Buttar v Minister for Immigration
[2019] FCCA 15
•16 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUTTAR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 15 |
| Catchwords: MIGRATION – Judicial review – student visa – whether impermissible merits review – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.116, 476 Migration Regulations 1994 (Cth), reg.1.40A, sch.2, cll.573.223, 573.231, sch.8, cl.8516 |
| Cases cited: Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 |
| Applicant: | MANJINDER SINGH BUTTAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 553 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 20 December 2016 |
| Date of Last Submission: | 20 December 2016 |
| Delivered at: | Perth |
| Delivered on: | 16 January 2019 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 553 of 2015
| MANJINDER SINGH BUTTAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 19 November 2015. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) affirming the Delegate’s Decision to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 573) visa (“Student Visa”).
The Tribunal Decision is at Court Book (“CB”) is at CB 188-192.
Background prior to the Judicial Review Application
The background prior to the Judicial Review Application is as follows:
a)on 11 October 2013, the applicant was granted the Student Visa by the Department of Immigration and Border Protection ("Department") in order to undertake a package of courses at the University of Western Australia and Taylor College: CB 58;
b)the Student Visa was obtained under the Streamlined Visa Processing ("SVP") arrangements: CB 61;
c)on 7 November 2014, the Department sent a Notice of Intention to Consider Cancellation ("NOICC") under s.116(1)(b) of the Migration Act to the applicant by email, due to an apparent breach of sch.8, cl.8516 (“Condition 8516”) to the Migration Regulations 1994 (Cth) (“Migration Regulations”), which required that the applicant “must continue” to satisfy the primary or secondary criteria, as the case requires, for the grant of the Student Visa. Relevantly, the primary criteria required, amongst other things, that the applicant continue to be enrolled in, or the subject of, a current offer of enrolment in a principal course of study of a type specified for the Student Visa, satisfying either cl.573.231 or cl.573.223(1A) of Schedule 2 to the Migration Regulations: CB 3-5;
d)on 20 November 2014, the applicant responded to the Department's NOICC, conceding that that he had decided to change courses because it was "too hard": CB 40. The applicant also stated that he had obtained enrolment in courses offered by the Cantillon Institute and Australian School of Management, which included a Bachelor of Business in Hotel Management: CB 40-48;
e)on 23 January 2015, the Delegate decided to cancel the Student Visa under s.116(1)(b) of the Migration Act: CB 58-67; and
f)on 27 January 2015, the applicant applied to the Tribunal for review of the Delegate’s Decision (“Tribunal Review Application”). The applicant appointed a migration agent to represent him and provided a copy of the Delegate’s Decision with the Tribunal Review Application: CB 68-69.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)found that the applicant had not been enrolled in a Bachelor degree or master’s degree by course work or any of the courses specified by instrument under reg.1.40A of the Migration Regulations from 15 July 2014 until 11 November 2014: CB 191 at [16], and was therefore satisfied that the applicant had failed to comply with Condition 8516 of the Student Visa, and that the ground for cancellation in s.116(1)(b) of the Migration Act existed: CB 190-191 at [16]-[17];
b)had regard to the relevant factors contained in the PAM3 "General visa cancellation powers" document and the applicant's evidence to the Department and the Tribunal, in considering whether the discretion to cancel the Student Visa should be exercised: CB 191 at [18]-[24], and made the following relevant findings:
i)the applicant's bank statements indicated that he was working many hours with various employers and had significant work commitments throughout 2014 and 2015, and in the circumstances, did not accept the applicant's claim that the foundation course was too difficult for him, but rather “that the applicant was failing the Foundation course and withdrew from the Bachelor degree because of his significant work interests and commitment”: CB 191-192 at [27];
ii)the applicant had a strong motivation (or need) to work in Australia which was greater than his commitment to his higher education study: CB 192 and [27]; and
iii)accepted that the applicant had re-enrolled in a Bachelor degree course, but was not satisfied that the applicant would have the necessary time and commitment to undertake the course of study successfully in view of his history of significant work commitments, and his past inability to study successfully whilst working: CB 192 at [28];
c)considered the circumstances as a whole and concluded that the Student Visa should be cancelled: CB 192 at [29]; and
d)affirmed the Delegate’s Decision: CB 188 and 192 at [30];
Grounds of the Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. That I am a student here.
2. That I am here for study not for work purposes.
3. That I am passing my study.
4. AAT has rejected my MRT.
5. I am still enrolled in my study.
Consideration
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for a Student Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. This Court must exercise a power of judicial review, a review limited to determining the legality of the Tribunal Decision: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 at [114] per Kirby J. Where a decision is found to involve jurisdictional error, that decision lacks legal foundation and consequently may be regarded in law as no decision at all: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; (2002) 67 ALD 615.
The legality of the Tribunal Decision may be impugned on the basis of jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: 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 certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, as may unreasonableness: as to which see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
The grounds of review do not purport to identify a jurisdictional error in the Tribunal Decision. Nor did anything said by the applicant at hearing identify jurisdictional error in the Tribunal Decision: rather, the applicant’s focus was on challenging factual matters, particularly as to the hours worked, determined by the Tribunal.
By reason of the Delegate’s Decision the applicant was on notice in relation to the issue of compliance with Condition 8516 for the purposes of the Tribunal Review Application, and was properly invited to, and attended, a hearing before the Tribunal where the Tribunal discussed those matters with the applicant, and subsequently determined the Tribunal Review Application.
In the Tribunal Decision the Tribunal:
a)set out and considered the applicant's evidence and claims: CB 190 at [11]-[15];
b)set out and applied the relevant law and Departmental Policy and Guidelines: CB 189-191 at [6]-[10] and [16]-[18]; and
c)considered whether to exercise the discretion to cancel the Student Visa: CB 191-192 at [18]-[29].
It follows from the foregoing that the Tribunal followed the correct processes in determining to affirm the Delegate’s Decision to cancel the Student Visa, and there was no denial of procedural fairness.
Assuming, for present purposes that the Bachelor of Business at the Australian School of Management in which the applicant subsequently enrolled in November 2014 was a principal course for the purposes of the relevant criteria, the applicant was not an eligible higher education student for the period identified from 15 July 2014 until 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 Condition 8516 during the period from 15 July 2014 until 11 November 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 Student 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 Student 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 Student 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 in Pandey at [41] per Wigney J.
It follows that the Tribunal’s determination that the Student Visa should be cancelled, was therefore open on the material before the Tribunal. On its face, there is nothing illogical or irrational in the reasoning in the Tribunal Decision, and there is an evident and intelligible justification for the conclusions reached: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [76] per Hayne, Kiefel and Bell JJ.
In the above circumstances, the applicant's grounds of review are not made out and there is no basis for concluding that the Tribunal Decision is affected by jurisdictional error, and the grounds of review therefore amount to no more than a request for impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Conclusion and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. 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 seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 16 January 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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