Maini v Minister for Immigration

[2016] FCCA 1618

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAINI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1618

Catchwords:
MIGRATION – Review of a decision by the Migration Review Tribunal – application for a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa – whether the discretion under s.116 should have been exercised – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(b) , 116(3), 474(1), 476

Migration Regulations 1994 (Cth), cl.573.231, cl.573.223(1a) of sch.2

Cases cited:

Singh v Minister for Immigration and Border Protection [2016] FCA 679

Applicant: HARSH MAINI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 575 of 2015

Judgment of: Judge McNab

Hearing date: 23 June 2016

Date of Last Submission: 23 June 2016

Delivered at: Melbourne

Delivered on: 15 July 2016

REPRESENTATION

The Applicant: Self-represented

Counsel for the Respondents: Ms Mitchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the name of the second respondent be amended to read ‘Administrative Appeals Tribunal’.

2. That the application for judicial review be dismissed.

3. That the applicant pay the first respondent’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 575 of 2015

HARSH MAINI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Nature of Application

1. This is an application dated 23 March 2015 for judicial review of a decision of the Migration Review Tribunal (as it then was)

   
   

   (“the Tribunal”) dated 6 March 2015 affirming a decision of the Minister’s delegate to cancel the applicant’s Student (Temporary)

   
   

   (class TU, subclass 573) visa (“the visa”). 

2. The applicant, Mr Maini, appeared before this Court unrepresented with the assistance of an interpreter. At the time of the Tribunal hearing, he was represented by a registered migration agent. 

3. The Tribunal’s decision is a privative clause decision within the meaning of s.474(1) of the Migration Act 1958 (Cth) (“The Act”) is not reversible under s.476 of the Act unless it can be shown to be affected by jurisdictional error.

Background

1. The applicant was granted a Subclass 573 Higher Education Sector visa in order to undertake Foundation Studies, a Diploma of Engineering and a Bachelor of Engineering at the University of Technology Sydney (UTS). The applicant arrived in Australia on

   
   

   18 February 2014. He then withdrew from the courses on 15 May 2014 and later, he transferred to a Certificate IV in Frontline Management at Captain Cook Institute. On 24 October 2014 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) as the delegate considered that the applicant did not comply with condition 8516 of his visa, as he ceased to be enrolled in a higher education sector course.

2. Under the relevant version of cl.573.223(1A) of Sch.2 of the

   
   Migration Regulations 1994

   (Cth) (“the Regulations”), an eligible higher degree student is required to satisfy criteria set out in

   
   

   Cl.573.111 of Sch.2 of the Regulations which defines an eligible higher degree student in the following manner:

   …an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a) The applicant is enrolled in a principle course of study for the award of:

   (ia)  an advanced diploma in the higher education sector; or

   (i) A bachelor’s degree; or

   (ii) A masters degree by coursework;

   (b) the principal course of study is provided by an eligible education provider;

   (c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principle course of study:

   (i)The applicant is also enrolled in that course; and

   (ii)That course is provided by the eligible education provider or an educational business partner of the eligible education provider.

3. On 12 August 2014, the first respondent sent a detailed letter to the applicant seeking an explanation as to why he had discontinued that course. The applicant provided his response to the NOICC on

   
   

   30 October 2014.

4. On 9 January 2015 the delegate exercised its power to cancel the visa held by the applicant under s.116(1)(b) of the Act, on the basis that the applicant breached condition 8516 of his visa.

5. The applicant appeared before the Tribunal on 6 March 2015 seeking a review of the delegate’s decision. The applicant was represented in relation to the review by a registered migration agent. The Tribunal notified him of the decision to cancel the applicant’s visa on the same day of the hearing. The applicant is now seeking judicial review of that decision.

6. On 15 April 2016 Judge Riley made orders by consent that:

   On or before 12 May 2016, the applicant file and serve:

   (a) An amended application, if any;

   (b) A supplementary court book, if any; and

   (c) Written submissions.

   No further material was filed by the applicant.

Decision of the Delegate

1. On 9 January 2015 the delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had breached Condition 8516. That condition required the applicant, while holding the visa, to continue being a person who satisfied the criteria for the grant of the visa. Specifically, the delegate found that:

   a)The applicant had not continued to be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principle course as required by cl.573.231 and cl.573.223(1a) of Sch.2 of the Regulations; and

   b)The reasons for cancelling the visa outweighed the reasons not to cancel the visa.

