HUDA v Minister for Immigration

[2016] FCCA 2525

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUDA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2525

Catchwords:
MIGRATION – Visa cancellation – subclass 573 Higher Education Sector visa – applicant ceases enrolment in higher education degree and takes up Certificate III in Bricklaying – subsequently obtains offer of enrolment in Bachelor of Business – failed to “continue to satisfy” visa conditions.

Legislation:

Migration Act 1958 (Cth), s. 116

Migration Regulations 1994 (Cth), Sch. 2

Cases cited:

Singh v Minister for Immigration and Border Protection [2016] FCA 679

Applicant: BRIJENDRA HUDA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 3 of 2016

Judgment of: Judge Young

Hearing date: 20 September 2016

Date of Last Submission: 20 September 2016

Delivered at: Darwin

Delivered on: 20 September 2016

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondents: Ms Newman

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 18 January 2016 be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 3 of 2016

BRIJENDRA HUDA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an application for review of a decision of the Administrative Appeals Tribunal (AAT) made on 23 December 2015. That decision affirmed a decision of the delegate made on 6 February 2015 to cancel the applicant’s Subclass 573 Higher Education Sector visa pursuant to section 116 of the Migration Act 1958.  The applicant is a citizen of India.  He was granted a Subclass 573 Higher Education Sector student visa in February 2014.  On 1 December 2014, the applicant was given a notice of intention to consider cancellation of his visa on the ground that he did not satisfy condition 8516 of his visa.

2. That was on the basis that his enrolment in a higher degree course, namely, Master of Public Health, had ceased.  In fact, the applicant had ceased his enrolment in that degree, and I take it that that was by 10 July 2014, and he subsequently enrolled in and, I understand, completed a Certificate III in Bricklaying.  The substance of condition 8516 is that it requires that the holder of the visa “must continue to be a person who would satisfy the primary or secondary criteria as the case requires for the grant of the visa.” The secondary criteria relate to family members of a visa holder and are not relevant for present purposes.

3. The primary criteria to be satisfied at the time of decision included criterion 573.231, which provides that:

   If subclass 573.223(1A) does not apply:

   (a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course;  and

   (b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i) made under regulation 1.40A;  and

   (ii) in force at the time the application was made.

   Regulation 1.40A specifies the type of courses that satisfies the criterion at 573.231, namely, a higher education diploma, higher education advanced diploma, bachelor degree, graduate certificate, graduate diploma, associate degree, and masters by coursework.  It is not suggested in this case that Subclass 573.223(1A) applies. 

4. At the time of the delegate’s decision on 6 February 2015 the applicant had ceased his higher education degree enrolment some seven months earlier on 10 July 2014, however, on 10 December 2014 he obtained a  certificate of enrolment for a Bachelor of Business.  Counsel for the Minister said that the certificate of enrolment should be considered as an offer of enrolment.  It does not matter for present purposes whether it constitutes an offer of enrolment or an actual enrolment.  The Tribunal considered that the hiatus between the applicant ceasing enrolment in July 2014 and the offer of an enrolment in another institution and in another degree in December 2014 was a failure to “continue to satisfy the primary criteria for the grant of the visa.”  In other words, a failure to comply with condition 8516.

5. The Tribunal also considered the discretionary factors relating to the applicant’s personal circumstances.  Those matters were not the subject of this review and I do not propose to consider them.  The grounds identified by the applicant are attached to his application.  I do not propose to read the whole document, but I think it is fair to say that the claim, in summary, is that given the applicant’s new enrolment in a Bachelor of Business degree or offer of enrolment in such a degree in December 2014 that ought to be construed as satisfying condition 8516. 

6. The circumstances of this case are, in my view, on all fours with the decision of Buchanan J in Singh v Minister for Immigration and Border Protection [2016] FCA 679. In that case the applicant ceased a Bachelor of Information Technology degree on 7 April 2014 and took up a cookery course. Some months later on 1 September 2014 the applicant obtained an offer of enrolment in a Bachelor of Business course. He argued in response to the delegate’s cancellation of his visa, subsequently affirmed by the Tribunal, that the definition of “continue” included “to go on after suspension or interruption”.  That was an available dictionary meaning.

7. Buchanan J did not accept that construction and held that during the hiatus between the cessation of the applicant’s higher education enrolment and the enrolment in the Bachelor of Business degree that he did not continue to satisfy the criteria.  He held that the difficulty was not overcome by obtaining an enrolment or an offer of enrolment in another institution in another course sometime in the future.  I am bound by that decision and accordingly I must dismiss the application and I do so with costs.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 29 September 2016