Sidhu v Minister for Immigration
[2018] FCCA 1883
•12 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIDHU v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1883 |
| Catchwords: MIGRATION – Student visa – cancellation of enrolment in courses of study – breach of condition of visa – notice of intention to cancel visa – delegate cancels visa – Tribunal exercises discretion in favour of cancellation of visa – application for judicial review – show cause hearing – grounds of review not established – no reasonably arguable grounds shown – no discretionary considerations in favour of decision to allow matter to go to final hearing – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.116, 359A, 360, 476 |
| Cases cited: Minister for Immigration and Border Protection v Guder [2018] FCA 626 |
| Applicant: | SUKHDEEP SINGH SIDHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 680 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 10 July 2018 |
| Date of Last Submission: | 10 July 2018 |
| Delivered at: | Melbourne |
| Orders Pronounced: | 10 July 2018 |
| Delivered on: | 12 July 2018 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor appearing for the Respondents: | Ms Montalban |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
Pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
The applicant pay the costs of the first respondent fixed at $2,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 680 of 2017
| SUKHDEEP SINGH SIDHU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 5 April 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 March 2017 affirming a decision of a delegate of the first respondent (Minister) to cancel the applicant’s Subclass 573 Higher Education Sector visa under s 116(1)(b) of the Migration Act 1958 (Cth) (Act).
On 10 July 2018, I made an order pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), that the application be dismissed.
These reasons explain why that order was made.
Background
On 11 February 2014, the applicant, a male citizen of India aged 23 years, was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa.
On 11 August 2016, the Department of Immigration and Border Protection wrote to the applicant giving notice of intention to consider cancellation of his Student visa (Notice). The applicant was given the opportunity to comment on the ground for cancellation and give reasons why the visa should not be cancelled.
By email transmitted on 18 August 2016, the applicant replied to the invitation to respond to the Notice setting out in detail the reasons why he considered that his visa should not be cancelled.
On 23 August 2016, a delegate of the Minister cancelled the applicant’s Student visa on the ground that he had not been enrolled in a registered course of study since 10 June 2015 and was for that reason in breach of condition 8202 which was imposed on his visa.
On 30 August 2016, the applicant applied to the Tribunal for review of the delegate’s decision and on that date filed a detailed submission explaining why he contended that his visa should not be cancelled.
On 17 January 2017, the applicant was invited to appear before the Tribunal on 15 March 2017 to give evidence and present arguments relating to the issues arising in his case. The applicant attended the hearing on 15 March 2017.
On 16 March 2017, the Tribunal affirmed the delegate’s decision to cancel the applicant’s Student visa, providing a statement of its reasons for doing so (Reasons). In the course of the hearing the applicant stated that his enrolment in a Bachelor of Hospitality Management had been cancelled on 9 April 2015 by reason that the education provider had been unable to deliver that course: Reasons, [21]. He also stated that he had enrolled in a Certificate III Automotive course which enrolment had been cancelled on 10 June 2015 by reason of unsatisfactory progress: Reasons, [21]. The applicant ceased attending that course in August 2015 by reason that he was, he said, depressed: Reasons, [22].
The Tribunal found that the applicant had failed to adduce any evidence in support of his contention that he had been depressed at the time that he ceased attending the Certificate III Automotive course.
The Tribunal found that the applicant was in breach of condition 8202(2)(a) of the conditions attaching to his visa as he had not been enrolled in registered course of study since 10 June 2015 and accordingly that a ground for cancellation of the applicant’s visa was made out: see s 116(1)(b).
The Tribunal proceeded to consider if it should exercise its discretion whether to cancel the visa: Reasons, [28]-[58]. The Tribunal identified a series of matters which were considered relevant to the exercise of its discretion including: (a) the purpose of the visa holders travel to and stay in Australia; (b) the extent of the applicant’s compliance with his visa conditions; (c) hardship; (d) circumstances in which cancellation arose; (e) applicant’s behaviour toward the Department; (f) consequences for other visa holders; (g) whether there were any mandatory legal consequences flowing from cancellation; (h) possible breach of international obligations; (i) any other matters.
Having considered each of those matters, the Tribunal exercised its discretion to cancel the applicant’s visa and affirmed the delegate’s decision to do so: Reasons, [58]-[59].
Procedural History
On 5 April 2017, the applicant filed an application for judicial review of the Tribunal’s decision made on 16 March 2017.
The applicant swore an affidavit in support of his application on 5 April 2017 annexing a copy of the Ministers decision but which adduced no further evidence in relation to the application for review.
By a Response filed on 4 May 2017, the Minister opposed all orders sought by the application on the basis that no arguable case for the relief sought was raised.
On 11 October 2017, orders were made, by consent, listing the matter for a Show Cause Hearing and regulating the filing of any amended application, supplementary Court Book and written submissions.
The applicant did not take the opportunity afforded by those orders to file any further material.
Consideration
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).
