 2019, the applicant seeks an extension of time to seek judicial review of the Tribunal’s decision.
Pursuant to s 477(1) of the Migration Act 1958 (Cth) (the Act) an application for judicial review is required to be made within 35 days of the date of the Tribunal’s decision. In this case, the application for judicial review was filed one day out of time. Pursuant to s 477(2), the Court may extend the time period for the making of applications for judicial review. The applicant seeks an order that the time limit be extended.
For the reasons that follow, I have concluded that the application for extension of time should be dismissed. The applicant should pay the Minister’s costs in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
BACKGROUND
The applicant is a citizen of Nepal. He was granted a student visa on 13 January 2017 on the basis that he was enrolled in and would complete studies for a Bachelor of Business in Hotel Management and then a Master of International Tourism and Hotel Management.
On 5 December 2018 the Department contacted the applicant and informed him of its intention to cancel the applicant’s visa. According to the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course since 19 January 2018, and was therefore in breach of Condition 8202(2)(a) of the Migration Regulations 1994 (Cth). The Department invited the applicant to provide a written response to the proposed visa cancellation.
On 2 January 2019 the Department received a response from the applicant in writing. The applicant outlined the reasons why the Department should not cancel his visa. The delegate recorded the applicant’s explanation as follows[1]:
“[…] he was progressing smoothly until, during second semester, he found out his mother had become very ill to the point her condition was critical. As a result he was not able to concentrate on his studies.
Due to the expense of his mother's medical treatment and his father losing his job he was not able to continue his studies. His father had started a new business, but was not able to focus on the business due his wife's condition. [The applicant] claimed he was not able afford the course fees and felt he could not ask his father for help with his fees. He reluctantly ceased studying.
He contemplated returning home to help care for his mother, but felt he would be letting his father down if he did not return without his Australian qualification. He also did not want the “unnecessary expense of international travel”.
In October 2018, his father rang him when he learned that [the applicant] had ceased his studies. His father said he would find a way to fund [the applicant’s] studies. His mother is recovering well and his father is now financially in a position to focus on the new business.”
[1] As summarised in the delegate’s decision; CB 101-102
The Minister’s delegate was satisfied that there were grounds for cancelling the visa and those reasons outweighed the reasons for not cancelling. The applicant’s visa was cancelled on 22 January 2019.
On 31 January 2019 the applicant applied to the Tribunal for review of the decision. On 30 July 2019 the applicant attended a hearing before the Tribunal.
On 19 August 2019 the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa. However, the email from the Tribunal to the applicant notifying him of the decision is dated 24 August 2019.
Tribunal decision
The applicant conceded at the hearing before the Tribunal that he had breached condition 8202(2)(a) of his visa by not being enrolled in a course from 19 January 2018.
In determining whether the visa should have been cancelled, the Tribunal went on to consider the relevant matters as identified in the Department’s Procedures Advice Manual (PAM3).
The Tribunal’s findings are accurately summarised in the Minister’s outline of submissions[2] as follows:
“12.1 That while it accepted that the applicant’s mother had medical problems, and that this had effects on the family’s finances and the applicant’s wellbeing, that did not excuse him from complying with the conditions of his visa. The Tribunal considered that there was no psychological evidence that suggested the applicant was suffering a clinically diagnosable chronic mental health condition during the relevant time: [20]-[23].
12.2. The circumstances leading to the breach of condition 8202(2) were not beyond the applicant’s control: [25].
12.3. The purpose of the applicant’s stay in Australia was to study full time, and that purpose was effectively defeated when the applicant ceased studying: [26].
12.4. There was no compelling need for the applicant to remain in Australia, given the applicant was afforded a significant amount of time in Australia to study: [28].
12.5. The applicant did not make any realistic attempts to comply with the fundamental condition relating to his obligation to maintain satisfactory course progress: [29].
12.6. It would be difficult for the applicant if he was not allowed to complete an Australian qualification, but the weight of this difficulty must be tempered with the extent of the applicant’s non-compliance with the conditions of the visa: [30]-[31].
12.7. There was no adverse evidence before the Tribunal in regard to the applicant’s past and present behaviour towards the Department: [32]. There also did not appear to be any consequential cancellations if the applicant’s visa was cancelled: [33].
