Kumar v Minister Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1020
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1020
File number: MLG 74 of 2019 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 9 November 2023 Catchwords: MIGRATION LAW - Administrative Appeals Tribunal affirmed delegate’s decision to cancel Subclass 572 Vocational Education and Training Sector visa – whether Tribunal considered Applicant’s claim that enrolment records should not be relied upon – whether the Tribunal breached procedural fairness obligations under s 359A and/or s 359AA of the Migration Act 1958 (Cth) –
application dismissed – costs orderedLegislation: Migration Act 1958 (Cth) ss 116(1)(fa), 359A and 359AA Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
AYY17 v Minister for Immigration and Anor [2017] FCCA 2886
Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; (2021) 390 ALR 590; [2021] HCA 17
NARV v Minister for Immigration and Multicultural Affairs (2003) 133 FCR 8
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
SZMCD v Minister for Immigration and Citizenship (2008) 219 FLR 141
SZYBR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submissions: 12 October 2023 Date of hearing: 12 October 2023 Place: Melbourne (by videoconference) Counsel for the Applicant: Mr White Solicitor for the Applicant: Clothier Anderson & Associates Counsel for the First Respondent: Mr Lessing Solicitor for the First Respondent: Clayton Utz The Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG 74 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANDEEP KUMAR
Applicant
AND: MINISTER FOR IMMGIRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application filed 10 January 2019, and amended 13 September 2023, is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,509.70.
3.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed on 10 January 2019 (Application) and amended 13 September 2023 (Amended Application) the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 6 December 2018 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The Tribunal’s Decision affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to cancel the Applicant’s Student (Temporary (class TU) Vocational Education and Training Sector (subclass 572)) visa (Visa) (Tribunal’s Decision).
The hearing of this proceeding took place on 12 October 2023 at the Melbourne Registry of the Court (Hearing). Both the Applicant and the Minister were represented by Counsel.
ISSUES IN DISPUTE
The issues in dispute are whether the Tribunal erred in its decision by:
(a)Failing to give proper, genuine and realistic consideration to evidence before it; and
(b)Breaching its obligations under s 359A of the Migration Act, by failing to provide clear particulars of adverse information to the Applicant.
SYNPOSIS
I have determined that no jurisdictional error can be found in the Tribunal’s Decision. The Tribunal did not fail to consider relevant evidence and claims, and did not fail to comply with codified procedural fairness obligations.
BACKGROUND
The Court has before it a Court Book numbering 184 paginated pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s Written Submissions, filed 20 September 2023 (Minister’s Submissions) accurately summarised the factual history of this matter, at [3] to [27]. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant, a citizen of India, arrived in Australia in August 2009 as a student. Between 2009 and 2015 the Applicant undertook and completed vocational courses in Australia.
On or around 16 March 2015 the Applicant enrolled in a Diploma of Marketing and Advanced Diploma of Marketing at the South Pacific Institute (Institute).
On 24 April 2015 the Applicant was granted the Visa on the basis of the Applicant undertaking and completing the following study plan:
(a)Diploma of Marketing with the Institute from 16 March 2015 to 28 February 2016; and
(b)Advanced Diploma of Marketing with the Institute from 14 March 2016 to 12 March 2017.
The Provider Registration and International Student Management System (PRISMS) recorded that the Applicant commenced the Diploma of Marketing between 16 March 2015 and 19 July 2015.
On 22 July 2015 the Applicant’s enrolment in the Diploma of Marketing was cancelled due to a change of a course in the same sector, subsequently cancelling the Advanced Diploma.
On 22 July 2015 the Applicant obtained a new enrolment in Diploma of Marketing from 20 July 2015 to 28 February 2016 and in Advanced Diploma of Marketing from 14 March 2016 to 12 March 2017 with the Institute. PRISMS recorded that the Applicant undertook these studies between 20 July 2015 and 4 January 2016.
On 8 January 2016 the Applicant’s enrolment in Diploma of Marketing was cancelled with the reason recorded in PRISMS as: ‘Student Notifies Cessation of Studies’. This subsequently cancelled the Applicant’s enrolment in the Advanced Diploma of Marketing.
On 11 October 2016 the Applicant obtained a further new enrolment in Diploma in Marketing for the period 26 September 2016 to 8 January 2017. PRISMS recorded that the Applicant finished the Diploma in Marketing on 9 January 2017, however the records do not indicate whether the Applicant successfully completed the Diploma in Marketing. The Applicant did not receive a confirmation of enrolment letter after that date.[1]
[1] Court Book (CB) 24-25; 60 and 61; 149, [10].
On 5 December 2016 the Department of Immigration and Border Protection (Department) contacted the Institute and the Applicant by email for contact details for the Applicant. On 6 December 2016 the Applicant and the Institute replied by email to the Department confirming the Applicant’s contact details. The Department also confirmed by email with the Applicant that he agreed to receive communications by email.[2]
[2] CB 1-10.
