NOSHAD v Minister for Immigration

[2016] FCCA 2612

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOSHAD v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2612

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – application for a Student (Temporary) (Class TU) visa – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Sch.1

Migration Act 1958 (Cth), ss. 116, 116(1)(b), 116(2), 116(3)

Migration Regulations 1994 (Cth), reg. 1.40A, Sch.2 division 573, Sch. 8 condition 8516

Applicant: MUHAMMAD NOSHAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1484 of 2015

Judgment of: Judge Hartnett

Hearing date: 12 September 2016

Delivered at: Melbourne

Delivered on: 12 September 2016

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Rogers

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1484 of 2015

MUHAMMAD NOSHAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 30 June 2015 in which the Applicant seeks judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’).  The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection to cancel the Applicant’s student visa.  The grounds of the application as set out by the Applicant are 17 in number, partly a reciting of the history and not proper grounds of judicial review and are as follows: -

   “1. I CAME TO AUSTRALIA AS AN INTERNATIONAL STUDENT FROM PAKISTAN AND WAS ENROLLED IN HIGHER EDUCATION.

   2. I CAME UNDER SVP AND THEN LATER MOVED TO AN EDUCAITON (sic) PROVIDER WHICH WAS NOT REGISTERED UNDER SVP.

   3. AFTER MOVING TO NON-SVP EDUCATION PROVIDER ALONG WITH MY MANY OTHER FRIENDS I ALSO CHANGED MY VISA SUB CLASS.  AS ALL MY FRIENDS AND MYSELF CHANGED EDUCATION PROVIDER WE ALL CHANGED OUR VISA SUB CLASS AS WELL.

   4. I COMPLETED THE DIPLOMA I WAS ENROLLED IN AND WAS CONTINUING MY COURSE I WAS ENROLLED IN.  AFTER CHANGING MY COURSE TO NON-SVP I WAS SENT A NOTIFICATION FROM THE DIBP TO CANCEL MY VISA.

   5. I WAS ACCUSED OF BREACHING 8516 VISA CONDITION.

   6. I RESPONDED BACK TO DIBP RELATION TO THE LETTER AND REASON WHY MY VISA SHOULDN’T BE CANCELLED. HOWEVER MY VISA WAS CANCELLED BY THE DIBP.

   7. I BELIEVE I HAVE BEEN TREATED UNFAILRLY AND DIBP CANCELLED ONLY MY VISA WHEN I WAS PART OF THE GROUP WHO CHANGED COURSES AND EDUCATION PROVIDER BUT I WAS THE ONLY ONE TO BE PUNISHED.

   8. I APPLIED TO ENROL IN 573 SUB CLASSE AT TIME WHEN I CHANGED MY EDUCATION PROVIDER HOWEVER IT TOOK NEARLY 4 MONTHS TO GET COE FROM 573 EDUCATION PROVIDERS.

   9. MRT PUNISHED ME AND AFFIRMED DIBP DECISION BASED ON THE FACT THAT WHY I TOOK 4-5 MONTHS TO GET COE FROM 573 EDUCATION PROVIDER.

   10. I EXPLAINED TO THE MRT REPEATEDLY STATING I GAVE MY PREVIOUS AGENT JOB TO GET MYSELF ENROLLED AT 573 ASAP HOWEVER THEY TOOK SOO LONG TO DO IT.  IT WAS NOT MY FAULT AS I WAS ENROLLED AND STUDYING AT 572 LEVER AND WAS WAITING FOR MY 573 SUB CLASS OFFER LETTER SO THAT I COULD MAKE PAYMENT AND GET MYSELF ENROLLED AT 573 LEVEL.

   11. I ALSO ASKED THE TRIBUNAL WHY ONLY DIBP HAS PUNISHED ME WHEN MANY OTHER STUDENTS FROM SAME EDUCATION PROVIDER CHANGED COURSES AND I WAS THE ONLY ONE TO BE PUNISHED.

   12. I BELIEVE I DID NOT BREACH 8516 VISA CONDITION AS IT ONLY TOOK LONGR TO ENROL MYSLEF AT 573. 

   13. I FURTHER ADVISED MRT THAT AFFIRMING MY VISA CANCELLATION WILL RESULT IN EXTREME FINANCIAL HARSHIP (sic) AND MY FAMILY WILL HAVE TO BEAR ALL THE BURDEN WHICH WILL TAKE LONG TIME TO RECOVER.

   14. I WOULD LIKE TO APPLY FOR FURTHER APEAL BEFORE THE FEDERAL CIRCUIT COURT TO SEEK FAIR OUTCOME ON MY VISA CANCELLATION MATTER.

   15. I HAVE FULL HOPE AND FAITH IN AUSTRALIAN JUDICERY (sic) SYSTEM THAT I WILL BE TREATED FAILRY AND WILL GET FAVOURBALE OUTCOME ON MY VISA APPLICATION.

