Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1091
•28 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091
File number: MLG 3744 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 28 October 2024 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the applicant could satisfy requirements in condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) – consideration of whether the Tribunal erred in its decision to proceed under s 362B(1A)(a) of the Migration Act 1958 (Cth) –consideration of DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 – no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 116, 189, 198, 357A, 359A, 360, 362B, 397A, 426A
Migration Regulations 1994 (Cth) Schedule 8, cl 8202Cases cited: DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submissions: 21 October 2024 Date of hearing: 21 October 2024 Place: Melbourne Applicant: The applicant represented himself Solicitor advocate for the First Respondent: Mr J Mintz Solicitor for the First Respondent: Clayton Utz The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3744 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAVTEJBIR SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
28 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for judicial review filed on 10 December 2018 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $7,467.
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 SYMONS:
INTRODUCTION
By an application filed on 10 December 2018, the applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 20 November 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to cancel the applicant’s Student (Temporary) (class TU) (subclass 572) visa (visa) under s 116(1)(b) of the Migration Act 1958 (Cth) (Act). The Minister opposes the application. The Tribunal entered a submitting appearance, save as to costs, and has not participated in the proceeding
BACKGROUND
The applicant is a citizen of India. He arrived in Australia in September 2015 on the visa.
Pursuant to condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) the applicant was required, including at the time of decision, to be enrolled in a registered course to satisfy the requirements of the visa.
On 24 January 2017, Danford College notified the then Department of Immigration and Border Protection (Department) that the applicant had not completed his first course, had failed to re-enrol and his Confirmation of Enrolment was cancelled on 23 March 2016 for the reason of non-commencement of studies (CB 3).
According to the Provider Registration and International Student Management System (PRISMS), the applicant had enrolled in a Diploma of Human Resources Management on 14 March 2016, and subsequently an Advanced Diploma of Management on 3 October 2016, both of which were cancelled by the institution for the reason of non-commencement of studies (CB 5).
On 1 February 2017, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of the visa under s 116(1)(b) of the Act (CB 6-12).
On 7 February 2017, the applicant sent an email to the Department requesting an extension of one week to reply to the NOICC. On 8 February 2017, the request was granted so that the applicant’s written response was due on 15 February 2017 (CB 16). The applicant did not provide a response to the NOICC within the enlarged timeframe, or at all.
On 16 February 2017, a delegate of the Minister sent the applicant a Notification of Cancellation of the visa under s 116 of the Act (CB 20-28). In assessing the relevant factors the delegate noted, among other things, that information before the Department indicated that the applicant had not been enrolled in a registered course of study since 24 March 2016 and that he remained in breach of condition 8202. The delegate considered that the extent of the non-compliance was significant (CB 26) and that the applicant had been given an adequate amount of time to rectify his enrolment status (CB 27).
On 24 February 2017, the applicant applied to the Tribunal for review of the delegate’s cancellation decision (CB 30-31).
On 27 February 2017, the Tribunal acknowledged the applicant’s application for review (CB 45-46).
On 30 October 2018, the applicant was invited by the Tribunal to attend a hearing on 20 November 2018 (CB 54-55). The Tribunal sent the applicant text message reminders to the mobile phone number recorded in his application for review five and one business days before the scheduled hearing. The delivery of both text messages failed (CB 65).
On 20 November 2018, the Tribunal constituted for a hearing, but the applicant did not appear (CB 63-64).
DECISION OF THE TRIBUNAL
On 20 November 2018, the Tribunal made a decision to affirm the decision of the delegate to cancel the applicant’s visa and produced a set of written reasons (Reasons) (CB 67-75).
The Tribunal identified the issue in the case as whether the ground for cancellation identified by the delegate (breach of condition 8202) had been made out and if so, whether the visa should be cancelled (Reasons, [3]).
The Tribunal noted that that the applicant had been issued with a NOICC but did not provide a response (Reasons, [4]). The Tribunal noted that the applicant had been invited to attend a hearing before the Tribunal on this day and the invitation advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice (Reasons, [6]).
The Tribunal recorded that no response to the hearing invitation had been received and the applicant did not appear before the Tribunal on the hearing day and at the scheduled time and place (Reasons, [7]).
The Tribunal found, having reviewed the Tribunal file, that the applicant had been properly invited to a hearing in accordance with s 379A(5), the invitation had not been “returned to sender”, and that separate SMS reminders had also been sent to the applicant about the hearing. The Tribunal decided, in these circumstances and pursuant to s 362B of the Act, to determine the review without taking any further action to enable the applicant to appear before it (Reasons, [8]).
