Dhungana v Minister for Immigration
[2017] FCCA 678
•25 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHUNGANA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 678 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of higher education sector visa – period of non-enrolment – whether the Tribunal exercised its power improperly or unreasonably, or whether the Tribunal’s process was unfair, or whether the Tribunal took into account irrelevant considerations or failed to take into account a relevant consideration – whether the education provider failed to perform its obligations so as to vitiate the visa cancellation considered – no jurisdictional error. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), s.19 Migration Act 1958 (Cth), ss.41, 116, 359A, 360 Migration Regulations 1994 (Cth) |
| Cases cited: Liu v Minister for Immigration [2003] FCA 1170 Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 |
| Applicant: | SARAYU DHUNGANA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1987 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 March 2017 |
| Date of Last Submission: | 26 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Nair of M S Nair & Co |
| Solicitors for the Respondents: | Mr T Galvin of Minter Ellison |
ORDERS
The application as amended on 2 December 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1987 of 2016
| SARAYU DHUNGANA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Ms Dhungana, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 June 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Ms Dhungana’s higher education sector visa. The following statement of background facts is derived from the submissions of the Minister filed on 21 March 2017.
Ms Dhungana was granted a student visa on 18 February 2013[1].
[1] Court Book (CB) 16
On 18 September 2015, the Minister's Department sent Ms Dhungana, by email, a Notice of Intention to Consider Cancellation (NOICC) in respect of her student visa on the basis that she appeared not to meet condition 8202(2)(a)[2]. That condition required the visa holder to be enrolled in a registered course. The NOICC stated that evidence obtained from the Provider Registration and International Student Management System (PRISMS) indicated that Ms Dhungana had not been enrolled in a registered course of study for the period of 19 August 2014 to 24 August 2015. The NOICC invited Ms Dhungana to provide a response within five days of being taken to have received the letter. That response time was subsequently extended to 14 October 2016[3].
[2] CB 13–20
[3] CB 26
Ms Dhungana’s agent responded to the NOICC in writing on 14 October 2015 by providing a written statement made by Ms Dhungana and a number of supporting documents[4]. In her statement, Ms Dhungana explained her study history, and stated that she was experiencing family issues and financial difficulties[5]. In particular, she stated that her father had been involved in an accident, that her grandmother was very sick, that she was suffering from depression as a result, and that her family had experienced hardship due to the Nepal earthquake. Ms Dhungana also stated that she was now enrolled in a bachelor's degree at the Holmes Institute.
[4] CB 28–39
[5] CB 35–38
On 15 October 2015, the delegate cancelled Ms Dhungana's student visa under s.116 of the Migration Act 1958 (Cth) (Migration Act) on the basis that she had not complied with condition 8202(2)(a)[6]. The delegate found that Ms Dhungana had not been enrolled in a registered course for the period 19 August 2014 to 24 August 2015 (based on the evidence obtained from PRISMS) and was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling.
[6] CB 55–60
Ms Dhungana subsequently applied to the Tribunal for review of the delegate's decision[7] and appeared before the Tribunal on 23 June 2016 to give evidence and present arguments[8].
[7] CB 61–71
[8] CB 123
Tribunal decision
On 30 June 2016, the Tribunal affirmed the decision under review[9].
[9] CB 130–136
The Tribunal found that, on the evidence before it (ie, the information from PRISMS referred to in the delegate's decision and Ms Dhungana’s agreement with that information), Ms Dhungana was not enrolled in a registered course of student and has not complied with condition 8202(2)[10].
