ABHISHEK v Minister for Immigration

[2016] FCCA 82

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABHISHEK v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 82

Catchwords:
MIGRATION – Visa – student visa – visa cancellation - whether applicant satisfied condition 8516 of Schedule 8 of the Migration Regulations.

Legislation:

Migration Act 1958 (Cth), ss.476, 116(1)(b)

Migration Regulations 1994 (Cth), reg.1.40A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration v Khagdi (2010) 190 FCR 248

Applicant: ABHISHEK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 127 of 2015

Judgment of: Judge Heffernan

Hearing date: 22 December 2015

Date of Last Submission: 22 December 2015

Delivered at: Adelaide

Delivered on: 2 February 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 7 April 2015 is dismissed.

2. The name of the second respondent is amended to ‘The Administrative Appeals Tribunal’.

3. The applicant pay the costs of the first respondent fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 127 of 2015

ABHISHEK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’). The applicant seeks an order that the decision of the second respondent dated 16 March 2015 be quashed.

2. The applicant is a male Indian national born in 1995 who entered Australia in February 2014 on a subclass 573 Higher Education visa.[1]  Subject to compliance with the terms of his visa, he was entitled to stay in Australia until March 2017.[2]  The course he enrolled in was a combined Diploma of Information Technology and Bachelor of IT.  The applicant ceased to be enrolled in these courses on 2 July 2014.[3]  It appears that having failed the first semester, he withdrew from those courses and enrolled in a Diploma of Business at a different institution and then made an application for a subclass 572 visa.  That visa was refused in August 2014.  The Diploma of Business for which he had enrolled was not a higher education course of a type specified for subclass 573 visas.  At the Tribunal hearing, the applicant accepted that this was the case.[4]

   [1]     Court Book (‘CB’) p 46.

   [2]     CB p 9.

   [3]     CB p 47.

   [4]     CB p 47.

3. On 5 September 2014, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’).  There was no reply to that.  A delegate of the Minister determined to cancel the applicant’s subclass 573 visa on 16 September 2014.  The applicant appealed the decision of the delegate, and as noted above, the second respondent affirmed the delegate’s decision on 16 March 2015.

Grounds of application

1. The grounds set out in the application to this Court dated 7 April 2014 are in narrative form.  I summarise them as follows:

2. The applicant points to the findings of fact identified by the Tribunal at paragraphs 13 to 16 inclusive, and paragraph 29 of the Decision Record.[5]  With respect to these paragraphs, he submits that:

   a)The Tribunal failed to consider the fact that whilst he had failed in his original courses of study, he studied for an entire semester before changing courses;

   b)He changed courses because his original course was simply too hard for him;

   c)The institution at which he was studying did not offer, in his view, good higher education courses in business administration, and so he enrolled in a different institution;

   d)The Tribunal erred in failing to accord sufficient weight to the fact that it was the difficulty he experienced in his chosen course that had caused him to terminate it and enrol in the alternative vocational course of business administration.  The applicant claims that the difficulty of his original course and his subsequent failure in the first semester, were matters that were beyond his control; and

   e)The applicant claims that he had no other choice but to change courses because if he continued to fail in his original course, his visa would inevitably be cancelled.

   [5]     CB p 47.

3. The implication of the above was, he claimed, that he had been left in a ‘no win’ situation and the visa condition for a subclass 573 visa did not afford sufficient flexibility for a person in his position.

4. At the hearing in this matter, the applicant submitted (in addition to the grounds summarised above) that the conditions of the visa were not explained to him in India.  He also claimed that to return to India without completing his study was a matter that would impact upon his self-respect and was against the interests of his parents.

The relevant visa scheme and the decision of the Tribunal

1. The applicant entered Australia on a Student (Temporary) (Class TU) subclass 573 Higher Education Sector visa. In the applicant’s case, the relevant primary criteria was subcl.573.231 of Schedule 2 to the Act. By virtue of that subclause, the applicant was required to be enrolled in a principle course of a type specified for subclass 573 visas by the Minister. In an instrument made under reg.1.40A of the Migration Regulations 1994 (Cth) (‘the Regulations’) that was in force at the time that the application was made, for the purpose of a subclass 573 visa, the principle courses identified included a higher education diploma and a bachelor degree, but did not include vocational courses of the type in which he had re-enrolled. Pursuant to subcl.573.611, it was necessary for the applicant to satisfy inter alia condition 8516 of Schedule 8 of the Regulations. That condition stipulated that, “the holder must continue to be a person who would satisfy the primary or secondary criteria as the case requires for the grant of the visa”.

