Lui v Minister for Home Affairs

[2019] FCCA 1116

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUI v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1116

Catchwords:
MIGRATION – Student visa – failure to remain enrolled in a course of study – visa cancelled – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.116, 476(1)

Migration Regulations 1994 (Cth) rr.573.231, 8516

Cases cited:

CNN15 v Minister for Immigration and Border Protection [2017] FCA 579.

Minister for Immigration and Citizenship v SZIAI [2009] 111 ALD 15.
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611.
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332.

Applicant: QING QING LUI

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 936 of 2018

Judgment of: Judge Egan

Hearing date: 10 April 2019

Date of Last Submission: 10 April 2019

Delivered at: Brisbane

Delivered on: 10 April 2019

REPRESENTATION

Applicant: In person

Solicitors for the First Respondent: Mr Kyranis of Sparke Helmore

IT IS ORDERED THAT:

1. The application for review filed on 10 September 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 936 of 2018

QING QING LUI

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China.  He first arrived in Australia in 2009.  Over the years he has held a number of student visas.  The visa the subject of the current application for review is a student (temporary) (class TU) higher education sector visa. 

2. On 20 October 2015, the applicant was granted such visa on the basis of his enrolment in a Diploma of Information Technology and Bachelor of Information Technology course at Griffith University. On 10 October 2017, the applicant was issued with a notice of intention to consider cancellation of such visa. The notice of intention to consider cancellation stated that there appeared to be a ground for the cancellation pursuant to the provisions of section 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’), in that education records indicated that the applicant had ceased to be enrolled in a bachelor course on 28 April 2016, thereby rendering the applicant non-compliant with condition 8516 of the regulations.

3. Section 116(1) of the Act provides as follows:

   “Power to cancel

   116. (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance, that is no longer the case or that no longer exists; or

   (aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

   (b) its holder has not complied with a condition of the visa; or

   (c) another person required to comply with a condition of the visa has not complied with that condition; or

   (d) if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

   (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

   (i) the health, safety or good order of the Australian community or a segment of the Australian community; or

   (ii) the health or safety of an individual or individuals; or

   (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

   (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; or

   (g) a prescribed ground for cancelling a visa applies to the holder.

   (1AA) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

   (1AB) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:

   (a) incorrect information was given, by or on behalf of the person who holds the current visa, to:

   (i) an officers; or

   (ii) an authorised system; or

   (iii) the Minister; or

   (iv) any other person, or a tribunal, performing a function or purpose under this Act; or

   (v) any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and

   (b) the incorrect information was taken into account it, or in connection with, making:

   (i) a decision that enabled the person to make a valid application for a visa; or

   (ii) a decision to grant a visa to the person; and

   (c) the giving of the incorrect information is not covered by Subdivision C.

   This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.

   (1AC) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:

   (a) a benefit was asked for or received by, or on behalf of, the person (the visa holder) who holds the current visa from another person in return for the occurrence of a sponsorship-related event; or

   (b) a benefit was offered or provided by, or on behalf of, the person (the visa holder) who holds the current visa to another person in return for the occurrence of a sponsorship-related event.

   (1AD) Subsection (1AC) applies:

   (a) whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and

   (b) whether or not the sponsorship-related event relates to the current visa or any previous visa that the visa holder held; and

   (c) whether or not the sponsorship-related event occurred.

   (1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.

   (2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3) The Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

   (4) In this section:

   “benefit” has a meaning affected by section 245AQ.

   “sponsorship-related event” has the meaning given by section 245AQ.”

4. Condition 8516 of the Migration Regulations 1994 (Cth) (“the Regulations”) provides as follows:

   “8516       The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.”

