Kaur v Minister for Immigration

[2018] FCCA 3295

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3295

Catchwords:
MIGRATION – Student (temporary) (class TU) (subclass 573) visa – condition 8516 – primary applicant not enrolled in a principal course of study of a type specified by the minister – primary applicant’s complaints of a denial of natural justice and breach of procedural fairness not made out – application dismissed.

Legislation:

Migration Act 1958, ss.116(1)(b), 140, 384

Migration Regulations 1994, reg.1.40A, sch 2, cls 573.611, 573.616, 573.223, 573.231, condition 8516

Cases cited:
Rani & Ors v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379
Tien & Ors v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80

First Applicant: DALJEET KAUR

Second Applicant: ARMINDER SINGH DHALLA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 974 of 2016

Judgment of: His Honour Judge Wilson

Hearing date: 12 November 2018

Date of Last Submission: 12 November 2018

Delivered at: Melbourne

Delivered on: 14 November 2018

REPRESENTATION

First Applicant: In person

Solicitors for the First Applicant: None

Second Applicant: In person

Solicitors for the Second Applicant: None

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 11 May 2016 is dismissed.

2. 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 974 of 2016

DALJEET KAUR

First Applicant

ARMINDER SINGH DHALLA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed in this court on 11 May 2016, the applicants sought judicial review of a decision of the Administrative Appeals Tribunal made on 20 April 2016 pursuant to which the tribunal affirmed the decision of the minister’s delegate to cancel the first applicant’s higher education sector (subclass 573) visa. The tribunal found additionally that it had no jurisdiction with respect to the second named applicant.

2. The applicants relied on eight grounds of review.  In the passages below I have addressed each of those grounds of review. 

3. The applicants appeared before me with the assistance of an interpreter but otherwise not with legal representation. In essence, the first applicant told me that, in answer to my question what the tribunal did wrong, the relevant tribunal member did not listen to her and instead made a decision without taking into account her version of events.

Synopsis

1. For the reasons that follow, in my judgment the tribunal made no error in respect of the decision relating to the first applicant. It followed that after it affirmed the delegate’s decision it had no jurisdiction with respect to the second applicant. In those circumstances, I dismiss this application for judicial review and order the applicants to pay the minister’s costs.

Short factual narration

1. The primary applicant is a 27-year-old female citizen of India. On 25 December 2013, she applied for a student (temporary) (class TU) (subclass 573) visa under the streamlined visa processing framework with the intention of completing English for academic purposes (“EAP”) and a bachelor of health promotion at the University of the Sunshine Coast.

2. On 3 January 2014 the visa was granted subject to the conventional requirement that while holding the visa she continued to meet the criteria for its grant.

3. On 25 April 2014 the applicant completed the first part of her EAP course but failed to achieve the result required to progress to the second part of that course, and thenceforth she did not meet the entry requirements for the bachelor degree. That caused the University of the Sunshine Coast to cancel her confirmation to enrol for the bachelor of health promotion on 9 May 2014. Thereafter, she enrolled in a certificate III and IV in commercial cookery and a diploma of hospitality scheduled to commence in June 2014.

4. On 18 November 2014 the Department of Immigration and Border Protection sent the first applicant a notice of intention to consider cancellation under s 116(1)(b) of the Migration Act 1958 (“Act”). By that notice she was alerted to the contention that she may have been in breach of condition 8516 of a visa because she no longer was enrolled for a bachelors degree course or a masters degree course.

5. On 27 November 2014 the first applicant’s authorised representative for the time being and migration agent, Rahul Singh, requested the department to provide an extension of time for the applicant to respond to the notice. On 28 November 2014 the department granted an extension until 11 December 2014.

6. On 15 December 2014 Mr Singh provided a response to the notice from the department indicating a confirmation of enrolment for a bachelor of business which enrolment was procured the very same day commencing 6 March 2017.  Mr Singh, the agent, provided a written statement for the applicant with various supporting documents.

7. On 13 February 2015 the delegate cancelled the first applicant’s visa under s 116(1)(b) of the Act, finding that she had not complied with condition 8516 of her visa. That cancellation caused the secondary applicant’s dependant subclass 573 visa to be automatically cancelled on the same day.

8. On 18 February 2015 the applicants applied to the Migration Review Tribunal, now the Administrative Appeals Tribunal, for review of the delegate’s decision.

9. On 12 February 2016 the tribunal invited the applicants to a hearing on 22 March 2016.

10. On 17 March 2016 the first applicant’s authorised representative and migration agent, as then appointed, requested an adjournment of the hearing on the basis that he had made a freedom of information request to the department and required more time to prepare the matter. On 18 March 2016 the adjournment was granted and the applicants were invited to a new hearing on 20 April 2016.

11. The day before that hearing, that is to say on 19 April 2016, the applicants then representative requested a further adjournment of the hearing on the basis that the applicants were still waiting for the information requested pursuant to freedom of information legislation.  That request was denied.

