ULLAH v Minister for Immigration
[2018] FCCA 834
•26 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ULLAH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 834 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – student visa – Applicant seeks an extension of time for filing the application for review – where Applicant seeks merits review – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 119, 477 Migration Regulations 1994 (Cth), Schedule 8, condition 8202 |
| Cases cited: Liuv Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 SZOCH v Minister for Immigration & Anor [2010] FMCA 300 |
| Applicant: | AZIZ ULLAH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 21 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 26 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 26 March 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor appearing as Counsel for the First Respondent: | Mr Murano |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
CAG 21 of 2017
| AZIZ ULLAH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application filed 31 March 2017 seeking firstly an application for an extension of time pursuant to s.477 of the MigrationAct1958 (Cth) (‘the Act’) and secondly, seeking judicial review of a decision of the Second Respondent (‘the Tribunal’) which affirmed a decision of a delegate of the First Respondent (‘the delegate’) to cancel the Applicant’s subclass 573 higher education sector visa (‘the visa’) under s.116(1)(b) of the Act.
The Applicant’s application for judicial review was filed on 31 March 2017, 129 days beyond the 35 day period prescribed by s.477 of the Act. The Applicant seeks an extension of time on the following grounds as set out in the application:-
“1. That it is in the interests of the justice to extend the time for the filing of the application.
2. That the applicant was relying on the migration agent for migration advice and for timely filing of her (sic) application in AAT.
3. The Migration Agent did not made (sic) aware the applicant about the outcome of the Tribunal’s decision.
4. The delay in the filing of review application with the Court was beyond the control of the Applicant.
5. The Applicant should not be disadvantaged due to Migration Agent’s fault.”
Section 477(2) of the Act allows the Court to enlarge the time within which an Applicant can apply for judicial review. Section 477(2) is as follows:-
“MIGRATION ACT 1958 - SECT 477 Time limits on applications to the Federal Circuit Court
Time limits on applications to the Federal Circuit Court
…
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
...”
Judge Nicholls in SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 at [23] summarised considerations which are relevant to such an application as being:-
“1. The extent of the delay and the reasons for the delay.
2. Whether there is any merit in the application.
3. Whether there is any prejudice to the Respondents.
4. The impact on the Applicant.
5. The interests of the public at large.
6. The Court’s discretion itself.”
There is no prejudice to the Respondents that cannot be met with an order for costs, and it is clear the Applicant wishes to pursue his application. The public interest is for the Court to have an ability to determine judicial review applications in a timely way and with application of a reasonable share of the resources of the Court. I consider the Applicant’s explanation for the delay, the extent of it and the merits of his substantive application are matters mostly to the forefront in these proceedings.
Extent of the delay and reasons for the delay
The extent of the delay is significant. The Applicant’s explanation for the delay is that his authorised migration agent, Mr Hugh Ford, failed to notify him about the outcome of the Tribunal’s decision; thus, the delay was “beyond his control”.
The Tribunal’s Decision Record is dated 18 October 2016. It was sent to Mr Ford under cover of an email on 19 October 2016 to the email address of [email protected]. Mr Ford was nominated as the Applicant’s representative and authorised recipient on 17 August 2016, and this nomination was communicated to the Tribunal on 18 August 2016.
The Applicant puts no evidence before the Court in support of his claim that his migration agent failed to notify him of the Tribunal’s decision, save his own evidence as contained in his affidavit affirmed 31 March 2017 wherein he deposes to his migration agent not notifying him about the decision within time. He does not depose as to when his migration agent provided him with notification of the decision, nor with how it was he became aware of the Tribunal’s decision.
The Applicant, relying on the alleged omission of his migration agent without any further evidence, does not satisfactorily explain the lateness of his application. Additionally as submitted by Counsel for the First Respondent, in any event, the “onus still remains on the Applicant” to make proper inquiries and take reasonable action in relation to making a judicial review application.[1] There is no evidence before the Court that such inquiries were ever made by the Applicant. The Court concludes that the Applicant’s explanation for the delay in the context of the significant delay is not adequate.