The Tribunal identified the requirements of condition 8202 and found, based on the evidence in the PRISMS that the applicant had not been enrolled in a registered course of study since 24 March 2016. The Tribunal was not satisfied that the applicant met condition 8202(2)(b) and noted further that condition 8202(2)(a) required the visa holder to be enrolled in a registered course. The Tribunal found that the applicant ceased to be enrolled in a registered course and had breached condition 8202 of his visa (Reasons, [11], [14]-[15]).
The Tribunal acknowledged that it retained a discretion as to whether it would, despite the non-compliance, cancel the visa. In this context, the Tribunal noted that there were no matters specified in the Act or Regulations that it was required to consider but that in addition to the evidence before it, the Tribunal had considered the government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) (Reasons, [16]-[17]).
The Tribunal noted that the purpose of a student visa was to allow for travel to and stay in Australia, for the purpose of study. The Tribunal found that the applicant’s lack of enrolment was an indication that the applicant was not pursuing the purpose for his travel to Australia and the period of non-enrolment (10 months at the time of the delegate’s decision) meant that the breach was significant (Reasons, [18]-[19]).
The Tribunal was not satisfied that the breach occurred in circumstances beyond the applicant’s control or that there were extenuating or compassionate circumstances that applied in the applicant’s case (Reasons, [20]).
The Tribunal acknowledged that the applicant might be subject to some financial difficulty if the visa was cancelled and, as an unlawful non-citizen, be liable to detention under s 189 and removal under s 198 of the Act. The applicant would also have limited options to apply for further visas in Australia. These matters did not satisfy the Tribunal that it should exercise the discretion not to cancel the visa (Reasons, [21]).
The Tribunal noted that there was no evidence that any family members in Australia would be negatively impacted by the applicant’s visa and that nothing adverse was known about the applicant’s past and present behaviour towards the Department (Reasons, [23]). The Tribunal was not persuaded that the circumstances of the applicant’s case were such that would engage Australia’s international obligations and there was no evidence of children (or other family members) in Australia whose interests would be affected by the cancellation. There was nothing to suggest that family violence was a relevant factor (Reasons, [24]).
Having considered the circumstances as whole, including the lack of evidence from the applicant of current or future study plans, the Tribunal was satisfied that the visa should be cancelled and affirmed the cancellation decision (Reasons, [25]-[27]).
APPLICATION FOR JUDICIAL REVIEW
On 10 December 2018, the applicant made an application to this Court for judicial review of the Tribunal’s decision.
On 27 October 2020, a Registrar made procedural orders including that the applicant file and serve at least 28 days before the final hearing, any amended application with proper particulars of the grounds of the application, any supplementary court book, and written submissions. The applicant did not file any of these documents. The Minister filed written submissions on 7 October 2024.
The matter came before me for final hearing on 21 October 2024. On that occasion, the applicant represented himself and was assisted by an interpreter in the Punjabi and English languages. The Minister was represented by solicitor advocate, Mr Mintz.
Grounds of Review
The application for review records the following matters under “grounds of application”:
a) The Department made a procedural error by not correctly assessing information relevant to the applicant’s particular circumstances.
Particulars:
The department of immigration and border protection failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa condition as not considered.
b) The applicants were not afforded natural justice.
Particulars:
I believe that I wasn’t provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs did not provide the fair decision which clearly depicts an error.
c) Tribunal misconstrued condition 8202 of Schedule 8 to the Migration regulations 1994. According to tribunal, the Tribunal cannot be satisfied that the applicant will comply with any visa conditions which attach to a visa, should it be granted in future.
Particular:
The evidence by the tribunal that compelled them to make this decision is void and without base and facts. No evidence was provided why tribunal came to this conclusion
d) Tribunal considered my circumstances in Australia and concluded that I don’t satisfy the criteria to grant of student visa without giving time and taking any additional evidences.
e) The tribunal member refused my case as according to him I don’t meet the requirements of condition 8202(2)(a). The member did not pay heed towards my case and interpret this clause according to his own understanding.
f) AAT rather than assessing my current criteria and my situation, affirmed the decision based on the facts presented by Department of Home Affairs.
g) Member failed to consider that the Department of Immigration and Border Protection did not accord to the applicant procedural fairness and natural justice.
h) Member erred in dismissing the applicant’s application without providing extra time or requesting further documents and without any basis in law and fact
i) Member failed to provide the proper decisions and made a jurisdiction error and hence my matter must be looked after again and proper detailed decision must be provided
j) The applicant’s application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again
k) The Member erred in dismissing the applicant’s review application by relying on hearsay evidence obtained by department of immigration which was not tested and put to the applicant.
l) Substantial justice was not provided and that’s the reason I wasn’t to apply in Federal Circuit Court of Australia.
