Kaur v Minister for Immigration
[2016] FCCA 3289
•16 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION | [2016] FCCA 3289 |
| Catchwords: MIGRATION – Judicial review of decision of delegate to cancel Applicant’s Student (Subclass 357) visa – whether Applicant failed to comply with Condition 8105 – meaning of phrase “when the holder’s course of study or training is in session” – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.116(1)(b), 117, 118A, 119, 120, 121, 123, 125 Migration Regulations 1994 (Cth), regs.2.44, 2.55, cls.573.212, 573.223, sch.8, Condition 8105, 8202 |
| Cases cited: Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 Minister for Immigration and Border Protection v Srouji (2014) 139 ALD 267 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 |
| Applicant: | ANKUSHPREET KAUR |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 2704 of 2016 |
| Judgment of: | Judge Jones |
| Hearing date: | 15 December 2016 |
| Date of Last Submission: | 15 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 16 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lucas |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Applicant’s Application for judicial review is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2704 of 2016
| ANKUSHPREET KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a 21-year-old female citizen of India who, until 11 December 2016, held a Student (Subclass 573) visa (“the visa”). She was granted the visa on 27 May 2014.
On 11 December 2016, a delegate of the Minister for Immigration and Border Protection (“the delegate”) cancelled the applicant’s visa pursuant to s.116(1)(b) of the Migration Act 1958 (“the Act”). The exercise of this power by the delegate occurred whilst the Applicant, (who had been visiting her parents in India) was in the immigration clearance section of Tullamarine airport, Victoria. That is, she was neither overseas nor in Australia at the relevant time. Upon the cancellation of her visa, she was placed in an immigration detention centre in Melbourne, Victoria.
These proceedings were commenced by application for judicial review filed on 12 December 2016 at 6:23pm. The Applicant was scheduled to be returned to India close to midnight that day. The Orders sought in the application included injunctive relief restraining the Minister for Immigration and Border Protection (“the Minister”), or his officers, delegates or agents from removing the Applicant from the Commonwealth of Australia and a writ of certiorari quashing the decision of the delegate made on 11 December 2016.
On 12 December 2016, Orders were made restraining the Minister and his officers from removing the applicant from the Commonwealth of Australia, pending the resolution of the application for judicial review, and the Application was listed for hearing on 13 December 2016. This hearing was adjourned to 15 December 2016, to enable relevant material (including an audio recording and transcript of the interview conducted by the delegate with the Applicant on 11 December 2016) to be filed.
The material before the Court, which I have considered, is as follows:
a)an Amended Application for judicial review filed on 15 December 2016;
b)an affidavit of Carina Ford (the Applicant’s solicitor) affirmed on 12 December 2016, which attaches a copy of Form 1111 containing the decision of the delegate to cancel the Applicant’s visa;
c)an affidavit of the Applicant affirmed on 15 December 2016. This affidavit has annexed to it:
i)an itinerary of her flights from India to Melbourne (AK-1);
ii)an email dated 12 May 2016 from Ms Caterina Ruiz, International Student Counsellor, Holmesglen Institute, to the Applicant (AK-2); and
iii)an email dated 14 December 2016 sent by Ms Ruiz to the Applicant’s solicitor (AK-3);
d)an affidavit of Melissa Jane Gangemi (senior lawyer at Australian Government Solicitor) affirmed on 13 December 2016. This affidavit has annexed to it:
i)screenshots from the Department of Immigration and Border Protection’s (“the Department”) Integrated Client Systems Environment documenting the visa grant (MJG‑1);
ii)an audio recording of the interview between the Applicant and the delegate on 11 December 2016 ( MJG-2);
iii)a copy of notes taken by the delegate during the interview (MJG-3 and MJG-4);
iv)a copy of the document titled “Monitoring possible refused entries/detainees at the airport” dated 11 December 2016 (MJG-5);
v)copies of screenshots from the Applicant’s mobile phone which were taken by the officers of the Department whilst the Applicant was in immigration clearance (MJG-6);
vi)a copy of a screenshot of the Department’s Provider Registration and International Student Management System (PRISMS) (MJG-7);
e)a transcript of the audio recording of the interview conducted by the delegate with the Applicant on 11 December 2016; and
f)a copy of PAM 3 – Considering s.116 cancellation (Exhibit 1).
I have listened to the audio recording in Chambers. I informed the parties of this fact and advised them that, if necessary, the Court would re-listen to the audio recording in Court, as aspects of the audio may be relevant to the Court’s determination of the substantive proceedings. The parties informed me that this was unnecessary.
The Applicant was cross-examined.
Before turning to the factual background to this matter and the grounds for judicial review, it is appropriate to first set out the relevant statutory provisions.
Relevant Statutory Provisions
As noted earlier, the delegate decided to cancel the Applicant’s visa under sub-s.116(1)(b) of the Act, on the basis that he was satisfied that the Applicant had not complied with a condition of the visa; namely, Condition 8105.
Sub-section 116(1)(b) of the Act provides that, subject to immaterial exceptions, “the Minister may cancel a visa if he or she is satisfied that ... its holder has not complied with a condition of the visa”.
In the exercise of the power under sub-s.116(1)(b) of the Act, the Minister must firstly be satisfied that the visa holder has not complied with the condition of the visa. Where the Minister is satisfied that the condition of the visa has not been satisfied, the Minister must then proceed to decide whether the discretion to cancel the visa under that section should in fact be exercised.
Section 117 of the Act provides that a visa may be cancelled under sub‑s.116(1) of the Act in four circumstances: before the person enters Australia, when the person is in immigration clearance, when the person leaves Australia or while the person is in the migration zone.
Section 118A of the Act provides that the subdivision in which it is located (subdivision E), is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters which the subdivision deals with.
If the Minister is considering cancelling a visa under sub-s.116(1)(b) of the Act, the Minister is required by sub-s.119(1) of the Act to notify the visa holder that there appear to be grounds for cancelling the visa, giving particulars of those grounds and of the information because of which the grounds appear to exist, and inviting the holder to show within a specified time that those grounds do not exist or there is a reason why the visa should not be cancelled. Sub-section 119(2) of the Act requires that the visa holder is to be notified in one of the ways prescribed by regulations. Regulation 2.55 of the Migration Regulations 1994 (“the Regulations”), provides that one of the ways is “by handing it to the person personally.”