   16. I AM A GENUINE STUDENT AS I HAVE ALSO APLIED FOR MY STUDY RIGHTS TO BE GRANTED SO THAT I COULD COMPLETE MY REMAINAING COURSE AS I AM SUTTING (sic) HOME DOING NOTHING AT THE MOMENT.

   17. I WOULD REQUEST THE FEDERAL CIRCUIT COURT TO INTERVENE AND RE INSTATE MY VISA SO THAT JUSTICE CAN BE SERVED AND I COULD FINISH MY STUDIES AND GO BACK HOME HAPPILY.”

2. No written submissions were filed by the Applicant in these proceedings and on the hearing of the matter the Applicant made no relevant or useful submissions.  The Applicant was assisted in the proceedings by an interpreter in the Urdu and English languages. The Applicant had read the submissions of the First Respondent which are relied upon by the First Respondent and which were filed on 30 August 2016. 

3. The Court also has before it the material as contained in the court book filed 1 February 2016. 

4. The First Respondent seeks dismissal of the proceedings and an order for costs.

Background

1. The Applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 14 May 2013.  The expiry date of the visa was 15 March 2018.  The Applicant came to Australia on 10 June 2013. 

2. On 31 October 2014 the Department of Immigration and Border Protection issued the Applicant a Notice of Intention to Consider Cancellation (‘NOICC’).  Such notice advised the Applicant that it appeared he had breached condition 8516 which attached to his visa. 

3. On 14 November 2014 the Applicant responded to the NOICC.

4. On 8 January 2015 a delegate of the Minister cancelled the Applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that the Applicant had not complied with condition 8516.

5. On 9 January 2015 the Applicant applied to the Tribunal for review of the delegate’s decision.  The Applicant was represented in relation to the review by a registered migration agent.  The Applicant provided the Tribunal with a copy of the decision under review. 

6. On 27 January 2015 the Applicant provided submissions to the Tribunal and supporting documents.  On 9 April 2015 the Applicant provided further submissions to the Tribunal.

7. On 16 April 2015 the Applicant attended a hearing before the Tribunal to give evidence and present arguments in relation to the issues arising in his case.  The Applicant’s migration agent attended the hearing.  The hearing took place with the assistance of an interpreter in the Urdu and English languages. 

8. On 12 June 2015 the Tribunal affirmed the decision of the delegate to cancel the Applicant’s (Subclass 573) Higher Education Sector visa. 

The Law

1. At the time the Tribunal made its decision section 116 of the Act relevantly provided as follows:-

   “Power to cancel

   (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 officer; 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 in, 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)  If 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.”

2. Neither sub-ss.116(2) or (3) was applicable in the present case. 

3. At the time the Applicant’s visa was granted condition 8516 contained in Schedule 8 to the Migration Regulations 1994 (Cth) (‘the Regulations’) provided as follows:-

   “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.”

4. At the time the Applicant applied for the visa, being 18 March 2013, division 573 of Schedule 2 to the Regulations relevantly included the following:-

   “573.111        In this Part:

   …

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to

   whom the following apply:

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

   (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;

   …

   573.223

   (1A) If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a) the applicant gives the Minister evidence that the applicant has:

   (i) a level of English language proficiency that satisfies the applicant's eligible

   education provider; and

   (ii) educational qualifications required by the eligible education provider; and

   (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii) any other relevant matter; and

   (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i) the costs and expenses required to support the applicant during the proposed stay in Australia; and

   (ii) the costs and expenses required to support each member (if any) of the applicant's family unit.

   573.231

   If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

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

   (b) the principal course is of 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.”

5. At the relevant time instrument IMMI12/037 specified for reg.1.40A as follows:- 

   “VISA SUBCLASS                  

   Subclass 573 (Higher Education Higher Education Diploma Sector)

   TYPES OF COURSES

   Higher Education Advanced Diploma

   Bachelor Degree

   Graduate Certificate

   Graduate Diploma

   Associate Degree

   Masters by Coursework”

The Tribunal

1. The Tribunal correctly set out in its Statement of Decision and Reasons (‘the Decision Record’) the matter which it was required to consider, which was that the Tribunal was required to be satisfied that the ground for cancellation was made out and, if so, to proceed to consider whether the visa should be cancelled having regard to all the relevant circumstances which may include matters of government policy.

2. In respect of the consideration of whether the ground for cancellation existed the Tribunal said in paragraphs 30 to 34 of its Decision Record the following:-

   “30. The applicant entered Australia on 10 June 2013 as the holder of a Subclass 573 visa.  The criteria for the grant of the visa required the applicant to satisfy clause 573.231: that the applicant is enrolled in, or the subject  of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application, or cl.573.223(1A) and the definition of eligible higher degree student, which provides, in part, that the applicant must be enrolled in a principal course of study for the award of a bachelor’s degree or a master’s degree by course work.

   31. The applicant was granted the Subclass 573 visa based on his enrolment in a Bachelor of Engineering (Mechanical Engineering).  That enrolment was cancelled on 20 May 2014.

