FEDERAL COURT OF AUSTRALIA

Rana v Minister for Home Affairs [2019] FCA 915

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from the decision of the Federal Circuit Court in Rana v Minister For Immigration & Anor [2019] FCCA 395 in which the primary Judge dismissed the appellant’s application for review of a decision of the Administrative Appeals Tribunal (Tribunal). In its decision the Tribunal affirmed the decision of a delegate (delegate) of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) (Minister) to cancel the appellant’s visa.

Background

2    The appellant is a citizen of Nepal. On 16 July 2013 he was granted a subclass 572 higher education sector visa (visa) entitling him to undertake a tertiary preparation pathway course followed by a Bachelor of Business degree. The appellant was financially supported by his family in Nepal.

3    On 12 May 2016, the Department of Immigration and Border Protection (Department) sent the appellant a written notice stating the Minister was considering cancelling the appellant’s visa pursuant to s 116 of the Migration Act 1958 (Cth) (Act) because the appellant appeared to have breached condition 8202 of sch 8 to the Migration Regulations 1994 (Cth) (Regulations) by failing to maintain his enrolment in a registered course of study for a period of approximately six months between 8 November 2015 and 12 May 2016.

4    Section 116 of the Act relevantly provides:

Subdivision D — Visas may be cancelled on certain grounds

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

…

(2)     The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

(3)    If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

5    Condition 8202 of sch 8 to the Regulations provides:

(1)    The holder must be enrolled in a full‑time course of study or training if the holder is:

(a)    a Defence student; or

(b)    a Foreign Affairs student; or

(c)    a secondary exchange student.

(2)    A holder not covered by subclause (1):

(a)    must be enrolled in a full‑time registered course; and

(b)    subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

(c)    must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

(i)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

(ii)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

(3)    A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

(a)    is enrolled in a course at the Australian Qualifications Framework level 10; and

(b)    changes their enrolment to a course at the Australian Qualifications Framework level 9.

(Emphasis added.)

6    It is uncontroversial that the appellant enrolled in a Certificate III course in “Spoken and Written English” on 13 May 2016 at Queensford College.

7    On 18 May 2016, the appellant responded to the Department via email, explaining that his mother had been diagnosed with breast cancer, that this had deeply affected his mental state, and further that his mother’s condition made it mentally and financially difficult for him to continue his studies.

8    On 24 May 2016, the delegate cancelled the appellant’s student visa pursuant to s 116(1)(b) of the Act. The delegate found that the appellant had not met the condition 8202 criteria because he had not been enrolled in a full-time course between 8 November 2015 and 13 May 2016.

9    On 1 June 2016, the appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal invited the appellant to attend a hearing before the Tribunal on 13 March 2017. On 10 March 2017 the appellant, through his representative, provided further material in support of his review application, including a statutory declaration, further enrolment documents and medical evidence relating to his mother’s illness and his own mental state.

10    On 13 March 2017, the appellant appeared at the hearing before the Tribunal with his registered migration agent.

Decision of the Tribunal

11    The Tribunal identified the issue before it as whether the appellant, as the holder of a student visa has breached condition 8202 of sch 8 to the Regulations, noting that if the appellant had breached that condition, then under s 116(1) of the Act the visa “may” be cancelled.

12    At [11] of its decision the Tribunal observed that, on the evidence before it, the appellant was not enrolled in a registered course, and accordingly he had not complied with condition 8202(2).

13    The Tribunal then turned to consideration of the discretion to cancel the visa. It noted that there were no matters specified in the Act or Regulations that were required to be considered in relation to the exercise of this discretion, however the Tribunal had had regard to matters raised by the appellant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM 3).

14    The Tribunal outlined the study history of the appellant from his arrival in Australia on 21 July 2013. The Tribunal noted evidence given by the appellant in respect of the non-recording of his attendance at a course in Maroochydore.

15    The Tribunal noted the evidence of the appellant as to his stress and anxiety concerning his mother’s condition in or around August 2015, and that as a result he could not cope with studying. The appellant also told the Tribunal that after August 2015 his father and brother could not afford to continue to pay for his fees, and for this reason he did not complete the diploma or advanced diploma in which he was enrolled at that time.

