Bal v Minister for Immigration
[2016] FCCA 1344
•10 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAL v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1344 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal to affirm delegate’s decision to cancel higher education visa – whether grounds constitute application for impermissible merits review – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 116, 474, 476 Migration Regulations 1994 (Cth), reg.1.40A, Schedule 2, cll.573.223(1A), 573.231 and 573.233(1A), Schedule 8, cl.8516 |
| Cases cited: WZATH v Minister for Immigration & Anor [2014] FCCA 612 WZATH v Minister for Immigration & Border Protection [2014] FCA 969 |
| Applicant: | AMRINDER SINGH BAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 419 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 May 2016 |
| Date of Last Submission: | 27 May 2016 |
| Delivered at: | Perth |
| Delivered on: | 10 June 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms M Hawker |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 419 of 2015
| AMRINDER SINGH BAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 14 September 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to cancel the applicant’s Higher Education Sector Subclass 573 visa under s.65 of the Migration Act (“Higher Education Visa”).
The Tribunal Decision is at Court Book (“CB”) 143-149.
Background prior to proceedings before the Tribunal
The applicant, a citizen of India, was granted the Higher Education Visa on 18 July 2013: CB 1. The Higher Education Visa was subject to a “MUST MAINTAIN ELIGIBILITY” requirement under Condition 8516 (being cl.8516 of Schedule 8 to the Migration Regulations 1994 (Cth) (“Migration Regulations”)), which required the applicant to continue to satisfy the criteria for the grant of the Higher Education Visa: CB 3.
On 7 November 2014, the Delegate issued the applicant with a Notice of Intention to Consider Cancellation (“Intention Notice”): CB 6-10. The Intention Notice relevantly provided as follows:
It has come to my attention, as a delegate of the Minister for Immigration and Border Protection, that there appears to be a ground for cancellation of your visa under s116(1)(b) of the Migration Act 1958 (the Act) which states:
s 116. (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
Particulars of grounds for cancellation
It appears that you have breached condition 8516 which is attached to your TU-573 Higher Education Sector visa.
Condition 8516 states:
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.
On 18 July 2013 you satisfied the primary criteria for a class TU-573 Higher Education Sector visa ('student visa'). The criteria for the grant of the student visa required you to meet, among other criteria, subclause 573.231 or subclause 573.223(1A), which states:
573.231
If subclause 573.223(1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation l .40A; and
(ii) in force at the time the application was made.
eligible higher degree student means 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 proposes 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.
573.223 (1A)
If the applicant is, and was, at the time of 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:
(a) the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant's eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student,
having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant's family unit.
The delegate was satisfied that you met the requirements of subclauses 573.223(1A) or 573.231 and granted you the TU-573 student visa on 18 July 2013 with condition 8516 attached.
According to the Provider Registration and International Student Management Systems (PRISMS), it appears that you are no longer enrolled in a bachelor's degree·or masters degree course and you are not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.
Based on this information, it appears that you have not continued to be a person who would satisfy either subclauses 573.231 or 573.223(1A). As such, it appears that you have not continued to be a person who would satisfy the primary criteria for the grant of the visa and have not complied with condition 8516.
CB 6-8.
On 13 November 2014, the applicant’s migration agent responded by email to the Intention Notice annexing various documents to the migration agent’s email, including confirmations of enrolment for:
a)a Certificate III course in Commercial Cookery;
b)a Certificate IV course in Commercial Cookery;
c)a Diploma of Hospitality;
d)a Bachelor Degree in Business; and
e)a written submission from the applicant (“Applicant’s Delegate Submission”);
see CB 10-20 (plus annexures at CB 21-38).
The confirmation of enrolment for:
a)the Certificate III in Commercial Cookery indicated that the applicant was enrolled in that course at The Cantillon Institute (“Cantillon”) from 14 April 2014 to 11 April 2015: CB 26-27;
b)the Certificate IV in Commercial Cookery indicated that the applicant was enrolled in that course at Cantillon from 13 April 2015 to 26 September 2015: CB 28-29;
c)the Diploma of Hospitality indicated that the applicant was enrolled in that course at Cantillon from 28 September 2015 to 9 April 2016, and notes that the “Course Sector” is “VET” (an acronym for “vocational education and training”: CB 146 at [20]): CB 30-31; and
d)the Bachelor of Business degree indicated that the applicant was enrolled in that course at the Australian School of Management Pty Ltd (“ASM”) from 8 August 2016 to 14 June 2019: CB 32-33.
