PAL v Minister for Immigration

[2017] FCCA 1037

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1037

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – cancellation of student visa – Applicant’s grounds of application unparticularised – power to cancel visa discretionary – findings open to the Tribunal on the facts – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 116

Migration Regulations 1994 (Cth), Sch. 2 cl.573.223(1A), cl.573.231

Cases cited:

Drake v the Minister for Immigration and Ethnic Affairs, (1979) 2 ALD 634

Applicant: AMAR PAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2700 of 2015

Judgment of: Judge Hartnett

Hearing date: 5 April 2017

Delivered at: Melbourne

Delivered on: 5 April 2017

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Lucas

Solicitors for the First Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2700 of 2015

AMAR PAL

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 7 December 2015 for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 24 November 2015 which affirmed a decision of a delegate of the Minister to cancel the Applicant’s subclass 573 higher education visa under s.116 in the Migration Act 1958 (Cth) (‘the Act’).

2. The grounds of the application are as follows:-

   “1. MRT took account of irrelevant considerations,

   2. MRT erred at law,

   3. MRT failed to take account of relevant consideration.”

3. These grounds are unparticularised.  Although the Applicant had an opportunity to amend his application by orders made by Registrar Buljan on 11 May 2016, the Applicant did not amend his application to provide particulars of the grounds which he claimed existed in support of the final orders as sought by him.  Nor did the Applicant file and serve any written submissions as ordered in order number 3 of the orders of Registrar Buljan of 11 May 2016.  In oral submissions made this day the Applicant could not point to any irrelevant considerations that were taken into account, relevant considerations that were not taken into account or errors of law.  Essentially what the Applicant sought was merits review of his case.

4. The First Respondent sought that the application be dismissed and that costs be awarded against the Applicant.  The First Respondent filed written submissions on which he relied filed 13 July 2016 and a Court Book, which contains evidence before the Court, filed 19 May 2016. 

5. The Tribunal’s decision is not affected by jurisdictional error as discussed hereafter.  The Applicant puts no real argument before the Court.  The application must be dismissed as a consequence. 

History

1. The Applicant is a citizen of India.  He made an offshore application for the grant of a visa, on 5 July 2013 he was granted a student (temporary) (Class TU) (subclass 573) visa (‘the visa’) on the basis of his enrolment at Victoria University in a diploma and bachelor of business. The Applicant’s visa included condition 8516, which required the Applicant to maintain his eligibility for the grant of the visa. 

2. As set out in paragraph 8 of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) the Department of Immigration and Border Protection (‘the Department’) systems indicated that the Applicant’s enrolment in a higher education sector course was cancelled on 9 September 2013 and he was from that date, until he obtained a Confirmation of Enrolment dated 7 November 2014 for a Bachelor of Business at Stott College commencing 16 November 2015, not an eligible higher degree student and was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under Regulation 1.40A

3. The Tribunal noted in its Decision Record (paragraph 8) that at the hearing and after some discussion with the Applicant, the Applicant conceded that the situation described in the preceding paragraph was the case.  The Applicant confirmed that concession on the hearing of his judicial review application this day. 

4. On 31 October 2014 the delegate issued a Notice of Intention to Consider Cancellation of the visa (‘NOICC’) under s.116 of the Act on the basis that according to the Provider Registration and International Student Management Systems (‘PRISMS’), the Applicant appeared to have breached condition 8516 by not maintaining his enrolment in satisfaction of cl.573.223(1A) or cl.573.231 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

   
   

   This was so because the Applicant was no longer enrolled in a bachelor’s degree or master’s degree by course-work and was not enrolled in a course of study specified for subclass 573 visas by the Minister in an instrument made under reg.1.40A.

5. Clause 573.223(1A) which was satisfied by the Applicant at the time of the granting of the visa, was relevantly as follows:-

   “(1A)  If the applicant is, and was, at the time of application, 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.

   (2)  If subclause (1A) does not apply:

   (a)  the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; 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 access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.”