16    The Tribunal further noted the appellant’s enrolment in the course at Queensford College, and his subsequent enrolment in a Bachelor of Business course.

17    The Tribunal noted the appellant’s admission that he did not report his depression or seek medical assistance in relation to his depression during the currency of his visa, and that he only reported his depression to a doctor some five weeks before the Tribunal hearing. The Tribunal referred to a letter from Dr Aung which indicated that the appellant was suffering from anxiety and depression associated with his mother’s health condition.

18    The Tribunal noted that it had raised its concern with the appellant that, given his poor academic history and his apparent failure to attend a Certificate IV course in Business Administration in 2014 (which was cancelled in July 2014 for unsatisfactory course attendance by the appellant), that he may not have the desire or the ability to successfully undertake a higher education course in Australia. The Tribunal stated that the appellant insisted that he had attended the Certificate IV course and that his studies since had been disrupted by his mother’s illness, but that he was now determined to complete a higher education course.

19    The Tribunal found that the appellant did not have the desire or the ability to successfully undertake a higher education course in Australia. It continued:

26.    The applicant’s inability to successfully undertake a higher education course is evidenced by his very poor academic record in Australia. He has been in Australia since 2013 and has not completed a single course. The Tribunal accepts that his ability to successfully complete courses was affected by news of his mother's condition. From the doctor’s letter he provided it is evident that he still suffers from the depression and anxiety which he says affected his ability to study successfully.

27.    However, even before he learnt of his mother’s condition in August 2015, his inability to successfully undertake a higher education course was evidenced by his failure to even successfully complete the Tertiary Preparation Pathway course. This was the reason why the applicant was refused entry into the Bachelor of Business, a higher education course.

28.    Before the applicant discovered his mother was ill, his lack of desire to successfully undertake a higher education course was demonstrated by his failure to maintain satisfactory attendance at the Certificate IV course. The Tribunal does not accept the applicant’s claim that he had in fact been attending classes but that he arrived after the role was taken. He said that he knew that his attendance was required to maintain enrolment and the Tribunal considers that, had he been attending, he would have ensured that his name was recorded on the attendance role, or at very least sought to dispute his lack of attendance with the college.

29.    The Tribunal also considers that the applicant's lack of desire to undertake a higher education course in Australia is evidenced by the fact that the applicant was not enrolled from November 2015, but the very day after he received the NOIC he enrolled in another course. This strongly suggests that the applicant did not have a strong reason for not enrolling previously and the Tribunal does not accept that it was coincidental that his family's ability to pay for his tuition arose the very day after the applicant received the NOIC.

30.    After the applicant’s certificate IV was cancelled he went on to enrol in 2 courses in Management a Diploma and an Advanced Diploma. He said that he completed neither of these courses. The applicant claims that this was caused by the depression and anxiety he felt due to his mother’s illness. As mentioned above it is accepted that the applicant's mother's illness affected his ability to succeed with these courses. However, according to the letter he provided from Dr Aung, he is still afflicted by the very depression and anxiety which contributed to his failure to succeed with his courses in the past.

31.    The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete a higher education course in Australia. The Tribunal has also considered that as the applicant's visa has been cancelled, he may have to wait for some time to be granted another visa in Australia. The Tribunal understands that the applicant's family has been through a hard time recently with the applicant’s mother’s illness and that their woes will be compounded by the cancellation of the applicant's visa. However, the Tribunal considers that setting aside the decision will only delay his inevitable return without completing a higher education course. There is no guarantee that the applicant will be granted another visa and even if he was, the Tribunal considers that he does not have the desire or the ability to successfully undertake a higher education course in Australia.

32.    In any event, the Tribunal finds that the applicant's lack of ability and desire to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant's visa.

33.    Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

20    On 26 October 2017, the appellant sought judicial review of the Tribunal’s decision by way of application to the Federal Circuit Court.

