Khan v Minister for Home Affairs

[2019] FCCA 577

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 577

Catchwords:
MIGRATION – Cancellation of student visa – non-compliance with 8202 criteria – failure to remain enrolled – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), rr.8202, 8516

Migration Act 1958 (Cth), s.116(1)(b)

Cases cited:

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
See Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: SAAD KHAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 761 of 2018

Judgment of: Judge Egan

Hearing date: 27 February 2019

Date of Last Submission: 27 February 2019

Delivered at: Brisbane

Delivered on: 27 February 2019

REPRESENTATION

Counsel for the Applicant: Mr L. Burrow

Solicitors for the Applicant: Chand Lawyers

Counsel for the Respondent: Mr J. Kyranis

Solicitors for the Respondent: Sparke Helmore

IT IS ORDERED THAT:

1. The application for review filed on 27 July 2018 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 761 of 2018

SAAD KHAN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan who was granted a student (temporary) (class TU) higher education sector (subclass 573) visa on 16 February 2015.  On 5 April 2017, the department issued to the applicant a notice of intention to consider cancellation of the applicant’s visa on the basis that the applicant had not complied with condition 8202 of the visa, which required him to be enrolled in a registered course.  Condition 8202 of the Migration Regulations1994 (Cth) (‘the Regulations’) provides as follows:

   8202

   (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; and

   (c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a) is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

2. The notice stated that, based on information in the Provider Registration and International Student Management System, it appeared that the applicant had not been enrolled in a registered course of study since 30 January 2017. The applicant did not respond to that notice. On 18 April 2017, the delegate to the Minister cancelled the applicant’s visa based upon the provisions of section 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) in that the applicant had not complied with condition 8202. The delegate also found that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

3. On 24 April 2017, the applicant made application to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.  On 29 May 2018, the Tribunal invited the applicant to attend a hearing before it.  On 11 June 2018, the applicant’s representative provided written submissions to the Tribunal (court book 53-55 inclusive).  On 13 June 2018, the applicant attended a hearing before the Tribunal, at which time he was assisted by both an interpreter and by a migration representative.  The Tribunal affirmed the decision of the delegate under review on 30 June 2018.

4. On 27 July 2018, the applicant filed an application for review of the Tribunal’s decision.  The applicant at the hearing before the court today relied only upon one ground of review, that being ground 1(d), which provided as follows:

   (1)The Tribunal (second respondent) erred by misinterpreted the ground on which the visa was cancelled with the discretion whether to cancel the visa:

   (d)The Tribunal did not consider that the applicant relied on professional advice given by a professional migration agent who is registered by the department for purpose of giving advice and lodging applications.

5. At the time of the hearing before the Tribunal, it was admitted by the applicant that the applicant had not been enrolled in any course from 29 January 2017 until 14 March 2018.  At [10] of its reasons, the Tribunal found that, having found that the applicant had not complied with a condition of the visa, it must consider whether the visa should be cancelled.  It referred to the Tribunal having had regard to the circumstances of the case, including matters raised by the applicant, as well as those matters set out in the department’s Procedures Advice Manual (PAM3).

6. In so stating, it must be taken that it considered the applicant’s suggestion that he had been provided with negligent advice by a former migration agent.  At [11] of its reasons, the Tribunal recorded that, when the applicant arrived in Australia in February 2015, he was enrolled in a Diploma of Information Technology course, which was to be followed by a Bachelor of Information Technology.  It was noted that the applicant said that he commenced the diploma course at the beginning of 2015, but found the course too difficult, and that he had failed all four of his subjects in the first semester.

7. It was noted that the applicant abandoned that diploma, and that his enrolment in the Bachelor of Information Technology course was cancelled for non-commencement of studies on 28 April 2016.  The Tribunal further noted that the applicant was in breach of condition 8516 as and from that date, as he was not enrolled in a higher education course, namely, the Bachelor of Information Technology.  The applicant stated that he knew that it was a condition of his visa to remain enrolled in a higher education course.

8. At [13] of its reasons, the Tribunal recorded that the applicant said that, after he completed his advanced diploma in January 2017, a migration agent had applied for him to undertake a bachelor’s degree, but that no tertiary institution would offer him enrolment because he had ceased his initial information technology studies.  It was recorded that the applicant had provided no documentary evidence to support his assertion that he had applied to be enrolled in a bachelor degree course, but that no institution would grant him enrolment in any such bachelor course.