12. On 20 April 2016 the applicants and an authorised representative and migration agent, newly appointed, appeared before the tribunal to give evidence and present arguments. On that day the tribunal affirmed the delegate’s decision.

The decision of the delegate in detail

1. Condition 8516 applied to the visa by operation of cls 573.611(a) and 573.616A(i) of sch 2 to the Migration Regulations 1994 (“regulations”).  That condition required the holder of the visa to continue to be a person who would satisfy the primary and secondary criteria for the grant of the visa.

2. Clause 573.223(1A) of sch 2 to the regulations required the first applicant to be an eligible higher degree student with a confirmation of enrolment in each course of study for which she was an eligible higher degree student. Relevantly, that required the first applicant to be enrolled in a principle course of study for the award of a bachelor’s degree or a master’s degree by coursework.

3. Clause 573.231 of the regulations provided that if the applicant was not an eligible higher degree student or did not have the required confirmation of enrolment, the applicant was required to be enrolled in or subject to a current offer of enrolment in a principal course of the kind specified for subclass 573.

4. The tribunal observed that the applicant had been unable to provide a copy of the purported FOI application. The tribunal recorded that it had possession of the first applicant’s file and that the file did not contain any FOI related documentation.

5. In assessing whether the first applicant was in breach of condition 8516, the tribunal identified that the criteria for the grant of the visa required the first applicant to satisfy cls 573.223(1A) or 573.231. The tribunal found at paragraph 14 of its reasons that the first applicant ceased to be enrolled in a bachelor’s degree or a master’s degree by coursework in May 2014, and was not enrolled in a bachelor’s degree course again until 15 December 2014.

6. The tribunal found that the first applicant was not enrolled in a principal course of a type specified by the minister in an instrument made under reg 1.40A of the regulations in the period from May 2014 until 15 December 2014. In paragraph 15 of its reasons the tribunal found that the applicant did not continue to satisfy cls 573.223(1A) or 573.231 in a seven month period and therefore failed to comply with condition 8516. In paragraph 16 of its reasons the tribunal expressed its satisfaction that the ground for cancellation existed under s 116(1)(b) of the Act.

7. The tribunal then concluded whether any discretionary power ought to be invoked in respect of the cancellation of the visa. In paragraph 17 of its reasons the tribunal adverted to the department’s procedures advice manual PAM3. Between paragraphs 20 and 24 of its reasons, the tribunal gave detailed considerations to the provisions of PAM3.

8. Among the evidence considered, the tribunal considered the first applicant’s evidence given during the hearing that she did not find the EAP course difficult and had not sought the assistance of the education provider or a student counsellor prior to the exam. It made various findings in paragraph 21 of its reasons about the applicant’s circumstances when measured against PAM3.

9. The tribunal considered the first applicant’s claim that she sought a release from the university so that she could transfer to another provider. The tribunal received the first applicant’s evidence that she could not obtain a release as she had not stayed for six months. The tribunal rejected that claim. The tribunal had regard to the fact that there was no evidence of a letter from the university outlining the reasons for refusing the release which would otherwise have been required under the university’s guidelines and, at paragraph 22 of its reasons, the tribunal indicated that it did not accept that the first applicant’s claims constituted exceptional circumstances beyond her control.

10. The tribunal went on to consider the first applicant’s claims that her agent had provided erroneous advice to her. At paragraph 23 the tribunal rejected her evidence, having regard to the fact that no complaint had been made to the Migration Agents Registration Authority. The tribunal also rejected the first applicant’s claim that she suffered from a phobia about contacting the department.

11. In paragraph 23 the tribunal rejected the first applicant’s claim that she had enrolled in vocational courses but that she had only a short time to enrol in some other course. The tribunal had regard to the fact that she was quickly able to enrol in the bachelor of business course on 15 December 2014 after receiving the department’s notice on 18 November 2014 of its intention to consider cancelling the visa. It took the view that the first applicant had ample time prior to 15 December 2014 to enrol in a higher education course.

12. In paragraph 24 of its reasons the tribunal considered that there were no extenuating circumstances beyond the first applicant’s control that led to the breach of the condition.

13. In paragraph 19 of its reasons the tribunal decided whether to exercise its discretion to cancel the visa and gave detailed consideration to the criteria outlined in PAM3. Its consideration of those matters was recorded between paragraphs 18 to 34 of its reasons. In paragraph 36 of its reasons the tribunal concluded that the visa should be cancelled and it affirmed the delegate’s decision to cancel the visa.

