Patel v Minister for Immigration
[2014] FCCA 1345
•27 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1345 |
| Catchwords: MIGRATION – Judicial review – temporary student visa – whether substantial compliance with conditions sufficient – whether jurisdictional error. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), ss.19, 20 Migration Act 1958 (Cth), ss.65, 359A, 474, 476 Migration Regulations1994 (Cth), Schedule 2, cl.573.333; Schedule 8, Condition 8202 |
| Baidakova v Minister for Immigration & Multicultural & Indigenous Affairs [1998] FCA 1436 Cai v Minister for Immigration & Citizenship [2011] FMCA 922 Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 156 FCR 199; [2006] FCAFC 167 Kim v Witton (1995) 59 FCR 258 Minister for Immigration & Multicultural Affairs v Modi (2001) 116 FCR 496; [2001] FCA 1656 Patel v Minister for Immigration & Citizenship (2012) 206 FCR 384 [2012] FCA 958 Patel v Minister for Immigration & Citizenship [2013] HCATrans 240 Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578 Singh v Minister for Immigration & Citizenship [2011] FMCA 972 Singh v Minister for Immigration & Anor (2012) 133 ALD 379; [2012] FMCA 821 Tamang v Minister for Immigration & Anor [2013] FCCA 450 |
| Applicant: | BHAVINKUMAR HASMUKHBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2226 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 5 June 2014 |
| Date of Last Submission: | 5 June 2014 |
| Delivered at: | Perth (by video link to Sydney) |
| Delivered on: | 27 June 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms K Hooper |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
SYG 2226 of 2013
| BHAVINKUMAR HASMUKHBHAI PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application
The applicant applies for an order that the respondents, the Minister for Immigration & Border Protection[1] and the Migration Review Tribunal,[2] show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth)[3] in respect of the Tribunal’s decision[4] dated 23 August 2013. The Tribunal Decision affirmed a decision by a delegate[5] of the Minister dated 14 September 2011 not to grant the applicant a Student (Temporary) (Class TU) visa.[6]
[1] “Minister”.
[2] “Tribunal”.
[3] “Migration Act”.
[4] “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 216-230.
[5] “Delegate’s Decision” and “Delegate” respectively. The Delegate’s Decision is at CB 85-87.
[6] “Temporary Student Visa”.
Factual and procedural background prior to the present judicial review application
The background prior to the present judicial review application is as follows:
a)on 7 April 2011 the applicant applied for a Temporary Student Visa;[7]
[7] CB 85.
b)on 14 September 2011 the Temporary Student Visa application was refused by the Delegate for reasons contained in the Delegate’s Decision;[8]
[8] CB 85-87.
c)by application to the Tribunal lodged on 22 September 2011 the applicant sought review of the Delegate’s Decision;[9]
[9] CB 88-96 and 99.
d)on 8 April 2013 the Tribunal wrote to the applicant under s.359A of the Migration Act,[10] advising that:
[10] CB 132-134 (“Section 359A Letter”).
i)information before the Tribunal indicated that the applicant’s last substantive visa was a Subclass 572 Vocational Education and Training Sector Visa;[11] and
[11] “Vocational Visa”.
ii)one of the requirements for the grant of a Temporary Student Visa was that the applicant had complied substantially with the conditions that apply or applied to the Vocational Visa, which included Condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth),[12] which the Tribunal set out in full. The Tribunal provided the following particulars of information:
[12] “Migration Regulations”.
Information in the PRISMS data base to which the Tribunal has access indicates that you were enrolled in a registered course, Diploma of Business, at College of Innovation and Industry Skills Pty Ltd from 28 June 2010. The course was due to run until 12 June 2011 but on 14 March 2011 the enrolment was cancelled because of unsatisfactory course progress. The PRISMS data base indicated that on 14 March 2011 you were certified by the college for that Diploma of Business course as not achieving satisfactory course progress for Section 19 ESOS Act and Standard 10 of the National Code 2007.[13]
[13] CB 133. The reference to “Section 19 ESOS Act and Standard 10 of the National Code 2007” are references to the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) which provides the regulatory requirements for education and training institutions offering courses to international students in Australia on a student visa, and to the National Code which is a legislative instrument under the ESOS Act applying to providers of education to students with student visas, with Standard 10 being the Standard relating to the monitoring of course progress under the framework set out in the ESOS Act.
