Patel v Minister For Immigration & Anor
[2014] FCCA 2000
•26 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2000 |
| Catchwords: MIGRATION – Judicial review of decision of Migration Review Tribunal – Subclass 573 Higher Education Sector (Class TU) visa – whether bridging visa cancels substantive visa – whether incorrect advice provided by education provider and Department of Immigration and Border Protection – whether estoppel against Tribunal and third parties – whether legitimate expectation applies – whether delay causing procedural unfairness – whether jurisdictional error – exercise of discretion to refuse prerogative relief. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), ss.19, 20, 108 Migration Act 1958 (Cth), ss.68, 71, 76, 82, 97, 116(1)(b) and (3), 137J, 474, 476 Migration Regulations 1994 (Cth), reg.2.43(2)(b), Schedule 2, cl.010.211(1), (2) and (3), Schedule 8, Conditions 8202, 8516 |
| Attorney General (NSW) v Quin (1990) 170 CLR 1 Jihui Cheng v Minister for Immigration & Citizenship [2011] FMCA 461 Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 Minister for Immigration & Multicultural Affairs v SZFDE & Ors (2006) 154 FCR 365; [2006] FCAFC 142 Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30 MZWOQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1436 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Reddy v Minister for Immigration & Citizenship [2007] FCA 1764 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Singh v Minister for Immigration & Anor (2011) 190 FCR 552; [2011] FCAFC 27 SZFDE & Ors v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35 |
| J Vrachnas, M Bagaric, P Dimopoulos and A Pathinayake, Migration and Refugee Law. Principles and Practice in Australia (3rd Ed) (Port Melbourne: Cambridge University Press, 2012) |
| Applicant: | BHAVIK JAGDISHBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 1 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 25 August 2014 |
| Date of Last Submission: | 25 August 2014 |
| Delivered at: | Perth |
| Delivered on: | 26 November 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 1 of 2014
| BHAVIK JAGDISHBHAI PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application for judicial review
The application seeks judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the second respondent, the Migration Review Tribunal.[2] Following a hearing[3] the Tribunal affirmed a decision of a delegate[4] of the first respondent, the Minister for Immigration & Border Protection,[5] to cancel the applicant’s Subclass 573 Higher Education Sector Class TU visa[6] under s.116(1)(b) of the Migration Act.
The background to the application
[1] “Migration Act”.
[2] “Tribunal” and “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 150-155.
[3] “Tribunal Hearing”.
[4] “Delegate” and “Delegate’s Decision”. The Delegate’s Decision is at CB 120-127.
[5] “Minister”.
[6] “Higher Education Visa”.
The background prior to the Tribunal Hearing
The background to the application prior to the Tribunal Hearing is as follows:
a)the applicant enrolled in what is described as a package course at Curtin University in Western Australia leading to a degree in chemical engineering. The applicant was granted the Higher Education Visa on the basis of that enrolment. After completing English study at Curtin University he was informed that his English was not sufficient for the degree course in chemical engineering, and he was advised to undertake a diploma and then enter the degree course in chemical engineering at a later date if he achieved the requisite score;[7]
b)the applicant subsequently enrolled in a Technical and Further Education[8] course in children’s services. The applicant claims that he discussed this course with an education counsellor at Curtin University who told him it was acceptable to leave Curtin University for two years and eventually return. The applicant claimed that he attended the Department of Immigration and Citizenship[9] and was told that he did not need to apply for a new student visa because the Higher Education Visa he held was valid until August 2013;[10]
c)the applicant completed the Diploma of Children’s Services at the end of 2010 and then worked as a childcare assistant;[11]
d)the applicant then commenced a Diploma of Business which he did not complete as he applied for a Subclass 485 (Temporary Graduate) visa,[12] in respect of which he was granted a Bridging Visa A on 8 June 2011;[13]
e)on 20 August 2012 the applicant’s application for a Temporary Graduate Visa was refused because the applicant did not satisfy either the relevant English language or skills assessment requirements for the grant of a Temporary Graduate Visa;[14]
f)on 5 December 2012 the applicant’s Higher Education Visa was cancelled by the Delegate under s.116(1)(b) and (3) of the Migration Act on the basis that the applicant had failed to comply with reg.2.43(2)(b) and Condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth),[15] which was said to require the holder of a Higher Education Visa to remain enrolled in a registered course of study during the currency of the Higher Education Visa;[16] and
g)the applicant lodged an application for review of the Delegate’s Decision with the Tribunal on 12 December 2012.
