Kaur v Minister for Immigration
[2019] FCCA 2585
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2585 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Class TU) (Subclass 573) visa – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal made irrelevant or inappropriate enquiries of the First Applicant – application for judicial review – application dismissed with costs. |
| Legislation: Migration Act 1958, ss.116(1), 140(1), 353, 499 Migration Regulations 1994, reg.1.40A, Cl. 573.111, 573.231, 573.223, 573.223(1A) of Schedule 2 |
| Cases cited: Collector of Customs v Pozzolanic (1993) 43 FCR 280 |
| First Applicant: | RAVNEET KAUR KAUR |
| Second Applicant | NAVJOT SINGH GREWAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number | MLG 559 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 5 September 2019 |
| Date of Last Submission: | 5 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Oldham |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Roe |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed on 21 March 2016 and amended on 19 August 2019 be dismissed.
The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 559 of 2016
| RAVNEET KAUR KAUR |
First Applicant
| NAVJOT SINGH GREWAL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the Applicants for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 3 March 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to cancel the First Applicant’s Student (Class TU) (Subclass 573) visa (‘Visa’).
The First Applicant, Ms Kaur is the primary applicant and holder of the Visa. The Second Applicant, Mr Grewal, is her husband.
The application for review in this Court has been filed by both Applicants. The Tribunal considered that it did not have jurisdiction to review the cancellation of the Second Applicant’s visa because that cancellation had been affected by operation of section 140(1) of the Migration Act 1958 (‘Act’) and was not a decision. It was agreed by the parties that this finding was not an issue in the present application.
For the reasons that follow, I have decided to dismiss the application for review filed in this Court.
Background
The Applicants are Indian nationals.
The First Applicant arrived in Australia in July 2012 and was granted the Visa on 2 July 2012. The Visa was due to expire on 30 August 2015.
On 24 October 2014, a notice of intention to consider cancellation (‘NOICC’) of the Visa was issued to the First Applicant, on behalf of the First Respondent, pursuant to section 116(1)(b) of the Act. The notice was issued on the basis that the First Applicant did not meet the criteria set out in clause 573.231 of Schedule 2 of the Migration Regulations 1994 (‘Regulations’), that is, the Applicant was no longer an ‘eligible higher degree student’ for the purposes of the Visa.
On 30 January 2015, a delegate of the Minister cancelled the First Applicant’s visa. The delegate found that the First Applicant did not satisfy the requirements contained within clauses 573.223(1A) and 573.231 of the Regulations.
On 5 February 2015, the Applicants applied to the Tribunal for review of the delegate’s decision. On 3 March 2016, the Tribunal affirmed the decision of the delegate to cancel the Visa.
The Applicants subsequently applied to this Court on 21 March 2016 for judicial review of the Tribunal’s decision.
Legislative Framework and Relevant Instruments
Resolution of the issues in the present proceeding requires a consideration of two relevant regulations. It is convenient to set these out below.
Clause 573.223 of Schedule 2 to the Regulations sets out the primary criteria for the grant of the Visa at the time of the decision. Relevantly, clause 573.223(1A) provides as follows:
‘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:
…
(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’
The term ‘eligible higher degree student’ referred to in the paragraph above is defined in clause 573.111 of the Regulations to mean 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:
(ia) an advanced diploma in the higher education sector; or
(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.’
For ease of reference, in these reasons I will refer to clause 573.223(1A) of the Regulations and the definition above as the ‘Primary Criteria’.
In addition to the above, clause 573.231 provides an alternative (or secondary) basis to satisfy the criteria to maintain the Visa. It relevantly provided, at the time of the decision, as follows:
‘If subclause 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.’
As at the date the Tribunal affirmed the decision to cancel the Visa, an applicable instrument was made under regulation 1.40A and was in force. This was instrument IMMI 14/015 (‘Instrument’)[1] which relevantly specified the following courses for subclass 572 and subclass 573 visas:
[1] IMMI 14/015 replaced IMMI 12/037 which relevantly was in identical terms to IMMI 14/015.
