GHIMIRE v Minister for Immigration
[2016] FCCA 1440
•17 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GHIMIRE v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1440 |
| Catchwords: MIGRATION – Review of decision of the former Migration Review Tribunal – cancellation of a higher education sector visa – visa holder ceasing to be an eligible higher degree student – no discretionary factors weighing against cancellation – whether the Tribunal erred by failing to consider the facts and circumstances upon which the visa was granted considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Immigration and Multicultural Affairs v Zhang [1999] FCA 84 |
| Applicant: | BISHAL GHIMIRE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 634 of 2015 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 23 March 2016 |
| Date of Last Submission: | 13 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Da Gama Pereira & Associates |
| Counsel for the Respondents: | Mr Aleksov |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed 30 March 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 634 of 2015
| BISHAL GHIMIRE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter came to Australia from Nepal in early 2014 on a student visa in order to study a degree at Deakin University. He was enrolled in a Bachelor of Commerce degree at Deakin University, but was not due to commence studying at Deakin University until 23 February 2015, yet expected to finish on 30 November 2016. It appears that the 2 years of study at Deakin (for what is a 3 year degree) was to follow a Diploma of Commerce in which he was enrolled at MIBT, commencing on 25 February 2014 and ceasing on 6 February 2015. The Diploma of Commerce was being delivered by a business partner of Deakin University as a prerequisite for the degree course that he wished to undertake, and provided the necessary credit to reduce the 3 year Bachelor of Commerce degree to 2 years.
In September 2014, the applicant was sent a notice of intention to consider cancellation of his visa on the basis that he was no longer enrolled at MIBT as he has not been able to pass the course. Following that notice, the applicant then enrolled in two courses in October 2014. Those courses were with an organisation called Technical Education Australia (“TEA”) and Holmes Institute. At TEA, he was hoping to do a Diploma and then Advanced Diploma of Business, followed by a Bachelor of Business at the Holmes Institute.
The Tribunal notes that neither TEA nor the Holmes Institute are ‘eligible education providers’ and that TEA is not an education business partner of Holmes Institute. As a result, these enrolments did not satisfy the definition of an “eligible higher degree” for the purpose of the relevant regulations.
The applicant outlined to the tribunal that he found it extremely difficult to understand lectures when he was enrolled at MIBT. He had an IELTS (English language test) score of 5.5, whereas to enrol directly into a university degree he required an IELTS score of 6 or more. The Holmes Institute also required an IELTS score of 6 for admission (see paragraph [10] of the tribunal decision). He also gave evidence to the tribunal that he found the courses hard because of his low level of English and that he did not get a chance to do an English course first (see paragraph [12(o)] of the tribunal decision). He said that he failed the first three units of his Diploma of Commerce at MIBT and that he thought about doing an English course but said that his migration agent told him he should do a cookery course and that he took his agent’s advice (see paragraph [13] of the decision).
The courses that the applicant enrolled in at TEA, whilst having the title of ‘business’ appear from the tribunal decision to effectively have been cookery courses (see paragraph [13] of the decision).
The Minister relied upon s.116(1)(a) which provided that:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)any circumstance which permitted the grant of the visa no longer exists
Clause 573.223 of the Migration Regulations Act 1994 contains the relevant part of the visa criteria for the category of student visa that the applicant held. There are a number of matters about which the applicant needed to satisfy the Minister. Relevant to enrolment are the matters set out in clause 573.223(1A) or (2) which provide:
(1A) If the applicant is 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)level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii)Educational qualifications required by the eligible education providers; 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.
(2)If the 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:
(d)The applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(e)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regards 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
(f)The Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
There are two pathways by which enrolments lead to the satisfaction of these visa criteria referred to as the ‘SVP Stream’. The first pathway, which the applicant took, requires the applicant to be 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’.
The definition of ‘eligible higher degree student’ is set out in clause 573.111 and relevantly provides:
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.
The applicant must be enrolled in a principal course of study for the award of a bachelor’s degree or master’s degree by coursework (which appears to have been satisfied by his enrolment in the bachelor’s degree course at Deakin University).
The provision also provides, in subparagraph (c), that if the applicant ‘proposes to undertake another course of study before, and for the purposes of the principal course of study’, the applicant must also be ‘enrolled in that course’ and, that course must be ‘provided by a business partner’ of the University.
Thus, in the applicant’s case, the applicant was an ‘eligible higher degree student’ on the basis that he was enrolled in a bachelor’s degree at Deakin University, and enrolled in the MIBT course ‘for the purposes of his principal course of study,’ given that MIBT was ‘a business partner’ of Deakin University. Once the applicant’s enrolment at MIBT ceased, he appears prima facie to no longer be eligible under criteria 573.223(1A).
