Karki v Minister for Immigration and Border Protection
[2015] FCA 1308
•24 November 2015
FEDERAL COURT OF AUSTRALIA
Karki v Minister for Immigration and Border Protection [2015] FCA 1308
Citation: Karki v Minister for Immigration and Border Protection [2015] FCA 1308 Appeal from: Karki v Minister for Immigration & Border Protection & Anor [2015] FCCA 1940 Parties: ANIL KARKI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 936 of 2015 Judge: BARKER J Date of judgment: 24 November 2015 Catchwords: MIGRATION – application for temporary student (class TU) (subclass 573) visa – Tribunal’s decision not unreasonable – Tribunal’s findings open on material before it Legislation: Migration Act 1958 (Cth) s 116, s 116(1)(b), s 116(2)
Migration Regulations 1994 (Cth) Sch 8, condition 8202, condition 8202(1), condition 8202(2)(a), condition 8516
Cases cited: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18Date of hearing: 24 November 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 71 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms N Blake Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 936 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: ANIL KARKI
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
24 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, to be taxed if not agreed.
3.The name of the second respondent be amended to the Administrative Appeals Tribunal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 936 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: ANIL KARKI
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE:
24 NOVEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a male citizen of Nepal, whose temporary student (class TU) (subclass 573 higher education sector) visa was cancelled by the Minister for Immigration and Border Protection on 19 August 2013.
The appellant was granted the student visa on 10 August 2011 under the Migration Act 1958 (Cth).
On 31 July 2013, the Department of Immigration and Citizenship notified the appellant that it considered there may be grounds for cancellation of his visa under s 116 of the Act because his study circumstances appeared to have changed. The Department advised that records of the Department of Employment, Education and Workplace Relations indicated he had not been studying a full-time Commonwealth Register of Institutions and Courses for Overseas Students-registered course since 28 June 2012, in breach of student visa condition 8202, contained in Sch 8 to the Migration Regulations 1994 (Cth).
The appellant, by his migration agent, responded to the Department on 14 August 2013. It was put to the Department that his enrolment in a Bachelor of Professional Accounting at Holmes Institute Pty Ltd was cancelled after July 2012 in exceptional circumstances beyond his control, as his parents were facing financial hardship in Nepal due to his mother’s severe medical condition requiring regular treatment. Holmes Institute had advised the appellant he could pay the course fees on a partial basis, and while he managed to pay $1000 and enrol, he was unable to pay the remaining tuition fees and his enrolment was cancelled. The appellant’s migration agent also noted the appellant was emotionally stressed as well as depressed.
The appellant’s migration agent alleged Holmes Institute failed to follow the relevant guidelines and national code of practice for providers of education and training to overseas students (Standard 13.4 of the National Code of Practice) by failing to inform him of its intention to suspend or cancel his enrolment and failing to notify him he had 20 working days to access the registered provider’s internal complaints and appeals process. It was further noted the appellant had successfully enrolled in an Advanced Diploma followed by a Bachelor of Accounting starting in August 2013, and intended to comply with the conditions of his student visa.
The appellant produced a medical certificate in support of his mother’s ill health dated 22 December 2012, a discharge summary for his mother dated 28 December 2012, his academic transcript in an Advanced Diploma of Management at Central College issued 14 April 2011, a Statement of Completion of a Certificate IV in Business at Central College, and a Confirmation of Enrolment in both an Advanced Diploma of Management at Australian College of Technology commencing in August 2013 and a Bachelor of Accounting at AIH Higher Education commencing in March 2014.
Relevantly, s 116(1)(b) provides that “the Minister may cancel a visa if he or she is satisfied that … its holder has not complied with a condition of the visa”, granting a discretionary power.
Condition 8202(1) provided, as at 28 June 2012, that “[t]he holder [of particular visas including a subclass 573 temporary student visa] (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements” of subcll (2) and (3). Subclause (2)(a) provided that “[a] holder meets the requirements of this subclause if: … the holder is enrolled in a registered course”.
Notwithstanding the representations made on behalf of the appellant, on 19 August 2013, a delegate of the Minister cancelled the appellant’s student visa.
