Kiprop v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 323

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kiprop v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 323

File number(s):

PEG 122 of 2020

Judgment of:

JUDGE VASTA

Date of judgment:

11 February 2021

Catchwords:

MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed  

Legislation:

Migration Act 1958 (Cth), ss 116, 359A

Migration Regulations 1994 (Cth)

Number of paragraphs:

59

Date of last submission/s:

11 February 2021

Date of hearing:

11 February 2021

Place:

Brisbane

Solicitor for the Applicant:

Mr Frankel

Solicitor for the First Respondent:

Ms Ellis

ORDERS

PEG 122 of 2020

BETWEEN:

MERCY JEPKOECH KIPROP

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	11 FEBRUARY 2021

THE COURT ORDERS ON A FINAL BASIS:

1.That the Applications filed 17 April 2020 and amended on 10 December 2020 are dismissed.

2.That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 13 April 2020, the Administrative Appeals Tribunal (“the Tribunal”) affirmed a decision of the delegate to cancel the Applicant, Mercy Jepkoech Kiprop’s student visa.  On 17 April 2020, the Applicant asked this Court to review that decision.

2. The background to this matter is that the Applicant is a citizen of Kenya.  She was granted a student visa on 1 September 2016.  That was so that she could study a Diploma of Science (Nursing) and a Bachelor of Science (Nursing).  She arrived in Australia on 9 September 2016 and commenced her studies on 17 October 2016.

3. The diploma course that she was enrolled in was successfully completed on 2 June 2017.  Since that time, and I will get into this a little later, she has been enrolled in a number of other courses.  The evidence discloses that, despite being enrolled in these courses, she has never been able to commence those courses because of a failure to be able to pay the fees relating to those courses.

4. The latest enrolments that she had were in a Diploma of Community Service and a Bachelor of Community Service.  Both of those courses were cancelled by the provider on 4 April 2019.

5. The conditions of her visa include condition 8202.  In short, that condition mandates that the applicant must:

   (a)Stay enrolled in a course of study.

   (b)Achieve adequate achievement in that course.

   (c)Attend, satisfactorily, the course requirements of that particular course to which she is involved.

6. As regards to all three of these requirements, those requirements are matters to which the educational institution advises the Department if there has been any such breach of those conditions.

7. There is no contest that the Applicant has breached a condition of her visa, in that she has failed to remain enrolled in her course, and she has not been enrolled since 4 April 2019.  She is still not enrolled in any course.

8. Pursuant to s 116 of the Migration Act 1958 (Cth) (“the Act”), the Minister has the power to cancel a visa if the Minister is satisfied that its holder has not complied with a condition of the visa. The Applicant, in this case, has not complied with a condition of the visa – that is, that she be enrolled – and certainly has not complied with that condition since 4 April 2019. That means that the Minister may cancel her visa.

9. The use of the word “may” designates that the decision to cancel a visa is purely a discretionary one on the part of the Minister. There is no legislation as to what considerations the Minister must take into consideration in the exercise of that discretion, either in the Act or in any regulation.

10. The Minister does have recourse to the PAM3, which sets out some guidelines as to the sorts of matters that should be taken into account.  As I say, those matters are not mandatory, but certainly a consideration of the matters that are in that manual would point to a proper exercise of the discretion.

11. The delegate of the Minister cancelled the visa, and the Applicant took the matter to the Tribunal. The Tribunal, firstly, made the finding that the Applicant was in breach of the condition that she be enrolled in a full-time registered course, which meant that such a breach was, pursuant to s 116(1)(b) of the Act, sufficient for the Minister to cancel the visa. And so the Tribunal had to make, in effect, a decision as to whether to exercise that discretion.

12. The Tribunal correctly noted that it should look at the matters in the PAM3 that dealt with general visa cancellation powers. 

13. The Tribunal then looked at the purpose of the Applicant’s travel to and stay in Australia, whether the Applicant has a compelling need to remain in Australia, and the extent of compliance with her visa conditions.

