Mohammed v Minister for Immigration

[2018] FCCA 2762

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2762

Catchwords:
MIGRATION – Cancellation of Student (Temporary) (Class UK) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by improperly exercising its discretion on the facts before it – no jurisdictional error – application dismissed.

Legislation:

Education Services for Overseas Students Act 2000 (Cth)

Migration Act 1958 (Cth), s.116

Migration Regulations 1994 (Cth), cl.8202

Other materials cited:
National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007, Department of Education, Employment and Workplace Relations, 1 July 2007

Applicant: IMTIYAZ SHAREEF MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2006 of 2017

Judgment of: Judge Smith

Hearing date: 8 August 2018

Date of Last Submission: 8 August 2018

Delivered at: Sydney

Delivered on: 8 August 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Nair, M S Nair & Co

Solicitors for the Respondents: Ms S He, Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2006 of 2017

IMTIYAZ SHAREEF MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister to cancel the applicant’s Student (Temporary) (Class TU) Visa.  The ground for review, as ultimately pressed by the applicant at the hearing, is of narrow compass and for that reason, I provide the following brief summary of the relevant factual background. 

2. The applicant was granted a student visa on 12 June 2013 to enable him to come to Australia to undertake tertiary studies.  He arrived in Australia pursuant to the authority of that visa on 1 July 2013 and was enrolled, at that point, at the University of Southern Queensland (USQ). 

3. While the applicant was studying he stayed with his cousin’s family in Auburn, a suburb of Sydney in the State of New South Wales. He had been studying for approximately 11 months when his cousin’s family decided to move to Melbourne.  The applicant wanted to move with them and, with that in mind, on 28 May 2014, he wrote to USQ requesting to be released from his studies with USQ and to take up an offer of acceptance from an education provider in Melbourne, the Holmes Institute.  However, by a letter dated 10 July 2014, USQ did not support the application for release.  Subsequently, the applicant ceased studying. 

4. On 26 May 2016, a delegate of the Minister wrote to the applicant giving a Notice of Intention to Consider Cancellation of his student visa under s.116 of the Migration Act 1958 (Cth). Section 116(b) provides that “the Minister may cancel a visa if he or she is satisfied that ... its holder has not complied with a condition of the visa...”. The letter explained that it appeared that the applicant may have not complied with cl.8202 of the Migration Regulations 1994 (Cth), which was a condition imposed upon his visa. That condition relevantly required the applicant to be enrolled in a registered course: see sub-cl.8202(2)(a).

5. The letter explained that, based upon the evidence from the Provider Registration and International Student Management System (PRISMS), it appears that the applicant had not been enrolled in a registered course of study since 6 March 2015, and therefore may not meet the requirements of sub-cl.8202(2)(a).  The letter invited a response and gave a timeframe for that response,  however, the applicant did not reply.  The applicant said later, and it was accepted, that he did not receive that Notice of Intention to Cancel. 

6. On 29 June 2016, a delegate of the Minister made a decision to cancel the visa on the basis of the failure by the applicant to comply with condition 8202(2)(a), essentially for the reasons set out in the Notice of Intention to Cancel.  The applicant then applied to the Administrative Appeals Tribunal for review of that decision. 

7. The applicant was invited to attend a hearing, and with the assistance of a migration agent, he provided a number of documents to the Tribunal together with a submission.  Amongst the submissions made by the applicant was that there were exceptional circumstances beyond the applicant’s control that led to the ground for cancelling the visa.  The letter explained the background facts, which I have outlined above, concerning the applicant’s family’s move to Melbourne and his application for release from USQ. 

8. The submission then set out an extract from the National Code 2007, in particular Standard 7.  This National Code is the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007[1].  It may be accepted for present purposes that that is the Code that applied at the relevant time and is made under the Education Services for Overseas Students Act 2000 (Cth) . The relevant part of the Code which was set out was cl.7.3, and provides:

   [1] National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007, Department of Education, Employment and Workplace Relations, 1 July 2007.

