Deol v Minister for Immigration
[2016] FCCA 3266
•15 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEOL v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3266 |
| Catchwords: MIGRATION – Cancellation of student visa – condition 8202(2) not met – whether substantial compliance sufficient – substantial compliance not sufficient – condition 8202(2) not met – decision of tribunal not unreasonable – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.116(1)(b) Migration Regulations 1994, cl. 572.235 |
| Cases cited: Lekala v Minister for Immigration and Border Protection [2015] FCA 71 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
| Applicant: | GURWINDER SINGH DEOL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 158 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 19 June 2015 |
| Date of Last Submission: | 19 June 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 15 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Travers |
| Solicitors for the Applicant: | Chand Lawyers |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent enters a submitting appearance. |
THE COURT ORDERS THAT:
The amended application filed on 19 June, 2015 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 158 of 2015
| GURWINDER SINGH DEOL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of a migration review tribunal made on 21 January, 2015 which affirmed a decision of a delegate of the first respondent to cancel the applicant’s subclass 573 Higher Sector visa pursuant to s.116(1)(b) of the Migration Act 1958 (Cth).
The applicant contends that the tribunal erred because it failed to properly consider, on balance, all relevant factors in assessing whether its powers to cancel the applicant’s visa should be exercised. He contends that the tribunal fell into jurisdictional error because it found that the applicant had breached condition 8202 of his visa on the basis that he was not “enrolled in a registered course”. Finally he alleges that the tribunal fell into error by acting unreasonably when it made certain findings and when reaching its ultimate conclusion that the applicant’s visa should be cancelled.
The application is opposed by the first respondent. The second respondent enters a submitting appearance.
Background
The applicant was granted a student (class TU) higher education sector visa on 30 September, 2013. The visa was subject to a number of conditions and in particular condition 8202 which provides:
8202 (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student—the holder is enrolled in a full‑time course of study or training.
(3) A holder meets the requirements of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa—the holder is enrolled in a full‑time course of study or training.
The applicant arrived in Australia in November, 2013. He commenced studying the course that he notified in his visa application on 28 January, 2014.
The applicant ceased to be enrolled in that course, or indeed any registered course, on or about 28 May, 2014.
On 31 July, 2014 a notice of intention to consider cancellation was sent to the applicant by email. The applicant did not respond to that notice. The notice set out that it appeared to the first respondent’s Department that the applicant did not meet the requirements of condition 8202(2)(a) as he had not been enrolled in a registered course of study since 28 May, 2014.
On 12 August, 2014 the applicant was issued with a certificate of enrolment for a course leading to a Diploma of Information Technology. That course, the applicant suggests, was consistent with the applicant’s ultimate course goal – a Bachelor of Information Technology.
On 21 August, 2014 the first respondent’s delegate cancelled the applicant’s student visa.
On 27 August, 2014 the applicant sought to have the delegate’s decision reviewed by a migration review tribunal. Because the tribunal could not decide the application in favour of the applicant on the material then before it, it invited the applicant to appear before the tribunal to give evidence and present arguments. The initial hearing took place on 6 January, 2015. That hearing proceeded but was adjourned to 21 January, 2015. The applicant appeared before the tribunal on both 6 January and 21 January, 2015 to give evidence and present arguments.
On 21 January, 2015 the second respondent affirmed the delegate’s decision to cancel the applicant’s student visa.
In determining to affirm the delegate’s decision, the tribunal found that the applicant had not complied with condition 8202 specifically, the tribunal found:
13. Having regard to the information on PRISMS, as cited in the primary decision records, and in the absence of any evidence of the applicant’s enrolment between May and August 2014, the Tribunal finds that the applicant ceased to be enrolled in a registered course in May 2014. The Tribunal finds that he breached condition 8202 of his visa.
The applicant does not cavil with the tribunal’s finding about that matter. It was clearly correct.
The tribunal found that the applicant ceased to be enrolled in a registered course in May, 2014. It accepted, however, that the applicant had been issued with an offer letter in June, 2014 for another enrolment, however there was nothing to suggest that he had accepted it or commenced that course in June, 2014. As the tribunal recorded in its reasons (at [12]) the applicant’s own evidence to the tribunal was that he did not commence that course for which he had received an offer of enrolment.
In any event, once the tribunal found that the applicant ceased to be enrolled in a registered course, the tribunal was bound to conclude that the applicant had not met the requirements of condition of cl.8202(2). The discretion to cancel the applicant’s visa was thereby enlivened.