14. In paragraph 17 of their reasons, the Tribunal noted that the Applicant’s finances prevented her from successfully enrolling and progressing her studies beyond that point.

15. In paragraph 18, the Tribunal noted that whilst the Applicant was able to complete her initial diploma, she was never able to complete any other course in which she enrolled, as she simply lacked the finances to do so, and each ended up being cancelled.

16. The Tribunal listed the courses that the Applicant had been enrolled in.  Firstly, the Diploma of Science (Health Studies); the Tribunal noted that that course was completed between 17 October 2016 and 2 June 2017. 

17. The next course, which was a Bachelor of Science (Nursing), was to begin on 24 July 2017. The enrolment was cancelled on 29 June 2017, before the course began, because the Applicant failed to pay her fees.

18. The Applicant enrolled then in another Bachelor of Science (Nursing) course, which was to begin on 26 February 2018, but was cancelled on 9 November 2017.

19. The Applicant enrolled in a Diploma of Community Service that was to begin on 12 February 2018, but that was cancelled on 3 December 2018 because of non-payment of fees. 

20. The Applicant was also enrolled in a Bachelor of Community Service, which was to begin in January 2019, and it was cancelled on 4 April 2019 as well.

21. It was noted that it was the cancellation of this bachelor’s degree which triggered the non-compliance with condition 8202.  I do note that the Tribunal failed to mention this particular course in paragraph 19.

22. The Tribunal noted that there was a lack of progress in the Applicant’s studies, and that there had been numerous cancellations of her enrolments.  The Tribunal advised the Applicant that this information was relevant to its consideration of the extent of her compliance with her visa conditions, being one of the discretionary matters that the Tribunal had to consider.

23. The Applicant responded to this, pursuant to s 359A, and confirmed that she acknowledged being in breach of her visa as stated, but it was due to circumstances beyond her control due to a lack of finance.

24. The Tribunal said, at paragraph 22, that whilst gaps in the Applicant’s enrolments and studies are not determinative of the Tribunal’s considerations in relation to the extent of her compliance with her visa conditions, they are, nonetheless, relevant. 

25. The Applicant accepted that she was aware of her visa conditions to be enrolled in an appropriate course.

26. At paragraph 23, the Tribunal said:

    In all the circumstances, the Tribunal finds that the extent of the applicant’s compliance with her visa conditions is a matter that weighs in favour of cancellation of her visa.

27. I have singled out this particular aspect for reasons that will become relevant further in these reasons.

28. The Tribunal then looked at a number of other aspects; one of those aspects was whether she had a compelling need to remain in Australia.  The Tribunal found that her need to remain in Australia was that she wanted to complete her studies and be able to work in Australia as a nurse so that she could provide financial assistance to her younger sister who lives in Kenya as well as her mother.

29. The Tribunal did consider that the primary purpose of the Applicant’s stay in Australia was to work and not to study.  This stated intention to work in Australia following the studies was something that the Tribunal gave weight to in favour of cancellation of the visa. 

30. The compelling need to stay in Australia was a matter that was given weight against the cancellation of the visa.

31. The Tribunal then looked at the circumstances in which the ground of cancellation arose, and ended up accepting that the Applicant had made attempts to obtain an alternate source of funds to pay for her studies once her mother in Kenya was unable to assist her, but those efforts were limited and had little real prospect of success in all the circumstances.

32. The Tribunal noted, in looking at what it was that the Applicant had said about this, that simply contacting people in the hope that they could help her financially for a period in excess of two years did not demonstrate a realistic attempt to obtain funds to progress her education.

33. At paragraph 43, the Tribunal said that while the initial circumstances leading to her financial difficulties were somewhat beyond her control, thereafter the Applicant took matters into her own hands in circumstances where it would have been obvious to her that she was not going to be able to secure sufficient funds and, accordingly, at paragraph 44 the Tribunal gave those considerations weight in favour of cancellation of the visa.