e)the above information was said to be relevant to the Tribunal review because it may cause the Tribunal to find that the applicant was the subject of a certificate for the purposes of Condition 8202(3)(b) of Schedule 8 to the Migration Regulations, thereby engaging Condition 8202(3) of Schedule 8 to the Migration Regulations, which may lead the Tribunal to conclude that the applicant did not comply at all, let alone substantially, with Condition 8202 of Schedule 8 to the Migration Regulations in relation to the Vocational Visa, and that if the Tribunal reached that finding it may lead the Tribunal to find that the applicant did not meet the requirements of cl.573.333 of Schedule 2 to the Migration Regulations in relation to the Temporary Student Visa for which he was applying, or the equivalent clause in other Student Visa subclasses, and that thereby the Delegate’s Decision should be affirmed;
f)the applicant was invited to comment on or respond to the particulars of information provided by 6 May 2013;[14]
g)following the grant of additional time to respond to the Section 359A Letter, a response was provided by the applicant to the Tribunal on 3 June 2013;[15]
h)attached to the Applicant’s June 2013 Response appeared a document headed “Non-Compliance Notification (NCN) Letter” which was in the following terms:
Certification for the purposes of sub-clause 8202(3) of Schedule 8 of the Migration Regulations 1994
College of Innovation and Industry Skills Pty Ltd [03022C] (trading as College of Innovation and Industry Skills) on 14 March 2011 certifies Mr Bhavinkumar Hasmukhbhai PATEL, for course Diploma of Business, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).[16]
i)on 7 May 2013 the applicant was invited to appear before the Tribunal on 12 June 2013 before the Tribunal;[17]
j)a hearing was held by the Tribunal on 12 June 2013 at which the applicant appeared, together with his wife, and was assisted by an interpreter;[18]
k)the Tribunal Decision dated 23 August 2013 affirmed the Delegate’s Decision to refuse to grant the applicant a Temporary Student Visa, essentially because the Tribunal found that the applicant had not substantially complied with Condition 8202 of Schedule 8 to the Migration Regulations of his Vocational Visa.[19] The Tribunal Decision is dealt with in more detail below.
[14] CB 132-133.
[15] CB 146-147 (“Extension of Time Letter”) and CB 152-199 (“Applicant’s June 2013 Response and Annexures”).
[16] CB 185 (“Section 20 Certification”).
[17] CB 150-151.
[18] CB 201-203.
[19] CB 216-230, but particularly at CB 228-230 at paras.59-69.
Tribunal Decision
The Tribunal Decision handed down on 23 August 2013 identified that the Tribunal was reviewing the Delegate’s Decision which “refused to grant the … [Temporary Student Visa] on the basis that the applicant did not satisfy cl.573.333 of Schedule 2 to the Migration Regulations … because he had not substantially complied with Condition 8202 of his … [Vocational Visa].[20]
[20] CB 217 at para.3.
The Tribunal set out the relevant law,[21] including:
a)observing that the criteria for the grant of the Temporary Student Visa were set out in cl.573.333 of Schedule 2 to the Migration Regulations, the criteria provided that for an application made in Australia the applicant must have complied substantially with the conditions that apply or applied to the last substantive visa held by the applicant, and to any subsequent bridging visa;[22]
b)setting out the version of Condition 8202 of Schedule 8 to the Migration Regulations which applied to the applicant’s Vocational Visa;[23]
c)observing that whether or not there had been substantial compliance with a visa condition was a question of fact to be determined having regard to the particular circumstances of the case, and the relevant indicative considerations which, although non-exhaustive, should be considered;[24]
d)noting that “there were some conditions to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not …”, citing Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs[25] and the finding by the majority in that case “… that the requirement of a certificate in the academic result component of condition 8202(3) of Schedule 8 to the Migration Regulations, as it stood and was considered in that case, was one such condition”;[26] and
e)noting that although not in the same form as it was when considered in Jayasekara, the reasoning of the majority in Jayasekara applied equally to Condition 8202(3) of Schedule 8 to the Migration Regulations as subsequently amended,[27] with the Tribunal going on to observe that “… the requirement of an absence of a relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application. Either it is satisfied or it is not.”[28]
[21] CB 217-219 at paras.6-13.