Decision of the Tribunal

1. By letter dated 6 March 2015 and sent by email to the applicant’s representative, the Tribunal notified the applicant of its decision, dated the same day, to affirm the decision to cancel the visa. The Tribunal’s finding may be summarised as follows:

   a)

   grounds existed to cancel the applicant’s visa pursuant to

   
   

   s.116(b) of the Act because, in breach of Condition 8516,

   
   

   the applicant did not continue to satisfy the primary criteria for the grant of the visa as he was not enrolled in, or the subject of an offer of enrolment in an eligible course;

   b)as the grounds for cancelling the visa did not trigger a mandatory cancellation pursuant to s.116(3) of the Act, the Tribunal was required to consider whether the power to cancel the visa should be exercised; and

   c)After considering:

   i)the applicant’s evidence; and

   ii)“relevant circumstances including but not limited to” the Department’s “Procedures Advice Manual PAM3 ‘General visa cancellation powers’” (PAM3).

   The Tribunal affirmed the decision to cancel the applicant’s visa.

2. The issue before the Tribunal was whether the applicant could meet the primary criterion which requires the applicant to be enrolled in, or the subject of an offer of enrolment in an eligible course.[1]  The Tribunal held at [11] that the applicant had ceased to be a person who satisfied the primary criteria of the visa when he ceased to be enrolled in an eligible course.

   [1] Cl.573.111 and Cl.573.231 of Sched 2 of the Regulations

3. The Tribunal also held at paragraph 12 that although he applicant had provided evidence of enrolling in a Diploma of Management and a Bachelor of Business in response to the NOICC, a breach had been established when the applicant ceased to be enrolled in an eligible course. This was on the basis that condition 8516 requires the

   
   

   visa holder to “continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa” at paragraph 13.

4. In reaching that decision the Tribunal was required to consider the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. The Tribunal was not satisfied that the applicant had fulfilled the purpose of his travel to and stay in Australia as he had not undertaken study at the level for which his visa was granted and also as he had completed minimal study since entering Australia

   
   (CB 152)

   .

Grounds of Review

1. The applicant sets out the following ground (copied exactly):

   I came in Australia as an international student holder of

   
   

   Sub class 573 higher education sector visa when I started the course I found it very difficult. It was hard for me to understand the ascent of my teachers. There for I could only complete first semester of my study. I was unable to gain pas marks, hense,

   
   

   I discontinue my study and enrolled in Diploma of Business management.

   I received NOICC from department of immigration because I breach my visa condision. My visa was cancelled on

   
   

   9 January 2015 by deligate due to the above given reason.

   I made an application for the review of decision to the tribunal.

   
   

   I presented argument and gave evidence in the fever of my application, But my application was again refuse by the tribunal on 6 of March 2015.

   I am not satisfied with the decision made by MRT on my application. I believe there is an error. There for I want to appeal againsts the decision in the court.

Conclusion

1. The applicant advanced no grounds before the Court why the Tribunal had made any error of the kind amenable to judicial review. The Tribunal identified the grounds which formed the basis for the cancellation of the visa. There was no ground identified in the grounds of the review that the Tribunal had failed to exercise its discretion as to whether or not to cancel the visa and the conduct of the hearing accorded with the statutory scheme.

2. In the decision of Singh v Minister for Immigration and Border Protection[2]  his Honour Buchanan J observed at paragraphs 37 and 38:

   37 The context in which s 116 of the Migration Act operates is different. A failure to comply with a condition of a visa engages a discretion to cancel a visa (Migration Act, s 116(1)(b)). In my view, once the discretion to cancel a visa has been engaged that discretion is not removed by the fact that a breach is not ongoing, or by the fact that new arrangements have been put in place which attempt to substitute the original foundation for the grant of a visa.

   38    In the present case, as the Tribunal found, at least between 8 April 2014 and 12 or 17 September 2014, the appellant did not continue to satisfy the criteria for the grant of his visa. That factual circumstance was not overcome, or rendered irrelevant, by obtaining a confirmation of enrolment in another course at a different institution sometime in the future. Whether the circumstances of that enrolment, and/or the appellant’s personal circumstances, may have justified the exercise of a discretion not to cancel his visa is a question which does not arise in the present proceedings.

   [2] [2016] FCA 679

3. The Tribunal was correct in its decision at paragraph 13 that the enrolment by the applicant in a new course did not affect the finding that there had been a failure to comply with the visa condition, which engaged a discretion to cancel the visa.

4. The application shall be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 15 July 2016