Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 290
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 290
File number(s): SYG 778 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 28 March 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal - application for judicial review - Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa – whether Tribunal fell into jurisdictional error – whether jurisdictional error is made out – no jurisdictional error made out – application is dismissed Legislation:
Migration Act 1958 (Cth) ss 48, 116(1)(b)
Migration Regulations 1994 (Cth) cls 573.223, 573.231.
Cases cited:
BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 20 March 2024 Date of hearing: 20 March 2024 Place: Parramatta Counsel for the Applicant: Mr Young Solicitor for the Applicant: Shamser Thapa Associates Solicitor for the Respondents: Mills Oakley ORDERS
SYG 778 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SURESH KANDEL
Applicant
AND: MINISTER FOR IMMIGRATION, CTIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The name of the First Respondent be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6100.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant is a citizen of Nepal. On 13 October 2014, the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (“the visa”) for the purpose of undertaking a Bachelor of Information Technology course at the University of Canberra (“the course”). The applicant subsequently arrived in Australia on 23 October 2014.
The visa was granted to the applicant on the basis that he met the primary criteria contained in cl 573.223(1A) or 573.231 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
In addition to the above criteria, the visa was also subject to condition 8516 contained in Schedule 8 of the Regulations which states:
The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.
On 18 December 2018, the applicant was issued a Notice of Intention to Consider Cancellation (“NOICC”) by a delegate of the Minister for Immigration (the “delegate”). The delegate found that, as of 20 February 2017, the applicant had failed to remain enrolled in a Higher Education Sector level principal course of study and therefore no longer remained eligible to hold the Subclass 573 visa under the primary or secondary criteria contained in Schedule 2 to the Regulations.
On 27 January 2019, the delegate exercised its powers under s 116(1)(b) of the Migration Act 1958 (“the Act”) and cancelled the applicant’s visa, citing a breach of condition 8516 as the primary reason for the cancellation.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 2 March 2020, the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa.
The applicant now seeks judicial review of the Tribunal’s decision in this Court.
For the reasons set out below, this application is dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISOIN
A brief background of the matter can be found at [3] and [4] of the Tribunal’s decision.
The Tribunal noted at [2] that the key issue in the matter was whether the applicant had breached condition 8516 of the Regulations he was subject to, as the holder of the visa, by ceasing his enrolment in the course and whether this was sufficient to enable the Minister to use its discretion under s 166(1)(b) of the Act to cancel the applicant’s visa. As such a breach does not necessarily require mandatory cancellation, the Tribunal had regard to a multitude of factors in arriving at its final decision.
At [5], the Tribunal noted that the applicant had come to Australia with the intention of commencing the course, following completion of a Diploma of Information Technology at the Academies Australasia Institute. The Tribunal noted that during his time in Australia, he resided with a cousin in Sydney.
The Tribunal outlined the requirements for the grant of the visa at [13]-[15], noting that a person seeking such a visa must satisfy the criteria either under cl 573.223(1A) of the Regulations:
573.223(1A)
If the applicant is, and was, at the time of application, 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.
Or, if cl 573.223(1A), does not apply, the criteria contained within cl 573.231:
573.231
•The applicant is enrolled in, or is the subject of a current offer on enrolment in, a course of study that is a principal course; and
•The principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
•Made under regulation 1.40A; and
•In force at the time the application was made.
The applicant provided evidence at the hearing confirming he had ceased his enrolment in the course, as he did not wish to relocate from Sydney to Canberra. The Tribunal, at [15] therefore found that, at the time of the decision, the applicant was not enrolled in a “principal course of a type specified by that subclass”.
The Tribunal noted at [25] and [26] that, following withdrawal from the course, the applicant enrolled in a Diploma and Advanced Diploma of Leadership and Management. The applicant provided supporting documentation to this effect at the hearing.
At [23], the Tribunal considered the fact that the applicant could become an unlawful non-citizen, may face difficulty in being granted further visas in Australia, and be subject to a three-year exclusion period. Ultimately, however, the Tribunal did not give these factors significant weight, citing that they were “the intended consequences of the legislation” and “not reasons why the visa should not be cancelled”.
