THAPA v Minister for Immigration
[2017] FCCA 2707
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THAPA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2707 |
| Catchwords: MIGRATION – Judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of the Minister for Immigration and Border Protection to cancel Vocational Education and Training Sector (subclass 572) visa (Student visa) granted to first applicant because the first applicant failed to be enrolled in registered course – whether Tribunal failed to take into account relevant considerations – whether the Tribunal took into account irrelevant considerations – whether Tribunal truly engaged with first applicant’s claims – whether Tribunal acted unreasonably in not granting adjournment – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss. 116(1)(b), 140 Migration Legislation Amendment Regulation 2013 (No.y1) (Cth), reg. 2(1), Schedule 3, Item 1 |
| Cases cited: Gill & Ors v Minister for Immigration & Anor [2013] FCCA 1767 Kaur & Ors v Minister for Immigration & Anor [2016] FCCA 1316 |
| First Applicant: | GANESH THAPA |
| Second Applicant: | SHARMILA THAPA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2367 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 3 November 2017 |
| Date of Last Submission: | 3 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| First applicant on behalf of the applicants in person assisted by an interpreter |
| Solicitors for the First Respondent: | Mr J Pinder of MinterEllison |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2367 of 2016
| GANESH THAPA |
First Applicant
| SHARMILA THAPA |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first and second applicants are husband and wife, and citizens of Nepal. They seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister to cancel the first applicant’s Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (Student visa) under s.116(1)(b) of the Migration Act 1958 (Cth)(Act).
The first applicant was granted the Student visa on 16 July 2013. The second applicant was also granted a student visa (second applicant’s Student visa), but only as a member of the first applicant’s family unit. The Tribunal found it had no jurisdiction to consider the cancellation of the second applicant’s Student visa because the Tribunal was of the view that the second applicant’s Student visa was cancelled by virtue of the operation of s. 140(1) of the Act which provides that, if a person’s visa is cancelled under s.116 (among other provisions), “a visa held by another person because of being a member of the family unit of the person is also cancelled”.
Background
The Student visa was subject to condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations)[1] which required that the holder of the visa be “enrolled in a full-time registered course”.
[1] See cl.572.611 of Schedule 2 to the Regulations as they applied at the time the delegate cancelled the Student visa.
On 16 October 2015 a delegate of the Minister sent by email to the first applicant a notice of intention to consider the cancellation of the Student visa on the ground that it appeared the first applicant had not been enrolled in a registered course of study since 29 July 2014, as required by condition 8202(2)(a) of Schedule 8 to the Regulations.[2] The delegate invited the first applicant to inform the delegate whether he believed there were no grounds for the cancellation of the Student visa and, why the Student visa should not be cancelled.
[2] CB6-10
The first applicant responded by email dated 24 October 2015 where he said:[3]
a)He had “completed three diploma courses without breaching any conditions”, and that he married the second applicant in April 2012. The second applicant arrived in Australia in September 2013 and the first applicant’s studies were “still on track until July 2014”.
b)After July 2014 the first applicant could not continue with his studies because he “had a big fight” with the second applicant and the first applicant had a “police matter and court matter”. The first applicant could no longer concentrate on his studies and work because he was “facing very hard time”. The first applicant’s college cancelled “the COE” after a couple of months.
c)After a few months “every problem was sorted out” and the first applicant was able to concentrate so he went back to college to re-enrol.
d)In 2015 the first applicant had another fight with the second applicant and, as a result, had a “court matter”; and the college denied the first applicant’s re-enrolment.
e)The first applicant cannot go back to Nepal due to the “huge earthquake” which took place in April 2015.
f)If given the opportunity to study again the first applicant “will stay in condition” and that “getting 4 to 5 years visa will erase all my problem”.
