Waris v Minister for Immigration

[2018] FCCA 465

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARIS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 465

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Class TU) (Subclass 573) Higher Education Sector visa – show cause hearing – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to comply with s.359A – whether the Tribunal disregarded evidence.

Legislation:
Migration Act 1958, s.359A
Migration Regulations 1994, condition 8202(2) of Schedule 8
Federal Circuit Court Rules 2001, r.44.12(1)(a)

Applicant: SYED SHAMS MADANI WARIS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 338 of 2017

Judgment of: Judge Riley

Hearing date: 5 February 2018

Date of last submission: 5 February 2018

Delivered at: Melbourne

Delivered on: 5 February 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Siran Nyabally

Solicitors for the first respondent: Mills Oakley

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Mills Oakley

ORDERS

1. The application filed on 21 February 2017 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 338 of 2017

SYED SHAMS MADANI WARIS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)[1]

[1]    Reasons for judgment were given orally on 5 February 2018.  The applicant filed an application for leave to appeal on 14 February 2018. The registry advised chambers on 23 February 2018 that the applicant had applied for leave to appeal. Chambers ordered a transcript of the reasons for judgment on 23 February 2018. Auscript provided the transcript of the reasons for judgment on 26 February 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 27 February 2018.

1. This matter was listed today for a show cause hearing in relation to an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) to cancel the applicant’s student visa. 

2. The applicant first arrived in Australia in October 2008 on a student visa.  He had a number of student visas subsequently.  The last one was granted on 12 February 2015.  However, the applicant ceased being enrolled in a course of study on 16 March 2015.

3. The applicant’s student visa was subject to condition 8202(2) of Schedule 8 of the Migration Regulations 1994 (“the Regulations”). That condition required the applicant to be enrolled in a registered course or, in some limited cases that are not presently applicable, in a full-time course of study or training. The applicant was not enrolled in a relevant course after 16 March 2015.

4. The Department of Immigration and Border Protection (“the Department”) sent the applicant a notice of intention to consider cancellation of his visa on 16 May 2016.  The delegate proceeded to cancel the visa on 31 May 2016.  The applicant then sought review by the Tribunal.

5. The Tribunal invited the applicant to a hearing on 24 January 2017.  The applicant appeared at the hearing.  The Tribunal heard evidence from him.  The Tribunal also heard evidence from his friend, Mohamed Safni Seyeed, by telephone.  The applicant was represented by a registered migration agent.  However, at paragraph 3 of the Tribunal’s reasons for decision it is stated that the agent did not attend the hearing.  I take it that the agent was not able to participate in the hearing by telephone.

6. The Tribunal noted that the applicant conceded at the hearing that his enrolment had ceased on 16 March 2015 and that he had not been enrolled in any course since that time. The Tribunal concluded that the applicant had not complied with condition 8202(2) of Schedule 8 of the Regulations. The Tribunal then considered whether it ought to exercise its discretion to cancel the applicant’s visa. The Tribunal noted that there were no specific matters that it was required to consider in exercising its discretion. However, the Tribunal indicated that it had regard to matters set out in the Departmental Procedures Advice Manual (“PAM”).

7. The Tribunal noted that it had received certain documents from the applicant, including:

   a)his response to the notice of intention to consider cancellation, which enclosed:

   i)a letter from Mr Seyeed;

   ii)a letter from a real estate agent; and

   iii)a notice to vacate residential premises;

   b)traffic infringement notices;

   c)a notice to vacate residential premises;

   d)documents relating to his parents’ finances; and

   e)Migration Review Tribunal documents from 2014 relating to the applicant’s previous application.

8. The Tribunal considered the applicant’s circumstances under the various headings suggested by the PAM.  The Tribunal noted that the applicant had enrolled in a Diploma of Accounting and a Bachelor of Business Studies at Holmesglen.  However, it seems that the applicant changed course a number of times.  The Tribunal concluded that the applicant had completed his Diploma of Accounting but had not completed any other course in the eight years that he had been in Australia before his visa was cancelled.  The Tribunal considered that while the applicant may have originally come to Australia to study, his lack of progress in his courses detracted from his claim that he intended to study in Australia.  The Tribunal found that this weighed in favour of cancelling the applicant’s visa. 

9. The Tribunal considered whether the circumstances were beyond the applicant’s control.  The Tribunal noted that the applicant said that he had lent $10,000 to Mr Seyeed and because Mr Seyeed had not repaid him in time he was unable to pay his tuition fees.  The Tribunal noted that Mr Seyeed gave somewhat different evidence about how much was borrowed and how much remained owing.  However, the Tribunal accepted that the applicant lent Mr Seyeed a considerable amount of money.  However, the Tribunal did not consider that these circumstances were beyond the applicant’s control, as he had voluntarily chosen to lend money to his friend rather than pay his course fees. 