The Applicant’s Delegate Submission, dated 12 November 2014, says (amongst other things) as follows:
a)the applicant arrived in Australia on 27 July 2013 to pursue an education that would benefit his career prospects in the field of management;
b)he had been offered an opportunity to obtain a degree in management at Edith Cowan University (“ECU”);
c)a lack of practice in English communication, together with the high standard of education, made completing his units difficult, and by the end of the first trimester he had “failed miserably” across all of his units in the degree in management;
d)he decided to attempt to earn a degree in management through another route and “decided to proceed [to] attain a management degree by going through an education in hospitality, and began applying to colleges in Perth to find a course that provided a pathway through hospitality to management”;
e)he was offered an opportunity to study at Cantillon, and was “granted an admission to a course in Cookery which leads to a diploma in management leading to a degree in management at … [ASM]”;
f)he requested a release from his study at ECU, which was granted on 2 April 2014; and
g)he has been regularly attending classes at Cantillon, and “will definitely follow up the diploma with a bachelor degree”.
CB 35-36.
On 16 January 2015 the Delegate cancelled the Higher Education Visa: CB 39-51 (“Cancellation Notice”). Relevantly, the Cancellation Notice advised the applicant as follows:
a)the comments in the applicant’s email dated 13 November 2014 (including the Applicant’s Delegate Submission) had been taken into account in making the Delegate’s Decision;
b)the grounds for cancellation arose under s.116(1)(b) of the Migration Act (which is set out above: see [4] above), and in particular it appeared that there had been a breach of Condition 8516 (the terms of which are also set out above: see [4] above);
c)that as at 18 July 2013 the applicant satisfied the primary criteria for the Higher Education Visa under cll.573.231 and 573.223(1A) of Schedule 2 to the Migration Regulations;
d)the grant of the Higher Education Visa had Condition 8516 attached;
e)according to the Provider Registration and International Student Management Systems (“PRISMS”) it appeared that the applicant was no longer enrolled in a bachelor’s degree, and not enrolled in a course of study that is a principal course of study specified for a Higher Education Visa by the Minister in an instrument made under reg.1.40A of the Migration Regulations;
f)based on the above information, it appeared that the applicant had not continued to be a person who would satisfy the criteria in either cll.573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations, and had therefore not continued to be a person who satisfied the primary criteria for the grant of the Higher Education Visa and had not therefore complied with Condition 8516; and
g)that “… weighing up all of the information available, … [the Delegate] was satisfied the grounds for cancelling … [the applicant’s Higher Education Visa] outweighed the reasons for not cancelling and that, in considering other subdivisions of the … [Migration Act] under which … [the Delegate] could consider cancellation, and having regard to the entire circumstances surrounding this cancellation, … [the Delegate was] of the view that it was appropriate to cancel without notice. … [The Delegate] therefore decided to cancel … [the applicant’s] visa on 16 January 2015.”: CB 41.
The Delegate’s Decision, being the Decision Record attached to the Cancellation Notice: see CB 46-51, specifically found that:
I consider that AMRINDER SINGH BAL has breached condition 8516, as they have not been enrolled in a bachelor or masters degree course, nor a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A. Therefore AMRINDER SINGH BAL has not continued to be a person who meets subclauses 573.231 or 573.223(1A). For the above reasons, I consider that the reasons for cancelling their visa outweigh the reasons for not cancelling their Higher Education Sector visa.
