Acharya v Minister for Immigration
[2016] FCCA 1240
•01 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACHARYA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1240 |
| Catchwords: MIGRATION – Judicial review of determination not to grant student visa – whether the Tribunal misapplied the test for determining ‘circumstances’ in s116(1)(a) – no jurisdictional error –application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Minister for Immigration and Multicultural Affairs v Zhang [1999] FCA 84 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) HCA 6; 185 CLR 259 |
| Applicant: | SHIVA PRASAD ACHARYA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 433 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing date: | 07 April 2016 |
| Date of Last Submission: | 07 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 01 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Da Gama Pereira & Associates |
| Counsel for the First Respondent: | Mr Aleksov |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That the application for judicial review be dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 433 of 2015
| SHIVA PRASAD ACHARYA |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND ANOTHER |
First Respondent
And
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a determination of the Migration Review Tribunal (as it then was) (‘the Tribunal’), affirming a decision of the Minister’s delegate to cancel the applicant’s Student (Temporary) (subclass 573) visa (‘the visa’) pursuant to the provisions of section 116(1)(a) of the Migration Act 1958 (‘the Act’).
This matter arises within the context of the streamlined processing of student visa applications (SVP) whereby assessment on the rigorous criteria is not required where the visa applicant satisfies the “alternative pathway” prescribed by Clause 573.223(1A) of the Migration Regulations 1994 (‘the Regulations’) being for eligible higher degree students.
Clause 573.223 provides:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (1A) or (2).
(1A) If the applicant is, and was, at the time of the application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(2) If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an en eligible higher degree student:
(a) the applicant gives the Minister in accordance with the requirements mentioned in Schedule 5A for the highest assessment level of the applicant; and ...
Clause 573.111 defines “eligible higher degree student” as:
...an applicant for a Subclass 573 visa in relation to whom the following apply:
(a) the applicant is enrolled in a principal course of study for the award of:
(i) a bachelor’s degree; or
(ii) a masters degree by coursework;
(b) the principal course of study is provided by an eligible education provider;
(c) if the applicant proposed to undertake another course of study before, and for the purposes of, the principal course of study:
(i) the applicant is also enrolled in that course; and
(ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.
The applicant’s visa application made 27 December 2013, at [39] sets out the applicant intending to study a Diploma of Computing at Melbourne Institute of Business and Technology (MIBT) from 22 October 2013 to finish 6 June 2014 and a Bachelor of Information Technology at Deakin University to commence 7 July 2014 and be completed by 30 June 2016. The applicant claimed to be enrolled accordingly.
MIBT is an educational business partner of Deakin University.
Before commencing his studies, the applicant changed his enrolments respectively to a Diploma of Commerce to be followed by a Bachelor of Commerce degree. There was no change to his educational providers. These changes are not relevant to the issues now before me.
At [50] of his visa application, the applicant ticked the box “Assessment Level 1” therefore avoiding the obligations of the “normal stream” being to meet the relatively stringent requirements of Clause 573.223(2) and in turn schedule 5A, which for this applicant, being from Nepal, would have been the highest assessment level.
Section 116(1)(a) of the Act provides that:
Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
The decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists …
It is not contentious that the applicant failed his Diploma of Commerce at his first semester and, on advice from an agent, changed his enrolment from Diploma of Commerce at MIBT to a hospitality course at a different education facility.
On 5 September 2014 the applicant was sent a Notice of Intention to Consider Cancellation stating inter alia:
Information available in the Provider Registration and International Student Management System (PRISMS) indicates that whilst you are enrolled at a principal course of study for the award of bachelor’s degree and a master’s degree by coursework that is provided by an eligible education provider, you are not enrolled in another course of study before and for the purposes of the principal course of study.
The applicant’s visa was cancelled by the Minister’s delegate on 21 October 2014.
The applicant sought review of this decision by the Tribunal.
Tribunal’s Decision
The Tribunal found that the applicant’s change of preliminary course enrolment from Diploma of Commerce at MIBT engaged Section 116(a) of the Act in that a circumstance permitting the grant of the visa no longer existed.
The Tribunal’s reasons at [38]-[42] set out its consideration thus:
38. Based on the PRISMS information put to the applicant under s359AA of the Act, the Tribunal finds that the applicant’s enrolment in the Diploma of Commerce was cancelled on 16 July 2014.
39. When the applicant ceased to be enrolled in the Diploma of Commerce with an educational business partner of his eligible education provider, he no longer satisfied cl.573.111(c) and therefore no longer met the definition of an eligible higher degree student.
40. The applicant did not provide any evidence to show that he currently meets the definition of an eligible higher degree student.