[22] CB 217 at para.7.
[23] CB 218 at para.12.
[24] Citing in support the Federal Court judgments in Kim v Witton (1995) 59 FCR 258 (“Kim”), and in particular the considerations set out in that case by the Federal Court at 271 per Sackville J; Baidakova v Minister for Immigration & Multicultural & Indigenous Affairs [1998] FCA 1436 (“Baidakova”); Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578; and Minister for Immigration & Multicultural Affairs v Modi (2001) 116 FCR 496; [2001] FCA 1656 (“Modi”).
[25] (2006) 156 FCR 199; [2006] FCAFC 167 (“Jayasekara”).
[26] CB 218 at para.10.
[27] Citing judgments of the Federal Magistrates Court in Cai v Minister for Immigration & Citizenship [2011] FMCA 922 and Singh v Minister for Immigration & Citizenship [2011] FMCA 972.
[28] CB 219 at para.13.
The Tribunal next set out the applicant’s claims and evidence. It did so comprehensively, and included the Tribunal’s queries concerning various issues, and the applicant’s post-hearing submissions.[29] It suffices to observe that:
a)the applicant alleged personal circumstances, including his:
i)grandmother’s illness and subsequent death in India; and
ii)having to travel to India prior to his grandmother’s death, with his fiancé, to get married before his grandmother died;
b)the applicant made assertions as to whether or not the certificate under s.20 of the ESOS Act ought to have been issued, and alleged various procedural errors in relation to the notification from the education services provider as to his alleged unsatisfactory progress in his course; and
c)the Tribunal accepted that the education service provider was prepared to re-enrol the applicant in the Diploma of Business course;
[29] CB 222-228 at paras.25-58.
The Tribunal noted that it had written the Section 359A Letter to the applicant setting out information to which the applicant was invited to comment or respond, and that the applicant had done so, and that amidst that response was a copy of the Section 20 Certification.[30] The Tribunal noted in its findings “… that the applicant conceded in his oral evidence and written submissions that he received the s.20 notice and certification by email from the college, and even provided the Tribunal with a copy of same.”[31]
[30] CB 219-220 at paras.19-23.
[31] CB 229 at para.61.
The Tribunal Decision can be summarised as follows:
a)the Tribunal relied on the certification issued by the applicant’s education provider that the applicant had not achieved satisfactory course progress for the purpose of Condition 8202(3)(a) of Schedule 8 to the Migration Regulations in relation to the applicant’s Vocational Visa;[32]
b)the Tribunal found the breach of Condition 8202 of Schedule 8 to the Migration Regulations was established by the certification having been issued by the education provider;[33]
c)the Tribunal found that Condition 8202 of Schedule 8 to the Migration Regulations was not amenable to the concept of substantial compliance, and that there had in fact been no compliance with Condition 8202(3) of Schedule 8 to the Migration Regulations;[34] and
d)the Tribunal considered the applicant’s submissions as to his personal circumstances, but found that they were irrelevant to its findings on cl.573.333 of Schedule 2 of the Migration Regulations.[35]
[32] CB 229 at para.61.
[33] CB 229 at para.62.
[34] CB 229 at para.65.
[35] CB 229 at para.66.
Having regard to the above matters the Tribunal was not satisfied that the applicant had satisfied cl.573.333 of Schedule 2 to the Migration Regulations,[36] and the Tribunal therefore affirmed the Delegate’s Decision.[37]
[36] CB 230 at para.67.
[37] CB 230 at para.69.
Grounds of review
On 19 September 2013 the applicant filed an application for judicial review of the Tribunal Decision containing three grounds of review, as follows:
GROUND 1
The Tribunal misconstrued the Clause 573.333 of Schedule 2 of the Migration Regulations.