[3] CB48
On 13 November 2015 the delegate decided to cancel the Student visa because the first applicant had not been enrolled in a registered course of study since 29 July 2014 and therefore, did not meet the requirements of condition 8202(2)(a) of Schedule 8 to the Regulations.[4]
[4] CB52-61
Tribunal’s decision
The Tribunal considered whether there were grounds for the cancellation of the first applicant’s Student visa pursuant to s.116(1)(b) of the Act. The Tribunal had regard to a number of matters:
a)The “Provider Registration and International Student Management System” (PRISMS), the record keeping system of the Department of Immigration and Border Protection (Department), indicated the first applicant had not been enrolled in a registered course of study since 29 July 2014.[5]
b)The first applicant’s education provider had sent by email to the first applicant a number of warning letters in December 2013 and June 2014. In its June 2014 warning letter the first applicant had been offered a mandatory meeting by his education provider in order to discuss his study difficulties. The first applicant initially told the Tribunal that he did not recall receiving the correspondence from his education provider, and that he had difficulties accessing emails from his education provider. The Tribunal, however, found the first applicant’s evidence about why he had not contacted his education provider in response to the warning letters to be “overall vague”.[6]
c)The first applicant did not contact the Department about the difficulties that he had faced with his studies or about the cancellation of his enrolment in a registered course of study. The first applicant agreed he approached the Department only after it had notified him of its intention to consider cancelling the Student visa.[7]
d)The Tribunal asked the first applicant why he did not approach his education provider or the Department about his study difficulties. The first applicant said he did not contact his education provider because “he had a busy schedule in terms of his work and his domestic problems and that stress had also affected him in terms of not attending classes”, but he did not provide a reason why he did not contact the Department as he was advised to do by the education provider when his enrolment in a registered course of study was cancelled.[8]
e)The first applicant confirmed to the Tribunal that the only person who would be affected if the Student visa were to remain cancelled was the second applicant.[9]
[5] CB126, [15]
[6] CB126, [17]
[7] CB126, [17]
[8] CB126, [18]
[9] CB127, [25]
In response to the first applicant’s request for further time to provide “details about events in relation to studies”, the Tribunal noted the first applicant had not been enrolled in a registered course of study since 29 July 2014 and that he claimed that he last attended classes in April 2014. The Tribunal said it did “not understand why the [first] applicant required more time to provide further information about dates in relation to courses”.[10] The first applicant was unable to tell the Tribunal how much time he was seeking and was unable to provide the Tribunal any more details why the Tribunal should allow additional time. The first applicant also told the Tribunal that he was seeking further time to allow the second applicant to get more qualifications, which the Tribunal considered to be irrelevant.
[10] CB128, [26]
The Tribunal concluded that the first applicant had not been enrolled in a registered course of study and was therefore in breach of condition 8202(2)(a) of Schedule 8 to the Regulations.[11]The Tribunal then considered “whether to exercise its discretion to cancel” the Student visa.[12]
[11] CB128, [28]
[12] CB128, [30]
The Tribunal noted that the Act and the Regulations do not specify matters that must be considered when exercising the discretion under s. 116(1)(b) of the Act and so it had regard to matters raised by the first applicant why the Student visa should not remain cancelled, and government policy guidelines contained in the Department’s “Procedures Advice Manual” (PAM3).
The Tribunal considered the totality of the first applicant’s circumstances, and found as a whole that the Student visa should remain cancelled. In reaching its conclusion the Tribunal considered the following matters:
a)The Tribunal considered whether maintaining the cancellation of the Student visa would cause any hardship. The Tribunal acknowledged the first applicant would have spent money on his studies and living in Australia and that if he were unable to undertake any further study that may cause him some financial hardship.[13] It was of the view, however, that the first applicant completed some courses in Australia; he had been able to obtain employment as a chef; and the courses he completed in Australia may be of assistance to his seeking employment in Nepal.[14]
b)The first applicant said he had not had any difficulties with the Nepalese authorities, and there was nothing to suggest that Australia’s international obligations would be breached if the first applicant were to be returned to Nepal.[15]
c)The Tribunal was concerned that the first applicant did not approach the Department as he was advised to do so by his education provider when his enrolment was cancelled in July 2014. The Tribunal considered this to indicate that the first applicant was “not cooperating with the Department in relation to the conditions surrounding his student Visa.”[16]
d)The Tribunal was satisfied the first applicant was last enrolled in a course of study in July 2014.
e)The Tribunal found that the first applicant wanted to remain in Australia in order to earn an income so he can assist his family in Nepal.[17]
f)The Tribunal accepted that the first applicant had some domestic difficulties which resulted in police and court action and that subsequent stress may have impacted his studies. The Tribunal noted, however, that the first applicant did not seek any medical assistance in relation to his stress, and he did not respond to his education provider’s warning letters in relation to the unsatisfactory progress in his studies.[18]
g)The Tribunal found the first applicant’s employment background and studies in Australia would assist him to obtain employment in Nepal if he were to return.