9. The applicant’s visa was recorded as having been cancelled on 18 April 2017, after which he was granted a bridging visa pending the determination of his application for review.  The applicant did not enrol in a registered course until March 2018, notwithstanding that the bridging visa did not prevent him from working or studying.

10. At [17] of its reasons, the Tribunal noted its concern that, because the applicant had abandoned his studies leading to his Bachelor of Information Technology course; had enrolled in and completed two vocational courses but had failed to enrol in another bachelor course; he may not have the desire or will to successfully undertake a higher education course in Australia.  The applicant was recorded as having initially told the Tribunal that he wanted to complete all three vocational courses and then begin a Bachelor of Mechanical Engineering in 2020, but he later said that he intended to complete one of his three courses, and then enrol in a bachelor’s degree in mechanical engineering, saying that his desire to study a bachelor degree was evidenced by his payment of fees for courses and the payment of migration agent fees.

11. At [18] of its reasons, the Tribunal found, given the applicant had abandoned his studies leading to his Bachelor of Information Technology course, had enrolled in and completed two vocational courses, and had failed to enrol in another bachelor course (enrolling in a further three vocational courses after his visa was cancelled), that that evidenced that the applicant did not have the will or desire to successfully undertake a higher education course in Australia.

12. At [19] of its reasons, the Tribunal did not accept that the applicant had made any significant attempt to enrol in a bachelor course after he had completed his advanced diploma course.  It noted that the applicant had provided no documentary evidence of any attempt having been made by him after July 2017 to undertake further study.  The Tribunal did not accept that no tertiary institute would enrol the applicant in a bachelor’s course or, at the very least, in a series of courses leading to a bachelor degree.

13. The Tribunal at [20] of its reasons noted that it was willing to accept that the applicant and his family members could experience disappointment and shame that the applicant’s visa was cancelled before he was able to complete a course in Australia, and further considered that, as the applicant’s visa had been cancelled, the applicant may have to wait some time to be granted another visa in Australia.

14. At [21] of its reasons, however, the Tribunal found that the applicant’s breaches of condition 8202, and the applicant’s lack of desire to successfully undertake higher education courses in Australia, heavily outweighed any hardship that he or his family members could face because of the cancellation of the applicant’s visa.  The Tribunal affirmed the decision of the delegate.

15. It was asserted on behalf of the applicant that the Tribunal ought to have considered the complaint made by the applicant about the provision to him of negligent advice.  It was asserted on behalf of the applicant that the Tribunal failed to consider that question, and that, therefore, that evidenced jurisdictional error on its part.  As to that allegation, it is well-established that the Tribunal does not have to refer to every piece of evidence and every contention made by an applicant before it. [1]

    [1]     WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at

    [46].

16. The Tribunal did note that it had taken into account the matters raised by the applicant.  The letter from “Mygration” sent on the applicant’s behalf to the Tribunal dated 11 June 2018 must be taken to have been considered.  It is in that letter that reference is made to the applicant having received negligent advice and that that, therefore, was a factor which ought to have resulted in the decision of the delegate being overturned.

17. However, the Tribunal found that there were serious breaches of the 8202 conditions in circumstances where the applicant stated that he knew that he was required, as a condition of his visa, to remain enrolled in a higher education course.  It is understandable that the Tribunal was reluctant to accept the claim that the applicant had received negligent advice about the prospect of him being enrolled in any particular bachelor course when, after having allegedly been told that the bachelor course in which he had been enrolled was cancelled, the applicant next remained unenrolled for any course for a period in excess of one year and two months.

18. Secondly, the Tribunal made a finding that the evidence suggested that the applicant had a lack of desire to successfully undertake higher education courses in Australia (reasons of Tribunal at [21]). 

19. It cannot be said that no other rational or logical decision-maker could not have made the same decision in respect of the cancellation of the applicant’s visa.  [2]

    [2]     See Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR

    611 at [130].

20. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:

    [66]:  This approach does not deny that there is an area within which a decision maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76]:  As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

21. No jurisdictional error has been demonstrated on the part of the Tribunal.  The breaches of the 8202 conditions were clear.  There is no merit in the application for review.  Accordingly, the application for review is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  8 March 2019