Rule 44.12(1) confers power on the Court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding or to adjourn the proceeding for a final hearing or otherwise to make final orders in relation to the claims for relief.
The course which the Court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal: MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection [2015] FCCA 1383, [10] (Smith J).
As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: see Spencer v The Commonwealth (2010) 241 CLR 118.
Caution must be exercised when considering whether to grant summary judgment. Such caution is equally appropriate upon the determination of a show cause hearing.
The power to grant summary judgment is expressed in permissive terms; the court may give judgment and order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the Court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. So too, the power to dismiss an application for judicial review on a show cause hearing is engaged only where the applicant has not satisfied the Court that an arguable case for relief has been raised.
In Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122 IPR 190, Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra stated a series of further propositions, including the following:
(a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
(b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
(c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
(d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;
see at [46]-[49]. The propositions stated above in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).
In SZUTB, supra, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application: (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.” That is, the residual discretion remains to be applied.
I apply those principles in determining this show cause application.
The applicant advances four grounds of review.
Ground 1 – procedural fairness
Ground 1 reads:
The Tribunal failed to accord me the procedural fairness and natural justice as described in Migration Law.
The allegation was wholly unparticularised and was liable to being rejected on that account. As the applicant was self-represented before me, I have re-considered the Reasons and the materials comprised in the Court Book.
There is nothing in the record and nothing was said by the applicant in the course of the hearing to support a conclusion that the applicant was denied procedural fairness. Insofar as Ground 1 may be informed by the content of the complaints in Grounds 2, 3 or 4, I have considered each of those Grounds below.
Ground 1 does not raise an arguable ground of review.
Ground 2 – compliance with s 359A
Ground 2 reads:
The Tribunal failed to comply with s 359A of the Migration Act 1958.
Particulars
a. The Tribunal committed jurisdictional error by failing to give in accordance with s 359A of the act, clear particulars of the followings
i. That the reason submitted to meet the Genuine intention criteria by me were disregarded by the Tribunal and not assessed
Where it applies, sub-s 359A(1) of the Act provides that the Tribunal must, amongst other things, give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
I understood the applicant’s complaint to be that the Tribunal ought to have put to him the reason he had not met the criteria for his visa. However, it was not for the Tribunal to consider whether the applicant satisfied those criteria – the issue for consideration by the Tribunal was whether, as a matter of discretion, the visa should be cancelled. Further, on the evidence adduced by the applicant at the hearing, the criteria for his visa could not be satisfied by reason that he was not enrolled in any course by an approved education provider.
Insofar as the applicant’s complaint was grounded upon the information contained in the PRISM’s records, I accept the Minister’s submission that those records were derived from the delegate’s decision which had been provided to the applicant (and were attached to the application for review by the Tribunal), thereby negating the necessity for such information to be provided again by the Tribunal to the applicant: see s 359A(4)(b). As the Reasons disclose, in the course of the hearing the applicant confirmed his enrolment status and the cancellation of his enrolment in each of the courses of study in which he had been enrolled.
I accept the Minister’s submission that the applicant has not identified any information that would engage s 359A(1).
Ground 2 does not raise an arguable ground of review.
Ground 3 – s 360
Ground 3 reads:
The Tribunal has failed to give me an opportunity and to address the issues and grounds upon which the visa was cancelled for breach of condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations).
By s 360 of the Act the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising on the decision under review. As the purpose of s 360 is to provide the applicant with an opportunity to present evidence and arguments, the obligation to invite the applicant to attend must be meaningful in the sense that it must provide the application with a real chance to present their case: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [60]-[61], (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Guder [2018] FCA 626, [39], [42]-[45] (Griffiths J). In the latter case, Griffiths J observed that there may be circumstances in which an applicant has been denied a real and meaningful opportunity to present evidence and arguments.
The applicant was so invited and did attend and was afforded the opportunity to adduce his evidence present such arguments as he chose. By reason that the delegate had decided to cancel the visa for the reasons set out in the decisional record, the applicant was on notice of the issues arising on that decision in the merits review by the Tribunal.
Ground 3 does not raise an arguable ground of review.
Ground 4 – failure to consider evidence
Ground 4 reads:
The Tribunal made a decision disregarding my evidence submitted and assessing the documents and evidence I submitted in paper form and oral submission
As I understood the applicant’s complaint, he appeared to contend that the Tribunal had failed to consider the submission and evidence that he gave to the Tribunal.
Read fairly and as a whole I do not think the Reasons support a conclusion that the Tribunal failed to consider either his submission or the evidence that he gave at the hearing. To the contrary, I am satisfied that the Tribunal had actively engaged with and considered the submissions and evidence which the applicant had relied upon.
Ground 4 does not raise an arguable ground of review.
Conclusion
I was not satisfied that the applicant had raised an arguable case for relief.
Nor was I persuaded that discretionary considerations militated in favour of a conclusion that the show cause application should be adjourned for a final hearing: r 44.12.
For the reasons above, I ordered that the application be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 12 July 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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