On 13 December 2016 the Department contacted the Institute by email seeking the following information in relation to the Applicant within five (5) days:
(a)Academic transcripts, including information about the number of units the Applicant had not completed or failed;
(b)Detailed attendance records and the Applicant’s percentage attendance for each course;
(c)All warning letter and intention to report notices;
(d)Any appeals submissions and the outcome letter; and
(e)Any deferral applications and the outcome letter.[3]
[3] CB 11.
The Department’s email to the Institute dated 13 December 2016 also requested verification from the Institute regarding the PRISMS record, that on 8 December 2016 the Applicant requested a cessation of studies stating “Student requests to change to BSB training package”. The Department requested verification as to what this statement meant.
On 20 December 2016 the Institute provided the following information by email to the Department:
[…]
Please find attached the requested information for the above student.
1. Statement of attainment
2. Attendance records for last four weeks as per College's policy.
3. There was no warning letters,Intention to report notices issued to student.
4. Ecoe code 74C73F50 was created on 22/07/2015 at that time Mandeep's ecoe was changed due to change of training package. [4]
(Without alteration)
[4] CB 12-17.
The documents attached to the Institute’s email dated 20 December 2016 indicated that the Applicant had received: a competent for one (1) module, a credit transfer for six (6) modules and an interim partially complete RNA for one (1) module and had failed to attend the Institute for one (1) session each week for the previous four (4) weeks.
In an email of 22 December 2016 the Department sought further information from the Institute as follows:
[…]
Thank you for the below email with attached records.
I could like to clarify the statement of attainment provided shows that the subjects are for Diploma of Marketing. However I was unable to determine which COE this is in reference to and what period it covers. I note that majority of the subjects are credit transfers, and seems to indicate that the student has only studied one subject. When did he study this subject?
Also, in my original email I requested evidence of all courses that he studied and completed with South pacific Institute. Could you please provide academic transcript and evidence of completed courses since he commenced with your institute.
PRISMS shows that there was a study gap between 8 January 2015 and September 2015. Was the student attending during this time? If so, could you please provide evidence to support this.
A response to this email would be greatly appreciated at your earliest convenience.
[…][5]
(Without alteration)
[5] CB 18-19.
The Court notes that the Department’s email dated 22 December 2016 was not delivered to the Institute due to an error. The evidence indicates that the email was sent to an incorrect email address.[6]
[6] CB 20-21.
On 9 January 2017 the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the Applicant.[7] The NOICC outlined the grounds for cancellation under s 116(1)(fa)(i) of the Migration Act and the reasons the Department was considering cancelling the Applicant’s Visa. Relevantly, the NOICC stated:
[7] CB 22-30.
[…]
Therefore, Departmental records suggest:
You applied for a Student (Temporary) (class TU) Vocational and Training Sector (subclass 572) visa which was granted 24 April 2015 to study Diploma of Marketing and Advanced Diploma of Marketing. You have not maintained the study plan that you outlined when you applied for your student visa.
You did not study between 8 January 2016 and 26 September 2016. This indicates that you had not studied for a cumulative period in excess of eight (8) months.
You have no current valid CoE in a Vocational Education and Training Sector level course required by your visa.
Based on the information before me, it would appear that your primary intention is not likely to be to undertake study. Therefore it would appear that you are likely not to be a genuine student.
Student visas (subclass 570-574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia. That you would give priority to your ongoing enrolment, and participation, in a CRICOS registered course of study was the principal basis for the grant of your student visa, and is expected of any genuine student.
Your lack of progress over a substantial period of time, whilst nonetheless choosing to remain in Australia on a visa solely existing for your engagement in study, indicates to me that you are not a genuine student.
[…][8]
[8] CB 25.
On 13 January 2017 the Applicant’s nominated representative (Representative) sent an email to the Department requesting an extension of time to respond to the NOICC. The Representative did not provide a reason.[9] On the same day the Department replied to the Representative by email advising that: the Migration Act allowed a delegate to extend the time for a response by five (5) working days only once; the requested extension was granted; any information provided would be taken into consideration; and that after the extension period ended a decision would be made.[10]
[9] CB 31-34.
[10] CB 35-36.
On 23 January 2017 the Representative provided by email a response to the Department which explained that the changes in his enrolment and the periods where he was not enrolled in studies were due to the conduct of the Institute. The Applicant asserted that the Institute changed his enrolment status without his knowledge or consent, and that at all times he had continued to complete courses pursuant to the Visa. The Applicant outlined the studies that the Applicant had completed since arriving in Australia in 2009. The Representative forwarded with the email and referred to an article regarding training providers of concern, of which the Institute was one (1) provider that had its contract with the Victorian State Government terminated.
On 24 January 2017 the Delegate cancelled the Visa on the basis that the Applicant was not a genuine student given that he had not: studied for a cumulative period in excess of eight (8) months between 8 January 2016 and 26 September 2016; completed the courses for which his Visa was granted; demonstrated a primary intention to study whilst in Australia; and that the reasons for cancelling the Visa outweighed the reasons for not cancelling the Visa (Delegate’s Decision).[11]
[11] CB 59-66.
