Syed v Minister for Immigration and Border Protection

The Minister's application for summary dismissal 3 The power of the Federal Circuit Court to summarily dismiss an application is provided for by r 44.12 of the Federal Circuit Court Rules 2001 (Cth) which reads as follows: (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed - adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. 4 The learned Federal Circuit Court judge appropriately recognised that a conclusion that an applicant has not raised an arguable case is one which ought not to be reached lightly. He aptly referenced the decision of the High Court in Spencer v Commonwealth of Australia (2010) 241 CLR 118 in support of that proposition. 5 The learned judge at first instance analysed the application for judicial review in detail and considered, where he could, any potential ground for review in the applicant's material. Ultimately, he could not find any which had any serious chance of success, or indeed, any chance of success at all. Accordingly, he dismissed the application. 6 By an order of 8 May 2017 Registrar McCormick ordered, inter alia, that no later than 10 business days before the hearing date the applicant was to file and serve written submissions. No written submissions were provided to the court in accordance with that order, or at all. 7 The applicant has filed an application for leave to appeal from the summary dismissal of his application. Leave was required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) even though the judgment was final.

Background facts 8 It is necessary to briefly consider the factual background in which this matter arises even though it is accurately and succinctly set out in paras [5] to [13] of the learned judge at first instance. 9 The applicant arrived in Australia on 7 March 2013. At that time he was the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (the visa). The expiry date of the visa was 15 March 2015. 10 On 20 January 2015, a delegate of the Minister (the Delegate) cancelled the visa on the ground that the applicant had not complied with the requirements of condition 8516 of sch 8 of the Migration Regulations 1994 (Cth) (the Regulations). That condition required him as the holder of the visa to satisfy cl 573.231 of sch 2 of the Regulations to the effect that he was enrolled in, or was the offeree of enrolment in, a principal course of a kind specified by the Minister for that subclass, operative when the visa application was made. In the case of the applicant this had the effect of requiring him to be enrolled in, or be offered enrolment in, a Bachelor's or a Master's degree. 11 On 6 May 2015 the Tribunal made its decision, and found that at that point in time the applicant was not enrolled in, nor had an offer of enrolment in, a Bachelor's or Master's degree. There is nothing in the grounds in support of the application for judicial review to the Federal Circuit Court or in the grounds of appeal agitated before this court to suggest that this determination was in any way erroneous. Indeed, the decision of the Tribunal indicates that, before it, the applicant acknowledged that he had terminated his enrolment in the Master's degree and that he had taken up an alternative course of study which did not meet the requirements of his visa. 12 The only other principal issue before the Tribunal was whether or not it ought to exercise its discretion to cancel the applicant's visa. In brief, the Tribunal exercised its discretion to cancel the visa for the following reasons: (a) The applicant's visa was granted to him to enable him to study at a higher education level and his failure to continue to be enrolled in a course of an appropriate level was a significant factor supporting the cancellation of the visa; (b) The applicant was aware that one of his visa conditions was to "stick to his course" and the applicant did not explain why it was that he decided to change courses without seeking advice from the Department as to whether it was acceptable for him to do so; (c) The applicant made his own decision to terminate the higher degree course for which he came to Australia to study and enrol in a course at a lower level; (d) It was the applicant's responsibility to ensure that he understood and complied with the visa conditions attached to his visa; (e) The Tribunal did not accept that the breach of condition 8516 occurred in circumstances that were beyond his control; (f) Any claimed hardship did not outweigh the circumstances which warranted the cancelling of the visa; (g) There was nobody in Australia whose visa would or may be cancelled under s 140 if the applicant's visa was cancelled. 13 The grounds for judicial review agitated before the Federal Circuit Court are referred to in the decision of that court. However, as the learned judge below said, the matters listed under the heading "Grounds of Review" in the Application were not, in fact, proper grounds of review and the learned judge indicated why, for the most part, no ascertainable ground for review was contained in them. The learned judge did, however, attempt to discern some possible grounds from the assertions made, although he was not able to identify any foundation for any sustainable ground of review. 14 Despite the language difficulties of the applicant, the learned judge at first instance undertook every possible consideration of the matters put to him. He indicated that he was unable to identify any basis on which it might be said that the Tribunal had erred. 15 Perhaps, it might be said, that Ground 10 in the Application is able to be deciphered to mean that the applicant had encountered exceptional circumstances beyond his control which prevented him from enrolling in the Bachelor's or Master's course. It appears that by Ground 10 he is attempting to assert that he could not receive an E-COE, which I understand to mean an electronic confirmation of enrolment, once he had breached the 8516 condition. That is more a matter of speculation than interpretation, but it is possibly what he meant. That said, his failure to enrol in an appropriate course, or to remain enrolled in an appropriate course, was not brought about by any reluctance on the part of universities or higher educational institutions to enrol him once his visa was cancelled. It was brought about by his voluntary decision to cease enrolment. More importantly, the applicant's failure to be enrolled in a higher degree of education after the date on which his visa was cancelled was not a consideration taken into account by the Tribunal. 16 In his reasons, the learned judge below correctly identified (at [31]) the steps taken by the Tribunal in the exercise of its discretion. He also excluded the possibility of a lack of legal reasonableness in the reasons of the Tribunal or a failure to accord procedural fairness in the process of the hearing. Thereupon, the learned judge took the view that the application for judicial review must be rejected.

