Federal Court of Australia Acharya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 460 Appeal from: Acharya v Minister for Immigration & Anor [2019] FCCA 3203 File number(s): NSD 1958 of 2019 Judgment of: RARES J Date of judgment: 20 April 2022 Legislation: Migration Act 1958 (Cth) s 116 Migration Regulations 1994 (Cth) Sch 8 Cases cited: Acharya v Minister for Immigration [2019] FCCA 3203 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 46 Date of hearing: 20 April 2022 Counsel for the Appellant: Appellant did not appear Solicitor for the Respondents: George Pasas of Clayton Utz ORDERS NSD 1958 of 2019 BETWEEN: ABIRAL ACHARYA Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: RARES J DATE OF ORDER: 20 APRIL 2022 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from the transcript) RARES J: 1 This is an appeal from a decision of the Federal Circuit Court to refuse constitutional writ relief to the appellant Abiral Acharya in respect of the decision of the Administrative Appeals Tribunal given on 27 March 2019 to affirm the decision of the Minister's delegate to cancel the appellant's class TU visa: Acharya v Minister for Immigration [2019] FCCA 3203. 2 On 30 March 2022, the appeals unit notified the parties by email that this appeal was set down for hearing this morning at 9:30 am before me. Subsequently, on 11 April 2022, the appeals unit informed the parties that the hearing would start at 11:00 am and confirmed that all other directions and the timetable remained the same. 3 On 12 April 2022, the appellant sent an email saying: I would like to put in another request to postpone the hearing for a few months as I am unable to afford any Lawyers due to financial constraints after the Covid Pandemic. My family has struggled quite severely back in my home country Nepal too because of Covid so they are not able to assist me either. Hopefully my request is considered. 4 Later that day, the appeals unit responded saying that I had considered the appellant's request to postpone the hearing but was of the view that he had had plenty of time to obtain legal representation and that the hearing should proceed today as scheduled. 5 On 19 April 2022, the Minister's solicitor emailed the appellant noting that the hearing was to take place this morning at 11:00 am, reattaching a copy of the appeal book and the Minister's submissions, and advising him that hard copies would be in Court for his use in the morning. The email said that if he did not attend, the Minister would seek orders dismissing the appeal with costs. 6 There has been no further communication from the appellant, and he did not appear when the matter was called this morning. Background 7 Relevantly, s 116(1)(b) of the Migration Act 1958 (Cth) provides: (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; … 8 The appellant is a national of Nepal. On 10 September 2014, he was granted a subclass 573 higher education sector visa to undertake his studies until 30 August 2018. The visa was subject to condition 8202 in Sch 8 of the Migration Regulations 1994 (Cth), that, relevantly, required him to be enrolled in a registered course and not to have been certified by the education provider as having failed to achieve either satisfactory course progress or satisfactory course attendance. 9 On 17 January 2017, the delegate gave the appellant a notice of intention to consider cancellation of his visa because of his failure to comply with condition 8202 on the basis that he had ceased to be enrolled in a registered course from 11 May 2016. On 24 January 2017, the appellant provided a written response in which he explained that his family had suffered significant financial hardship as a result of an earthquake in Nepal and that had impacted on his financial ability to pursue his studies. The earthquake occurred in April 2015. 10 On 31 January 2017, the delegate cancelled the visa on the basis that the appellant was not then enrolled in a registered course. The delegate found that the appellant had been enrolled in a registered course from 13 October 2014 to 27 March 2016. He found that the appellant had not tried to resolve his situation by contacting his education provider, seeking counselling or approaching the Minister's Department to discuss his options. The delegate concluded that there was no evidence that the appellant had sought any assistance in the period from 11 May 2016, when he ceased to be enrolled in a registered course, to the time of the notice of intention to cancel his visa, which was, in the delegate's view, a considerable period. Accordingly, the delegate was satisfied that the appellant had not complied with condition 8202 and that his visa should be cancelled under s 116(1)(b). The proceeding before the Tribunal 11 The Tribunal invited the appellant to a hearing. He attended the hearing and was able to communicate in English. The Tribunal noted that, at the hearing, the appellant acknowledged he had ceased to be enrolled in a registered course. The Tribunal set out the appellant's response to the delegate dated 24 January 2017 and his additional submissions to the Tribunal dated 18 March 2019. 