Sultanul v Minister for Immigration, Citizenship, Migrant Servies and Multicultural Affairs
[2024] FedCFamC2G 1336
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sultanul v Minister for Immigration, Citizenship, Migrant Servies and Multicultural Affairs [2024] FedCFamC2G 1336
File number: SYG 1967 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 December 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Whether the Tribunal’s findings of a breach of condition 8202 were contrary to s 119 of the Migration Act 1958 (Cth) – Whether there was an obligation to put information to the applicant pursuant to s 359A – whether the Tribunal’s use of the term “fundamental breach” in relation to the student visa was legally unreasonable – no merit – application dismissed. Legislation: Migration Act 1958 (Cth) ss 116, 119, 375A, 359A, 359AA.
Migration Regulations 1999 ( Cth) Sch 8.
Cases cited: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, 266 CLR 250
Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 290
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; 298 FCR 400
Minister for Immigration, Citizenship and Multicultural Affairs v Qazizada [2024] FCA 989
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 26 November 2024 Place: Parramatta Counsel for the Applicant: Mr Young Solicitor for the Applicant: Ms Yousif (Shamser Thapa & Associates) Counsel for the First Respondent: Mr Reilly Solicitor for the First Respondent: Ms Schultz (Mills Oakley) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1967 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AREFIN SULTANUL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the Second Respondent be substituted to ‘Administrative Review Tribunal’.
3.The application is dismissed.
4.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,100.00.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 24 July 2020. The Tribunal affirmed the decision on 16 February 2017 of a delegate of the then Minister for Immigration and Border Protection (“delegate”) to cancel the applicant’s Vocational Education and Training (class TU) (subclass 572) visa (“the visa”).
For the reasons outlined below, the application must be dismissed.
BACKGROUND
The applicant is a male citizen of Bangladesh. He arrived in Australia on 18 September 2011 as the holder of a Student visa (subclass 572).
The applicant was granted the relevant visa on 27 November 2015.
On 1 February 2017 a Notice of Intention to Consider Cancellation (“NOICC”) was sent to the applicant. The NOICC outlined how there appeared to be grounds for the cancellation of the applicant’s visa under s 116(1)(b) due to the breach of the enrolment condition per 8202(2)(a) of the Migration Act 1958 (Cth) (“the Act”). It stated in the particulars section that it appeared the applicant had not been enrolled in a registered course of study since 20 April 2016. The applicant responded on 7 February 2017.
A delegate of the Minister cancelled the applicant’s visa on 16 February 2017.
The applicant sought merits review at the Tribunal for a review of the cancellation decision. On 7 May 2019, the Tribunal affirmed the decision of the delegate.
The applicant then sought judicial review at the then Federal Circuit Court. On 5 September 2019, the Court made orders, by consent, remitting the matter back to the Tribunal for reconsideration.
The applicant subsequently attended two hearings on 11 December 2019 and 16 July 2020. The Tribunal explained to the applicant he was invited to a second hearing to ensure he had a proper opportunity to respond to the information put to him in writing about his education and work history in Australia.
In a letter dated 28 May 2020 the Tribunal wrote to the applicant pursuant to s 359A of the Act. The particulars included an invitation to comment on the validity of a non-disclosure certificate and notification under s 375A and the nature of the information of the certificate relating to the applicant’s employment activities in Australia. They also included information that was found on the applicant’s social media pages. The applicant replied to the invitation on 15 June 2020.
On 24 July 2020, the Tribunal affirmed the decision to cancel the visa.
ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The issue before the Tribunal was whether the applicant breached condition 8202 of Sch 8 of the Migration Regulations 1994 (Cth) (“Regulations”) and if so, whether the visa should be cancelled under s 116 of the Act.
The Tribunal found at [40] that the applicant was, for the period 21 November 2016 to 6 February 2017, being some two months and 16 days, not enrolled in a registered course and thus had not complied with condition 8202(2). The Court notes that this was not the period specified in the particulars of the NOICC, which was from 20 April 2016 to 6 February 2017. The Tribunal accepted at [39] that the period specified within the NOICC ‘appeared to be incorrect’. However, the second period is a portion of the first period.
Having determined there was a breach of condition 8202, the Tribunal then considered the discretionary aspects of the power to cancel the visa in relation to the circumstances of the case, including matters raised by the applicant and the Department’s Procedural Instruction ‘General visa cancellation powers’.
The Tribunal was satisfied at [42] that the applicant’s original intention to travel to Australia was to study. However, the Tribunal was not satisfied at [43] that the applicant had a compelling need to remain in Australia. This factor weighed against him in the Tribunal’s assessment.