[1] SZOCH v Minister for Immigration & Anor [2010] FMCA 300, 9 [43].
The Court turns to a consideration of the merits of the substantive application. The Court finds the substantive application for judicial review of the Tribunal decision is without merit, and there is no arguable case of jurisdictional error raised by the Applicant.
The Applicant’s grounds of application are as set out in his application filed 31 March 2017. Those grounds of application are 10 in number. They either restate the Applicant’s claims, or make assertions that the Applicant has a strong case that it is not appropriate for him to return to Pakistan, and that, “the AAT’s decision suffers from jurisdictional error.” The grounds are not sufficiently particularised. However, the grounds of application can be said to make complaint that the Tribunal:-
a)failed to give any weight to the documentary evidence which showed that the Applicant was enrolled in a registered course of study and erred in finding that the Applicant’s non‑commencement of his studies meant he failed to enrol in a registered course (‘failure to consider enrolment’);
b)failed to take into account a relevant consideration being his mental and physical condition which prevented him from commencing his studies (‘failure to consider medical condition’); and
c)failed to take into account a relevant consideration being the advice he received from a staff member of the University of Canberra about deferment of his studies (‘failure to consider advice from the university’).
What, in essence, the above grounds do is to seek merits review of the Tribunal’s decision which, in the circumstances and facts of this case, is not permissible.
Background
The Applicant is a national of Pakistan born on 12 November 1993. The visa subject to cancellation was granted on 5 July 2013 and was subject to condition 8202. The Applicant’s visa was cancelled under s.116(1)(b) of the Act.
Section 116(1)(b) of the Act is as follows:-
“MIGRATION ACT 1958 - SECT 116
Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…”
Condition 8202 of the Migration Regulations 1994 (Cth) (‘the Regulations’) is relevantly as follows:-
“8202 (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
…”
On 19 November 2015 the Applicant was issued with a notice of intention to consider cancellation (‘NOICC’) in accordance with s.119(1) of the Act because the delegate considered that the Applicant did not comply with the condition of his visa, being condition 8202 of the Regulations, because the Applicant had ceased to be enrolled in a registered course of study from 31 July 2014.
On 11 December 2015, the Applicant provided a written response to the NIOCC. On 14 January 2016, the delegate decided to cancel the visa held by the Applicant on the basis that the Applicant breached condition 8202 of his visa.
The delegate noted in the delegate’s Decision Record of 14 January 2016, the Applicant had stated that his intended purpose of travel to and stay, in Australia, was to study English, a Diploma of Information Technology, and a Bachelor of Information Technology. Based on the evidence available to the delegate in the Provider Registration and International Student Management System (‘PRISMS’), the delegate found the Applicant not currently enrolled in a registered course and had not been so enrolled in a registered course of study since 31 July 2014. Thus, it appeared to the delegate the Applicant was no longer in Australia in accordance with the original purpose of his visa and, therefore, did not meet the requirements of condition 8202(2)(a). The delegate further noted that the PRISMS record indicated that the Applicant’s last enrolment for a Bachelor of Information Technology at the University of Canberra was cancelled on 31 July 2013, due to non-commencement of studies.
The delegate took into account the Applicant’s comments that he personally sought medical attention from Dr Christine Phillips from Companion House. The delegate noted the Applicant had the opportunity to seek a deferral from the education provider if he was experiencing personal problems and could not study, or he could have departed from Australia until he was fit and able to return to study. The delegate found no evidence that the Applicant sought a deferral from the education provider. Since 31 July 2014, Departmental records confirmed the Applicant remained onshore during the relevant period and the delegate therefore gave this claim little weight, as it was a condition of the Applicant’s student visa that he study a registered course and progress academically.
