FEDERAL COURT OF AUSTRALIA

Suchdeva v Minister for Home Affairs [2019] FCA 178

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    This is an appeal from a decision of the Federal Circuit Court made on 9 August 2018. The Circuit Court dismissed the appellant’s application for judicial review of a decision of the Migration Review Tribunal on 20 January 2016. The Tribunal has since been amalgamated with the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of the Minister for Immigration and Border Protection by his delegate. The relevant responsibilities have since been assigned to the first respondent, the Minister for Home Affairs.

Background

2    The appellant was granted a Student Temporary TU-573 Higher Education Sector visa on 23 January 2014. By letter dated 18 November 2014, the Department of Immigration and Border Protection gave the appellant notice of intention to consider cancellation of the visa pursuant to section 116 of the Migration Act 1958 (Cth). The notice referred to the appellant’s apparent breach of condition 8516 contained in Schedule 8 to the Migration Regulations 1994.

3    On 9 February 2015, a delegate of the Minister for Immigration and Border Protection, decided to cancel the appellant’s visa.

4    On the same day the appellant applied to the Tribunal for review of the delegate’s decision. The appellant was assisted at the Tribunal by Mr Amber Gupta, a registered migration agent.

5    On 20 January 2016, the Tribunal affirmed the delegate’s decision. It is unnecessary for me to refer in detail to the Tribunal’s decision, save for certain paragraphs that contain the gravamen of the Tribunal’s reasoning relevant to the issues raised in this appeal. The Tribunal at [22] said:

“The Tribunal noted that the applicant had enrolled and studied in a series of unrelated courses. His stated career path had changed significantly, having come to Australia under the SVP [Streamlined Visa processing] program to study IT, moving to cookery and was now claiming to be interested in studying management courses so he could be a team leader in a business. The Tribunal noted the significant changes in the applicant’s study and future employment plans in the short period of time in Australia.”

6    The Tribunal at [24] further explained its reasoning:

“The Tribunal has considered the applicant’s circumstances. The Tribunal is concerned about the changes in the applicant’s courses in Australia, which he has not explained to the satisfaction of the Tribunal. Changing career plans and study is not unreasonable, the Tribunal accepts that this occurs. However the applicant’s study history and stated future employment prospects, which have altered significantly a number of times in a short period of time, present a situation which the Tribunal is concerned with, in particular, that the applicant is not a genuine student at the higher degree level. The applicant has changed from the IT courses, which was his study background in India and the reason he came to Australia, and the basis for the provision of a 573 visa under the Streamlined Visa Processing (SVP), then when the opportunity, chose to leave the IT course pathway and started vocational courses, initially in management and then in cookery. Only when notified of his breach of visa condition did the applicant return to a management stream of studies. The Tribunal was not satisfied with the applicant’s explanation for such changes, including relevantly the return to the management course in late November 2014.”

7    The Tribunal at [28] found:

“The tribunal discussed the applicant’s belated enrolment in the CIC [Cambridge International College] courses, which he never commenced due to the visa cancellation. The applicant returned to enrol in the Management course, abandoning the cookery courses, when he was advised by the Department that he was in breach of his visa condition. The Tribunal considers that this enrolment was conducted for the purpose of meeting the conditions of the visa, and not for any genuine intention to study that course.”

(Emphasis added)

8    On 8 February 2016 the appellant applied to the Circuit Court for judicial review of the Tribunal’s decision. The appellant relied on five unparticularised grounds.

9    The application was heard by the Circuit Court on 9 August 2018. The Circuit Court dismissed the application on the same day, for the reasons, given ex tempore, by the primary judge: Suchdeva v Minister For Immigration & Anor [2018] FCCA 2404.