The appellant sought review of this decision before the Migration Review Tribunal. The Tribunal affirmed the decision of the delegate on 14 January 2014.
The Federal Circuit Court of Australia gave judgment on 20 July 2015, dismissing the appellant’s application for judicial review of the Tribunal’s decision. See Karki v Minister for Immigration & Border Protection & Anor [2015] FCCA 1940.
The appellant now appeals to this Court from the Federal Circuit Court’s decision by way of a notice of appeal filed 10 August 2015.
THE DELEGATE’S DECISION
The delegate considered there was a ground for cancellation of the appellant’s visa under s 116(1)(b) of the Act, for breach of condition 8202.
The delegate noted the appellant ceased studying for a Bachelor of Professional Accounting at Holmes Institute on 28 June 2012, although he had since recommenced studying on 5 August 2013. There was no evidence the appellant had enrolled with any certified education provider between 28 June 2012 and 5 August 2013.
The delegate found the appellant had admitted he ceased studying between 28 June 2012 and 5 August 2013, and, by failing to maintain sufficient finances to maintain his studies, he may also have breached student visa condition 8516 contained in Sch 8 to the Regulations, which required the appellant to continue to be a person who would satisfy the criteria for the grant of the visa, including requirements relating to financial capacity.
The delegate noted there was no evidence the appellant contacted the Department at any time to keep it informed of his situation, or to find out what his options and obligations were, which might have assisted him to avoid breaching condition 8202.
With regard to the appellant’s claims that the severe medical condition of his mother caused a financial burden on his family and caused him to be emotionally stressed and depressed, the delegate said the documentary evidence of his mother’s illness was dated some six months after he ceased studying and he did not provide evidence that he sought medical assistance for his depressed state. The delegate, in the absence of other evidence, did not give weight to this claim. The delegate found the appellant could have approached his course provider and sought deferral of his studies while he attended to his family issues at home, then returned to Australia to complete his studies, and did not accept the appellant’s circumstances warranted him remaining in Australia on his student visa, not enrolled in a certified course, for more than 12 months. Further, the delegate noted while the appellant claimed financial hardship as the reason for not studying, he did not indicate how he supported himself financially during his break from study.
The delegate considered the appellant only showed an intention to re-enrol in his course after receiving the Department’s notice of intention to consider cancellation of his visa, following more than 12 months of non-enrolment.
Lastly, with regard to the appellant’s claims he was not informed about Holmes Institute’s intention to cancel his enrolment and not given any opportunity to internally appeal this decision, the delegate cited Department of Employment, Education and Workplace Relations records which indicated he was notified of “the intention to report” but chose not to access the complaints and appeals process within the 20 working day period.
THE TRIBUNAL’S DECISION
Based on evidence that on 28 June 2012, the appellant ceased to be enrolled in a registered course, the Tribunal also found on review he had not complied with condition 8202(2)(a) of Sch 8 to the Regulations.
The Tribunal then considered whether to exercise its discretion to cancel the visa, taking into account the relevant circumstances of the case. The Tribunal noted it had regard to relevant circumstances including, but not limited to, matters identified in the Department’s policy guidelines, such as the purpose of the appellant’s travel to Australia, the degree of hardship that may be caused by the cancellation to him and his family, his past and present behaviour towards the Department, Australia’s obligations under relevant international agreements, the reason for and extent of the breach and circumstances that were beyond the appellant’s control that caused the breach.
The Tribunal concluded the appellant’s visa should be cancelled because there were no circumstances that outweighed the ground for cancelling the visa.
The Tribunal did not accept the lack of funds as a circumstance beyond the appellant’s control because, as an overseas full fee paying student, it was his responsibility to ensure possession of the necessary funds. Further, the reason provided was expenditure for his mother’s illness, which the Tribunal found in fact arose six months after his fees were due.
The Tribunal also did not accept the appellant’s evidence his mental health was adversely affected by his mother’s illness because of a lack of independent supporting evidence and because it found he was able to continue to work “like before”.
While the Tribunal accepted the appellant’s evidence that he and his parents would likely be disappointed and unhappy if his visa was cancelled, it concluded this circumstance did not outweigh the ground for cancellation of the visa because the predicament the appellant was in was a making of his own. The Tribunal said the appellant could have taken reasonable steps such as obtaining a deferral of study and seeking guidance from the Department, which could have prevented his noncompliance with condition 8202. Further, the appellant’s enrolment in study from August 2013 did not outweigh the ground for cancellation.
