WANGDI v Minister for Immigration and Anor

[2020] FCCA 743

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANGDI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 743

Catchwords:
MIGRATION – Student visa – whether applicant complied with the requirements of regulation – no failure to consider claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 359, 359C, 360, 363, 379A, 477
Migration Regulations 1994 (Cth), reg.4.17

Cases cited:

Hasran v Minister for Immigration & Citizenship & Anor (2010) FCAFC 40

Applicant: JIMMY WANGDI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 390 of 2019

Judgment of: Judge McNab

Hearing date: 26 March 2020

Date of Last Submission: 26 March 2020

Delivered at: Melbourne

Delivered on: 2 April 2020

REPRESENTATION

The Applicant in person

Counsel for the Respondent: Ms S Anacic

Solicitors for the Respondent: The Australian Government Solicitors

ORDERS

1. The application filed 2 October 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 390 of 2019

JIMMY WANGDI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 13 November 2019, the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 29 August 2019. By that decision, the Tribunal affirmed a decision, a delegate then Minister for Immigration and Border Protection on 4 December 2017, to cancel the applicant’s student (temporary) (class TU) subclass 573 visa (“the student visa”) under s.116(1)(b) of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant set out two grounds of application, which provided the following:

   1.I am a genuine student. I have no other intention other than to complete my studies, and I am single with motive to go back to my country and settle there.

   2.I was not [a] given chance to appear [at the] AAT hearing.

3. The applicant appeared on his own behalf, and the first respondent was represented by Ms Anacic. The applicant, in response to an invitation to provide an explanation for the grounds, or to expand on the grounds, advised the Court that he was:

   a)now aged 24 years of age;

   b)really ambitious; and

   c)at the time that the Tribunal was considering his conduct as a student, he was very immature and lacked focus.

4. The applicant said that he was now very focused and wanted to have the opportunity to obtain a certificate. He made reference to the loss of his brother and said that he wished to complete and obtain a certificate and return to his country to serve his people and his King.

5. The applicant also stated there was some confusion caused by the migration agent as to whether he could or could not appear at the hearing. In submissions in reply, the applicant acknowledged he had breached his visa between 7 February 2017 and 17 August 2017, and that apart from that period he had been enrolled in courses. He stated again, that at that time he was very immature and he had come from a very remote country, but that he was now highly motivated to succeed. He said that he had made a mistake and that his parents had invested large amounts of money in his education, and that he wished to have a second chance, as a return to Bhutan [without completion of his studies] would cause a great deal of hurt to him and his family.

6. The Minister relied upon the written submissions that had been filed and served on the applicant and Ms Anacic provided a clear and concise summary of those submissions for the benefit of the applicant at the hearing.

Background

1. The background and chronology is accurately set out in the submissions filed on behalf of the Minister. Those provide the applicant is a citizen of Bhutan who first arrived in Australia on 22 August 2014 as a holder of the student visa. It was a condition of that visa that the applicant was required to be enrolled in a registered course: condition 8202.

2. On 9 October 2017, the applicant was notified by a delegate of the first respondent of the intention to consider cancellation of his student visa under s.116(1)(b) of the Act. The notice contended that the applicant had not complied with condition 8202(a) of schedule 8 to the Migration Regulations 1994 (Cth) (“the regulations”) which required him to be enrolled in a registered course between 7 February 2017 and 7 August 2017.

3. On 16 October 2017, the applicant provided a statutory declaration and evidence in response to the notice through his solicitor and registered migration. In the statutory declaration the applicant:

   a)admitted that he was not enrolled in a registered course of study between 7 February 2017 and 17 August 2017;

   b)explained his reasons for coming to Australia as being to study in Australia, obtain a bachelor degree and return to Bhutan and “obtain a good job” and support his parents;

   c)explained his course study and progression;

   d)stated that one of his brothers living in Bhutan became very sick with cancer and passed away in 2016;

   e)explained the financial hardship that would be caused to his parents by the cancellation of the visa due to the cost that the parents had incurred in paying for the applicant to study in Australia, and the applicant’s inability to pursue his intended field of work in community services without completing a bachelor of community services; and

   f)asked for a “second chance” and said that he would do his best to improve and not to have “any more visa problems”.

4. On 4 December 2017, a delegate of the first respondent notified the applicant of the cancellation of his student visa pursuant to s.116 of the Act.

5. On 7 December 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.

6. On 25 March 2019, the applicant was invited to attend a hearing before the Tribunal. On 3 April 2019, the applicant provided a completed and signed response to the hearing invitation indicating that he would attend the hearing, and that his migration agent would not attend the hearing. On 17 April 2019, the applicant’s migration agent provided a completed and signed response to the hearing invitation confirming that the agent would not attend the hearing.

7. On 18 April 2019, the Tribunal sent two letters to the applicant to advise him that the hearing was adjourned and to invite the applicant to provide information regarding whether there were grounds for cancelling the applicant’s visa, and if so, whether the visa should be cancelled. The applicant was further advised that if he did not provide information within the period allowed, the Tribunal could make a decision on review without taking any further action to obtain the information, and the applicant would lose any entitlement he would otherwise have to appear before the Tribunal.

8. On 13 May 2019, the Tribunal sent a letter to the applicant advising him that it had not received any information from him, and that he had therefore lost the entitlement to appear before the Tribunal. The Tribunal also stated that if the applicant wished to provide any further information, he should do so within seven days. On 4 June 2019, the applicant provided a written submission through his registered migration agent.