PROCEEDINGS BEFORE THE TRIBUNAL
On 3 February 2017 the Applicant lodged an application for review of the Delegate’s Decision with the Tribunal.[12]
[12] CB 67-83.
On 15 June 2017 the Representative sought information relating to the Applicant from the Tribunal.[13] On 21 June 2017 the Representative was granted full access to the written material held by the Tribunal.[14]
[13] CB 95-98.
[14] CB 99-101.
The Institute closed down in January 2018.
On 9 October 2018 the Applicant was invited to attend a hearing before the Tribunal.[15]
[15] CB 110-120.
On 28 October 2018 the Representative submitted further documents to the Tribunal, including links to media reports regarding the Institute and receipts of payments by the Applicant to the Institute.[16]
[16] CB 125-129.
On 30 October 2018 the Applicant and his Representative attended a hearing before the Tribunal (Tribunal Hearing).[17] After the Tribunal Hearing the Representative sent further information and documents by email to the Tribunal about the activities of the Applicant from 8 January 2016 to 25 September 2016.[18]
[17] CB 131-136.
[18] CB 137-140.
On 6 December 2018 the Tribunal affirmed the Delegate’s Decision.
THE TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 142 to 157 of the Court Book. The Minister’s Submissions, at [28] to [35], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
The Tribunal first identified that the Delegate cancelled the Visa under s 116(1)(fa)(i) of the Migration Act on the basis that the Applicant was not, or was likely not to be, a genuine student. The Tribunal outlined the Minister’s power under s 116 of the Migration Act to cancel a visa. The Tribunal referred to Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 where the Court held at [32], that the reference to ‘genuine student’ in s116(1)(fa)(i) of the Migration Act is “directed to circumstances where a student visa holder has been in literal compliance with the visa conditions […] yet has not conducted him or herself as a genuine student […]”. The issue for determination in this matter was whether the Applicant was a genuine student or if he was engaging or likely to engage in conduct (including omissions) not contemplated by the Visa.[19]
[19] CB 148, [5]-[7].
The Tribunal then discussed the evidence and submissions in relation to the ‘malpractice’ of the Institute and the Applicant’s enrolment and completion of courses. The Applicant informed the Tribunal: that he had completed the Diploma of Marketing but did not have any written evidence; that he was currently enrolled in the Advanced Diploma of Marketing; that he did not know that he was not enrolled until September 2016; and that he had made payments to the Institute. The Tribunal raised with the Applicant that he had held student visas for seven (7) years, taking a range of low level, comparatively cheap courses which may indicate a motivation to remain in Australia, rather than to study and progress. The Applicant stated that he intended to complete his studies and then market his own business in the automotive industry. The Tribunal remained concerned as the Applicant had not explained the circumstances surrounding the period he was not enrolled, nor explained why he needed to undertake the courses.
The Tribunal considered the submissions of the Applicant and the Representative in relation to the Institute’s failure to follow guidelines. The Tribunal accepted that the Institute was a provider of concern to the Victorian State Government in 2016, which resulted in its contracts for provision of services being cancelled in 2016 and the Institute closing down in January 2018. However, the Tribunal concluded that the concerns with the Institute did not explain in whole or in part the behaviour of the Applicant, noting that the Applicant had not made a complaint and had not been issued with a transcript or certificate.
The Tribunal did not accept the Applicant’s claims given the Tribunal’s concerns with the Applicant’s evidence. The Tribunal found “that the Applicant was aware that he was not enrolled for, at least, much of this period and I find that this then raises serious questions about whether the applicant was in this time, a genuine student”: Tribunal’s Decision [30]. The Tribunal also found that the Applicant’s study history did not indicate “that he was undertaking these courses, and proposes to undertake these courses, for the stated reason of returning to India and work in the automotive business and market that business”: Tribunal’s Decision [31].
The Tribunal was satisfied that the ground for cancellation in s 116(1)(fa)(i) of the Migration Act existed. The Tribunal then considered its discretion to cancel the Visa as against various matters in the Department’s Procedures Advice manual (PAM3) ‘General visa cancellation powers’, before affirming the decision under review.[20] The Tribunal gave some weight to the purpose of the Applicant’s stay in Australia, balancing concerns with the fact the Applicant had completed some studies. The Tribunal gave some weight towards cancellation given the Applicant’s non-compliance with the Visa conditions, as he was not enrolled in a nominated course from 9 January 2016 to 10 October 2016. The Tribunal considered that little hardship would be caused if the Visa were cancelled, as the Applicant provided minimal detail regarding this factor. The Tribunal found that the circumstances in which the ground for cancellation arose were not beyond the Applicant’s control and therefore gave significant weight to the Visa being cancelled. The Tribunal considered the mandatory legal consequences of cancelling the Visa and determined that whilst there may be limits on the Applicant’s ability to apply for further visas, this factor did not weigh towards the Visa not being cancelled. The Tribunal noted that the Applicant had been cooperative and there were no international obligations affecting whether the Applicant’s Visa could be cancelled.