The second pathway through which the applicant may have obtained this visa is under clause 573.223(2) on the basis that although he was not an ‘eligible higher degree student’, but that he satisfied each of the criteria set out within that clause. Importantly, criteria 573.224(2)(a) requires that the criteria mentioned in Schedule 5A must have been satisfied. Because the applicant had applied in his visa application to undertake the bachelor’s course at Deakin University, the form that he completed did not require him to provide the information that would ordinarily be considered in determining whether or not he satisfied clause 573.224(2) but only requested that he provide the information relevant to 573.223(1A). The form was no doubt designed to recognise the regulatory pathway relevant to a person applying to undertake an ‘eligible higher degree’.
The applicant complains that firstly the changes in his circumstances were not sufficient to enliven the discretion to cancel the visa under section 116 of the Migration Act 1958 (as it was at the relevant time) and that, secondly, even if the change in his circumstances was sufficient to amount to a ground for cancellation under section 116(1)(a), that the discretion not to cancel ought to have been exercised, and the failure to so exercise the discretion was caused by a failure of the tribunal member to take relevant considerations into account.
The Tribunal found:
19. The applicant’s Subclass 573 visa was granted on the basis of his enrolment in a Bachelor of Commerce with an eligible education provider and a Diploma of Commerce with an educational business partner of that provider. With these enrolments, he satisfied the definition of an “eligible higher degree student” in cl.573.111 of the Regulations.
20. After failing three out of three units attempted in the Diploma of Commerce, he consulted an agent who suggested that he enrol in cookery courses and apply for a Subclass 572 visa. The agent suggested that he could later obtain enrolment in a commerce degree and apply for a Subclass 573 visa. The applicant enrolled in the VET cookery courses and applied for a Subclass 572 visa.
…
24. The primary decision states that, after the NOICC was issued, the applicant enrolled in a Diploma of Business and an Advanced Diploma of Business with TEA and a Bachelor of Business at Holmes Institute. The agent states that Holmes Institute is an eligible education provider, however, the primary decision correctly states that Holmes is not an eligible education provider and TEA is not an education business partner. Those enrolments therefore did not enable the applicant to satisfy the definition of an eligible higher degree student.
…
26. Accordingly, the Tribunal finds that the applicant is not an eligible higher degree student. He therefore does not satisfy the requirements of cl.573.223(1A) and a circumstance which permitted the grant of the visa no longer exists.
27. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
…
31. The applicant said he wants to undertake his studies in commerce and that was always his goal. He said he was misguided by friends and by advice from his agent. He said he did not know that changing courses as he did could lead to cancellation of his visa. The Tribunal is of the view that the onus is on an applicant to understand his responsibilities while holding a visa to enter and remain in Australia. If he was not aware of those responsibilities, he could have informed himself by asking questions of his agent or the Department prior to coming to Australia or after his arrival. He said he did not ask his agent in Nepal about the requirements of his Subclass 573 visa, did not ask the Department and did not check VEVO.
32. The applicant said if he does not complete his study in Australia, his family will be disappointed and his future will be spoiled. He also told the Tribunal that his parents are not aware that his student visa has been cancelled.
33. The Tribunal accepts that the applicant may suffer some hardship if the visa remains cancelled, due to having to tell his family that his visa was cancelled as well as because he has not completed studies as intended. The Tribunal also accepts that the applicant’s family has invested in the applicant’s study in Australia. The Tribunal is of the view that these matters do not outweigh the reasons to cancel the visa.
34. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
The applicant set out four grounds in his application for judicial review of the decision of the tribunal. At the hearing, the applicant’s counsel addressed grounds 1 and 4 of those four grounds.
Ground 1
The first ground of the application is that:
The tribunal erred by reasoning that because the applicant no longer satisfied clause 573.111 of the Migration Regulations 1994, a particular fact or circumstance was no longer the case or no longer existed.
The applicant argues that the tribunal failed to consider whether or not the applicant satisfied the requirements of the alternative pathway to this visa provided for in clause 573.223(2).
It was accepted on the hearing of the application that there was no evidence before the tribunal or the court upon which a finding could have been made as to the applicant’s eligibility under clause 573.223(2), at least with respect to the requirements set out in Schedule 5A. In the absence of evidence from which one could conclude that the applicant could have been eligible for the visa under clause 573.223(2), the tribunal could not be said to have fallen into error in not considering whether or not the applicant was within the terms of that subclause. I therefore find that the applicant cannot succeed on this argument.