Application for leave to appeal to this court 17 The applicant seeks leave to appeal to this court pursuant to r 35.11 of the Federal Court Rules 2011 (Cth). This court, however, like the court below, must attempt to ascertain the real grounds on which the application is based from a variety of statements made by the applicant. That is not an easy task. As was the case before the Court below, the applicant has failed to file any written submissions, which is unfortunate as it is not easy to identify the substance of his concerns relating to the judgment below. 18 The applicant appeared in person before the Court at the hearing today, however, he was not able to articulate with any great clarity any additional grounds of review. He did seek to elaborate upon some of the issues raised in his material. 19 Because the decision of the Federal Circuit Court was an "interlocutory judgment" leave to appeal to this court is required. It is well established that the test for whether leave to appeal should be granted is that identified by the Full Court of the Federal Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 297 where it was held that the court must consider: (a) Whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the court; and (b) Whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The requirements of the test set out in Décor are cumulative such that the applicant must satisfy both (see Rawson Finances Pty Ltd v Commissioner of Taxation (2010) 81 ATR 36 at 38 [5]; Sekigawa v Minister for Immigration and Border Protection (2016) 237 FCR 276, 279 at [12]). 20 As best as can be ascertained from that which appears under the heading "Grounds of Application" in the Application for Leave, the following matters might be identified as potential grounds: (a) That there was a failure by the Tribunal to take into account that the applicant only ever cancelled his enrolment in his Bachelors degree course in information technology because he believed he had been enrolled in a Bachelor of Nursing; (b) That the applicant could not enrol in any further Bachelors course once his visa was cancelled and a bridging visa E was granted. This seems to be an assertion that the Tribunal failed to take into account his lack of enrolment by reason of the cancellation of his visa by the Department; (c) An assertion as to a lack of natural justice is made, however the foundation for that allegation is not identified. 21 The first matter which can be deciphered from the applicant's assertions in the Application for Leave is that the Tribunal failed to take into account that he only cancelled his enrolment in his Bachelors degree because he believed that he had gained admission in a Bachelor of Nursing degree. 22 No ground of jurisdictional error arises from this assertion. There is nothing mentioned in the applicant's letter in response to the Department's notice of intention to cancel his visa which suggests that he had cancelled his visa because he believed that he had been enrolled in a degree in nursing. It is not said that this exculpatory statement was put to the Tribunal or that it was even suggested in the course of the hearing. Indeed, there is nothing in the Reasons of the Tribunal which might have suggested that this issue had been raised by the applicant before it. That is significant in the circumstances where the particulars of the applicant's situation and his assertions were carefully and thoroughly set out in the Tribunal's reasons. In fact, before the Tribunal the applicant asserted an inconsistent exculpatory assertion, being that he had been told by a migration agent that changing to a cookery and hospitality course would not "get him into trouble". It is also noticeable that this assertion about being enrolled in a nursing course did not appear in the grounds of review to the Federal Circuit Court or in the affidavit material filed in that Court. Nor was it the subject of a submission agitated before that Court despite the fact that a number of other assertions were made. There does not appear to be any ground of review open on this issue. 23 Before the Court today the applicant suggested that he had made mention to the Department of the possibility of him enrolling in a nursing degree in the context of the Department having given him notice of its intention to cancel his visa. From his statement from the Bar Table it seems that he had mentioned this to the Department as being a way in which he might satisfy the requirements of his visa. The applicant did not suggest that he had actually enrolled in such a degree, or that he only terminated enrolment in his original degree because he thought that he was enrolled in a nursing degree. 