At [21], the Tribunal also had regard to the fact that the applicant had complied with all other visa conditions imposed upon him. However, it concluded that the applicant’s failure to enrol in a course of higher study for a period of over 1 year and 11 months (thus remaining in Australia for an extended period whilst not subject to a valid visa) weighed significantly against him.
Although the Tribunal was satisfied that the applicant’s original intention in travelling to Australia was to study [18], it was not convinced that the applicant had demonstrated a compelling reason for remaining in Australia [20].
In considering all available evidence before it, the Tribunal concluded it could not be satisfied that the applicant’s visa should remain in place. It found the applicant was not enrolled in a course of higher study at the time of its decision and therefore did not meet the visa requirements under the Regulations. As such, it affirmed the decision under review.
GROUNDS OF JUDICIAL REVIEW
The applicant’s Originating Application filed with the Court on 27 March 2020 initially pressed five grounds of judicial review. They are as follows verbatim (less particulars):
•The Second Respondent made jurisdictional error at [17], by not considering as a discrete issue the purpose of the Applicant’s travel and stay in Australia.
•The Second Respondent made jurisdictional error at [21], by making legal error in considering the breach of condition which led to the original exercise of discretion in relation to the issue of compliance with visa conditions.
•Further or in the alternative to 2 above, the Second Respondent made jurisdictional error by applying a heavy onus on the Applicant to satisfy it, by adopting the view that a breach of condition 8516 is “a fundamental breach of a student visa and weighs against the applicant in this case.”
•The Second Respondent made jurisdictional error at [23], by assuming that the operation of s 48 of the Migration Act 1958 was either an irrelevant consideration to the issue of hardship or that it was a matter which the Second Respondent could not consider.
•The Second Respondent made jurisdictional error by failing to consider relevant information.
The applicant’s written submissions filed on 28 September 2020, abandoned grounds one and five, but pressed grounds two, three and four.
THE APPLICANT’S SUBMISSIONS
The applicant conceded that he had not complied with condition 8516 of Schedule 8 of the Regulations, “his enrolment in Bachelor of Information Technology course ceased on 20 February 2017”. The applicant also accepts that the Minister’s discretion to cancel the visa under s 116(1)(b) of the Act was triggered as a result of ceasing enrolment in the course and therefore breaching the condition attached to his visa.
However, the applicant submitted that the Tribunal, in exercising its discretion under s 116(1)(b) of the Act, committed jurisdictional error by cancelling the applicant’s visa and found that its reasoning was “contrary to the exercise of unfettered discretion”. The applicant also submitted that the Tribunal, in finding that the applicant committed a “fundamental breach” at [21] of its decision, placed an “impermissible onus on the Applicant”. This reasoning constitutes the applicant’s submissions regarding grounds two and three.
In relation to ground four, the applicant submits the Tribunal’s finding that the applicant being subject to s 48 of the Act were the “intended consequences of the legislation” conflicts with the decision in Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 (“Leota”). As such, the applicant contends that the Tribunal’s consideration of s 48 was infected by jurisdictional error.
THE FIRST RESPONDENT’S SUBMISSIONS
In respect of ground two, the applicant submitted that the Tribunal erred in finding that “the breach itself leads to a presumption that the visa will be cancelled, and the discretion exercised against the applicant” and that this was “contrary to the exercise of unfettered discretion”. The Tribunal did, however, have regard to all factors put to it both in evidence and during the hearing. The Tribunal, therefore, gave active consideration to the exercise of the discretion in assessing the applicant’s compliance with visa conditions, particularly when contemplating his breach of condition 8516. As such, the jurisdictional error alleged by the applicant has not been properly articulated.
In relation to ground three, the applicant asserts that the Tribunal placed a “heavy onus” on the applicant in labelling the breach of condition 8516 a “fundamental breach”. The scope of the breach by the applicant was open for the Tribunal to assess using the discretion afforded to it under s 116 of the Act. The Tribunal, in arriving at its decision, did had regard to the personal circumstances of the applicant and any potential hardship he may have face as a result of the cancellation of the visa. No jurisdictional error can be demonstrated here by the applicant.
