SUCHDEVA v Minister for Immigration
[2018] FCCA 2404
•9 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUCHDEVA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2404 |
| Catchwords: MIGRATION – Student (temporary) (class TU) higher education sector (subclass 573) visa – applicant failed to comply with a visa condition – applicant failed to demonstrate jurisdictional error – grounds not particularised – application dismissed. |
| Legislation: Migration Act 1958, s.116 Migration Regulations 1994, cl.573.231, condition 8516 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 AQN15 v Minister for Immigration & Anor [2016] FCA 571 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australian Broadcasting Corporation v Bond (1990) 170 CLR 321 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 Chan Yee Kin v Minister for Immigration and Ethnic Affairs(1989) 169 CLR 379 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZARG v Minister for Immigration and Border Protection [2018] FCA 642 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | GOURAV SUCHDEVA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 221 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 9 August 2018 |
| Date of Last Submission: | 9 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 9 August 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 8 February 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 221 of 2016
| GOURAV SUCHDEVA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
On 9 February 2015, pursuant to s 116 of the Migration Act (“Act”), the minister’s delegate decided to cancel the applicant’s student (temporary) (class TU) higher education sector (subclass 573) visa. The delegate took the view that the applicant no longer met the criteria relevant to cl 573.231 or cl 573.223(1A) and that the applicant no longer complied with condition 8516. The delegate had regard to the fact that the applicant had previously been enrolled in a higher degree course provided with the subclass 573 visa but that he had left his course provider then later enrolled in a vocational course in hospitality.
The applicant sought a merits review before the Administrative Appeals Tribunal. He was invited to attend before the tribunal on 19 January 2016 which he did, assisted by an interpreter as well as his migration agent.
On 20 January 2016 the tribunal decided to affirm the delegate’s decision.
The applicant thereafter applied to this court for judicial review of the tribunal’s decision. His application was filed on 8 February 2016, not 6 July 2016 as the minister asserted in submissions at paragraph 22. The applicant’s grounds were discursive. None had particulars. It is useful at this point to recite them in full (with errors in the original). They were as follows –
1)I advise that I act on my behalf of myself. PLEASE make a favourable decision on Review of Administrative APPEAL Tribunal in regards of cancellation of my student VISA 573 VISA on 23 Jan 2014 I meet all then criteria for the student VISA after they grant the VISA for my higher education sector to complete my VISA. My main concern of my VISA I breaches the 8516 condition which was not in my knowledge when I know about my VISA condition Breach I straight away apply for the Bachelor COE and GET enrolment in Bachelor degree. AFTER that I am comply with all the condition of 573 VISA.
I make a humble request to the court please make a favourable decision on my case now my future is in your hands.
Case offices did not concentrate on the medical condition of Gourav SUCHDEVA as me. I have in depression when I got NOICC from DIAC 18 Nov 2014 I got an accident from that I have got two major surgerys in Alfred hospital.
2)When its my knowledge condition for 8516 Breach, I take action as soon as possible. Did not concentrate on this.
3)Financial Hardship. Spend $40000 in australia for study did not get any qualification waste of lots of time and no future in home country without any Qualification.
4)my active education provider gives me enrolment in some course but the officer asked me about this they did not consider on this as well.
5)Did not consider on the future of my life and my parents who spend this money for my education.
It is necessary to go to those grounds in detail. However, for the purposes of the narrative, it is useful to address the factual aspects of this case.
The applicant was granted the relevant visa on 23 January 2014.