34. The Tribunal then looked at the degree of hardship that may be caused, and noted that the Applicant had no family members in Australia, or anyone else in Australia that she had a responsibility towards.  The Applicant had said that the hardship to her would be that if she went home she did not think that her mother would take her back, because she would think that the Applicant did not work hard enough, and she thought that she would have to live with her elderly grandparents, and that she had not spoken with her mother since advising her of the cancellation of the visa.

35. The Tribunal noted that there was no evidence of any further hardship, and the Tribunal reminded her that this hearing was her opportunity to put forward anything that she wished to be taken into account.

36. The Tribunal was accepting of the fact that the cancellation of the visa would be disappointing for the Applicant, and for those who provided financial support, and the Tribunal accepted that there was a degree of uncertainty in relation to where the Applicant would live upon her return to Kenya, or what she would do when she returned to Kenya.

37. The Tribunal also accepted that leaving Australia, having lived here for quite some time, certainly over three years, could result in her experiencing hardship of a financial, psychological, or emotional kind, notwithstanding that there was not any specific evidence to support that finding.

38. The Tribunal said, at paragraph 49, that the weight of those hardships against cancelling the visa must, however, be balanced against the Applicant’s breach and the circumstances giving rise to that breach.  Ultimately, the Tribunal only gave limited weight against cancellation of the applicant’s visa under this factor.

39. The Tribunal looked at the Applicant’s past and present conduct towards the Department and said that there was nothing to indicate any adverse conduct, and so gave limited weight against cancellation for that factor. The Tribunal then looked at whether there were mandatory legal consequences to a cancellation decision, and looked at the fact that the Applicant would become an unlawful non-citizen and liable to detention and removal.

40. The Tribunal noted that there was a level of uncertainty arising from the Covid-19 pandemic, and given that this was April 2020, the level of uncertainty was quite stark.  The Tribunal noted that the Applicant may not be able to leave Australia because of this and that she may end up being detained before being removed.

41. The Tribunal noted that the Applicant could be prevented from making a valid onshore visa application because of the cancellation and the Tribunal noted that she might make another visa application offshore, but she could be precluded from being granted a visa for a period of three years.

42. The Tribunal accepted, at paragraph 56, that being precluded from being granted another visa for a period of time, together with the other potential consequences of cancellation, including possible detention, were factors in favour of the exercise of discretion not to cancel the visa.

43. The Tribunal looked at whether there were any international obligations that Australia owed and found that there were none, so there was no weight placed on this aspect in considering the visa. 

44. The Tribunal found that there were no other relevant matters to take into consideration.

45. Having undertaken a very thorough investigation of all of the aspects, the Tribunal said at paragraph 59:

    Considering the circumstances as a whole, particularly the circumstances in which the ground for cancellation arose, the extent of the applicant’s compliance with the visa conditions, and, to a lesser degree, the purpose of the applicant’s stay in Australia, the Tribunal considers that, on balance, the factors favouring the exercise of discretion to cancel the visa outweigh those against exercising such discretion.

46. For those reasons, the Tribunal affirmed the decision that the Applicant’s student visa be cancelled.

47. The ground of this application was that, in exercising its discretion whether or not to affirm the cancellation of the Applicant’s subclass 500 visa, the Tribunal’s decision was affected by jurisdictional error, in that it misconstrued the requirements of item 8202 of schedule 8 of the Migration Regulations 1994 (Cth) (“the Regulations”).

48. The particulars given were that:

    (a)Once satisfied that there were grounds for cancelling the applicant’s visa under s 116, the Tribunal was obliged to consider the extent of the applicant’s compliance with her visa conditions when deciding whether the decision to cancel the visa should be affirmed.

    (b)In doing so, the Tribunal proceeded to make findings on the understanding that the applicant was in breach of condition 8202 if she was not studying or if she failed to successfully complete her studies.

    (c)This was a misconstruction of condition 8202, which does not require visa-holders to study continuously or to complete their studies.

49. The Applicant, through her legal representative, expanded upon these grounds in oral argument today before me.  The Applicant said that the Tribunal found that the Applicant was in breach from approximately June 2017 and gave this finding weight in favour of exercising the discretion to cancel the visa.

