Thakore v Minister for Immigration

[2014] FCCA 2792

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAKORE v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2792

Catchwords:
MIGRATION – Review by Migration Review Tribunal (Tribunal) of decision to cancel visa – whether the Tribunal considered the applicant’s evidence – whether the Tribunal acted unreasonably in refusing to grant the applicant a further hearing where the applicant did not attend a hearing appointed by the Tribunal without giving any reasons for his failing to attend that hearing – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.116, 116(1)(b), 116(2), 353(1), 362B, 363(1)(b),

368(1)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202, 8202(2)(a)

Dunsmiur v New Brunswick [2008] 1 SCR 190
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: PREMAL THAKORE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2820 of 2013

Judgment of: Judge Manousaridis

Hearing date: 22 May 2014

Delivered at: Sydney

Delivered on: 28 November 2014

REPRESENTATION

Applicant in person.

Solicitors for the Respondents: Mr R. Baird of
Clayton Utz Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2820 of 2013

PREMAL THAKORE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for an order to quash the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) to cancel a visa held by the applicant.

Background

1. The applicant was the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (Visa). The Visa was subject to condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) which required the applicant be enrolled in a registered course.

2. The applicant had enrolled in a Bachelor of Business course with the Australian Institute of Higher Education Pty Ltd. The commencement and end dates for that course were 28 November 2011 and 24 May 2013 respectively. On 16 May 2012 the education provider cancelled the applicant’s enrolment because the applicant failed to pay the required fees.[1] That led to a delegate of the Minister cancelling the Visa pursuant to s.116 of the Migration Act 1958 (Cth) (Act).

   [1] CB25

3. Subsection 116(1)(b) of the Act provides that the Minister may cancel a visa if he or she is satisfied the holder of the visa has not complied with a condition of the visa. Subsection 116(2) provides that the Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled. It has not been submitted by the applicant or by the Minister that circumstances for not cancelling a visa have been prescribed by regulation under s.116(2) of the Act.

4. On 13 December 2012 the applicant applied to the Tribunal for a review of the delegate’s decision. By letter dated 12 September 2013, the Tribunal invited the applicant to appear before the Tribunal at 2.30pm on 14 October 2013 to give evidence and present arguments relating to the issues arising in his case. The applicant, through his agent, responded to the letter by completing and forwarding to the Tribunal a “Response to Hearing Invitation” which stated that both the applicant and his agent would be attending the hearing. Neither the applicant nor his agent, however, appeared before the Tribunal.

5. At 21:16 on 14 October 2013, the applicant sent by fax to the Tribunal a letter attaching “my submissions” with a request that the Tribunal “consider the same”.[2] The applicant also stated:

   As I could not attend the hearing today I request you to provide me an opportunity to attend the hearing. I am prepared to attend on a short notice or prepared for a telephone interview.

   [2] CB86

6. With the letter, the applicant faxed a statutory declaration. This, it appears, are the submissions the applicant stated were enclosed with his letter. In his statutory declaration the applicant said that on 15 May 2012 his mother was diagnosed “with a severe medical condition on account of diabetics which will result in blindness in due course”.[3] He said that came as a shock to him resulting in his being “mentally paralysed for quiet [sic] some”.[4] The applicant said he gradually “got depressed and started to keep aloof and did not know” what he should do or “how to react to such situation”.[5] The applicant attached “medical evidence of the treatment to both my mother’s eyes”.[6] The applicant further stated that, as he was attempting to recover from the shock, the applicant’s father underwent a cardiac problem and had undergone related surgeries in early 2013. The applicant attached reports in support of that claim. The applicant concluded by stating:[7]

   I was very depressed and mentally not capable of making rational decisions due to my mother’s illness and loss of eye sight. I was frustrated with life and that is the reason I failed to attend the course.

   [3] CB87

   [4] CB87

   [5] CB87

   [6] CB87

   [7] CB87

The Tribunal’s decision

1. The Tribunal referred to the applicant’s letter and statutory declaration. It noted that the Tribunal received these documents “after the Tribunal’s decision was made but before it was notified”.[8] It noted the applicant “offered no explanation why he was not able to attend the scheduled hearing”.[9] The Tribunal concluded:[10]

   In the absence of any explanation, the Tribunal does not accept that the applicant was unable to attend the hearing on 14 October 2013. The Tribunal is satisfied that it offered the applicant a genuine opportunity to give evidence and present arguments at a hearing on 14 October 2013. The Tribunal is satisfied that it has complied with its statutory obligations.

   [8] CB104, [7]

   [9] CB104, [7]

   [10] CB104, [7]

2. The Tribunal, therefore, decided, pursuant to s.362B of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.[11]

   [11] CB104, [8]

3. The Tribunal first considered whether the applicant had complied with condition 8202. The Tribunal found the applicant did not because the applicant ceased to be enrolled in a registered course on 16 May 2012, and condition 8202 did not allow the visa holder to cease to be enrolled in a course.

4. Next, the Tribunal considered whether it should exercise its discretion not to cancel the Visa. After observing that there are no matters specified in the Act or Regulations that are required to be considered in relation to the discretion, the Tribunal said it had regard to the matters raised by the applicant, and also to the Procedures Advice Manual (PAM3) prepared by what was then known as the Department of Immigration and Citizenship.

