Thakuri v Minister for Immigration and Multicultural Affairs

Case [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…

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

CaseChat Overview and Summary

The case of Thakuri v Minister for Immigration and Multicultural Affairs involved the applicant, who had a student visa granted to study at the Victorian Institute of Technology. The visa was subject to a condition requiring the applicant to be enrolled in a registered course. The Minister cancelled the applicant's visa for non-compliance with this condition. Following a hearing, the Administrative Appeals Tribunal (AAT) affirmed the Minister's decision to cancel the visa. The applicant sought judicial review of the AAT's decision, arguing that the Tribunal failed to consider relevant facts.

The primary legal issue was whether the AAT erred by not considering relevant facts that the applicant claimed should have been taken into account. Specifically, the applicant argued that the Tribunal did not consider his claims of depression, financial difficulties, and his mother's illness as relevant factors that warranted leniency. The court had to determine if the AAT's failure to address these factors constituted a jurisdictional error.

The court considered that the AAT was required to engage with the applicant's claims and evidence, but found that the Tribunal had indeed considered the applicant's claims and assigned them varying degrees of weight. The court noted that the AAT's decision included consideration of the applicant's circumstances and the weight assigned to those circumstances, even if the AAT did not expressly reference each claim in the decision. The court held that the AAT's failure to explicitly discuss each fact did not mean those facts were ignored. The court concluded that the AAT's decision was not affected by jurisdictional error because the Tribunal had considered the relevant factors as required by law.

The final orders of the court dismissed the applicant's application for judicial review, affirming the AAT's decision to cancel the student visa.

Orders

Orders of the court

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Background

Background to the litigation

The application is dismissed. My reasons follow. BACKGROUND 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. 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. 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. 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. 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. 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 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. 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. 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].

Ratio Decidendi

Legal Principle Established

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 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) 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. 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. 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]. 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].