Thakuri v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1061

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Thakuri v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1061

File number:

MLG 701 of 2019

Judgment of:

JUDGE GOSTENCNIK

Date of judgment:

21 October 2024

Catchwords:

MIGRATION – student (subclass 573) visa – visa cancelled – breach of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) – decision of the Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal failed to consider relevant facts – Tribunal’s decision not affected by jurisdictional error – application for judicial review dismissed

Legislation:

Migration Act 1958 (Cth) ss 116(1)(b), 359A, 359A(4), 359A(4)(b), 359A(4)(ba), 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2

Migration Regulations 1994 (Cth) schs 2, 8, cl 573.611(a), conditions 8202, 8202(2)(a)

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016]FCAFC 174

Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802

Kaur v Minister for Immigration and Border Protection [2016] FCA 132, 245 FCR 296

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1, 241 CLR 594

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, 147 FCR 51

Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389, 109 FCR 152

Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051

Tickner v Chapman [1995] FCA 1726,  57 FCR 451

Division:

Division 2 General Federal Law

Number of paragraphs:

29

Date of last submission/s:

19 September 2024

Date of hearing:

8 October 2024

Place:

Melbourne

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Mr McDermott

Solicitor for the First Respondent:

Mills Oakley

Counsel for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 701 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SAURAV THAKURI

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GOSTENCNIK
DATE OF ORDER:	21 OCTOBER 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $5,454.55.

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 Gostencnik

INTRODUCTION

1. The applicant is a citizen of Nepal who arrived in Australia on 20 February 2015: Court Book (CB) 25, and, until its cancellation by a delegate of the (then) Department of Immigration and Border Protection acting under s 116(1)(b) of the Migration Act 1958 (Cth) (Act), he was the holder of a student (Temporary) (Class TU) (Subclass 573) visa. The delegate’s decision to cancel the applicant’s visa was affirmed by the Administrative Appeals Tribunal (Tribunal) on 7 February 2019. On 13 March 2019, the applicant sought judicial review of the Tribunal’s decision by filing an application in the (then) Federal Circuit Court of Australia for a remedy in the exercise of the Court's original jurisdiction under s 476 of the Act.

2. The application is dismissed. My reasons follow.

   BACKGROUND

3. On 16 December 2015, the applicant applied for a student (Temporary) (Class TU) (Subclass 573) visa. The applicant was granted the visa on 1 February 2016 to study a Bachelor of Information Technology and Systems at the Victorian Institute of Technology Pty Ltd: CB18 and CB24 respectively. Pursuant to cl 573.611(a) (as then in force) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations), the visa was subject, relevantly, to condition 8202 in Sch 8 to the Regulations. Condition 8202(2)(a) required the applicant to be enrolled in a registered course.

4. Section 116(1)(b) of the Act provides that the Minister may, subject to certain not presently relevant exceptions, cancel a visa if the Minister is satisfied that the visa holder has not complied with a condition of the visa.

5. On 5 June 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) by a delegate of the (then) Department of Immigration and Border Protection for purported non-compliance with condition 8202(2)(a) of the Regulations: CB10-CB16. The NOICC:

   (a)advised the applicant that based on the evidence available through the ‘Provider Registration and International Student Management System’ (PRISMS), it appeared he had not been enrolled in a registered course of study since 2 September 2016; and

   (b)invited the applicant to comment on the grounds for cancellation and provide any supporting evidence why the visa should not be cancelled: CB13.

6. The applicant did not respond to the notice: CB25. The applicant’s visa was subsequently cancelled on 15 June 2017 by the delegate pursuant to s 116(1)(b) of the Act for non-compliance with condition 8202 of the Regulations, with the delegate concluding that the grounds for cancelling the visa outweighed those against cancellation: CB18-CB30.

7. The applicant applied to the Tribunal for a review of the delegate’s decision: CB31-CB41. The Tribunal acknowledged the review application on 29 June 2017: CB43-CB44, and on 18 January 2019, the Tribunal invited the applicant to attend a hearing scheduled for 7 February 2019 to give evidence and present arguments relating to the issues in his case: CB52-CB53. The invitation also requested the applicant to complete and return an enclosed ‘Response to hearing invitation – MR Division’ form to confirm his attendance at the hearing, and to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider.

