Vedantam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 723

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vedantam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 723

File number(s):

SYG 209 of 2020

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

8 April 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Higher Education Sector (sub-class 573) visa – whether the Tribunal fell into jurisdictional error in failing to provide adequate opportunity to the applicant to produce further document – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss 140, 357A, 379A, 359AA

Migration Regulations 1994 (Cth), condition 8202.

Cases cited:

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v AAM17 [2021] HCA 6

Number of paragraphs:

25

Date of last submission/s:

8 April 2021

Date of hearing:

8 April 2021

Place:

Parramatta

Solicitor for the Applicant:

The applicant appeared in person, unrepresented.

Solicitor for the Respondents:

Ms Xiao

ORDERS

SYG 209 of 2020

BETWEEN:

NARSIMHA SAI SIDDARTHA VEDANTAM

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	8 APRIL 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant to pay the first respondent’s costs fixed in the amount of $6,500.00.

REASONS FOR JUDGMENT
(AS REVISED FROM TRANSCRIPT)

JUDGE HUMPHREYS

INTRODUCTION

1. This is judgment in the matter of Narsimha Sai Siddartha Vendantam v The Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs. Judgment in this matter is being given orally, following the High Court decision of Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v AAM17 [2021] HCA 6, which reaffirmed the right of this Court to give oral reasons. The applicant has also been advised that, should he wish to have these reasons in writing, he can apply to my Associate and they will be provided to him.

2. The applicant is a citizen of India. On 13 August 2018, a delegate of the Minister for Immigration (“the delegate”) cancelled the applicant’s Higher Education Sector (sub-class 573) visa on the basis the applicant had not complied with condition 8202 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate found that the applicant had not been enrolled in a registered course of study since 5 October 2017. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 13 January 2020, the Tribunal affirmed the decision to cancel the applicant’s visa. The applicant now seeks judicial review of the Tribunal’s decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

3. After setting out the background of the matter, the Tribunal first turned its consideration as to whether or not the applicant had breached condition 8202 of the Regulations, in that he was not enrolled in a registered course. At paragraph 7 of its decision, the Tribunal noted that the applicant agreed he had not been enrolled in a registered course of study since 5 October 2017 and that, accordingly, there were grounds for the cancellation of the student visa. Having found the grounds existed for the cancellation of the applicant’s student visa, the Tribunal then turned its mind to the circumstances in the case, including the matters raised by the applicant and the matters in the Department’s Procedural Instruction, “General Visa Cancellation Powers.

4. At Paragraph 13 of its decision, and onwards, the Tribunal noted that the applicant was an only child and that his parents had separated. The applicant stated that he wanted to go back to India to take care of his parents. The applicant stated that he had depression and could not concentrate on anything. The applicant said that he provided a medical certificate also. However, the applicant did not tell the whole story to the Department.

5. The Tribunal put to the applicant in respect of the Notice of Intention to Consider Cancellation, (“NOIC”) of his visa. The applicant’s response made no mention of the issue of his parents. The applicant also indicated that his girlfriend had left him at the time, but this was not the main issue, it was the situation with his parents.

6. At paragraph 19 of its decision, the Tribunal noted that the applicant gave evidence that he did not approach the University of Western Sydney to speak to them about his issues, including his depression. The Tribunal also put to the applicant that the only information before it in support of this assertion that he had depression was a script from a Dr Sharma, dated 6 August 2018, being a date after the applicant had received the NOIC. That certificate only stated “this is to certify that the applicant is under stress, according to his history, and was not able to come to his studies for the last one month”. The Tribunal put to the applicant that this did not make any sense, given the applicant had not been studying since October 2017.

7. At paragraph 28 of its decision, the Tribunal put to the applicant that he had not given the Tribunal any documentation whatsoever about his claim of his parents having difficulties. The applicant stated that he could provide paperwork showing that his parents got divorced in around July or August 2017. At paragraph 30 onwards of its decision, the Tribunal made a number of findings. These included that the applicant was an only child and that he had completed 75 per cent of his course. The Tribunal accepted that the applicant’s parents had experienced issued, and they ultimately separated and divorced, and this had had an adverse impact on the applicant.

8. The Tribunal also accepted that the applicant’s girlfriend had left him during that time. The Tribunal gave some weight to this information. The Tribunal accepted that the applicant had experienced stress around 6 August 2018 but does not accept that the applicant experienced depression at any time, let alone at the time he ceased to be enrolled in October 2017. There was simply no diagnosis from a medical practitioner to support that finding.

