Haridass v Minister for Immigration

[2018] FCCA 2593

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARIDASS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2593

Catchwords:
MIGRATION – Application for judicial review – higher education visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116(1)(b)

Applicant: HARIDASS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1005 of 2017

Judgment of: Judge Riethmuller

Hearing date: 23 August 2018

Date of Last Submission: 23 August 2018

Delivered at: Melbourne

Delivered on: 23 August 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed 16 May 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1005 of 2017

HARIDASS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The decision of the Tribunal was made on 4 April 2017.  The application was not made to this Court until 16 May 2017.  The Tribunal had affirmed a decision of the delegate to cancel the applicant’s subclass 573 Higher Education Section visa. 

2. The material does not articulate any significant reason for the delay in applying to the court; however, in visa cases, the more significant question is whether or not there are arguable grounds for judicial review.

3. The applicant was granted a student visa in February 2014.  At the time, he was enrolled in an English language course, a Diploma of Information Technology and a Bachelor of Information Technology degree at Griffith University. 

4. On 5 August 2014, some six months later, the applicant cancelled his enrolment at Griffith University. 

5. In November 2014, the department issued a Notice of intention to cancel his visa on the basis of his cancellation of enrolment.  The applicant then obtained an enrolment in a Bachelor of Business course at the Holmes Institute in December of that year.

6. In January of 2015, a delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 on the basis that he did not comply with the conditions of the visa (condition 8516 which required him to continue to satisfy the enrolment criteria).  The Tribunal’s decision noted the requirements of the visa at [8] saying:

   These clauses require the applicant to be enrolled in a bachelor or master degree course, or enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A.

7. During the course of the hearing before me, the applicant said that he did not believe that the Tribunal’s decision was made in error however, I should still consider the claims that he set out in his application.

8. The judicial review application sets out the grounds as follows:

   Member made an error in establishing that there was a ground for cancellation. There was not as I held the Bachelor of Business COE. In any case, the mere [ineligible] of my Bachelor of Business would have been ok to satisfy condition 8516.

   Even though the was a ground of cancellation, the member did not property look at the relevant facts. There are many examples but few are as follows: the fact that I had the requirements to meet the higher requirements which is contrary to what it was suggested in para 15. The rational for switching courses, the cultural difference of India and Australia that had affected his action in Australia that was crucial in the decision making.

9. Before the Tribunal, the applicant conceded he was not eligible for the visa during the specified period: see [10] of the decision.  The Tribunal identified his explanation for his study difficulties in his course of study at [16] and [21] of the decision (see below).

10. The Tribunal was satisfied that a ground for cancellation existed as the applicant had breached condition 8516. The Tribunal then needed to consider whether the power to cancel the visa should be exercised: see [12].

11. The Tribunal identified there were no mandatory considerations in respect of the exercise of the discretion to cancel, but instead had regard to all of the circumstances that appeared relevant including, but not limited to, the matters identified in the Procedures Advice Manual relating to general visa cancellation powers. 

12. The Tribunal had regard to the applicant’s claims and evidence as set out in summary form at [15] to [21] of the decision.  The Tribunal concluded that the applicant did not appear to have a compelling need to remain in Australia and had some concerns about the truth of the applicant’s evidence which led the Tribunal to give it limited weight.

13. The Tribunal had regard to the applicant’s personal circumstances where he had given evidence that he was depressed and lonely when he realised that his friends from his English course were going on to study a diploma and that he lived some distance from the campus.  The Tribunal also had regard to the applicant’s post-hearing submissions that he had formed the view that he was not that interested in information technology and then submissions about his life circumstances.

14. At [26] the Tribunal concluded:

    The tribunal does not accept that the cancellation of the applicant’s bachelor of IT enrolment on 5 August 2014 was due to factors beyond his control. Despite claiming in his written NOICC response that he did not ‘perform well’ due to illness, loneliness and stress, the applicant’s oral evidence at hearing does not indicate that the applicant actually attempted to undertake his diploma in IT studies before making the decision to leave his course provider. There is no medical evidence before the tribunal regarding any illness suffered by the applicant at the time he left his IT studies.

15. The Tribunal did not accept his evidence that he was unaware of the requirements under the SVP criteria, saying at [30]:

    30.…it is ultimately the applicant’s responsibility to be aware of the conditions and requirements of his visa and to abide by them. The tribunal does not consider the applicant’s lack of awareness of the SVP criteria to be circumstances beyond his control and gives this factor limited weight.

16. The Tribunal had regard to the extent to which the applicant had complied with the visa and that the specific period of non-compliance was only several months, saying that they gave some weight in favour of the applicant because of that, when considering when whether or not to cancel his visa: see [32].

17. The Tribunal considered what hardship might be caused to the applicant by the cancellation of his visa.  The Tribunal did not accept the applicant’s claim that he would be unable to get a job if he did not have Australian qualifications.  The Tribunal concluded:

    35. There is no specific evidence regarding any significant hardship that the applicant or his family would suffer as a result of his visa cancellation. However, the tribunal accepts that the applicant and his family would suffer a degree of hardship if his visa were to be cancelled in terms of disappointment, money and time already spent on the applicant’s studies and gives this some weight. Written statements from the applicant’s friends indicate that they have assisted the applicant financially since his visa cancellation and reiterate his evidence that he has been ‘wasting his time’ since his visa was cancelled.

18. The Tribunal gave some weight to the interactions of the applicant with the department, noting that he had been cooperative, truthful and compliant in his communications: see [37].