12 The appellant also provided the Tribunal with: a statement of attainment dated 6 February 2017 from Canterbury Business College for a certificate IV in programming that the appellant had completed on 11 October 2015; a letter from his mother dated 17 March 2019 indicating that he had always been good at his studies, but the family had to stop financial support in 2015 due to the earthquake and that that impacted on the applicant significantly so that he had to discontinue his studies; a confirmation of his enrolment dated 12 March 2019 in a Diploma of Information Technology Networking due to commence the previous day; and some correspondence with Edith Cowan University, which did not suggest that the appellant was enrolled in any course there. 13 The Tribunal identified the central issue as to whether it should confirm the exercise of the delegate's power to cancel the visa under s 116(1)(b) as being the appellant's claim that the earthquake in Nepal had created extenuating circumstances beyond his control, causing his family to be unable to support him financially in his studies here. In its statement of reasons, the Tribunal recorded that the central issue needed to be considered in the context of the appellant's study and other circumstances in Australia following the earthquake up to the time of the cancellation of the visa, and his lack of study history following the cancellation which, it said, it had explored with him during the hearing. 14 The Tribunal's statement of reasons records in some detail what occurred during the hearing, the evidence which the appellant gave to the Tribunal, and what it had asked him. The Tribunal noted that the appellant had finished a Diploma of Business course on 27 March 2016, that he had commenced on 12 October 2015 (the 2015 course), having paid almost all of the course fees beforehand. It noted that governmental records indicated that while the 2015 course was finished, there was no indication as to whether the appellant had passed it and there was no record that his enrolment had been cancelled due to non-payment of fees or for any other reason. It observed that the non-cancellation would tend to suggest, and it inferred, that the total tuition fees of $3750 for the 2015 course had been paid. The appellant was unable to confirm to the Tribunal whether that inference was correct. 15 The Tribunal recorded that it had explored with the appellant his progress during the 2015 course. He told it that he had attended no classes whatsoever and had undertaken no study. He told it that he had been advised to enrol in the 2015 course by a former principal, but that he was not interested in studying business. The Tribunal recorded that it had expressed surprise and scepticism that the appellant would have enrolled in the 2015 course on 7 October 2015, which was due to commence five days later, and prepaid $1700 in fees but undertaken no study and had not attended at the 2015 course at all. It recorded that the appellant had not adequately explained how that could have happened. 16 The Tribunal then noted that the appellant's written statement to it indicated he had exceeded the limit of 20 hours of work allowed by his student visa. It informed the appellant that that might be an adverse factor for it to consider in the exercise of its discretion. The Tribunal noted that at the time that the delegate was considering cancelling the visa in January 2017, the appellant enrolled in an Advanced Diploma of Business course due to commence on 30 January 2017 and that governmental records indicated that enrolment had been cancelled on 8 December 2017 for unsatisfactory course progress. The Tribunal recorded that the appellant informed it that he had simply enrolled in the course because his migration agent suggested it would benefit him with the Department's consideration of whether his visa should be cancelled. He told the Tribunal that he had undertaken no study whatsoever in relation to that course. 17 The Tribunal then noted that governmental records indicated that the appellant had not enrolled in any other registered courses until 12 March 2019, which was shortly before the Tribunal hearing. It said that that indicated that the appellant had undertaken no study in Australia at all since finishing his certificate on 11 October 2015 until the very recent enrolment in March 2019. 