[10] at [8]–[9]
It then turned to consider whether to exercise its discretion to cancel the visa[11]. It noted that neither the Migration Act nor the Migration Regulations 1994 (Cth) (Regulations) specified particular matters that needed to be considered, but instead referred to the guidance set out in the Minister's Department's Procedures Advice Manual (PAM3)[12]. In considering the factors set out in PAM3, the Tribunal concluded that the visa should be cancelled for the following reasons:
a)the purpose of Ms Dhungana's travel to and stay in Australia was to study in Australia, and her lack of enrolment (and non-compliance) for about a year was inconsistent with that purpose[13];
b)while the Tribunal accepted that there was an earthquake in Nepal in April 2015 which damaged the family home, the earthquake occurred towards the last few months of the period of non-enrolment and consequently the Tribunal was not satisfied that it had contributed to her inability to pay her tuition fees as claimed[14]. In making this finding, the Tribunal referred to the need for Ms Dhungana to have demonstrated, when she applied for the student visa, that she had access to sufficient funds for tuition fees, and living and other expenses. The Tribunal observed that Ms Dhungana's evidence on this matter at the hearing was confused and incoherent, and that she was unable to explain to the Tribunal what has happened to the claimed loan, which was the equivalent of $50,000[15];
c)in circumstances where she was not enrolled for a year, it was reasonable to expect that Ms Dhungana would have resolved the claimed financial issues to ensure compliance with the conditions of her visa[16];
d)the claim that she was depressed was unsupported by evidence and the Tribunal did not accept that claim[17];
e)Ms Dhungana's academic performance prior to the non-enrolment period was not satisfactory (on her own evidence), and it was difficult to accept that she did not take active steps to ensure that she would not breach her visa conditions for a year[18];
f)while it was plausible that Ms Dhungana's father had a motorcycle accident that led to his hospitalisation, that her grandmother had a long-term and ongoing mental health condition[19], and that her family difficulties may have played a part in the breach[20], on balance the Tribunal was not satisfied that those circumstances meant that the visa should not be cancelled, particularly given that the visa was granted in order for her to study in Australia[21];
g)while the cancellation of the visa may cause a degree of hardship because she will not be able to pursue further studies in Australia and cause concerns with her family and difficulties in her relationship with an Australian citizen, the Tribunal was not satisfied that those circumstances caused a degree of hardship that would outweigh the reasons for cancellation[22]; and
h)Ms Dhungana’s lack of enrolment for a lengthy period of time raised doubts about her capacity to pursue or complete any further studies in Australia[23]. The Tribunal considered Ms Dhungana’s lack of enrolment to be significant and to outweigh her own claimed personal circumstances[24].
[11] at [10]
[12] at [11]
[13] at [12]
[14] at [19]
[15] at [19]
[16] at [20]
[17] at [20]–[21]
[18] at [21]
[19] at [19]
[20] at [22]
[21] at [22]
[22] at [23]
[23] at [31]
[24] at [32]
After considering the evidence as a whole, the Tribunal was satisfied that there were no factors that should lead to the favourable exercise of the discretion in this matter[25] and concluded that the visa should be cancelled[26].
[25] at [33]
[26] at [34]
The present proceedings
These proceedings began with a show cause application filed on 26 July 2016. Ms Dhungana now relies upon an amended application filed on 2 December 2016. There are five grounds in the amended application:
Ground 1
The Tribunal committed jurisdictional error by improper exercise of discretion on the evidence before it.
Particulars
a. The Tribunal devoted more time on matters which were not relevant to the issue before the Tribunal and even if relevant, were only remotely so.
b. The approach by the Tribunal at a. above deprived the Tribunal or at least detracted the Tribunal from focusing on the three significant events which were before the Tribunal for the exercise of her discretion.
c. Had the Tribunal devoted more time on the [issues] refed to [at] b. above, the Tribunal would have had the opportunity to properly exercise its discretion and thereby found that the evidence before the Tribunal would have weighed in favour of the applicant.
Ground 2
The decision of the Tribunal was unreasonable considered as a whole on the evidence before the Tribunal.
Particulars:
a. The particulars for Ground 1 are repeated for Ground 2.
b. The conclusion reached by the Tribunal was therefore unreasonable.
Ground 3
The Tribunal committed jurisdictional error by denying the applicant procedural fairness in the conduct of the hearing.
Particulars
a. The particulars for Ground 1 are repeated for Ground 3.
b. The applicant was deprived of the opportunity to focus on the main matters in issue before the Tribunal and thereby was denied procedural fairness.
Ground 4
The Tribunal committed jurisdictional error by taking into account irrelevant considerations and failing to take into account relevant considerations in affirming the delegate's decision.
