Mirdan v Minister for Immigration

[2015] FCCA 964

FEDERAL CIRCUIT COURT OF AUSTRALIA

MIRDAN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 964

Catchwords:

MIGRATION – Application for review of decision of the Migration Review Tribunal (Tribunal) – cancellation of student visa pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) – whether it was reasonably open to the Tribunal to include in its assessment of whether the applicant was a genuine student the period during which the applicant held a bridging visa to which there was attached a “no study” condition – whether it was reasonably open to the Tribunal to find that the applicant had sufficient prospects of having the Minister remove the “no study” condition such that it would have been reasonable, had the applicant been a genuine student, to have applied to the Minister for a waiver of the condition – jurisdictional error.

Legislation:

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

Migration Regulations 1994 (Cth), reg. 2.27D
Schedule 8, condition 8202

Minister for Immigration and Citizenship v Li [2013] HCA 18

Applicant: ROMEO MIRDAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 292 of 2014

Judgment of: Judge Manousaridis

Hearing date: 13 August 2014

Delivered at: Sydney

Delivered on: 24 April 2015

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The decision of the second respondent made on 13 January 2014 affirming the decision of the delegate of the first respondent made on 13 May 2013 to cancel the Student (Temporary) (Class TU) visa held by the applicant is quashed.

2. The second respondent determine according to law the application made to it to review the decision of the delegate of the first respondent made on 13 May 2013 to cancel the Student (Temporary) (Class TU) visa held by the applicant.

3. The first respondent pay the applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 292 of 2014

ROMEO MIRDAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 572) visa (student visa).

2. The delegate cancelled the visa pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (Act). That subsection provides that the Minister may cancel a visa if the Minister is satisfied the holder has not complied with a condition of the visa.

Facts

1. The applicant first travelled to Australia in January 2010 as the holder of a student visa.[1] He was granted a further student visa in June 2012.[2] That visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations).[3] Condition 8202 required (as it now requires), among other things, that the applicant was enrolled in a registered course; that he has not been certified by his education provider as not having achieved satisfactory course progress; and that he has not been certified by his education provider as not having achieved satisfactory course attendance.

   [1] CB188, [2]

   [2] CB188, [2]

   [3] CB188, [2]

2. On 5 March 2013 a delegate of the Minister issued to the applicant a notice of intention to consider cancellation of the applicant’s student visa.[4] The delegate considered the applicant had not complied with condition 8202 because he had ceased to be enrolled in a registered course on 18 October 2012 and further checks of the records of the Department of Immigration and Border Protection (Department) indicated that the applicant was not currently enrolled in a registered course. The delegate decided to cancel the applicant’s visa on 13 May 2013.[5]

   [4] CB56-77

   [5] CB93-117

3. The Tribunal found the applicant was not enrolled in a registered course after 18 October 2012 and, for that reason, he did not comply with condition 8202.[6] The Tribunal, however, considered that it had a discretion whether to affirm the delegate’s decision to cancel the applicant’s visa, and that it would exercise that discretion having regard to what the applicant submitted against his visa being cancelled, and also the matters contained in the Procedures Advice Manual that had been prepared for use by the Department.[7]

   [6] CB189, [8]

   [7] CB189, [9]-[10]

4. The Tribunal decided that it should exercise its discretion in favour of cancelling the applicant’s visa. First, the applicant had undertaken very limited study.[8] The only course the applicant successfully completed since arriving in Australia in January 2010 was a Certificate IV in Business, which was a seven-month course, even though the applicant had undertaken other studies in Australia;[9] the applicant had not been enrolled in any registered course since October 2012; and the applicant had not undertaken any study in Australia, or made any inquiry about the possibility of his undertaking study in Australia, after his visa was cancelled in May 2013. The Tribunal so found even though the bridging visa was subject to a “no study” condition. The Tribunal said:[10]

   Overall, the fact that the applicant was only able to complete a seven months qualification in four years and that he has not undertaken any study for the past fourteen months and made no attempt to enquire about permission to study suggests that the applicant is not a genuine student.