[13] CB128, [31]
[14] CB128, [31]
[15] CB128, [31]
[16] CB128, [31]
[17] CB128, [33]
[18] CB129, [34]
Grounds on which first applicant relies
The first applicant, who is not legally represented, made submissions to me on behalf of himself and the second applicant. The first applicant said he relies on statements and submissions made in a document dated 18 October 2017 addressed to this Court (18 October document),[19] and in an affidavit the first applicant filed on 2 September 2016 and again filed on 19 October 2017 with documents annexed. The first applicant also informed me he had limited understanding of the grounds stated in the application.
[19] I marked this document, together with other documents, as “Exhibit A”. Exhibit A was annexed to a copy of an affidavit filed on 19 October 2017. That affidavit is a copy of the affidavit the first applicant filed on 2 September 2016. Exhibit A was not annexed to the affidavit when it was filed on 2 September 2016 but was attached to the copy of the affidavit when it was again filed on 19 October 2017.
In these reasons, therefore, I will first address the grounds stated in the application and, to the extent they do not relate to these grounds, the matters referred to in the first applicant’s affidavit. I will then consider the matters stated in the 18 October document and the matters submitted to me by the first applicant during the hearing.
Grounds stated in application
The application contains three grounds of review.
Ground 1
The first ground of application is as follows:
The Second Respondent erred in the identification and/or application of the operative law and regulations applicable to the review of the applicant’s application and thereby proceeded having asked itself the wrong question, failed to take into account relevant considerations, took into account irrelevant considerations, and constructively failed to exercise its jurisdiction.
This ground is supported by particulars where two distinct matters are raised. The first is that the Tribunal failed to consider whether the breach of condition 8202 of Schedule 8 of the Regulations was the result of exceptional circumstances beyond the first applicant’s control as required by reg. 2.43(2)(b)(ii)(B) of the Regulations.
This part of the particulars correctly states the effect of reg. 2.43(2)(b)(ii)(B) of the Regulations. That sub-regulation, however, was repealed by item 2 of Schedule 3 to the Migration Legislation Amendment Regulation 2013 (No. 1) (Cth), which came into effect on 13 April 2013.[20] Given the Student visa was cancelled on 13 November 2015, reg. 2.43(2)(b)(ii)(B) of the Regulations was not relevant to the task the Tribunal was required to undertake when considering the application for review before it.
[20] Migration Legislation Amendment Regulation 2013 (No. 1) (Cth) reg.2(1)
The second matter raised in the particulars is that, by referring to PAM3, the Tribunal took into account irrelevant considerations. That it referred to and considered PAM3 does not by itself show the Tribunal took into account irrelevant considerations. The Tribunal did not consider PAM3 as containing guidelines or directions that bound the Tribunal to exercise its discretion in any particular way; and the first applicant does not submit, and there is nothing in the material before me that could suggest, that the matters in PAM3 to which the Tribunal referred were foreign to the subject matter, scope and purpose of s.116 of the Act.
Ground 1, therefore, fails.
Ground 2
The second ground of application is as follows:
The First and Second Respondent failed to provide procedural fairness on the determination of the Applicants (jointly and severally) at first instance and then at the Administrative Appeals Tribunal.
The particulars to this ground appear to raise two matters. One is that the Tribunal did not take into account “the actual events, consequences and subsequent aftermath of the domestic issues which resulted in the non-attendance/non-enrolment at the study college and hence the subsequent cancellation of the student visas”.[21] This matter is not made out. The Tribunal acknowledged and considered the first applicant’s submissions based on his domestic difficulties and conflict with the second applicant and, in fact, accepted that these difficulties “caused the [first] applicant some stress and that may have had some impact on his studies”.[22]
[21] Paragraph (a) of particulars to ground 2
[22] CB129, [34]. See also at CB125, [10], [13] and CB129, [34]
The second matter raised in the particulars is that the second applicant was denied procedural fairness.[23] This matter, too, is not made out. As I have already noted, the Tribunal was of the view it had no jurisdiction to review the cancellation of the second applicant’s Student visa because the cancellation occurred by operation of s.140 of the Act, the relevant terms of which I have already set out. Two judges of this Court have held that the automatic cancellation of a visa under s.140 is not a decision that could be the subject of review by the Tribunal.[24]
[23] Paragraph (b) of particulars to ground 2
[24] Gill & Ors v Minister for Immigration & Anor [2013] FCCA 1767 at [20] and [28]; Kaur & Ors v Minister for Immigration & Anor [2016] FCCA 1316 at [4]
Ground 2, therefore, also fails.
Ground 3
The third ground of application is as follows:
Tribunal fell into error having established that the Act at section 116(1) enlivens a discretion in the Tribunal, it failed to consider the hardship caused to the dependent student visa holder. The hardship alleged is the “lost opportunity” to apply for a student visa or such other in her own right during the currency of her existing visa.