5. The Tribunal then addressed the matters contained in the applicant’s statutory declaration. The Tribunal said:

   a)The applicant did not present any evidence relating to his mother’s conditions or in relation to the surgeries, and that the medical reports attached to the applicant’s statutory declaration referred to Bharti H Thakore and Hemant K Thakore but the applicant did not present any evidence about the applicant’s relationship to those two persons.[12]

   b)Even if the Tribunal were to accept that the applicant’s mother or any other relative were suffering from a medical condition, the Tribunal considered it significant that the applicant did not present any evidence to suggest that he himself was suffering from anxiety or depression.[13]

   c)The significant issue before the Tribunal was not the applicant’s attendance in a course, or academic progress, which requires some academic effort; the issue was ceasing enrolment. If the applicant was facing the difficulties he claimed he faced, the applicant could have sought a deferral from his studies while maintaining enrolment. The Tribunal did not accept that the applicant’s claimed depression and anxiety affected the applicant’s ability to maintain enrolment in a course.[14]

   d)The applicant did not identify any hardship that may be caused to him or any family members by the cancellation of the Visa.[15]

   e)The applicant was not fulfilling the purposes of the Visa because the applicant “was not undertaking any study and he provided no evidence to suggest that he has undertaken any study more recently”.[16]

   [12] CB106, [15]

   [13] CB106, [15]

   [14] CB106, [18]

   [15] CB106, [20]

   [16] CB107, [23]

Grounds of review

1. The applicant states two grounds of review in his application.

   1.     The Tribunal erred in law by misconstruing the provisions of condition 8202 of Schedule 8 of the Migration Regulation 1994 relating to the valid reasons for non enrolment in a course.

   Particulars

   The Tribunal failed to consider the evidence placed before the Tribunal that the applicant has was medically unfit to continue his studies.

   2.     The Tribunal failed to provide an opportunity to the applicant to adduce additional evidence and this resulted in miscarriage of justice and has vitiated the procedural fairness.

   Particulars

   The applicant requested the Tribunal to adjourn and give an other date for the adducing additional evidence on 14 October 2014 which was rejected by the Tribunal.

2. There is no substance to ground one. The Tribunal did not misconstrue condition 8202; and the Tribunal considered the evidence the applicant provided to the Tribunal, and in particular, the statutory declaration.

3. Ground two raises two grounds. The first is that the applicant was denied a reasonable opportunity to present evidence and arguments. In my opinion, that ground cannot be made out. The Tribunal provided the applicant such opportunity by sending to the applicant the letter dated 12 September 2013 inviting the applicant to attend the hearing at 2.30pm on 14 October 2013. As the applicant did not attend the hearing, the Tribunal had the power under s.362B of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

4. The second of the two grounds contained in ground two of the application has more substance. That ground is that the Tribunal acted unreasonably in not granting the applicant’s request, stated in his letter to the Tribunal of 14 October 2013, to provide the applicant with an opportunity to attend another hearing.

5. If the Tribunal had the power to grant the applicant a further hearing, it is to be found in s.363(1)(b) of the Act which provides that, for the purpose of the review of a decision, the Tribunal may “adjourn the review from time to time”. If, at the time the Tribunal received the statutory declaration, the Tribunal had not completed the review, the Tribunal did have the power to grant the applicant a further hearing.

6. The question arises whether, at the time it received the applicant’s request, the Tribunal had completed the review because by that time “the Tribunal’s decision was made but before it was notified”.[17] In my opinion, it did not. A review is completed when the Tribunal makes a “decision on a review”.[18] The Tribunal makes a decision on the review on the day and at the time the written statement is made by the Tribunal. The Tribunal did make a statement in this case pursuant to s.368(1) of the Act. That statement is dated 15 October 2013. It follows, therefore, that on 14 October 2013, the Tribunal had not made a decision on the review, because it did not make a statement as required by s.368(1) that is dated 14 October 2013.

   [17] CB104, [7]

   [18] Subsection 368(2) of the Act

7. The Tribunal, therefore, had the power under s.363(1)(b) of the Act to grant the applicant a further hearing. When exercising the power under s.363(1)(b), the Tribunal was under a duty to act reasonably.[19] A decision will be unreasonable if the decision lacks an evident and intelligible justification,[20] or if it falls outside “a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.[21]

   [19] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

   [20] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at page 367 ([76]).

   [21] Dunsmiur v New Brunswick [2008] 1 SCR 190 at page 221 ([47]) (Bastarache and LeBel JJ) quoted with approval by Gageler J in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at page 375 ([105]).

8. It is important to be clear about the decision the Tribunal made. It did not decide it would not consider the material the applicant sent to the Tribunal in the evening of the day on which the applicant was required to appear; the Tribunal did consider the material. What the Tribunal decided was not to provide the applicant an opportunity to attend another hearing. Did that decision lack an evident and intelligible justification? Was the decision outside the range of possible, acceptable outcomes? In my opinion, both questions must be answered in the negative.

9. The Tribunal’s not granting a further hearing because the applicant did not provide any reasons implies that the Tribunal was of the view that before it could consider granting the applicant another hearing, the applicant had to provide a reasonable explanation why he was not able to attend the scheduled hearing. That is a justifiable position for the Tribunal to take when considering whether to grant another hearing date, given that s.353(1) of the Act provides that, in carrying out its functions under the Act, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, and quick. For the same reason, the Tribunal’s decision not to grant a further hearing is not outside the range of defensible decisions. It is a defensible decision, given the objectives specified in s.353(1) of the Act, to require an applicant who requests a hearing because he did not attend the appointed hearing, to provide an explanation as to why the applicant did not attend the appointed hearing.

Conclusion and disposition

1. For these reasons, the applicant has not made out the grounds of review stated in his application. I propose, therefore, to dismiss the application, and order the applicant pay the Minister’s costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 28 November 2014