10. The Tribunal noted that the applicant had been given a notice to vacate his property due to the non-payment of rent.  The documents provided by the applicant in relation to this issue are at CB19 and CB20.  They basically said that rent had been unpaid and that, if the rent were brought up to date within three days, no further action would be needed.  There was nothing to indicate that the applicant had, in fact, been evicted from that property.  Nevertheless, the Tribunal did accept that the applicant may have had some issues with housing during the period that he was not enrolled. Ultimately, the Tribunal gave that matter limited weight.

11. The Tribunal noted the traffic infringement notices that the applicant had produced.  However, the Tribunal considered that these matters should be given very limited weight and that they were not circumstances outside the applicant’s control, given that they stemmed from the applicant speeding while driving. 

12. The Tribunal then considered the applicant’s compliance with his visa conditions.  The significant issue in this connection was the applicant’s failure to be enrolled in a relevant course of study for a period of 14 months.  The Tribunal gave that factor significant weight in favour of cancelling the visa.

13. The Tribunal then considered the hardship that might be caused to the applicant and his family as a result of the cancellation of his visa.  The Tribunal noted that the applicant had said that he had suffered depression that had caused him some inability to study.  The applicant said that his family had spent between $50,000 and $70,000 on his education which would, in effect, be wasted if he were not able to complete his studies.  The Tribunal accepted that the wasted money would be a hardship and gave that factor some weight in favour of not cancelling the applicant’s visa.

14. The Tribunal noted that the applicant had married in September 2016 and that his wife is an Australian citizen.  The Tribunal acknowledged that if the applicant’s visa were cancelled, he and his wife might suffer temporary hardship occasioned by their separation, if the applicant were obliged to return to India without his wife. 

15. The Tribunal considered whether the applicant had been truthful and cooperative in relation to his dealings with the Department.  The Tribunal considered that the applicant had engaged in relation to the notice of intention to consider cancellation of his visa and noted that there was no other evidence before it relating to the applicant’s truthfulness and cooperation.

16. The Tribunal considered whether there were any mandatory legal consequences in relation to a cancellation decision.  The Tribunal noted that the applicant may be prohibited from applying for a further temporary visa for three years.  The Tribunal gave some weight to the seriousness of that consequence and considered that to be a matter in favour of not cancelling the applicant’s visa. 

17. The Tribunal considered whether there were other people whose visas might be affected and found that there were none.

18. The Tribunal then considered whether there were any other relevant matters.  The Tribunal noted that that the applicant claimed to have successfully completed 90 per cent of his subjects and that he was close to finishing his degree.  The Tribunal gave that matter some weight in favour of not cancelling the visa. The Tribunal noted that the applicant claimed that he was now in a financial position to return to his studies.  The Tribunal gave limited weight to the applicant’s evidence about his current ability to study.

19. The Tribunal concluded that the factors in favour of cancelling the applicant’s visa outweighed the factors in favour of not cancelling the applicant’s visa.  In particular, the Tribunal noted the significant period of time in which the applicant had not been enrolled in a registered course and the circumstances that led to his enrolment being cancelled.  Basically, these circumstances were that the applicant decided to lend some money to a friend rather than paying his course fees, and the long period of time that the applicant had studied in Australia without completing his course. The Tribunal affirmed the decision under review.

20. The applicant appeared in court today without the benefit of a legal representative.  The applicant did not file any written submissions. 

21. The applicant was asked at the commencement of the hearing whether he wished to add to the grounds set out in his application.  He told the court that he had provided medical evidence that he suffered from depression and said that meant that he was unable to answer questions properly in the Tribunal hearing.

22. The medical evidence provided by the applicant is at CB91.  It is a two-line letter dated 1 February 2017 from a doctor.  It certified that the applicant suffers from generalised anxiety disorder, depression and panic disorder and said that these conditions had affected the applicant’s study.  That document was before the Tribunal.  The Tribunal noted that the letter did not indicate how long the applicant had suffered from the conditions mentioned.  The Tribunal gave limited weight to the medical certificate as an explanation for the applicant’s breach of his visa conditions.  For present purposes, the medical certificate did not indicate that the applicant was unable to properly answer questions from the Tribunal.

23. The applicant was represented at the time of the Tribunal hearing.  The representative did not submit to the Tribunal that the applicant was unable to properly participate in the hearing.  As mentioned previously, the agent did not actually attend the hearing.  However, prior to the hearing, the agent could have said that the applicant was unfit for the hearing, if that had been the case, and sought an adjournment.  The applicant was not able, in submissions to this court, to indicate, except in the most general terms, how his evidence to the Tribunal would have been different if he had not suffered from depression.