Particulars
a. The particulars for Ground 1 are repeated for Ground 4.
Ground 5
The Tribunal committed jurisdictional error by failing to consider that the education provider had failed to perform its functions as required by both the Education Services for Overseas Students Act 2000 (“the ESOS Act”) and the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Student 2007 (“the National Code”). This was the error which vitiated the delegate's decision and the decision of the Tribunal was therefore also affected by that error.
Particulars
a. Section 19 of ESOS reads as follows:
“EDUCATION SERVICES FOR OVERSEAS STUDENTS ACT 2000 – SECT 19
Giving information about accepted students
(1) A registered provider must give the following information within the applicable number of days after the event specified below occurs: (emphasis added):
(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student--the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of an accepted student's studies (whether as a result of action by the student or the provider or otherwise) before the student's course is completed; (emphasis added)
(e) any change in the identity or duration of an accepted student's course;
(f) any other prescribed matter relating to accepted students.
(1A) The applicable number of days is:
(a) if the accepted student is less than 18 years old and the information is of a kind referred to in paragraph (l)(c) or (d)--14 days; or
(b) otherwise--31 days.
b. Section 20 Sending students notice of visa breaches
(1) Subject to subsection (4A), a registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
Note 1: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
(1A) A registered provider must send a notice to a student under subsection (1) even if the student has ceased to be an accepted student of the provider.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.
(4A) A registered provider must not send a notice under subsection (1) on or after the day this subsection commences.
c. The national Code states its objectives as:
“3. Objectives
3.1. The objectives of the National Code are to:
a. support the ESOS framework, including supporting the effective administration of the framework by the Australian Government and state and territory governments
b. establish and safeguard Australia's international reputation as a provider of high quality education and training by:
i. ensuring that education and training for overseas students meets nationally consistent standards; and
ii. ensuring the integrity of registered providers
c. protect the interests of overseas students by:
i. ensuring that appropriate consumer protection mechanisms exist
ii.ensuring that student welfare and support services for overseas students meet nationally consistent standards; and
iii. providing nationally consistent standards for dealing with student complaints and appeals
d. `support registered providers in monitoring student compliance with student visa conditions and in reporting any student breaches to the Australian Government.”
d. The education provider's failure to perform its functions under both ESOS and the National Code deprived the applicant to pursue avenues open to her. The applicant was unable to do so because of the failure by the education provider to perform its obligations under the said provisions.
e. The decision therefore of both the delegate and the Tribunal was unable to expunge the error which affected the decisions of both the delegate and the Tribunal.
(errors in original)
In addition to the court book filed on 13 October 2016, I have before me as evidence Ms Dhungana’s affidavit made on 1 December 2016, to which is annexed a transcript of the Tribunal hearing conducted on 23 June 2016. Ms Dhungana and the Minister both filed pre-hearing submissions and made oral submissions at the trial of this matter on 28 March 2017. I gave the parties the opportunity to provide post-hearing submissions, and both the Minister and Ms Dhungana provided further submissions on 10 April 2017 and 26 April 2017 respectively.
Consideration
Ms Dhungana’s application reflects her disappointment that the several unfortunate circumstances, culminating in the catastrophic Nepal earthquake in April 2015, did not persuade the Tribunal that it should exercise its discretion in her favour. Unfortunately for her, however, the grounds of review advanced, while accepted by the Court as arguable, cannot be sustained.
Ms Dhungana’s amended application pleads five grounds:
a)Ground 1 contends that the Tribunal committed jurisdictional error by improperly exercising its discretion on the evidence before it, with the particulars asserting that the Tribunal devoted more time on matters that were not relevant (or if relevant, only remotely so), which prevented it from focusing, or detracted from its focus, on the three significant events which were before the Tribunal in the exercise of its discretion not to cancel the visa. The particulars further assert that, had the Tribunal devoted more time to the relevant issues, it would have properly exercised its discretion and thereby found that the evidence before the Tribunal weighed in favour of Ms Dhungana;
b)Grounds 2, 3 and 4 rely on the same particulars, and contend that for the same reasons the Tribunal’s decision was unreasonable, that it denied Ms Dhungana procedural fairness in the conduct of the hearing, and that it took into account irrelevant considerations and failed to take into account relevant considerations; and
c)Ground 5 contends that both the delegate’s and the Tribunal’s decisions were vitiated by error because of a failure to consider that the education provider had failed to perform its functions as required by the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) and the National Code of Practice for Registration Authorities and Providers of Education and Training for Overseas Students (National Code).