Appeal to this Court

10    On 30 August 2018 the appellant filed a notice of appeal to this Court. The appellant relies on 10 grounds of appeal from the decision of the Circuit Court:

“1.     The Federal Circuit Court erred in not finding that jurisdictional error occurred in the Administrative Appeals Tribunal;

2.    The Administrative Appeals Tribunal gave irrelevant consideration and failed to take into account relevant consideration in examining whether Section 116 (General Power) Migration Act 1958 should be exercised to cancel the Appellant's student visa;

3.    The General Power to cancel under section 116 of the Migration Act 1958 was exercised improperly and unfairly by the delegate;

4.    The were no existing legal grounds to cancel the Appellant's student visa;

5.    The AAT failed to give proper weight and consideration to evidence showing the difficulties encountered by the Appellant in adjusting to studying and living in Australia;

6.     The AAT failed to give proper weight to the evidence of the Appellant switching to the appropriate Higher Education Course upon the Notice to Cancel being issued;

7.    There was no evidence and therefore the finding of fact was wrong that the Appellant sought to abuse the student visa system;

8.    The costs awarded by the Federal Circuit Court of $7467.00 are manifestly excessive;

9.    The Honourable Court erred in law and/or in fact by taking into account irrelevant facts, material and evidence and failed to take into account relevant facts material and evidence;

10.     The Appellant seeks to file further grounds of appeal upon receiving a written record of decision of the Honourable Court.”

11    It was submitted on behalf of the Minister that the failure on the part of the appellant to give particulars of his grounds of appeal would be a sufficient basis to dismiss the appeal. I do not propose to dismiss the appeal on this basis given that the appellant has not been legally represented at any stage. However, for the reasons explained below, I am not satisfied that the appeal should be upheld on any of the above grounds.

12    It is convenient to address the grounds in the following order and grouping:

(1)    Ground 4;

(2)    Grounds 2, 5, 6 and 7;

(3)    Ground 9;

(4)    Grounds 1, 3 and 10; and

(5)    Ground 8.

Ground 4

13    Ground 4 contends that “there were no existing legal grounds to cancel the … visa”. The ground, not having been raised before the Circuit Court, is new and accordingly requires leave: see Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91 at [14]. I grant leave for that ground to be relied upon. The Minister opposed leave to rely on Ground 4 on the basis that there is no merit in it. The Minister did not refer to any prejudice arising from allowing this ground to be relied upon. In my view it is expedient in the interests of justice that the appellant be allowed to rely on the ground, again taking into consideration that the appellant is not represented.

14    Section 116(1)(b) of the Act allows the Minister to cancel a visa where its holder “has not complied with a condition of the visa”. The appellant’s visa was granted subject to condition 8516. This conditions requires that the visa holder “continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa”. The appellant conceded that he was not enrolled in a course that satisfied this requirement of cl 573.231, applicable to the visa, for a period of four months.

15    The authorities establish that once conditions applicable to the visa in question have been breached, the power conferred under s 116 of the Act is enlivened. The subsequent remedying of the breach by the visa holder does not preclude the exercise of the power to cancel the visa under s 116, whether or not the breach is remedied before or after the decision is taken to cancel the visa: Singh v Minister for Immigration and Border Protection [2016] FCA 679. If in Ground 4 the reference to legal grounds is to power under s 116 of the Act, it follows that there was a legal power to cancel the appellant’s visa.

Grounds 2, 5, 6 and 7

16    Grounds 2, 5, 6, and 7 amount to allegations, put on various bases, that the Tribunal erred in its consideration of the discretion conferred by s 116 of the Act.

17    The considerations which a decision-maker is bound to take into account as a condition of the lawful exercise of its jurisdiction, and irrelevant considerations which the decision-maker is bound not to take into account, are to be identified primarily, if not entirely, from the statute: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 197 CLR 510 at [73] Per McHugh, Gummow and Hayne JJ. When seeking to identify the matters that come within the universe of relevant considerations, and those that fall outside that universe, the decision maker must reason from the statute, having first construed its meaning by the means of statutory interpretation. It is not permissible to invert the chain of reasoning by examining the particular facts of an individual case and either explicitly or tacitly treating those facts as informative of the scope or character of matters mandated by the statute to be relevant to the scope of the power or the proper exercise of discretion conferred by it: Yusuf (2001) 206 CLR 323 at 331-332 [9]-[10] per Gleeson CJ, and 347-348 [73] per McHugh, Gummow and Hayne JJ; Abebe v Commonwealth (1999) 197 CLR 510 at 579 [195]; Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534 at [23] per Kenny J; Jubb v Insurance Australia Ltd (2016) 76 MVR 228 at [91] per Gleeson JA as he then was, with Meagher and Payne JJA agreeing.

