Keong v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 968
•1 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Keong v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 968
File number: MLG 2548 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 1 November 2023 Catchwords: MIGRATION – Cancellation of student visa – Applicant did not comply with a condition of the Visa to be enrolled in a registered course – Tribunal had statutory discretion to cancel visa – Applicant has not identified any relevant consideration the Tribunal did not take into account or irrelevant consideration the Tribunal took into account – Tribunal’s decision not manifestly unreasonable – Tribunal did not misapply the Act or Regulations – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 41, 116, 119, 189, 476
Migration Regulations 1994 (Cth), reg. 2.05, cl. 572.611, sch. 8 condition 8202
Cases cited: Aslan v Minister for Immigration & Anor [2015] FCCA 1116
El Ess v Minister for Immigration (2004) 142 FCR 43; [2004] FCA 1038
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 16 October 2023 Date of hearing: 11 October 2023 Place: Melbourne Applicant: In person Solicitor for the Respondents: Australia Government Solicitor ORDERS
MLG 2548 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TEH CHEE KEONG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
1 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION
INTRODUCTION
By an application filed on 24 August 2018, Mr Teh Chee Keong (Applicant) seeks judicial review of a decision made by the Administrative Appeals Tribunal made on 13 August 2018. The Tribunal affirmed an earlier decision made by a delegate of the Minister (Delegate) to cancel the Applicant’s Student (Temporary) (Class TU) Vocational Education and Training Section (Subclass 572) Visa.[1]
[1] From time to time in these reasons I will refer to Court Book page references as “CB”. I will refer to paragraph references from the Tribunal Decision as “TD”.
The central issue in the Tribunal’s decision was that the Applicant was in breach of that condition of his Visa that he be enrolled in a registered course of study and, as a result, his Visa had been cancelled.
For the reasons set out below there was no error in the Tribunal’s approach and the application will be dismissed.
LEGISLATIVE SCHEME
The scheme of the legislation was relevantly as follows.
Section 41 of the Migration Act 1958 (Cth) provided that “the regulations may provide that visas, or visas of a specified class, are subject to specified conditions”.
Regulation 2.05(1) of the Migration Regulations 1994 (Cth) (Regulations) provided that:
For subsection 41(1) of the Act, a Visa is subject to any conditions specified for that Subclass of visa in Schedule 2 …”
Schedule 2, cl. 572.611(a) of the Regulations was as follows:
If the applicant satisfies the primary criteria:
(a) in all cases, conditions 8105, 8202, 8501, 8516, 8517, 8532 and 8533;
[Emphasis added]
Schedule 8, condition 8202(2)(a) of the Regulations was as follows:
8202
(1) The holder…. must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course;
[Emphasis added]
BACKGROUND
The Applicant is a citizen of Malaysia. On 13 March 2016 the Applicant arrived in Australia on a Tourist (Subclass 601) visa (CB 44).
On 1 June 2016 the Applicant had applied for the Visa, which was granted on 27 July 2016 (CB 12). He subsequently completed a Certificate I English course and a Certificate II English course (CB 45, 61, TD [8]).
On 15 October 2017 the Applicant enrolled in a Certificate III English course.
On 24 May 2018, the Australia Federal Police (AFP) executed a search warrant at a property in Melbourne. The AFP conducted a visa status check on all occupants of the property, including the Applicant (CB61, TD[9]). As a result of a subsequent Provider Registration and International Student Management System (PRISMS) search, the Applicant was found not to be enrolled in a registered course. The PRISMS records were that the Applicant’s enrolment in the Certificate III English course was cancelled on 8 November 2017 due to him not commencing the course in which he had enrolled (CB 45).
As a result, the Applicant was in breach of condition 8202 of his Visa which required him to be enrolled in a registered course (see above). (CB61, TD [9]).
Also on 24 May 2018, pursuant to s. 116(1)(b) of the Act (CB 16–27), because the Applicant was in breach of condition 8202(2), the Delegate cancelled the Applicant’s Visa. Pursuant to s. 119 of the Act, the Delegate provided both notice of intention to consider cancellation (CB12–15) and notification of the Visa cancellation decision including particulars of the grounds for cancelling the Visa (CB16–27).
The Applicant was placed in detention pursuant to s. 189(1) of the Act (CB61, TD [10]).
On 30 May 2018, the Applicant applied to the Tribunal for review of the Delegate’s decision (CB 37–8).
On 7 June 2018, the Applicant was granted a Bridging Visa (Subclass 050) and released from detention pending review (CB61, TD [10]).
TRIBUNAL DECISION
On 13 August 2018 the Tribunal affirmed the Delegate’s decision to cancel the Applicant’s Visa (CB61, TD [5]).
