Bains v Minister for Immigration

[2015] FCCA 3469

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAINS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3469

Catchwords:

MIGRATION – Student (Class TU) subclass 573 higher education sector visa – cancellation for breach of condition 8516 – whether tribunal decision affected by jurisdictional error – no error.

Legislation:

Migration Act 1958 (Cth), s.116(1)(b)

Migration Regulations1994 (Cth), cll.573.223(1A), 573.231 of Schedule 2

Minister for Immigration v SZMDS (2010) 240 CLR 611.

Applicant: HARINDER SINGH BAINS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2378 of 2015

Judgment of: Judge Jarrett

Hearing date: 17 December 2015

Date of Last Submission: 17 December 2015

Delivered at: Brisbane

Delivered on: 24 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Tattersall

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The name of the second respondent be changed to “Administrative Appeals Tribunal”.

2. The application filed on 28 August, 2015 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

SYG 2378 of 2015

HARINDER SINGH BAINS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 28 August, 2015 the applicant seeks that a decision of a migration review tribunal which affirmed a decision of a delegate of the first respondent to cancel the applicant’s Student (Class TU) higher education sector visa be set aside.  The applicant seeks the issue of constitutional writs of certiorari and mandamus.

2. The first respondent opposes the application.  The second respondent has entered a submitting appearance.

3. On 19 October, 2015 directions were made to prepare the matter for hearing.  The applicant was given the opportunity to file an amended application setting out his grounds of review and any particulars in respect of those grounds.  The parties were also directed to file written submissions. 

4. The applicant has filed no written submissions.  The first respondent has filed written submissions to which I have had regard.

Background

1. The background facts are uncontentious.  The applicant is a citizen of India.  He was granted a Student (Class TU) higher education sector visa on 20 September, 2013.  The visa was subject to condition 8516.  Condition 8516 required that the applicant must continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa.

2. When he was granted his visa, he was enrolled in a Bachelor of Business degree at the University of the Sunshine Coast.  He was an eligible higher degree student for the purposes of cl.573.223(1A) of Schedule 2 to the Migration Regulations1994.  However, he withdrew from this course of study prior to the commencement date resulting in his enrolment being cancelled on 28 January, 2014.  He was no longer enrolled in any study.  Upon cancellation of his enrolment, he ceased to be an eligible higher degree student.

3. On 7 November, 2014 the Department issued the applicant with a Notice of Intention to Consider Cancellation of his visa on the basis that he had not continued to be a person who would satisfy cl.573.223(1A) of the Regulations. However, failure to satisfy cl.573.223(1A) is not fatal because in the event that a student is not an eligible higher degree student cl.573.231 provides an alternative criterion that a student can satisfy to achieve and maintain eligibility for the relevant visa.  As the tribunal explained in its reasons  for decision:

   12.    When subclause 573.223(1A) does not apply, cl.573.231 requires that the applicant is enrolled in, or the subject of a current offer of enrolment in, a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. The relevant instrument in effect at the time of the visa application was IMMI 12/037. In that instrument, the following course were specified for Subclass 573:

   ·   Higher Education Diploma:

   ·   Higher Education Advanced Diploma;

   ·   Bachelor Degree;

   ·   Graduate Certificate;

   ·   Graduate Diploma;

   ·   Associate Degree; and

   ·   Masters by Coursework.

4. On 20 January, 2015 a delegate cancelled the applicant’s visa under s.116(l)(b) of the Act on the basis that the applicant had not complied with condition 8516 because he did not continue to be a person that would satisfy cl.573.223(1A) or cl.573.231 of Schedule 2 to the Regulations.

5. On 26 January, 2015 the applicant lodged an application for review by a migration review tribunal.  The tribunal invited him to a hearing and the applicant appeared before the tribunal on 23 July, 2015 to give evidence and present arguments.

6. By its decision dated 30 July, 2015 the tribunal affirmed the decision under review.  The tribunal recorded that its task was twofold.  First, it had to determine if grounds for cancellation were made out.  Second, it had to determine whether the applicant’s visa should be cancelled.