The delegate further noted that in respect of the Respondent’s claim that he was granted a deferral from Canberra University until 24 February 2014, that the evidence before the delegate suggested that this was a conditional offer to commence his course of studies on 24 February 2014, as a result of the Applicant not commencing his studies in July 2013. The evidence before the delegate did not support the Applicant’s reasons for not enrolling in a Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’) registered course after 31 July 2014.
The Tribunal
The Applicant proceeded to make an application for review to the Tribunal in respect of the delegate’s decision to cancel his subclass 573 higher education sector visa. He was invited to attend, and did attend a hearing before the Tribunal on 26 August 2016, wherein the Applicant was able to give evidence and present arguments. He was represented by a registered migration agent at the hearing in relation to the issues on review. The Tribunal affirmed the delegate’s decision on 18 October 2016.
The Tribunal correctly set out the issue for it in paragraph 7 of the Statement of Decision and Reasons (‘the Decision Record’) wherein the Tribunal stated:-
“The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
(emphasis in original)”
The Tribunal noted that the Applicant’s visa was cancelled on the basis that he was not enrolled in a registered course. Compliance with condition 8202(2) requires the visa holder to remain enrolled in a registered course at all times while the visa is in effect.[2]
[2] Liuv Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170.
The Tribunal’s decision
The Tribunal was satisfied, on the basis of student management records and the delegate’s decision record, that the Applicant had not been enrolled in a registered course since at least 31 July 2014.
Having found non-compliance with condition 8202(2), the Tribunal proceeded to consider the Applicant’s circumstances as a whole before exercising its discretion to cancel the Applicant’s student visa. In doing so, it had regard to the Applicant’s written and oral contentions, the documentary evidence before it and the relevant policy guidelines.
The Applicant claimed to be a good student in Pakistan, which the Tribunal was prepared to accept. The Tribunal was also prepared to accept that there would be a degree of hardship to the Applicant and his family if he had to return to Pakistan, the Applicant indicating that he loved Australia and that returning to Pakistan would be a big shock and very difficult.
The Tribunal noted in paragraph 21 of the Decision Record:-
“At the heart of the matter are claims by the applicant that there are extenuating circumstances beyond his control that explain a ground for cancellation being made out. This is allied with a claim that the enrolment was not cancelled, at least as far as the applicant was advised, given assurances that he could take up the package of courses he had originally been enrolled in at any time. The applicant claims that he believed that his courses were essentially deferred by the University of Canberra. The applicant indicates that the university told him that he would be in a guaranteed position to either commence or re-enrol in his studies when his health issues had resolved.”
The Applicant provided to the Tribunal a letter dated 20 August 2013 from the University of Canberra offering him a package of courses, commencing with an English course on 20 February 2014 (following deferral of his course from 18 July 2013 to 20 February 2014) progressing to a Diploma of Information Technology commencing on 30 June 2014, and then progressing to a Bachelor of Information Technology commencing on 10 August 2015. The Tribunal noted that the letter as produced by the Applicant to the Tribunal did not show the Applicant accepting the offer in the space provided, nor did the Applicant commence the English studies in July 2013, nor did he commence any of the studies set out in the correspondence from the University of Canberra.
The Tribunal noted in paragraph 26 of the Decision Record that there was no reference in PRISMS records to any other enrolment, and no reference to the package of courses as described in paragraph 28 above being enrolled in. That was consistent with the letter of offer not being signed.