6. Clause 573.231 was relevantly as follows:-

   “ If subclause 573.223(1A) does not apply:

   (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.”

7. On 7 November 2014, the Applicant provided his response to the NOICC and relevant documents to the Department. On 20 January 2015 the delegate cancelled the Applicant’s visa.  The Applicant was notified of that decision on the same day.  On 22 January 2015 the Applicant applied to the Tribunal for review of the delegate’s decision.  On 21 October 2015 the Applicant appeared before the Tribunal to give evidence and present arguments.  He was represented by a migration agent.  On 24 November 2015 the Tribunal affirmed the delegate’s decision to cancel the Applicant’s visa.  Notification of that decision to the Applicant was given on 25 May 2015.  The Applicant then filed this application for judicial review.

8. On the basis of the evidence before it, the Tribunal found that the Applicant was no longer enrolled in a bachelor or master degree course and therefore no longer an eligible higher degree student nor was he enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under reg.1.40A from 9 September 2013 till 7 November 2014.  The Tribunal found that between those dates the Applicant therefore did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the criteria for the grant of the visa.  The Tribunal found that the Applicant therefore breached condition 8516, which was attached to the Applicant’s visa and was relevantly:- 

   “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.”

9. The legislative instrument in which the Minister specified principal courses for the purposes of the visa under reg.1.40A was IMMI14/O15.

Tribunal’s findings 

1. The Tribunal noted in paragraph 10 of the Decision Record its satisfaction that the ground for cancellation in s.116(1)(b) existed by virtue of paragraph 13 herein. The Tribunal then noted that as that ground did not require mandatory cancellation under s.116(3) of the Act, the Tribunal was required to proceed to consider whether the power to cancel the visa should be exercised.

2. The Tribunal set out that there were no matters specified in the Act or Regulations that were required to be considered by the Tribunal in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the Applicant’s visa, the Tribunal noted in paragraph 11 of the Decision Record that it had regard to the relevant circumstances, including but not limited to matters identified in the Department’s Procedures Advice Manual (‘PAM’) “general visa cancellation powers”.

3. In the exercise of that discretion and as accurately set out in the submissions of the First Respondent, the Tribunal had regard to matters including:-

   a) the Applicant’s purpose in his travel to, and stay in Australia;

   b) the extent of the Applicant’s compliance with visa conditions;

   c) the circumstances in which the ground of cancellation arose;

   d) the degree of hardship that might be caused to the Applicant if the visa remains cancelled;

   e) any reasons why the Applicant could not return to India;

   f) the past and present conduct of the Applicant towards the Department; and

   g) whether any international agreement would be breached as a result of the cancellation.

4. The Tribunal expressed its concerns to the Applicant during the course of the hearing about whether the Applicant was a genuine student and in particular a genuine student for study at the higher degree level, which the Tribunal considered to be a significant factor in weighing the discretion to cancel.

5. The Tribunal put many matters of concern to it, to the Applicant. The Tribunal then made the following findings as set out in paragraphs 26, 27 and 28 of the Decision Record:-

