Kaur v Minister for Immigration

[2016] FCCA 3382

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3382

Catchwords:
MIGRATION – Judicial review application – Subclass 573 Higher Education Sector visa – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.116, 476

Migration Regulations 1994 (Cth), Sch 2, cll. 573.111, 573.231, 573.223(1A), Sch 8, condition 8516

Cases cited:

Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294
WZAVL v Minister for Immigration & Anor [2015] FCCA 2388
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760
Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495; (2000) 62 ALD 513
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534

Applicant: AMANDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINSITRATIVE APPEALS TRIBUNAL

File Number: PEG 582 of 2015

Judgment of: Judge Lucev

Hearing date: 22 December 2016

Date of Last Submission: 22 December 2016

Delivered at: Perth

Delivered on: 22 December 2016

REPRESENTATION

For the Applicant:	In person
Counsel for the First Respondent:	Ms E Tattersall

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 582 of 2015

AMANDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINSITRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore and later edited)

Introduction

1. Amandeep Kaur has filed an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 15 November 2015, is at Court Book (“CB”) 80-84. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to cancel Ms Kaur’s Subclass 573 Higher Education Sector visa (“Visa”).

Background

1. Ms Kaur, a citizen of India, was granted the Visa on 26 October 2013. The Visa was subject to condition 8516 of Schedule 8 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) (“Condition 8516”) which required Ms Kaur to continue to satisfy the criteria for the grant of the Visa: CB 44.

2. On 24 November 2014, the Department of Immigration and Border Protection (“Department”) issued Ms Kaur with a notice of intention to consider cancellation (“NOICC”) of the Visa on the basis of an apparent breach of Condition 8516: CB 8-14.

3. The NOICC noted that PRISMS records indicated Ms Kaur was no longer enrolled in a bachelor’s degree or master’s degree course and that she was no longer enrolled in a course of study that was a principal course of study of a type specified by the Minister for the Visa: CB 11.

4. On 1 December 2014, Ms Kaur responded advising that she had ceased enrolment at Murdoch University as she had not been able to settle into the new environment and her tuition fees were too high: CB 25. Ms Kaur provided evidence that she had obtained enrolment in a Diploma of Business and Advanced Diploma of Business at Perth Education Group Pty Ltd (trading as Technical College of Western Australia): CB 28-31, and claimed that those courses lead to a degree pathway: CB 26.

5. In the Delegate’s Decision on 28 January 2015, the Delegate decided to cancel the Visa under s.116(1)(b) of the Migration Act: CB 34-47.

6. On 3 February 2015, Ms Kaur lodged an application for review of the Delegate’s Decision with the Tribunal: CB 48-49. Ms Kaur appointed a migration agent to represent her and provided a copy of the Delegate’s Decision with the review application: CB 49.

Tribunal Decision

1. On 25 November 2015, following a hearing before the Tribunal two days earlier, the Tribunal Decision affirmed the Delegate’s Decision to cancel the Visa: CB 72 and 80-84.

2. The Tribunal found that Ms Kaur had breached Condition 8516 when she ceased to be enrolled, or be the subject of an offer of enrolment, in a higher education course: CB 81-82 at [11]. The Tribunal was therefore satisfied that the ground for cancellation in s.116(1)(b) of the Migration Act existed: CB 82 at [12].

3. In considering whether the discretion to cancel the Visa should be exercised, the Tribunal had regard to the relevant factors contained in the PAM3 "General visa cancellation powers" document and Ms Kaur's evidence to the Department and the Tribunal. The Tribunal made the following relevant findings:

   a)Ms Kaur's breach of Condition 8516 was significant because she had not engaged in the higher education study for which the Visa was granted and was not fulfilling the purpose of her travel to and stay in Australia: CB 83 at [28]. While the Tribunal accepted Ms Kaur's evidence that she was lonely and unwell, it did not accept that this justified her decision to abandon the higher education study for which the Visa was granted: CB 83 at [29];

   b)it was not satisfied that Ms Kaur had made adequate efforts to familiarise herself with the conditions of the Visa or that she took adequate steps to ensure she was compliant with the Visa conditions: CB 83 at [30];

   c)it was prepared to accept that emotional hardship may be caused by the cancellation of the Visa because Ms Kaur would not be able to pursue study in Australia: CB 83 at [31]; and

   d)it was not satisfied that Ms Kaur had a genuine intention of pursuing higher education study in the future: CB 83 at [32].

