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[2016] FCA 198
Federal Court of Australia
2016-03-03
Collier J
Original judgment source is linked above.
The appeal be dismissed with costs to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J: 1 This is an appeal from a decision of a Judge of the Federal Circuit Court of Australia in which his Honour dismissed an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal)). 2 The appellants are husband and wife, although the wife/second appellant's claim rests wholly on the claim of the first appellant.
Background 3 The first appellant came to Australia from India as a student after receiving a subclass 573 Higher Education Sector visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act) in July 2013. On 20 August 2014 the first appellant was issued with a Notice of Intention to Consider Cancellation because the delegate of the Minister considered that the first appellant did not comply with condition 8202 of his visa. This condition relevantly required that he be enrolled in a registered course. The delegate stated in the Decision Record that the government's records indicated that the first appellant had not enrolled in a registered course of study since 25 March 2014. It appears that the first appellant acknowledged that he had not enrolled in a registered course while holding his visa. 4 The Tribunal found that the first appellant had not complied with a condition of the visa. The Tribunal examined the material before it and found, in summary: the first appellant came to Australia to fulfil his dream to work in health; the first appellant's father had previously provided financial support but could not continue to do so; the first appellant suffered chest pains for several months and informed the university about this, including providing medical certificates. However the Tribunal found that the chest pains suffered by the first appellant occurred several months before March 2014 when he ceased being enrolled in a registered course; while the first appellant claimed that he suffered financial difficulties this does not obviate his obligation to meet the terms and conditions of his visa. The Tribunal observed that the first appellant did not take up the options of formally deferring his studies, or voluntarily cancelling his visa and returning to Australia when his financial circumstances allowed. 5 In the circumstances the Tribunal concluded that the first appellant's visa should be cancelled. The Tribunal also concluded that it had no jurisdiction with respect to the second appellant.
Decision of the Federal Circuit Court 6 Before the Federal Circuit Court the appellants raised the following two grounds of review: 1. The Tribunal constructively failed to exercise its jurisdiction: Particulars The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to [sic] the contents of these documents. 2. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon, and to invite the application [sic] to comment upon or respond to that information. 7 The primary Judge concluded: 32. There is nothing that could be illustrated that would demonstrate where the Tribunal has done anything but tell the Applicant what it is that it is thinking and then asking him to respond. 33. He responded with regard to the chest pains, with regard to his financial circumstances and on every other issue raised by the Tribunal. 34. The Tribunal has complied with its obligation under s.424A and s.424AA. 35. The fact is that notwithstanding everything that the Applicant said, the Tribunal found that it was an appropriate matter for which the visa should be cancelled because of the non-compliance with condition 8202 of the visa. 36. In the circumstances, both grounds fail and on my reading of the whole of the evidence there is no jurisdictional error that has been shown. 37. This application is nothing more than an attempt to garner sympathy in the hope that a Judge may forget their oath and act according to that sympathy. 38. Therefore, I dismiss the application.
Appeal 8 The appellants appealed the decision below on the following grounds: 1. The Federal Circuit Court Judge failed to consider that the Tribunal second respondent [sic] failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information. 2. The Federal Circuit Court Judge failed to consider that the Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the requirements of the Migration Act. 9 In my view, however, these grounds have no merit. 10 First, s 424A and s 424AA are of no relevance to these proceedings. These provisions relate to applicants for protection visas under the Act, which the appellants in this case are not. 11 Second, while I note that the primary Judge clearly erred in stating that "The Tribunal has complied with its obligation under s.424A and s.424AA", in my view the error does not warrant the appeal in this case being allowed. This is because: the appellants had run their case on s 424A and s 424AA, notwithstanding the irrelevance of those sections; the applicable equivalent provisions of the Act are s 359A and s 359AA. These sections similarly require the Tribunal to (inter alia) give the applicant 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 and invite the applicant to respond to it; there is no material before the Court to indicate how the Tribunal failed in its obligations under s 359A and s 359AA of the Act. 12 Third, the second ground of appeal was not raised before the primary Judge, and it follows that leave is required to raise it. However, without further particularisation I find this ground of appeal vague to the point of meaningless, and note that it is frequently relied on (to similarly little avail) in appeals to this Court in migration cases (see for example AAX15 v Minister for Immigration and Border Protection [2015] FCA 1206, and the unrelated case Patel v Minister for Immigration [2015] FCCA 1583). I consider it has no merit. 13 The appropriate order is to dismiss the appeal with costs, to be taxed if not otherwise agreed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.
Patel
Minister for Immigration and Border Protection