The Tribunal considered the extent of compliance with visa conditions and found the applicant’s failure to maintain enrolment and engage in a course of study constituted a ‘fundamental breach’ of the student visa. This weighed against the applicant.
At [45], the Tribunal was not satisfied the applicant would have “no options” unless he obtained a Bachelor’s degree from Australia. Nevertheless, having considered the applicant’s submissions, the Tribunal found the applicant would be unable to continue living, working or studying in Australia if his visa was cancelled and there would be a degree of hardship caused. The Tribunal placed some weight some in favour of the applicant in this regard.
The Tribunal was satisfied at [46] that the applicant could use the qualifications he had received to pursue his aim of working in his family in his home country. For these reasons, it concluded the intended consequences of the legislation did not outweigh the other considerations in the case.
The Tribunal stated the applicant did not provide satisfactory evidence of communications with his education provider at the relevant time, and did not accept at [49] his assertions that he was not informed that his enrolment was cancelled. Some of the claims about the circumstances in which the grounds for cancellation arose were accepted at [50]. However, the Tribunal considered they were not adequate reasons for him to stay in Australia whilst failing to satisfactorily progress in his studies or comply with the visa conditions. Limited weight was placed on the circumstances in which the ground for cancellation occurred.
There was no evidence before the Tribunal to indicate the applicant had not cooperated with the Department. Some weight was placed at [51] in favour of the applicant in this regard.
At [52], it was noted that there was no evidence before the Tribunal that there would be any consequential cancellations under s 140 of the Act.
The Tribunal found at [53] the mandatory legal consequences of cancellation did not outweigh the other considerations in the case.
There was no evidence the cancellation would cause a breach of Australia’s international obligations as noted at [54]. It noted at [55] the visa under review was not a permanent visa which therefore did not factor into the considerations.
The Tribunal did not find it credible and did not accept at [57] that the applicant engaged in work for several organisations that was only voluntary as he claimed, until he was given work rights and was paid. It accepted the applicant faced personal problems, including medical issues suffered by himself and his father, his mother’s death and the breakdown of a relationship. However, it did not accept at [58] these factors account for the applicant’s unsatisfactory academic history in Australia. Having assessed adverse evidence put to the applicant as well as his responses, it considered the applicant involved himself in too many pursuits outside of his studies.
The Tribunal was not satisfied at [59] that the applicant had been truthful about his activities in Australia and did not find it credible that he would engage in so much work on a voluntary basis.
The Tribunal found issues, such as the applicant’s false claim on his Facebook page that he held a ‘BA hons in Media, Film and Television’ from the University of Sydney, to affect his credibility. Overall, this weighed against him in considering whether to exercise the direction to cancel the applicant’s student visa.
The Tribunal concluded at [61] that although there were some aspects that weighed in favour of the applicant, on balance, it was satisfied that most considerations weighed heavily against him. It considered the length of time the applicant had spent in Australia without making satisfactory academic progress as well as having breached visa conditions to be significant. The Tribunal was satisfied that most of the criteria considered weighed in favour of the cancellation of the visa.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in an amended application lodged on 29 October 2024. They are as follows (less particulars):
1.The Second Respondent made jurisdictional error in that it made findings of breach of condition which were contrary to s 119 of the Migration Act and a) outside of the particulars specified in the Notice of Intention to Consider Cancellation (NOICC) of 1 February 2017 and b) a denial of procedural fairness.
2.The Second Respondent made jurisdictional error in erroneously treating its legal and jurisdictional duty as being to determine whether there were grounds to cancel the visa of the applicant.
3.The Second Respondent made jurisdictional error at [44], by basing its discretion on the erroneous principle that failure to maintain enrolment is a fundamental breach of a student visa which weighs against the applicant.
THE APPLICANT’S SUBMISSIONS
The purpose of s 119 is to enable a visa holder an opportunity to either show that the particularised and identified grounds for cancellation do not exist or provide a reason why the visa should not be cancelled. The applicant referred to the NOICC of 1 February 2017 and the Tribunal’s finding at [39]. The effect of the finding was that the applicant had not breached condition 8202 as set out in the NOICC. This was because the particulars stated the applicant had not been enrolled in a course of study since 20 April 2016. The Tribunal found the applicant’s evidence of an enrolment in a Diploma of Business course starting on 9 May 2016 and ending 9 April 2016 did appear in PRISMS records when searching for the applicant’s name in a different order.
The applicant submitted he was not given any notice either by the Minister or Tribunal that the Tribunal would rely upon a different basis or grounds for cancellation. No new notice under s 20 could be given by the Tribunal.