The Tribunal, in a carefully reasoned decision, considered the Applicant’s circumstances as a whole, weighing all matters, both favourable and adverse to the Applicant, and formed the view that the Applicant’s failure to enrol in a registered course of study demonstrated a lack of commitment by the Applicant to his visa or study obligation, at least up until mid-2015. In support of that conclusion, and as summarised in the First Respondent’s submissions, the Tribunal:-
a)found that the Applicant had not been meeting the purpose of his visit to Australia because he had undertaken no studies since his arrival in Australia in July 2013 until the cancellation of his student visa on 14 January 2016;
b)observed that although, on 20 August 2013, the University of Canberra had offered the Applicant a deferred package of courses commencing on 20 February 2014, there was no evidence that the Applicant accepted the offer, as the Applicant’s student management records did not refer to any other enrolments, including the same February 2014 courses being enrolled in. The Tribunal found these records to be consistent with the letter of offer not being signed by the Applicant;
c)did not accept that the Applicant’s education agent in Pakistan would have provided incorrect advice that an unaccepted offer of enrolment could result in the Applicant maintaining enrolment. In any event, the Tribunal found the Applicant’s email correspondence with his education agent from August 2013 was inconsistent with the Applicant’s claims that he always thought that his enrolment had been maintained;
d)considered that it would “defy common sense” that a person could consider their enrolment position was secure when an offer of enrolment had not been accepted, and where there was a clear indication on the face of the documents that the offer needed to be accepted. Accordingly, the Tribunal was not satisfied, on the evidence before it, that the Applicant was informed that he maintained his enrolment despite failing to accept the new offer for the courses commencing in early 2013 and, similarly, was not satisfied that the Applicant believed that his original enrolment continued following his failure to commence his original course and his failure to accept the offer of courses commencing in February 2014;
e)was not satisfied, on the basis of the records provided by the University of Canberra, that the Applicant was incorrectly told by a student adviser in February 2014 that he could commence his courses at any point in the future and/or that his enrolment position had been maintained; and
f)considered that the Applicant was aware, as early as August 2013, that he was likely not meeting his visa obligations, and observed that if health issues prevented study, then the appropriate course would have been to enrol and seek a deferral of those courses on compassionate grounds.
Accordingly, on the basis of those findings, the Tribunal was not satisfied that:-
a)the Applicant took appropriate steps to remedy the breach of his visa obligations, at least until July 2015, when he requested to re-enrol at the University of Canberra; and
b)there were any extenuating circumstances beyond the Applicant’s control for his breach of condition 8202(2).
Whilst the Tribunal acknowledged hardship to the Applicant, the Tribunal was not satisfied that there were extenuating circumstances beyond the Applicant’s control in relation to the breach.
In respect of a related matter, and in the broad exercise of its discretion, the Tribunal noted in paragraph 68 of the Decision Record that the issue of the Applicant claiming to fear persecution or significant harm on return to Pakistan had been appropriately dealt with through an application for a protection visa. The Applicant’s claims for protection had been rejected both by the delegate of the Minister and by the Tribunal. The Applicant was, at the time of the Tribunal hearing, undertaking judicial review in respect of his protection visa application and its refusal. The Tribunal noted that given the Applicant was:-
“…availing himself of the process which directly determines the right to remain in Australia based on protection obligations, there (sic) applicant’s claims of harm on return to Pakistan are not significant matters for the Tribunal in determining whether the applicant’s student visa should be cancelled.”
Consideration
Each of the findings made by the Tribunal were clearly open to the Tribunal on the evidence and materials before it. The weight to be given to any particular piece of evidence is a question for the Tribunal and not for this Court. [3]
[3] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
The Tribunal proceeded throughout, on the basis that the Applicant’s enrolment was not cancelled until 31 July 2014, and the Tribunal did not err in making such a finding.
The Tribunal expressly considered the letters provided by the Applicant’s doctor in relation to the Applicant’s health condition and dealt with that claim at paragraphs 58 to 60 of the Decision Record. The Applicant’s claim that the Tribunal failed to take proper account of his mental and physical condition as the reason for him not being able to commence enrolment in his studies cannot be made out. The Tribunal took proper account of all the claims and matters put before it by the Applicant and made findings clearly open to it on the evidence.
Otherwise, the Applicant’s complaints amount to a dissatisfaction with the factual findings of the Tribunal and are without merit. No error of law was committed by the Tribunal, and there is no jurisdictional error attending its decision.
The application is dismissed and costs shall follow.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 6 April 2018
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