12.8. The applicant is a citizen of Nepal, and he may return there if necessary. Detention and forcible removal from Australia would only eventuate if the applicant does not co-operate with authorities in giving effect to his departure from Australia: [33]-[35].”
[2] Minister’s written outline of submissions filed on 19 August 2024
On 24 September 2019 the applicant sought an extension of time to seek judicial review of the Tribunal’s decision.
HEARING
I heard the extension of time application on 27 August 2024. The applicant appeared self-represented and Mr Slevison, a solicitor from the Australian Government Solicitor, appeared on behalf of the Minister.
Prior to the hearing, both parties filed written submissions and the Minister filed a Court Book. The applicant confirmed that he had received a copy of the Court Book and the Minister’s submissions.
As is my usual practice where applicants appear without representation, I explained the course the hearing would follow, including the order of oral submissions and the applicant’s right of reply. I informed the applicant that the Court could not review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. I explained that the role of the Court was restricted to determining whether it should grant the applicant an extension of time to make his application for substantive review of the Tribunal’s decision. In doing so, I explained to the applicant the matters which the Court would take into account and invited him to address the Court on those issues. I was satisfied that the applicant had a good command of English and understood the explanation. I invited him to ask questions or seek further clarification if there was anything about the process he did not understand.
SUBMISSIONS
In his written submissions regarding the extension of time application, the applicant says he miscalculated the date because he was not notified about the AAT decision until 24 August 2019.
The applicant also provided the following proposed substantive grounds for review [reproduced below in their original form]:
1.The tribunal failed to take into account relevant considerations. I was not provided procedural fairness as I felt member did not let me express views and intentions during the course of the hearing.
2.I also feel that Natural justice was not given to me as no application should be decided without allowing the applicant proper opportunity to comment on their application and without giving their consideration to the evidence at hand.
3.I also feel that the law was incorrectly applied in my case as the AAT did not give proper weight to my situation and my plans for the future. The tribunal was wrong to assume that my mother’s serious illness should not affect my academic performance. It was such an important application for me and I feel I should have been given further opportunity to comment on the concerns rather than refusing my application directly.
In oral submissions, the applicant reiterated his explanation for why he was not enrolled in any course after 19 January 2018. He said his mother’s illness meant he was unable to focus on his studies in Australia, and he felt too ashamed and guilty to share with his family that he had ceased studying. These submissions largely invite the Court to conduct impermissible merits review[3].
[3] Attorney-General (NSW) v Quin [1990] 170 CLR 1 (Mason C.J., Brennan, Deane, Dawson and Toohey JJ.) at 36
When I directed the applicant to inform the Court what errors he asserts the Tribunal had made, he stated that the Tribunal had failed to appreciate the impact of his mother’s illness, nor did it appreciate the applicant’s reasons or understand him.
The Minister relied and expanded on its written submissions, as outlined below.
Legal principles
When determining whether an extension of time should be granted, the Court turns to the well-established principles from Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The relevant considerations for the Court include:
(1)the length of the delay;
(2)whether the applicant has a reasonable explanation for the delay;
(3)any prejudice to the respondent or third parties; and
(4)the merits of the underlying application.
Length and explanation for the delay
The review application was filed just one day out of time. The Minister acknowledged that this is a minor delay.
In submissions filed 26 August 2024, the applicant maintained that he miscalculated the dates as the Tribunal failed to promptly notify him of its decision. The applicant submitted that he was only “notified” of the decision on 24 August 2019. He says that he is unaware that the decision was made on 19 August 2019 or that that was the effective date from which time would be calculated. Further, given the grave consequences of the cancellation decision, the applicant submitted that it is in the interests of justice that he be allowed an opportunity to plead and argue his substantive grounds of claim.
The Minister relies on the well-settled principle that, in most circumstances, a self-represented litigant’s ignorance of the time limit for making an application is not a satisfactory explanation for delay[4]. The Minister accepts that there was an unexplained delay in the Tribunal notifying the applicant of its decision (given that the decision was made on 19 August and the notification not sent to the applicant until 24 August).
