Pal v Minister for Immigration

[2016] FCCA 3392

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3392

Catchwords:
MIGRATION – Judicial review application – subclass 573 High Education Sector visa – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.116, 474, 476

Migration Regulations1994 (Cth), Sch 2, cll.573.223(1A), 573.231, Sch 8, condition 8516

Cases cited:

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Applicant: VIJENDER PAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 570 of 2015

Judgment of: Judge Lucev

Hearing date: 22 December 2016

Date of Last Submission: 22 December 2016

Delivered at: Perth

Delivered on: 22 December 2016

REPRESENTATION

For the Applicant:	No appearance
Counsel for the First Respondent:	Ms E Tattersall

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 570 of 2015

VIJENDER PAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore and later edited)

Introduction

1. Vijender Pal has filed an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision made on 11 November 2015 is at Court Book (“CB”) 97-101. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to cancel Mr Pal’s Subclass 573 Higher Education Sector visa (“Visa”).

Background

1. On 13 March 2014, Mr Pal was granted the Visa by the Department of Immigration and Border Protection ("the Department") in order to undertake a Diploma of Commerce and Bachelor of Business Management at Murdoch Institute of Technology: CB 1 and 32.

2. On 24 November 2014, the Department sent a Notice of Intention to Consider Cancellation ("NOICC") under s.116(1)(b) of the Migration Act to Mr Pal by email due to an apparent breach of condition 8516 of Schedule 8 to the Migration Regulations 1994 (Cth) ("the Migration Regulations ") (“Condition 8516”), which required Mr Pal to continue to satisfy the primary or secondary criteria, as the case requires, for the grant of the Visa. Relevantly, the primary criteria required, amongst other things, that Mr Pal continue to be enrolled in, or subject of, a current offer of enrolment in a principal course of study of a type specified for a Subclass 573 Visa, satisfying either c1.573.223(1A) or cl.573.231 of Schedule 2 to the Migration Regulations: CB 13-20.

3. On 27 November 2014, Mr Pal responded to the NOICC contending that:

   a)he felt very lonely and had no friends at Murdoch Institute of Technology, and that after making friends with some people from his village in India he decided to move to Kingston International College Pty Ltd;

   b)he had been unaware of the breach; and

   c)his parents would be disappointed and upset if he returned without finishing his studies: CB 22-23.

4. In the Delegate’s Decision on 23 January 2015, the Delegate decided to cancel the Visa: CB 24-36.

5. On 29 January 2015, Mr Pal applied to the Tribunal for review of the Delegate's Decision: CB 37-51.

Tribunal Decision

1. The Tribunal Decision affirmed the Delegate’s Decision to cancel the Visa: CB 97-101.

2. The Tribunal found that from the time that Mr Pal ceased to be enrolled with Murdoch University he had been in breach of Condition 8516: CB 100 at [13].

3. In considering whether the discretion to cancel the Visa should be exercised, the Tribunal had regard to the relevant factors contained in the PAM3 "General Visa cancellation powers" document and Mr Pal's evidence to the Department and the Tribunal. The Tribunal made the following relevant findings:

   a)it was not satisfied that Mr Pal had no knowledge that he was required to be enrolled in a particular type of course to meet the requirements of the Visa or that he believed the conditions of his Visa would change when he changed his course: CB 98 at [6];

   b)at best, a letter from a medical practitioner, Dr Chang, provided to the Tribunal by Mr Pal, reported that Mr Pal had the support of a doctor who had first been consulted three days prior to the Tribunal hearing, who merely recounted what Mr Pal had told him, and made no conclusive clinical findings, and had not been informed that the Visa had been cancelled for breach of the Visa condition: CB 100 at [18];

   c)Mr Pal had not studied towards a higher education degree since approximately three months after his arrival in Australia, and he had been in breach of Condition 8516 since that time and did not notify the Department about the change in his circumstances: CB100 at [19];

   d)there was nothing before the Tribunal to show that Mr Pal had successfully completed any part of his study and accordingly, it was therefore difficult to see how it was that his claim that his efforts would be wasted had any substance: CB 100 at [20]; and

   e)considering Mr Pal's circumstances as a whole, the Tribunal concluded that the Visa should be cancelled: CB 101 at [22].

4. On 8 December 2015, Mr Pal lodged the Judicial Review Application and accompanying affidavit in this Court in respect of the Tribunal Decision.

5. On 20 January 2016 a Registrar of this Court made orders requiring Mr Pal to file and serve any amended application and any further affidavit material by 22 February 2016, and written submissions in support of his application 42 days before the scheduled hearing. No amended application, further affidavits or submissions were filed by Mr Pal.

Judicial Review Application

1. The grounds of the Judicial Review Application are as follows:

   1. As I have stated in my initial application my purpose to come to this country is only to study. It is only due to my misunderstanding of the rules that has put me in this position. I do not want to let my parents down, it will disastrous if I go back now.

   2. I am from a small village in India and when I first came to Australia I was completely lost. I did not have any friends and I had to find my way on my own. The Diploma of Commerce and Bachelor of Business Management at Murdoch Institute of Technology was a good course for me but I could not manage to make any friends and I was unaware of how the education system works in Australia. The way of doing things when it comes to education is so different back home in my country that I was completely at loss in Murdoch Institute of Technology.

   3. I managed to make a few friends from Kingdom Institute of Management because they were from my village in India. They reminded me of my home and I began to meet them more often. One of them told me to come and join Kingdom Institute of Management so I applied. I was genuinely unaware of the procedures and Visa requirements. I was under the assumption that I was doing one diploma so it is ok to go on another diploma.

   4. I still intend to complete my education and if I were given the chance would make sure that I achieve my goal. Please do consider my case as if I return to India and the hard work my parents have spent towards my tuition would go to waste. I do not wish to stay in Australia indefinitely, all I want to do is finish what I came here to do and go back to India.

   (Transcribed from the Judicial Review Application without amendment)

2. Mr Pal did not appear at the hearing before the Court today.

Consideration

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   thereby affecting the Tribunal Decision and resulting in the Tribunal exceeding or failing to exercise the authority or powers given to it under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

2. The grounds relied upon by Mr Pal raise no competent legal ground of judicial review and do not identify any jurisdictional error in the Tribunal Decision.

3. The grounds constitute no more than a plea for impermissible merits review based on Mr Pal's dissatisfaction with the Tribunal's ultimate decision. Merits review is not part of the function of this Court on an application for judicial review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang ((1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

4. It is evident that the Tribunal considered Mr Pal's evidence, including that he:

   a)was unaware of breaching the Visa conditions: CB 100 at [17];

   b)did not want to let his parents down: CB 100 at [20];

   c)became depressed while enrolled at Murdoch University: CB 100 at [16]; and

   d)changed education providers as a result of where his friends were being educated: CB 100 at [16].

5. The grounds relied upon by Mr Pal, and the consideration of his claims in the Tribunal Decision, do not give rise to any jurisdictional error. As there is no jurisdictional error in the Tribunal Decision, the Tribunal Decision is therefore a privative clause decision within the meaning of s.474 of the Migration Act.

Conclusion

1. In the circumstances the Tribunal Decision is not affected by jurisdictional error, and it follows that the application must be dismissed. There will be order an order accordingly.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Date: 23 December 2016