The applicant’s argument in this respect could only succeed on the basis that the applicant’s circumstances admitted of the possibility of eligibility for that visa, effectively placing an onus upon the Minister to make findings of facts and circumstances to show ineligibility on any basis for the particular visa category. I reject this submission. The obligation is upon the applicant to point to evidence of their eligibility for a visa, and in circumstances such as this (where the applicant appears ineligible) the obligation (at least with respect to the evidentiary onus) remains on the applicant to show that the applicant remains eligible for a visa.
At the hearing the applicant’s counsel articulated a further argument on the basis that because the applicant’s enrolment with Deacon University had not been cancelled he remained enrolled in a principal course of study for the award of a bachelor’s degree (thereby satisfying subparagraph (a) of the definition of eligible higher degree student in 573.111) and that he had simply ceased the other course of study referred to in subparagraph (c) of the definition. As a result it was argued that he had not ceased to be enrolled in the bachelor’s degree, and therefore the circumstances upon which he obtained the visa had not changed in a relevant particular within the meaning of section 116 of the Act.
The definition of the word ‘circumstances’ as used in that provision is central to this argument. The Minister for Immigration and Multicultural Affairs v Zhang [1999] FCA 84 Justice French (as he then was) and North J discussed the provision at some length: see paragraphs [48] to [56]. On the facts of that case, the discovery by the Minister that an applicant had made a false statement at the time of obtaining a visa was not considered to be a change in the circumstances on which the visa was granted such that the circumstances no longer existed. This was the logical conclusion from the proposition that the circumstance never existed and therefore it could not be said that it no longer existed.
In the same decision Merkel J said,
[74] In my view the sub-section is concerned with a material change in the circumstances, other than the Minister's satisfaction, which led the Minister to be satisfied that the criteria necessary for the grant of the relevant visa were met. Without endeavouring to be exhaustive of those circumstances they will include any matter, other than the ministerial satisfaction, in respect of which the Minister is required to be satisfied under either the Act or the Regulations prior to granting a visa.
What then is a material change in circumstances that enlivens the operation of section 116? It is clear from the Minister for Immigration v Zhang that a change in the state of the Minister’s subjective satisfaction is not a circumstance covered by the use of the term in section 116.
In this case one could characterise the breadth of the circumstances covered by section 116 in a number of different ways. It could be said that the facts as set out in the visa application, upon which the Minister or their delegate relied in issuing the visa (rather like the facts and particulars pleaded in a court pleading) are the relevant circumstances and any change therein would enliven the discretion in section 116. There may be some inconvenience in such an approach, for example where a student changes degree courses at the same university, or if a university ceases to exist and the students are transferred to the equivalent degree course at an alternative university. However this reading appears to fit with the purpose of s. 116.
A slightly narrower interpretation would be considering the circumstances of the student and determining whether they were still such as to being a student within the particular provisions upon which the student obtained the visa concerned, in this case criteria 573.223 (1A). This would narrow the circumstances that engage s.116 such that if a student changed the degree course within the one university or was enrolled in another degree course at an alternative university that met all of the criteria then they would still be in circumstances that brought them within the particular statutory criteria and therefore the change in circumstances requirement of s.116 would not be satisfied.
A further narrowing of circumstances that would engage s.116 would be to consider whether the student’s circumstances took them outside of any of the possible criteria pathways for the particular visa that they held, which in this case would be a question of whether or not the applicant was eligible for the applicant’s current visa based upon any of the criteria for the grant of the visa, including regulation of 573.223(2).
If an applicant is undertaking another course of study for the purposes of the principal course of study and ceases (without completion) they no longer appear to be an eligible higher degree student within the meaning of regulation 573.111. In this case, because the applicant ceased to be enrolled in the ‘other course’, which was required in regulation 573.223(1A), which refers to a ‘confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student’ he no longer met this criteria.
In this case however, as counsel for the Minister pointed out, it is not necessary for me to determine how narrow the definition of circumstances is in its operation. The applicant, on the material placed before the delegate and tribunal, did not have evidence that would satisfy any of the pathways for a grant of the particular category of visa. In these circumstances it’s not appropriate to theorise as to the breadth of the term ‘circumstances’, given that the applicant’s circumstances had changed such that the applicant did not show that he was eligible for this category of visa on any basis.
The final matter is whether or not it could be said that the applicant’s circumstances had changed when he remained formally enrolled at Deacon University. It is argued that the applicant simply no longer proposed to undertake another course of study for the purposes of the principal course of study. Had it been that the applicant had ceased his MIBT course and proceeded directly to his bachelor’s course, or perhaps even undertaken an alternative to the MIBT course with the intention of returning to his bachelor’s course his case may have been easier to argue. However, on his case the courses he had enrolled in were not for the purposes of the principal course of study nor does there appear to have been any intention to return to the bachelor’s course at Deacon University nor is there evidence that he could sustain his enrolment at Deakin University without completing the MIBT course.