In effect this ground contends that the first applicant claimed, or on the material that was before it the Tribunal ought reasonably to have understood the first applicant to have claimed, that if the Student visa remains cancelled the second applicant would suffer hardship because she desired to apply for a student visa but this opportunity would be denied to her if the Student visa remains cancelled.
There is nothing in the Tribunal’s reasons to suggest the first applicant expressly made such a claim. The first applicant, however, is recorded as having said that “he was seeking extra time to allow his wife to get more qualifications”.[25] That raises the question whether the Tribunal ought reasonably to have considered the first applicant’s statement to be a claim that the second applicant would suffer hardship because she would be denied the opportunity to apply for a student visa. That, in turn, depends on whether it can be said that such claim arose “clearly on the materials before it”.[26]
[25] CB128, [26]
[26] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [61]
It is not entirely clear what the first applicant intended to convey by stating that “he was seeking extra time to allow his wife to get more qualifications”. One possibility is that the first applicant intended to submit that he wanted the Tribunal to adjourn the hearing to allow the second applicant time to obtain more qualifications. That is an unrealistic construction. The likelihood is that the first applicant would have been aware that obtaining more qualifications would take some considerable time and that such time would be well beyond the time for which he believed the Tribunal would be willing to adjourn the hearing.
A more probable construction is that the first applicant intended to submit no more than that the Tribunal should reverse the delegate’s cancellation of the Student visa to provide the second applicant time to obtain more qualifications. That is how the Tribunal appears to have understood what the first applicant intended to convey because the Tribunal immediately dismissed it as irrelevant. So understood, the first applicant’s statement was plainly irrelevant or, at the very least, it was reasonably open to the Tribunal to find it to be irrelevant to whether the Student visa should remain cancelled. The purpose of a student visa is to permit the visa holder to engage in studies; its purpose is not to provide some other person the opportunity to obtain more qualifications. In my opinion, it was reasonably open to the Tribunal to interpret the first applicant’s statement that “he was seeking extra time to allow his wife to get more qualifications” as amounting to no more than a submission to the effect that the Tribunal should reverse the delegate’s cancellation of the Student visa to provide the second applicant time to obtain more qualifications.
In any event, whether or not the Tribunal construed the first applicant’s statement in the manner I have found it did, the first applicant’s statement, considered by itself or in the context of the material that was before the Tribunal, could not be said to have clearly given rise to the claim that the second applicant would suffer hardship if the Student visa remained cancelled because it would deny her the opportunity to obtain more qualifications or to apply for a student visa. That is so because it is not apparent how maintaining the cancellation of the Student visa could have denied the second applicant the opportunity to obtain more qualifications or to apply for a student visa. Further, even if the Tribunal understood the first applicant’s statement to have been a claim that maintaining the cancellation of the Student visa would deprive the second applicant of the opportunity to obtain more qualifications or to apply for a student visa, it was reasonably open to the Tribunal to have concluded that that was not a relevant consideration because it is not apparent how maintaining the cancellation of the Student visa could have denied the second applicant the opportunity to obtain more qualifications or to apply for a student visa.
Ground 3, therefore, fails.
Matters raised in first applicant’s affidavit
To a large extent, the first applicant in his affidavit repeats the substance of the matters raised in the grounds of application.[27] But he raises two additional claims.
[27] First applicant’s affidavit, [1]-[10]
First, the affidavit refers to the first applicant having had no legal representation.[28] That, by itself, discloses no jurisdictional error.
[28] First applicant’s affidavit, [11]
Second, the first applicant claims the Tribunal failed to evaluate his arguments or weigh and balance the evidence, and otherwise failed to engage with his claims.[29] I do not accept these claims. As my summary of the Tribunal’s reasons demonstrates, the Tribunal identified the issues that were before it; it asked the first applicant questions that were relevant to the matters on which the first applicant relied and on which the Tribunal relied for affirming the delegate’s decision; and it considered all the evidence that was before it in making its decision.
[29] First applicant’s affidavit, [14] - [17]
The matters stated in the first applicant’s affidavit, therefore, disclose no jurisdictional error.
Matters raised in 18 October document
The first applicant makes a number of claims in the 18 October document.[30] First, the first applicant claims the Tribunal did not consider that the second applicant might wish to study in Australia. As I have already noted, the first applicant did not submit to the Tribunal that the second applicant might wish to study in Australia. Rather the first applicant informed the Tribunal he wanted more time to enable the second applicant to obtain more qualifications in the context of an application for an adjournment of the hearing before the Tribunal.