The Tribunal noted that condition 8202(2)(a) under Sch. 8 of the Regulations required that a visa holder “be enrolled in a … registered course” (CB72, TD [13]). The Tribunal correctly noted that the Applicant’s Visa was cancelled on the basis that the Applicant was not enrolled in a registered course (CB62, TD [14]).
The Tribunal held (CB62, TD [16]):
The applicant conceded that he stopped attending the certificate III English course and that he was not currently enrolled in a registered course. The applicant confirmed that he had not been notified by his agent that he had not been enrolled in any alternative course. In addition he confirmed that he had made no effort to personally enrol himself in an alternative registered course.
On the basis of the Applicant’s own evidence and the Department’s PRISMS report, the Tribunal found that the Applicant had not been enrolled in a registered course since 8 November 2017. As a result, the Tribunal found that the Applicant had not complied with a condition of his Visa, namely condition 8202(2)(a) (CB62, TD [18]).
In those circumstances in which the Applicant was in breach of a Visa condition the Tribunal’s statutory task was to decide whether (or not) to cancel the Applicant’s Visa by way of a de novo merits review under s. 116(1)(b) of the Act.
The Tribunal had a discretion to cancel the Visa under s. 116(1)(b) of the Act “… if he or she is satisfied that its holder has not complied with a condition of the visa.”
In exercising its discretion, the Tribunal said that it had regard to the circumstances of the case, matters the Applicant raised and matters in the Department’s Procedures Advice Manual (PAM3) titled: “General Visa Cancellation Powers” (CB62–63, TD [19]).
The Tribunal considered the following issues (issues in bold) in the exercise of its discretion as to whether to cancel the Visa (CB63–64):
(a)the Applicant’s purpose of traveling to and staying in Australia: The Tribunal noted that it was the Applicant’s evidence at the hearing that his purpose of travelling and staying in Australia was to study (TD [20]). The Applicant’s abandonment of the Certificate III English course and the fact that “he made no attempt to re-enrol in an alternative course” led the Tribunal to “give little weight to the Applicant’s statement that the purpose of him travelling and staying Australia was to study” (TD [22]);
(b)the Applicant’s compliance with visa conditions: The Tribunal considered that the Applicant’s non-compliance with the visa conditions was “significant” and did not weigh in favour of the Applicant (TD [23]);
(c)the degree of hardship that may be caused to the Applicant: The Tribunal noted the Applicant’s response to a question about hardship was that if “his visa was cancelled it would create a financial burden for his family as they would have to repay the debt incurred for his studies” (TD[24]). The Tribunal acknowledged that the Applicant would suffer some financial hardship if his Visa were to be cancelled. It held, however, that the Applicant was aware of the Visa conditions (TD [24]).While the Tribunal accepted that some hardship would be caused to the Applicant if the Visa was cancelled, the Applicant was aware of the conditions of his Visa and that the Visa’s purpose was to allow the Applicant to study in Australia rather than to earn money (TD, 25). The Tribunal placed “some weight to hardship the applicant will suffer in the event his Visa is cancelled” (TD [26]);
(d)the circumstance in which the grounds for cancellation arose: in circumstances in which the Applicant was aware of his Visa conditions, he had abandoned the registered course and made no attempt to re-enrol in any alternative course the Tribunal gave “no weight” to this consideration in the Applicant’s favour (TD [28]–[29]);
(e)past and present behaviour of the Applicant: The Tribunal weighed in the Applicant’s favour that he had been cooperative and courteous during proceedings and that no adverse information was provided to the Tribunal (TD [30]);
(f)members of the family unit: the Tribunal noted that no other person who was a member of the Applicant’s family unit would have their visa cancelled because of the cancellation of the Applicant’s Visa. As a result, the Tribunal placed no weight on this consideration in the Applicant’s favour: (TD [32]);
(g)the circumstances of the case were not so as to engage Australia’s international obligations (TD [33]). As a result, the Tribunal did not give any weight in favour of the Applicant as to this issue; and
(h)there were no other relevant factors (TD [34]).
Having regard to these considerations, the Tribunal affirmed the decision of the Delegate under review on 13 August 2018 (CB 64, TD [35]).
JUDICIAL REVIEW APPLICATION
On 24 August 2018, the Applicant applied for judicial review in this Court.
The Applicant identified four grounds of review:
(1)Ignoring materials the decision-maker was required to look at that is relevant legislation contained in the Migration Act and Migration Regulations 1994
(2)Incorrectly interpreting breached condition 8202 of Schedule 8 to the Migration Regulations 1994
(3)Immigration/AAT failed to take account of relevant consideration
(4)Ignoring materials the decision-maker was required to look at to interpreting s. 116(1) of the Act.