Subclass 572 (Vocational Education and Training Sector)
Certificate I, II, III and IV, other than ELICOS
Diploma (Vocational Education and Training)
Advanced Diploma (Vocational Education and Training)
Graduate Certificate (Vocational Education and Training)
Graduate Certificate (Vocational Education and Training
Graduate Diploma (Vocational Education and Training) Subclass 573 (Higher Education Sector)
Diploma (Higher Education)
Advanced Diploma (Higher Education)
Bachelor Degree
Graduate Certificate (Higher Education)
Graduate Diploma (Higher Education)
Associate Degree
Masters by Coursework
For ease of reference, in these reasons I will refer to clause 573.231 of the Regulations and the Instrument above as the ‘Secondary Criteria’.
Finally, condition 8516 attached to the Visa. It relevantly provided that the holder of a 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’. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if he or she is satisfied the holder of a visa has not complied with a condition attached to the visa.
The Grounds for Review
Ground 1
The first ground of review in the Application for Review filed on
21 March 2016 and amended on 19 August 2019 (‘Application’) is as follows:
‘The Tribunal fell into jurisdictional error by failing to take into account a relevant consideration and/or identifying the wrong issue or asking itself the wrong question
PARTICULARS
a. In considering whether there existed a ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth), the Tribunal failed to consider whether the First Applicant’s enrolment in a Diploma of Hospitality constituted a principal course of study which was on the type specified in IMMI 12/037.
b. Alternatively, in considering whether to cancel the First Applicant's visa, the Tribunal failed to consider whether the First Applicant's enrolment in a Diploma of Hospitality was no different in substance than enrolment is a principal course of study which was of the type that was specified in IMMI 12/037 and/or the extent to which they were similar.’
As can be seen from the above, this ground of review takes issue with an alleged failure of the Tribunal to consider whether a Diploma of Hospitality course constitutes a principal course of study for the purposes of the Secondary Criteria. It is also asserted that there was a failure by the Tribunal to consider whether a Diploma of Hospitality was ‘in substance’ no different than enrolment in a principal course of study for the purposes of the Secondary Criteria.
Consideration of this issue begins with analysis of the Tribunal’s reasons for its decision. Paragraphs [8] to [10] of the Tribunal’s decision are pertinent to this ground of review. I set them out below for convenience:
‘8. The Departmental decision identified that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 24 October 2014. The Departmental decision sets out that on 2 July 2012 the applicant satisfied the primary criteria for the grant of the 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa. 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. (In these reasons I may refer to such courses as 'higher education').
9. According to the delegate's decision, the departmental systems indicated that the applicant at the time of the NOICC was no longer enrolled in a bachelor or master degree course and was therefore not an eligible higher degree student and was not 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. I discussed this with the applicant at the hearing and she said that she had studied her Bachelor of Health Science at Deakin University until mid- 2013, and had then changed to a Bachelor of Business at Stott's College. She did one semester and left this course to do her Certificate Ill and Diploma in Hospitality. She indicated that Stott's college cancelled her enrolment in the Bachelor of Business on March 2014, and that she did not hold enrolment or a valid letter of offer until October 2014, when she again enrolled for the Bachelor of Business at Stott's college.
10. On the basis of the evidence before it the Tribunal finds that the applicant was not enrolled in a bachelor or master degree course after her enrolment was cancelled by Stott's college in March 2014 until she re-enrolled in the Bachelor of Business at Stott's College in October 2014. I asked if she had held a valid letter of offer for a Bachelor or Masters course between these times but she said she had not. On the evidence before the Tribunal, for this period of time she was not an eligible higher degree student, nor was she 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. The Tribunal finds that the applicant therefore did not continue to satisfy cl.573.231 or cl.573.223(1A), and therefore did not continue to be a person who would satisfy the criteria for the grant of the visa for this period. The Tribunal finds that the applicant therefore breached condition 8516.’
It can be seen from the paragraphs of the Tribunal’s decision as set out above that the Tribunal referred to both the Primary Criteria and the Secondary Criteria. The essence of the complaint made by the First Applicant is that despite these references, the Tribunal did not properly engage with the Second Criteria. In particular, two matters are raised. First, it is said that there is no express reference to consideration by the Tribunal of whether the Diploma of Hospitality is to be regarded as a ‘Diploma (Higher Education)’ or an ‘Advanced Diploma (Higher Education)’ for the purposes of the Instrument. Second, it is said that the focus of the Tribunal’s reasoning in paragraph [10] of its decision is on whether the Applicant was ‘an eligible higher degree student’ (an aspect of the Primary Criteria) and not on whether the course of study was the ‘principal course’ of study (an aspect of the Secondary Criteria). These failures are said to constitute the jurisdictional error.