18 The Tribunal raised with the appellant, during the hearing, that given his need to have the visa reinstated to be able to study in Australia, it might have expected that he would have enrolled in a registered course and studied at a time when he had the ability to do so from January 2017. The appellant responded that he did not want to commit to study given the lack of certainty about the fate of his student visa. 19 The Tribunal indicated that, ordinarily, it would provide a degree of latitude to an applicant breaching visa conditions as a result of a claim of financial hurdles to study created by an event such as the earthquake, but it was not satisfied that the financial difficulties the appellant suffered as a result of that event were as grave as he had indicated. It noted that whatever financial consequences flowed to the appellant and his family from the earthquake, those had not prevented him from continuing and completing his certificate in October 2015, or constrained him from prepaying $1700 in fees on 7 October 2015 for the 2015 course, yet then doing no study in the 2015 course at all, for reasons which the Tribunal found the appellant had not adequately explained. 20 The Tribunal was not satisfied that the appellant's financial difficulty caused by the earthquake was the key reason for him not being enrolled in a registered course from 11 May 2016 until the visa was cancelled. It took into account as a significantly adverse factor that the appellant had not engaged in any study after completing the certificate in October 2015 until he enrolled in a course on 12 March 2019, a period of about three and a half years, despite having told the Department, in January 2017, that he was able to enrol in a registered course and to study. It found that any uncertainty the appellant might have had as to the fate of his student visa would have been outweighed by a combination of the importance to him of studying in Australia and being able to demonstrate to the Department, and the Tribunal, had he been a genuine student over that time. 21 The Tribunal also raised with the appellant during the hearing the requirement in condition 8516 of a subclass 573 student visa, that he be enrolled in a higher education sector course and that he had been in breach of that condition after the cancellation of the 2015 course on 11 May 2016 until the visa was cancelled. The Tribunal noted and regarded as another adverse factor that the appellant had agreed at the hearing that he had breached condition 8516. 22 The Tribunal did not regard the appellant's most recent enrolment as evidence suggesting an ongoing commitment to study, given his study history, or lack of it, while in Australia. It was not satisfied that his history demonstrated that he was a person who had been committed to obtaining educational qualifications here. The Tribunal was prepared to make an allowance for the temporary disruption in the appellant's studies due to the earthquake. But, it was not satisfied that his failure to be enrolled in a registered course, from the cancellation of the 2015 course enrolment in May 2016 until the cancellation of the visa, had been caused by that event, having regard to his lack of study since completing the certificate in October 2015 until enrolling in the course in March 2019, his breaches of the visa limitation on the appellant's hours of work and the requirement that he be enrolled in a registered course under condition 8516. 23 The Tribunal considered that any hardship to the appellant in not being able to complete his studies in Australia was not significant, given his lack of commitment to doing so when he had had every opportunity to pursue those studies. It took into account that the cancellation of his visa may have the effect of limiting his career opportunities in Nepal, but, balancing all the discretionary factors, it determined to exercise its discretion to affirm the cancellation of his visa. The proceeding in the Federal Circuit Court 24 The appellant was represented by counsel before the trial judge. There were six grounds of review, and his Honour appeared to discern a new, seventh ground, to the effect that the Tribunal had not put to the appellant the issues of concern that it had so as to amount to a denial of procedural fairness and a failure to give him a real and meaningful hearing. 25 His Honour recorded that counsel for the appellant had grouped grounds 3, 4 and 6 together as alleging that the Tribunal had made a jurisdictional error in the way in which it dealt with the appellant's reasons for not pursuing any studies after completing the certificate in October 2015 until March 2019, taking into account irrelevant considerations relating to that failure and failing, as alleged in the particulars of ground 6, to consider that, first, there was no visa condition limiting his hours of work (because the appellant was on a bridging visa E after the cancellation of his visa) and, secondly, the appellant had been concerned in relation to the time it had taken to deal with his application for review and, had he realised it would take as long as it did, he could have continued and completed his studies. 26 Ground 1 asserted that the Tribunal had committed a jurisdictional error by irrationally or unreasonably stating that the central issue was whether the earthquake had caused the appellant's family to be unable to support him in Australia. Ground 2 asserted, alternatively, that the Tribunal had unreasonably used the appellant's concession that he had prepaid $1700 in fees for the 2015 course, which he never attended, to diminish the impact of the earthquake on his financial position. 