2. The Tribunal considered the wording of condition 8516 and concluded that the effect of the words used meant that the holder of the visa must continue to be a person who would satisfy the primary or secondary criteria at all times while the visa is held.[6]  The Tribunal noted in effect that the words ‘would satisfy’ suggest that the relevant criteria must be capable of being met at any time during the period of the visa if assessment of the criteria were made afresh and compliance required. This is, in my view, a correct construction of the words of condition 8516.  As the Tribunal noted, the effect of this is that if he failed to be enrolled in a principle course of the type specified for a subclass 573 visa at any time the applicant would be in breach of his visa irrespective of whether he had enrolled in a subsequent course.  A breach in those circumstances would not be confined to re-enrolling in a course of a type not specified for a subclass 573 visa as in this case.  A breach would occur if a person withdrew from one acceptable higher education course and then re enrolled in a different acceptable higher educational course a fortnight later.

   [6] CB p 47 at [11].

3. The Tribunal found that because he had ceased to be enrolled in a principle course of a type specified for subclass 573 visas, the applicant did not continue to be a person who would satisfy the primary criteria (cl.573.223(1A) or cl.573.231) for the grant of the relevant visa, and for that reason was in breach of condition 8516.[7] As a result the Minister had power to cancel the applicant’s visa pursuant to s. 116(1)(b) of the Act. The Tribunal correctly found that grounds for cancellation existed in this case.

   [7] CB p 48 at [21].

4. The Tribunal noted that cancellation pursuant to s.116(1)(b) was not mandatory and considered the exercise of the discretion to do so. It took into account the explanation for condition 8516 as stated in the Procedural Advise Manual (‘PAM’). It was relevant to the exercise of the Tribunal’s discretion, that the explanation in PAM was that condition 8516 was specifically designed to prevent students from meeting the requirements for the purpose of an initial grant of a visa only to change those arrangements after arrival in order to avoid visa requirements.

5. In exercising the discretion, the Tribunal considered the applicant’s submission that the breach had only occurred in circumstances where the higher education study was too hard for him.  It concluded that this was not a matter which was outside the applicant’s control.  This was a finding of fact.  I am not permitted in these proceedings to engage in a review of the merits of the applicant’s case.  It is not permissible for me to substitute my own findings of fact for that of the Tribunal.[8]

   [8]     Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

6. There was nothing unreasonable in the relevant legal sense, irrational, illogical or plainly unjust about the finding or the manner in which the Tribunal approached this issue.  It noted that it was the primary responsibility of the applicant to ensure that he met the terms and conditions of his visa.

7. The Tribunal also considered whether there were extenuating or compassionate circumstances that might impact upon the exercise of the discretion as to whether or not to cancel his visa.  It considered the applicant’s claims that he had borrowed money from relatives in order to undertake his course of study in this country, that his return to India would involve the inevitable disappointment of his family, and a loss of time and money for the applicant.  The Tribunal accepted that some hardship would be caused to the applicant by cancellation of his visa.[9]  It concluded that there were no extenuating or compassionate circumstances that were sufficient to enliven the discretion.  This was also a finding of fact, and for me to revisit this issue would be to engage in an impermissible merits review.

   [9] CB p 49 at [32].

8. The Tribunal acknowledged that the applicant had attended one semester of his chosen course.  The applicant complains that the Tribunal did not give sufficient weight to the fact that his failure in his course of study was the underlying cause of his breach.  The question of the weight to be accorded to any fact or submission is a matter for the Tribunal. [10]

   [10]    Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration v Khagdi (2010) 190 FCR 248; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

9. The Tribunal did not fail to consider any relevant matter or take into account any irrelevant matter in reaching the conclusion that it did. There is nothing in the reasoning adopted by the Tribunal on this point that caused it to fall into jurisdictional error.  The applicant was in breach not because he had failed certain subjects in the first semester of his study, but because he withdrew from his course.  As the Tribunal itself noted, he sought to apply for vocational courses not long after his arrival in Australia, and simply ceased to pursue a higher degree.

Conclusion

1. In essence, the applicant’s complaint is that it is unfair that the visa scheme did not give him sufficient flexibility to change courses in his circumstances.  Unfortunately, this ignores the fact that he was permitted to enter the country on specific and defined conditions.  As I have noted above, there was cause to cancel his visa.  I can find no jurisdictional error in the approach or findings of the Tribunal.  The question of weight to be given to his failure in the first semester was a matter for the Tribunal.  Whatever weight was attached to it, this did not affect the fact that he was in breach.  It was not a jurisdictional error for the Tribunal to conclude that the breach did not occur in circumstances which were out of the applicant’s control.  It was not a jurisdictional error for the Tribunal to exercise the discretion to cancel in the manner in which it did or to conclude that there were no extenuating or compassionate circumstances that would cause it to exercise discretion not to cancel the visa.  The complaint made by the applicant that the conditions of his visa were not explained to him in India is not a matter that gives rise to a jurisdictional error.  The applicant was obliged to familiarise himself with the terms and conditions of his visa and to comply with them.

2. I make the orders set out at the beginning of these reasons.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  2 February 2016