At the Federal circuit court

21    The appellant raised one ground of review, contending that the decisions of the delegate and Tribunal were affected by jurisdictional error in denying the appellant procedural fairness, contrary to s 360(1) of the Act. The particulars of the appellant’s ground of review contended that in making the decisions, the delegate and Tribunal failed to consider the appellant’s mental state, caused by his mother’s cancer and the family’s financial situation and the short period the appellant was not enrolled in a registered course. The appellant further contended that the wrong questions were asked and the appellant’s desire or ability to successfully undertake a higher education course in Australia was ignored or not given adequate consideration.

22    At [21] of his Honour’s reasons, the primary Judge found that the matters raised by the appellant were ‘without merit’. His Honour held that the Tribunal had considered all relevant questions raised by the appellant including those in relation to his family’s circumstances, gave detailed consideration to the appellant’s education history and made findings that were ‘clear and concise’. His Honour also held at [22] that to the extent the appellant contended the Tribunal had failed to ‘adequately’ take into account relevant considerations, such contention “goes to the fact finding exercise undertaken by the Tribunal”. The primary Judge noted that examining whether the Tribunal adequately took into account such considerations would amount to impermissible merits review.

23    Being without merit, the primary Judge dismissed the appellant’s application for review.

At the Federal Court

24    On 20 February 2019, Mr Rana filed a notice of appeal in this Court, seeking, inter alia, orders that the decision of the primary Judge in the Federal Circuit Court be quashed and the matter be remitted to the Tribunal for determination according to law.

25    The notice of appeal raises one ground, being:

(1)    The Federal Circuit Court erred in failing to find that the [Tribunal’s] decision was affected by jurisdictional error in that it did not accord the appellant natural justice and/or procedural fairness and otherwise failed to act according to law in that:

(a)    It failed to take or adequately take into account the relevant considerations pertaining to:

(i)    The impact upon the appellant of his mother’s cancer diagnosis and his family’s deteriorating financial position consequent to his mother’s illness; or

(ii)    The short period of time that the appellant was not enrolled in a relevant course of study.

(b)    It failed to act in a manner that was reasonable or just according to law;

(c)    It failed to act upon the evidence before it according to law;

(d)    It failed to give the appellant an adequate opportunity to provide submissions or facts which may have impacted upon the manner in which it reached conclusions and its ultimate determination;

(e)    It failed to apply the correct test and ought to have considered the circumstances in which the alleged ground for cancellation arose and balanced those considerations with any other relevant consideration.

26    The relief sought by the appellant is as follows:

(1)    That the appeal be allowed.

(2)    That the orders made by Judge Egan of the Federal Circuit Court on 30 January 2019 be set aside and in lieu thereof that:

(a)    A writ of certiorari be issued quashing the decision of the [Tribunal] dated 26 September 2017;

(b)    The matter be remitted to the Tribunal for determination according to law; and

(c)    The first respondent pay the applicant’s costs.

(3)    The first respondent pay the appellant’s costs of the appeal.

Submissions of the parties

27    In support of the relief sought, the appellant submits that the Federal Circuit Court, in reviewing the decision made by the Tribunal, made the following jurisdictional errors of law:

(a)    failing to take into account relevant considerations, being;

(i)    the effects of Mr Rana’s mother’s illness on Mr Rana’s decision-making ability during the relevant period;

(ii)    Mr Rana’s financial concerns as contributing factor to his anxiety and depression during the relevant period and the reasoning behind his temporary cessation of studies;

(iii)    the transient nature of Mr Rana’s mother’s illness and the temporary nature of its impact on Mr Rana’s ability to engage in study;

(iv)    the fact that despite Mr Rana continuing to suffer ongoing symptoms of anxiety and depression, from 14 May 2016 onwards, his condition did not prevent him from enrolling in a registered course and continuing with his studies; and

(v)    the sole purpose of Mr Rana’s travel to Australia was to study in order to advance his career in hospitality and tourism in Nepal;

(b)    acting unreasonably by failing to recognise that the Tribunal’s reasons do not disclose any consciousness of the effects and consequences of Mr Rana’s mother’s condition on Mr Rana.