9. At paragraph 34 of its decision, the Tribunal found a contributing factor to the cessation of the applicant’s enrolment was that he did not pay all his course fees. The Tribunal accepted that the applicant could not concentrate on anything at the time. However, the Tribunal found that the applicant failed to take reasonable steps to manage his compliance with the conditions of his student visa, in that, he did pay all of his course fees and failed to notify the Department in the circumstances from the time he ceased enrolment in October 2017 until the time he received the NOIC on 31 July 2018. This was a period of nine months. The Tribunal gave this matter high weight at paragraph 37 of its decision. The Tribunal also found that the applicant’s personal circumstances were not exceptional.

10. The Tribunal then considered the various matters set out in the Department’s Procedure Manual. The Tribunal found that the applicant had no compelling need to remain in Australia. The Tribunal was satisfied, if the applicant went back to India, it would be hard on him because he was the only son of his parents and they wanted him to get a good job and have a good career. There was no evidence that the applicant had been uncooperative with the Department in the past. No dependents existed, in relation to the applicant’s student visa, and this played no part in the consideration. The Tribunal noted that the applicant was aware, if his visa was cancelled, a three year exclusion period could attach to him, and that he would have limited options to apply for further visas in Australia. The Tribunal did not place great weight on this matter.

11. The Tribunal concluded there were no international obligations, including non-refoulment in the best interests of children, which would be a primary consideration if the applicant’s visa was cancelled. At paragraph 54 of its decision, in considering the circumstances of the case as a whole, the Tribunal concluded that the applicant’s visa should be cancelled and affirmed the delegate’s decision.

    GROUNDS OF JUDICIAL REVIEW

12. The grounds of judicial review are set out in the Initiating Application filed with the Court on 31 January 2020. They are as follows verbatim.

    Ground one

    The Tribunal erred in law by deciding the matter without giving proper notice and particulars of information as required under Sec 359AA or Sec 359A of the Migration Act 1958 and this also violated the principles of natural justice.

    Particulars

    •The applicant was self-represented. The Tribunal while questioning the applicant regarding the fact that he was not enrolled in any course in Oct 2017 looked at PRISMS report but the applicant was not provided any copy of it.

    Full and clear particulars as required by Sec 359AA or Sec 359A of the Migration Act as to what the Tribunal considers would be the reason, or a part of the reason for affirming the decision that is under review was not provided to the applicant. Further the applicant was not advised he could seek additional time to reply to such matters of concern. This vitiated the principles of natural justice and the provisions of law.

    •The Tribunal failed to provide adequate opportunity to the applicant to produce further documents so it can appreciate the facts in support of his case.

    In paragraph 28 of the Tribunal order, to a question as to why the applicant has not produced “any documentation whatsoever about his claim of his parents having difficulties”, the applicant replied that he could provide paperwork showing his parents got divorced in July/August 2017.

    The Tribunal at any time during the hearing or thereafter didnot provide additional time to furnish the documents proving his parents difficulties and went to decide the review application without requesting the applicant to submit those documents. This failure to provide an opportunity to provide additional documents when volunteered by the applicant at the time of the hearing lead to miscarriage of justice.

    THE APPLICANT’S SUBMISSIONS

13. The applicant appeared before the Court unrepresented. The applicant did not seek the assistance of an interpreter, and the Court was satisfied that the applicant was able to participate in a meaningful way at the hearing before the Court. At the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant court books, and that he had been provided with, and understood, the first respondent’s written submissions. The applicant was also provided with a pen and paper, so he could take notes during the course of the hearing should he wish to.

14. The Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken. Despite Court orders, no written submissions in support of the application were filed with the Court until 29 March, well outside the 14 day timeframe prior to the hearing. No objection was taken to the late filing of these submissions by the first respondent. The applicant’s written submissions repeated the grounds of the application and advised that he had completed 75 per cent of a Masters in Engineering course. The applicant said he would have completed the course in a period of approximately three months, but opted to discontinue, due to peer pressure and depression.

15. The applicant stated that if he went back to India, the family situation at the time he left the country would still be the same. The applicant said that if he goes back to India, he will not feel safe and, economically, it’s not a valid option. In the applicant’s submissions, he stated “Australia has provided me with everything”. The applicant stated that Australia is one of the major countries that has a higher job rate compared to India and that “if I move back to India, the situation will be worse for me”. The applicant completes his submission with the following, “I humbly request, Mr Judge, please give me one chance in life to sort out my future”. In the applicant’s oral submissions, he reiterated those matters and the reasons why he said he was unable to continue with his course.