8. The applicant attended the scheduled hearing before the Tribunal: CB58-CB60, at which he told the Tribunal that he did not require the assistance of an interpreter: CB67 at [4].

   THE TRIBUNAL’S DECISION AND REASONING

9. As earlier noted, by its decision made on 7 February 2019, the Tribunal affirmed the delegate’s decision to cancel the applicant’s student visa: CB66-CB72. The applicant was notified of the Tribunal’s decision on 8 February 2019 and was provided with a copy of its Statement of Decision and Reasons (Decision): CB62. 

10. At [1]-[6] of the Decision, the Tribunal set out a brief background and the relevant student visa criteria by reference to s 116(1)(b) of the Act and Sch 8, condition 8202 to the Regulations. At [7]-[10], the Tribunal dealt with the question whether the applicant had complied with condition 8202, concluding – based on the applicant’s admission that he had not been enrolled in a registered course of study since 2 September 2016 – that the applicant had not complied with condition 8202(2)(a). At [11]-[36], the Tribunal set out its consideration whether to cancel the applicant’s visa.

11. At [11] of the Decision, the Tribunal notes that neither the Act nor Regulations specified matters that must be considered in the exercise of the discretion to cancel a visa once non- compliance with a condition had been established. The Tribunal records that it had regard to the circumstances of the case; addressing, the applicant’s evidence and a number of matters set out in the Department’s Procedures Advice Manual (PAM3) – ‘General visa cancellation powers’ –  that the Tribunal considered relevant to the applicant’s application. At [12], the Tribunal records the applicant’s acceptance of the correctness of the information in the delegate’s decision record. At [13]-[14] the Tribunal deals with the applicant’s Provider Registration and International Student Management System (PRISMS) record, finding that it does not contain any information adverse to the applicant.

12. At [15]-[21] of the Decision, the Tribunal considered the circumstances in which the applicant ceased to be enrolled in a registered course of study. The Tribunal:

    (1)considered the applicant’s claims that around the time his enrolment ceased in 2016 his mother had heart trouble and he was unable to pay his fees because he had to provide her with financial support, but noted the applicant did not have any documentation to support these claims: Decision at [15];

    (2)accepted the applicant’s family circumstances caused some difficulty, but ascribed the consideration low weight as the applicant signed a financial guarantee to the effect that he had sufficient financial support to allow him to undertake his studies: Decision at [16] and [19];

    (3)did not accept the applicant’s mental health claim at the time of the cessation of his enrolment as he had no documentary evidence in support of the claim: Decision at [20];

    (4)did not accept the circumstances that led to the cancellation of the applicant’s enrolment were exceptional circumstances: Decision at [21]; and

    (5)was not persuaded by the applicant’s submissions that his personal circumstances in 2016 caused him not to be enrolled in a registered course of study and so ascribed the circumstances low weight: Decision at [21].

13. At [22]-[28] of the Decision, the Tribunal accepted the applicant:

    (a)travelled to and stayed in Australia for the purpose of study: Decision at [23], but found he had no compelling need to travel to or remain in Australia;

    (b)complied with his visa conditions apart from condition 8202: Decision at [24];

    (c)might experience some economic hardship if his visa were cancelled: Decision at [25]-[26]; and

    (d)had not been uncooperative with the Department: Decision at [27].

    The Tribunal ascribed low weight to the first three matters and some weight to the fourth matter in the applicant’s favour. It noted there were no dependants attached to the applicant’s student visa and so there would be no consequential cancellations under s 140 of the Act, attaching the consideration low weight: Decision at [28].