Particulars
The Tribunal construed erroneously (and narrowly) as the issue of certification by College of Innovation & Industry Skills (“the College”) satisfying the requirement under the subclause as Applicant as having not substantially complied with the conditions (erroneously conflating these tests) and failed to take into account:
(a)The nature of the breach;
(b)Significance of the breach;
(c)Whether breach deliberate;
(d)Role of the Department;
(e)At the time of the refusal if the Applicant could demonstrate exceptional circumstances;
(f)Other circumstances such as illness of close family member;
(g)Intervening holiday periods;
(h)Offer of re-enrolment;
(i)Other issues raised.
GROUND 2
The Tribunal failed to constructively review the delegate’s decision and misdirecting its enquiries and / or failing to take into account all the circumstances as to its enquiries into the satisfaction of the Clause 573.333 of Schedule 2 of the Migration Regulations thereby committing jurisdictional error.
Particulars
The Tribunal failed to take into account:
(a)The nature of the breach;
(b)Significance of the breach;
(c)Whether breach deliberate;
(d)Role of the Department;
(e)At the time of the refusal if the Applicant could demonstrate exceptional circumstances;
(f)Other circumstances such as illness of close family member;
(g)Intervening holiday periods;
(h)Offer of re-enrolment by the College;
(i)Other issues raised.
GROUND 3
The Tribunal failed to investigate and thereby constructively review the delegate’s decision in that whether the College stood by its s 20 notice in the circumstances there was offer of re-enrolment and thereby committing jurisdictional error.
Particulars
The Tribunal failed to review as to the issue of offer of re-enrolment and whether s 20 notice was on foot.
Applicant’s submissions
The applicant did not file written submissions pursuant to the order of the Court of 20 November 2013. In oral submissions at hearing the applicant adverted to the factual circumstances which had been put to the Tribunal in support of his argument that he had substantially complied with Condition 8202 of Schedule 8 to the Migration Regulations, and told the Court that the Tribunal Decision was “not what I wanted” and requested that the Court “give him another chance”. When asked by the Court to identify jurisdictional error in the Tribunal Decision the applicant referred to the fact that the education provider concerned was prepared to re-enrol him in the Diploma of Business course.
Minister’s submissions
The Minister’s submissions were as follows:
a)all three of the applicant’s grounds proceed on an erroneous understanding of the applicable law;
b)the Tribunal correctly held that it was not required nor obliged to go behind the certification issued by the applicant’s education provider;[38]
c)the Tribunal did not misconstrue or misapply cl.573.333 of Schedule 2 of the Migration Regulations, rather it correctly cited and applied the judgment of the Full Court of the Federal Court in Jayasekara where it was held that there was no scope for substantial compliance with the relevant part of Condition 8202 of Schedule 8 to the Migration Regulations;[39]
d)the Tribunal considered the applicant’s evidence as to his personal circumstances but found it irrelevant to the Tribunal’s findings in relation to cl.573.333 of Schedule 2 to the Migration Regulations;[40] and
e)that the Tribunal complied with its obligations under s.359A of the Migration Act, to the extent they arose, noting in particular material provided by the applicant to the Tribunal under s.359A(4)(b) of the Migration Act included the Delegate’s Decision summarising adverse information, as well as adverse source documents such as the notice under s.20 of the ESOS Act itself.
[38] Citing Patel v Minister for Immigration & Citizenship (2012) 206 FCR 384 at 404 per Collier J; [2012] FCA 958 at paras.56-57 per Collier J (“Patel”), a judgment from which an application for special leave was refused: Patel v Minister for Immigration & Citizenship [2013] HCATrans 240.
[39] Jayasekara FCR at 202 per Heerey and Sundberg JJ; FCAFC at paras.15-16 per Heerey and Sundberg JJ.
[40] Citing Singh v Minister for Immigration & Anor (2012) 133 ALD 379 at 387 per Burnett FM; [2012] FMCA 821 at para.33 per Burnett FM (“Singh 2012” - in which Patel was cited) and Tamang v Minister for Immigration & Anor [2013] FCCA 450 (“Tamang”).
Consideration
Section 65 of the Migration Act provides as follows:
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visaapplication charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool undersubsection 95(3).
Clause 573.333 of Schedule 2 to the Migration Regulations relevantly provided that:
If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant and to any subsequent bridging visa.