    THE FIRST RESPONDENT’S SUBMISSIONS

16. In relation to ground one, the first respondent notes that the Tribunal’s obligation to give adverse information to the applicant, whether in writing under s 359A of the Migration Act 1958 (Cth) (“the Act”) or orally under section 359AA of the Act, at the hearing, relevantly requires it to provide: “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”. This requirement is subject to categories of exemption set out in section 359A(4) of the Act.

17. While the PRISMS records constitute information for the purpose of s 359A of the Act, the Tribunal, in this case, was under no obligation to provide a copy of the PRISMS record to the applicant because that information was consistent with what the applicant told the Tribunal, and which the Tribunal accepted. That was, the applicant had not been enrolled since October 2017. Thus, the information constituted information “that the applicant gave for the purposes of the application for review” and was excluded by the operation of

    
    

    s 359A(4) of the Act.

18. Accordingly, it follows for the same reasons, that there was no obligation on the Tribunal to orally advise the applicant that he might seek additional time to comment on, or respond, to that information because s 359AA of the Act did not apply to that information. Beyond that,

    
    

    s 357A(1) of the Act makes clear that Division 5, Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule, in relation to the matters it deals with.

19. In relation to ground two, it is submitted by the first respondent that the ground is factually misconceived. The applicant offered to provide “paperwork showing his parents got divorced in July/August 2017” in response to the Tribunal’s observation at the hearing that he had not provided any documentation in support of this new claim. Despite the absence of that documentary evidence, the Tribunal, nevertheless, accepted the applicant’s claim that his parents had experienced issues and, ultimately, separated around the time of his cessation of enrolment, and expressly gave those issues some weight. It is submitted that any documentation which supported the parents’ divorce would have been immaterial to the Tribunal’s factual findings. Accordingly, no denial of procedural fairness can arise in this way.

    CONSIDERATION

20. The Tribunal noted that on the applicant’s own admission, he ceased enrolment in the requisite course of study in October 2017. Accordingly, the grounds for the cancellation of his visa existed. Having found that grounds existed for the cancellation of his visa, the Tribunal properly went on to consider its discretion as to whether or not his visa should be cancelled.

21. The considerations undertaken by the Tribunal included the circumstances in which the ground for cancellation arose; the purpose for his travel and stay in Australia and whether or not he had a compelling need to remain in Australia; the extent of compliance with the conditions of the visa, any hardship that might arise; past and present behaviour towards the Department; whether there would be any consequential cancellations under s 140 of the Act, and whether cancellation might prevent any other person from making a visa application; any international obligations and any other relevant matters. No issue was taken by the applicant in relation to the matters that the Tribunal considered, and his grounds of judicial review relate to a very small compass of issues.

22. In ground one , the applicant asserts that the Tribunal was under an obligation to provide him with details, or a copy, of the PRISMS report, and that he was not given or made aware of extra or additional time that could be granted to answer such concerns. Given the applicant himself acknowledged that he had ceased his enrolment, this assertion cannot be sustained. The Court is satisfied that the material contained within the PRISMS report, insofar as its materiality, did not impact on the applicant’s claims and is covered by the exemption contained within

    
    

    s 359A(4)(b) of the Act, in that it was information the applicant gave for the purposes of the application for review. The applicant himself was aware of that information. No jurisdictional error can arise as a result. There was no procedural unfairness.

23. Ground two asserts that the Tribunal failed to provide the applicant with an “adequate opportunity” to produce documentation regarding his parents’ divorce. It is clear from the decision record that the Tribunal accepted the applicant’s claim that his parents had experienced issues and, ultimately, separated and were divorced. The Tribunal expressly gave that matter some weight at paragraph 21 of its decision. The Court accepts the first respondent’s submissions on these issues, that any documentation to support the claim of the applicant’s parents’ divorce would have been immaterial to the actual outcome. The Tribunal accepted that material and considered it. Accordingly, in these circumstances, given the material was accepted by the Tribunal, no jurisdictional error exists.

24. As the applicant is unrepresented, the Court has perused the Tribunal record, but is unable to find any jurisdictional error that has not been articulated by the applicant.

    CONCLUSION

25. The application is dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       8 April 2021

Written Reasons for judgment requested on 8 April 2021 and published on 14 April 2021