14. The Tribunal accepted the applicant would be excluded for a period if his visa was cancelled and would have limited options to apply for further visas in Australia if his visa was cancelled in accordance with s 48 of the Act, but it gave little weight to this consideration in favour of the applicant: Decision at [29]-[33]. The Tribunal noted there was no indication that the visa cancellation would involve a breach of any international obligations and so accorded the consideration low weight: Decision at [35]. Neither the Tribunal nor the applicant identified any other relevant matter: Decision at [36].

15. The Tribunal concluded that:

    (a)since the applicant was granted a student visa on 1 February 2016, then nearly three years earlier, the applicant had not completed any higher education course: Decision at [37];

    (b)the applicant had not been enrolled in a registered course of study since 2 September 2016 and had not complied with condition 8202(2)(a): Decision at [38]; and

    (c)the circumstances leading to the cancellation of the applicant’s enrolment were not exceptional circumstances: Decision at [39].

16. The circumstances considered as a whole, led the Tribunal to conclude that the applicant’s visa should be cancelled: Decision at [40]. Accordingly, the Tribunal affirmed the decision to cancel the applicant’s visa: Decision at [41].

    REVIEW GROUNDS AND CONSIDERATION

17. The applicant’s grounds of application are as follows (reproduced verbatim):

    1.THE MEMBER DID NOT CONSIDER RELEVANT FACTS.

    AT THE TIME, I WAS SUFFERING DEPRESSION, MY FAMILY WAS HAVING FINANCIAL DIFFICULTIES AND MOM WAS SICK. THESE WERE CRITICAL CONSIDERATION MEMBER SHOULD HAVE TAKEN INTO CONSIDERATION.

    BY NOT DOING THAT MEMBER MADE JURISDICTIONAL ERROR.

    (Uppercase in original)

18. By way of Order made by Registrar Cummings on 22 August 2024, the applicant was permitted to file and serve, inter alia, any written submissions or additional evidence the applicant seeks to rely on by 10 September 2024. The applicant did not file nor serve any submissions or additional evidence.

19. The applicant’s sole review ground contends the Tribunal did not consider the relevant facts, specifically that:  the applicant was suffering from depression, his family experienced financial difficulties; and that his mother was unwell at or around the time the applicant was not meeting visa condition 8202(2)(a) which required the applicant to be enrolled in a registered course. The applicant says these were facts the Tribunal should have, but did not, take into account, and by failing to do so, the Tribunal committed jurisdictional error.

20. It is to be accepted that the Tribunal was required to consider and engage with the applicant’s claims and the evidence he advanced which would have a bearing on the Tribunal’s decision. In some cases that a decision makes no, or only a passing, reference to a relevant consideration does not mean, necessarily, that the decision maker did not consider the matter at all. Having considered a matter, a decision maker may give little or no weight to it, which may explain the absence of any reference to the matter in the decision rather than a failure to consider: see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1, 241 CLR 594 at [31]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34]; and ARG15 v Minister for Immigration and Border Protection [2016]FCAFC 174 at [65]. In other cases, when regard is had to the nature of an applicant’s claims, the findings and evidence set out in the decision, it may readily be inferred that if the matter or evidence had been considered at all, it would have been referred to in the decision, even if then rejected or given little or no weight: SZSRS at [34].

21. The requirement that a decision maker engage with an applicant’s claims and evidence is an active intellectual process requiring real consideration of the evidence, beyond merely simply reciting the evidence or parts of it in a decision without considering the significance of, or the weight, to be given to the evidence: Tickner v Chapman [1995] FCA 1726, 57 FCR 451 at 462; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389, 109 FCR 152at [59]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, 147 FCR 51 at [46]; and Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 at [74].