41. Accordingly, the Tribunal finds that the applicant is not an eligible higher degree student. He therefore does not satisfy the requirements of clause 573.223(1)(A).
42. For these reasons, the Tribunal is satisfied that the ground for cancellation in S116(1)(a) exists. As that ground does not require mandatory cancellation under S116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
The Tribunal then proceeded to exercise its discretion against the applicant.
Application to this Court
The application sets out four grounds of complaint with the Tribunal’s decision. However, by the time of the hearing, ground 2 seems to have been abandoned and others amended. I will therefore deal with the applicant’s arguments as set out in his counsel’s written submissions.
Ground 1
The applicant here argues that the Tribunal erred in basing its decision on an incorrect finding as to the “relevant fact or circumstance” enabling or no longer enabling this applicant to satisfy the criteria of “eligible higher degree student”.
The applicant says that the cancellation decision was based on the applicant ceasing his enrolment in the Diploma of Commerce course, inferred by the Tribunal as the preparatory or preliminary course to the Bachelor’s degree but at a point in time when the applicant had not ceased his enrolment in the Bachelor’s degree.
The applicant says that the error in the exercise of the discretion was in the Tribunal’s understanding that the applicant had to comply with sub-section (c) of clause 573.111, where that subsection is not a necessary requirement for the satisfaction of “eligible higher degree student” but where satisfaction of sub-sections (a) and (b) are sufficient. Put another way, the applicant argues that his enrolment in the Bachelor’s degree at Deakin University was the “relevant circumstance” permitting the grant of the visa. That is, that his eligible higher degree student status is satisfied by his ongoing enrolment and that his cancellation of enrolment in a preparatory course (sub-section (c)) did not materially change that circumstance. The applicant’s argument continues that the “particular fact or circumstances” that he is required to meet is the satisfaction of either limb of clause 573.223(1A) and (2) as they provide alternatives. He argues that the Tribunal did not consider whether he satisfied the second and more onerous alternative which addresses the clause 5A requirements.
Firstly, I accept the submission of counsel for the first respondent that the applicant carries an onus to satisfy this court that the Tribunal’s decision was affected by jurisdictional error.
Whilst the applicant’s argument has some hypothetical and logical interest, the Tribunal here dealt with the applicant’s application on the basis of him having pursued the SVP alternative to satisfy the requirement of “eligible higher degree student”. Section 116(1)(a) was engaged on the basis of this change in circumstance as to subsection (c) of clause 573.111. This applicant did not pursue his visa under clause 573.223(2). No schedule 5A type evidence or submissions were put before the Tribunal. As such, no error is apparent in the Tribunal proceeding on the basis of the application being made under the SVP option and the circumstances claimed therein having changed.
Secondly under ground 1, the applicant argues that the Tribunal erred in concluding that the precondition for cancellation under section 116(1)(a) is met in that in order to satisfy the criteria for a 573 visa there is no requirement for the Minister to be satisfied that the applicant was enrolled with an eligible education provider. That is, this applicant’s change from one eligible education provider to another was not a “material” change such as to enliven section 116(1)(a).
I was here referred to the Full Court decision in Minister for Immigration and Multicultural Affairs v Zhang[1] where the Court considered the phrases in section 116(1)(a). Merkel J at [74] opines:
In my view the subsection is concerned with a material change in the circumstances, other than the Minister's satisfaction, which led the Minister to be satisfied that the criteria necessary for the grant of the relevant visa were met. Without endeavouring to be exhaustive of those circumstances they will include any matter, other than the ministerial satisfaction, in respect of which the Minister is required to be satisfied under either the Act or the Regulations prior to the granting a visa.
[1] [1999] FCA 84
It follows then that the Minister’s own satisfaction is not one of the “circumstances” anticipated by section 116(1)(a). Rather, it is circumstances by which the visa was obtained that are relevant. That is, the historical facts that prevailed, leading to the Minister’s satisfaction that are the relevant circumstances. Those material facts here were the applicant’s enrolment in the degree course and his enrolment in the diploma course, each at eligible institutions. This was understood by the Tribunal in its reasons at [39] and [40] as set out above.
A third limb of ground 1 is that the applicant continued to satisfy subsections (a) and (b) of clause 573.111 (eligible higher degree student) and therefore did not need to satisfy subsection (c). Put simply, he was enrolled in the bachelor’s degree course.
Section 116(1)(a) is concerned with the material circumstances existing as at the grant of the visa. This applicant relied on subsection (c) as a preliminary criterion to satisfaction of (a) and (b). Such an inference was clearly available to the Tribunal on the facts before it. The applicant put no factual platform consistent with him being an eligible higher degree student by reason of satisfaction of (a) and (b) alone and exclusive of (c). As such, the Tribunal did not fall into error in its process and determination.