It was not open to the Tribunal, at [40], some three years and five months after the NOICC was issued, and without providing any written notice to the applicant, to find a different ground for cancellation existed. That finding is as follows (citations omitted):
The applicant’s Diploma of Business was cancelled on 21 November 2016. On 6 February 2017 he re-enrolled in a different course, a Diploma of Business Administration. This means the applicant was not enrolled for a total of 2 months 16 days. The enrolment requirement in condition 8202 is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, even to the extent of a temporary gap in enrolment. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
If the Tribunal wanted to rely upon a different ground to the written NOICC, it had to at least advise the applicant of this pursuant to s 359A of the Act. It did not do so. The Tribunal was not entitled as a matter of law or as a matter of procedural fairness to act upon a different basis for cancellation.
The Tribunal also did not provide s 359AA particulars in relation to the cancellation in November 2016.
The applicant submitted a reasonable decision maker would not, in normal circumstances, consider a gap in enrolment between the end of one education year in late November 2016 followed by re-enrolment at the start of the next academic year in early February 2017 would warrant such cancellation.
The statement at [44] that a failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa which weighs against the applicant, in this case, is wrong in principle and law. A failure to maintain enrolment even for a short time might enliven a breach of s 116 of the Act. Such a breach (leaving aside NOICC issues and procedural fairness considerations) enlivens the discretion under s 116 so the Minister may cancel the visa.
They are only conditions, not fundamental conditions. There is no presumption that a breach of condition 8202 “weighs against the applicant because it is a fundamental breach”. The Tribunal’s framing assumed that a breach of certain conditions leads to a presumption that the discretion will be exercised against the visa holder.
The applicant relied on and distinguished the present case from Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 290 (“Kandel”). In the present case, the Tribunal regarded any breach of condition 8202 as a fundamental breach which constitutes an error of law.
THE FIRST RESPONDENT’S SUBMISSIONS
The Tribunal is not restricted to considering the matters specified in the NOICC when deciding whether to cancel a visa under s 116 of the Act. No such limitation exists. On review of the delegate’s decision the Tribunal must answer the same question as the delegate, which is whether the applicant has not complied with a condition of his visa and if so, whether the visa should be cancelled. This follows from ordinary principles of administrative law, as summarised in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, 266 CLR 250 at [51].
There was also no procedural unfairness or breach of s 359A. It is apparent the applicant was well aware of the first Tribunal’s finding that his Diploma of Management course was cancelled on 21 November 2016. His response was to claim he had not been informed of the cancellation, which the Tribunal noted, but rejected at [48] – [49].
The applicant also “gave” this information to the Tribunal within the meaning of s 359A(4)(b) by referring to it in his submissions (CB 264) citing SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [24]-[25]. Even if the Court were of a different view, it would be appropriate to decline relief as the applicant was clearly aware of the information, citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717 at [137]-[146] and Minister for Immigration, Citizenship and Multicultural Affairs v Qazizada [2024] FCA 989 at [26]-[28].
Ground two is unclear and does not appear to be addressed in the applicant’s submissions. This ground fails.
The Minister construes the applicant’s third ground to refer to the Tribunal’s error at [44] by referring to a failure to maintain enrolment and engage in a course of study as a “fundamental breach of a student visa”. The Tribunal is doing no more than noting the obvious importance of a student visa holder actually studying, citing Kandel at [35]. It is not a fair reading applying any legal presumption as claimed. The Tribunal was aware of its discretion and carefully considered the applicant’s claims before affirming the decision (CB 499-504).
CONSIDERATION
Ground One
Ground one is a claim that the Tribunal made breach findings contrary to s 119 of the Act that were outside the particulars specified in the NOICC and that the applicant was denied procedural fairness.
As indicated above, the second Tribunal found that a breach of condition 8202 had occurred, but not for the entire period specified within the NOICC, rather a lesser period of 2 months.
First, the Court is satisfied the applicant was well aware of the particulars of the alleged breach. The first Tribunal had found that the applicant’s Diploma of Management course was cancelled on 21 November 2016. As pointed out by the first respondent, the Court is satisfied that the applicant was well aware of this finding and his response to it was to claim that he had not been informed of the cancellation. The Court is not satisfied that the requirement for the applicant to be notified of this particular matter pursuant to s 359A was at any stage enlivened. The Court accepts the first respondent’s submission that the applicant also “gave” this information to the Tribunal within the meaning of s 359A(4)(b) by referring to it in his submissions. Therefore, no obligation to put this information to the applicant pursuant to s 359A arose.
The second part of this ground of judicial review is the assertion that the Tribunal, when considering a cancellation under s 116 of the Act is limited to the matter specified in the NOICC. First, in the circumstances of this case, given that the period of non-enrolment was encapsulated within the period specified by the NOICC, the Court does not consider that the Tribunal made findings of a breach of the condition which were not contained within the s 119 notice.