Section 120 of the Act provides that the Minister must give to a visa holder certain relevant information. This information is expressed to be information which would be a reason, or a part of the reason, for cancelling a visa which is specifically about the visa holder, not given by the visa holder and not disclosed to the holder in the notification under s.119 of the Act. Sub-sections 120(2) and (3) of the Act provide that :
(2) The Minister must:
(a) give particulars of the relevant information to the holder; and
(b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.
Section 121 of the Act relevantly provides:
(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.
Regulation 2.44 of the Regulations sets out the prescribed period in circumstances where a visa holder is in Australia or is outside Australia. Under reg.2.44(2) of the Regulations, if the visa holder is in Australia, the prescribed period is five working days, or if the visa holder is outside Australia the prescribed period as 28 days. The regulations do not prescribe a period where the visa holder is in immigration clearance.
Under s.123 of the Act, if the visa holder does not respond to the invitation within the specified time, the Minister is permitted to make the decision about cancellation without taking any further action about the information.
Section 125 of the Act provides:
If a non-citizen in immigration clearance who is not taken into questioning detention is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance.
In Minister for Immigration and Border Protection v Srouji (2014) 139 ALD 267 (“Srouji”), Jagot J observed at [21], in respect of the statutory provisions relating to the process for the cancellation of a visa whilst a person is in immigration clearance, that they do “not contemplate a person remaining “in immigration clearance” for any lengthy period of time”.
Background
The following factual background is taken from documentary material provided by the parties, together with evidence given by the Applicant. It is not subject to any dispute.
The Applicant initially applied for a Certificate IV in programming at Holmesglen Institute and a Bachelor of Information Technology at the University of Canberra (“UC”). She could not cope with the study and on 13 January 2015 she requested, and was granted, a release letter from UC to continue her studies at Holmesglen Institute for Certificates III and IV in Commercial Cookery, a Diploma in Hospitality and a Bachelor of Hospitality Management. The expiry date of the visa was on 15 March 2018. It must be noted that a Subclass 573 visa is a visa for the purpose of study in higher education.
On 20 February 2015, the Applicant was issued Certificate of Enrolments (CoEs) for a Certificate IV in Commercial Cookery and a Diploma of Hospitality. She completed her Certificate IV in Commercial Cookery. Her studies for the Diploma course commenced at the beginning of 2016. This course was 12 months in duration.
The Applicant failed various subjects in Semester 1 of the Diploma course. In an email dated 11 May 2016 (MJG-6), she gave the following explanation:
Hi Michael
I am sorry about the continued absence from classes
I have a lot that has happened in my personal life last couple of months or so. I have had a marriage breakdown, separated from my husband, have had police involved twice for domestic issues. I have been traumatised by the events. I was left without any money and made to leave home. I have had to live at a friend’s place. I am in the process of seeing a lawyer and notifying the immigration department. I am since trying to put myself together and seek counselling.
I desperately want to get everything back in order, I am just a bit too blank right now and need help setting things right.
I haven’t been this irregular at school since my first enrolment at Holmesglen which has been around two years.
Ankushpreet
In cross-examination, the Applicant said the involvement of the police was for the purpose of collecting her belongings.
During the period between August and September 2016, the Applicant worked at a restaurant five days a week from 12:30pm to 10:00pm.
The Applicant arrived back in Melbourne, after a trip home to see her family in India, at 9:40am on 11 December 2016. She departed from New Delhi at 12:45pm on 10 December 2016. Her flight transited through Guangzhou, China. The length of the flight was approximately 14 hours and she had flown through the night.
The Applicant deposes that whilst she was in immigration clearance at Tullamarine airport, she was approached by a Department officer.
The Applicant was then interviewed by the delegate. In brief the following sequence of events occurred:
a)at 12:35pm the delegate commenced to conduct what the Minister describes as a “preliminary interview”. Having confirmed the Applicant’s personal details, the delegate stated, “the reason for this interview is to find out the purpose and details of your travel to Australia.” This interview continued until 12:57pm. The delegate informed the Applicant that he would be speaking to his manager and returning at 1:44pm to continue the interview;
b)at 1:44pm, the delegate recommenced the interview with the Applicant and explained and served on her a Notice of Intention to consider cancelling a visa (NOICC). Having explained the grounds for this notice, the delegate informed the Applicant that she would have 10 minutes to consider why her visa should not be cancelled. The Applicant was provided with Part A of Form 1111, signed by the delegate. The Applicant declined to sign the document. This interview ended at 1:50pm;
c)at 2:08pm, the delegate recommenced the interview process and informed the Applicant that now was the opportunity for her to comment on why the visa should not be cancelled. This interview ended at 2:13pm; and
d)at 2:59pm, the Applicant was informed by the delegate that he had decided to cancel the visa. The Applicant was given a copy of the decision, signed by the delegate. The Applicant did not sign this decision.
The Delegate’s Decision
Form 1111, which contains the delegate’s decision, is in three parts:
a)Part A - Notice of intention to consider cancelling a visa;
b)Part B - Record of decision whether to cancel visa; and
c)Part C - Notification of decision to cancel visa under s.116 of the Migration Act 1958. In this part, the delegate identified that his decision to cancel the Applicant’s visa pursuant to s.116(1)(b) of the Act was on the basis that he was satisfied that the applicant had breached Condition 8105 of sch.8 to the Regulations (“Condition 8105”).
Condition 8105 relevantly provides that:
a)a visa holder “must not engage in any work in Australia before the holders course of study commences”: Condition 8105(1A);
b)a visa holder “must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session”: Condition 8105(1).
In Part A of Form 1111, the delegate relevantly recorded at item 6 that he was relying on sub-s.116(1)(b) of the Act because it appeared the Applicant had breached Condition 8105. In the box which is prefaced by the statement, “Include the specifics (particulars) of the ground and the information because of which the ground appears to exist”, the delegate stated the following:
You have arrived at Melbourne Airport as the holder of a Subclass 573 Student visa. Your Subclass 573 visa is subject to Condition 8105 which states the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session…
…
During an interview with the Department of Immigration and Border Protection (DIBP) at Melbourne Airport, you have admitted to working from 12.30 pm to 10 pm five days per week during the months of August and September of this year. Evidence located in your phone confirmed you worked in excess of 40 hours per fortnight during this period.
Based on the above information, there appears to be a ground for cancelling your Subclass 573 visa because you have not complied with Condition 8105 of your visa because you have engaged in work in Australia for more than 40 hours a fortnight and also because you worked whilst not holding a certificate of enrolment and were not enrolled in any further course of study. These activities are not within the scope of activities allowed under Condition 8105...