[20] CB 154, [34] – CB 156 [49].
The Tribunal was satisfied that the Visa should be cancelled and affirmed the Delegate’s Decision.
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 10 January 2019, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 24 August 2023 Orders were made for the Applicant to file: an amended application with proper particulars of the grounds of the application, written submissions and any additional evidence on which the Applicant relies.[21] Orders were also made for the Minister to file written submissions and any additional evidence on which the Minister sought to rely.[22]
[21] Orders made by Registrar Downing on 24 August 2023, Order 3.
[22] Orders made by Registrar Downing on 24 August 2023, Order 4.
The Applicant relied upon the following documents at the Hearing:
(a)The Amended Application;
(b)The Affidavit of Catherine Farrell, lawyer, affirmed and filed 10 January 2019 (Farrell Affidavit), annexing, the Tribunal’s Decision;
(c)The Applicant’s Outline of Submissions, filed 13 September 2023 (Applicant’s Submissions);
(d)The Affidavit of Jasmine Pilbrow, lawyer, affirmed and filed 13 September 2023 (Pilbrow Affidavit), annexing the transcript of the Tribunal Hearing; and
(e)The Applicant’s List of Authorities, filed 22 September 2023 and the decision of NARV v Minister for Immigration and Multicultural Affairs (2003) 133 FCR 89 (NARV).
The Minister relied upon at the Hearing:
(a)The Response, filed 7 February 2021;
(b)The Minister’s Submissions;
(c)The Affidavit of Jackson Macaulay, lawyer, filed 20 September 2023 (Macaulay Affidavit); and
(d)The List of Authorities filed 12 October 2023 and the decision of VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (VHAP).
At the commencement of the Hearing the following were entered as exhibits:
(a)The Pilbrow Affidavit as Applicant’s Exhibit 1.
(b)The Farrell Affidavit as Applicant’s Exhibit 2.
(c)The Court Book as Respondent’s Exhibit 1.
(d)The Macaulay Affidavit as Respondent’s Exhibit 2.
At the commencement of Counsel for the Minister’s submissions, the relevance of the Macaulay Affidavit was raised by Counsel for the Applicant. The Macaulay Affidavit was admitted without objection on the basis that its relevance was to be dealt with by way of reply submissions.[23]
[23] Transcript P19:L36-P20:L26.
In the Amended Application, the Applicant relied on two (2) grounds of review (Grounds of Review):
[...]
1.The Tribunal made findings that were illogical, irrational, legally unreasonable or affected by an undisclosed error, in relation to the Applicant’s claims as to his education provider’s negligent conduct.Particularsa) The Tribunal accepted that the South Pacific Institute had its contracts cancelled by the State Government of Victoria in August 2016 and that South Pacific Institute closed down in January 2018.b) The Tribunal accepted that the South Pacific Institute was a provider of concern to the Victorian state government in 2016.c) The Tribunal relied on third party information published by The Age confirming that some named education providers in that article ‘scammed the system’ by enrolling the same students more than once and failing to provide proper training.d) The Tribunal accepted that the Applicant paid money on 12 January 2016 and on 4 March 2016 from his account to South Pacific Institute for studies (either past or present).e) The Tribunal rejected the Applicant’s claim to have been a genuine student while at South Pacific Institute between March 2015 and January 2017 on the basis that;a. The Applicant had not made a complaint to relevant oversight bodies, which would have provided corroboration of his claims;b. The Applicant should have known he had not completed his Diploma at the end of February 2016, as he had not been issued a completion certificate or diploma;c. Being a ‘poor provider’ that had been shut down, it was not credible that South Pacific Institute would have allowed an applicant to attend and undertake assessment in a class that he was not enrolled in and that they could not charge him for.f) In the context of the Applicant being able to provide objective evidence that South Pacific Institute had closed down after having contracts cancelled by the Victorian government, it was unreasonable to expect the Applicant to have also and additionally made a complaint to an oversight body.g) Further, in light of the Applicant’s evidence that he was continuing to pay funds to that college in the first half of 2016, it was irrational or illogical to conclude that the ‘poor provider’ would have ceased his enrolment when it badly needed money, or would not have asked the Applicant for extra money to provide his qualifications to him. The evidence before the Tribunal indicated that colleges were engaging in unethical conduct to obtain funds from student visa holders and failing to perform at the expected level of the regulator.h) Finally, given the Tribunal’s concern that the college was a ‘poor provider,’ and the accepted evidence of the unethical practices of that provider before the Tribunal, the Tribunal’s conclusion that the institute would not have told him that they would issue the qualifications later or needed money to issue those qualifications to him was irrational or illogical.2.The Tribunal failed to give proper, genuine and realistic consideration to submissions and evidence before it, being
informationevidence published by The Age newspaper about South Pacific Institute and the submission that that evidence corroborated the Applicant’s claims concerning his enrolment. (Ground 2)Particulars
a) The Applicant gave evidence that he enrolled in a Diploma of Marketing and Advanced Diploma of Marketing at South Pacific Institute [para 14, Tribunal’s decision] on or around 16 March 2015 and studied until July 2015 (as confirmed by PRISMS, para 10, Tribunal’s decision].