[7] CB 152 at para.11.
[8] “TAFE”.
[9] “Department”. Now the Department of Immigration and Border Protection.
[10] CB 152-153 at para.11.
[11] CB 153 at para.11.
[12] “Temporary Graduate Visa”.
[13] CB 153 at para.14.
[14] CB 21-25.
[15] “Migration Regulations”.
[16] CB 151 at para.2; CB 122.
Tribunal Hearing
The applicant was invited to take part in the Tribunal Hearing of his application for review of the Delegate’s Decision by letter dated 30 August 2013 from the Tribunal, with the Tribunal Hearing scheduled for 9 October 2013.[17]
[17] CB 78-85.
The applicant accepted the invitation, but through his migration agent indicated that an adjournment would be sought on the basis that an Ombudsman’s inquiry into the cancellation of the Higher Education Visa had not progressed.[18] The Tribunal Hearing record indicates that the hearing commenced at 9.28am and was completed at 9.43am with the applicant to provide information, comments or a response in writing by 16 October 2013.[19]
[18] CB 90-93.
[19] CB 94-96.
In response to the invitation to file further information, comments or a response in writing the applicant filed a “Full Witness Statement” running to some seven pages and 31 paragraphs, together with ten annexures and three additional supporting documents comprising a further 26 pages.
In the Full Witness Statement the applicant says that:
a)he is the eldest child in an Indian family, and the only male, and his parents have high hopes for him and therefore it was decided that he should go overseas to improve his English and to obtain a good degree which would enable him to work overseas after graduation;[20]
[20] CB 99 at paras.3-5.
b)advice and assistance (in the form of a loan) was obtained from the village “Benefactor” to enable the applicant to travel overseas to pursue his studies;[21]
[21] CB 99-101 at paras.6-8 and 10-11.
c)he decided to apply for the packaged course at Curtin University for the bachelor’s degree in chemical engineering which had a pre-requisite English language studies component, requiring an achievement level of 75% for each module to be completed. An alternative was to complete a one year diploma in science through Curtin University’s International College and enter the degree course later if he were able to achieve a diploma course average of 65%;[22]
[22] CB 100 at para.9.