In Part B of Form 1111, the delegate identified, under the heading, “Grounds for cancellation”:
The visa holder did not dispute that a ground exists for cancellation of her subclass 573 visa.
This is not strictly correct. The transcript of the interview records that the Applicant agreed that in August and September 2016 she worked 47.5 hours a week (Point 175) and responded, when asked by the delegate whether she knew what the work limitations on her visa were, that they were 20 hours (Points 177 and 178). The reality is, however, that the Applicant was aware she had worked in excess of the work limitations on her visa.
The delegate recorded that he was satisfied that there were grounds for the cancellation of the Applicant’s visa under sub-s.116(1)(b) of the Act, because he was satisfied that she had breached Condition 8105.
Under the heading at item 7, “Details of the evidence and findings about why the delegate is satisfied GROUNDS for cancellation DO EXIST”, the delegate repeated that which he recorded under Part A (see [32] above).
At Part B of Form 1111, the delegate relevantly recorded at item 8 under the heading, “Provide a summary of the reasons the visa holder gave why their visa should not be cancelled”:
The visa holder stated she had kept her college apprised of why she was not studying.
The visa holder admitted to breaching Condition 8105 of the visa but that she did so due to depression and the fact that her husband had taken all of her money. The visa holder stated that she was therefore unable to pay her rent or medical expenses without working in excess of 40 hours per fortnight.
The visa holder stated that she married her husband against her parents’ wishes and was initially unable to discuss the circumstances with them but was encouraged by her college counsellor to return to India to discuss her circumstances.
The visa holder stated that she has always complied with conditions previously and will in future.
At item 9, the delegate relevantly recorded, regarding the Applicant’s statement on her incoming passenger card that she was in Australia for education:
The visa holder stated on her Incoming Passenger card that she was in Australia for Education.
Nevertheless, the visa holder does not hold a certificate of enrolment. She has had almost six months to arrange a COE but has not yet done so. Whilst I note the hardship the visa holder has encountered, by working she has demonstrated she is not incapable of taking positive action to help herself.
I therefore lend this factor little weight.
At item 9, under the heading “Extent of compliance with visa condition (whether the visa holder has been generally compliant)”, the delegate recorded:
The visa holder has admitted to not complying with visa condition 8105. I therefore lend this factor little weight.
At item 9, the delegate also relevantly recorded, with respect to the degree of hardship which may be caused to the visa holder, her family members and others:
The visa holder has made no specific claims regarding hardship in relation to potential visa cancellation….
I acknowledge that the cancellation of her Subclass 573 visa may result in some inconvenience and/or financial or emotional hardship. However; the visa holder applied for and was granted a visa for the purpose of study, she has not studied or held a COE as required by her visa for almost 6 months. I do not consider the likely hardship encountered to be excessive in light of the visa holder’s non-compliance with visa conditions 8105 and 8202 so lend this factor little weight.
At item 9, the delegate relevantly recorded, with respect to extenuating circumstances:
The visa holder has stated she suffered from depression and that she worked in breach of Condition 8105 due to financial problems caused by her separation from her spouse.
Evidence on her phone supports that claim as well as the fact she may have suffered domestic violence. Whilst I accept that this is indeed the reason which led to her ceasing study and working in breach of visa conditions, I note the visa holder has had many months in which to resolve her status yet has chosen not to do so. The visa holder has both worked and travelled thus demonstrating she is not incapacitated and is able to take positive action to help herself.
Nevertheless, in light of the visa holder’s circumstances, I lend this factor some weight.
With respect to the Applicant’s behaviour, the delegate recorded that she had been generally compliant and gave this some weight. Finally, the delegate referred to the legal consequences of a decision to cancel the visa and found that any inconvenience would not be excessive in light of her non-compliance with Condition 8105 and stated he gave this factor little weight.
At Part C of Form 1111, the delegate recorded that he was satisfied that grounds existed for cancelling the visa under sub-s.116(1)(b) of the Act because he was satisfied the Applicant had breached Condition 8105. He recorded the cancellation of the visa on 11 December 2016.
Grounds for Judicial Review
The grounds for judicial review are as follows:
1. The Respondent failed to have regard to relevant considerations, being claims made by the Applicant as to why the Respondent should exercise the discretion not to cancel the visa. The Respondent thereby constructively failed to exercise jurisdiction, denied the Applicant procedural fairness or failed to carry out his statutory task.
Particulars
1.1 Departmental policy requires that a delegate considers “any response given by the visa holder” and that “[i]f the visa holder provides information in their response that requires a delegate to make an inquiry (for example, of an employer) for the purposes of establishing a critical fact, the delegate must make every reasonable effort to make this inquiry before proceeding to make a decision whether or not to cancel.”
1.2 Departmental policy also sets out that delegates should take into account nine factors in deciding whether to cancel a visa. These factors are reflected in Form 1111, which a delegate must complete in making her decision.
1.3 The Respondent was presented with evidence from the Applicant demonstrating her communications with her course provider and the circumstances surrounding her absence from class. The Respondent did not take this into account, nor did he make enquiries with the course provider regarding that communication. Such enquiries could easily have confirmed the Applicant’s claims, and satisfied the Respondent’s obligations. Further, the Applicant advised the Respondent that he could contact anyone in her college for confirmation of her claims. The Respondent failed to make any such obvious and critical inquiry.
1.4 The Respondent did not have regard to Departmental or PRISMS records to corroborate the Applicant’s history of study or compliance with her visa Conditions. Further, the Respondent failed to have regard to the Applicant’s claim that she had completed previous studies before her Diploma and attended classes regularly up until the period of time when she had claimed issues with her partner. The Respondent’s consideration of her Applicant’s compliance with conditions was incomplete: despite having material before him, he limited his consideration to the Applicant’s alleged non-compliance with Condition 8105 and even then, the Respondent did no more than restate his opinion that the grounds for cancellation existed, and failed to consider whether the Applicant’s previous compliance with her visa conditions was a consideration that weighed in favour of not cancelling the visa.
1.5 The Respondent did not have regard to the Applicant’s claim that did not realise that he enrolment had lapsed, that she had spoken to the College counsellor and the head of enrolments about seeking a deferral of her studies and, that she was given an undertaking to allow her to re-enrol next year. The Applicant believed she had deferred her studies with the knowledge of her course provider. She therefore did not consider that her work was in breach of Condition 8105.
1.6 The Respondent stated in his decision that the Applicant had not made claims relating to the hardship that would be caused by cancellation. The Respondent failed to consider the numerous claims set out by the Applicant, including her intention to continue study, her psychological history, and her history of family violence.