19. The Tribunal noted that cancellation of the applicant’s visa would result in him not being able to obtain a range of temporary visas and that he would not be able to apply onshore except for a limited range of visas: see [40]. The Tribunal even gave some limited weight to the possibility the applicant may overstay his bridging visa and could possibly be the subject of detention if that occurred. The Tribunal went on to consider other matters such as the applicant’s genuineness as a student: see [44] to [45]. Ultimately, the Tribunal concluded that the applicant’s visa should be cancelled.

20. After making application to this Court, a registrar of the Court made orders in December 2017 for the applicant to file submissions and any other material.  The applicant has filed nothing since that date. 

21. Turning then to the grounds of the application: the applicant, when pressed, said that the member had made an error in finding that there was a ground for cancellation.  The material does not indicate that the member was in error in concluding that there was a ground for cancelling his visa as there was a period where the applicant did not hold an enrolment in order to satisfy the visa conditions.  This is not an arguable ground for judicial review.

22. The second ground that the applicant articulates in the application is a claim that the member did not properly look at the relevant facts.  The applicant says that, in fact, he met the visa requirements contrary to what the Tribunal suggested in [15] and that the rationale that he had for switching courses was based on cultural differences between India and Australia that had affected his conduct in Australia.  Paragraph 15 to 21 of the Tribunal’s decision deals with this:

    15.  The applicant's written response to the NOICC indicated that he came to Australia in March 2014 to study an ELICOS course, a diploma in IT and a Bachelor of IT at Griffith University. Information set out in the delegate's decision record (provided by the applicant) indicates that he was granted a student subclass 573 visa under streamlined visa processing (SVP) arrangements, with lesser evidentiary requirements.

    16.  However, at the hearing the applicant advised that IT was not his first choice (hospitality was) but that his agent in India advised him that he would be subsequently able to change his course. The applicant gave evidence that he took his agent’s advice to seek admission into IT courses because he thought that he would be able to change to hospitality after arriving in Australia. However, when he arrived in Australia, he went to Gold Coast Institute of Technology (GCIT) to see if he could change his course and they told him that he could not.

    17.  The tribunal has some concerns about the applicant's evidence that he actually wanted to study hospitality in Australia and that his father wanted to make him a chef, but that he chose to enrol in courses in IT including up to the bachelor level because he was advised that he would be able to subsequently change his course.

    18.  In the applicant's post-hearing statement, he stated that he misunderstood the tribunal's question at hearing about whether he ever intended to study the bachelor in IT course that he was enrolled in when he arrived in Australia (to which he answered 'no' at the hearing). He thought that the tribunal was asking him whether he intended to study that IT course now, after having changed courses. He now prefers to do a hospitality course but while in India, he thought IT would be a good option at the start. While IT was not his first choice it was definitely of interest to him at the time and he had no intention to simply leave the course. Post-hearing submissions from the applicant's representative re-iterate the applicant's misunderstanding of the tribunal's question at hearing and his intention to study IT upon arrival in Australia.

    19.  The applicant further advised in that statement that if his intention had been false from the start, he would have immediately switched courses after his arrival but he did his English studies and was intending to start his diploma in IT. However, as noted below, the applicant's oral evidence to the tribunal is that he did not actually start his IT studies before leaving his course provider (for reasons discussed further below). The tribunal does not accept that the applicant's completion of his English course is necessarily evidence of his intention to study his chosen package of courses.

    20.  The tribunal accepts that the applicant may have travelled to Australia for the purpose of studying a course but, even having regard to his post-hearing explanation in which he also confirms that he had many options of courses to study and that IT was definitely of interest to him, continues to hold concerns about the applicant's evidence regarding his intention to study courses in IT including at the higher education sector level, for which he was granted a student visa.

    21.  Furthermore, in a post-hearing statement clarifying some of his evidence at hearing, the applicant also advised that the bachelor of business course which he enrolled in after receiving the NOICC is also not his first choice (hospitality is) but that in order to comply with his visa conditions, he will willing the complete the course in a hospitality package. He further reiterated that he now knows that he must study a bachelor degree. Similar statements were made by the applicant at the hearing, during which he stated that he needed to study a bachelor degree in order to keep his student visa. Such statements, as well as the timing of the applicant’s enrolment in a bachelor of business course after receiving the department’s NOICC give rise to concerns that the applicant has enrolled in this degree simply to meet the requirements of his student visa rather than due to an intention to study at the higher education sector level.

23. It is not clear how it is that the applicant says that this reasoning in some way shows a jurisdictional error.  The applicant was granted a visa under the streamlined processes, and he then had a period where he was not enrolled in the appropriate courses, breaching his visa conditions and altering his circumstances. 

24. As to the question of whether or not there are cultural differences, the Tribunal had regard to a range of the applicant’s circumstances and clearly had regard to the fact that the applicant was living here from an overseas country in determining whether or not to cancel his visa.

25. Nothing in the applicant’s material indicates that there was evidence of significance that had been placed before the Tribunal to which the Tribunal did not have regard. 

26. On the material before me, I am not persuaded that the applicant has raised an arguable ground with respect to the determination of the Tribunal.  Therefore, there is no purpose to be served in granting an extension of time to bring an application for judicial review.  I therefore refuse the application for an extension of time.

Costs

1. In the circumstances of this case, the Minister has been entirely successful.  The Minister seeks costs in the sum of $5,000.  Having regard to the Court scale and the matters before me, I am satisfied that the sum is reasonable.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  12 September 2018