In support of her argument, the First Applicant points to the decisions of Charlesworth J in Singh v Minister for Immigration and Border Protection (2016) 240 FCR 1 (‘Singh’) and Wilson J Shrestha v Minister for Immigration [2017] FCCA 1875 (‘Srestha’). In Singh, Charlesworth J allowed an appeal from this Court. In doing so, she criticised the Tribunal for having proceeded on the assumption that the applicant’s enrolment in a Diploma of Website Development course did not satisfy the requirement for a subclass 573 Visa and said it was arguable that the diploma in question was a ‘higher education course’ for the purposes of the relevant instrument.
In Shrestha, Wilson J quashed the decision of a Tribunal which had addressed only whether the applicant was ‘an eligible higher degree student’ for the purposes of clause 573.223(1A) of the Regulations. Wilson J observed that the Tribunal gave no explanation about how it reasoned that the elements of the instrument applied to the facts of the case before him.
A close consideration of the relevant paragraphs of the Tribunal’s decision in the present proceeding discloses that it was aware of both the Primary Criteria and the Secondary Criteria. For example:
a)In paragraph [8] of its reasons, the Tribunal expressly recognises the Primary Criteria and the Secondary Criteria as being alternatives to each other. It also distinguished between the Applicant being enrolled in a ‘bachelor or master degree course’ or being enrolled in a course of study that is a ‘principal course of a type specified... by the Minister in an instrument made under r.1.40A’. Further, in the last sentence of paragraph [8] of its reasons, the Tribunal expressly stated that it would refer to both such courses as ‘higher education’ in its reasons.
b)In paragraph [9] of its decision, the Tribunal considers and notes the delegate’s decision that the First Applicant was not enrolled in a ‘bachelor or master degree course’ and was also not enrolled in a ‘principal course’ of the type specified in the Instrument.
c)In paragraph [10] of its decision, the Tribunal makes the express finding that, for the relevant period, the First Applicant was not ‘an eligible higher degree student, nor was she enrolled in, or the subject of...the principal course of the type specified...in an instrument’ (emphasis added). Further, later in the paragraph, the Tribunal then concluded that the First Applicant did not satisfy either the Primary Criteria ‘or’ the Secondary Criteria.
d)In paragraph [24] of its decision, the Tribunal noted that the Applicant had, in January 2014, been enrolled only in vocational courses, and asked the First Applicant if she had applied for ‘a vocational stream, 572 visa at that time’.
In my view, these paragraphs are demonstrative of two things. First, the Tribunal was aware of the Secondary Criteria. Secondly, on the face of the record, the Tribunal actively turned its mind to whether the First Applicant met either the Primary Criteria or the Secondary Criteria.
It might be seen as unhelpful that the Tribunal elected in paragraph [8] of its reasons to collectively refer to the ‘bachelor or master degree course’ or being enrolled in a course of study that is a ‘principal course of a type specified... by the Minister in an instrument made under r.1.40A’ as ‘higher education’. That description does not detract, however, from the face of the record which indicates that the Tribunal did consider whether the First Applicant met the Secondary Criteria.
In considering that the Tribunal did actively consider the application of the Secondary Criteria to the Applicant, I have also had regard to the following. First, the statement of Neaves, French and Cooper JJ of the Full Court of Federal Court in Collector of Customs v Pozzolanic, as echoed by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, that the reasons of administrative decision makers ‘are not to be construed minutely and finely with a keenly attuned eye to the perception of error’.[2] Second, the application of section 353 of the Act. Section 353 of the Act provides that the Tribunal in conducting its reviews, is not bound by technicalities, legal forms or rules of evidence and is to act according to substantial justice and the merits of the case.