1.7 The Respondent failed to take into account the Applicant’s contrition as a factor lending itself to exercising discretion in her favour.
1.8 In addition, given the timeframe of this process, the Respondent could not have properly considered the Applicant’s claims. The Applicant was formerly interviewed from shortly after her arrival in Melbourne at 9.40am. The preliminary interview commenced at 12.35pm and concluded twenty-two minutes later. The interview in which the Applicant was formally asked for her response to the NOICC was no longer than five minutes. Twelve minutes after the conclusion of that interview, at 2.25pm, the delegate made a decision to cancel the Applicant’s visa.
2. The decision of the Respondent to cancel the Applicant’s visa was legally unreasonable.
Particulars
2.1 Had the Respondent taken into account the claims raised by the Applicant as articulated in Ground 1 and afforded the Applicant procedural fairness having regard to the matters raised in Ground 3, it could not have reached the conclusion that it did within the range of rational or reasonable decisional freedom.
3. The Respondent did not afford the Applicant procedural fairness. She was denied the opportunity to respond meaningfully to the Notice of Intention to Consider Cancellation (“the NOICC”) issued to her pursuant to s.119 of the Migration Act 1958 (“the Act”).
Particulars
3.1 The Respondent did not comply with s.121(3)(b) of the Act as the time allowed for the Applicant to respond to the NOICC was not a ‘reasonable’ period having regard to the circumstances particular to the applicant including that:
3.1.1 The Applicant is a twenty-one-year-old female national of India. She was visible distressed by the process and the Respondent was on notice that she was the victim of family violence and suffered from depression. She was denied any opportunity to speak to a friend or support person and had her phone confiscated.
3.1.2 The Applicant was given the NOICC at 1.48pm, and an interview was scheduled for 2.00pm. The interview commenced at 2.08pm and concluded at 2.13pm. Given the Applicant’s age, obvious distress, known mental health issues and history of family violence and, given the complexity and stressful nature of the process, this was an unreasonably brief period to allow the Applicant before she provided a response, and was in breach of s.121 of the Act.
4. The Respondent misconstrued the law and erred such as to constitute jurisdictional error. The Respondent’s error of law led to a breach of:
a. Section 116 of the Act in that grounds for cancellation did not exist, and
b. Sections 119 and 120 of the Act, which requires certain information to be given to a person regarding the potential cancellation of their visa.
Particulars
4.1 Condition 8105 requires as follows:
(1A) The holder must not engage in any work in Australia before the holder’s course of study commences.
(1) Subject to subclause (2), the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session.
(2) Subclause (1) does not apply:
(a) to work that was specified as a requirement of the course when the course particulars were entered into the Commonwealth Register of Institutions and Courses for Overseas Students; and
(b) in relation to a student visa granted in relation to a master’s degree by research or doctoral degree if the holder has commenced the masters degree by research or doctoral degree.
(3) In this clause:
fortnight means the period of 14 days commencing on a Monday.
4.2 The Respondent stated the ground for cancellation of the Applicant’s visa as follows:
because you have engaged in work in Australia for more than 40 hours a fortnight and also because you worked whilst not holding a certificate of enrolment and were not enrolled in any further course of study.
4.3 This is a misconstruction of the limitation on work “when the holder’s course of study or training is in session”. The Respondent appears to conflate breaches of separate conditions and fundamentally misunderstands the law.
4.4 The Respondent did not, therefore, comply with ss.119 and 120 of the Act, which required him to “give particulars” of the grounds for cancellation, to give relevant information that would be the reason, or part of the reason, for cancelling a visa, and to “ensure as far as reasonably practicable, that the holder understands why it is relevant to the cancellation”.
4.5 Further, it was not reasonable possible for the Respondent to conclude that a breach of Condition 1805 had occurred. Grounds for cancellation did not exist.
4.6 There was no suggestion that Ms Kaur worked before her course of study had commenced or during any fortnight while her course of study or training was in session. Ms Kaur had commenced her study towards her Diploma, but the course of study was not in session. The Applicant had the agreement and understanding of her provider that she could take a break from her studies given her present personal situation and would re-commence her studies next year.
4.7 There is no basis upon which the delegate could find that Ms Kaur breached Condition 8105. Condition 8105 does not limit a visa holder’s work “whilst not holding a certificate of enrolment and were not enrolled in any further course of study”. The delegate has fatally misconstrued and misapplied the law.
Consideration
Ground 1
Whilst acknowledging that the decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) concerned the duty of a Tribunal upon review of a decision of a delegate of the Minister, Counsel for the Applicant submit that the statement of the High Court at [25] applies to the decision of a delegate of the Minister to cancel a visa. At [25], the High Court said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire,” that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
(footnotes omitted)
The Applicant also relies on PAM 3 (Exhibit 1). Whilst I was not taken to the particular part of this Guideline, I assume it is the part which provides:
If the visa holder provides information in their response that requires the delegate to make an enquiry (for example, of an employer) for the purposes of establishing a critical fact, the delegate must make every reasonable effort to make this enquiry before proceeding to make a decision whether or not to cancel. This is the case even if the visa holder is in immigration clearance.
The Applicant relies on the decision of Mansfield J in Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 (“Kaur”). The Applicant argues that the decision is relevant because, firstly, his Honour directed attention to the requirement of a Tribunal (considering on review a decision by a delegate to cancel a visa) to consider all of the material available to it. At [12], his Honour said:
The material available to it in favour of the exercise of the discretion not to cancel the visa would have included, to the extent that it was relevant and given weight, the fact that the appellant had passed her previous courses despite apparently working longer hours than permitted, her personal circumstances (namely that her only parental support could come from her mother, and that her mother’s illness prevented it from being provided to her and, she said, she had to support her husband who was also unable to work) and her clear contrition so that it was unlikely that she would repeat the sort of conduct in breach of Condition 8105 again.
Secondly, it is argued that his Honour identified a further basis upon which a Tribunal might demonstrate jurisdictional error on its part. At [41], Mansfield J stated:
The first is to consider whether the Tribunal ignored relevant material: Craig v South Australia (1995) 184 CLR 163 at 179, or failed to consider the entirety of the appellant’s claim as made: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (MZYTS) at [31]-[36] per Kenny, Griffiths and Mortimer JJ. Their Honours described the error as failing to engage in the statutory task of the Tribunal, by not having regard to the facts and merits of the claim: cf Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22]. The second is to consider whether the Tribunal’s exercise of discretion was unreasonable in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), especially per French CJ at [28] where his Honour said:
After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision.