The Tribunal further noted there was evidence the appellant breached another of his student visa conditions, condition 8516, by failing to remain enrolled due to a lack of funds, and therefore failing to maintain eligibility for the visa.
The Tribunal did not accept that Holmes Institute failed to follow the relevant code of conduct by not informing the appellant of its intention to suspend or cancel his enrolment or notifying him he had 20 working days to access the internal complaints and appeals process. The appellant claimed before the Tribunal that Holmes Institute may have sent him an email through the student online portal, but he was blocked from accessing the portal as he was no longer enrolled. Nonetheless, the Tribunal found the appellant’s evidence at the hearing was that he understood Holmes Institute’s advice that if he did not pay the remaining fees before the commencement of the semester, in mid-2012, his enrolment would be cancelled.
In all the circumstances, the Tribunal concluded nothing outweighed the ground for cancelling the visa and affirmed the delegate’s decision.
JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
The appellant then brought an application for judicial review in the Federal Circuit Court.
His amended application asserted four particularised grounds of review:
1.The decision of the Second Respondent is affected by jurisdictional error in that its exercise of a discretionary power was legally unreasonable.
Particulars
(a) The Second Respondent failed to consider the inferences arising from the oral evidence provided by the Applicant that the Applicant’s mother required medical treatment prior to December 2012, and whether such inferences impacted upon the assessment of whether the Applicant’s non‑payment of fees causing non-enrolment was a circumstance beyond the Applicant’s control or sufficient to warrant the exercise of the discretionary power;
(b) The Second Respondent relied on the Applicant’s failure to attend Nepal to see his mother and deferment of his studies to reject the Applicant’s claims notwithstanding that such conduct would be contrary to the Applicant’s stated intention to enter and stay in Australia for the purpose of study, and, conduct that would affect the assessment of whether the Applicant’s stated intention was genuine; and
(c) In the premises, the outcome of the Second Respondent’s exercise of power was unreasonable.
(d) The Second Respondent treated as separate breaches exhibiting adverse behaviour to the First Respondent that the Applicant had breached both Condition 8202 and condition 8516 when the finding in respect of condition 8516 was irrational, unreasonable and/or capricious.
2. The Second Respondent failed to deal with or make relevant findings upon the Applicant’s claim that his educational institution had failed to adopt and apply standard 13.4 National Code of Practice.
3. Further or in the alternative to 3 above, the findings of the Second Respondent at CB 101 at [27] were unreasonable.
4.Further or in the alternative, the Second Respondent made an unreasonable finding at [17] at CB 99 that the Applicant had breached condition 8516 in a manner which adversely affected consideration of “his behaviour towards the Department.”
(As in original.)
The primary judge delivered an ex tempore judgment on 20 July 2015.
Her Honour found that none of the particulars in support of the first ground of review were made out.
With regard to ground 1(a), her Honour considered that on a fair reading of the Tribunal’s decision record, it was clear that the Tribunal understood the appellant’s evidence he could not pay the course fees because they were necessary to treat his mother’s illness. The Tribunal put to the appellant that the need to pay for his mother’s treatment did not arise until some six months after the course fees were due, and therefore provided the appellant an opportunity to provide further evidence about medical expenses incurred between June and December 2012. Further, her Honour said the Tribunal was entitled to take the appellant’s failure to take reasonable steps to defer his studies or seek guidance from the Department into account, as well as his failure to return to see his mother and the lack of supporting evidence for his claim his mental health suffered due to his mother’s illness. The primary judge found the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, and were not legally unreasonable.
The primary judge considered grounds (1)(b) and (c) to be no more than a disagreement with the Tribunal’s findings.
With regard to ground 1(d), counsel for the appellant submitted that for the Tribunal to find the appellant breached condition 8516, because of his financial difficulties, in addition to condition 8202, was unreasonable. Her Honour found the Tribunal did no more than note that there was evidence that condition 8516 may have been breached where the appellant failed to remain enrolled due to a lack of funds, and did not accept this reference was unreasonable or affected the exercise of the Tribunal’s discretion in circumstances where the appellant conceded he was in breach of condition 8202.