b) The Applicant confirmed that his enrolment in the Diploma was cancelled by that provider on 22 July 2015 and that he then re-enrolled in the same courses on the same day, without his knowledge or consent [para 11, Tribunal’s decision]. PRISMS confirmed this change was due to ‘variation reason: change to the course in the same sector’ [para 10, Tribunal’s decision].
c) PRISMS indicated that the Applicant studied that course between 20 July 2015 and 4 January 2016 [para 10, Tribunal’s decision].
d) The Applicant gave evidence that his enrolment in the Diploma was cancelled again on 8 January 2016 on the basis that ‘student notifies cessation of studies,’ notwithstanding that he had not notified cessation of studies, nor been informed of that cancellation and, in fact, continued to attend classes regularly [para 16, Tribunal’s decision].
e) The Applicant gave evidence that he continued to go to school, and did not know his enrolment was cancelled until September 2016, when he was advised by his provider to re-enrol in the Diploma of Marketing. The Applicant re-enrolled on 26 September 2016 until 8 January 2017 [para 10, Tribunal’s decision].
f) The Applicant provided a newspaper article published by The Age confirming that some training providers whose contracts had been cancelled by the Federal Government, including South Pacific Institute, ‘scammed the system by enrolling the same students more than once’ [para 12, Tribunal’s decision]. The article confirmed that those colleges had engaged in ‘rorts, unauthorised subcontracting and poor quality trading.’
g) The Tribunal failed to give genuine, proper and realistic consideration to this information,
whichor to the submissions that the information corroborated the Applicant’s narrative, to the effect that his education provider had cancelled his enrolment multiple times, without his consent, and, at times, without his knowledge and, finally, had sought to extract money from him in order to issue his completed transcript or certificate for the Diploma [para 30, Tribunal’s decision].3.The Tribunal took into account an irrelevant consideration, or imposed an impermissible burden of evidence on the Applicant.Particularsa) The Tribunal drew an adverse inference from the Applicant’s failure to have made a complaint to the relevant oversight bodies about South Pacific Institute.b) The Tribunal considered a newspaper article published by The Age confirming that some training providers, whose contracts had been cancelled by the Federal Government, including South Pacific Institute, ‘scammed the system by enrolling the same students more than once’ [para 12, Tribunal’s decision]. The article confirmed that colleges had engaged in ‘rorts, unauthorised subcontracting and poor quality trading.’c) In the context of third party evidence confirming that the Applicant’s education provider had closed, following cancellation of its contracts with the State government for unsatisfactory conduct, the Tribunal thus had, in hand, independent corroboration of the Applicant’s claims that his education provider had engaged in unsatisfactory and unethical conduct below the expected standard.d) In light of that information, the Applicant’s failure to make a complaint as to the standard of conduct of the provider constituted an irrelevant consideration. In the alternative, in the context of the provider already having been closed down, the Tribunal’s expectation that the Applicant would have made a complaint had his claims been true (but no longer being in a position to do so) created an impermissible evidentiary burden for the Applicant, which could not be met or remedied by the Applicant by the date of hearing.4.The Tribunal breached its obligation under s 359A and/or 359AA of the Migration Act 1958 (Cth) to provide clear particulars of adverse information to the Applicant. (Ground 4)
Particulars
a) The Tribunal must give to the Applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review, and, ensure, as far as is reasonably practicable, that the Applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision under review, and invite the Applicant to comment on or respond to it.
b) The Tribunal considered that the Applicant’s inability to clearly explain how the courses he was undertaking when the visa was cancelled, and that he proposed to undertake, fitted clearly into his claimed career path of setting up a business in the automotive industry, formed part of the reason that he was not, or was not likely to be, a genuine student [para 31, Tribunal’s decision].
c) The Applicant gave evidence that his proposed studies in marketing would assist him in his proposed plan to set up and market his own business in the automotive industry upon returning to India, given that he had automotive technology qualifications already [para 25, Tribunal’s decision].
d) The Tribunal
took the viewhad information that a Diploma of Marketing would typically be gained by someone to manage or work in a team in a medium to large business in a marketing area, rather than an individual business. The Applicant responded that the qualification would help him in his business [para 25, Tribunal’s decision].e) The Tribunal’s
viewinformation that a Diploma of Marketing would not help an individual business owner to market his or her business and thus significantly undercut the Applicant’s claim to be a genuine studentformedwas ‘information’ which the Tribunal considered to be part of the reason for affirming the decision under review.f) Given that, the Tribunal was obliged to formally put that
viewinformation to the Applicant under s359A or 359AA, to ensure that the Applicant understood why it was relevant to the review and to invite comment. The Tribunal breached that obligation.[…]
(Words in bold added, otherwise without alteration)
CONSIDERATION
The finding that the Applicant was not a ‘genuine student’
The Applicant’s Visa was cancelled under s 116(1)(fa) of the Migration Act, which provided as follows:
116 Power to cancel
Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
[…]
(fa) in the case of a student visa:
(i)its holder is not, or is likely not to be, a genuine student; or
(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; […]
The Tribunal’s role was to determine whether there were grounds for cancelling the Visa under s 116(1)(fa) and if so, the Tribunal had to consider whether the visa ’should’ be cancelled as the ground for cancellation does not require mandatory cancellation under s 116(3) of the Migration Act.