The Applicant submits that she gave evidence regarding her communications with her course provider and counsellor, Ms Ruiz, which the delegate failed to take into account or to take steps to make an obvious inquiry with her. It is submitted that the emails (contained in annexures AK-2 and MJG-6) were corroborative evidence which the delegate failed to either acknowledge or engage with.
There is no doubt that the emails were before the delegate and dealt with the Applicant’s personal circumstances. They did constitute corroborative evidence of the matters the Applicant attested to during the course of her interview. These matters included the fact that she was depressed, had separated from her husband and was financially destitute and, for that reason, she commenced working the hours she worked in August and September 2016. She also said that because she was depressed, she was unable to study and failed her Diploma subjects.
However, it seems to me, that although the delegate did not specifically refer to those emails, his decision discloses that he was aware of this corroborative evidence regarding the Applicant’s circumstances. This is evident in Part B of Form 1111, in item 8 (see the extract at [37] above) and item 9 (see the extract at [38] above). In this latter extract, the delegate noted that the Applicant “may have suffered domestic violence”, even though an examination of the corroborative emails and transcript of the interview discloses that the Applicant never made this claim. In her email dated 11 May 2016, she referred to “domestic issues” (see [24] above).
Other matters the Applicant submits were not considered by the delegate were her claims or evidence that she studied regularly until June 2016 (Transcript, points 76 and 83), and her communication with Ms Ruiz about a future pathway for study; that is, she was advised she should defer and commence studying the Diploma of Hospitality in the February 2017 intake (Transcript, points 88 and 112).
I am satisfied that the delegate did not expressly consider the Applicant’s claim that she studied regularly. However, given the Applicant’s evidence of regular study comprised essentially of the completion of Certificate IV in Commercial Cookery, I do not accept that the delegate’s decision not to give weight to the Applicant’s compliance with the visa amounts to jurisdictional error. On the evidence, the Applicant’s study of subjects in the Diploma of Hospitality was marked by sporadic attendance and failing to pass relevant subjects in Semester 1, 2016.
Accordingly, I am not satisfied that the delegate failed to take into account those personal circumstances. To this extent, this case is to be distinguished from the cirumstances confronting the Court in Kaur.
The next and critical issue raised by the Applicant is what she submits is the failure of the delegate to take any steps to make enquiries of Ms Ruiz.
There is no doubt that the Applicant referred, during the interview with the delegate, to the role that Ms Ruiz played both in relation to assisting her to deal with her depression and future study pathway. There is no doubt that the Applicant referred to a letter she said Ms Ruiz had given her, which was in her luggage. I accept that the delegate neither took steps to contact Ms Ruiz or ask the Applicant to locate and provide the letter to him.
The question is whether this constituted a failure to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained”: SZIAI.
It is relevant to note that the interview in immigration clearance occurred on a Sunday, and the Applicant deposes that she did not have Ms Ruiz’s telephone number.
It must be accepted, as harsh as this may appear, that an interview conducted for the purposes of a cancellation of a visa, while a visa holder is in immigration clearance, it to be conducted in a timely fashion. It seems to me somewhat absurd to expect the delegate to make inquiries on the next working day via Ms Ruiz’s email address.
In any event, on this matter the Applicant has not attached to her affidavit filed on 15 December 2016, a copy of the alleged letter in her luggage. Rather, she has provided to the Court an email composed by Ms Ruiz and dated 14 December 2016 (AK-3). One can reasonably anticipate that the content of this email is the information Ms Ruiz would have provided the delegate if he had contacted her.
The email relevantly said:
… I saw Ms Kaur for mental health and safety concerns from the 17/5/2016 to 27/9/2016 as she was a victim of domestic violence and was experiencing severe mental health concerns as a result of the trauma she endured.
…
Ms. Kaur accessed counselling in May 2016, she had failed her semester 1, 2016 studies in the Diploma course and requested for her enrolment to be deferred for Semester 2 2016 on compelling and compassionate circumstances (mental health and safety issues). Ms. Kaur was provided support from student services, including counselling and referrals for external support. Ms. Kaur saw a GP and private psychologist and was recommended to access domestic violence support.
I assisted Ms Kaur to apply for the deferral and then I was told that she needed to submit an application for the Diploma again so it could be deferred. The reason for this was that she completed the CoE for her Diploma, but did not pass the semester and this is why it showed up on the system as completed. International centre staff contacted the Hospitality department to ensure that the student could repeat the subjects she had failed. It was determined that Ms Kaur was to complete her diploma in Semester1, 2017 when the subjects she needed to complete the Diploma were to be offered. However, for this to occur she was to submit an application for the Diploma of Hospitality and the Bachelor of Hospitality management.
Ms. Kaur lodged an application for the Diploma of Hospitality and the Bachelor of Hospitality Management as instructed, and was provided with a letter of offer, however Ms. Kaur did not accept the offer nor pay her tuition fees and hence no CoEs were issued to her. Holmesglen is not sure if Ms. Kaur received this letter as no communication was received.
Holmesglen is happy to have Ms. Kaur resume her studies and was always made aware that this was to occur in Semester 1, 2017. The units that she failed in her Diploma studies were not available in Semester 2 of 2016 and so for this reason, as well as her mental health concerns it was not possible for her to return to study prior to this.
…
I fail to see how any enquiry made by the delegate would have made a sufficient link to the outcome in this case. Other than the matters referred to by the delegate in his decision, the gist of the email is that an alternative pathway was provided to the Applicant to resume her Diploma studies in the first semester of 2017, but the Applicant had failed to take the necessary steps to ensure that this would occur. The delegate, without making an enquiry, was (unwittingly) correct in concluding at Item 9 that the Applicant had almost six months to arrange a COE but had not yet done so.
Particular 1.5 to Ground 1 flies in the face of direct evidence by way of email on the Applicant’s iPhone, which makes it clear that her enrolment in the Diploma course had lapsed.
I find Particular 1.6 to Ground 1 unpersuasive. The hardship is one which follows from the cancellation of the visa. It is true that the Applicant may well not have been able to pursue her studies in Australia. But this seems to be an inevitable consequence of any cancellation of a student visa. I fail to see the relevance of her “history of family violence” and “psychological history”. If anything, the Applicant will be returned to her family in India who appear to have supported her during her time in India.
In relation to Particular 1.7 of Ground 1, in my opinion, the delegate considered the Applicant’s contrition. This is evident in the record at item 8 (see [37] above).