24 The second discernible issue in the Application for Leave is that the applicant says that the Tribunal did not take into account the fact that he could not enrol in a Bachelor's course once his visa had been cancelled. However, the default under the terms of the visa was not that, at the time of the Tribunal's determination, he was not enrolled in a course of higher education, it was that he had previously terminated his enrolment. In this respect it is noted that he had terminated his enrolment in a course of higher education in June or July 2013 and his visa was not cancelled until 21 January 2015. That being so, the applicant had not been enrolled in a course of higher education for some 18 months before the date of cancellation. There was less than four months between that date and the date on which the Tribunal upheld the decision. Further, there is nothing in the reasons of the Tribunal which suggest that it regarded this as a relevant consideration. Moreover, it does not appear that the applicant raised before the Tribunal the issue of whether or not he was able to re-enrol in a course of higher education once his visa had been cancelled. Again, even if it were raised, it was not a consideration which the Tribunal was bound to take into account. It follows that no ground of jurisdictional error arises in relation to this allegation. 25 In his material, the applicant asserts that the Tribunal did not take into account the circumstances that his grandfather had died or that he had been given erroneous advice by a migration agent about the need to remain enrolled in a higher degree. However, paragraphs [19] to [22] of the reasons for decision of the Tribunal show that these matters were specifically referred to by the Tribunal and considered by it in reaching its decision. 26 The applicant also raised a ground, the effect of which is that he had been treated differently from other students in the same position as him in that they had terminated their higher degree courses, and yet their visas have not been cancelled. Mr Hosking, Counsel for the respondent, submitted that no error of law is raised by this allegation. He submitted that whether the visas of other students who had changed their courses were cancelled was not a matter relevant to the determination of whether the applicant's visa ought to be cancelled and, moreover, there was no evidence before the Tribunal of how the Department had treated other visa holders. These submissions ought to be accepted. The Tribunal considered the applicant's circumstances in relation to whether his visa ought to be cancelled. They were the only circumstances which were relevant to its consideration. What may or may not have occurred in relation to other visa holders would necessarily be irrelevant to that consideration. Although there is, perhaps, a principle that administrative decision maker should treat like cases alike so as to promote uniformity and consistency in decision making (R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 201-2 and 204-5; Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 646-7; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [54]) there exists a question as to whether a failure to comply with that shibboleth would amount to an error of law. That said, none of that needs be determined in this case where there was no evidence before the Tribunal that the circumstances of the other visa holders were relatively similar to those of the applicant. This ground also fails. 27 An allegation is made in the Application for Leave that the applicant was not accorded natural justice before the Federal Circuit Court. There are no particulars of this allegation, and more importantly there is no evidence of it either. Indeed the contrary appears to be the case. The learned judge at first instance did his best to attempt to discern from the myriad of assertions some legitimate ground on which the application might be advanced. He was unable to do so. Additionally, it is noted in the Reasons of the learned Federal Circuit Court judge that the applicant was afforded an opportunity to file written submissions prior to the hearing but he chose not to do so. It is also relevant that the applicant does not identify what it is that he would have further asserted to the learned Federal Circuit Court judge had some further opportunity been accorded to him on the hearing of the application. It suffices to say that there is no merit in this ground either. 28 It follows that the applicant has failed to satisfy this court that the decision at first instance is attended with sufficient doubt to warrant its reconsideration. 29 The applicant has also failed to adduce to this court any evidence that he would sustain substantial injustice if leave was refused, supposing the decision to be wrong. Although the loss of a right to remain in Australia to study is a significant factor it does not, of itself, constitute a substantial injustice in the present circumstances.

Conclusion 30 In the circumstances, the applicant has failed to establish any grounds on which the decision of the Federal Circuit Court might be in error. That being so the application for leave to appeal must be refused. 31 Although the respondent cited hardship as a reason as to why he ought not be required to pay the Minister's costs of the application, that is not sufficient in circumstances where he has agitated much the same arguments which failed before the Federal Circuit Court and which have met with the same result today. The applicant's hardship in this case is not sufficient to displace the general rule that an order for costs should follow the event. 32 The orders of the court are that:

1. Leave to appeal is refused.
2. The applicant pay the respondents' costs of the application. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.