[As written]
The Applicant’s affidavit in support of his application provides no significant further explanation as to the four grounds of review.
On 18 March 2020, a Registrar of this Court made orders that the Applicant file and serve at least 28 days before the hearing any amended application with proper particulars of the grounds of the application and written submissions.
The Applicant did not file any further material prior to the hearing. The Applicant appeared at the hearing but did not put any substantive oral submissions in support of his application. Despite leave having been granted, the Applicant did not file any further material after trial.
CONSIDERATION
Ground 1: Did the Tribunal ignore materials it was required to look at under either the Migration Act or the Migration Regulations?
The Applicant did not identify or particularise the materials he submitted the Tribunal ignored. The fact that he has not identified the relevant materials makes it difficult to engage meaningfully with this ground of judicial review and to understand the real character of his complaint about the Tribunal’s decision.
The Applicant’s non-enrolment in a registered course engaged the discretion to cancel the visa under s. 116(1)(b) because the Applicant had not complied with a condition of the Visa.
The Act does not prescribe how the discretion in s. 116(1)(b) is to be exercised. The statutory discretion must be exercised reasonably. In exercising the discretion as to whether to cancel the Visa, the Tribunal’s reasons disclose that it had close regard to PAM3. Each of the headings set out at paragraph 28 of the reasons above (CB63-64, TD [20]–[34]) was drawn from matters PAM3 describes as matters that should be considered.
In El Ess v Minister for Immigration (2004) 142 FCR 43; [2004] FCA 1038 at [45] Gray J, with reference to how a decision-maker may regard PAM3, held as follows:
In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. [citations omitted]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
There was no error in the Tribunal structuring its reasons by reference to matters identified as relevant considerations in the departmental procedural and policy guidance known as PAM3.
The Applicant has not proved that the Tribunal’s failure to take into account any relevant consideration constituted jurisdictional error because the Tribunal’s decision was manifestly unreasonable or that the Tribunal unreasonably exercised its discretion: see e.g., Aslan v Minister for Immigration & Anor [2015] FCCA 1116, [25] (Driver J).
Ground 1 has not been made out.
Ground 2: Did the Tribunal incorrectly interpret Schedule 8, condition 8202 of the Migration Regulations?
As set out above, Sch. 8, condition 8202(2)(a) of the Regulations prescribed a visa condition that “the [visa] holder is enrolled in a registered course”. As the First Respondent notes in its submissions at [25], the Tribunal had before it the Applicant’s own evidence that he had not been enrolled in a registered course since 8 November 2017 (CB 62, [16]) and PRISMS records that indicated the Applicant’s enrolment in the Certificate III in English course was cancelled on 8 November 2017 for non-commencement of studies (CB 45, 62, [18]).
The Tribunal correctly interpreted Sch. 8, condition 8202 as enlivening its discretion under s. 116(1)(b).
Ground 2 has not been made out.
Ground 3: Did the Delegate or the Tribunal fail to take account a relevant consideration?
To the extent that the Applicant’s grounds seek to challenge the Delegate’s decision, the Court has no jurisdiction to conduct the review: s. 476(2)(a).
I accept the First Respondent’s submissions that the Tribunal was correct to note (CB62, TD [19]) that there are no prescribed matters or enumerated mandatory considerations specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel a visa under s. 116(1)(b).
The Applicant has not particularised the relevant consideration(s) which he alleges the Tribunal failed to take into account.
As is set out in the discussion of Ground 1 above, in exercising its discretion as to whether to cancel the visa, the Tribunal’s reasons disclose (CB62, TD [19]) that it had regard to the circumstances of the case, the matters the Applicant raised and “General Visa cancellation powers” as detailed in PAM3 (CB62–63; TD [19]). The Tribunal’s reasons (CB63–64, TD [20]–[35]) traverse and detail relevant considerations as to the exercise of its discretion.
Ground 3 has not been made out.
Ground 4: Did the Tribunal ignore materials that it was required to look at in interpreting s. 116(1) of the Act?
The Applicant does not identify or particularise the materials he alleges the Tribunal (in error) ignored. Again, in the essence of particulars, it is difficult to engage with the Applicant’s true complaint about the Tribunal’s decision.
It appears to me that Ground 4 is wholly subsumed within the ambit of Ground 1. For the reasons given as to Ground 1, Ground 4 has also not been made out.
CONCLUSION
The application will be dismissed. I will order that the Applicant pay the First Respondent’s costs fixed in accordance with Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) in the sum of $8,371.30.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 1 November 2023
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