Finally, I cannot see how the time the delegate took to make this decision can support a conclusion that he failed to consider the Applicant’s claims. Accepting such an argument would open up decisions given ex tempore to attack on appeal that a Court failed to consider grounds for judicial review. In any event, the estimate of time the Applicant relies on of 12 minutes (in Particular 1.8 of Ground 1) does not reflect the times recorded in the transcript. The time between the last interview and the giving of the decision is, according to the transcript record, around 45 minutes.
I am not satisfied that the delegate engaged in jurisdictional error because of Ground 1.
Ground 2
This ground relies on the acceptance by the Court of Ground 1 and Ground 3. I have found that Ground 1 does not give rise to jurisdictional error. For the reason I will shortly turn to, I am not satisfied that the delegate engaged in jurisdictional error on the basis of Ground 3.
I find that the delegate’s decision was one upon which reasonable minds may have differed, but was not one which met the stringent test of legal unreasonableness.
Accordingly, I find there is no jurisdictional error on this ground.
Ground 3
Section 121(3)(b) of the Act requires that, where there is no prescribed period of time, an invitation to a visa holder to respond to a NOICC, or the information on which it is based, to show why the visa should not be cancelled, shall take place within “a reasonable period of time”. As noted earlier, where the invitation is issued in “immigration clearance”, there is no prescribed period.
The question whether the applicant was given a reasonable period of time to respond at an interview as required by the s.121(3)(b) is an objective one: Srouji at [22].
In Zhaou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 748 at [78], Kenny J said:
..what is a reasonable period for the purposes of s 121(3)(b) of the Act would fall to be considered in light of all the circumstances of the case as they existed when the time of the interview is fixed. These circumstances may include the nature of the cancellation grounds that the decision-maker is considering, the personal attributes of the visa holder (i.e., age, facility in the English language, physical infirmity or well-being), the presence of an interpreter or lawyer, the visa holder’s familiarity with the matters of concern to the decision-maker, the circumstances in which the decision falls to be made, and the availability of matters corroborative of the applicant. Regard would also be taken of the statutory context and purpose of s 121(3)(b) of the Act.
The applicant submits that the period of time between the giving of the NOICC and the resumption of the interview for the purpose of her responding to that notice, was unreasonable having regard to all of the circumstances. The time period between the serving of the NOICC and the resumption of the interview for the purpose of her responding to that notice was, according to the transcript of the interview a period of 18 minutes.
These circumstances the Applicant relies on are;
a)her age;
b)the fact that after a lengthy flight from India to Australia she was tired;
c)her distress;
d)“her known mental health issues” and “history of family violence”;
e)the absence of a lawyer or support person. In her affidavit filed on 15 December 2016, the applicant deposes that she said she wanted to speak to her friend and that they declined [19]; and
f)the stressful nature of the process.
What is a reasonable period, will of course depend on the particular circumstances of each case. Some of the circumstances relied on by the applicant are those which moves the primary Judge in Srouji to find that the provision of 20 minutes to respond was unreasonable. The circumstances the primary Judge had regard to, were the Applicant’s physical health condition, the length of the plane journey to Australia, the refusal of the delegate to consider information provided by a support person of the Applicant who was apparently waiting outside the terminal of the airport and the fact that the preliminary interview conducted before the serving of the NOICC gave the applicant no indication of the critical issue which may result in cancellation of his visa.
In Srouji, Jagot J said that he was unable to accept the reasons or the conclusions of the primary Judge. His Honour stated at [24]:
… The reasons do not give any weight to the statutory scheme or the numerous provisions within it indicating that it is not contemplated that a person may remain in immigration clearance for a lengthy period. While it was necessary to consider Mr Srouji’s tiredness, ill health, the late hour, and how long he had already been questioned these factors had to be weighed in the overall statutory context. Further, it is not to the point that the evidence of Ms Al-Ayoubi may have corroborated Mr Srouji’s contentions. The issue is whether the period of time Mr Srouji was given to respond to the invitation to comment on the notice of proposed cancellation was a reasonable period. The period of 20 minutes to respond was not unreasonable given that Mr Sirouji had dealt with the interview, had asked for and had been offered rest breaks, was not in any apparent physical distress and, of course, was in immigration clearance at the airport under a statutory regime having the manifest intention that no-one should remain in immigration clearance, their immigration status undetermined, for any lengthy period.
His Honour also rejected the primary Judge’s finding that the interview, preceding the serving of the NOICC is subject to the requirements of procedural fairness. At [28], Jagot J stated:
In terms of the interview preceding the giving of the notice, it is not apparent to me why procedural fairness required Mr Srouji to be told that he was being interviewed in order to determine whether to issue to him a notice inviting him to comment on reasons for the proposed cancellation of his visa. This is to impose an obligation to give notice of a potential notice. The case is analogous to Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2010) 195 FCR 318; [2011] FCAFC 88 in which held that the issuing of a show cause notice was “the beginning of the process which engages the appellant’s entitlement to be accorded procedural fairness”. In the present case, the beginning of the process requiring Mr Srouji to be accorded procedural fairness was the notice given under s 121. Even if this be wrong, I would conclude that the giving of the notice under s 121 and the opportunity Mr Srouji had to respond cured any initial denial of procedural fairness. The relevant decision was not a decision to suspect that there might be circumstances indicating Mr Srouji’s visa should be cancelled. The relevant decision was the decision to cancel his visa, which Mr Srouji was given both notice of and an opportunity to respond before the visa was cancelled. In any event, I do not accept that Mr Srouji was not given adequate notice of the purpose of the interview. “Immigration clearance” might be a term of art, as the primary judge said, but when the interview preceding the giving of the notice is considered as a whole it is apparent that Mr Srouji was put on notice that the issue was whether he would be cleared to enter Australia despite having a visa.
Turning to the Applicant’s circumstances. The Applicant was young, she was 21 years of age. I accept that the delegate was on notice that she had suffered from depression. The Applicant, at the preliminary interview, informed the delegate that the previous month she had been taking medication for depression, that the depression had been diagnosed by a doctor and that she was not presently taking medication (Transcript, points 22 to 30). She was asked by the delegate whether she was well enough to be interviewed today. She responded “Yes”. The delegate informed her that if there is any time she did not feel well or unable to continue, to let him know. She responded “Yes”, indicating she understood what he had said (Transcript, points 31 to 34).
The applicant had had a lengthy 14 hour flight from India to Australia, arriving at 9:40 a.m at Tullamarine airport. I accept that she was tired when the interview process commenced at 12:35 pm. However, at the commencement of that process she told the delegate that she felt able to engage in the interview.