14. Turning to the secondary visa applicant’s circumstances, the tribunal decided that it had no jurisdiction under s 348 of the Act to consider the secondary applicant’s application for review. It found that the secondary applicant’s visa was automatically cancelled upon cancellation of the primary applicant’s visa by force of s 140(1) of the Act and it did not constitute a reviewable decision, citing various Full Court decisions including Rani & Ors v Minister for Immigration & Multicultural Affairs[1] and Tien & Ors v Minister for Immigration and Multicultural Affairs.[2]

The grounds of review in this case

[1] (1997) 80 FCR 379

[2] (1998) 89 FCR 80

Ground one

1. It is necessary to set out this ground, in terms (with errors in the original).  It was as follows –

   Visa applicant arrived in Australia holder of a student visa higher education TU 573.  I arrived in Australia to study Bachelor degree from University of Sunshine Coast.  I was enrolled in ELICOS leading to a bachelor degree where I failed a 10 weeks ELICOS exam and my enrolment was cancelled for failing ELICOS exam.  Visa applicant changed her course to a lower education to cert III and IV in commercial cookery as I was unable to secure an enrolment in any bachelor degree course.

2. Before me the first applicant did not separately address the grounds identified over the nine paragraphs of her grounds for seeking judicial review.  As a result, she did not develop ground one at a factual or legal level.  That was despite my invitation to her to tell me in her own words what she said the tribunal did wrong in this case.

3. The minister relied on written submissions in respect of ground one. The minister contended that the tribunal gave proper regard to the matters relevant to the exercise of its discretion to cancel the visa and that its findings were open to it.

4. The minister submitted that the tribunal gave extensive consideration to the first applicant’s enrolment being cancelled in determining that it was appropriate to cancel the visa. The minister said that the first applicant’s complaint in reality was a complaint that the tribunal failed to give sufficient weight to the first applicant’s evidence and that in so doing, the first applicant (in reality) invited me to engage in impermissible merits review.

5. I agree with the minister’s contentions on point.  It was patently apparent that the tribunal gave extensive consideration to all matters it was required to consider, including the first applicant’s specific circumstances.  I reject the contention that the tribunal failed in any way, particularly in the way asserted under ground one.

6. Ground one was devoid of merit.

Ground two

1. It is necessary to set out ground two, in terms (with errors in the original).  It was as follows –

   I appeared before the AAT along with my partner and a Registered Migration Agent and tried to present our argument that cancellation of enrolment at University of Sunshine Coast was beyond my control.

2. The minister contended that ground two was open on the material before it. The minister contended that condition 8516 mandated that the visa applicant continued to be a person who would satisfy the primary and secondary criteria, as the case required, for the grant of the visa. The minister said that the tribunal correctly interpreted the requirements of this condition and identified the applicable criteria that the applicant had failed to continue to satisfy, namely, cls 573.223(1A) and 573.231 of sch 2 to the regulations.

3. I agree with the minister’s contentions.  No error was made out.

4. Ground two was devoid of merit. 

The remaining grounds of review

1. For the balance of the grounds, the first applicant, under varying bases, advanced the contention that the tribunal somehow failed to afford her natural justice.

2. It is not necessary to set out all grounds. Suffice it to say that I reject each.

3. The applicant alleged that she was not afforded “natural justice” by the department as she was not sent a warning letter prior to the notice of intention to consider cancellation in November 2014. She said that she was not warned by the university that poor performance in the course then under study may result in cancellation of her visas.

4. It is necessary to point out that the minister was not responsible for whatever information the first applicant’s university may or may not have provided to her. The minister additionally contended that any requirements of procedural fairness which were owed to the first applicant had been met.

5. In paragraph 23 of its reasons the tribunal recorded that it was the first applicant’s responsibility to familiarise herself with, and ensure she continued to meet, the visa criteria for the class of visa that she had been granted.  In the same paragraph, the tribunal observed that it was open to the applicant to seek advice from the department about the consequences for her visa status when changing courses but that she chose not to do so.

6. The department was under no obligation to provide a warning letter to the first applicant about the consequences of changing courses. As it transpired, the department issued a notice of intention to consider cancellation of the first applicant’s visa. In that letter, the department made observations about her change of course and invited her to comment on why her visa should not be cancelled. The first applicant provided a written response, which was in fact taken into account by the delegate in making the cancellation decision.

7. In the course of the tribunal undertaking its review on the merits of the delegate’s decision, the applicant was in fact given an abundance of opportunity to provide evidence and present arguments in support of her case.

8. Far from the tribunal failing to observe its obligations in respect of procedural fairness, I was persuaded that the tribunal gave her ample opportunity to put before it whatever she wished the tribunal to consider. It discharged its obligations in terms of procedural fairness. It appeared to me that in reality the first applicant was expressing her disappointment with the outcome and that her real grievance was with the fact that the regulations were adhered to by reason of the first applicant’s failure to comply with her visa condition.

9. In my view, there was no merit in any of the complaints the first applicant made in grounds three to nine of her grounds of review. 

Conclusion

1. In my view, none of the grounds alleged disclosed the existence of jurisdictional error or were otherwise meritorious. In those circumstances, it is appropriate to dismiss this application for judicial review, which I do, and order the applicant to pay the minister’s costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Associate:  

Date:       14 November 2018