Condition 8202 of Schedule 8 to the Migration Regulations (which applied to the applicant’s Vocational Visa) stated as follows:
8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student – the holder is enrolled in a full-time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full-time course of study or training.
Sections 19 and 20 of the ESOS Act provide as follows:
19 (1) A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:
(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student--the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of an acceptedstudent's studies (whether as a result of action by the student or the provider or otherwise) before the student's course is completed;
(e) any change in the identity or duration of an accepted student's course;
(f) any other prescribed matter relating to accepted students.
(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.
(2A) A registered provider must give particulars of a breach by a student under subsection (2) even if the student has ceased to be an accepted student of the provider.
(3) Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.
Unincorporated registered providers
(4) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the Secretary the information as required under this section.
(5) A registered provider, or the principalexecutive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(6) An offence under subsection (5) is an offence of strict liability.
20 (1) Subject to subsection (4A), a registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
(1A) A registered provider must send a notice to a student under subsection (1) even if the student has ceased to be an accepted student of the provider.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958 ) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.
(4A) A registered provider must not send a notice under subsection (1) on or after the day this subsection commences.
Unincorporated registered providers
(5) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.
(6) A registered provider, or the principalexecutive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(7) An offence under subsection (6) is an offence of strict liability.
The law in relation to the judicial review of applications for (and cancelation of) Temporary Student Visas has been set out in a series of cases including Jayasekara, Patel, Singh 2012 and Tamang. It is unnecessary to reiterate all that has been said in those cases. It suffices to observe that they establish the following propositions:
a)the requirement to be satisfied in Condition 8202(3)(a) of Schedule 8 to the Migration Regulations that the education service provider not have issued a certificate in respect of the applicant for not achieving satisfactory course progress is either complied with or not, and no question of substantial compliance arises;[41]
b)the Tribunal’s role is not to assess the validity of the certificate provided by the education service provider, and the Tribunal cannot go behind a certificate which is valid on its face;[42] and
c)the personal or exceptional circumstances of an applicant do not arise for consideration as a relevant factor in a case involving a review by the Tribunal of a decision to grant or not grant, as opposed to cancel, a Temporary Student Visa.[43]
[41] Jayasekara FCR at 202 per Heerey and Sundberg JJ; FCAFC at paras.15-16 per Heerey and Sundberg JJ; Singh 2012 ALD at 386-387 per Burnett FM; FMCA at paras.29-32 per Burnett FM; Tamang at paras.26-29 per Judge Hartnett.
[42] Patel FCR at 404 per Collier J; FCA at paras.56-57 per Collier J; Singh 2012 ALD at 387 per Burnett FM; FMCA at para.33 per Burnett FM; Tamang at paras.22-24 per Hartnett FM.
[43] Tamang at paras.30-32 per Judge Hartnett, and the cases referred to therein at para.32.
Applying the above principles to the circumstances of this case, and to the three grounds of review, it can be seen that:
a)in relation to ground 1 there was no misconstruction by the Tribunal of cl.573.333 of Schedule 2 to the Migration Regulations, and insofar as the particulars go to issues of personal or exceptional circumstances, they did not arise for the purposes of the Tribunal’s review;
b)in relation to ground 2 the Tribunal did not fail to review the Delegate’s Decision, misdirect its inquiries or fail to take into account relevant circumstances, as the only relevant circumstance in this case was the issuance of the Section 20 Certificate by reason of which the applicant must be, and was correctly held by the Tribunal to be, in breach of Condition 8202(3)(a) of Schedule 8 to the Migration Regulations; and
c)in relation to ground 3 whether the education service provider is prepared to re-enrol the applicant is not a matter relevant to whether or not the applicant breached Condition 8202(3)(a) of Schedule 8 to the Migration Regulations.
In the above circumstances, none of the three grounds of review are made out, and it follows that the applicant has not established any jurisdictional error on the part of the Tribunal in the Tribunal Decision.
Conclusions and order
The Court has determined that the applicant has failed to establish any jurisdictional error on the part of the Tribunal. It follows that the application must be dismissed as it is a privative clause decision for the purposes of s.474 of the Migration Act.
The Court will hear the parties as to costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 27 June 2014
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