28    In summary the appellant submits that:

    Nowhere in the Tribunal’s or the Federal Circuit Court’s reasons appears any consideration of the impact of the appellant’s mother’s illness on his ability to make decisions.

    The Tribunal failed to engage with and consider the issue of the appellant’s financial circumstances, in particular how this may have impacted on his mental state and whether, because the family’s funds were being prioritised towards the appellant’s mother’s cancer treatment, it was reasonable to suspend his studies temporarily.

    No tribunal or court acting reasonably would have failed to appreciate the appellant’s circumstances and address them properly in their reasons. Importantly, the appellant refers to the case of Bollam (Migration) [2019] AATA 466, where the applicant was not enrolled in a registered course for a period of 13 months and his student visa cancelation was overturned by the Tribunal (cf Mr Rana’s circumstances where he was only unenrolled for approximately 6 months).

    The Federal Circuit Court failed to engage with relevant issues in its decision

29    Further, at the hearing Counsel for the appellant submitted that the Tribunal had failed to take into account the purpose of the appellant’s travel and stay in Australia, and the temporary nature of the appellant’s breach of his visa.

30    The Minister opposes the appeal on the basis that the findings of the Tribunal were reasonably open to it and that the grounds of appeal invited impermissible merits review.

31    In my view insofar as the appellant claims that the Tribunal failed to take into account relevant considerations and that its decision was unreasonable, the appeal lacks merit. In summary:

    I am not persuaded that the Tribunal failed to take into account the purpose of the appellant’s travel and stay in Australia. Rather, the entirety of the Tribunal’s decision was directed to the failure of the appellant to comply with his student visa, which had been granted for the purpose of study by him whilst in Australia. It would be artificial in these circumstances to conclude that the Tribunal had not had meaningful regard to the purpose of study by the appellant.

    Second, to the extent that the appellant claims that the Tribunal ignored the temporary nature of the appellant’s breach of his visa, I consider that this invites a review of factual findings by the Tribunal in this case. In any event, at [24] of its decision the Tribunal noted the contentions of the appellant that he was “now determined to complete a higher education course” after the disruption to his studies caused by his mother’s illness. It is clear that, to the extent that this disruption could be considered to be “temporary”, the Tribunal had had regard to this aspect of the appellant’s claim.

    Third, I reject the appellant’s claim that the Tribunal had failed to have regard to the effect of his mother’s illness on his decision-making ability in circumstances where the Tribunal noted that the appellant was depressed as a result of his mother’s illness. However, it is apparent from the reasons of the Tribunal that the Tribunal did not accord weight to this as a major consideration in circumstances where the Tribunal was satisfied that the appellant had neither the desire nor the ability to successfully undertake a higher education course in Australia. Such findings are for the Tribunal as the finder of fact in this case.

    Fourth, as the Minister submits, neither s 116 of the Act, nor the Regulations, identify any express or mandatory relevant considerations to which the Tribunal must have regard in exercising its discretion. Further, I accept the Minister submission that, on the evidence available, the findings of the Tribunal were reasonably open to it and “the ground of review merely invites the Court to engage in a merits review which is impermissible”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

    Fifth, the appellant’s contention that the Tribunal failed to have regard to his enrolment in a Certificate course as supportive of his genuine desire to study invites impermissible merits review as to such issues as timing of enrolment and credibility of the appellant.

    Finally, I am not persuaded that the Tribunal was bound in any way by another decision of the Tribunal in Bollam as the appellant appears to suggest. The facts of Bollam are distinguishable from the facts before the Tribunal in this case.

32    I am also not satisfied that the primary Judge failed to engage in relevant issues in this case as alleged by the appellant. His Honour was persuaded of the correctness of the Tribunal’s decision after examination of that decision and consideration of such issues including whether the Tribunal had asked the wrong questions and the reasonableness of its decision. In my view no appellable error is evident in the primary decision.

33    The appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    18 June 2019