9. On 29 August 2019, the Tribunal affirmed a decision of the delegate to cancel the applicant’s student visa. On 2 October 2019, the applicant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court.

The legislative framework

1. Clause 573.611(a) of schedule 2 to the regulations provided that it was a condition of that visa that the applicant had to satisfy condition 8202. At the time of granting the applicant’s visa condition 8202(1) provided that the visa holder must meet the requirements of, relevantly, 8202(2). Condition 8202(2) provided:

   (2)The holder meets the requirements of this subclass if:

   a)the holder is enrolled in a [full-time] registered course; or

   b)in the case of the holder of a subclass 560 or 571 (school sector) visa, who is a secondary exchange student, the holder is enrolled in a full time course of study or training.

2. The first respondent may, pursuant to s.116(1)(b) of the Act, cancel a visa if he is satisfied that the visa holder has not complied with a condition of the visa. If the ground for cancellation is made, how the decision-maker must give consideration to the relevant circumstances pertaining to the visa holder, are not limited to matters identified in the department’s procedures advice manual PAM3: general visa cancellation powers.

The Tribunal Decision

1. The Tribunal’s decision is reasonably comprehensive in that it sets out the background to the application being made and the claims and evidence of the applicant. The Tribunal referred to condition 8202 and found at [15] that the applicant, as a holder of a student visa (subclass) 573 was required to comply with condition 8202(2) to be enrolled in a registered course, and found that the applicant was not enrolled in a registered course between 8 February 2017 and 7 August 2017.

2. That was a finding that was open to the Tribunal, particularly in circumstances here the applicant had admitted that he had not been enrolled in a registered course between those dates. The Tribunal then turned to consider the exercise of discretion to cancel the visa.

3. The Tribunal did consider the applicant’s claims that he was distressed at the death of his brother, and at paragraphs [18]-[21] considered those matters. At [21] the Tribunal stated:

   21.The lack of evidence supporting the applicant's claims about the death of his brother and the medical impact on the applicant was noted in the delegate's decision record. The applicant has provided no further evidence to the Tribunal than was before the Department. The Tribunal is of the view that the applicant has had ample opportunity to obtain evidence to support his claim in respect of his brother and his mental health.

4. The Tribunal then went on to consider a submission made by the applicant’s migration agent about the effects of the breakup of a relationship, but stated that it did not give that matter any weight because the applicant did not mention that in his statutory declaration signed on 16 October 2017 and did not provide an amended or additional statutory declaration to confirm that this was his evidence.

5. At [24], the Tribunal found that the applicant’s enrolment in the registered course was cancelled because he failed to meet satisfactory attendance requirements, and was not satisfied on the evidence that the applicant suffered any physical or psychological condition, or that there was any other circumstances beyond his control that caused the applicant to be unable to attend his course.

6. In relation to the grounds raised by the applicant, in relation to the first ground that is, in effect, an assertion that the Tribunal erred by failing to consider the applicant’s genuine intention to complete his studies and return to his home country. In my view, the Tribunal did consider those matters. At [29] the Tribunal found that there was nothing to suggest that the applicant’s travel to Australia was motivated by anything other than study, but then went on to state that it was concerned that the applicant’s change in direction from studying business to hospitality and community services and then the lack of demonstrated progress in either of those courses suggested that there may be another purpose for his stay in Australia.

7. As to whether the applicant complied with condition 8202, the Tribunal set out its basis for cancellation of the visa, at paragraphs 12 and 13 as follows:

   12.Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

   13.In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. There is no failure on the part of the Tribunal to consider whether or not the applicant was a genuine student.

9. In relation to the second ground, which raises a claim that the Tribunal did not invite the applicant to attend a hearing, the following matters were submitted by the first respondent, and I accept those submissions:

   a)on 18 April 2019, the Tribunal invited the applicant to give additional information to the Tribunal pursuant to s.359(2) of the Act. The s.359 letter requested the applicant to respond to the information by 2 May 2019. That request complied with the proscribed 14 day period under reg.4.17(4) of the regulations;

   b)the s.359 letter was emailed to the applicant’s authorised representative in accordance with s.379A(5);

   c)the application to the Tribunal indicates that the applicant appointed a migration agent as his representative;

   d)in due course, the applicant failed to respond by 2 May 2019, and the Tribunal’s discretion to make a decision on review without further action was enlivened: s.359C(1) of the Act;

   e)as s.359C(1) applied to the applicant, the Tribunal’s procedural fairness obligation in s.360(1) to invite the applicant to a hearing does not apply: s.360(2)(c) of the Act;

   f)because s.360(2)(c) of the Act applied, the applicant was not entitled to appear before the Tribunal: s.363 of the Act; and

   g)as the applicant has lost his entitlement to appear before the Tribunal, the Tribunal did not have the power to permit the applicant to appear before it. The Tribunal, at paragraphs 5 and 6 of its decision, made reference to these circumstances and correctly referred to the authority of Hasran v Minister for Immigration & Citizenship & Anor (2010) FCAFC 40; 183 FCR 413.

10. In my view, there is no error demonstrated in the way the Tribunal conducted itself in relation to inviting the applicant to appear at the hearing.

11. For these reasons, the application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  2 April 2020