5. On 23 October 2017, the applicant was issued with a confirmation of enrolment for study for a Bachelor of Information Technology course at Griffith University.  On 24 October 2017, the applicant provided a response to the notice to consider cancellation in which it was claimed that his visa should not be cancelled for the following reasons:

   “1. I was unaware that I violated any visa conditions when I transferred from Griffith College to Intech. In March 2017,1 consulted an education agent and was advised that I hold a 573 visa and I am allowed to transfer to Intech for the purpose of entering university after. Moreover, during my study at Intech, the director informed us that Intech has official credit transfer agreement with Griffith University. Upon completion at Intech, we would be able to have 8 courses of advance standing, so as completing the diploma of IT at Griffith College (please refer to attachment 13 for credit transfer result). My motivation of studying at Griffith College and Intech is the same - to enter Griffith University to pursue my bachelor degree. Studying the Bachelor program is always my only goal; I have no intention to take advantages from my student visa.

   2. I am a genuine student only hoping to get admission into Griffith University. The experience at Griffith College affected me a lot. I was very frustrated and depressed. With my parents' expectations on me I really couldn't let them down. Moreover, after my continuing failure on one single course unit for four times at Griffith College, I was not confident to study there anymore. And I think I should not stay at Griffith College anymore. I believed that the smaller environment at Intech would help me to study better, help me to regain my confidence, and to enter Griffith University eventually. And my excellent performance in Intech and the letter of statement addressed by my teacher in Intech have all approved that I made the right decision to transfer to Intech. And I finally can graduate from my Diploma of IT program and get admission in to Griffith University. I now have the offer letter from Griffith University, and I have made my tuition fees to Griffith University, and I have obtained the COE from Griffith University. The ground of my visa cancellation does not exist anymore.

   Now I also understand that I hold a 573 visa and I shouldn't study at Intech, however, I hope you could consider the compassionate and compelling reason that I was unaware of the issue due to my lack of knowledge in this area. Since I processed my visa application with my agent previously, I had little knowledge in the regulations and policies. I genuinely believed that I was following the conditions as long as I planned to enter Griffith University.

   3.  I always have the plan to go back to Griffith University to study my Bachelor of IT program. And I follow my plan consistently; I now have the offer letter of Griffith University. My COE for Bachelor of IT program of Griffith University has been issued.

   4. I believe it is unfair for DIBP to cancel my visa. I have been a genuine student since I arrived in Australia. It has never been my intention to violate my visa condition. I genuinely believed that what I did was right. I transfer to Intech just because I would like to save my study in Australia, I have no intention to take advantages of my student visa to do other things, my only goal is always studying. Since I am already able to study Bachelor of IT program in Griffith University now, it would be intolerable for me if I couldn't study in Australia anymore due to my visa being cancelled.

   5. I am aware that I have been excluded by Griffith College in September 2017, but I believed this is the result of system error. I received the intention to exclude from Griffith College on 10/02/2017, and ask me to appeal by 03/03/2017. However, I not enrolled any course units at that time. I do not understand why Griffith College still send me the letter of intention to exclude (please refer to attachment 5). So I did not apply for internal appeal as advised by Griffith College. And I obtained the COE from Intech in April 2017, I thought it is not necessary for me to apply for the internal appeal to Griffith College anymore. However, on29/09/2017, I received the notice from Griffith College stating that I have been excluded by Griffith College. I believe this is simply a mistake of system error.”

6. On 25 October 2017, a delegate to the Minister cancelled the applicant’s visa pursuant to the provisions of section 116(1)(b) of the Act. On 31 October 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.

7. On 19 June 2018, the Tribunal invited the applicant to comment on, or respond to, information which it considered would be the reason, or part of the reason, for affirming the decision on review.  The information was that the applicant’s education records showed that he was not enrolled in a course of study specified for the visa between 28 April 2016 and 23 October 2017.  The applicant provided a number of documents in response to such invitation, including a statement, a statutory declaration and some academic documents.

8. On 19 July 2018, the Tribunal invited the applicant to attend a hearing before it scheduled for 8 August 2018.  On 8 August 2018, the applicant appeared before the Tribunal to give evidence and present arguments.

9. On 16 August 2018, the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa. 

10. On 10 September 2018, the application file an application for judicial review of the Tribunal’s decision pursuant to the provisions of section 476(1) of the Act. At [7] of its reasons, the Tribunal acknowledged that the issue before it was whether the ground for cancellation had been made out, and if so, whether the applicant’s visa should be cancelled. At [19] of its reasons, the Tribunal noted that the applicant did not dispute that he had failed to continue to be enrolled in the course type required for the visa. The applicant made such concession both at the hearing and in written submissions to the Tribunal. Through his agent, the applicant acknowledged that he did not satisfy the requirements as set out by clause 573.231 of the regulations for the period between February 2017 to October 2017 – some eight months.