By letter dated 18 November 2014 sent to the applicant’s postal address the department provided its notice of intention to consider cancellation of his visa under s 116 of the Act. On 2 December 2014 the applicant provided a letter purporting to explain his circumstances. Relevantly paraphrased by the minister,[1] the applicant said as follows –
[1] See first respondent’s submissions (filed 26 July 2018) 4-5 [13]-[14]
13)…
(a)he started facing difficulties at Holmesglen Institute during his first semester of study in Australia, “[a]s an international student who had newly arrived in Australia to study, [he] got lost in the crowd of students studying the same course” and “[he] had not developed a very good understanding of English spoken language in Australia at that point in time [so] it was difficult for [him] to follow the lectures” (CB15);
(b)after he was unable to pass the Certificate III in information, digital media and technology, he “was extremely stressed and [he] was completely uncertain about [his] future” and he “felt that [he] had disappointed [his] parents and [he] went into extreme depression” (CB15);
(c)he was advised by “an agent” and other unnamed people to obtain a release from his education providers in June 2014 in order to “go for” a Certificate III and Certificate IV in Commercial Cookery and a Diploma of Hospitality which commenced in August 2014 (CB16);
(d)he “now realise (sic) that [he has] been wrong advices from time to time that has lead [him]to breach the student visa condition… without [his] knowledge (CB16);
(e)he has applied for a higher education course, being a Diploma of Management which would lead to a Bachelor of Business (Management) course at CIC, and has received a letter of offer for that course and is “in the process of securing a place” (CB16);
(f)he has applied for this course in order to comply with the conditions for the visa (CB16);
(g)if the Visa is cancelled, then he and his family “will suffer a huge setback as they have spent much money on sending [him] to Australia for [his] studies”(CB16); and;
(h)he sincerely requests that the Department does not cancel the Visa as he has taken adequate steps to secure a place in the Bachelor of Business course and his family will face extreme hardship if the Visa is cancelled (CB16).
14)The COEs showed that the applicant was offered a place in a Diploma of Management for the period 9 February 2015 until 2 August 2015 (CB18), as well as a place in a Bachelor of Business (Management) degree for the period 10 August 2015 until 30 July 2017 (CB17).
On the merits review, the tribunal made a collection of factual findings that led to its decision to affirm the delegate’s decision. Relevantly, paraphrased by the minister,[2] they may be encapsulated in the following manner –
[2] Ibid 6-7 [21]
21.… In its decision, the Tribunal:
(a)set out the background to the review: [1] - [5];
(b)summarised the law, noting that the issue before it was whether the applicant breached condition 8516: [6] -[7];
(c)summarised the factual background of the applicant’s study in Australia and noted that it was satisfied that the ground for cancellation in s 116(1)(b) of the Act existed: [8] - [11];
(d)considered whether or not it should exercise its discretion to cancel the Visa, and in doing so, had regard to the relevant factors including, but not limited to, the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’: [12];
(e)summarised the evidence given both in writing and orally by the applicant in the proceeding, including that the “Letter of Explanation” was not prepared by the applicant and the applicant did not want to rely on it, and therefore the Tribunal placed no weight on that document: [13] - [23];
(f)noted that it had considered the applicant’s circumstances, in particular that the applicant’s study history and future employment prospects had altered significantly a number of times in a short period of time and his explanation for such changes was unsatisfactory, which presented a situation in which the Tribunal was concerned showed that the applicant was not a genuine student at the higher degree level: [24] - [27];
(g)considered that the applicant’s enrolment in a Diploma of Management was conducted for the purposes of meeting the conditions of the Visa and therefore, found that the applicant did not have any genuine intention to study that course: [28]
(h)considered that the applicant’s personal and family circumstances and did not accept that the money paid by the applicant “to keep him in Australia during this period waiting for the review, or the money spent on his living expenses while living in Australia and studying the disparate courses he has chosen provides a significant reason not to cancel the visa”: [29] - [31];
(i)noted that the applicant had not provided any other compelling or other reason why the Visa should not be cancelled: [33]; and
(j)affirmed the delegate’s decision to cancel the Visa: [34]-[35].
In this court
Before turning to the grounds review, it is necessary to make some general observations relevant to this case.
First, on the hearing of an application for a judicial review it is not permissible for me to embark on a merits review. That much has been held in such cases as Attorney-General (NSW) v Quin,[3] Australian Broadcasting Corporation v Bond,[4] Chan Yee Kin v Minister for Immigration and Ethnic Affairs,[5] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[6]
[3] (1990) 170 CLR 1
[4] (1990) 170 CLR 321
[5] (1989) 169 CLR 379
[6] (1996) 185 CLR 259
Next, when an applicant does not provide particulars of his grounds of review, that failure alone entitles the court to dismiss the application for review. Several cases of undeniable correctness in the Federal Court of Australia have so held. They are AQN15 v Minister for Immigration & Anor,[7] BHK15 v Minister for Immigration and Border Protection,[8] WZATH v Minister for Immigration and Border Protection,[9] WZAVW v Minister for Immigration and Border Protection,[10] and MZARG v Minister for Immigration and Border Protection,[11] a decision of McKerracher J handed down last week.