Grounds 2 and 3 concerned the Tribunal’s findings as to whether Holmes Institute had failed to adopt and apply Standard 13.4 of the National Code of Practice. The primary judge noted the Tribunal specifically referred to this submission, and found that the appellant had understood his visa would be cancelled if he was unable to pay the fees due, and it would not have made any difference whether or not the appellant had been notified in accordance with Standard 13.4. In those circumstances, in the absence of evidence disputing the Tribunal’s version of the appellant’s evidence at the Tribunal hearing, her Honour said it was open to the Tribunal to find this argument insufficient to warrant the exercise of the Tribunal’s discretion in the appellant’s favour.
The primary judge noted there were no matters under s 116(2) of the Act the Tribunal was bound to take into consideration in exercising its discretion. Therefore it was not necessary for the Tribunal to make a conclusive finding on whether or not Holmes Institute complied with the standard. Her Honour did not accept the submission that had Holmes Institute complied with the standard, there would have been a reasonable chance of a different outcome, as on the appellant’s own evidence he was unable to pay the fees because he did not have the funds. Further, the evidence contained in the Department of Employment, Education and Workplace Relations records suggested Holmes Institute did in fact comply with the standard, as referred to by the delegate.
With regard to ground 4, the primary judge referred to her reasons in relation to ground 1(d) and said that there was some overlap between the circumstances in which the appellant failed to meet conditions 8202 and 8516, however the Tribunal had considered in some detail the appellant’s reasons why he was unable to continue to meet the financial requirements of his visa and failed to maintain enrolment. Her Honour found the appellant was in breach of both conditions 8202 and 8516, but did not accept this finding by the Tribunal was treated as a further matter adverse to the appellant. Her Honour said the Tribunal was doing no more than noting that, if the appellant had failed to remain enrolled due to a lack of funds, he would also have been in breach of condition 8516.
In conclusion, her Honour held that on a fair reading of the Tribunal’s decision record, the Tribunal understood the appellant’s claims, explored those claims with the appellant at a hearing, had regard to all material provided in support, put to the appellant matters of concern and noted his responses, then made findings based on the material before it. Her Honour found those findings were open to the Tribunal, it complied with its obligations under the statutory regime and its decision was not affected by jurisdictional error.
APPEAL TO THIS COURT
The appellant now appeals from the decision of the Federal Circuit Court. The appellant relies on grounds of appeal similar to the grounds of review before the Court below:
1.Her Honour failed to find that the decision of the Second Respondent is affected by jurisdictional error in that its exercise of a discretionary power was legally unreasonable.
Particulars
(a) The Second Respondent failed to consider the inferences arising from the oral evidence provided by the Applicant that the Applicant’s mother required medical treatment prior to December 2012, and whether such inferences impacted upon the assessment of whether the Applicant’s non‑payment of fees causing non-enrolment was a circumstance beyond the Applicant’s control or sufficient to warrant the exercise of the discretionary power;
(b) The Second Respondent relied on the Applicant’s failure to attend Nepal to see his mother and deferment of his studies to reject the Applicant’s claims notwithstanding that such conduct would be contrary to the Applicant’s stated intention to enter and stay in Australia for the purpose of study, and, conduct that would affect the assessment of whether the Applicant’s stated intention was genuine; and
(c) In the premises, the outcome of the Second Respondent’s exercise of power was unreasonable.
(d) The Second Respondent treated as separate breaches exhibiting adverse behaviour to the First Respondent that the Applicant had breached both Condition 8202 and condition 8516 when the finding in respect of condition 8516 was irrational, unreasonable and/or capricious.
2. Her Honour failed to find that the findings of the Second Respondent at CB 101 at [27] were unreasonable.
3. Her Honour erred in the manner in which she dealt with and considered the Appellant’s claim that his educational institution had failed to adopt and apply standard 13.4 National Code of Practice.