[2] Collector of Customs v Pozzolanic (1993) 43 FCR 280, at 287 as cited in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
I have also considered the submissions made by the First Applicant in respect of the decisions in Singh and Shrestha. I make two observations about the First Applicant’s reliance on these decisions. First, it is apparent that the comments of Charlesworth J and Wilson J that their observations arose from situations where either assumptions were made about whether a particular course of education satisfied the criteria (Singh) or where no explanation was given by the Tribunal in relation to its conclusion (Shrestha). For the reasons stated previously, I am satisfied that in this case, the Tribunal did not proceed on the basis of an assumption, but actively turned its mind to, and engaged with, the Primary Criteria and the Secondary Criteria.
The other aspect of the decision in Singh is that Charlesworth J has, in a later case, proffered the view that a Diploma of Hospitality is a course of study at a vocational sector level, and not at a higher education level. In Maan v Minister for Immigration and Border Protection [2017] FCA 906 (‘Maan’), at paragraph [19], Her Honour observed:
‘From at least 16 October 2013, Mr Maan held a confirmation of enrolment in a Diploma of Hospitality with an education provider trading as Australian College of Trade Pty Ltd. That diploma was for a course of study at a Vocational Sector level. It did not fall within the description of a primary course of a kind that would satisfy the requirements for a student visa in the Higher Education Sector.’
I accept that Maan does not definitively address whether a Diploma of Hospitality is to be regarded as a ‘Diploma (Higher Education)’ for the purposes of the Instrument, or its predecessor instruments. I nevertheless regard the statement in Maan, however, as a significant one in the context of the way the Applicant’s submissions were developed before me. This is because Charlesworth J had, in an earlier case (Singh), queried whether a Diploma of Website Development was properly characterised as a higher education degree, and identified this as a potential error. In the later case of Maan, however, Charlesworth J appears to have accepted that a Diploma of Hospitality is a course of study at the vocational sector level.
For the reasons set out above, I am satisfied that the Tribunal appropriately identified the issue before it, addressed itself to the Primary Criteria and the Secondary Criteria, and engaged in an active process to identify whether the First Applicant satisfied either the Primary Criteria or the Secondary Criteria. If I am wrong about this, I regard the manner in which the Tribunal engaged with the question of whether the Diploma of Hospitality satisfied the Secondary Criteria as being so uncontroversial (in a similar way to Charlesworth J in Maan) that it did not warrant the Tribunal addressing the issue in any further detail than the manner in which it did.
For these reasons, I dismiss ground one of the grounds of review.
Ground 2
The second ground of review is as follows:
‘The Tribunal fell into jurisdictional error by failing to consider a claim or its component integers and/or failing to apply the relevant law to the First Applicant's circumstances.
PARTICULARS
a. In considering whether or not to exercise the discretion to cancel the First Applicant's Student Visa, the Tribunal failed to adequately consider all of the mandatory factors set out in an instrument made pursuant s.499 of the Migration Act 1958 (Cth).
b. Alternatively, in weighing the discretion to cancel the First Applicant's Student Visa pursuant to s. l16(1)(b) of the Migration Act 1958 (Cth) the Tribunal took into account irrelevant considerations when it was under no obligation to do so.
c. The Tribunal's errors in regards to this ground caused the Tribunal to ask itself the wrong questions and the answer to these questions were material to the outcome of the enquiry before it.’
In the First Applicant’s written submissions, this ground of review was advanced principally on the basis that the Tribunal had failed to consider all of the mandatory factors set out in Ministerial Direction No 53 (‘Direction’), which is a direction made pursuant to section 499 of the Act. In written submissions, the Minister contended that the Direction has no application to the cancellation of student visas: Iftikhar v Minister for Immigration [2018] FCCA 2924 at [38]. This was accepted by the First Applicant’s Counsel at the hearing and accordingly it is unnecessary to consider this issue any further.
The remaining issue under this ground of review was a complaint by the First Applicant as to the enquiries made by the Tribunal of the First Applicant to ascertain whether she was a genuine student. In particular, it was submitted that questions asked by the Tribunal of the First Applicant that related to her study habits or ability, or questions relating to the number and type of restaurants in India that she proposed to open, were not relevant matters that the Tribunal was required to consider. It was further contended that by making enquiries into those matters, the Tribunal asked itself the wrong questions which in turn led it into error. In oral submissions, Counsel developed this argument and contended that enquiries as to the genuineness of the Applicant were matters that the Tribunal ought not to have taken account of.