AMRINDER SINGH BAL ceased study in his Diploma … of Business (Intensive) [O18819J] after being in Australia for approximately 6 months. His enrolment in his Diploma of Business was then refunded on 27 May 2014. His enrolment in the higher education level course for which his visa was granted, a Bachelor of Business [003740F] at Edith Cowan University [00279B], was then cancelled on 3 April 2014 as he had withdrawn from the prerequisite course AMRINDER SINGH BAL obtained a new enrolment to study Certificate III in Commercial Cookery [081581C] within the Vocational Education and Training Sector on 14 April 2014. AMRINDER SINGH BAL does not hold enrolment in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A. Therefore, they are in breach of condition 8516 of their visa as they do not to meet subclauses 573.231 or 573.223(1A). By cancelling their enrolment in their higher education level course and by enrolling in a Vocational Education Sector Level course, it would appear that their intention is not to study a Higher Education level course in Australia, as required by their current student visa. In making my decision, I place a large amount of weight on this fact.
In your response to the [NOICC] you state you were unaware of the streamlined visa criteria. It is the visa holders requirement that they know the conditions imposed on their visa and if they are unsure of the conditions should discuss their concerns with the Education Provider, Migration Agent or contact the Department of Immigration to seek clarification. As there is no evidence before me to suggest this was done by yourself I place greater weight in the non enrolment in a TU-573 higher education course in my decision to cancel your student visa.
Based on the information before me, I am satisfied that there is a ground for cancellation of AMRINDER SINGH BAL's visa under paragraph(s) s116(1)(b) breach of condition - 8516 of the Act.
CB 49-50.
The Delegate then proceeded to consider and assess relevant factors contained in the Department of Immigration & Border Protection’s (“Department”) Procedures Advice Manual 3 (“PAM3”) guidelines setting out matters to which regard had to be had in making the Delegate’s Decision: CB 46 and 50-51, before making a finding that the Delegate was satisfied that there was a ground for cancelling the Higher Education Visa and that the grounds for cancelling outweighed the grounds for not cancelling: CB 51.
Application to the Tribunal for review of the Delegate’s Decision
The applicant lodged an application for review of the Delegate’s Decision with the then Migration Review Tribunal on 20 January 2015: CB 52-53.
The applicant was invited to a hearing before the Tribunal, which, following an adjournment, due to the unavailability of the presiding Tribunal member, was held on 19 August 2015: CB 67-68, 71 and 78-80. The Tribunal also provided the applicant (through his migration agent) with copies of the confirmations of enrolment for the Certificate III, Certificate IV, Diploma and Bachelor of Business courses in which the applicant was enrolled for the period from 2014 to 2019, together with a copy of the relevant PRISMS record: CB 55-64 and 67-76.
On 18 August 2015 the applicant’s migration agent provided written submissions with attachments: CB 87-117 (“Applicant’s Tribunal Submissions”). The Applicant’s Tribunal Submissions:
a)set out, almost verbatim, significant portions of the contents of the Intention Notice, the Applicant’s Delegate Submission, the Cancellation Notice and Delegate’s Decision (being the Decision Record): CB 89-97; and
b)set out a chronology of events and circumstances, which were said to be events and circumstances relevant to the applicant’s study in Australia, which included:
i)a brief summary of agricultural production in the Punjab: CB 97;
ii)the applicant’s career aspirations following completion of his schooling in June 2012: CB 97;
iii)the marketing of Australian education courses by the rapidly expanding education consultancy industry in India: CB 98;
iv)the applicant’s inability to cope with the Bachelor of Business course at ECU, and his subsequent endeavours to enrol in a hospitality industry course: CB 98;
v)the applicant’s parents’ aspirations for the applicant’s career and education, in pursuance of which they had “put their entire live earnings at stake”: CB 98;
vi)an assertion that “[w]ithout breaching any student visa conditions and maintaining SC573 conditions as laid out on the visa” the applicant obtained a letter of offer and enrolled in a Diploma of Hospitality leading to a Bachelor of Business: CB 99; and
vii)the applicant’s justification for changing the course based on the outlook for tourism and entrepreneurs in the Punjab: CB 99-100.
The Applicant’s Tribunal Submissions then proceeded to assert that “… grounds for cancellation do not exist”: CB 100 (emphasis in original). The Applicant’s Tribunal Submissions asserted that the applicant met the provisions of cl.573.231 or cl.573.223(1A) of Schedule 2 of the Migration Regulations at the relevant times, asserting that:
If an 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 eligible higher degree student, 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 courses were specified for Subclass 573:
• Higher Education Diploma;
• Higher Education Advanced Diploma;
• Bachelor Degree;
• Graduate Certificate;
• Graduate Diploma;
• Associate Degree; and
• Masters by Coursework.