Ground 2
Ground 2 claims that the Tribunal overlooked or misunderstood the evidence that the Institute was a training provider of concern. The Applicant contends that the Tribunal failed to properly consider information regarding the Institute and therefore made an error in its decision-making. Particulars (a) to (e) of Ground 2 provide background facts relating to Ground 2. Particular (g) contends that the Tribunal did not genuinely, properly or realistically consider the information as to how the Institute’s conduct impacted the Applicant. Counsel for the Applicant submitted that the point of “the submission is to the effect or was to the effect that the official enrolment status – that is, the status recorded in PRISMS – could not be relied upon as an answer to the question of whether the applicant was genuinely studying during the period that the record said that the applicant was unenrolled”.[24]
[24] Transcript P10:L21-24.
Whilst not clearly articulated in the Applicant’s Submissions, the rationale that follows is that if the Tribunal had properly considered the information before it, it would not have found that the Applicant was not a genuine student.
The Applicant’s submission regarding the Institute
Counsel for the Applicant submitted that the issue before the Tribunal was the credibility of the Applicant’s claim and whether despite the PRISMS records the Applicant continued to attend classes at the Institute.[25] Counsel for the Applicant submitted that the relevant submission made to the Tribunal was: that the PRISMS records were not a reliable reflection of whether the Applicant engaged in studies in accordance with visa requirements.[26] The Applicant contends that the Tribunal took the PRISMS records at face value and did not consider the Applicant’s claim that the Institute manipulated his enrolment status. The Applicant claimed that the PRISMS records could not be relied upon as reliable evidence of whether the Applicant engaged in courses in accordance with his Visa at a particular time. The information provided about the Institute was said to inform the Tribunal of the possibility and likelihood that the Institute was not reliably recording the Applicant’s enrolment status.
[25] Transcript P10:L5-15.
[26] Transcript P39:L16-20.
Counsel for the Minister submitted that the claim advanced by the Applicant before the Tribunal was that the Applicant was not enrolled in a course but continued to attend classes, not that the PRISMS records were incorrect, inaccurate or unreliable as submitted by Counsel for the Applicant.[27] Counsel for the Minister submitted that a submission must be expressly made, or clearly emerge from the materials before the Tribunal to find that the Tribunal failed to consider it: AYY17 v Minister for Immigration and Anor [2017] FCCA 2886 at [18].[28]
[27] Transcript P23:L44-P24:L3.
[28] Transcript P23:L8-24.
On the evidence before the Court the submission put to the Tribunal by the Applicant was that he was still engaging in his classes and undertaking studies despite the PRISMS records showing that he was unenrolled for a period of time. The Applicant’s submissions about the unreliability of the Institute were used to corroborate the Applicant’s submission that the PIRSMS records should not be taken as decisive evidence and that the Applicant continued to behave in accordance with the Visa requirements.
Whether the Tribunal dealt with the Applicant’s submissions regarding the Institute to the requisite standard
The Applicant submitted that the Tribunal did not grapple with or appreciate the Applicant’s submissions and evidence, such as The Age article (The Age Article) at page 44 of the Court Book, that the PRISIMS records could not be relied upon in determining whether the Applicant was a genuine student. Counsel for Applicant submitted that the Tribunal should not have used the PRISMS official enrolment status as a proxy for whether the Applicant was a genuine student or genuinely studying, given the corroboration of the information provided about the Institute and the Applicant’s other evidence.[29] Counsel for the Applicant contended that the Tribunal “appeared to accept that – the applicant’s enrolment records and the PRISMS data uncritically, and gave no consideration to the possibility that the Institute had manipulated the Applicant’s enrolment in any way, and gave no consideration to the possibility raised by the Applicant’s submission”.[30]
[29] Transcript P39:L25-29.
[30] Transcript P12:L7-11.
Counsel for the Minister submitted that the Tribunal had discharged its statutory tasks in accordance with Applicant WAEE v Minister for Immigration & Mulicultural and Indigenous Affairs [2003] FCAFC 184 at [47].[31]
[31] Transcript P29:L14-44.
As identified by the Minister Submissions at [43], an evident misunderstanding of a claim made by an applicant can constitute jurisdictional error in certain circumstances and involves a case specific inquiry: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, at [77] and [111].