The tribunal concluded that the applicant was not fulfilling the purpose of his travel to and stay in Australia because he had done minimal study since entering Australia. The tribunal determined that the applicant’s breach was significant in those circumstances. Specifically the tribunal found:
16. The purpose of the student visa is to enable the visa holder to study. The applicant had not been enrolled since May 2014 and at least until August 2014. His evidence to the Tribunal is that he had not engaged in any study since May 2014. The applicant informed the Tribunal that since coming to Australia in November 2013 he completed one semester of an IT course. He had not completed any other study. The Tribunal finds that the applicant is not fulfilling the purpose of his travel to and stay in Australia because he has done minimal study since entering Australia. The Tribunal considers the breach to be significant, given the central importance of enrolment to a student visa.
The tribunal was not satisfied that there were good reasons for the applicant not to be enrolled for three months at least between May and August, 2014. The tribunal found that the breach did not occur in circumstances beyond the applicant’s control. The tribunal determined that there were no extenuating or compassionate circumstances in the applicant’s case such that the discretion to cancel the applicant’s visa should not be exercised in favour of cancellation. The tribunal accepted that hardship would be caused to the applicant by cancellation because he would not be able to pursue further study in Australia but nonetheless considering all of the applicant’s circumstances, the tribunal concluded that the applicant’s visa should be cancelled and the decision under review affirmed.
Grounds of Review
The applicant pursues three grounds of review. I will deal with each of them separately.
Ground 1(a)
Ground 1(a) of the application for review of the amended application for review is in the following terms:
a) The Tribunal erred in that it failed to properly consider, on balance, all relevant factors in assessing whether its powers to cancel the applicant’s visa should be exercised, in particular
(i) At the date of visa cancellation on 21 August 2014, the student had a valid Confirmation of Enrolment (COE) created on 12 August 2014 for course leading to Diploma of Information Technology with the start date being 25 August 2014.
(ii) The student had already studied for six months at Southbank Institute of Technology, and his next course at TAFE was due to start on 7th July 2014. The student therefore had one month gap being the holiday period.
(iii) This gap was consistent with the one month gap the student had after arriving from India and prior to commencing Certificate IV in Web-Based Technologies course at TAFE.
This ground cavils with the tribunal’s exercise of discretion to cancel the applicant’s visa. The applicant argues that the tribunal was wrong to conclude that the applicant’s contravention of condition 8202 was significant because the applicant had substantially complied with that condition. His enrolment had lapsed for only a six week period between approximately 28 May to 21 August, 2014, a period, at a maximum, of three months. In submissions before me, counsel emphasised that part of the period during which the applicant was not enrolled was a holiday period during which the applicant was informed that his enrolment could not proceed. Accordingly, on the applicant’s case he was not enrolled in a registered course or did not have a certificate of enrolment for such a course for a period of approximately four weeks (excluding the six week holiday period).
Counsel for the applicant submitted that non-enrolment for, at most, a period of 12 weeks was not a significant breach of condition 8202 and on that basis “not sufficient to satisfy a finding that the applicant had not substantially complied with condition 8202”.
However, I accept the first respondent’s submission that the applicant’s arguments amount to nothing more than an attempt to revisit the merits of the tribunal’s determination. The suggestion that the tribunal did not “properly consider, on balance, all relevant matters” makes it plain that this ground is about the merits of the tribunal’s decision rather than to establish jurisdictional error.
It is clear from the tribunal’s reasons for decision that the matters about which the applicant complains the tribunal took no account, were in fact considered by the tribunal in [18]-[21] of the tribunal’s reasons for decision. What the tribunal considered relevant and “significant” were matters entirely for the tribunal.
I accept the first respondent’s submissions that this ground reveals no jurisdictional error.
Ground 1(b)
This ground is in the following terms:
b) The Tribunal fell into jurisdictional effort in finding that the applicant had breached condition 8202 of his visa on the basis that he was not “enrolled in a registered course”.
The applicant argues that prior to his visa cancellation, he maintained a certificate of enrolment for a course commencing on 25 August, 2014. He argues that if he had not changed his course, he would have commenced his originally planned course (Diploma of Website Design) on 7 July, 2014. The applicant argues that the difference of five to six weeks (between 7 July, 2014 and 25 August, 2014) is “minor or technical only” and not sufficient to justify the tribunal’s finding that “the breach to be significant, given the central importance of enrolment to a student visa”. However, the tribunal’s determination that the applicant had not net the requirements of condition 8202(2) of the Regulations is unimpeachable.