Information in the delegate's decision indicates that the applicant was notified of the intention to consider cancelling his visa. The notice referred to that the applicant was no longer enrolled in any course of a type mentioned in the previous paragraph and that, as a result, he had not continued to be a person who would satisfy either cl.573.223(1A) or cl.573.231.
CB 101.
The Applicant’s Tribunal Submissions also assert that:
a)the applicant could change course without breaching any requirements of the Higher Education Visa: CB 102;
b)the applicant completed his Certificate III Cookery course, was studying his Certificate IV Cookery course, and was due to commence, without a gap in his studies, the Diploma in Hospitality and the Bachelor of Business: CB 103; and
c)the Tribunal ought to exercise its discretion not to cancel the Higher Education Visa having regard to the degree of hardship that may be caused to the applicant and his family by the applicant having to return to India without having completed his qualifications, and that:
i)this might cause financial hardship indirectly to the applicant and his family, and that the applicant may not be able to secure employment attracting the remuneration he might possibly achieve if he had further qualifications or a start in a business in the hospitality industry upon his return to India; and
ii)the applicant and his family in India might face “significant social stigma” that might prevent the applicant from being able to face his family if he did not return home having successfully completed his higher education in Australia: CB 104.
On 19 August 2015 the applicant attended a hearing before the Tribunal with his representative and the assistance of a Punjabi-English interpreter: CB 121-122 and CB 144 at [5].
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)referred to the relevant statutory provisions, namely:
i)section 116 of the Migration Act which provides the Minister with a discretion to cancel a visa if satisfied that certain grounds specified in s.116 of the Migration Act are made out;
ii)Condition 8516 which requires that an applicant continue to meet the relevant criteria for the grant of a visa, in this case the Higher Education Visa: CB 144 at [7]; and
iii)the criteria for the Higher Education Visa set out in cll.573.231 and 573.223(1A) of Schedule 2 to the Migration Regulations (noting also that cl.573.233(1A) is relevant insofar as it deals with the requirements for a person to be an eligible higher degree student): CB 144-145 at [8]-[9];
b)noted that the applicant’s enrolment in a Diploma of Business (Intensive) and Bachelor of Business at ECU which had been the basis for satisfaction of the criteria for the grant of the Higher Education Visa, had been cancelled on 4 April 2014, and that it therefore had to consider whether the applicant met the conditions of the Higher Education Visa on and from 4 April 2014: CB 144 at [1] and CB 145 at [10];
c)went on to consider whether the applicant was an eligible higher degree student for the purposes of cl.573.233(1A) of Schedule 2 to the Migration Regulations, and in that regard, said that:
11. On 28 August 2014, to be an eligible higher degree student, a person had to be enrolled in a principal course of study for the award of either a bachelor's degree or a masters degree by coursework, and the principal course of study had to be provided by an “eligible education provider.” If the applicant proposed to take another course of study before, and for the purposes of, the principal course of study the applicant must also have been enrolled in that course and that course must have been be provided by the eligible education provider or an “educational business partner” of the eligible education provider.
12. A series of instrument have been made by the Minister under cl.573.211 specifying eligible education providers and the educational business partners of the eligible education provider. In each of these instruments, the Minister has specifically states [stated] which education partner is a partner of a specific educational instruction [institution].
13. At the time he was granted the visa, Mr Singh was enrolled in a Diploma Business (Intensive) at Perth Institute of Technology and a Bachelor of Business at Edith Cowan University.
14. In the specification in force at the time Mr Singh ceased to be enrolled in the Diploma and Bachelor, Perth Institute of Technology was an educational partner of Edith Cowen [Cowan] University, which in turn was an eligible education provider (IMMI 14/007).