   [8] CB189, [13]

   [9] CB189, [12]

   [10] CB189, [15]

5. Second, the Tribunal considered, but rejected, various matters the applicant put forward to explain his failure to complete or enrol in a registered course.[11] The applicant claimed the business of his father had not been going well,[12] that his parents had separated, that people were threatening his mother demanding money, his grandfather died, and his mother had a heart condition.[13]

   [11] CB191, [25]

   [12] CB190, [17]

   [13] CB190, [18]

6. Third, the applicant did not enrol in any course between November 2012, when he missed enrolling in a course, and January 2013, being the time the applicant was told he should attempt to re-enrol.[14] The Tribunal found that the reasons the applicant gave for not enrolling in a short course, namely, that he had not thought about it, suggested the applicant had little interest in pursuing study in Australia, and that he was not a genuine student.[15] In relation to the second and third matters on which the Tribunal relied, the Tribunal said:[16]

   Having considered the applicant’s circumstances, the Tribunal finds that the breach did not occur in circumstances beyond the visa holder’s control. The Tribunal does not consider that there are extenuating or compassionate circumstances in this case.

   [14] CB191-192, [26]

   [15] CB192, [26]

   [16] CB192, [27]

7. Fourth, the Tribunal found that although the applicant would not be able to study in Australia if his visa were cancelled, and the cancellation of the visa may cause hardship, the Tribunal had formed the view the applicant has not had the intention to study, and was not genuine in his intention to study since October 2012 because the applicant had put in minimal effort in pursuing study in Australia.[17]

   [17] CB192, [28]

8. Fifth, the Tribunal was not convinced of the veracity of the matters the applicant had put to the delegate in response to the notice of intention to consider cancellation of the applicant’s student visa, and in particular, the applicant’s claim that his mother was ill. The Tribunal found that the applicant “is using his mother’s claimed illness as an excuse for not commencing studies at the time”.[18]

   [18] CB192, [29]

9. Sixth, the Tribunal did not accept the applicant’s claims that people who had given a loan to the applicant’s father had threatened him and his family and that those people would harm the applicant if he returns to Bangladesh because they would perceive him to have earned money and be rich. The Tribunal did not accept these claims because the applicant provided no documentary evidence of loans or any police reports.[19] The Tribunal found the applicant’s claims to be “self-serving and unreliable”.[20]

   [19] CB192, [32]

   [20] CB193, [32]

Ground 1

1. The applicant relies on two grounds of review. The first ground is:

   The Tribunal erred by confusing the ground on which the visa was cancelled with the discretion whether to cancel the visa.

   Particulars

   The Tribunal accepted that the Applicant wished to enrol in a particular course but could not do so until some later [date]. The Tribunal opined that he “could have enrolled in any other course until he was able to enrol in a course of his choice”. The Applicant’s failure to be enrolled was the ground on which the visa was cancelled. The Tribunal’s consideration of whether he was a “genuine student” was a separate issue related to its discretion. Whether the Applicant was a genuine student in that context had nothing to do with whether he was enrolled in courses that may not have been of any interest or benefit to him.

2. The gist of this ground, as framed in the application, appears to be that the Tribunal treated as one issue what in truth were two issues, namely, whether the applicant had breached his visa condition by not having enrolled in a registered course, and whether the applicant was genuine in his intention to study in Australia, which went to the question of whether, in the exercise of its discretion, the Tribunal should cancel the visa.

3. The Tribunal did not confuse the inquiries it considered were relevant for it to undertake. The structure of its reasons reveals the Tribunal’s approach. It first found that the applicant had breached a condition of his visa. That triggered the discretion conferred by s.116(1)(b) of the Act whether the visa should be cancelled. The Tribunal considered the applicant’s not having enrolled in any course between November 2012 and January 2013 as evidencing the lack of a genuine intention to study in Australia. It was open to the Tribunal to consider that matter as relevant to the exercise of the discretion under s.116(1)(b) of the Act.

