Patel v Minister for Immigration
[2016] FCCA 1873
•21 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1873 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) visa – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 116, 474, 476 Migration Regulations 1994 (Cth), Sch.8, cl.8516 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 93 ALR 1; (1990) 33 IR 263 |
| Applicant: | ANKIT BHARATBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 435 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 21 July 2016 |
| Date of Last Submission: | 21 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 21 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person (with the assistance of an interpreter) |
Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
For the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $5,800 by 21 August 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEH 435 of 2015
| ANKIT BHARATBHAI PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore and subsequently edited)
Introduction
On 24 September 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Student (Temporary) subclass 573 visa (“Temporary Student Visa”) under s.65 of the Migration Act.
The Tribunal Decision is at Court Book (“CB”) 69-72.
Background
The relevant background to the Judicial Review Application is as follows:
a)the applicant was granted the Temporary Student Visa on 24 July 2013: CB 1;
b)on 7 November 2014, the applicant was issued with a notice of intention to consider cancellation (“Intention to Cancel Notice”) of the Temporary Student Visa, which invited comment from the applicant. The applicant was advised that PRISMS records indicated that he was no longer enrolled in a bachelor's degree or master’s degree course, and that he was not enrolled in a principal course of a type specified for the Temporary Student Visa: CB 5-9;
c)on 12 November 2014, the applicant responded to the Intention to Cancel Notice and stated, amongst other things, that:
i)he travelled to Australia for the purpose of completing a Bachelor of Business (Hotel Management) but had difficulties with assignments and the standard of English required; and
ii)he then enrolled in a package of courses and claimed that he was shocked when he received the Intention to Cancel Notice as he believed he had complied with the conditions of the Temporary Student Visa: CB 27-29;
d)on 16 January 2015, the Delegate cancelled the applicant's Temporary Student Visa: CB 39-42;
e)the Delegate was satisfied that the ground for cancellation under s.116(1)(b) of the Migration Act was enlivened because the applicant had failed to comply with Condition 8516 (being cl.8516 of Schedule 8 to the Migration Regulations 1994 (Cth)) of the Temporary Student Visa which required that the applicant continue to meet the criteria for the grant of the Temporary Student Visa, and that the grounds for cancelling the Temporary Student Visa outweighed the grounds for not cancelling the Temporary Student Visa;
f)on 21 January 2015, the applicant lodged an application for review to the then Migration Review Tribunal, which subsequently became the Tribunal: CB 43-44; and
g)on 22 June 2015 the Tribunal invited the applicant to appear before it, to give evidence and present arguments relating to the issues arising on review: CB 51-54. A hearing took place before the Tribunal on 26 August 2015, and the applicant appeared assisted by an interpreter and his representative: CB 61-64.
Tribunal Decision
The Tribunal Decision:
a)found that the applicant had not been enrolled in a Bachelor's degree course from September 2013 and accordingly, had not complied with the requirements of the Temporary Student Visa, namely Condition 8516: CB 71 at [9];
b)noted that mandatory cancellation of the Temporary Student Visa was not required under s.116(3) of the Migration Act, and then proceeded to consider whether the power to cancel the Temporary Student Visa should be exercised. In this regard, the Tribunal found:
i)the applicant did not take reasonable steps to ensure that he met the Temporary Student Visa conditions, namely the requirement that he be enrolled in or have a current offer of enrolment in a higher education course: CB 71 at [17];
ii)having been in Australia for over two years, the applicant had made no progress at all towards a bachelor’s degree, had no current offer of enrolment in a bachelor’s degree course, and did not have the capacity or commitment to study at the higher education level: CB 71 at [18]; and
iii)hardship would be caused to the applicant as a result of the Temporary Student Visa being cancelled, including the time and money spent studying, but that other circumstances including lack of knowledge of the Temporary Student Visa conditions, difficulty studying due to his English language skills, and reported wrong advice by colleges, were not sufficiently persuasive for the Tribunal to exercise its discretion in favour of the applicant: CB 71-72 at [19];
c)considered the applicant's circumstances as a whole, and concluded that the Temporary Student Visa should be cancelled: CB 72 at [201]; and
d)affirmed the Delegate’s Decision: CB 69-72;
Judicial Review Application
Applicant’s position
The Judicial Review Application contains the following statement under the section headed “Grounds of Application”:
1. Initially, I flew to Australia in July 2013 in order to achieve a Bachelor Degree in Hotel Management from Griffith University, Brisbane. However, when I started the course I found it extremely hard to understand the lectures and tutorials. I was unable to perform well enough to cope with the rest of the students and my grades suffered dramatically. I realised that my chances of finding any gainful employment would diminish if my grades continued to decline. Therefore, I cancelled my enrolment for the Bachelor program and subsequently enrolled at Western Australia Institute of Further Studies in Perth, for a Certificate IV in Business leading to a Diploma and Advanced Diploma.
2. Not long after the enrolment there the college counsellor notified me about the breach of my visa condition due to non-fulfilment of the required student criteria. I was totally unaware of this condition and hence also was unaware of the breach. After that situation with suggestions from my friends who were already studying in the college, I got in contact with Perth College of Business and Technology and enrolled in 14th July 2015. I made the college aware of my situation and asked them for a course that can eventually become a pathway towards Bachelor of Business with Hotel Management as major. I started with Certificate III in Commercial Cookery, which leads to Certificate IV, and Diploma in Hospitality.