   7.3    The registered provider must grant a letter of release only where the student has:

   a.  provided a letter from another registered provider confirming that a valid enrolment offer has been made, and

   ...

9. The applicant submitted that, in denying the applicant a letter of release, the education provider, USQ, did not meet its obligations under the National Code 2007.  It may be inferred, although this was not expressly stated, that what was being submitted was that cl.7.3 required USQ, upon presentation of a letter from a registered proprietor, to grant the release.  That proposition is, at best, questionable.

10. The applicant attended the hearing conducted by the Tribunal on 12April 2017 and gave evidence and made submissions in support of his application for review.  His de facto partner also gave evidence concerning their relationship and the potential impact upon the relationship of a decision to cancel the applicant’s visa.  That evidence, however, is not relevant to the issue raised and need not be examined any further.  The Tribunal made its decision on 29 May 2017. 

11. The Tribunal first addressed the question of whether the applicant complied with condition 8202 and found that he had not.  It then determined the question of whether it ought to exercise its discretion to cancel the visa.  In doing so, the Tribunal had regard to a number of matters outlined in the Department’s Procedures Advice Manual (PAM3), as well as each of the matters raised by the applicant in his submissions and at the hearing.  It noted, at [16], the submission concerning the breach by USQ of its obligations under the National Code 2007 as well as each of the documents provided by the applicant:  see [17] of its reasons.  At [19], it observed that, at the hearing, it had indicated to the applicant that the reasons provided by USQ in its letter of 10 July 2014 appeared to be “fair and legitimate” and that, “consequently the submissions that the University breached the Code may not be supported”. 

12. The Tribunal then noted the applicant’s response, which, once again, is not relevant to the issues before me.  The Tribunal dealt with this issue at [24] of its reasons which I set out below:

    The Tribunal accepts the evidence that the applicant had requested a release letter from USQ which was refused. As discussed in the course of the hearing, the Tribunal is satisfied on the evidence before it, that the refusal was fair and the reasons were clearly articulated in the letter dated 10 July 2014. On the evidence before it, the Tribunal is not satisfied that USQ had breached the National Code 2007 regarding transfer. Even if the Tribunal were to accept the submissions that the University had breached the Code, the Tribunal is not satisfied that any breach of the Code means that the visa should not be cancelled as it is the responsibility of the applicant to ensure that he has complied with the visa conditions. Whilst the Tribunal does not wish to take comments out of their context, it is noteworthy that on his evidence, he shared a house with 3 others in Bankstown for about 13 months, was working and he managed to pay his expenses. It is difficult to accept that the applicant remained in Sydney working rather than ensuring compliance with his visa conditions.

13. At [26], the Tribunal noted that it was satisfied that the totality of the evidence indicated that the applicant had been in Australia almost four years and had not completed any courses, and given that he was granted a student visa to undertake studies and that the purpose of the visa was to allow him to come to Australia to undertake an approved course, the fact that the applicant was not enrolled in a course of study for a substantial period of time, and his own personal reasons and circumstances as accepted by the Tribunal, did not mean the visa should not be cancelled. 

14. The Tribunal then went on to consider the degree of hardship that may be caused and this included reference to the applicant’s de facto relationship.  It considered each of the other matters referred to in the policy document, including the circumstances in which the cancellation arose, past and present conduct of the visa holder towards the Department, whether any international obligations would be breached as a result of the cancellation and any other matters raised by the visa holder.  It concluded at [48] that, having “carefully considered the evidence independently and the circumstances as a whole”, on balance and for the reasons it had given earlier in its reasons, that the visa should be cancelled and so affirmed the decision of the delegate to do so. 

15. The ground as stated in the application filed by the applicant is that the “Tribunal committed jurisdictional error by improperly exercising its discretion on the facts before it”.  The particulars to that ground include a reference to [19] of the reasons, which I have outlined above, and then having set out a number of the objectives of the National Code, assert that, despite the provisions in those objectives, the education provider failed to look after the welfare of the applicant and instead took action which led to the cancellation of the applicant’s visa. 

