Shoaib v Minister for Immigration
[2018] FCCA 1044
•7 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHOAIB v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1044 |
| Catchwords: MIGRATION – Visa – student visa – breach of visa condition – applicant not enrolled in registered course – discretion to cancel visa – whether Tribunal simply adopted the decision of the delegate – whether Tribunal gave proper consideration to claims and evidence – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360, 360A and 116(1)(b) |
| Cases cited: Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170 |
| Applicant: | MUHAMMAD ABUBAKAR SHOAIB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 21 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 5 March 2018 |
| Date of Last Submission: | 5 March 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 7 May 2018 |
REPRESENTATION
| The Applicant: | In person with an interpreter |
| Counsel for the Respondents: | Ms N Milutinovic |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of FIVE THOUSAND AND EIGHT HUNDRED DOLLARS ($5,800).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 21 of 2017
| MUHAMMAD ABUBAKAR SHOAIB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for constitutional writs in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 4 January 2017. That decision affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection (‘the delegate’) to cancel the applicant’s student (Temporary) (Class TU) higher education (subclass 573) visa (‘the visa’). The applicant has identified ten grounds of application as follows:
“(1)That the member erred in affirming the review application by relying on the evidence DIBP provided to cancel the visa.
(2)The DIBP Case Officer erred in considering the grounds for not to cancel the student visa.
(3)Despite of more reasons for not to cancel the visa, he made up his own mind to cancel the visa.
(4)DIBP erred in not considering the findings that I was in the race to find the other alternatives to pay my fee as it can breach my visa condition and they did not provided any extra time even they were fully aware of my conditions.
(5)AAT concluded that they cannot grant the extension of time as DIBP haven’t provided me time for the same matter. They showed sympathy but affirm the DIBP decision without giving extra time and proper reasons for the affirmed decision.
(6)The DIBP case officer and AAT member failed to consider that each case has its own facts, merits and compelling reasons.
(7)The member did not considered the compelling reasons that weigh my case for not to cancel my student visa.
(8)My visa application raises an arguable case in relation to not cancel the visa.
(9)My migration agent is also liable to answer for his wrong advice.
(10)That the DIBP Case Officer and AAT member erred in affirming the review and not according substantial justice to the applicants.”
(copied verbatim)
The applicant was given leave on 2 March 2017 to file any amended application and such further materials as he sought to rely on, including the transcript of proceedings before the second respondent, by 28 April 2017. He was also ordered to file and serve any outline of submissions 14 days prior to the hearing in this matter. In the event that he needed it, he was also given liberty to apply to the Court for a listing to obtain further directions. The applicant has not filed any amended proceedings and no further materials and did not file a written outline of submissions. It is not apparent that he requested the matter to be called on for directions at any time prior to the hearing of this matter.
The applicant appeared before me unrepresented and with the assistance of an interpreter in the Urdu and English languages.
Background
The background to the Tribunal hearing and the hearing itself have been helpfully summarised by the first respondent in its written outline of submissions. I do not understand any aspect of that summary to have been disputed by the applicant and accordingly, I have paraphrased it below.
The applicant is a citizen of Pakistan and was originally granted the visa on 30 May 2014. That visa was subject to condition 8202, and a copy of that condition was attached to it. It was a requirement of subclause (2) that the applicant remained enrolled in a registered course.[1]
[1] Court Book (‘CB’) p 14, condition 8202(2)(a).
It came to the attention of the Department that the applicant appeared not to have been enrolled in a registered course of study since 13 March 2015. The Department ascertained this based on evidence from the Provider Registration and International Student Management System (‘PRISMS’). On 30 May 2016, the Department served a Notice of Intention to Consider Cancellation of the Visa.[2] The letter provided to the applicant, putting him on notice of the Department’s intention, invited him to respond to the Notice.
[2] CB pp 11 to 17.
The Department acceded to the applicant’s initial request for more time in which to respond to the Notice. On 15 June 2016, the applicant provided a response to the Department which attached what was described as an “explanation statement” and relevant supporting documents.[3]
[3] CP pp 24 to 46.