The applicant’s submissions
At hearing, given the reluctance of the applicant to speak voluntarily to the grounds of review, I instead invited him to respond to the following matters which emerged from those described above.
First, that the Tribunal did not correctly assess the information relevant to the applicant’s circumstances, the applicant told the Court that after his visa had been cancelled, he had not been given enough time to apply for another visa and that he should have been warned before the visa was cancelled.
Second, as to whether the applicant had been given a fair opportunity to provide verbal evidence to the Tribunal, the applicant told the Court that he had not been given any work or study rights after the cancellation of his visa and that as a result, he had been required to borrow money to survive.
Third, when asked how the Tribunal had misconstrued condition 8202 the applicant said that the Tribunal did not give him anything and that he should have been given something.
Fourth, when asked how the Tribunal had erred by dismissing his application without providing extra time or requesting further documents, the applicant said that if he had been given extra time, he could have obtained another student visa.
Fifth, as to the contention that the Tribunal had erred in dismissing his application by relying on hearsay evidence obtained by the Department, which was not tested and put to him, the applicant told the Court that he agreed with this statement but did not further elaborate.
When asked if there was anything else he wished to say about either the decision or process of the Tribunal, the applicant repeated the submission that he was not given enough time to apply for “anything else”.
The Minister’s submissions
The Minister submitted that there was a proper basis for the Tribunal’s substantive decision concerning the application of condition 8202 and that the Tribunal had properly considered all relevant considerations in the exercise of its discretion. This included the matters in the PAM3 guidelines insofar as they were relevant to its assessment.
Insofar as the applicant’s grounds of review complained of a denial of natural justice the Minister submitted that the starting point for considering the nature and the extent of the Tribunal’s procedural fairness obligations was s 357A of the Act, which states that Division 5, Part 5 of the Act, is taken to be an “exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. This necessarily directs attention to the question of whether the Tribunal discharged its hearing and notice obligations.
The Minister submitted that the applicant had been properly invited to a hearing pursuant to ss 360 and 360A of the Act. The hearing invitation had been sent correctly to the applicant’s email address (ss 379A(5)(b) and (d)) and contained a statement of the effect of s 362B of the Act (s 360A(5)).
The Minister submitted that in circumstances where the dispositive evidence taken from PRISMS had been provided by the applicant to the Tribunal in the delegate’s decision, the Tribunal was not required to put that information to the applicant for comment (s 359A(4)(b)).
Consideration of matters raised by the applicant
Although the principal concern raised by the applicant during hearing was that he was denied the opportunity to apply for another visa and that the cancellation of his visa had created financial hardship for him, I have nonetheless considered whether there is merit in any of the matters raised in his written grounds of review.
The applicant’s complaints fall broadly into one of three categories. The first, that the Tribunal denied the applicant procedural fairness. The second, that the Tribunal failed to consider the applicant’s circumstances in affirming the decision under review. The third, that the Tribunal misapplied condition 8202.
I am satisfied that the Tribunal complied with its obligations of procedural fairness in this case when it invited the applicant to a hearing and did so consistently with the suite of provisions that dictate how such an invitation should be sent and what information it should communicate. The invitation was sent to the email address recorded by the applicant in his application for review to the Tribunal (CB 31 and CB 54) and the hearing reminders, although they failed to send, were directed to the mobile phone number identified by the applicant in his review application (CB 31 and CB 65).
The information that was dispositive of the Tribunal’s decision comprised the information derived from PRISMS, which the Minister notes correctly was also referred to in the decision of the delegate. The Tribunal was not obliged to bring the existence of this information to the attention of the applicant or to identify its significance. The Tribunal decided to exercise its discretion to cancel the applicant’s visa having regard to the purpose for which a student visa is granted and the Tribunal’s appraisal of the condition breach as “serious”. Neither of these matters engaged obligations under s 359A of the Act as they were of general application and/or involved the Tribunal’s subjective appraisal of information before it.
I am satisfied that the Tribunal considered information bearing on the applicant’s circumstances (limited as it was) both in finding that condition 8202 had been breached and in considering matters that informed the exercise of its residual discretion. The Tribunal expressly considered the impact of a cancellation decision on the applicant and acknowledged the potential for financial hardship, as well as consequences flowing from the applicant’s status as an unlawful non-citizen. The brevity of the consideration was a product of the failure of the applicant to put any material before either the delegate or the Tribunal.