4.Her Honour erred in finding at [41] that the Appellant was “in breach of both Condition 8202 and Condition 8516 of his visa” and by failing to find that the Second Respondent made an unreasonable finding at [17] at CB 99 that the [Appellant] had breached condition 8516 in a manner which adversely affected consideration of “his behaviour towards the Department.”
(As in original.)
The Court notes that the appellant wrote to the Court on 18 November 2015 requesting that the hearing of his appeal be postponed for one month, to provide his family some time so they could “manage service fees to hire a lawyer”. The appellant stated he cannot afford to hire a barrister because he does not have the funds right now, and while his family back in Nepal were helping him with financial issues, now Nepal has lost almost everything because of the earthquake and his family are also having a hard time.
The Court, by return email to the appellant, refused this request and notified the appellant the hearing of his appeal would go ahead on Tuesday, 24 November 2015 at 10.15am.
The Court noted the appellant could renew his request that the hearing be postponed when he appeared in court on Tuesday, however, the Court may, or may not, grant his request at this time and the appellant should prepare to present his case at Tuesday’s hearing.
At the hearing, the appellant renewed his application for an adjournment but the Court refused the application on the basis that the appellant had had adequate time to obtain legal representation and there was no reason to think that the appellant would obtain legal representation any time soon. As a result, the Court proceeded to hear the appeal.
With regard to ground 1(a) of the appellant’s grounds of appeal, the Minister submits this ground is premised on the assumption that there were inferences arising from the appellant’s oral evidence to the effect that the appellant’s mother required medical treatment prior to December 2012. The Minister states the question of whether or not to draw an inference from evidence is a question of fact for the Tribunal.
It is submitted the Tribunal made factual findings that disposed of any claims that the appellant’s mother underwent treatment prior to December 2012, setting out the treatment undergone by the appellant’s mother on the basis of documentary evidence that this treatment occurred in December 2012 and recording that the Tribunal put to the appellant at the hearing that the need for the treatment expenditure arose in December 2012 and should not have prevented him paying fees six months earlier. In the Minister’s submission, if the appellant wished to provide evidence to the Tribunal that the treatment began prior to December 2012, he ought to have done so.
Accordingly, the Minister submits that the primary judge correctly held that the findings of the Tribunal were open to it, and that the exercise of its discretionary power was therefore not legally unreasonable.
As to ground 1(b) and (c), the Minister says the Tribunal stated at [21] of its decision record:
The applicant gave oral evidence that his mother’s illness affected his mental health. However ... he did not go to Nepal to see his mother. He did not apply for deferment of his studies from Holmes Institute on medical grounds.
The Minister submits the appellant’s complaint is that the Tribunal’s reliance on the matters referred to was unreasonable, on the basis that, if the appellant had sought a deferment or returned to Nepal, this would have prejudiced the assessment of whether the appellant was a genuine student.
It is submitted the appellant’s asserted concerns are entirely speculative and there is nothing in the Tribunal’s decision record which indicates that such claims were made to the Tribunal. The Minister says the appellant’s behaviour at the time he was claiming to have been affected by his mother’s illness was plainly relevant to the assessment of the credibility of that claim and there was no error on the part of the Tribunal in considering those matters. The Minister submits that in the absence of any claim by the appellant that he would have been prejudiced had he visited his mother, this was not a matter that the Tribunal was obliged to consider and the Tribunal’s findings cannot be said to be unreasonable.
The Minister submits the primary judge was correct to find that the balance of the particulars under the appellant’s first ground of review before the Court below rose no higher than disagreement with the findings of the Tribunal.
With regard to ground 1(d), the Minister says the appellant asserts that the breach of condition 8516 was treated by the Tribunal as separate to the breach of condition 8202, such that it exacerbated the appellant’s conduct and caused the Tribunal to exercise its discretion unfavourably to the appellant. The Minister contends there is nothing in the Tribunal’s decision to support this assertion and says the Tribunal did no more than note that there was evidence that condition 8516 may have been breached. In the Minister’s submission, this was the correct interpretation of the relevant law and in circumstances where the appellant conceded that he was in breach of condition 8202, a fair reading of the Tribunal’s decision record indicates that the Tribunal appreciated that the same factual matrix gave rise to the breach of conditions 8202 and 8516. However, the Minister submits the Tribunal did not rely on the breach of 8516 as being an additional factor in its decision to exercise its discretion adversely to the appellant. Accordingly, in the Minister’s submission, the reference by the Tribunal to the appellant’s failure to meet condition 8516 was not unreasonable, nor did it influence the exercise of the Tribunal’s discretion.