A delegate of the Minister cancelled the visa pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) on 1 July 2016. The reason for cancelling the visa was that the applicant did not comply with condition 8202(2)(a) of the visa. The delegate concluded that the grounds for cancelling the visa outweighed the grounds identified by the applicant for not cancelling it. The applicant applied to the Tribunal for a review of that decision on 7 July 2016. The applicant was clearly on notice of the reasons given by the delegate because his application attached a copy of the delegate’s decision record.
The Tribunal invited the applicant to attend a hearing to give evidence and present arguments as to why the decision of the delegate should not be affirmed. That invitation was extended to him on 21 November 2016. He was advised that any additional documents or information that he wanted the Tribunal to consider should be provided to it by 13 December 2016. The applicant accepted the invitation to attend at the hearing in writing on 24 November 2016. He also provided documents in support of his application for review, as requested by the Tribunal, within the timeframe that it had stipulated. The Tribunal hearing proceeded by way of videoconference link on 20 December 2016.
The Tribunal determined to affirm the decision of the delegate to cancel the applicant’s visa. Its reasons for doing so was that it found that the applicant was not enrolled in a registered course and had not been enrolled in such a course from 13 March 2015, and by reason of that, he had breached condition 8202(2)(a) of the visa. The Tribunal satisfied itself that a ground for cancellation of the visa pursuant to s.116(1)(b) of the Act existed, and its decision record notes that the applicant did not dispute that that condition existed.[4]
[4] CB pp 86-87 at [8]-[11].
The decision record shows that the Tribunal considered whether or not to exercise its discretion to cancel the visa. It considered matters raised by the applicant which weighed in favour of not cancelling the visa and also the Procedures and Advice Manual (‘PAM3’). In considering the exercise of its discretion, the Tribunal regarded the following matters as significant:
a)It noted that 15 months had elapsed between the applicant ceasing to be enrolled in a course and being served with the NOICC. It noted that the applicant had failed to enrol on two occasions because he did not have the finances to pay the fees.[5]
b)For that reason, having noted that the purpose of a student visa is to enable a visa holder to undertake study in Australia, the Tribunal found that the applicant was not fulfilling the purpose of his travel and stay in this country. Despite having discussed deferring his studies for a period of six months with Flinders University, he had, in fact, worked and not undertaken studies.
c)The Tribunal took into account the personal circumstances of the applicant and accepted that he may have been confused, scared and depressed about his visa status, but it reached the conclusion that that did not justify his failure to comply with the conditions of the visa. It regarded his non‑enrolment for 15 months as a significant breach of the visa conditions given the nature and purpose of the visa itself.
d)With respect to the applicant’s personal circumstances and the effect of cancellation of the visa upon him, the Tribunal accepted that he would suffer hardship by virtue of the cancellation, in particular because he would not be able to return to study in Australia in the near future. It accepted also that his family would be disappointed that he had not completed the object of his travel to this country, namely, completing a Bachelor of Business course. However, the Tribunal regarded as relevant the fact that the applicant had completed a Diploma of Commerce.[6]
e)The Tribunal considered the circumstances of the applicant cumulatively and determined that it was appropriate that the visa be cancelled.
[5] CB p 89 at [25].
[6] CB p 89 at [29].
Submissions
The affidavit filed by the applicant in support of this application summarises very briefly the nature of the issues he seeks to raise with this Court. At paragraph 1 of that affidavit, the applicant states:
“I am not satisfied with the decision made by AAT/DIBP on my case. So, that’s the reason I wish to apply in Federal Circuit Court of Australia for the right review of my application.”
(copied verbatim)
That affidavit also annexed a copy of the decision record of the Tribunal but otherwise added nothing of assistance to these proceedings. The applicant was invited to make oral submissions before me and did so. He told the Court that he acknowledged the Tribunal did consider what he had to say but that they had not given him “closure on the matter”. There was nothing in the decision as to what else he could have done or what was required of him in order to obtain the visa. In effect, he submitted to the Court that he has been confused by the process of the Tribunal hearing, and the effect of his submission was to complain that he was not given enough assistance by the Tribunal. For example, he noted that the Tribunal observed he had not provided recent medical evidence with respect to his father’s health, but he told the Court that he would have provided more recent information had he known it was necessary.