7. The tribunal concluded that grounds for cancellation of the visa existed because the applicant was required to be an eligible higher degree student (cl.573.223(1A)) or be enrolled in, or subject to a current offer of enrolment in, a principal course specified by cl.573.231.  The applicant’s evidence to the tribunal at the hearing confirmed the information in the delegate’s decision record that the applicant’s enrolment in the Bachelor of Business course was cancelled on 28 January, 2014.  He was not thereafter enrolled in any course at least until the issue of the Notice of Intention to Cancel was given.  The applicant ceased to be an eligible higher degree student when his enrolment in the Bachelor of Business course ceased.

8. He did not seek to obtain enrolment in a higher education sector course until after the Notice of Intention to Consider Cancellation was issued to him. The tribunal recorded that there was no evidence that the applicant had an offer of enrolment in any course of a kind specified for the purposes of cl.573.231. Accordingly, the applicant did not meet the requirements of cl.573.231 or cl.573.223(1A). He therefore did not meet condition 8516 and grounds for the cancellation of his visa existed.

9. The tribunal then turned its attention to whether the applicant’s visa should be cancelled.  In doing so, the tribunal recorded that there were no matters specified in the Act or Regulations that were required to be considered in relation to the exercise of the discretion to cancel the visa.  However, amongst other things, the tribunal had regard to the matters identified in the first respondent’s department’s Procedures Advice Manual PAM3.

10. In that regard, the tribunal took into account:

    a)the purpose of the applicant’s travel and stay in Australia – after setting out the applicant’s study history in Australia, the tribunal concluded:

    The Tribunal is of the view that he has no clear course of study in mind, but has merely sought enrolments in order to justify the granting (or retention) of the visa to allow him to enter, and remain in, Australia.

    b)the circumstances in which the grounds for cancellation of the visa arose – under this heading the tribunal considered the applicant’s reasons given for withdrawing from his course on the Sunshine Coast, namely difficulty with securing accommodation;

    c)the reasons for, and extent of, the breach.  Of this, the tribunal said:

    31.    For reasons explained above the applicant was in breach of Condition 8516 because of the cancellation of his enrolment in his degree course in late January 2014 which meant that he was no longer an eligible higher degree student. That situation persisted until he enrolled in a similar degree course at Alphacrucis College in December 2014. There was therefore a period of more than 10 months in which the breach existed. The Tribunal regards this as a significant breach.

    32.    There was a shorter period during which the applicant was not formally enrolled in any course of study in the Higher Education sector and had no offer of enrolment in any such course. That period also commenced in late January 2014 but it ended when he obtained an offer of enrolment from Alphacrucis College in early November 2014. Thus, there was a period of more than 9 months when he had no enrolment in the Higher Education Sector or any offer of such an enrolment. In that period, even if he had satisfied the requirements of cl.573.223(2) which, as noted above, are more onerous than those of cl.573.223(1A), he could not have satisfied the requirements of cl.573.231.

    33.    The applicant is no longer enrolled in any course of study, but the Tribunal places no adverse weight on that fact, given that the Department has prevented him from undertaking further study by placing a “no study” condition on his bridging visa. In any event, Condition 8516 is no longer applicable after the cancellation of his Subclass 573 visa.

    d)the applicant’s subsequent application for a subclass 572 visa – the tribunal recorded that the applicant had applied for a subclass 572 visa in February, 2014.  That application was inconsistent with an intention to maintain his subclass 573 visa.  Moreover, financial checks conducted for the purpose of the subclass 572 visa revealed that the applicant did not have the financial resources that he claimed that he had in his application.  In this connection, the tribunal recorded:

    37.    Earlier in the hearing, the Tribunal discussed with the applicant information regarding the gap between the conclusion of his English language course and the scheduled commencement of his degree course at the University of the Sunshine Coast in accordance with the provisions of s.359AA of the Act, the Tribunal said the gap suggested he had ample time in which to find suitable accommodation in the vicinity of the University and that his failure   to do so could lead the Tribunal to conclude that it was never his intention to undertake that course and that, coupled with the information regarding in not having funds as declared in his application for the Subclass 572 visa, could lead it to conclude that he had sought a visa under the streamlined visa processing arrangements in order to avoid the more onerous evidentiary requirements he would have had to satisfy if he had not been found to be an eligible higher degree student.