27 Ground 5 asserted that the Tribunal had made a jurisdictional error by failing to notify the appellant adequately of the issues that it considered might be important and that ground also seems to have been the gravamen of the new ground as well. 28 His Honour rejected grounds 3, 4, and 6. He found that the Tribunal was entitled to consider whether the appellant was a genuine student as a factor in the exercise of its discretion under s 116(1)(b). He found that, in doing so, it could take into account the importance of pursuing study to a person seeking to retain a student visa, which the visa would enable in this country and so rejected ground 3. 29 His Honour rejected the argument in support of ground 4, namely, that the appellant's lack of pursuit of any study activity in the period while his application for review was on foot was not a relevant consideration. He held that this was a matter which was open to the Tribunal to take into account. 30 His Honour found that each of the considerations said to be irrelevant in the particulars to ground 6 were matters which the Tribunal was entitled to consider, such as his failure to study while the review was taking place. His Honour found that the Tribunal had taken into account the appellant's concerns about the time taken for the review, but considered that this ground was simply an impermissible argument in the judicial review proceeding about the merits. 31 His Honour found that the Tribunal had not committed any jurisdictional error, as alleged in grounds 1 and 2, by taking into account, as a central issue, whether the earthquake had impacted on the appellant's ability to undertake his studies with financial support from his family. The trial judge rejected ground 2 on the basis that it was open to the Tribunal to consider the appellant's claim of financial difficulty and the fact that in October 2015, he had been able to prepay $1700 for a new course. 32 In discussing ground 5, and the new ground, his Honour noted that counsel for the appellant had argued that the Tribunal had not properly or adequately identified to the appellant its concerns summarised by the Tribunal in par 47 of its reasons. In par 47, the Tribunal, in effect, summarised the discussion it had with the appellant throughout the hearing. His Honour said (at [40]): A transcript of the hearing has been tendered and it is apparent that the applicant had a real and meaningful hearing. It is also clear on the face of the Tribunal's reasons that the Tribunal identified raising the condition 8516, as well as the potential adverse consequences and the same, in relation to the breach of limitations on work hours of the applicant's student visa. There was no denial of procedural fairness in the circumstances and no breach of the statutory powers. Accordingly, no jurisdictional error arises by reason of the new issue in the counsel's submissions. (emphasis added) 33 The Minister properly pointed out, the appellant being unrepresented in the appeal and not having appeared this morning when the matter was called, that in fact there was no evidence of any transcript before his Honour, and none had been tendered during the hearing. Accordingly, the first sentence of [40] of his Honour's reasons has no basis. 34 His Honour found that the Tribunal was not bound to consider the conditions of the bridging visa that, unlike the cancelled student visa, allowed the appellant to work more than 20 hours a week. The primary judge found that the suggestion that the Tribunal should not have taken into account the appellant's breach of the 20 hour limitation on work in his student visa was an attempt to engage in merits review. This appeal 35 The notice of appeal raised five grounds, namely, that the trial judge erred: (1) in failing to find that the Tribunal had failed to consider mandatory relevant considerations, and, in particular, that his bridging visa did not require the appellant to be enrolled in a course of study; (2) in failing to find that the Tribunal had denied the appellant procedural fairness and had not taken his financial difficulty into account; (3) in failing to find that the Tribunal erred in finding to be without substance the appellant's reliance on the delay in finalising its review as being a cause of his not having undertaken studies in that period, because (he contended) the impact of the earthquake was beyond the appellant's control; (4) because his Honour's written reasons were not published online at the time the notice of appeal was prepared on 22 November 2019; and (5) his Honour appeared to have made the decision to dismiss the application prior to the hearing. 36 These grounds are not supported by any particulars, written submissions or any apparently intelligible other basis. 