I am further satisfied that the Tribunal did not misapprehend or misapply condition 8202. The Tribunal correctly recorded the requirements of conditions 8202(2) and 8202(3)(a) and applied these requirements to the objective and uncontroverted evidence before it that the applicant had not been enrolled in a registered course of study since 24 March 2016. Given this information, the Tribunal was bound to find that the applicant was unable to satisfy condition 8202(2)(a) (the holder [of a student visa] is enrolled in a registered course).
I am satisfied in these circumstances that no jurisdictional error arises out of the matters raised directly, or inferentially, by the applicant.
Consideration of whether the Tribunal erred in its decision to proceed under s 362B(1A)(a) of the Act
As model litigant, and in circumstances where the applicant’s grounds included that the Tribunal had dismissed his application without providing extra time or requesting further documents, the Minister brought to the attention of the Court the relatively recent decision of DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975. In DNK17, the appeal judge (Horan J) had been required to determine whether it had been legally unreasonable for the Tribunal to make a decision on the review under s 426A(1A)(a) of the Act, rather than dismissing the application under s 426(1A)(b) of the Act, which would have preserved for the appellant a right of reinstatement. His Honour decided that it had been unreasonable to proceed under the former power and to fail to explain why it had chosen to do so in preference to the other (less definitive) option.
The Minister identified the significance of this decision to the present application as beginning and ending with the fact that both DNK17 and this case concerned the exercise of the power to make a decision on the review without taking any further action to allow or enable the applicant to appear before it; s 426A(1A)(a) being the analogue to s 362B(1A)(a), which the Tribunal applied in this case. Both provisions are engaged in circumstances where a review applicant fails to appear at a scheduled (and properly notified) hearing.
The Minister submitted that in DNK17, the Federal Court in deciding the matter favourably to the appellant had considered it significant that although the appellant had ultimately failed to appear at a scheduled hearing, he had made two requests for an adjournment, both of which had been granted and a third request that was denied and notified on the morning of the adjourned hearing. The Minister submitted that it was of further significance that the matter under consideration in DNK17 involved an application for a protection visa which, as the appellant had argued on the appeal, should inform the requirements of legal reasonableness because of the “seriousness of the possible consequences of refusal” (DNK17 at [78]).
The Minister submitted that despite the outcome in DNK17, the case did not stand for the principle that it will always be unreasonable for a decision-maker exercising powers under Part 7 or Part 5 of the Act, to make a decision on the review in circumstances where a review applicant fails to appear at a scheduled hearing.
It is clear from DNK17 that this last submission is correct. Despite finding that the Tribunal had acted unreasonably in the exercise of its discretion to proceed under s 426A(1A)(a), Horan J acknowledged that it remained within the area of the Tribunal’s decisional freedom to consider which of the available options is appropriate to the particular circumstances of each case, provided that the decision made has an evident and intelligible justification (DNK17 at [99]). In assessing the quality of the decision, the focus remains squarely on the reasons in fact given.
The reasons given by the Tribunal in this case were directed at the steps taken to invite the applicant to a hearing and the advice given that failure to appear might result in a decision without further notice. The Tribunal was satisfied that the applicant had been properly invited to the hearing, that the invitation had not been returned, that the applicant had not responded to the hearing invitation and had then not appeared at the hearing. In the circumstances of this case the reasoning, while sparse, provided an evident and intelligible justification for the decision to proceed under s 362B(1A)(a), rather than the potentially more beneficial, s 362B(1A)(b). Put simply, the narrative that underscored the Tribunal’s approach was that the applicant having notice of the hearing, having been advised of the consequences of a failure to appear, and having failed to appear or to respond to the hearing invitation, was unlikely to take up any further opportunity to engage with the Tribunal or the review process. This narrative provided a rational justification for the decision of the Tribunal to exercise the power to decide the review under s 362B(1A)(a) as well as its decision to decline to exercise the dismissal power pursuant to s 362B(1A)(b).
While recognising the limits of comparative exercises when it comes to assessment of legal unreasonableness (or for that matter, any category of jurisdictional error), it seems to me that the present case is more analogous to that considered by the High Court in Minister for Immigration and Border Protection vSZVFW (2018) 264 CLR 541. The exercise of power in that case “was explained and justified by the history of non-responsiveness on the part of the applicants, from which it was open to infer that any attempt to contact them or to reschedule the hearing was likely to have been futile” (DNK17 at [74] with reference to SZVFW at [2], [14], [70], [78], [123], [140]-[141]).
In all of these circumstances I find that the decision by the Tribunal to exercise the power under s 362B(1A)(a) of the Act was not legally unreasonable.
ORDERS
In circumstances where I have not identified jurisdictional error in the decision of the Tribunal, I will order that the application dated 10 December 2018 be dismissed and that the applicant pay the Minister’s costs fixed in the amount of $7,467.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 28 October 2024
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