3. It was after this stage when I received notice of the cancellation of my student visa. The cancellation notification revealed that I had breached condition 8516 of my 573 visa. I was unaware of the existence of non-streamlined visa colleges prior to this notification. Moreover, I lacked the knowledge regarding streamlined and non-streamlined visas since I worked on and submitted my visa application without any help or guidance. My current college did not enrol me in the required Bachelors course, which I wished to do after completing the Diploma. In addition, I was completely unaware of the requirement to apply for a new student visa in the event of a change in field of study.
4. Following the cancellation of my course at Griffith University and my subsequent enrolment in Perth College of Business and Technology, I have attended all of my classes consistently and diligently. The aforementioned breach of visa condition is completely unintentional. I would have selected a university and course, which satisfies the 573-condition clause or applied for a fresh student visa if I was aware of such a requirement. I wish to affirm that my reasons are genuine.
The applicant has not filed any amended application or outline of submissions in accordance with the Registrar’s orders of 11 November 2015.
At hearing, the applicant reiterated what was in the grounds of the Judicial Review Application (as set out above), and said that he was a genuine student who had continued to study certificate (or non-university) level courses and had completed one or more of those courses, but was not able to point to any jurisdictional error in the Tribunal Decision.
Minister’s position
The Ministers position is that:
a)the Judicial Review Application discloses no jurisdictional error;
b)the applicant seeks merits and not judicial review,
and that the Judicial Review Application must be dismissed with costs.
Consideration
In this case the Court notes that:
a)the Judicial Review Application does not allege jurisdictional error in the Tribunal Decision;
b)the grounds of the Judicial Review Application, as set out above, do not establish jurisdictional error in the Tribunal Decision;
c)the applicant, in oral submissions, did not point to any jurisdictional error in the Tribunal Decision, but sought to re-argue factual matters; and
d)the applicant’s enrolment in and completion of certificate courses are irrelevant to whether he met the Temporary Student Visa Condition 8516 criteria; and
e)it is not in contention that the applicant breached Condition 8516.
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [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. Further, 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,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [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.
In the Court’s view the applicant’s grounds of application raise no issue or allegation of error, but rather simply seek to re-agitate the factual matters determined by the Tribunal, and as such are no more than a plea for impermissible merits review by way of a review of the Tribunal’s fact-finding, and a re-weighing of the Tribunal’s factual determination. For the Court to undertake such a task would be to cross the line between merits review and judicial review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 93 ALR 1; (1990) 33 IR 263.
It is fair to observe that the Tribunal identified the correct and relevant law and criteria, identified the correct issues, and asked the correct questions. The Tribunal Decision demonstrates that the Tribunal considered the available evidence, and engaged in an active intellectual process and gave genuine consideration to the relevant criteria before arriving at conclusions which were available on the evidence: Minister for Immigration & Citizenshipv Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26.
The Tribunal was correct to find that the applicant had not continued to satisfy the requirements of the relevant criteria, namely Condition 8516.
Having reviewed the Tribunal Decision it is plain that the Tribunal considered the reasons and explanations advanced by the applicant in its consideration of whether to exercise its discretion to cancel his Temporary Student Visa. Specifically, the Tribunal stated that it "did not consider his lack of knowledge of the Temporary Student Visa conditions, his difficulties in studying at the higher educational level due to limited English skills, reported wrongful advice by colleges and the hardship that will result from the Temporary Student Visa cancellation, are sufficiently persuasive for the Tribunal to exercise the discretion in favour of the applicant": CB 71-72 at [19]. In relation to wrongful advice, the Court repeats what it said in Bal v Minister for Immigration & Anor [2016] FCCA 1344 at [29] per Judge Lucev (“Bal”):
To the extent that the applicant says that he obtained advice from officers of his education providers, migration agents and Departmental officers, and that he was advised that he was not in breach of the terms of his Higher Education Visa, that advice, even if wrong, cannot constitute jurisdictional error by the Tribunal: Singh & Anor v Minister for Immigration & Anor [2011] FCAFC 27; (2011) 190 FCR 552; (2011) 276 ALR 180 at [47]-[48] per Keane CJ, Collier and Logan JJ; Cheng v Minister for Immigration & Anor [2011] FMCA 461 at [55] per Barnes FM; Diamant & Ors v Minister for Immigration & Anor [2014] FCCA 21 at [44]-[46] per Judge Lucev.
The Tribunal properly considered the relevant circumstances for and against cancelling the applicant's Temporary Student Visa, and exercised its discretion to cancel the applicant's Temporary Student Visa in a manner that was legally reasonable. Having found that the grounds for cancellation existed, the Tribunal correctly turned its mind to whether or not to exercise its discretion to cancel the Temporary Student Visa. In that regard, the Tribunal addressed the matters which were put to it by the applicant in relation to the exercise of the discretion not to cancel the Temporary Student Visa, and also considered the relevant factors under the PAM3 guidelines. The Tribunal Decision demonstrates that the Tribunal gave active consideration to the exercise, or otherwise, of the relevant discretion, and reasonably exercised its power to affirm the cancellation of the Temporary Student Visa by the Delegate, and in so doing did not act contrary to the principles with respect to the reasonable exercise of a statutory discretion outlined by the High Court in Minister for Immigration & Citizenshipv Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181, and the judgment of the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50, and the Federal Court’s summary of the relevant principles in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
It follows that the Tribunal Decision is not vitiated by jurisdictional error, and is therefore a privative clause decision for the purposes of s.474 of the Migration Act. The Judicial Review Application must therefore be dismissed, with costs in the sum of $5,800 to be paid by the applicant to the Minister by 21 August 2016. There will be orders accordingly.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 22 July 2016
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