    38.    He did not seek more time in which to comment on this information. He spoke about difficulties he claimed to have had in his English language course at the University, but he did not address the question of funds. Given the information in the delegate’s decision record regarding the fact that information was found suggesting he did not have access to funds declared in relation to a visa application, the Tribunal is of the opinion that he initially sought a visa under the streamlined visa processing arrangements in order to obviate the need to provide detailed evidence about his finances.

    e)the degree of hardship that may be caused if the visa was cancelled;

    f)past and present conduct towards the Department;

    g)whether there would be any consequential visa cancellations;

    h)whether the cancellation would result in the applicant being unlawful or detained;

    i)whether any international obligations would be breached as a result of the cancellation;

    j)the impact of any family violence; and

    k)whether there were any other relevant matters to be considered.

11. The tribunal’s conclusion was that the applicant’s visa should be cancelled.

The grounds of review

1. The applicant’s application for review specifies a single ground of review:

   1. Tribunal member did not made decision on the basis of at least four reasons mentioned by the applicant.  The reasons where:

   ·   University failed majority of international students, out of them I was one who got proof with me.

   ·   Sunshine Coast is a holiday place so I didn’t got any accommodation at reasonable price.  I continued travelling from Brisbane though.

2. Although the applicant’s grounds make reference to “at least four reasons” not considered by the tribunal, only two have been particularised in his application.  I asked him at the hearing before me what the others were, but no others were specified.

3. As to the second of the matters particularised, the tribunal’s reasons make it clear that the tribunal was aware of, and gave consideration to the accommodation matters raised by the applicant in his grounds of review.  The tribunal specifically dealt with these matters in paragraphs [27] – [30] of its reasons for decision:

   The circumstances in which ground for cancellation arose

   27.    The ground for cancellation arose because the applicant withdrew from his degree course at the University of the Sunshine Coast. Having ceased to have any enrolment in the Higher Education sector, he was no longer complying with Condition 8516.

   28.    In his written submissions to the Department, the applicant said that he withdrew from his course at the University because he found it difficult to travel every day from his home in Brisbane. He told the Tribunal that he tried to find accommodation close to the University but found it very expensive.

   30.   The Tribunal is aware that there is a volume of information available to international students on the University’s website. In particular, the website provides information about accommodation options which include furnished student accommodation within walking distance of the University campus and about travel to and from Brisbane.

   31.    Even if it were the case that accommodation close to the University was more expensive than equivalent accommodation in Brisbane, the applicant had applied for his visa on the basis that he would be studying at the University of the Sunshine Coast. It was his responsibility to ensure that he had adequate funds available to support himself during his studies, and that would include costs of living in reasonable proximity to his place of study. The Tribunal places little weight upon the applicant’s personal choice to reside in Brisbane while studying at the University.

4. As to the first of the matters particularised by the applicant, I can find no reference in any of his material or submissions given either to the Department or the tribunal that makes reference to such a claim.  In any event, even if such a claim was made, it is difficult to see how it could affect the outcome of these proceedings.  The applicant was not “failed” by the University of the Sunshine Coast.  He withdrew his enrolment for the reasons that he explained to the Department in his submission dated 19 November, 2014.  In those circumstances any claim based upon the actions of the University would have no demonstrable merit.

Conclusion

1. The tribunal properly considered the application before it.  It considered the applicant’s arguments.  The exercise of the relevant discretion was not unreasonable in the sense explained in Minister for Immigration v SZMDS (2010) 240 CLR 611.

2. No jurisdictional error is revealed by the tribunal’s reasons or otherwise. The decision is a privative clause decision within the meaning of s.474 of the Migration Act1958.

3. The application must be dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 December, 2015.

Associate: 

Date: 24 December 2015