16. The final particular is that, in such circumstances, the Tribunal erred in its finding that reasons provided by the University in the letter appeared to be fair and legitimate.  That ground shifted somewhat, not only in written submissions, but eventually in oral submissions. 

17. Finally, the applicant’s case, although still relying on what was said by the Tribunal at [19], essentially was that the Tribunal erred by firstly applying Standard 7 when, in fact, it did not apply to the circumstances of the applicant and, secondly, that it failed by granting a request in circumstances where the applicant had provided a letter from another education provider offering enrolment.  The second of these arguments is in line with the submission made by the applicant to the Tribunal, the first is not; the submission having been based upon the requirement that USQ must comply with Standard 7.  The argument that Standard 7 did not apply derives from the heading to Standard 7, the third paragraph of which states:

    Registered providers assess requests from students for a transfer between registered providers prior to the student completing six months of the principal course of study in accordance with their documented procedures.

    (Emphasis in original)

18. The applicant’s point is that, as he had been enrolled for more than six months at the time of his request in May 2014, Standard 7 did not apply.  He goes further however, to say that in circumstances where it did not apply, in order to comply with the National Code, the education provider was required to grant a transfer.  I do not accept that.  While it may be accepted, although it is not entirely clear, that Standard 7 is limited to circumstances where a student applies for transfer within the first six months of the principal course of study, it does not, on any reading of Standard 7, require a transfer outside of that window.  I set out Standard 7 below:

    Standard 7 – Transfer between registered providers

    Outcome of Standard 7

    Registered providers assess requests from students for a transfer between registered providers prior to the student completing six months of the principal course of study in accordance with their documented procedures.

    7.1    The receiving registered provider must not knowingly enrol the student wishing to transfer from another registered provider’s course prior to the student completing six months of his or her principal course of study except where:

    a.  the original registered provider has ceased to be registered or the course in which the student is enrolled has ceased to be registered

    b.  the original registered provider has provided a written letter of release

    c.  the original registered provider has had a sanction imposed on its registration by the Australian Government or state or territory government that prevents the student from continuing his or her principal course, or

    d.  any government sponsor of the student considers the change to be in the student’s best interest and has provided written support for that change.

    7.2    The registered provider must have and implement its documented student transfer request assessment policy and procedure, which is available to staff and students. The policy must specify:

    a.  the circumstances in which a transfer will be granted

    b.  the circumstances the registered provider considers as providing reasonable grounds for refusing the student’s request, including when a transfer can be considered detrimental to the student, and

    c.  a reasonable timeframe for assessing and replying to the student’s transfer request having regard to the restricted period.

    7.3    The registered provider must grant a letter of release only where the student has:

    a.  provided a letter from another registered provider confirming that a valid enrolment offer has been made, and

    b.  where the student is under 18;

    i.   the registered provider has written confirmation that the student’s parent or legal guardian supports the transfer, and

    ii.  where the student is not being cared for in Australia by a parent or suitable nominated relative, the valid enrolment offer also confirms that the registered provider will accept that responsibility for approving the student’s accommodation, support and general welfare arrangements as per Standard 5 (Younger students).

    7.4    A letter of release, if granted, must be issued at no cost to the student and must advise the student of the need to contact DIAC to seek advice on whether a new student visa is required.

    7.5    Where the registered provider does not grant a letter of release, the student must be provided with written reasons for refusing the request and must be informed of his or her right to appeal the registered provider’s decision in accordance with Standard 8 (Complaints and appeals).

    7.6    The registered provider must maintain records of all requests from students for a letter of release and the assessment of, and decision regarding, the request on the student’s file.

    (Emphasis in original)

    For that reason, the first arm of the argument must be rejected. 

19. The second limb of the argument relies essentially on cl.7.3 that, as noted above, requires the registered provider to grant a letter of  “release” only where the student has relevantly:

    ...