The Applicant’s assertion in her particulars to Ground 3 that there was a “known… history of family violence” is simply wrong. As I have already indicated, none of the emails in evidence disclose any claim by the Applicant that she suffered family violence. Moreover, at no point during the interview did the Applicant inform the delegate that she had suffered family violence. It is true that Ms Ruiz stated in her email dated 14 December 2016 that the Applicant was a victim of domestic violence, and had experienced severe mental health concerns as result of the trauma she endured. However, this evidence was not before the delegate at the time of the interviews. What is an objectively reasonable period of time can only be based on the circumstances apparent or kown at the time of the interview.
Having listened to the audio recording of the preliminary interview, the Applicant responded to the delegate’s questions calmly and directly during the course of the preliminary interview. She was able to respond to the following issues raised by the delegate:
a)when she ceased study in 2016, and the fact that leading up to that time she had been unable to successfully complete the relevant subjects;
b)why this occurred – her separation from a husband and her depression;
c)the assistance of her counsellor, Ms Ruiz, in developing a pathway for her to re-commence study in her Diploma in first semester, 2017;
d)the fact that she did not have a current CoE;
e)the fact that during the period of August and September 2016, she worked in excess of 40 hours per fortnight. Her understanding that the work limitation on her visa was 20 hours a week.
It is evident that the Applicant was familiar with the issues involved.
It is obvious from the audio recording that at the commencement of the interview, when the delegate served the Applicant the NOICC, the Applicant became visibly distressed, gulping at times and crying, and that this continued during the remainder of the process. This is unsurprising, given she appreciated that her student visa may be cancelled.
In her affidavit filed on 15 December 2016, the Applicant deposes at [19] that she told them that she wanted to speak to her friend and they declined. I have listened to the audio recording and examined the transcript, and there is no evidence that the Applicant asked to speak to a friend. I reject this evidence of the Applicant. Save that the Applicant said to the delegate during the period in which she responded to the NOICC, that he could ask her counsellor, Ms Ruiz, anything (Transcript, point 238), the Applicant did not ask the delegate to speak to any other person. Nor, did the Applicant inform the delegate that she felt unable to continue with the interview.
The Applicant also deposes at [23] that the delegate was polite whilst the recorder device was on but that “[a]s soon as it was not recording his behaviour changed”. The Applicant was cross-examined on this. Her evidence was that when the recording device was switched off, the delegate did not speak to her. I see nothing untoward in this. In fact, it would have been inappropriate for the delegate to have conducted a conversation with the Applicant outside of the time the recording device was switched on.
The issues the delegate was required to be satisfied of, in this case, were twofold. Firstly, whether the applicant breached Condition 8105. There was no question that she had breached this condition. The second issue was whether he should exercise his discretion not to cancel the visa. When regard is had to the totality of the transcript and the email evidence before the delegate, the reasons the Applicant gave were the fact she had completed Certificates III and IV in Commercial Cookery and, up until 2016, had studied regularly, the depression that she suffered and the impact this had on her capacity to study, the fact that while she was with her husband she had complied with the “work conditions” of Condition 8105, but that upon separation she had no choice but to work, the fact that Holmesglen Institute was aware of her circumstances, that she was allowed to defer her studies in the Diploma course in 2016 and resume in 2017. Finally, she accepted that she had made mistakes but said she was committed to engaging with her higher education studies commencing 2017. There is nothing particularly complex about these factual issues. These issues had been traversed during the preliminary interview with the delegate and, in her response to the NOICC, she repeated these issues, although in a somewhat truncated form.
Many observers of the statutory provisions regulating the cancellation of visas in “immigration clearance” may well come to a conclusion that they are harsh, particularly given that a consequence for the visa holder may well be the loss of the visa and deportation back to his or her country of origin. The provisions allow a visa holder to be questioned upon arrival at the airport and, unlike circumstances where the visa holder is either overseas or in Australia, there are no prescribed times for a response by a visa holder to the issuing of a NOICC. The process must be completed within immigration clearance. The only requirement is that the relevant interviews be conducted in a reasonable place and the visa holder be given an opportunity to respond in a reasonable time. However, whatever the public perception of this process, the legislature has clearly decided this process is one that may be engaged in by the Minister and his delegates for the purpose of exercising the discretion to cancel a visa. There can be no doubt that an objective determination of whether a visa holder was provided with a reasonable period in which to respond to an NOICC must have regard to the statutory provisions dealing with “immigration clearance.”
I have considered the Applicant’s personal circumstances and all the circumstances surrounding the interview process. I am satisfied that the Applicant was given a reasonable period of time in which to respond at an interview as required by sub-s.121(3)(b) of the Act. Taking into account all the circumstances, including the interview, prior to the serving of the NOICC, I fail to understand how the provision of a longer period of time in which to respond would have enabled the Applicant to consider and propose further matters relevant to the delegate’s discretion. I note that in her affidavit filed on 15 December 2016, she remains reliant on all of the matters that she conveyed to the delegate during the interview process.
Accordingly, I find that no jurisdictional error arises on the basis of Ground 3.
Ground 4
There are two issues to be determined in relation to this ground. Firstly, whether the decision record reveals the delegate has conflated, in his description of the breach of Condition 8105, the requirements under Condition 8105 and Condition 8202. The second issue is whether in fact, the delegate misconstrued Condition 8105(1).
Turning to the first issue. Sub-section 119(1) of the Act requires that, where the Minister is considering cancelling a visa, the Minister must notify the visa holder that there appears to be a ground for cancelling it. Sub-section.119(1)(a) of the Act requires the Minister to “give particulars of those grounds and of the information because of which the grounds appear to exist.” Section 120 of the Act provides that the Minister must give the visa holder particulars of the information which would be the reason, or a part of the reason, for cancelling the visa, and that in giving this information the Minister must “ensure, as far as recently practicable, that the holder understands why it is relevant to the cancellation.”
The NOICC recorded, at item 6, that a possible ground for cancellation of the visa was because it appeared that the Applicant had breached Condition 8105. In the explanatory box, the delegate stated in the first paragraph that the Applicant’s visa was subject to Condition 8105 which “states the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session” (“the work condition”). The delegate then set out the particulars of the information; namely, the hours the applicant worked at a restaurant during August and September 2016. However, the delegate then went on to record, at the fourth paragraph, that because of that information it appears there was a ground for cancelling her visa because she had breached the work condition of Condition 8105 and, in the same sentence stated, “and also because you worked whilst not holding a certificate of enrolment and were not enrolled in any further course of study.” It seems to me that the ordinary meaning of that paragraph was that the particulars the delegate was giving the Applicant, were that she had not complied with Condition 8105 because of the work condition and also because she did not hold a current certificate of enrolment. This latter condition has no place within Condition 8105. It is located in Condition 8202.