He said that the Tribunal did not give enough consideration to the fact that he was actively considering other options, for example, obtaining loans in order to pay his student fees. He told the Court that he just wanted to get his student visa back so that he could finish his studies and go back to his country with his head held high. He told the Court that his father now believes that he has failed him. He submitted that he had been confused by getting bad advice from a migration agent. What he wanted from the Tribunal was to be told what more could have been provided to make his case more effective.
The applicant’s submissions did not address directly all of the grounds of his application. Those grounds fail to identify with any particularity the basis upon which the applicant says jurisdictional error occurred.
In the submission of the first respondent, grounds 1 to 8 inclusive, of the application are interrelated. In the first respondent’s submission, the essence of those grounds, when considered together, is an allegation that the Tribunal relied on the findings and conclusions of the delegate without bringing fresh consideration to the applicant’s evidence and arguments presented at the Tribunal hearing. The first respondent submits, correctly, that this Court is not able to conduct a review of the delegate’s decision. The first respondent submits that to the extent the grounds allege an error on the part of the Tribunal to refuse the applicant further time to provide material, there is no evidence to suggest that he made any such request to the Tribunal. In the first respondent’s submissions, the Tribunal considered the applicant’s evidence and arguments for why he said the visa should not be cancelled and conducted an independent assessment of those reasons in determining whether to exercise its discretion not to cancel the visa. The reasons provided by the Tribunal were detailed and clearly indicate that it engaged in an act of intellectual process in reaching its conclusion. That conclusion was supported by unchallenged evidence from PRISMS, to the effect that the applicant had not been enrolled in a registered course for a period of 15 months. The reasons of the Tribunal clearly indicated that it had regard to the matters raised by the applicant as to why discretion should be exercised against cancellation.[7] With respect to the applicant’s claim that because he was no longer religious, life for him in Pakistan would be debilitating, the Tribunal was not faced with an articulated claim that the applicant would face persecution or significant harm on return to Pakistan such that a return would breach Australia’s international obligations. It submitted that it was clear that the applicant had not applied for, or been granted, a protection visa.
[7] CB p 86 at [10].
Counsel for the first respondent submitted that grounds 1 to 8 inclusive should be dismissed. With respect to the applicant’s claim in ground 9 that he had been given bad advice by a migration agent, it was submitted by the first respondent that this was not relevant in circumstances where neither the applicant nor the Tribunal had been subjected to fraudulent conduct on the part of a migration agent. Mere negligence or inadvertence on the part of the agent was insufficient to amount to fraud.[8] For those reasons, the first respondent submitted that ground 9 should be dismissed.
[8] Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [30] to [33].
With respect to ground 10, the first respondent submits that this is simply a complaint as to the merits of the Tribunal hearing. It was also submitted that insofar as the allegation that the Tribunal had not provided the applicant with substantial justice, this submission was flawed, and it noted that the Tribunal had complied with its obligations pursuant to ss.360 and 360A of the Act. There can be no doubt that the applicant was on notice of the determinative issues on the review by virtue of the NOICC, the delegate’s decision, and the Tribunal’s questions to him during the course of the hearing.[9] To the extent that ground 10 alleges a failure of procedural fairness on the part of the Tribunal, the first respondent submits that that ground cannot succeed and that no substantive procedural fairness has been identified by the applicant.
[9] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
Consideration
The applicant clearly found himself in the unfortunate position of not being able to pay relevant student fees for the registered course in which he wanted to be enrolled. It was that that caused him to breach condition 8202(2)(a) because he was unable to satisfy the requirement of being enrolled at all times in a registered course. I do not accept the contention in ground 1 that the Tribunal member simply relied on the evidence given to the delegate in order to cancel the visa. It seems to me that a fair reading of the decision record shows that the Tribunal did actively engage with the issues before it and considered both the material before the delegate and those matters raised with it by the applicant.