The Tribunal stated from the commencement of the Tribunal Hearing that the issue was whether the Applicant was a ‘genuine student’. The Tribunal explained that ‘genuine student’ case law discusses “situations in which a student visa holder has been in literal compliance with visa conditions, but has not conducted him-or herself as a genuine student”.[32] The Tribunal raised from the outset that the conduct the Applicant engaged in may impact the assessment of whether he was a genuine student. The Applicant’s evidence was that the changes to his enrolment status were a result of the Institute making changes without his knowledge or consent.
[32] Affidavit of Jasmine Pilbrow, affirmed and filed 13 September 2023 (Pilbrow Affidavit), Annexure ‘JP-3”, 16, P3:L4-24.
I do not accept Counsel for the Applicant’s submission that the Tribunal did not recognise that the information provided, such as The Age Article, about the Institute corroborated the Applicant’s account and that consequently the PRISMS records could not be relied upon.[33] At [11] of the Tribunal’s Decision the Tribunal noted that the Applicant accepted that he was not enrolled and that his enrolment had been cancelled. The Applicant did not take issue with the accuracy of the PRISIMS records but indicated that the Institute incorrectly cancelled his enrolment and did not inform him. The Tribunal was entitled to rely on the PRISMS records and was entitled to attribute weight to these records as it deemed appropriate: Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [24] to [26].
[33] Transcript P11:L23-26.
It cannot be said that the Tribunal failed to properly engage with the evidence before it regarding the Institute. The Tribunal considered The Age Article as it referred to it several times, at [12], [13] and [29] of the Tribunal’s Decision. At [30] of the Tribunal’s Decision the Tribunal considered the evidence regarding the Institute and the Applicant and concluded that “I do not believe that this explains in whole or in part the behaviour of the Applicant”. The Tribunal accepted that the evidence before it indicated that the Institute was a provider of concern. The Tribunal engaged with the evidence regarding the Institute. However, the Tribunal found that the Applicant’s conduct was concerning. The Tribunal considered the status of the Institute as a “poor provider” alongside other factors including: whether the Applicant made formal complaints; whether he requested and received a confirmation of enrolment; whether he requested or received a transcript or certificate for his completed diploma; the Applicant’s payments in relation to fees; and the Applicant’s study history. The Tribunal evidently engaged with the Applicant’s submission that the PRISMS records should not be determinative of whether he was a genuine student.
Whether any failure to deal with the submission was material to the outcome of the review
Given the finding above, the Court is not required to determine the materiality of the Tribunal’s failure to properly consider the Applicant’s submissions. I note that I accept Counsel for the Minister’s submission that even if the Tribunal had overlooked a submission that the PRISMS records were unreliable, there was no realistic possibility of a different outcome as the Tribunal made various findings, including that the Applicant was aware he was not enrolled for a period, to conclude that the Applicant was not a genuine student.[34] The failure would not have been material given that the Tribunal based its assessment on other factors, as discussed above.
[34] Transcript P30:L15-24.
No jurisdictional error can be found in Ground 2. Ground 2 is therefore dismissed.
Ground 4
Ground 4 contends that the Tribunal breached its procedural fairness obligations under s 359A and/or s 359AA of the Migration Act. Section 359A of the Migration provides as follows:
359A Information and invitation given in writing by Tribunal
(1)Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies – by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4)This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(c) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(d) that is non-disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Section 359AA provides as follows:
359AAInformation and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so – the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information
[…]
Counsel for the Applicant submitted that the relevant adverse information cited by the Tribunal was “I noted that my understanding was that the Diploma of marketing would be gained by someone to manage or work in a team in a medium to large business in a marketing area” at [25] of the Tribunal’s Decision.[35]
[35] Transcript P12:L34-47.
Counsel for the Minister submitted that s 359AA(1)(a) expresses the obligation and power in permissive terms whilst s 359A(1) is a mandatory obligation. A breach of s 359AA can give rise to jurisdictional error if the Tribunal fails to provide particulars of ‘information’ and no exceptions in s 359A(4)(a) applies. Counsel for the Minister referred to MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; (2021) 390 ALR 590; [2021] HCA 17 at [32] as authority for the principle that even if the Tribunal did not comply with s 359A or s 359AA there was no practical injustice and therefore the error was within jurisdiction.[36]
[36] Transcript P37:L25-39.
Characterisation of the information before the Tribunal
Counsel for the Applicant submitted that the information was not a state of mind arrived at by the Tribunal but was information that was apparently drawn from the ‘MySkills’ website and therefore the information was captured by s 359A.[37] The Tribunal relied on the adverse information and therefore needed to put it to the Applicant. Counsel for the Applicant submitted that the Tribunal did not fulfil the mandatory requirements to discharge s 359AA as outlined in SZMCD v Minister for Immigration and Citizenship (2008) 219 FLR 141 (SZMCD) at [89].[38]
[37] Transcript P13:L27-29.
[38] Transcript P17:L24-P18:L13.