Condition 8202 relevantly provides:
(1) The holder must be enrolled in a full-time course of study or training if the holder is:
(a) a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full-time registered course; and
(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted…
Clearly the delegate conflated requirements from two separate conditions in giving particulars of the ground, which appeared to him, was a ground for cancellation of the visa.
I am not satisfied that this conflation constituted a contravention of the provisions of ss.119 or 120 of the Act, for the following reason. Firstly, the delegate, without a doubt, gave particulars of the ground for cancelling the visa. When Part A is considered as a whole, the delegate specified the ground as being, that it appeared the Applicant had breached Condition 8105, and set out the information upon which it appeared the condition had not been complied with. These particulars and information are clearly set out in paragraphs 1 and 3 of the box under item 6 of Part A in Form 1111 (see the extract at [32] above). In my view, that clumsy conflation of two conditions applicable to the visa at paragraph 4 does not detract from the fact that the particulars and information were given to the Applicant. I have considered whether the delegate ensured, as far as reasonably practicable, that the Applicant understood why the information was relevant to the cancellation. I am satisfied that he did so. The information that the applicant had worked in excess of 40 hours per fortnight during August and September 2016 was conveyed with clarity in the NOICC.
The next issue to determine is whether in fact grounds existed for the delegate to cancel a visa. The determination of this issue depends on the construction of the phrase “when the holder’s course of study or training is in session” in Condition 8105(1).
There is no dispute that, at the time that the Applicant engaged in work during August and September 2016, her hours of work were in excess of 40 hours per fortnight, and her certificate of enrolment in the Diploma course for 2016 had been terminated or cancelled. The Applicant argues that, because of this, the course of study or training was not “in session”. Consequently, it is argued, the Applicant did not breach Condition 8105.
I note here that there is no authority on the meaning of this phrase. In construing the phrase, recourse must of course be had not only to the ordinary meaning of the phrase, but the statutory context in which it is to be found.
The phrase begins by reference to a course of study or training. Thus, it contemplates not particular components or subjects of the course of study but, in my view, the course of study or training itself leading to a particular qualification.
The ordinary dictionary meaning of “session” may assist. The Macquarie Dictionary Online relevantly defines “session” as
7. a single continuous course or period of lessons, study, etc., in the work of a day at school: two afternoon sessions a week.
8. a portion of the year into which instruction is organised at a college or other educational institution.
The Minister submits that the granting of a Subclass 573 visa is for the purpose of enabling the visa holder to undertake higher education through courses of study leading to a degree program. In the Applicant’s case it, was through a pathway which entailed the completion of Certificates in Commercial Cookery, a Diploma of Hospitality and, ultimately, a Bachelor of Hospitality Management.
Various conditions apply to the visa holder, one of which is Condition 8202, which requires that the visa holder remains enrolled in full-time registered courses. These courses must, of course, be relevant to the Applicant’s higher education course of study. Condition 8105, the Minister argues, is there to ensure that the visa holder focuses on their study and to ensure that the student visa framework is not abused by a student undertaking less study and engaging in work. The Minister submits that the evident purpose of the visa conditions is to avoid visa holders abusing the granting of various student visas for the purpose of either, simply remaining in Australia, or working rather than studying. This purpose is evident, the Minister submits, in the criteria applicable to the grant of a Subclass 573-Higher Education Sector -visa, Schedule 2 to the Regulations.
The Minister refers to cl.573.212 of the Regulations, which provides that the Applicant must have a confirmation of enrolment in each course of study for which the Applicant is an eligible higher degree student. There are also further criteria which are relevant to ascertaining the evident purpose of the statutory criteria applicable to the granting of a student visa in the higher education sector. For example, cl.573.223 of the Regulations provides that the Minister must be satisfied the Applicant is a genuine Applicant for entry and stay as a student, because the Applicant intends to genuinely to stay in Australia temporarily.
I am satisfied that the evident purpose of the statutory context, applicable to the grant of a Subclass 573 Student visa in the higher education sector, having regard to the criteria applicable to the grant of the visa and the conditions applicable to those visas, can be summarised as follows:
a)to ensure that the visa holder is enrolled in registered courses of study which will lead ultimately to the granting of a higher degree;
b)to ensure the visa holder has current certificates of enrolment to meet that purpose;
c)to ensure that the visa holder is both a genuine applicant and remains a genuine student intending to stay in Australia temporarily for the purpose only of acquiring the higher degree;
d)to limit the extent to which such visa holders engage in work during the course of their study, so as to facilitate the acquisition of the higher degree.
I agree with the Minister that an evident purpose of the statutory framework is to avoid the abuse of the system under which visas are granted for the purpose of higher education study.
In construing the meaning of “when the holder’s course of study or training is in session”, this evident purpose must be facilitated.
The Minister’s submission is that that phrase should be taken to refer to the period of time of the particular course of study in which a visa holder was enrolled. It is argued that the Applicant’s construction would defeat the evident purpose of the statutory framework by enabling, for example, visa holders to defer or cease to be enrolled in courses for the purpose of engaging in work rather than study.
In my opinion, the words “in session” refer to the currency of the course of study the Applicant was enrolled in, not whether the Applicant is attending classes and completing any coursework requirements of the course of study. Otherwise, visa holders who fail to attend classes or complete any coursework requirements during the period the course of study was continuing would be able to defeat the requirement in Condition 8105, that the visa holder not work in excess of 40 hours a fortnight.
The Applicant was enrolled in a course of study at the commencement of 2016; that being, a Diploma of Hospitality. The duration of the course was a period of one year. The Applicant’s enrolment in the course was terminated during the currency of the course, from early 2016 to the end of 2016. That course of study remained in session until the end of 2016. The Applicant worked during August and September 2016 in excess of 40 hours a fortnight, when her course of study was in session. Consequently, she did not comply with Condition 8105(1) during the period of August and September 2016.
For the reasons set out above, I find that no jurisdictional error arises on the basis of Ground 4.
Conclusion
For the reasons set out in this judgment, the Amended Application for judicial review will be dismissed, and an Order made that the Applicant pay the First Respondent’s costs.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 16 December 2016
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