To the extent that the applicant’s complaints in grounds 2, 3 and 4 allege that the Tribunal did not give a consideration of his claims or properly weigh relevant matters in the exercise of its discretion, I reject that contention. Further, the Tribunal noted and considered the difficult position the applicant was in and that he had been making efforts to try and obtain funds to pay his fees. I accept the submission of the Minister that there is no evidence that the Tribunal failed to grant the applicant additional time in relation to either the provision of submissions or further evidence. It is not apparent from the materials and the Court Book that any request of that kind was made to the Tribunal. I reject the contention in ground five. With respect to the applicant’s complaint that the Tribunal did not provide proper reasons for its decision, I am of the view that the Tribunal did adequately explain its reasoning. The Tribunal identified the relevant issue as being whether there was a proper ground for cancellation under s.116 of the Act, including the considerations in s.116(1)(b). That section sets out as follows:
“(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b)its holder has not complied with a condition of the visa”
It correctly identified that if it was satisfied that a ground for cancellation of the visa was made out, it was necessary to then proceed to consider whether, in its discretion, the visa should be cancelled, having regard to all relevant circumstances, including any relevant government policy.[10] The process by which the Tribunal identified whether there was a ground for cancelling the visa was straightforward, and the Tribunal had regard to the information provided by the PRISMS system.[11] It noted, correctly, authority from the Federal Court to the effect that the requirements of condition 8202 meant that a visa holder was not permitted to cease to be enrolled in a registered course.[12] The process by which the Tribunal reached its state of satisfaction that the ground of cancellation did exist was unexceptionable.
[10] CB p 86 at [5].
[11] CB p 86 at [7].
[12] Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170.
When considering the discretion to cancel the visa, the Tribunal correctly noted that there were no matters specified in either the Act or Migration Regulations 1994 (Cth) that were required to be considered with respect to exercising that discretion. The Tribunal set out in some detail the matters raised by the applicant as to why he said the visa should not be cancelled.[13] It also gave consideration to a written statement provided by the applicant that had been made by his father in December of 2016.[14] The Tribunal noted that the evidence provided by the applicant at the hearing was not “materially different” to the information provided when he responded to the NOICC and which was considered by the delegate. It is clear from the decision record that the Tribunal provided an opportunity to the applicant to explain to it in some detail the “series of misfortunes” that caused him to be in breach of condition 8202.[15] I am satisfied that in the relatively straightforward circumstances of the breach, the decision record of the Tribunal is comparatively comprehensive.
[13] CB pp 87 to 88.
[14] CB p 88 at [13].
[15] CB p 88 at [15] to p 89 at [23].
With respect to grounds 6 and 7, I reject the contentions contained in them. It is clear that the Tribunal did approach the applicant’s claims with an open mind and on the basis of its merits. There is nothing on the face of the decision record which would support any contention that it simply adopted the reasoning of the delegate. Contrary to the contention in ground 7, I am satisfied that the Tribunal did consider those reasons advanced by the applicant that weighed in favour of not cancelling the visa, but it did not regard them as compelling reasons, to use the term in the applicant’s ground, or that they outweighed considerations against the exercising of the discretion not to cancel the visa.
Ground 8 is not a proper ground in terms of establishing jurisdictional error. It is not relevant, on consideration of judicial review, that the applicant’s claims before the Tribunal raised an arguable case that his visa should not be cancelled. The Tribunal was not dismissive of his case. It was simply not convinced by it. I dismiss that ground.
I accept the submission of the first respondent that the complaint in ground 9 cannot succeed. It is unfortunate, if it be the case, that the applicant received bad advice from a migration agent. That does not alter the fact that he was in breach of condition 8202, nor did it outweigh the considerations found by the Tribunal to weigh in favour of cancellation. Finally, I am satisfied that the Tribunal did not fall into jurisdictional error by failing to accord substantial justice to the applicant. The Tribunal had a duty to conduct a hearing, and it did so. There is no question but that the applicant was on notice of the determinative issue, which was whether a ground for cancellation existed and whether the Tribunal should exercise its discretion to cancelling the visa. I cannot identify any other way in which the Tribunal failed to accord procedural fairness to the applicant. The applicant was given a meaningful opportunity to attend before the Tribunal, present evidence and give argument. That opportunity was not rendered any less meaningful and a lack of procedural fairness does not arise simply because the Tribunal rejected the applicant’s claims and exercised the discretion adversely to him.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 7 May 2018
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