15. Mr Bal then enrolled with a Certificate III In Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality at the College of Innovation and Industry Skills, The Cantillon Institute (Cantillon) on 14 April 2014. At this time he was not enrolled in a Bachelor of Business. Cantillon was not an eligible education provider or an educational business partner of an eligible education provider at that time. It became an eligible education provider on 5 November 2014 in (IMMI14/075) for the purpose of applications for a student visa made on or after 23 November 2014. It does not apply to Mr Bal's student visa application as his application was made on 14 June 2013.
16. Mr Bal enrolled in a Bachelor of Business with the Australian School of Management on 11 November 2014. The Australian School of Management became an eligible education provider in its own right on 5 November 2014, but only for applications made on or after 23 November 2014. It has a number of educational business partners, but these do not include the Cantillon Institute. Mr Bal's enrolment in the Bachelor of Business was cancelled on 17 January 2015, the day after his visa was cancelled.
17. Even if the tribunal were satisfied that the Bachelor of Business at the Australian School of Management was the principal course (and it makes no findings in this regard), Mr Bal was not enrolled in this course until 11 November 2014 ·and was not an eligible higher education student from 4 April 2014 to 11 November 2014.
18. As the Australian School of Management was not an eligible education provider in relation to Mr Bal, as the instrument specifying it as an eligible education provider does not apply to Mr Bal, he was also not an eligible higher degree student from 11 November 2014.
CB 145-146 at [11]-[18];
d)asked whether the applicant met cl.573.231 of Schedule 2 to the Migration Regulations, and in that regard said that:
19. To meet cl.573.231, Mr Bal must be enrolled in, or the subject of a current offer of enrolment in, a course of study that is a principal course. The principal course must be of a type that was specified for Subclass 573 visas by the Minster in an instrument made under r.1.40A and in force at the time the application was made. The application was made 18 May 2014. The instrument that was in force at the time of the application was IMMI 14/015. The courses specified in that instrument are:
• Diploma (Higher Education)
• Advanced Diploma (Higher Education)
• Bachelor Degree
• Graduate Certificate (Higher Education)
• Graduate Diploma (Higher Education)
• Associate Degree
• Masters by Coursework
20. Mr Bal enrolled in a Certificate III, Certificate IV in Commercial Cookery, and a Diploma in Hospitality and the Diploma of Hospitality was his principal course. This is listed on his confirmation of enrolment as a vocational education and training course which is not specified in IMMI14/015.
21. Later, on 21 November 2014, he enrolled in a Bachelor of Business at the Australian School of Management.
22. It follows that he did not continue to be a person who would satisfy the primary criteria for the grant of the visa, and that from 4 April 2014 until 21 November 2014 he was in breach of condition 8516.
CB 146 at [19]-[22];
e)as a consequence of the reasoning in the paragraphs quoted in sub-paragraph (d) above, held that the applicant was not a person who continued to satisfy the primary criteria for the grant of the Higher Education Visa, and that from 4 April 2014 until 21 November 2014 he was in breach of Condition 8516, and the Tribunal was therefore satisfied that the ground for cancelation in s.116(1)(b) of the Migration Act existed: CB 146 at [22]-[23];
f)noted that satisfaction as to there being a ground for cancellation did not require mandatory cancellation of the Higher Education Visa: Migration Act, s.116(3), and therefore went on to consider whether to exercise its discretion to cancel the Higher Education Visa, and in so doing indicated that it had had regard to relevant circumstances, including, but not limited to relevant matters identified in the PAM3 guidelines: CB 146 at [23]-[24], and in that regard:
i)acknowledged the applicant’s submission that he had failed his original course after he had realised it was too hard, and that he had always wanted to study cooking and hospitality, but said that he was misled by his agent in India and that he had suffered stress as a result of failing the course, and noted that the applicant had provided information on the increase in hospitality business in India in support of his choice of course: CB 147 at [26];
ii)accepted that the applicant had successfully completed a Certificate III course and had commenced his Certificate IV course, however, noted that those were not courses that led to the applicant continuing to satisfy the criteria for the Higher Education Visa: CB 147 at [27];