    (a)     provided a letter from another registered provider confirming that a valid enrolment offer has been made, and

    ...

20. The applicant today argued, as was submitted before the Tribunal, that that means that where a letter from another registered provider has been provided, the registered provider in question must grant a letter of release however, the plain words of cl.7.3 are against that construction.  Clause 7.3 operates only as a restriction on the circumstances in which a letter of release may be granted and does not provide for any obligation to provide a letter in the circumstances set out. 

21. The applicant’s argument is analogous to saying that a requirement to cross the road only when a light is green gives rise to an obligation to cross the road whenever the light is green.  That proposition is self-evidently false.  For those reasons, the applicant’s arguments must be rejected.  Broadly stated, accepting the principal argument that Standard 7 did not apply, then there could have been no breach by USQ of that standard.  Even if it did apply, there appears to have been no breach because cl.7.3 does not require the grant of release in the circumstances of a provision of a letter from another education provider.  However, that is not necessarily the end of the matter. 

22. First, I note that another difficulty with the applicant’s argument is that it relied on what was said at [19] of the Tribunal’s reasons. The Tribunal there, however, was not setting out its reasons for decision at all, rather, it was reporting what was asked by it, and responded to by the applicant, at the hearing. In other words, it was not of any consequence to the final decision in terms of being a reason for the decision. The reason for the decision, at least in this context, was provided in [24]. Paragraph 24 reveals that the Tribunal dealt with the issue of the breach of the Code on two alternative bases: first, on the basis that it was satisfied that the refusal was fair and the reasons were clearly articulated in the letter dated 10 July 2014, and, therefore, that the Tribunal was not satisfied that USQ had breached the National Code regarding the transfer. I will come back to that reason in a moment.

23. The alternative basis, and one relied upon by the Minister, was that the Tribunal accepted the submission that the University had breached the Code.  Even on that alternative basis, the Tribunal was not satisfied that it meant that the visa should not be cancelled and it gave reasons for that which have not been impugned in these proceedings.  The point made by the Minister, and which I accept, is that even if the Tribunal were wrong in determining that the National Code 2007 had not been breached, then it had no impact upon or, in other words, was not material to the decision because the Tribunal proceeded on an alternative basis. 

24. It is well accepted that in order to constitute a jurisdictional error, the error made by the Tribunal has to be material in the sense that it affects the jurisdiction of the Tribunal and the exercise of power by the Tribunal.  In circumstances where there was an alternative basis for it, it can readily be seen that any error in connection with the breach of the Code did not have the necessary impact upon the Tribunal’s exercise of power. 

25. Returning to the reasons by the Tribunal for the conclusion that the Code was not breached, there appears to be some disconnect between what the applicant actually argued and the Tribunal’s reasoning.  It will be recalled that the applicant’s argument was implicitly based upon a construction of cl.7.3 which I have rejected; however, that is not the argument that was dealt with by the Tribunal at the first part of [24] but rather it dealt with the separate and distinct issue of whether USQ had been fair in its reasons, had explained those reasons and articulated them in a letter. 

1. It may be thought in those circumstances that the Tribunal had failed to consider a material argument raised by the applicant which, in some circumstances, might rise to jurisdictional error.  That is not a matter raised by the applicant, but it ought to be addressed given it arises squarely on the material.  Even if that were the case however, I would not be satisfied that there was jurisdictional error in this case, because as I have identified already, the Tribunal proceeded on the alternative basis which was not impacted in any way by its consideration of the argument that USQ had breached the code. 

2. I should say that in any event, that the Tribunal’s conclusion that there was no breach was clearly open to it on a proper understanding of cl.7.3 of the Code and there might have been cause to refuse release in the exercise of discretion in any event, but I need not travel down that path because of the conclusion I have reached in respect of the alternative basis for the Tribunal’s decision. 

Conclusion

1. For each of those reasons, I am not satisfied that the Tribunal in this case fell into jurisdictional error and the application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     11 October 2018