The applicant’s argument, as developed, seemed to be directed to the tribunal’s use of that finding when exercising the discretion to cancel the applicant’s visa. I have set out the tribunal’s findings in paragraph 16 of its reasons above. It was open to the tribunal to determine that the applicant’s non-compliance with condition 8202 was significant. According to the tribunal’s reasoning, the applicant was not enrolled in a registered course between 28 May, 2014 and 21 August, 2014, a period much greater than five to six weeks. Whilst it may have been the case that the applicant would have enjoyed a break from study through the ordinary holiday period had he remained enrolled in his first course, the fact was that he did not remain enrolled in his first course, or any course, and he was without a certificate of enrolment at all until 21 August, 2014. The difference between the two positions, of course, is that in the former he maintains a certificate of enrolment. In the latter, the first certificate of enrolment lapses and the applicant does not obtain a second one until 21 August, 2014. In the first case there is no breach of visa condition 8202 and in the second there is.
It was a matter for the tribunal to assess the circumstances in which the non-compliance with condition 8202 occurred and to form a conclusion about the significance that should be attached to it.
In any event, to the extent that the applicant appears to suggest that the applicant had substantially complied with visa condition 8202(2) and therefore the tribunal was wrong to conclude that the applicant had not met the requirements of that condition, the proposition is wrong in law. The applicant appeared to submit that the applicant was only required to substantially comply with condition 8202. That is to say, notwithstanding that he may have not complied with condition 8202, provided the tribunal determined that he had substantially complied with condition 8202, grounds for cancellation did not arise or alternatively, the discretion to cancel ought to have been exercised against cancellation.
In support of that proposition I was taken to Lekala v Minister for Immigration and Border Protection [2015] FCA 71. That case concerned the refusal to grant a student (class TU)(subclass 572) visa. The decision the subject of the review in that case was a decision to refuse to grant to the applicant a student visa. It was not a decision to cancel the student visa for non-compliance with condition 8202.
At [37] of Lekala Barker J outlined the submissions made on behalf of the Minister in respect of the appellant’s grounds of review in that case. His Honour recorded that the Minister submitted that the appellant must have “complied substantially with each individual condition that applied to his last substantive visa”. The applicant had held a string of student visas prior to the most recent application the subject of the decision in that case. The question of whether the applicant in that case had complied substantially with condition 8202(2)(a) of his previous student visas arose in the context of cl.572.235 of sch 2 to the Regulations which required the Minister (and therefore the tribunal in that case) to consider whether the applicant had complied substantially with each individual condition. That is to say the requirement for substantial compliance with the relevant visa conditions was a matter raised expressly for consideration by the decision-maker by the Regulations. Lekala was not a case that dealt with cancellation of a visa for a failure to meet the requirements of cl.8202(2) of the Regulations. The authorities make it clear, however, that in circumstances such as the present, where the decision-maker is dealing with cancellation under s.116 of the Migration Act, substantial compliance with condition 8202 is not sufficient: Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 at [53] – [66].
This ground of review reveals no jurisdictional error. The tribunal’s determination that the applicant’s non-compliance with condition 8202 of his visa was “significant” was not illogical in the sense contended for by the applicant.
Ground 1(c)
This ground is in the following terms:
c) The Tribunal fell to jurisdictional error by acting unreasonably in finding that:
a. the breach, which is denied, did not occur in circumstances beyond the applicant’s control; and
b. the applicant did not take adequate steps to ensure he maintained enrolment.
By this ground the applicant contends that the tribunal acted unreasonably, or illogically, in finding that the breach did not occur in circumstances beyond the applicant’s control or that the applicant did not take adequate steps to ensure he maintained his enrolment. The arguments, however, advanced by the applicant in support of this ground demonstrate that he seeks to have this Court revisit the merits of the tribunal’s determination.
The findings made by the tribunal were open to it on the evidence. The conclusions it drew from the evidence and the findings that it made were open and, in any relevant sense, could not be said to be unreasonable. The tribunal did consider all of the applicant’s circumstances and concluded that the visa should be cancelled. That was a discretionary decision. Despite the applicant’s submissions, it cannot be said that no reasonable repository of the power exercised by the tribunal could have made the decision that the tribunal made. The tests for unreasonableness as elucidated by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [106] and [108] and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 651 at [130] are not satisfied in this case.
This ground of review reveals no jurisdictional error in the tribunal’s decision.
Conclusion
In the circumstances, the applicant does not establish that the tribunal’s decision was affected by jurisdictional error. The application must be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 15 December, 2016.
Date: 15 December, 2016
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