This ground of complaint appears to have, as its genesis, paragraph [18] of the Tribunal’s reasons. I set it out in full below for convenience:
‘18. At hearing I discussed with the applicant her study history. She said that her study at Deakin was really hard, she faced many difficulties and was working hard, studying 5-6 hours a day, but failed in all her units. She said she then moved to the Bachelor of Business at Stott's College in mid-2013. I asked why she had chosen this course and she said that she had consulted many agents and they told her that this was a good course. I asked if she had studied in the business field before and she said she had not. I asked what her plan had been after completing the Bachelor of Business. She said that she wanted to open a restaurant in India. I asked where specifically and she said in her home city of Ludhiana. I noted that there were many restaurants in Ludhiana. She agreed, she said that she would have to do something special, like Indian food and English food as well. I asked what she meant by English food and she said like Italian, two or three cuisines. I asked how she was going to do this and she said after studying the Bachelor of business she will be able to understand business, and after her Diploma of Hospitality she can handle the kitchen as well. I asked what her parents did and she said they did not have a background in business but were both doing government jobs in India. I asked what subjects she had enrolled in in 2014 and she said in a Certificate Ill and a diploma of hospitality at AC College. I asked why she considered she needed a Bachelor of business to open her own restaurant. She said because she had no knowledge of business. I asked her what specifically in the bachelor of business would help her open her own business and she said that if she gets the bachelor it can help her understand the basic level of business. I asked her what thinking she had done about the bachelor. She said it would help her with the business. I asked what area of the bachelor of business she would focus on, what would be her major. She said she did not know. I read to her from the Stott's college Bachelor of Business prospectus. She said she would major in management. I asked her why management and she said that in setting up a business she needed to manage all aspects of the business. I read to her from the prospectus which talks about planning, leadership, organising and controlling a business organisation to successfully attain its goals, and I noted that I was not sure that this major fitted with her plan to open a restaurant in Ludhiana. I asked her why she needed to study business to the Bachelor level, rather than a certificate or Diploma which might be more appropriate for her claimed future plans. She said that she needed the Bachelor as she was a subclass 573 visa holder. I asked if this was the reason and she said it was. I noted that this concerned me because it may indicate that she only said she wanted to do the course in order to comply with conditions, not because she had any genuine intention to study at the higher education level. I explained that I considered this a significant consideration because we were discussing whether her subclass 573 higher education visa should be reinstated, which required her to be a genuine student, studying at the higher education level. She said that she genuinely wished to study this course.’ (sic)
I have considered the Applicant’s submissions closely. I am not able to accept that by proceeding in the way that it did above, the Tribunal fell into error. My reasons for this are as follows.
First, the Primary Criteria set out in Schedule 2 to the Regulations mandates consideration of whether an applicant is a ‘genuine applicant’. Specifically, subclause (1A) of clause 573.223 of the Regulations requires the Minister to be ‘satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to… the stated intention of the applicant to comply with any conditions subject to which the visa is granted’.
Second, the questions asked by the Tribunal were relevant to determining whether the First Applicant was a ‘genuine applicant’.
Third, and of some significance, the chain of inquiry undertaken and referred to in paragraph [18] of the Tribunal’s reasons ultimately led to the First Applicant disclosing a matter that was highly relevant to whether she had a genuine intention to study at the higher education level. I have set out the full text of paragraph [18] above. The relevant information provided by the First Applicant following a series of questions, which led to the Tribunal having a query about the First Applicant’s genuine intentions to study, is as follows:
‘I asked her why she needed to study business to the Bachelor level, rather than a certificate or Diploma which might be more appropriate for her claimed future plans. She said that she needed the Bachelor as she was a subclass 573 visa holder. I asked if this was the reason and she said it was. I noted that this concerned me because it may indicate that she only said she wanted to do the course in order to comply with conditions, not because she had any genuine intention to study at the higher education level.’ (Emphasis added)
For the reasons set out above, I dismiss the second ground of review.
In light of my findings above, I dismiss the Application.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 13 September 2019
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