In relation to grounds 2 and 3, the Minister says the appellant’s allegations depend upon the following propositions, which cannot be made out on the evidence before this Court:
(1)the Tribunal failed to consider or make findings regarding the appellant’s submission that his education provider did not comply with Standard 13.4 of the National Code of Practice; or
(2)The Tribunal’s consideration of this issue was unreasonable. This defect in the Tribunal’s reasoning was material to the decision, such that had the Tribunal considered the issue properly, there are at least reasonable prospects that it would have found that the visa should not be cancelled.
The Minister submits the assertion that the Tribunal failed to deal with the appellant’s submission that Holmes Institute failed to apply Standard 13.4 of the National Code of Practice is incorrect. It is noted the appellant made a similar submission to the delegate, which was rejected for the reason that it was inconsistent with the records of the Department of Employment, Education and Workplace Relations which indicated the appellant was notified of Holmes Institute’s intention to report but chose not to access the appeals process available to him within the requisite period. Thus, given official records contradicted the appellant’s claim it was given little weight by the delegate.
The Minister further notes the Tribunal’s decision record evidences that the appellant’s assertion regarding Standard 13.4 was discussed with the appellant at the Tribunal hearing and that the Tribunal made a particular finding in relation to this submission, stating it did not accept the argument because the appellant’s evidence at the Tribunal hearing was that he understood Holmes Institute’s advice that if he did not pay the remaining fees before the commencement of the second semester in the middle of 2012, his enrolment would be cancelled.
The Minister notes the Tribunal determined that it was unnecessary for it to conclude which version of events was to be preferred, because the appellant had understood that his enrolment would be cancelled if he did not pay his fees, but was nonetheless incapable of making such payment, and says further the appellant did not submit any evidence capable of disputing the Tribunal’s account of the appellant’s evidence at the hearing in the Court below.
The Minister contends that in light of the evidence that it would not have not made any difference if the appellant had been notified in accordance with Standard 13.4, it was open to the Tribunal to find that this argument was insufficient to warrant the favourable exercise of its discretion. Further, it is submitted that when due regard is had to the breadth of the discretion to cancel the visa, a conclusive finding on whether or not Holmes Institute complied with Standard 13.4 cannot be said to have been a matter which the Tribunal was bound to take into consideration in exercising the discretion, in the sense considered in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J); [1986] HCA 40.
Nor, in the Minister’s submission, can the Tribunal’s finding that this argument was insufficient to result in a favourable exercise of the discretion be said to have lacked any “evident and intelligible justification”, or have been “so unreasonable that no reasonable tribunal” could have made it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [74]-[76] (Hayne, Kiefel and Bell JJ) and [98] (Gageler J); [2013] HCA 18.
Further, the Minister notes these alleged procedural failures on the part of the education provider occurred in mid-2012, yet, as was considered by the Tribunal, the appellant remained not enrolled in a registered course for the subsequent 12 months. The Minister says the alleged procedural anomalies regarding the appellant’s education provider were incapable of explaining the appellant’s failure to maintain enrolment over this extended period.
It is submitted, in the circumstances, that the primary judge was correct to find the Tribunal’s rejection of the appellant’s submissions in relation to Holmes Institute’s notification of the cancellation of his enrolment was open to it on the evidence.
Lastly, with regard to ground 4, that the Tribunal’s finding that there was evidence the appellant had breached condition 8516 was “unreasonable”, the Minister notes that had the appellant wished to dispute the finding he had breached condition 8516 by failing to maintain sufficient funds to maintain his studies, it would have been open for him to do so before the Tribunal.
The Minister says there is naturally some overlap between the circumstances in which the appellant failed to meet criterions 8202 and 8516. It is submitted this was not disputed or overlooked by the Tribunal, which plainly had regard to the appellant’s submissions as to the reasons that he was unable to continue to meet the financial requirements of the visa, in breach of condition 8516; and accordingly, failed to maintain enrolment in breach of condition 8202.