   “26. I have had regard to the Applicant’s evidence, his statement to the Department, his statement in the submission prior to the hearing, the submissions made pre and post hearing and the submissions of the representative.  I continue to hold concerns that the evidence indicates the Applicant does not genuinely intend to study at the higher degree level.  I have had regard to his claims that he left Victoria University because after 15 to 20 days he decided that he needed to have experience in cookery so that he could supervise this area of hospitality businesses. He also states in his most recent statement that he had a background in hospitality and this is why he wanted to study hospitality and changed education-providers.  I do not find these explanations convincing at all. The Applicant has advanced no credible reason why it took him until arrival in Australia to decide that he needed to change his study path to hospitality, saying only that in India all he thought about was management.  He has not explained why he then took the significant step of changing course and provider for such a poorly explained reason so soon after arriving in Australia.  Even if I accept his claim that his statement to the department was authorised by his then agent and he had no responsibility for this, despite signing it, which I do not, I find that the Applicant has not given a plausible or credible explanation for his change of studies so soon after his arrival in Australia.  I have further concerns, expressed to the Applicant, with the fact that he presented a completely different package of courses, including a Bachelor, to get release from Victoria University but then proceeded to do a separate package of unrelated courses, without a Bachelor. Further, he has not adequately explained why he did not act on the strongly worded advice of the letter from Victoria University to confirm with the Department that his change of study had not affected his visa.  I do not accept that the Applicant can shift all blame for these actions to his former agent. I do not accept the current representative’s thesis that this whole process was engineered by that former agent to get commissions – there is no documentary evidence to support this thesis. I do not accept that the then agent would have engineered such a process if it was against the Applicant’s wishes, his financial arrangements with his bank and his intention, as he and his representative have claimed. The findings and difficulties I have with the central proposition of the Applicant and his representative’s argument – that the Applicant decided to obtain experience in a commercial cookery setting only 15 to 20 days after arriving in Australia to study a different package course, means that I do not accept the reasoning that flows from this. I do not accept that the Applicant has been the victim of circumstance and an agent who has acted against the Applicant’s wishes and intentions.  I do not accept that the Applicant was unaware of his obligations to maintain enrolment in a higher degree course until issued with the NOICC.  I do not consider it necessary to speculate about the reasons the Applicant may have chosen to behave in the way he has acted, but I find on the evidence before me and the findings above that his behaviour indicates that he did not have and continues not to have a genuine intention to study at the higher education level.  In making this finding I am aware that he holds a current CoE for a Bachelor course, has paid a proportion of the fees. However, he first sought this CoE after being notified of the NOICC, which I find indicates the Applicant attempting to comply with conditions on his visa rather than a genuine intention to study at the higher education level.  Similarly his most recent CoE I find is an attempt by the Applicant to comply with the visa conditions in order to have his visa reinstated and does not, I find, indicate his genuine intention to study this course.  On the basis of the above I also find that the breach in this case did not arise in circumstances beyond the Applicant’s control. 

   27. On the basis of the above concerns and findings I find that the Applicant does not intend to study at the higher education level.  Given this finding, I do not accept on the evidence before me that if the visa were reinstated – that the Applicant would study at the higher degree level, and I give this significant weight in considering whether the visa should be cancelled. 

   28. I have had regard to his evidence that he has completed two certificate IIIs and that he is working in this field at the moment.  I accept that he has completed studies, but these are at the vocational level and do not indicate that he will or has any intention of studying at the higher education level.  I have had regard to his claims that there would be some hardship to him and his family if the visa remained cancelled, and I accept this.  However, I give this little weight against the concerns raised above.  I have considered the Applicant’s claimed purpose for travel and stay in Australia. Given my above findings, I am not prepared to accept that he travelled here with the intention to study at the higher degree level.  I give this little weight.  I have considered the circumstances in which the ground for cancellation arose, his past and present conduct towards the Department and whether any international agreement would be breached as a result of the cancellation.  I have had regard to the evidence addressing these factors, but I give them little weight when considered against my findings above.”

6. The Tribunal concluded that the Applicant’s visa should be cancelled.

Consideration 

1. The Tribunal correctly stated and applied the law. The Applicant conceded he was no longer enrolled in the appropriate course for the visa on 9 September 2013. The Tribunal correctly noted no prescribed circumstances existed under s.116(3) of the Act and proceeded to consider whether to exercise its discretion to cancel the Applicant’s visa. The Tribunal considered all of the evidence before it, engaged extensively in that process, and the Applicant did not identify any factors which the Tribunal should have or ought not to have taken into account in the Tribunal’s exercise of its discretion to cancel the visa. It was open to the Tribunal to rely on the factors set out in the PAM in making its decision.[1] The discretionary power to cancel a visa under s.116 of the Act is broad. The application shall be dismissed.

   [1] Drake v the Minister for Immigration and Ethnic Affairs, (1979) 2 ALD 634, 420-421.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 18 May 2017