37 As to ground 1: there was no mandatory relevant consideration in relation to conditions of the bridging visa. The issue before the Tribunal was whether the appellant had breached the conditions of his cancelled visa while it was on foot. He had admitted to the Tribunal that he had been working more than 20 hours a week while the cancelled visa was on foot. That was an admission of his breach of a condition of that visa which was a relevant matter for the Tribunal. Ground 1 cannot be sustained. 38 As to ground 2: the Tribunal took into account the appellant's allegation that he had financial difficulties. It weighed that against the fact that, after the earthquake had occurred in April 2015, the appellant had prepaid $1700 in October 2015 for a course he did not undertake and for which he did no work or study, despite his avowed purpose of being here to study on his student visa. The Tribunal put these matters to the appellant and explored them with him during the hearing, as its decision record states. Ground 2 has no substance. 39 As to ground 3: this ground is difficult to understand. The Tribunal took into account the potential for an adverse financial impact on the appellant and his family's ability to support him due to the earthquake, but in doing so it had regard to all of the evidence before it. I am unable to perceive any arguable basis on which it could be suggested that it made a jurisdictional error in the way in which it assessed the material before it. 40 As to ground 4: the fact that the trial judge's reasons were not available online is irrelevant. The appellant was represented by counsel when his Honour delivered an ex tempore judgment and was aware of the reasons why his application was being dismissed: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257 at 265 [25] per Steward J, with whom Kiefel CJ, Keane, Gordon and Edelman JJ agreed. In any event, the trial judge published his revised ex tempore reasons on 5 December 2019 and the appellant has done nothing in over two years since then to amend, or seek to amend, his notice of appeal to identify any other alleged ground of appeal. Therefore, this ground has no substance: AAM17 388 ALR at 268–270 [35]–[41]. 41 As to ground 5: this appears to raise some allegation of an appearance of bias, but there is no particularity or foundation to support the allegation in any of the material available. 42 As to the reasons of the trial judge: The Minister argued that the trial judge's reference to the existence of the transcript and it revealing that it was "apparent that the applicant had a real and meaningful hearing" was an independent and separate ground from his Honour's subsequent statement in [40] that it was clear on the face of the Tribunal's reasons that it had raised the issues that the appellant's counsel below had contended it had not identified or put to the appellant in the course of the Tribunal hearing. 43 I am satisfied from my reading of the Tribunal's decision record, which is the only evidence of what transpired during the hearing before it, that the Tribunal raised with the appellant each of the concerns that it took into account as adverse factors in the exercise of its discretion under s 116(1)(b) to conclude that the correct and preferable decision was to confirm the cancellation of the visa, namely: there was a temporary disruption to the appellant's ability to study because of the earthquake in Nepal; his failure to be enrolled in a registered course in the period between the cancellation of his enrolment on 11 May 2016 and the cancellation of the visa had not been due to the earthquake; the appellant's failure to undertake any study since completing the certificate in October 2015 until immediately before the hearing in March 2019; and the appellant's admitted breaches of condition 8516 and the 20-hour work limitation while the visa was in place. 44 The Tribunal's decision record noted that it had discussed each of those mattes with the appellant and recorded his responses. The proceeding in the Tribunal was inquisitorial, not adversarial. It is not a requirement of procedural fairness that an administrative decision-maker give a running commentary on how he or she may be considering the appellant's or other evidence. It was for the appellant to make his case before the Tribunal: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40], 165–166 [47]–[48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. On that basis, it is clear that the complaint in ground 5 and or the new ground argued before the trial judge had no substance. 45 The appellant was represented by counsel. His Honour allowed counsel to raise or explore a new ground as well as all six grounds of his application for review. His Honour did so in a way that, apart from the error in identifying a transcript that was not before him, does not reveal any suggestion of prejudgment. Having reviewed the appeal book, apart from that error, I am unable to perceive any error that he made in dismissing the grounds argued before him, or otherwise any jurisdictional error in the Tribunal's decision. Conclusion 46 In my opinion, there is no substance in the appeal, and it should be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate: Dated: 28 April 2022