Noshad v Minister for Immigration and Border Protection
[2017] FCA 254
•7 March 2017
FEDERAL COURT OF AUSTRALIA
Noshad v Minister for Immigration and Border Protection [2017] FCA 254
Appeal from: Noshad v Minister for Immigration and Border Protection [2016] FCCA 2612 File number: VID 1134 of 2016 Judge: DAVIES J Date of judgment: 7 March 2017 Catchwords: MIGRATION – appeal from the decision of the Federal Circuit Court of Australia to dismiss the application for judicial review – cancellation of a Student (Temporary) (Class TU) visa Legislation: Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), reg 1.40A, Sch 2 div 573, Sch 8 condition 8516
Date of hearing: 7 March 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: N Rogers of the Australian Government Solicitor Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 1134 of 2016 BETWEEN: MUHAMMAD NOSHAD
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
7 MARCH 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs fixed in the amount of $3,250.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)DAVIES J:
The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) which affirmed the decision of a delegate of the Minister for Immigration and Border Protection to cancel the appellant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) Visa (“the visa”). The ground for the cancellation was that the appellant had not complied with condition 8516 of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”), which applied to the visa.
At the time the Tribunal made its decision, s 116 of the Migration Act 1958 (“the Act”) relevantly provided as follows:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
Neither s 116(2) or (3) is applicable in the present circumstances.
Condition 8516, contained in Schedule 8 to the Regulations provided as follows:
8516The 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.
The criteria for the appellant’s visa are prescribed in Division 573 of Schedule 2 to the Regulations. Relevantly, the primary criteria for the visa granted to the appellant required the appellant to be an “eligible higher degree student” within the meaning of that expression as defined in clause 573.111: see clauses 573.112 and 573.223(1A); or to be enrolled in a course specified for the purposes of clause 573.231. An “eligible higher degree student” relevantly means a student enrolled in a bachelor degree, and a bachelor degree is included in the courses specified for the purposes of clause 573.231: see legislative instrument IMMI12/037.
The appellant was granted the visa based on his enrolment in a Bachelor of Engineering (Mechanical Engineering). In about July 2014, the appellant changed from that course to a cookery and hospitality course which was not a principal course of study specified for a subclass 573 visa. After the appellant received a notice of intention to consider cancellation of the visa from the Department, the appellant enrolled in a bachelor degree at Cambridge International College. The Tribunal held that the appellant did not comply with condition 8516 as that condition required that the holder of the visa “must continue” to be a person who would satisfy the criteria for the grant of the visa. As the appellant had ceased to be enrolled in a principal course, he accordingly had not met the criteria of being someone who continued to be a person who would satisfy the criteria required for the purposes of a subclass 573 visa. The Tribunal was accordingly satisfied that the ground of cancellation in s 116(1)(b) existed. The Tribunal then proceeded to consider whether to exercise the discretion to cancel the appellant’s visa and concluded that the matters in favour of cancellation outweighed those against cancellation and that upon considering the circumstances as a whole the decision to cancel should be affirmed.
In his application for judicial review to the FCC, the appellant raised 17 grounds. As the FCC correctly stated grounds 1 to 6 simply recited the background to the decision to cancel the appellant’s visa and did not identify any error in the Tribunal’s decision. The remaining grounds, in essence, brought into issue whether the Tribunal was correct to hold that the appellant had not complied with condition 8516 and whether the Tribunal should not have cancelled the appellant’s visa in the exercise of its discretion. The FCC held that the Tribunal was correct to hold that the appellant had not complied with condition 8516 which required him to continue to meet the criteria for the visa. The FCC also held that in considering whether to cancel the appellant’s visa the Tribunal took into account all of the relevant circumstances, including the appellant’s reasons put forward for not cancelling the visa and that there was no error in the Tribunal’s approach or decision.
The appellant’s notice of appeal from the FCC decision has seven grounds. Grounds 1 to 4 simply recite matters of background. Ground 7 contains the appellant’s wish to appeal against the orders made by the FCC. Ground 6 raises for determination whether the FCC was correct to hold that the appellant had not complied with condition 8516. Ground 5 is that:
[The Department] is aware that I was misguided when taken an advice from a Registered Migration Agent, relation to my course change and lowering academic level. I was advised that lowering my academic level won’t be a breach of my visa condition.
There is no merit in ground 6. The Tribunal was correct to hold, for the reasons given, that condition 8516 required a person to continue to meet the criteria and, as the appellant had not maintained his enrolment in a principal course of study of the kind prescribed, he had not continued to be a person who would satisfy the criteria for the grant of the visa.
Ground 5 appears to be a new ground that was not raised, or was not relied upon by the appellant, before the FCC. If, and to the extent, it is a new ground, there can be no error of law in the FCC not dealing with that ground. If, and to the extent, that ground 5 is not a new ground, but rather a different way of expressing other grounds relied upon by the appellant in his application for review, it appears to be a claim that is inconsistent with the case that the appellant presented to the Tribunal. Alternatively, it was a claim that was dealt with by the Tribunal on the merits in the rejection of that claim.
The Tribunal’s reasons record that the appellant had given evidence to the Tribunal that his migration agent advised him that he could change his course after completing the first year. The appellant also gave evidence that he asked the agent to enrol him in another degree course but the agent “took a while to do so”. However, the appellant also conceded to the Tribunal that when the visa was granted he knew he had to continue to undertake a degree. The Tribunal did not accept the appellant’s claims that the breach was due to circumstances beyond his control. In particular, the Tribunal referred to the appellant’s evidence that his agent in India told him that he must remain enrolled in his degree. The Tribunal noted that despite that advice, after failing some subjects in the degree, the appellant chose to withdraw from the degree and enrol in courses at the VET level although he knew he was required to remain enrolled in a degree course.
No legal error is demonstrated in the exercise of the Tribunal’s discretion to cancel the appellant’s visa. It is sufficiently apparent that in the exercise of that discretion, the Tribunal took into account that the appellant had relied on advice from a registered migration agent, but also took into account as a relevant consideration that the appellant’s evidence was that he knew he was required to remain enrolled in a degree course in order to meet the criteria for holding a subclass 573 visa. For those reasons, the appeal must be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 14 March 2017
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