[4] MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 at [4]; M211/2003 v Refugee Review Tribunal [2004] FCAFC 293 at [23]
The Minister accepts that the length and explanation for the applicant’s delay may weigh slightly in favour of the Court exercising its discretion. I agree.
The evidence shows that the Tribunal did not communicate its decision to the applicant until several days after it was made. The decision was accompanied by the usual fact sheets and other information which should have drawn to the applicant’s attention the requirement to make an application for review within 35 days of the date of the Tribunal’s decision. However, I accept that the unexplained delay in the Tribunal sending its decision to the applicant may have contributed to a miscalculation on the applicant’s part.
Prejudice
There is no prejudice to the Minister, a position accepted by the Minister’s representatives. However, it is well accepted that the absence of prejudice is not enough to justify granting an extension of time[5].
[5] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 399; ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639 at [88]
That said, the short delay, the applicant’s explanation and the absence of prejudice all weigh in favour of a grant of an extension of time.
Merit of the application
The Minister submits that the Court should not exercise its discretion to grant an extension of time, even where the delay was only one day, if the proposed substantive application does not enjoy any prospects of success[6].
[6] SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38]
In his submissions, the applicant asserts that “at least some of the substantive ground[s] of [his] application have a reasonable prospect of success”.
The grounds on which the applicant seeks to impugn the Tribunal’s decision must be tested, at least at an impressionistic level. It is not in the interests of the administration of justice for Court resources to be applied to an unmeritorious case.
Ground one
The applicant’s first ground raises two species of jurisdictional error: a failure to take into account relevant considerations, and an alleged lack of procedural fairness.
Failure of the Tribunal to take into account a matter that it was bound to consider may constitute jurisdictional error[7]. However, the applicant does not provide particulars as to what the Tribunal failed to consider.
[7] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40
The Minister submits that the Tribunal considered the applicant’s written evidence (at [15]-[19] of its reasons) and the oral submissions he made at the Tribunal hearing (at [20] of its reasons). The Tribunal therefore discharged its statutory duty by considering all that it was bound to, and the applicant has been unable to point to any particular matter which was not considered.
The applicant also alleges that the Tribunal “did not let him express his views and intentions” during the hearing. The applicant did not provide particulars as to how he was denied procedural fairness during the hearing, aside from mentioning that the hearing was conducted via videocall, rather than in person.
Division 5 of Part 5 of the Act exhaustively sets out the Tribunal’s obligations regarding natural justice. Procedural fairness requires that the hearing be conducted in a way that is fair and complies with the Tribunal’s obligations as set out in s 360 of the Act. Any hearing held by the Tribunal must be fair, and be a hearing in substance rather than merely in form[8]. The Tribunal’s satisfaction of its obligation to invite the applicant to attend a hearing cannot be a “hollow shell or an empty gesture”[9].
[8] Minister for immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [76]
[9] Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31]
The Minister submits that the Tribunal’s comments at [14] of its reasons show that it was mindful of the need to “consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing […]”. The Tribunal also went on at [20] of its reasons to summarise the evidence given by the applicant during the hearing, supporting a conclusion that the applicant was given ample opportunity to present his arguments and evidence during the hearing.
Ground two
Ground two is largely a reiteration of ground one. The applicant attended a hearing but alleges that he was denied procedural fairness and the Tribunal failed to give due consideration to the “evidence at hand”. Again the details of the alleged failures are not particularised.
The Minister submitted that in circumstances where the applicant attended a hearing, no argument about whether he was properly invited to the hearing pursuant to ss 360 and 360A of the Act can succeed. There was also no adverse information that the Tribunal was obliged to invite the applicant to comment on pursuant to s 359A of the Act.
Moreover, for reasons discussed above, the Minister submits that the Tribunal did not fail to consider any matter that it was bound to consider.
Ground three
By ground three the applicant asserts that the Tribunal did not give proper weight to his situation and was wrong to find that his mother’s serious illness should not have impacted his academic performance. He also asserts that he should have been given a further opportunity to comment on any concerns the Tribunal had about his case before refusing his application.