Counsel conceded that the Tribunal raised the adverse information and gave the Applicant an opportunity to respond, however submitted that the Tribunal did not ensure that the Applicant understood the adverse information and advise the Applicant that he may seek additional time to provide further information.[39] Counsel for the Applicant submitted that the Macaulay Affidavit was not relevant.[40] Counsel submitted that the website used to gather information by the Tribunal was different from that cited by the Tribunal and that the information was different to the information cited by the Tribunal.[41] Counsel for the Applicant submitted that the Applicant provided the information after the Tribunal Hearing, not before, and therefore it could not have been information relied upon.[42]
[39] Transcript P18:L15-46.
[40] Transcript P39:L37-42,
[41] Transcript P16:L23-27.
[42] Transcript P40:L45-P41:L4.
Referring to [25] of the Tribunal’s Decision, Counsel for the Minister submitted that the Tribunal stated its view or assessment of the information from documents about the Diploma of Marketing, rather than quoting or paraphrasing them.[43] The Minister referred to SZYBR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] which affirmed that ‘information’ “does not encompass the Tribunal’s subjective appraisals, thought processes or determinations” and held that disbelief of an applicant’s evidence arising from inconsistencies cannot be characterised as information. Counsel for the Minister noted that the Tribunal has a broad power under s 359(1) of the Migration Act to obtain information.[44]
[43] Transcript P32:L10-17.
[44] Transcript P32:L46-P33:L2.
The Minister’s Submissions at [53] described the information as generic information provided by the Australian Government as a guide to the purpose of a Diploma in Marketing”. The Minister’s Submissions at [54] further submitted that the information was “substantially the same” as the information provided by the Applicant.
In SZMCD at [89] information was broadly defined as “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”. The Tribunal stated “I noted that my understanding was that the Diploma of marketing would be gained by someone to manage or work in a team in a medium to large business in a marketing area, which did not appear to be what he was indicating to me”: [25] Tribunal’s Decision. In the Tribunal Hearing Transcript the Tribunal raised the purpose of the courses with the Applicant,[45] and invited the applicant to make submissions, which he did. [46]
[45] Pilbrow Affidavit, Annexure “JP-3” 26, P13:L39.
[46] Pilbrow Affidavit, Annexure “JP-3” 31, P18:L30.
I accept the Minister’s submission that the Tribunal looked at the evidence regarding the Diploma of Marketing and formed a view about the purpose of undertaking the studies. The Tribunal sought and considered information regarding the Diploma of Marketing, which included information from the sources cited in the Tribunal’s Decision. The Tribunal’s subjective appraisal of what the Diploma of Marketing is undertaken for is not information for the purposes of s 359A and 359AA. The statutory requirements therefore did not apply.
Whether an exception applies in s 359A of the Migration Act
Given the finding above, it is not necessary to determine whether an exception in s 359A applies. I note that I found the alternative submissions made by Counsel for the Minister persuasive. It was submitted that s 359A(4)(a) applies to the information relied on by the Applicant as the information was about a class of persons - students studying a Diploma of Marketing - and not about the Applicant personally.[47] It was also submitted in the alternative, that s 359A(4)(b) applies because, as demonstrated by the McCauley Affidavit, the Tribunal used information to form a view about the course which was the same as the information provided by the Applicant.[48] The Minister submitted that accordingly the exclusionary effect of s 359A(4)(b) was that s 359A and 359AA do not apply and that the Tribunal was not required to put information concerning a person studying or considering a Diploma of Marketing to the Applicant.
[47] Transcript P35:L17-25.
[48] Transcript P35:L25-P36:L35.
In response, Counsel for the Applicant contended that the information did not fall within the exception in s 359A(4) as the information was about the Diploma of Marketing, not the Applicant personally or a class of persons of whom he was a member.[49] Counsel for the Applicant likened the information in this case to information about document fraud in Bangladesh and the reliability of information before the Tribunal in NARV.[50] Counsel for the Applicant also submitted that the information was not information put by the Applicant as there was no factual basis for this.[51] I did not find this argument persuasive.
[49] Transcript P14:L18-21.
[50] Transcript P15.
[51] Transcript P16:L3-8.
At [31] in NARV the Court said that information that is “not specifically about the applicant or another person and is not “just about” a class of persons of which the applicant is a member” should be disclosed if it would be the reason or part of the reasons for affirming the decision under review. Counsel for the Applicant conceded that the judgment of VHAP was delivered after NARV but submitted that the judgment of NARV had not been entirely overruled and that the nature of the information in question in each matter was distinguishable.[52]
[52] Transcript P40.
Practical injustice
I note that even in the event that the information was information for the purposes of s 359A of the Migration Act and no exceptions applied, on the evidence before me no practical injustice resulted. The Applicant was given the opportunity to respond. The Tribunal considered the Applicant’s evidence about the purpose of his studies. The Tribunal did not accept the Applicant’s submissions regarding his intentions to study and work.
No jurisdictional error can be found in Ground 4. Ground 4 is therefore dismissed.
CONCLUSION
The Application must be dismissed.
The Minister sought costs fixed in the amount of $7509.70. This amount is below the scale amount in Item 3 of Division 1 of Part 2, Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)Rules 2021 (Cth).
Orders will be made accordingly.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 9 November 2023
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