50. Having gone through the Tribunal’s reasons, it does not seem to me that the Tribunal did make any such finding at all.  The Tribunal was very clear that the breach of the condition that enlivened the discretion was the breach that occurred with the cancellation on 4 April 2019.  The Tribunal did not make any such finding that the Applicant had been in breach for some two years beforehand.

51. The facts that were before the Tribunal were that the Applicant had enrolled in a number of courses, but had never started those courses or studied those courses because she simply lacked the funds to do so.  That is a matter that certainly goes to the discretion.

52. The argument that the Applicant makes is that the Tribunal mentions those matters when looking at the compliance of the Applicant to her visa conditions.  Her visa conditions were that she remain enrolled.  The Applicant submits that she did remain enrolled.  The fact of whether she was actually studying or actually engaging in the course is not a matter that one looks at in taking into consideration whether the Applicant had complied, or what the extent of compliance was, with the condition.  The condition was simply that she remain enrolled.

53. In doing what the Tribunal did, the Applicant argues that the Tribunal has misunderstood that enrolment is simply that – enrolment does not require progress within the course itself.

54. The other aspects of that condition – that is, that she be enrolled, that she achieve satisfactory achievements within the course, and that she have satisfactory attendance at the course – are matters that are, in effect, given to the Department by the educational provider.  If the educational provider has not deemed that the person has failed to achieve satisfactory achievement, or the education provider has not notified the Department that the student or visa-holder has failed to have satisfactory attendance at the course, then there is no evidence that there has been anything other than compliance with those conditions.  The Applicant argues, in looking at that aspect, the Tribunal has misunderstood what it is meant to look at with regard to compliance with the visa conditions.

55. The Applicant submits that this, therefore, was a jurisdictional error that led it to draw conclusions which were central to its decision to affirm the decision to cancel the Applicant’s visa.  The Applicant submits what follows from this is that, if it were that the Tribunal had concentrated solely on whether the Applicant had complied with the conditions of the visa, there was a realistic prospect that it would have affected the outcome.

56. Whilst this may be seen as a technical argument, one does have to have a look at what the Tribunal was meant to do.  As I have explained earlier in these reasons, the Tribunal had correctly found that the discretion to cancel the visa had been enlivened by the failure to comply with the condition that the Applicant be enrolled in a course.  It was then for the Tribunal to look at and take into account any matters that it found relevant as to the exercise of the discretion.

57. The fact that it was looking at the extent of compliance with the visa conditions was an aspect that it had a guideline to do. This was an aspect that did not have the force of legislation, in the form of either the Act or the regulation – it was a guideline. To look at the phrase, “The extent of compliance with visa conditions”, in a very narrow and legalistic way is not the manner in which the Tribunal should be exercising the discretion.

58. The fact is that the Applicant had breached the visa conditions.  The Tribunal is not precluded from looking at all of the circumstances when looking at the extent of compliance.  In looking at the extent of compliance, it would be counterintuitive to simply say that the Applicant was enrolled in a course in 2017, but that was cancelled, then re-enrolled in a course again soon after that first cancellation, but then that was cancelled, and then enrolled in another course, and that was cancelled in April 2019, and to look at those matters solely.  That would not be a proper way in which to exercise the discretion.

59. The way in which the Tribunal did look at it was to look at what is the realistic extent of compliance; that, in effect, the Applicant was maintaining enrolment, but such was, in effect, a matter where the Applicant was enrolled in courses to ensure compliance with her visa conditions, but was not actually doing any of the studies or actually progressing in the course enrolled. 

60. That, to my mind, is a very important aspect to consider when looking at the extent of compliance when deciding whether the discretion ought be exercised or not.

1. To my mind, to look beyond the simple fact of whether there was an actual enrolment and nothing more, is not a jurisdictional error when assessing the extent of compliance with the visa conditions.

2. Having found that that does not amount to a jurisdictional error, it follows that the application is dismissed with costs in the sum of $5000.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       23 February 2021