iii)noted the period between 4 April 2014 when the applicant’s enrolment in the Bachelor of Business at ECU was cancelled and 11 November 2014 when he enrolled in the Bachelor of Business at ASM, and his migration agent’s submission that Cantillon had advised that it was awaiting approval as an educational business partner, and further noted that Cantillon being approved as an educational business partner did not assist the applicant, because he had applied for the Higher Education Visa at a time prior to that approval, and in any event, Cantillon was not an educational business partner of ASM, but rather the Central University of Queensland: CB 147 at [28]-[29];
iv)noted the applicant’s submissions with respect to the degree of hardship that may be caused if he returned to India without having completed his higher education qualifications: CB 147 at [30]-[31];
v)noted that the application for enrolment in the Bachelor of Business at ASM was made on the same day as the Intention Notice was dated, and that the applicant had said that he had it in his mind that there would be no gap between his courses and that he would maintain his Higher Education Visa status, and further noted that there was minimal time between the applicant withdrawing from the Diploma and Bachelor of Business courses at ECU and commencing the Certificate III course at Cantillon: CB 148 at [32]-[33]; and
vi)noted various details concerning the applicant’s enrolment at both Cantillon and ASM, and that the applicant’s enrolment in the Bachelor of Business course at ASM had been cancelled on 17 January 2015, and considered that in providing a confirmation of enrolment document from 11 November 2014 for the Bachelor of Business course at ASM, the applicant had attempted to mislead the Tribunal about his current enrolment status: CB 149 at [39], and that in so doing had displayed a lack of good faith which weighed against the exercise of the discretion in his favour: CB 149 at [40]; and
g)having considered all of the information before it, including the hardship the applicant claimed he would suffer if his Higher Education Visa was cancelled, did not consider the discretion not to cancel the Higher Education Visa should be exercised: CB 149 at [41].
Judicial Review Application
The Judicial Review Application contains the following grounds:
I have all my confirmation letter of my degree.
I paid all my fees & expenses of study. It is social stigma to me & my family for not completion of my degree.
It is degree of hardship for me. I appeal Federal Court to do my favour granting me my student visa.
I want to complete my studies rather than going back to country with wasting my time in Australia so that I could get proper job & bright future in my country.
Orders were made on 28 October 2015 permitting the applicant to file and serve any amended application giving complete particulars by 26 November 2015, and written submissions 42 days before the hearing. The applicant did not file either an amended application or submissions.
Submissions
Although the applicant did not file written submissions the Court permitted him to make oral submissions at hearing. The Court notes that although the applicant had a Punjabi interpreter before the Tribunal, he did not request an interpreter for the hearing before this Court, and in any event, made his submissions fluently enough in English, and appeared to exhibit no particular difficulty in understanding the oral submissions which were made by the Minister, or anything put to him by the Court.
The applicant’s oral submissions at hearing, however, amounted to no more than an elongated reiteration of the grounds contained in the Judicial Review Application, but with a particular emphasis on the fact that he had enrolled and paid the fees for his courses at Cantillon and ASM.
The Minister’s submissions asserted, in essence, that:
a)the Tribunal Decision correctly considered the law and the relevant criteria for the Higher Education Visa, and applied it to the factual circumstances of this case;
b)properly exercised the discretion having regard to the relevant PAM3 guidelines;
c)the applicant’s submissions were no more than an impermissible plea for merits review contrary to the principles derived from Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); and
d)the Judicial Review Application was not particularised, either properly or at all, and could be dismissed on that basis: citing WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (“WZATH”) and, dismissing an appeal by the applicant in WZATH, WZATH v Minister for Immigration & Border Protection [2014] FCA 969 at [17] per Siopis J (“WZATH Appeal”).
Consideration
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In the Court’s view the applicant’s grounds of application raise no issue or allegation of error, but rather simply seek to re-agitate the factual matters determined by the Tribunal, and as such are no more than a plea for impermissible merits review by way of a review of the Tribunal’s fact-finding, and a re-weighing of the Tribunal’s factual determination. For the Court to undertake such a task would be to cross the line between merits review and judicial review: Wu Shan Liang CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 93 ALR 1; (1990) 33 IR 263.