[7] [2016] FCA 571
[8] [2016] FCA 569
[9] [2014] FCA 969
[10] [2016] FCA 760
[11] [2018] FCA 642
In this case, no particulars were supplied.
Next, in an application for judicial review on the basis that the tribunal fell into jurisdictional error, ordinarily an applicant points to one of the orthodox grounds demonstrating the existence of the jurisdictional error as espoused in such cases of undeniable veneration such as Craig v State of South Australia[12] or Minister for Immigration and Multicultural Affairs v Yusuf.[13] Ordinarily, although not exhaustively, judicial error is shown where a tribunal –
a)identifies the wrong issue;
b)asks itself a wrong question;
c)ignores relevant information;
d)relies on irrelevant information; or
e)in some cases makes an erroneous finding or reaches a mistaken conclusion.
[12] (1995) 184 CLR 163
[13] (2001) 206 CLR 323
That list is not exhaustive as the ambit of judicial error is neither necessary nor possible to rigidly define, a point made in Kirk & Anor v Industrial Court of New South Wales & Anor.[14]
[14] (2010) 239 CLR 531
Further, the tribunal’s reasons should not be scrutinised minutely with an eye finely attuned to the existence of jurisdictional error.
Let me now turn to the grounds.
Ground one
Under this ground the applicant raised a variety of issues from his alleged ill health to the assertion that he did not know that he committed any breaches relevant to the grant or the continuation of the visa.
It fell to the applicant to put forward medical evidence or other evidence he wanted the tribunal to consider. The Full Court decision in Minister for Immigration and Multicultural Affairs v Lay Lat[15] makes good that proposition. Further, the applicant has the onus for establishing jurisdictional error as the High Court held in Minister for Immigration and Citizenship v SZGUR & Anor.[16] The minister is not required to make out the applicant’s case as was held in Abebe v Commonwealth of Australia.[17] In this case I was not persuaded to the requisite degree, let alone at all, that the contentions addressed in ground one were made out.
[15] (2006) 151 FCR 214
[16] (2011) 241 CLR 594
[17] (1999) 197 CLR 510
In my opinion, no jurisdictional error was demonstrated by ground one. It failed.
Ground two
This ground did not point to any proposition of fact or law enlivening the possibility of the existence of jurisdictional error within the conceptions of Craig v State of South Australia[18] or Minister for Immigration and Multicultural Affairs v Yusuf.[19] This ground failed.
[18] (1995) 184 CLR 163
[19] (2001) 206 CLR 323
Ground three
The applicant asserted financial hardship. In reality he complained that, after spending many thousands of dollars, he obtained no qualification. That did not amount to jurisdictional error. If anything, the fault was his. This ground failed.
Ground four
He asserted that a particular matter was not considered. The particular point that he wished to identify and which he said founded his contentions for the existence of jurisdictional error was not well articulated so it was impossible to say, in the absence of particulars, on what facts he relied. On 6 July 2016, the applicant was ordered to provide an amended application with particulars. He failed to provide both. That was a matter within his control. His failure was a matter relevant to this application. In my view, ground four failed.
Ground five
Under this ground, the applicant invoked some plea that his parents had spent money for his education. Whether or not that is true is a matter beyond something that falls for my determination. But the applicant failed to comply with his visa. The visa was properly cancelled. The tribunal made no error in cancelling his visa. Whether the applicant expended or whether the applicant’s parents expended a large sum of money for his education is something that the applicant must take up with his parents. The tribunal correctly considered the matters that fell for its determination. It did not fall into jurisdictional error under ground five. This ground failed.
Conclusion
All grounds of review failed. I dismiss this proceeding and I order the applicant to pay the first respondent’s costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 30 August 2018
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