Grounds 1, 2, 3 and 4
The Minister submits that the particulars to Ground 1, and thereby Grounds 2, 3 and 4, simply express Ms Dhungana’s disagreement with the Tribunal's decision, and thereby seek to engage the Court in impermissible merits review. I agree. So much is evident from the assertion that the Tribunal would have exercised its discretion not to cancel Ms Dhungana’s student visa if it had properly considered the relevant issues. Accordingly, the Minister submits that each of these grounds is premised on a flawed legal basis, and should be dismissed in their current form. I have not adopted that submission.
Even when the flawed legal premise of these grounds is put to the side, however, the Minister submits and I accept that the assertions that the Tribunal committed jurisdictional error by improperly exercising its discretion on the evidence before it, that its decision was unreasonable, that it denied Ms Dhungana procedural fairness, or that it took into account irrelevant considerations or failed to take into account relevant considerations, are bare assertions of error that cannot succeed. In particular:
a)there is no evidence to suggest that Tribunal failed to consider or overlooked any claims made, or evidence given, by Ms Dhungana. In particular, the decision record demonstrates that the Tribunal considered Ms Dhungana's study history, and her claims that her father was involved in an accident, that her grandmother was sick, that she was suffering from depression and that her family had suffered hardship due to the Nepal earthquake[27];
b)the Tribunal's decision not to exercise the discretion favourably to Ms Dhungana did not lack an evident and intelligible justification[28]. The Tribunal clearly assessed each of Ms Dhungana’s claims[29] but ultimately was not satisfied that they were factors that should lead to the favourable exercise of the discretion in this matter[30];
c)there is no evidence to support a contention that the Tribunal did not comply with its statutory procedural fairness obligations, and in particular ss.359A and 360 of the Migration Act. In particular, the Tribunal correctly invited Ms Dhunghana to a hearing on 23 June 2016 in accordance with s.360 of the Migration Act, and Ms Dhunghana was on notice of the issues arising in relation to the decision under review, including Ms Dhunghana's lack of enrolment and the PRISMS record; and
d)the Tribunal did not fail to consider a mandatory consideration and did not consider a matter that it was prohibited from considering. In particular, the Tribunal had regard to the relevant parts of the Migration Act and the Regulations, as well as the Department's PAM3[31].
[27] at [12]–[33]
[28] Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) per Hayne, Kiefel and Bell JJ at [76]
[29] at [12]–[33]
[30] at [33]
[31] at [11]
Ultimately, the Tribunal's decision to affirm the decision to cancel Ms Dhunghana's student visa was open to in on the material before it and for the reasons it gave, and it fell within the range of possible, acceptable outcomes which are defensible in respect of the facts and law[32].
[32] Li per Gageler J at [105]
For completeness, to the extent that Ms Dhunghana’s written submissions contend that the transcript illustrates, from a factual perspective, that the questions asked by the Tribunal were dominated by factors that were only remotely relevant to the real facts that prevented Ms Dhunghana from enrolling during the relevant period, that contention is not demonstrated by the transcript. The transcript demonstrates that the Tribunal discussed Ms Dhunghana’s claimed reasons that gave rise to the breach of a visa condition at length[33], before discussing her employment, personal relationship and her parents’ financial position[34]. Part of that discussion involved the capacity to pay tuition costs at the time Ms Dhunghana applied for the student visa, with that aspect of the discussion taking a number of pages due to considerable confusion as to her oral evidence. Given that Ms Dhunghana claimed that part of the reason for the breach of her visa condition was that she was unable to afford to pay tuition costs during the period of not being enrolled in a registered course, plainly her and her family’s financial circumstances were relevant to the Tribunal’s review. I accept that the transcript does not support Ms Dhunghana's written submissions nor the factual contentions made in Grounds 1, 2, 3 and 4.