I therefore find that this argument cannot succeed.
Ground 2
Whilst not addressed in the written submissions, the second ground of review is as follows:
The tribunal erred by finding that the applicant was no longer an eligible higher degree student when in fact at the date of cancellation (22 October 2014) the applicant was an eligible higher degree student because he was enrolled in a diploma for the purpose of the principal course of study or a principal course of study.
On the evidence before the tribunal, the enrolments that the applicant held at the date the tribunal considered the matter did not lead to nor were they for the purpose of the principal course of study, being the bachelor’s degree at Deakin University. The tribunal specifically found that the institutions at which the applicant was actively enrolled were not eligible education providers, nor education business partners in the sense required to satisfy the definition of “eligible higher degree student” (see paragraph 24 of the decision). In these circumstances, this ground must be dismissed.
Ground 3
The third ground that the applicant set out in his application was:
The tribunal erred in exercising its discretion to cancel under section 116 of the Migration Act 1958 by failing to consider that at the time of cancellation the applicant was enrolled in a diploma, leading to a principal course of study.
This ground appears to fail for the same reason as the previous ground.
Ground 4
The fourth ground that the applicant relied upon was that:
The tribunal erred in exercising its discretion to cancel under section 116 of the Migration Act 1958 by finding that it was not plausible that an applicant could apply for a visa and expect that visa to continue if any circumstances permitting the grant of the reason no longer existed, whilst not taking into account that the visa conditions were not set out in the visa granted to the applicant.
The applicant refers to paragraphs [28] to [34] of the decision of the tribunal where the decision considers exercising the discretion under section 116 not to cancel the visa. The applicant placed great weight on the administrative names given to the two pathways provided for under section 573.223(1A) and (2), referring to the first as ‘the SVP stream’ and the second as the ‘standard stream’.
The applicant notes that the evidentiary requirements for the SVP stream were less stringent than would otherwise be the case. In fact, the streams have different criteria. There are additional criteria, in particular those set out in schedule 5A, that are applicable for the second stream, which are not requirements for the first stream. The applicant argues that the first stream is a “fast track” and that the second stream is not and that therefore the inference should be drawn that, because the criteria for the second stream were not considered by the tribunal member, the effect of this was that the tribunal member was imposing a punitive outcome on the applicant. This appears to be no more than supposition borne of an emotive desire to justify the outcome the applicant seeks.
The tribunal member noted that the particular provisions the applicant obtained his visa under had streamlined visa processing providers and that the evidentiary requirements were less stringent than would otherwise be the case, but in no sense sets out anything to indicate that the tribunal member was intending to take a punitive stance. The relevant passage highlights that the tribunal member was aware of the additional matters that would need to be established under the alternative subsection. The tribunal member would no doubt have gone on to consider whether those matters were satisfied had the applicant placed evidence and submissions before the tribunal member to demonstrate satisfaction of those alternative criteria, but the applicant did not provide that evidence.
In the circumstances, where evidence and submissions were not put before the tribunal as to these matters, the tribunal cannot be criticised for failing to consider them. Nor was it open to the tribunal to conclude that the applicant would nonetheless have satisfied subsection (2) of clause 573.223 of the visa criteria.
The applicant also complains that the tribunal ought to have considered his circumstances, however it appears that the tribunal did so, recounting how it was that he came to be enrolled in the course that he did and his family circumstances in his home country.
The applicant also complains that the tribunal said that:
The tribunal is of the view that the onus is on an applicant to understand his responsibilities while holding a visa to enter and remain in Australia.
The tribunal goes on to say that if an applicant is not aware of those responsibilities, the applicant could have informed himself through this agent or the department. The simple answer to these complaints is that it was the applicant’s responsibility to ensure that he came to Australia on the correct visa for his purposes and, should his circumstances change, to obtain an appropriate visa for his changed circumstances. If he was negligently advised by a migration agent he can sue his agent, who carries compulsory insurance under the relevant regulatory scheme.
There may be cases where the course of events indicates that an applicant’s visa should not be cancelled. The types of circumstances relevant in this case were clearly identified by the tribunal member in their decision. It does not appear that it is a fair reading of the decision to impute to the tribunal member some preconception as to the breadth of the discretion rather than simply noting that the tribunal member has had regard to what appeared to be the matters relevant to the exercise of the discretion in this particular case. In these circumstances, I am not persuaded that the tribunal member erred in the exercise of their discretion.
I therefore dismiss the application.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 17 June 2016
3