22. In the instant case it seems clear that the Tribunal engaged with and gave due consideration to the applicant’s claims including: the allegations of mental health; financial hardship; and that he was a genuine applicant for entry and stay as a student: CB68-CB70 at [15]-[40], specifically:  

    (1)the tribunal noted the applicant did not provide any documentary evidence to support his claims about his mother’s illness or any financial difficulties: CB68 at [15];

    (2)although the Tribunal accepted that the applicant’s family circumstances had caused him some difficulty in 2016, it ascribed the matter “low weight” reasoning that the applicant had given a “financial guarantee” when he applied for the visa and that he had sufficient financial support to enable him to undertake his studies: CB68 at [16], [19]. This was a conclusion open on the material;

    (3)the Tribunal considered but did not accept the applicant suffered from mental health issues because he provided no documentary evidence to support  the claim: CB68-CB69 at [18], [20]. This conclusion was plainly open; and

    (4)the Tribunal was not persuaded the applicant’s claimed circumstances were exceptional or that the circumstances resulted in the applicant not being enrolled in a registered course of study, and so ascribed these matters low weight in favour of not cancelling the visa: CB69 at [21]. These conclusions were also reasonably open on the materials.

23. In exercising its review function under the Act, the Tribunal was statutorily required to examine and deal with the applicant’s claims, including an integer of the claims: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1 at [57]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]. It appears to me that this is what the Tribunal did in the instant case and no jurisdictional error is disclosed by the applicant’s review ground. During the hearing of this application before the Court, the applicant did not elaborate on his review ground, nor did he advance any further basis on which it might be said the Tribunal’s decision was affected by jurisdictional error. The applicant stated that all the matters he raised with the Tribunal were true, that he did not know what to do, that he should have sought legal advice and he wants a second chance. In substance, the applicant wanted a different result and complains about the merits of the decision. But merits review is not a task undertaken by the Court in judicial review applications. The applicant’s review ground does not disclose jurisdictional error.

24. Consistent with the first respondent’s model litigant obligations, the first respondent identified that the Tribunal was in possession of a screen shot copy of a search conducted on 5 June 2017 of PRISMS: CB1-CB2. A failure by the Tribunal to put a PRISMS record to an applicant may in some circumstances mean the Tribunal did not comply with its obligation in s 359A(1) of the Act: see discussion in Kaur v Minister for Immigration and Border Protection [2016] FCA 132, 245 FCR 296 at [34]-[43]. Subject to several exceptions, s 359A requires, inter alia, the Tribunal to 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. The exceptions are set out in s 359A(4) which relevantly provides that s 359A does not apply to information:

    . . .

    (b)  that the applicant gave for the purpose of the application for review; or

    (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

    . . .

25. The first respondent contended that the issue of the Tribunal’s compliance with s 359A(1) of the Act does not arise because, relevantly, the delegate’s decision which was provided to the Tribunal by the applicant contained the very information found in the PRISMS record: CB24. The first respondent therefore contended that to the extent that s 359A(1) might potentially have been engaged, that obligation was displaced by ss 359A(4)(b) and (ba): see discussion in Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 at [29]-[30]. I accept that submission and consider in the circumstances that the obligation was displaced by s 359A(4)(b). In any event, although the Tribunal considered the PRISMS record, it did not seem to regard (perhaps erroneously) the PRISMS record as containing any information adverse to the applicant: Decision at [13]-[14], and it appears the Tribunal reached the conclusion that the applicant was not complying with condition 8202(2)(a) based solely on his admission at the hearing that he had not remained in a registered course of study since 2 September 2016: Decision at [7]-[9].

1. As the applicant was unrepresented before the Court, I have reviewed the Tribunal's Decision and the material in the Court Book filed by the first respondent with an eye to identifying jurisdictional error beyond dealing merely with the applicant’s sole review ground, but I have not identified any arguable case of jurisdictional error.

2. For these reasons, the applicant’s judicial review application will be dismissed.

3. The first respondent sought costs in the sum of $5,454.55 if the applicant was unsuccessful. The applicant was unable to advance any cogent reasons why in that event he should not be ordered to pay costs, or that he should be ordered to pay a lesser sum. Given the history of this matter and its conduct in this Court, I consider the applicant should pay the first respondents costs. I consider the amount sought, which is less than the current amount set out under the Migration Costs Scale in Sch 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a proceeding concluded at final hearing, is reasonable and appropriate in the circumstances.

4. An order that the applicant pay the first respondent’s costs fixed in the sum of $5,454.55 will be made.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate:

Dated:       21 October 2024