In relation to ground four, the applicant disputes the Tribunal’s characterisation that the operation of s 48 of the Act was an irrelevant consideration in arriving at its final decision. The Tribunal did in fact consider the limited options available to the applicant in applying for further visas in Australia and the potential hardship that may follow as a result of the cancellation. However, at [23], it found that these factors were the “intended consequences of the legislation” and accordingly, not reasons why the visa should not be cancelled. The applicant cites Leota as an authority wherein an “an administrative decision-maker may commit jurisdictional error if they do not take into account the legal consequences of the decision”. However, the facts in this case are not analogous to Leota as no legal error was committed by the Tribunal. The Tribunal correctly noted that any outcomes which may arise under s 48 do not necessarily have to be afforded weight by the delegate in determining its reasons as to whether the applicant’s visa should be cancelled.
The Tribunal, in considering all factors, did not err in exercising its discretion under s 116(1)(b) of the Act to cancel the applicant’s visa.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
The applicant was initially granted a visa for the purpose of study in a Bachelor of Information Technology course at the University of Canberra following completion of an initial Diploma level Information Technology course. Instead, he enrolled in a Diploma and Advanced Diploma in Leadership and Management, a different field to that for which he had been granted his visa. His reason for not attempting the course in Canberra is that he did not wish to relocate from Sydney. At the time of the Tribunal’s decision, the applicant had not been undertaking any study for some time.
At [6] the Tribunal noted the applicant conceded there were grounds to cancel his visa. Following this, the Tribunal engaged in an orthodox consideration of the applicant’s claims as to why his visa should not be cancelled. This included any hardship that might accrue to the applicant, as well as any issues that might be associated with him returning to Nepal.
The Tribunal also considered the relevant matters set out in the Department’s Procedures and Advice Manual (‘PAM 3’) “General Visa Cancellation Powers”. In the Court’s view, the consideration of these matters was entirely orthodox.
Ground two is a complaint that at [17], the Tribunal made a legal error in considering the breach of condition. Just what legal error is present is not articulated. The Court is satisfied that the Tribunal was correct to identify a failure to maintain enrolment in the course he was granted the visa for constituted a breach of the conditions attached to his visa. The Court is satisfied the Tribunal gave active consideration to the discretion not to cancel the applicant’s visa in [17] – [23] of its decision. This consideration included all relevant matters required by PAM 3. There is no substance in the complaint the Tribunal ‘fettered its discretion’ Ground two has no merit.
Ground three complains that at [21] the Tribunal committed jurisdictional error by finding that a failure to maintain enrolment “was a fundamental breach of a student visa and weighs heavily against the applicant”. The Court does not accept that the use of the term ‘fundamental breach’ places an impermissible ‘heavy onus’ on the applicant. The applicant had already conceded, as noted by the Tribunal at [6], that grounds existed for the cancellation of his visa. He had been granted a visa for the purposes of study at the University of Canberra. He had determined not to proceed with that course and undertaken other unrelated VET level study. At the time of the Tribunal decision, he had not been studying for some time. In the circumstances of this case the use of the term ‘fundamental’ was not unjustified.
Again, the Court is satisfied that the Tribunal carefully considered all the matters it was required to do so under PAM 3. The Court is satisfied that the Tribunal gave such weight as it felt appropriate to each of the matters raised by the applicant. Ground three has no merit.
Ground four is a complaint that the intended consequences of the legislation were not a factor that could be considered. The Court does not accept that Leota assists the applicant. The Tribunal correctly at [8] – [9], and [22] – [23] noted the hardship consequences of the applicant’s visa being cancelled. It gave some weight to those matters. The fact that the Tribunal referred at [23] to ‘the intended consequences of the legislation should the applicant become an unlawful non-citizen’ is again, entirely orthodox. There was no failure or misunderstanding by the Tribunal to consider these matters. It understood the applicant would have limited future rights to other visas and could be placed in detention and removed as an unlawful non-citizen. These were indeed the consequences that could flow from the cancellation of the applicant’s visa, should the applicant fail to voluntarily remove himself from Australia.
The Tribunal properly and correctly considered these matters and found that they were not reasons not to cancel the applicant’s visa. The Court accepts this ground simply invites merits review of the Tribunal decision.
Ground four has no merit.
CONCLUSION
As none of the grounds of judicial review have merit the application must be dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 28 March 2024
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