24. It is true that the Tribunal noted in a number of areas that the applicant’s evidence was inconsistent or garbled.  However, the Tribunal gave the applicant the benefit of the doubt in those areas, including in relation to Mr Seyeed’s loan and including in relation to the applicant’s housing situation.  To the extent that the applicant said that his evidence would have been different, it related to the timeline in relation to housing and finances.  However, it is difficult to see how this could have resulted in any different outcome before the Tribunal given that the Tribunal essentially gave the applicant the benefit of the doubt in relation to those matters.  I do not accept that it is arguable that the Tribunal fell into jurisdictional error in relation to the applicant’s mental state at the time of the hearing.

25. The application itself sets out four grounds.  The first ground is that the Tribunal failed to accord the applicant procedural fairness.  The applicant explained that this ground related to his depression.  There is nothing to indicate that the applicant was unable to properly put his case to the Tribunal.  This ground does not give rise to a reasonably arguable case.

26. The second ground is that the Tribunal failed to comply with s.359A of the Migration Act 1958 (“the Act”).  The particulars are as follows:

    a.The Tribunal committed jurisdictional error by failing to give in accordance with s 359A of the act, clear particulars of the followings

    i.The financial hardship reasons given and evidence submitted by me for not being able to pay my course fees were disregarded by the Tribunal and not assessed.

27. As was explained to the applicant during the hearing, s.359A of the Act requires the Tribunal to give certain information that it has obtained to the applicant for his comment. Section 359A of the Act does not require the Tribunal to give back to the applicant information that he has submitted. The applicant said to the court that he was unable to identify anything else that the Tribunal had done that might constitute a breach of s.359A of the Act.

28. In relation to whether the Tribunal had disregarded anything, the applicant said that it had disregarded his anxiety and panic disorder.  However, as already discussed, there is nothing to substantiate the claim that the applicant was unable to properly give evidence because of his mental condition.  It seems to me that this ground is not reasonably arguable.

29. Ground 3 in the application is that the Tribunal failed to give the applicant an opportunity to address the issues and grounds upon which the visa was cancelled.  The applicant provided to the Tribunal a copy of the delegate’s decision which set out the reasons for which the visa was cancelled.  In any event, the delegate’s views were overtaken by the review by the Tribunal.

30. The first reason for which the applicant’s visa was cancelled was that the applicant had not been enrolled since 16 March 2015.  That is something that the applicant himself conceded to the Tribunal.  The second reason was that the applicant had not progressed through his courses in the eight years that he had been in Australia before his visa was cancelled.  The Tribunal’s view on that issue was informed by the applicant’s own evidence.  To that extent, the applicant was given the opportunity to address the ground on which the visa was cancelled.

31. The Tribunal was also particularly conscious of the fact that the applicant had not paid his enrolment fees because he had chosen to lend the money he had for that purpose to a friend.  That, again, was information that the applicant himself gave to the Tribunal and, in that sense, the applicant was given the opportunity to address the grounds upon which the visa was cancelled.  Ground 3 is not reasonably arguable.

32. Ground 4 is that:

    The Tribunal made a decision disregarding my evidence submitted and assessing the documents and evidence I submitted in paper form and oral submission

33. The applicant in relation to this ground said that the Tribunal had disregarded the fact that a previous Migration Review Tribunal had remitted his matter back to the delegate.  It seems that the delegate had refused to give the applicant a student visa in 2013.  The applicant had sought review by the Tribunal and the Tribunal had remitted the matter back to the delegate.  The applicant then obtained another student visa.

34. The applicant said to this court that the previous Tribunal had been satisfied that the applicant was a genuine student.  That may be so, but the Tribunal at one point in time does not bind the Tribunal at a later point in time.  Obviously, a Tribunal could properly make a finding that the applicant was a genuine student in 2014 and another Tribunal could, on the basis of new information, properly find in 2017 that the applicant was no longer a genuine student.  In any event, the Tribunal noted in paragraph 16 of its reasons for decision that a delegate had refused the student visa on the basis that the applicant had failed to satisfy a public interest criteria relating to health, and the Tribunal had remitted the matter to the delegate in 2014 for reconsideration.  That suggests that the Tribunal’s decision was not connected with the applicant being a genuine student back in 2014.

35. In any event, the present Tribunal cannot be criticised for not giving any weight to the findings of a previous Tribunal.  The current Tribunal was obliged to consider the matter on the evidence before it and reach its decision in light of all the available information.  The previous Tribunal’s decision could not have had a significant impact on that.  The applicant did not have anything else to say by way of elaboration of ground 4.  Ground 4 is not reasonably arguable.

36. I have looked at the Tribunal’s reasons for decision and pertinent parts of the court book.  The findings made by the Tribunal were open to it.  I have been unable to detect any jurisdictional error in the Tribunal’s reasons or decision-making process.  Consequently, the application will be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  27 February 2018