[30] Exhibit A
Second, after referring to the Court Book containing the “brief circumstances by which” he was unable to attend college, the first applicant claims the second applicant destroyed his assignment book and all his assignments the first applicant used for his course. The first applicant supports these claims with photographs.[31] This claim does not disclose any jurisdictional error by the Tribunal. There is nothing in the Tribunal’s reasons or in the material before me that indicates the first applicant informed the Tribunal that the second applicant had destroyed his assignment book and all his assignments.
[31] Exhibit A
Submissions at hearing
The first applicant made submissions before me. First, the first applicant repeated the substance of the matters he put before the Tribunal, and which are contained in the 18 October document that sought to explain why the first applicant had not been enrolled in a registered course of study. These matters disclose no jurisdictional error. To the extent the first applicant repeated the substance of the matters he submitted to the Tribunal, the Tribunal did consider those matters; and to the extent the first applicant relies on matters he did not submit to the Tribunal, the Tribunal made no jurisdictional error by not considering them.
Second, the first applicant complained the Tribunal erred by not granting him an adjournment. He claimed he was not given an opportunity to explain the reasons why he was not enrolled in a registered course of study. The first applicant said he asked the Tribunal for time to enable the second applicant to attend and give evidence.
The difficulty with this claim is that it is inconsistent with what the Tribunal’s reasons for decision reveal were the reasons for which the first applicant requested an adjournment:[32]
He told the Tribunal that he needed more time to provide the Tribunal with details about events in relation to studies. The Tribunal in response noted the applicant’s evidence was that he had not been enrolled in a registered course of study since 29 July 2014 up until he enrolled in the advanced diploma of accounting in November 2015 and that he had last attended classes in the tourism course (he claimed) in April 2014. The Tribunal in those circumstances did not understand why the applicant required more time to provide further information about dates in relation to courses. The applicant was unable to tell the Tribunal how much time he was seeking and unable to provide any more details as to why the Tribunal should allow additional time. He also told the Tribunal that he was seeking extra time to allow his wife to get more qualifications. The Tribunal told the applicant that was not a relevant consideration for the Tribunal. The Tribunal told the applicant that on the basis of the evidence and information before the Tribunal that he had not been enrolled in a registered course of study since 29 July 2014 (up until he enrolled into the advanced diploma of accounting in November 2015 but he had not attended any classes) and the Tribunal would have to consider discretionary factors in relation to the cancellation of his student Visa.
[32] CB128, [26]
Given the first applicant has not adduced evidence of a transcript of the hearing before the Tribunal, this passage from the Tribunal’s reasons for decision is the only evidence of the reasons for which the first applicant applied for an adjournment. It is apparent from the passage that the first applicant did not give as a reason for seeking an adjournment of the hearing before the Tribunal his desire that the second applicant give evidence to the Tribunal.[33]
[33] The Tribunal noted the second applicant did not attend the hearing (CB125, [12]). The “MRD Hearing Record” (CB112) records that the second applicant attended the hearing. This must be an error.
The reasonableness of the Tribunal’s decision not to grant the first applicant’s adjournment must be assessed by reference to the reason or reasons for which the first applicant sought the adjournment, and the reasons the Tribunal gave for not granting it. The reason the first applicant gave, as recorded in the passage from the Tribunal’s reasons I have set out above, was to obtain “details about events in relation to studies”. After the Tribunal informed the first applicant that that did not afford an adequate reason, given the Tribunal had before it the relevant dates on which, and the periods for which the first applicant was or claimed he was enrolled in a registered course of study, the first applicant could give no other reason for an adjournment other than that he wished further time to enable the second applicant to obtain more qualifications. The Tribunal considered this to be irrelevant to the task it had to undertake. In these circumstances, the Tribunal gave an “evident and intelligible justification”[34] for not granting the first applicant an adjournment; and its decision not to grant the first applicant an adjournment was not ““plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate””.[35] The Tribunal made no jurisdictional error by considering irrelevant the first applicant’s statement to the Tribunal that he wanted further time to enable the second applicant to obtain more qualifications. That the second applicant may have wanted time to obtain more qualifications cannot reasonably be considered to have been relevant to whether the Tribunal should grant the first applicant further time.
[34] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76]
[35] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [65]
Conclusion and disposition
All of the grounds on which the first applicant relies fail. I propose, therefore, to order that the application be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 10 November 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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