[33] page 16 to page 29
[34] page 30 to page 54
Ground 5
This ground is premised on Ms Dhunghana's assertion that “the education provider” failed to perform its statutory functions under the ESOS Act and the National Code.
However, Ms Dhunghana did not particularise, in the amended application or in the pre-trial written submissions, how “the education provider” failed to perform its functions under the ESOS Act and the National Code, or indeed which education provider is alleged to have failed to perform those functions. This was clarified in Ms Dhungana’s post hearing submissions, in which it is asserted that Macquarie University breached it duty to record Ms Dhungana’s enrolment into PRISMS leading to the delegate making a false factual finding that Ms Dhungana was not enrolled in a registered course. I do not understand that contention. Both the delegate and the Tribunal found as a fact that Ms Dhungana was not enrolled in a registered course for the period 19 August 2015 to 24 August 2015. The Tribunal noted at [8][35] that Ms Dhungana agreed that she was not enrolled in a registered course of study for that period. It is not now open to her to suggest otherwise.
[35] CB 131
Finally, I noted at the trial that Ms Dhungana was enrolled in a course of study at the time the NOICC was issued to her. I sought confirmation from the solicitor from the Minister that there was authority for the proposition that the Minister’s cancellation power under s.116(1)(b) of the Migration Act was enlivened notwithstanding that enrolment, on the basis of the lengthy period of non enrolment which had preceded that enrolment. The Minister responded in the following terms:
Subsection 41(1) of the Act states that the Migration Regulations 1994 (Cth) (the Regulations) may provide that visas, or visas of a specified class, are subject to specified conditions.
Subregulation 2.05(1) of the Regulations provides that, for the purposes of subsection 41(1), a visa is subject to any conditions specified for that Subclass of visa in Schedule 2 (subject to subregulation 2.05(2) which is not relevant here). Clause 1222 of Schedule 2 to the Regulations provides that one of the subclasses of Student (Temporary) (Class TU) visas is Subclass 573. Subclause 573.611 of Schedule 2 to the Regulations provides that one of the conditions for a Subclass 573 visa is condition 8202.
As at the date the NOICC was issued, condition 8202 was in the following terms:
(1) The holder (other than the holder of a Subclass 560 (Student) visa who is a Foreign Affairs student or the holder of a Subclass 576 (Foreign Affairs 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 a Foreign Affairs student or the holder of a Subclass 576 (Foreign Affairs or Defence Sector) visa—the holder is enrolled in a full‑time course of study or training.
Pursuant to paragraph 116(1)(b) of the Act, the Minister may cancel a visa if satisfied that the holder has not complied with a condition of the visa.
The consequence of these legislative provisions is that the Minister's (and the Tribunal's) power to cancel a Subclass 573 visa under paragraph 116(1)(b) of the Act is enlivened when a holder of such a visa is not enrolled in a registered course as required by condition 8202(2)(a).
RELEVANT AUTHORITIES
The Minister's power to cancel a visa under paragraph 116(1)(b) of the Act was summarised by Cooper J in Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170 (Liu) at [13]:
The power to cancel a visa requires satisfaction of the applicable provisions of s 116 of the Act. That requires that the Minister (or his or her delegate) be satisfied of one of the circumstances specified in s 116(1). For present purposes that involves satisfaction that the ‘holder has not complied with a condition of a visa’. The ordinary meaning of the words in the context does not mean that the Minister be satisfied that there be substantial non-compliance. It requires simply that the requirements of the condition of the visa be ascertained as a matter of the proper construction of the visa condition and, that having been done, it be determined whether the factual circumstances as found by the Minister satisfy him or her that the holder of the visa has not complied with the condition. If the Minister is so satisfied, he or she has a discretionary power to cancel the visa. The discretionary power in s 116(1) to cancel a visa is subject to the provisions in s 116(2) and s 116(3). Section (3) requires that if the Minister has discretionary grounds under s 116(1) to cancel a visa, the Minister must do so if prescribed circumstances exist. The scheme of s 116 therefore is to provide for both discretionary and mandatory powers to cancel a visa. The section provides that the circumstances which will lead to mandatory cancellation will be provided for by the Regulations.