At [21] of its reasons the Tribunal found:
“While the Tribunal accepts [the applicant’s] evidence relating to his mother’s medical problems, which inevitably had consequential effects on the family finances and the Applicant’s emotional well-being, it does not accept this evidence as providing a foundation for the Applicant being excused from complying with his student visa conditions […]”
The Minister submits that this finding was open to the Tribunal on the evidence before it. The Minister argues that this ground invites impermissible merits review and that the decision is not susceptible to judicial review[10].
[10] Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) at p36
The Minister further submits that the Tribunal did not fall into error by failing to give the applicant an opportunity to comment on its concerns. Under Division 5 of Part 5 of the Act, “the Tribunal could only have been required to give him a further opportunity to comment if there was information before it that obliged it to do so under s 359A of the Act”. Doubts in the Tribunal’s mind are not “information” which engages the Tribunal’s obligations under s 359A[11].
[11] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]
Applicant’s reply submissions
In oral reply submissions, the applicant was contrite and informed the Court that he had never intended to misuse his visa. He did not contest the irrefutable fact that he was not enrolled in a course of study for more than a year and was in breach of a visa condition. The applicant confirmed that he did not raise his personal circumstances with the academic institution at which he was previously enrolled and chose to keep matters to himself.
The applicant spoke of his father’s dream for his son to be educated in Australia. He said that he had not been open with his family about his situation and was a victim of bad personal circumstances and his own bad decisions. He reiterated his wish to continue his studies in Australia and return to Nepal with an Australian degree.
CONSIDERATION
Having heard the parties’ submissions, I am of the view that the applicant’s case does not have reasonable prospects of success.
The applicant’s substantive application for review seeks reconsideration of the evidence and grounds advanced before the Tribunal and a reassessment of the merit of his claims. The applicant was not able to identify any particular item of evidence which the Tribunal failed to consider, only that the Tribunal did not appreciate the significance of those matters.
Fairly read, the reasons reveal that the Tribunal did acknowledge the applicant’s mother’s illness and accepted that it may have had an impact on the applicant. Crucially, the Tribunal then went on to find at [21] that:
“Sickness of family members are unkind life stressors that everyone must deal with at some point. Non-Australian citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas […]”
There is a distinction to be drawn between a failure by the Tribunal to take into account or properly consider evidence before it, and the Tribunal weighing that evidence and coming to a conclusion with which the applicant disagrees. As per French J in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27], “the Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.
As far as the procedural fairness and natural justice points are concerned, the applicant was invited to a hearing, he was afforded the opportunity to put evidence before the Tribunal and there were no adverse matters that the Tribunal was required to raise with him. The applicant’s only complaint is that the Tribunal failed to appreciate or give weight to the evidence that he believed it should have.
The applicant submitted that the Tribunal “did not take him or his application seriously”. When asked to explain that allegation, the applicant simply said that the Tribunal failed to appreciate the significance of his mother’s illness and the Tribunal did not understand his case or his reasons.
If, by alleging that he was “not taken seriously”, the applicant is implicitly asserting apprehended bias, the test is well known. He must demonstrate that there would be a reasonable apprehension on the part of a “hypothetical fair-minded layperson who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, that the Tribunal might not bring an impartial mind to the resolution of the question to be decided[12]. The applicant’s complaint does not come close to reaching that threshold.
[12] Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at 235
The applicant’s reply submissions laid bare that he is really seeking a further opportunity to obtain a student visa. The applicant conceded that, looking back, he could have approached the issue differently. The applicant’s contrition was palpable and I accept that he has, with hindsight, disappointed his family and their hopes for him.
Regrettably, however, none of those matters go to the question of whether the Tribunal properly discharged its statutory task in considering its review of the delegate’s decision. At an impressionist level, the Tribunal’s decision appears unimpeachable, and nothing raised by the applicant has any prospect of establishing otherwise.
I am of the view that the applicant’s application for an extension of time must be dismissed on the basis that the substantive application for review does not enjoy any realistic prospect of success.
DISPOSITION
For the reasons discussed above, I am not persuaded that there is a proper basis to grant an extension of time to seek review of the Tribunal’s decision made on 19 August 2019.
The application for review filed on 24 September 2019 will be dismissed and I will hear the parties on costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 6 September 2024
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