4. In my opinion, therefore, ground 1 is not made out.

Ground 2

1. The second ground on which the applicant relies is as follows:

   The Tribunal misdirected itself as to the period of time during which the Applicant was required to be enrolled in a course.

   Particulars

   Condition 8202 applied to the Applicant only during the period from the grant of the visa until its cancellation. The bridging visa subsequently granted to him was not subject to such a condition. In calculating the period of time the Applicant had been in breach of the relevant condition, the Tribunal included the time during which he had been the holder of the bridging visa.

2. The error the applicant claims the Tribunal made was to assess the extent to which the applicant failed to comply with condition 8202 by reference to a period that was longer than the period the applicant was entitled or obliged to study. The applicant submits the period for which the applicant could have been registered to study was the period up to the date on which his visa was cancelled on 13 May 2013. The applicant could not have been registered as a student after that day because the applicant was the holder of a bridging visa, and that visa was subject to a “no study” condition.

3. Additionally, the applicant submits it was not open to the Tribunal to assess whether the applicant was a genuine student by reference to the applicant’s not having studied after 13 May 2013. That is so because reg.2.27D of the Regulations would have operated to prevent the period of study from being counted in determining whether the applicant satisfied a criterion that the applicant has studied in Australia for a certain period if he were to apply for a General Skilled Migration visa.

4. There is no question the Tribunal relied on the applicant’s not studying after 13 May 2013 as a reason for concluding the applicant was not a genuine student. The question that arises is whether it was reasonably open to the Tribunal to rely on the applicant’s not having studied after 13 May 2013, given that the bridging visa the applicant held was subject to a “no study” condition.

5. Whether or not it was reasonably open to the Tribunal to rely on the applicant’s not having studied after 13 May 2013 depends on whether the only rational explanation for the applicant’s not studying after 13 May 2013 was his inability to do so. If the only available rational explanation for the applicant’s not studying after 13 May 2013 was because the “no study” condition prevented him from studying, it could not rationally be inferred from the applicant’s not having studied after 13 May 2013 that he did not do so because he was not a genuine student.

6. The Tribunal’s reasons suggest it believed there was another explanation for the applicant’s not studying after 13 May 2013, namely, the Tribunal’s inferring that the applicant did not have an interest in pursuing study in Australia. The basis of the Tribunal’s inference was the applicant’s not contacting the Department to make relevant inquiries about removing the “no study” condition.[21] The availability of this inference, however, depended on whether the Department, or, more accurately, the Minister or his delegate, had the power to waive the “no study” condition, had the applicant applied for such a waiver and, if the Minister did have that power, whether the applicant had some prospect of securing a waiver of the “no study” condition. There is nothing in the Tribunal’s reasons that suggests it considered these matters. Instead, the Tribunal appears to have assumed the Minister had the power to waive the “no study” condition, and that the applicant had sufficient prospects of securing a waiver such as to have rendered it reasonable for the applicant to have applied for such a waiver, had he been interested in pursuing his studies in Australia.

   [21] CB189, [14]

7. Thus, the question whether, when assessing whether the applicant was a genuine student, it was open to the Tribunal to rely on the applicant’s not studying after 13 May 2013 turns on whether:

   a)it was reasonably open to the Tribunal, on the material before it, to assume the Minister had power to waive the “no study” condition attached to the bridging visa, and,

   b)if so, whether the applicant had prospects of securing such a waiver sufficient to have rendered it reasonable for him to have applied for the waiver.