The applicant sought to rely on Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218 at [25] – [26] (“Uddin”) where the following was said:
[25]The language of subs 119(1) also discloses that the cancellation of which the subsection speaks is cancellation on a particular ground or grounds, not cancellation on any ground. This conclusion is to be drawn from the requirement of the subsection that the Minister is to notify the visa holder of particulars of the grounds on which the Minister is considering cancelling the visa and of the information (not being non—disclosable information) because of which the grounds appear to exist. A notification of the particulars of one ground, and of the information because of which that ground appears to exist, will not satisfy the requirements of the subsection in respect of another ground on which the Minister may later consider cancelling the visa.
[26] The language of s 119 makes plain, in our view, that a notification given under s 119 must, amongst other things:
(a) notify the holder of the relevant visa that there appears to be grounds for cancelling it;
(b) give the visa holder particulars of those grounds; and
(c) give the visa holder particulars of the information (not being non-disclosable information) because of which the grounds appear to exist.
That is, s 119 draws a distinction between the grounds of cancellation, particulars of grounds of cancellation and particulars of information because of which grounds of cancellation appear to exist. The purpose of the notification to be given as required by the section is that indicated by par 119(1)(b). It is to provide the visa holder with an opportunity to show, if he or she can, that the identified grounds for cancellation do not exist or that there is a reason why the visa should not be cancelled.
In the Court’s view, what occurred in this case is that particulars were given in the NOICC and the applicant was able to show that the full extent of the period specified as non-enrolment was not the case. Thus, no unfairness arose as the period of non-enrolment found by the Tribunal to give rise to the ground of cancellation was encapsulated within the period specified in the NOICC. In these circumstances, there was no breach of the requirements set out above in Uddin. Ground one has no merit.
Ground Two
Ground two claims the Tribunal made jurisdictional error in erroneously treating its legal and jurisdictional duty as being to determine whether there were grounds to cancel the visa of the applicant. As pointed out by Counsel for the first respondent, this ground is not addressed in the applicant’s submissions. In conducting its review, the Tribunal sat in the shoes of the delegate as the original decision maker. It was under requirement to determine first, whether or not the grounds for cancellation in fact existed, and then second, if those grounds existed, whether or not in exercising its discretion, the applicant’s visa should in fact be cancelled. The Court is unable to ascertain any jurisdictional error in ground two and it must fail.
Ground Three
Ground three is a claim the Tribunal noted jurisdictional error by basing its discretion on the erroneous principle that a failure to maintain enrolment is a fundamental breach of a student visa.
At [40] the Tribunal noted that (citations omitted):
… The enrolment requirement in condition 8202 is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, even to the extent of a temporary gap in enrolment.
It was only later, when considering the discretion to cancel the applicant’s visa at [44] that the Tribunal made the following comment:
… However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and this weighs against the applicant in this case.
The applicant contends that to frame the matter in this way is to assume that a breach of certain conditions leads to a presumption that the discretion will be exercised against the visa holder. In this case however, the use of the term “fundamental breach” occurred only in relation to a consideration of one of the various considerations required to be considered as to whether of the visa should in fact be cancelled. The Court does not accept that the use of this term resulted in an unfair consideration of each of the considerations as to whether or not the applicant’s visa should in fact be cancelled. Each was considered and given a weighting and arriving at the overall conclusion that in fact the applicant’s visa should be cancelled.
The Court does not accept the applicant’s submission that the use of the term “fundamental breach,” in circumstances where the applicant was found to have not been enrolled for a period of just under three months, at the end of the academic year, is legally unreasonable. The Court does not accept the submission that this matter is to be distinguished from the reasoning in Kandel.
The applicant in this matter, like the applicant in Kandel was not enrolled for a period of time. In this case, it was for a much shorter time. The Court is not satisfied that the use of the term “fundamental breach” resulted in any unfairness to the applicant or that by using that term, all other considerations as to whether not the applicant should retain his visa were overborne. The Court does not accept that by using that term, any legal presumption for the cancellation of the visa arose.
A fair reading of the entirety of the Tribunal’s reasons indicates that it considered all the various factors that arose in relation to the applicant in an orthodox fashion but ultimately came to the conclusion that the reasons not to cancel the applicant’s visa were outweighed by the considerations to cancel the visa. Indeed, at the concluding paragraph at [61] the Tribunal specifically noted that there were some aspects in the applicant’s case that were assessed in his favour. The matters which weighed heavily against him were the length of time that he spent in Australia without making satisfactory academic progress as well as having breached the condition that he remained enrolled.
There is nothing irrational, illogical or legally unreasonable in the ultimate conclusion arrived at by the Tribunal. Ground three has no merit.
DETERMINATION
In these circumstances, the application must be dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 5 December 2024
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