It is fair to observe that the Tribunal identified the correct and relevant law and criteria, identified the correct issues, and asked the correct questions. The Tribunal Decision demonstrates that the Tribunal considered the available evidence, and engaged in an active intellectual process and gave genuine consideration to the relevant criteria before arriving at conclusions which were available on the evidence: Minister for Immigration & Citizenshipv Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26.
The Tribunal was correct to find that the applicant had not continued to satisfy the requirements of the relevant criteria. Although the applicant was focused upon having been enrolled in a course, and having had a confirmation of enrolment for a course or courses, and having paid the relevant fees for those courses, at Cantillon and ASM, that did not assist him to meet the relevant criteria. His submission that he had not breached the requirements for the Higher Education Visa before both the Tribunal and this Court is incorrect. The Tribunal correctly observed that he did not meet the relevant criteria because:
a)Cantillon was not an eligible education provider or an educational business partner of an eligible education provider at the time that the applicant enrolled in course at Cantillon, and did not become so until 5 November 2014, and then only for the purposes of student visa applications made on or after 23 November 2014;
b)the ASM, in which the applicant enrolled in a Bachelor of Business to commence in 2016, was also not an eligible education provider in its own right until 5 November 2014, but again only for student visa applications made on or after 23 November 2014, and its educational business partners did not include Cantillon; and
c)assuming that the Bachelor of Business at ASM was a principal course for the purposes of the relevant criteria, a matter about which the Tribunal made no findings, the applicant was not an eligible higher education student from 4 April 2014 to 11 November 2014 because the applicant was not enrolled in that course until 11 November 2014, and was therefore in breach of the terms of the Higher Education Visa during the period from 4 April 2014 to 11 November 2014.
For the above reasons, the Tribunal did not err in determining that the applicant did not continue to meet the relevant criteria for the Higher Education Visa after the cancellation of his enrolment in the Diploma and Bachelor of Business course through ECU on 4 April 2014.
Having found that the grounds for cancellation existed, the Tribunal correctly turned its mind to whether or not to exercise its discretion to cancel the Higher Education Visa. In that regard, the Tribunal addressed the matters which were put to it by the applicant in relation to the exercise of the discretion not to cancel the Higher Education Visa, and also considered the relevant factors under the PAM3 guidelines. The Tribunal Decision demonstrates that the Tribunal gave active consideration to the exercise, or otherwise, of the relevant discretion, and reasonably exercised its power to affirm the cancellation of the Higher Education Visa by the Delegate, and in so doing did not act contrary to the principles with respect to the reasonable exercise of a statutory discretion outlined by the High Court in Minister for Immigration & Citizenshipv Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181, and the judgment of the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50, and the summary of the relevant principles in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
As asserted by the Minister, the failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH at [60] per Judge Lucev; upheld on appeal in WZATH Appeal at [17] per Siopis J; AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [35] per Judge Howard, upheld on appeal in AQN15 v Minister for Immigration & Border Protection [2016] FCA 571. In circumstances where the Court has concluded that there was no jurisdictional error in the Tribunal Decision, and in any event, the grounds of review do not allege a jurisdictional error, and there is therefore nothing properly capable of being particularised, it is unnecessary to consider this issue further.
To the extent that the applicant says that he obtained advice from officers of his education providers, migration agents and Departmental officers, and that he was advised that he was not in breach of the terms of his Higher Education Visa, that advice, even if wrong, cannot constitute jurisdictional error by the Tribunal: Singh & Anor v Minister for Immigration & Anor [2011] FCAFC 27; (2011) 190 FCR 552; (2011) 276 ALR 180 at [47]-[48] per Keane CJ, Collier and Logan JJ; Cheng v Minister for Immigration & Anor [2011] FMCA 461 at [55] per Barnes FM; Diamant & Ors v Minister for Immigration & Anor [2014] FCCA 21 at [44]-[46] per Judge Lucev.
In all the above circumstances, the Court has concluded that there is no jurisdictional error in the Tribunal Decision.
Conclusion
The Court has concluded that there is no jurisdictional error in the Tribunal Decision for reasons which are set out above. There being no jurisdictional error the Tribunal Decision is a privative clause decision for the purposes of s.474 of the Migration Act. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 10 June 2016
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