8. The Tribunal does not identify any evidence that was before it from which it could reasonably be inferred the Tribunal had any basis for so assuming. Even if such evidence could be identified, the compound proposition that the Minister had power to waive the “no study” condition, and that the applicant had sufficient prospects of having that condition waived, is one that could reasonably be arrived at only by a process of reasoning based on evidence or facts. The Tribunal did not, however, engage in any such reasoning. Its assumption that the applicant had some prospects, sufficient to render it reasonable for him to have applied to the Minister for the removal of the “no study” condition, lacked an “evident and intelligible justification”.[22]

[22] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76] (Hayne, Kiefel, Bell JJ)

1. In my opinion, therefore, it was not reasonably open to the Tribunal to rely on the applicant’s not having studied after 13 May 2013 to conclude the applicant was not a genuine student in circumstances where the applicant was on a bridging visa which was subject to a “no study” condition. Nor was it reasonably open to the Tribunal to rely on the applicant’s not having made inquiries of the Department about the waiver of the “no study” condition to conclude the applicant did not have an interest in pursuing study in Australia.

2. Counsel for the Minister submitted that the fact the Tribunal was aware that the applicant’s visa had been cancelled and that the applicant contended he could not study means that ground 2 cannot succeed. This submission assumes ground 2 is based on the contention that the Tribunal did not appreciate these matters. That is an incorrect characterisation of ground 2. It is true the applicant, in his written submissions, submitted that the Tribunal “ignores an essential fact”[23], namely, that the applicant’s bridging visa was subject to a condition prohibiting study. But the gist of that submission is not that the Tribunal was unaware of that fact, but that the Tribunal failed to accord the fact any significance. By relying on matters on which I have held it was not reasonably open to the Tribunal to rely, the applicant is correct to have submitted that the Tribunal accorded no significance to the fact that the bridging visa was subject to a “no study” condition.

   [23] Outline of submissions for the Applicant, 30.07.14, [14]

3. Counsel for the Minister also submitted that the applicant’s not having studied after 13 May 2013 was but one strand of the Tribunal’s reasoning. That may be so. The Tribunal’s reliance on that matter, however, cannot be said to have been trivial. It was part of one of the three premises on which the Tribunal relied for concluding the applicant was not a genuine student. Further, the applicant’s not having made an inquiry of the Department about waiving the “no study” condition – a matter on which I have found it was not reasonably open to the Tribunal to rely for finding the applicant had no interest in pursuing study in Australia – served as the second of the three premises on which the Tribunal relied for concluding the applicant was not a genuine student.

4. I now turn to the applicant’s reliance on reg.2.27D of the Regulations. In my opinion, that regulation by itself did not prevent the Tribunal from relying on the applicant’s not studying after 13 May 2013. The applicant did not submit to the Tribunal that he did not apply to remove his “no study” condition because, if he had succeeded in doing so, the study he would have undertaken could not count in any future application for a General Skilled Migration visa. Nor did the applicant submit to the Tribunal that he did not attempt to undertake any studies because such studies would not count in any future application for a General Skilled Migration visa.

Conclusions and disposition

1. My conclusions are as follows:

   a)In affirming the delegate’s decision to cancel the applicant’s student visa, the Tribunal relied on its conclusion that the applicant was not a genuine student.

   b)That finding was to a significant degree based on the applicant’s:

   i)not having studied after 13 May 2013, and

   ii)not having made inquiries of the Department after 13 May 2013 about whether the Minister could waive the “no study” condition that was attached to the applicant’s bridging visa.

   c)It was not reasonably open to the Tribunal to assume that the applicant had prospects of having the “no study” condition removed from his bridging visa had he applied to the Minister for the waiving of that condition.

   d)It was not reasonably open to the Tribunal to rely on the applicant’s not having studied after 13 May 2013 as a ground for concluding the applicant was not a genuine student because there was nothing before the Tribunal that made it reasonably open for it to conclude the applicant could have removed the “no study” requirement.

2. I propose, therefore, to order that the Tribunal’s decision be quashed, and that it reconsider the application for review that was before it according to law. I also propose to order that the Minister pay the applicant’s costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 24 April 2015