Liu concerned a breach of condition 8202 and the cancellation of a Student (Temporary) (Class TU) visa. Subsequent to the above summary, Cooper J provided the following further explanation of the Minister's power to cancel a Student (Temporary) (Class TU) visa in the context of condition 8202 at [19]-[20]:
Each of the requirements of condition 8202 relates to a continuing state of affairs, which are directly referrable to the purpose for which the visa was granted, namely, satisfactory progress to and towards completion of a full time course of study or a registered course. Failure to satisfactorily pursue such a course by reference to the criteria contained in condition 8202 is a failure to comply with the condition. In the context of condition 8202, enrolment in a course is a continuing requirement. It is a precondition to the later requirements of satisfactory attendance and academic achievement. Whether or not the holder of a student visa is enrolled in a full time course of study or is enrolled in a registered course, is a question of fact in each case.
Such a construction renders no hardship on a student visa holder who wishes to discontinue a course or enrol in another registered course different from that in which the holder was enrolled at the time of the grant of the visa. It requires simply that the visa holder take such steps as are necessary under the Act to ensure that he or she has or obtains an appropriate visa to enable the holder to discontinue a course or enrol in another registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course. Nor is such a construction inconsistent with the statutory purpose of the grant of student visas; nor inconsistent with the terms of s 116(1) and s 116(3) of the Act.
Accordingly, the holder of a Subclass 573 visa is not permitted to cease to be enrolled in a registered course at any time (Liu; see also Wang v Minister for Immigration and Citizenship [2007] FCA 1188 at [20], Feng v Minister for Immigration and Citizenship [2011] FMCA 576, and Liew v Minister for Immigration and Border Protection [2016] FCA 172 at [40]). That applies to the applicant in this proceeding, as she held a Subclass 573 visa. By failing to be enrolled in a registered course between the period of 19 August 2014 to 24 August 2015, she was correctly found to have breached condition 8202(2)(a) which applied to her visa. Her breach of that condition therefore enlivened the Minister (and the Tribunal's) power to cancel her Subclass 573 visa.
This reasoning was applied in the specific circumstances now before this Court in Ekanayake v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 678 (see also Ekanayake v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 768). In that case, the applicant held a Subclass 573 visa that was subject to condition 8202. His enrolment in his course of study was cancelled because of unpaid fees on 29 April 2002 (his Subclass 573 visa was due to expire on 20 September 2004). On 4 June 2003 the applicant re-enrolled in the same course at the same education provider with a revised completion date. On 2 July 2003 the Minister's department wrote to the applicant stating that there may be grounds to cancel his visa due to non-compliance with condition 8202. A delegate of the Minister subsequently cancelled the applicant's Subclass 573 visa due to non‑compliance with condition 8202 and that decision was subsequently affirmed by the Migration Review Tribunal. In dismissing the applicant's judicial review application, [McInnis] FM held that the Migration Review Tribunal correctly applied the law in making the factual finding that a breach of condition 8202 existed at the time the visa was cancelled.
On the basis of the above relevant legislative provisions, and relevant authorities, the Minister submits that it was open to the Minister's department to issue the NOICC after the applicant had re-enrolled in a course of study, following a period of not being enrolled, and, more importantly, the Minister (and the Tribunal) were empowered under paragraph 116(1)(b) of the Act to cancel the applicant's Subclass 573 visa in this case.
In her post-hearing submissions, Ms Dhungana asserted that, not only was the power to cancel the visa not enlivened, but also that the Tribunal erred by not taking account of the fact that she was enrolled in a course of study at the time of the issue of the NOICC. On the first point, I accept from the authorities referred to by the Minister that the power to issue the NOICC, and the power to cancel the visa, were enlivened notwithstanding Ms Dhungana’s enrolment at Holmes Institute. Secondly, it is plain from the reasons of both the delegate and the Tribunal that they were aware of that enrolment and considered it, as the end point of the period of non enrolment.
Conclusion
Ms Dhungana has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 25 May 2017
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