18    It is very unclear from the Grounds what the appellant contends was an irrelevant consideration taken into account by the Tribunal. I have not identified any matter considered by the Tribunal which falls outside matters of relevance to its consideration of the Minister’s decision.

19    Conversely, in my view, the reasons given by the Tribunal reveal that it gave consideration to relevant matters.

20    Grounds 5 and 6 refer to the weight given to aspects of the evidence relied upon by the appellant. It is beyond the proper scope of judicial review to reassess or recalibrate the weight of the evidence before the original decision maker or the Tribunal (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J), save where the finding is unsupported by any evidence; or was made on an irrational, unreasonable or illogical basis. In my opinion having regard to the Tribunal’s reasons and in particular the passages referred to above, this is not such a case.

21    Ground 7 alleges that the Tribunal could not possibly have concluded that the appellant “sought to abuse the student visa system”. Assuming that this is an accurate characterisation of the Tribunal’s finding, an error of this kind is not susceptible to correction by judicial review unless there was not “even a skerrick” of evidence to support the finding: BSE17 v Minister for Home Affairs [2018] FCA 1926 at [33] per Moshinsky J; MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] per Murphy J. In my view, there was sufficient evidence before the Tribunal to support its findings.

Ground 9

22    Ground 9 is directed to the “Honourable Court”, likely a reference to the Circuit Court and should be understood as a contention that the Circuit Court failed to properly consider the evidence before the Tribunal. If this is what is intended under this Ground, such an assessment is plainly beyond the proper scope of judicial review. If some other criticism of the reasoning of the Circuit Court is intended, it is not clear what that might be.

23    As I understand this Ground, it is a contention that the primary judge failed to undertake a review of the appellant’s particular circumstances, or the conclusions reached by the Tribunal in relation to those circumstances and replace those conclusions with his own. Such an exercise is beyond the scope of the primary judge’s function upon a judicial review of the Tribunal for the reasons explained above. To the extent that the Ground refers to a failure of the Tribunal to consider evidence, I am satisfied that the Tribunal discharged its functions properly as referred to above.

Grounds 1, 3 and 10

24    Ground 1 is vague and incapable of being examined by reference to any specific aspect of the reasons given by the primary judge. In my view, it is evident from the primary judge that he gave consideration to each of the grounds of review and considered the Tribunal’s decision.

25    Ground 3 is similarly too general to identify a legal error capable of being examined by this court. In my view, this ground, as with others, conflates the power of this Court to review decisions of the Circuit Court for legal error, with the function of the Tribunal to undertake a review of the merits of the exercise of the discretion by the Minister.

26    Ground 10 is simply not a ground of review. No additional grounds were filed or advanced at hearing and the ground itself does not allege any error on the part of the Circuit Court.

Ground 8

27    Ground 8 concerns the award of costs in favour of the Minister by the Circuit Court. The award of costs is a discretionary matter. For such an award of costs to be successfully challenged, in addition to leave (Federal Court of Australia Act 1976 (Cth) s 24(1A); see Rickus v Motor Trade Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112 at 113 [101]; Rahman v Lambe [2018] FCA 457 at [15]), it is necessary to show that the discretion exercised by the primary judge miscarried. Relevantly, in this context, that it resulted in a manifestly excessive award of costs. Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3, Division 1, Item 3, provides a fixed amount that may be awarded in applications before the Circuit Court. The order for costs made by the Circuit Court was as prescribed by Item 3 of the scale. Accordingly, there is no basis to conclude that the primary judge erred in the exercise of his Honour’s discretion.

28    The appeal will be dismissed with costs.

Associate:

Dated:    7 May 2019