4. Considering Ms Kaur's circumstances as a whole, the Tribunal considered that the Visa should be cancelled: CB 84 at [33].

Judicial Review Application

1. Ms Kaur filed the Judicial Review Application on 17 December 2015. Ms Kaur relies on ten “grounds” in support of the Judicial Review Application. The first nine grounds recount the procedural and factual history of the matter before the Delegate and the Tribunal and raise no competent legal ground of review, that is, they do not raise, or even allege, jurisdictional error by the Tribunal.

2. In respect of ground ten, Ms Kaur contends:

   10. My appeal to this Honourable Court is to provide me with Natural Justice and set aside the decision of the Department of Immigration and Border Protection and set aside the decision made by the Administrative Appeals Tribunal (Migration Review Tribunal). There has been a judicial error by AAT as I do meet the SC573 criteria

3. Ms Kaur did not file written submissions, and in her oral submissions said no more than that she sought a second chance to enable her to continue her studies. When questioned as to what jurisdictional error was alleged in the Tribunal Decision, no jurisdictional error was identified.

Consideration

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   thereby affecting the Tribunal Decision and resulting in the Tribunal exceeding or failing to exercise the authority or powers given to it under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

2. Insofar as Ms Kaur seeks review of the Delegate’s Decision, this Court has no jurisdiction to review the Delegate’s Decision, which is a primary decision. Further and in any event, it is well established that if the Tribunal Decision is not flawed, it cures any defect and irregularities in the Delegate’s Decision: Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294; Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495; (2000) 62 ALD 513; Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314.

3. Ms Kaur's written ground ten contends that the Tribunal made a “judicial error", which the Court has taken to be a reference to jurisdictional error. The ground is merely an unparticularised assertion that the Tribunal made a mistake and cannot disclose jurisdictional error: WZAVL v Minister for Immigration & Anor [2015] FCCA 2388 at [26] per Judge Lucev; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J.

4. Section 116(1) of the Migration Act provides that a visa may be cancelled if specified circumstances exist, including that the holder has not complied with a condition of the visa: s.116(1)(b) of the Migration Act.

5. It was open to the Tribunal to find that the grounds for cancellation existed on the basis that Ms Kaur did not meet Condition 8516. Condition 8516 required that Ms Kaur must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the Visa.

6. To meet the requirements of the Visa Ms Kaur was required to be an eligible higher degree student: cll.573.231 and 573.223(1A) of Schedule 2 to the Migration Regulations. The term "eligible higher degree student" is defined at c1.573.111 of Schedule 2 to the MigrationRegulations which provided:

   eligible higher degree student means 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:

   (i) a bachelor's degree; or

   (ii) a masters degree by coursework;

7. It is evident from the Tribunal Decision that Ms Kaur did not meet the relevant criterion and that the Minister could cancel the Visa, and for the reasons set out above it was open to the Tribunal to affirm the Delegate’s Decision.

8. Ms Kaur’s ground of review that the Tribunal committed jurisdictional error in finding she did not meet the relevant criteria is, in the absence of any identifiable jurisdictional error, ultimately no more than a plea for impermissible merits review of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1. In the Court’s view, it is plain that Ms Kaur did not meet the Visa conditions, and the Tribunal correctly identified and applied the relevant provisions of the Migration Act and Migration Regulations in making the Tribunal Decision and arriving at a conclusion that was plainly open to it on the materials before it to affirm the Delegate’s Decision.

Conclusion and orders

1. The Court has concluded that here was no jurisdictional error in the Tribunal Decision. It follows that Ms Kaur’s Judicial Review Application must be dismissed, and there will be an order accordingly.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Date: 22 December 2016