However, in the Minister’s submission, the appellant was undoubtedly in breach of both criterion 8202 and 8516 of the visa, and recognition of an indisputable fact does not amount to jurisdictional error on the part of the Tribunal.
While the appellant did not file written submissions in advance of the hearing of the appeal, he made oral submissions that in substance reflected the grounds of appeal.
As noted above, the grounds of appeal to this Court are nearly identical to the grounds upon which the appellant unsuccessfully sought judicial review in the Court below.
Generally, for the reasons outlined in the submissions of the Minister, this appeal should be refused.
At [25]‑[27] of its decision, the Tribunal concluded there was no circumstance referred to by the appellant that outweighed the ground for cancellation of his visa:
[25] Having assessed all the available relevant considerations or circumstances of this case the Tribunal concludes that this visa should be cancelled because there is no circumstance that outweighs the grounds for cancelling the visa. The Tribunal does not accept the lack of funds as a reason for non-payment of fees causing the non-enrolment as a circumstance to be beyond the applicant’s control because as an overseas full fee paying student it was his responsibility to ensure possession of the necessary funds. Further, the reason for the lack of funds being expenditure for his mother’s illness arose 6 months after the time his fees were due. The Tribunal does not accept that the applicant’s mental health was very adversely affected by his mother’s illness because of lack of any independent supporting evidence and because he was able to work like before. The Tribunal accepts that he and his parents will very likely be disappointed and unhappy by the cancellation of the visa However, this circumstance does not outweigh the grounds for cancellation of the visa because the predicament the applicant is in is a making of his own. Taking reasonable steps such as obtaining a deferment of study from Holmes Institute and/or seeking guidance from the Department of Immigration could have prevented his noncompliance with condition 8202(2)(a).
[26] Although the applicant had progressed reasonably well academically prior to his non-enrolment in the middle of 2012, having completed a certificate IV qualification and almost a diploma and an advanced diploma qualifications, he remained not enrolled for 12 months and in this period he engaged in no study activity. He has enrolled in an advanced diploma course from August 2013 and also in a bachelor course which is to commence in March 2014 arid paid some fees for these courses. It appears that he has done this thinking that this will assist in dealing with his visa problem. The Tribunal does not consider the circumstance of recent enrolments outweighs the grounds for cancelling the visa.
[27] The Tribunal notes that the applicant’s representative argued that Holmes Institute failed to follow Standard 13.4 of the National Code which states ‘The registered provider must inform the student of its intention to suspend or cancel the student’s enrolment where the suspension or cancellation is not initiated by the student and notify the student that he or she has 20 working days to access the registered provider’s internal complaints and appeals process as per Standard 8.1.’ The Tribunal does not accept this argument because the applicant’s evidence at the hearing was that he understood Holmes Institute’s advice that if he did not pay the remaining fees before the commencement of the second semester in the middle of 2012, his enrolment will be cancelled.
(As in original.)
It can be seen from these reasons that the Tribunal, taking into account what the appellant told it, made a decision, based on its factual findings, that it was not satisfied as to the reasons given by the appellant for the cessation of his relevant course of study. For example, it noted that the expense incurred in relation to his mother’s illness did not arise until well after the study period ended and so plainly did not consider that the appellant was unable to meet the payment of the tuition fees for reasons out of his control. It concluded he should have been in a position to meet the tuition fees at Holmes Institute when they fell due. In [27], the Tribunal emphasised that, as a matter of fact, the appellant had been advised at material times that if he did not pay the remaining fees on time his enrolment would be cancelled. The Tribunal made a decision that was very much open to it on the material before it. There is no basis for suggesting that its decision was legally unreasonable, for the reasons the Minister gives.
In these circumstances, the appellant has failed to show that the primary judge in the Court below erred in law in failing to find that the Tribunal committed any jurisdictional error of the type contended for.
For these reasons the appeal should be dismissed with costs.
CONCLUSION AND ORDER
The Court orders that:
(1)The appeal be dismissed.
(2)The appellant pay the first respondent’s costs, to be taxed if not agreed.
(3)The name of the second respondent be amended to the Administrative Appeals Tribunal.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 24 November 2015
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