Ground 3
Counsel for the applicant was granted leave to argue this ground in the following form:
That the Tribunal erred in exercising its discretion to cancel under s. 116 of the Migration Act 1958 by failing to consider the applicant’s submissions that: (a) he relied on a third party’s faulty advice and after discovering that the advice was faulty, took steps to unwind his reliance; and (b) his history of compliance with all other conditions on his visa.
The Tribunal recognised this argument in its reasons at [29] where there appears the following:
The submissions summarises the applicant’s arguments in support of an exercise of the discretion not to cancel the visa:
(a) he acted on advice in enrolling
(b) he made an application for the appropriate visa
(c) he is now making attempts to enrol in Kent to complete an IT course
(d) he is presently compliant with all other conditions of his visa and will continue to comply with all conditions into the future.
The applicant argues that his claim was clearly made but that the Tribunal neglected to engage or consider the integers at (c) and (d).
The applicant says that the Tribunal’s determination is discretionary and that its disposition may have been different if it had considered these claims.
Whilst a failure by a Tribunal to acknowledge or address and engage a claim can lead to its determination being infected by jurisdictional error, this is not a necessary consequence. In WAEE v Minister for Immigration and Multicultural Affairs[2] their Honours observe at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has, at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in the findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s view of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
[2] [2003] FCAFC 184
In the matter now before me, I am satisfied that the Tribunal identified the applicant’s claims which he says might influence its discretion. I am satisfied generally that the Tribunal’s reasons are comprehensive and I comfortably infer that the Tribunal understood these to be matters that did not rise to a level where the “WAEE inference” should be displaced and where the observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[3] are relevant and where the Court notes at [31]:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
[3] (1996) HCA 6; 185 CLR 259
I find no merit in this ground of complaint.
Ground 4
The first limb of argument here is that the Tribunal erred by failing to consider that the applicant’s processing via the SVP option was not a result of his choosing, but simply by reason of Australia taking the responsibility of testing an applicant’s suitability for a visa away from the Department of Immigration and placing it with particular universities themselves. That is, this applicant “did not ask to be in” the SVP system. Counsel argues that there was no separate application for the SVP option and there was a common and standard visa application form.
The applicant says that the Tribunal fell into error as evidenced by its reasons at [45] where it says:
The fact that his visa was granted under streamlined visa processing meant that the evidentiary requirements were less stringent than would otherwise be the case.
The applicant argues that the Tribunal thought it relevant that the applicant’s visa was considered and granted under the SVP option and that such an approach is “punitive” by reason of an applicant having his visa cancelled even if he would have satisfied that “normal” option and criteria.
Nevertheless, this applicant completed a visa application document. He asserted “assessment level 1 or eligible for streamlined visa processing” at question 50. The applicant is from Nepal and not otherwise subject to assessment level 1.
Secondly, and as indicated above, this applicant at no time, in support of his application or before the Tribunal, mounted an argument or gave or adduced evidence in support of the schedule 5A criteria. Consequently, I can find no merit in this argument.
Secondly, under this ground, the applicant argues that the Tribunal erred in failing to take into account the applicant’s explanation that there was no indication on his visa that he could not change his courses.
It is clear from the Tribunal’s reasons at [28] both that the applicant raised this issue and that the Tribunal acknowledged the submission.
At [49] the Tribunal’s reasons disclose:
In his submission to the Department, dated 11 October 2014, the applicant states that he was misguided by an agent’s advice and that he (the applicant) was not aware of the consequences. The Tribunal is of the view that the onus is on an applicant to understand his responsibilities while holding a visa to enter and remain in Australia. If he was not aware of the visa requirements, he could have informed himself of his responsibilities by asking questions of an agent or the Department prior to coming to Australia.
I am content, therefore, that the Tribunal acknowledged, understood and considered the applicant’s argument but found it to be without merit.
Finally, the applicant complains that the Tribunal at [49] stated that the applicant “should have sought and obtained advice that changing courses could lead to cancellation of his visa”. However, a close reading of [49] suggests that the Tribunal was not so affirmative. Rather, [49] confirms that there is an onus on an individual to understand his responsibilities under a visa. It does not necessarily follow that the Tribunal “presumes that changing courses to a non-SVP provider would mean his visa was cancelled”. I find no merit in this argument.
Conclusion
Having found no merit in any of the grounds of complaint of the applicant, the application will be dismissed with an order for costs in favour of the first respondent.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 01 July 2016
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