   32. As a result of the cancellation of his enrolment in the Bachelor of Engineering, the applicant was not enrolled in a bachelor’s degree or a master’s degree and was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas.

   33. The Tribunal notes that on 7 November 2014, after the Department’s NOICC was sent, the applicant enrolled in a Bachelor degree at Cambridge International College.  The requirement of condition 8516 is that the applicant must continue to be a person who would satisfy the primary criteria for the grant of a visa.  The applicant did not continue to be a person who would satisfy the primary criteria for the grant of the visa because he was not continuously enrolled in a bachelor’s degree or a master’s degree.  The Tribunal therefore finds that the applicant did not comply with condition 8516.

   34.  For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists.  As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the power to cancel a visa should be exercised.”

3. The Tribunal went on to consider whether to exercise the discretion residing in it to cancel the Applicant’s visa. 

4. The Tribunal had regard to the Applicant’s account of why his bachelor enrolment ceased and why he enrolled in cookery and hospitality despite knowing he was required to remain enrolled in a degree course.  This included his explanation that his mother became unwell, that he was stressed, depressed and homesick, and that he relied on advice from a migration agent.  The Tribunal did not accept that the Applicant was diagnosed with clinical depression or severe depression but did accept that he had experienced homesickness and concerns for his mother’s health.  However, the Tribunal found that if those factors affected his ability to concentrate on his study, it had been open to him to defer his studies for compassionate reasons until he was in a position to focus on his studies. 

5. The Tribunal considered that the Applicant’s claim that he and a friend were racially abused and his friend assaulted in an incident in September 2014 and accepted that may have happened.  The Tribunal nevertheless found that, given his enrolment in the bachelor degree had been cancelled in May 2014, it could not explain his failure to maintain his enrolment. 

6. The Tribunal did not accept that a lack of understanding about the conditions to which his visa was subject provided a reason not to cancel.  The Tribunal found it was the responsibility of the Applicant to ensure he understood the conditions attached to his visa and to ensure that he complied with those conditions while holding the visa.  The Tribunal found the Applicant had not made any attempt to contact the Department to discuss his circumstances and that the breach was not caused by any matter beyond the Applicant’s control.  The Tribunal further considered the Applicant’s claim in relation to financial hardship but found this was not a reason not to cancel.

7. The Tribunal noted that the Applicant claimed he would suffer hardship if his visa remained cancelled because he would be embarrassed upon his return to Pakistan and because his “whole life will be ruined” as his family would not support him to study in Pakistan.  The Tribunal did not consider that those matters outweighed the reasons to cancel the visa.

8. On balance, the Tribunal concluded that the matters in favour of cancellation outweighed those against cancellation and that considering the circumstances as a whole the decision to cancel the visa should be affirmed.

Consideration

1. The Applicant sets out in his application 17 purported grounds of review.  Grounds 1 to 6 simply recite the background to the decision to cancel his visa as submitted by the First Respondent.  They do not identify any error in the Tribunal’s decision.  Likewise, grounds 7 and 11 are in the nature of a complaint and disclose no unfairness in the Tribunal’s treatment of the Applicant. Grounds 8 to 10 seek to explain the delay between the Applicant ceasing to study his degree and enrolling in a vocational education course, including by reference to delay by his agent.  Ground 12 asserts that the Applicant did not breach the condition of his visa as it “only took longer” to enrol in the new course.  As submitted by the First Respondent, these grounds are misconceived.  Condition 8516 requires a person to “continue” to meet the criteria.  What counted against the Applicant was that he had not maintained his enrolment in a degree-level course. 

1. Ground 13 repeats the Applicant’s claim that cancellation would cause his family financial hardship, a matter which the Tribunal took into account but did not accept as a reason not to cancel the visa.  The weight given to that consideration by the Tribunal in the exercise of its discretion was a matter for the Tribunal. 

2. Grounds 14 to 17 simply recite the Applicant’s hope his visa can be reinstated.  They do not point to any jurisdictional error in the decision of the Tribunal.

3. The Tribunal’s finding the Applicant did not comply with the conditions of his visa was open to the Tribunal on the evidence before it.  The Tribunal found the Applicant’s enrolment in the bachelor degree ceased in May 2014.  That finding was consistent with the Applicant’s own evidence.  In that cessation, the Applicant did not comply with condition 8516, which required him to continue to meet the criteria for the visa.  In considering whether to cancel the Applicant’s visa, the Tribunal took into account all of the relevant circumstances, including the Applicant’s reasons (put forward) for not cancelling the visa. There is no error in the Tribunal’s approach or decision.

4. The application is without merit and shall be dismissed. Costs follow that event. The costs claimed by the First Respondent are less than that provided for in the Schedule 1 scale of costs in the Federal Circuit Court Rules 2001 (Cth) and accordingly an order in that quantum shall be made.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 11 October 2016