11. Clause 573.231 provides as follows:

    “If subclause 573.223(1A) does not apply:

    (a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principle course; and

    (b) the principal course is a type that was specified for Subclass 573 visas by the Minister in an instrument:

    (i) made under regulation 1.40A; and

    (ii) in force at the time the application was made.”

12. The applicant’s grounds for review as set out in the originating application are as follows:

    “1. The Tribunal made jurisdictional error in making decision to cancel my student visa

    2. The Tribunal ignored the materials such like written submission what I present the reasons why

    3. I hadn’t enrol in principle course between 28 April 2016 and 23 October 2017.

    The immigration made jurisdictional error of ignoring the fact that I had enrolled in the vet course and will finish in a short time and my study plan what I will be admitted by university.”

13. At [25] of its reasons, the Tribunal found that based on the applicant’s education records, the applicant had failed to continue to be enrolled in a course of study specified for his visa from 28 April 2016 until 23 October 2017. On that basis, at [26] of its reasons, the Tribunal was satisfied that the ground for cancellation existed pursuant to the provisions of section 116(1)(b) of the Act. As such provision was not mandatory, the Tribunal then considered whether the visa should be cancelled. It examined the issues relevant to such consideration from paragraphs [27] of its reasons to [34] of its reasons.

14. When so considering whether to exercise its discretion to cancel the visa or not, the Tribunal had regard to the department’s Procedures Advice Manual (PAM3) under the heading General Visa Cancellation Powers.  At [28] of its reasons, the Tribunal found that the applicant’s explanations for his non-compliance with visa condition 8516 – namely, that he wasn’t aware of the condition or his obligations to comply with such condition because he never looked at his visa and that he followed the advice of migration agents and never thought to contact the department – were unconvincing.  The Tribunal did not accept that the applicant was in breach of condition 8516 because of circumstances beyond his control.  At [30] of its reasons, the Tribunal found that after nearly seven years of post-school study in Australia, the applicant’s failure to commence a bachelor‑level course of study was compelling.  The Tribunal found that the applicant had not complied with his visa conditions, and further found that the applicant was motivated to remain in Australia rather than remaining in Australia in compliance with the conditions of his subclass 573 visa.

15. The Tribunal noted, at [31] of its reasons, that the applicant had no reason to fear returning to China beyond disappointing his parents.  It found that Australia would not be in breach of its refoulement obligations should the visa be cancelled, and should the applicant return to China.  At [32] – [33] of its reasons, the Tribunal found that there were no other reasons warranting the visa not being cancelled.

16. The grounds raised by the applicant in his application for review lack specificity which, in large part, cannot be addressed on the part of the first respondent.  Such is the case in relation to ground 1. 

17. As to ground 2, there is no substance to that ground.  There is no basis for the assertion that the Tribunal ignored any of the material put before it by the applicant.  As to ground 3, there is no evidence that the Tribunal failed to take into account any relevant matter. 

18. As to the nature of the unparticularised grounds for review, the Court refers to the decision of Gilmour J in CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] – [22] where it was said:

    “[20] This ground is unparticularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what "wrong information" the Tribunal is alleged to have based its decision upon.

    [21] This first ground of appeal is merely an unparticularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA760 at [35]:

    (This ground is) an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

    [22] The first ground therefore fails.”

19. It cannot be said, as is implicit in the complaints made by the applicant in his grounds for review, that the Tribunal failed to make an obvious inquiry about any critical fact, as was the subject of consideration in Minister for Immigration and Citizenship v SZIAI [2009] 111 ALD 15 at [25] – [27] where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said as follows:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

1. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as did the tribunal.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [130]:

   “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

2. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ 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.”

3. The applicant has failed to demonstrate any jurisdictional error on the part of the Tribunal.

4. The application for review is without merit and is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 29 April 2019