d)he was issued a visa in September 2008, arrived in Perth in November 2008, and commenced the English bridging course within a week of arriving in Perth, but due to his failing to achieve the minimum required 75% in the first of the English modules he was unable to obtain direct entry into the chemical engineering degree;[23]
e)following consultation with overseas student friends the applicant decided not to try to enter the degree course through the diploma course for which he would need a 65% average, and instead researched other courses. He found he could undertake a child care course at TAFE and would be able to obtain a qualification within two years and had already achieved a sufficient level of English to enable him to enrol in the TAFE child care course starting in February 2009;[24]
f)he went to Curtin’s University’s International Office and spoke with a female education counsellor. The applicant cannot remember all of the conversation, but does remember that she asked if he planned to return to Curtin University, and that he said that he would and that he would use his time at TAFE to seek part-time work so as to save up for his Curtin University tuition fees. The applicant says that the conversation led him to believe that it was acceptable for him to leave Curtin University for at least two years and to eventually return;[25]
g)he attended the Department’s office in Perth in January 2009 and was told by a male customer services officer that he did not have to apply for a new visa because his Higher Education Visa was in existence and would last until 30 August 2013;[26]
h)he did not ask for confirmation of the advice given to him by either Curtin University or the Department, and did not make notes during the appointments, and concedes that because of his English language skills he “could well have misheard and/or misunderstood”[27] what he was told, but thinks it was incorrect that the persons giving him advice did not confirm what they had stated, asked if he needed a translation, or even if he fully understood what he was told, and he honestly believed that the advice they both gave was incorrect;[28]
i)he successfully completed the TAFE Diploma of Children’s Services at the end of 2010, and during his studies found casual work as a child care assistant and during the summer he found hospitality work;[29]
j)he notes that “at that stage, my plan was to become a Child Care Centre Manager”[30] and he therefore enrolled at a private college in a Diploma of Business course which enabled him to maintain his casual child care and hospitality work at the maximum Department regulated hours of 20 per week;[31]
k)he was never contacted by either the Department or Curtin University during his Diploma of Business studies in relation to his Higher Education Visa, and was not aware that there had been no change to his enrolment status to reflect that he was engaged in vocational and educational training,[32] nor that the WA Government department he says was responsible for overseas student enrolments had not changed his visa status to a subclass 572 VET visa[33];[34]
l)once he commenced the Diploma of Business the private college “confirmed” that he was studying under a VET Visa, and he was therefore confident that his visa status had been changed from that of a Higher Education Visa and that the Higher Education Visa had been cancelled;[35] and
m)he was introduced to his current migration agent in about June 2011 and that migration agent checked his visa status online and there was no indication that his Higher Education Visa was in existence until the Department contacted him on 27 November 2012.[36]
[23] CB 101-102 at paras.12-17.
[24] CB 102 at paras.18-19.
[25] CB 103 at paras.20-21.
[26] CB 103 at para.22.
[27] CB 104 at para.24.
[28] CB 103-104 at paras.23-24.
[29] CB 104 at paras.25-26.
[30] CB 104 at para.27.
[31] CB 104 at paras.27-28.
[32] “VET”.
[33] “VET Visa”.
[34] CB 105 at para.29.
[35] CB 105 at para.30.
[36] CB 105 at para.31.
Various documents are attached to the Full Witness Statement. The documents do not add to what is said in the Full Witness Statement.
The applicant was invited to take part in a further Tribunal Hearing of his application for review of the Delegate’s Decision by letter dated 31 October 2013 from the Tribunal, with the further Tribunal Hearing scheduled for 21 November 2013.[37] The applicant accepted the invitation, and sought that his migration agent, Ms Yeo, also give evidence on his behalf.[38]
[37] CB 132-135.
[38] CB 141-142.
The applicant provided detailed written submissions to the Tribunal, prior to the further Tribunal Hearing.[39] Those submissions, directed at the Procedures Advice Manual 3 Guidelines[40] used by the Tribunal in assessing review applications, are summarised as follows:
[39] CB 143-146.
[40] “PAM 3 Guidelines”.
a)in relation to the purpose of the applicant’s travel to and stay in Australia it was submitted that:
i)at all material times the applicant’s aim was to study in Australia and graduate from a tertiary course or courses;[41]
[41] CB 143.
ii)when the applicant failed to meet the relevant English language requirements for Curtin University undergraduate placement he pursued other studies at TAFE;[42]
[42] CB 143.
iii)the applicant met all attendance requirements at TAFE and completed a Diploma of Children’s Services;[43]
[43] CB 143.
iv)it is arguable that the TAFE diploma level qualification the applicant achieved still qualified as higher education albeit in the VET sector, and the applicant submits that he met Condition 8516 of Schedule 8 to the Migration Regulations, which requires that the visa holder “must continue to … satisfy the primary or secondary criteria, as the case requires, for the grant of the visa”, because he held a reasonable but mistaken belief that his Higher Education Visa was now under the VET subclause 572, and neither the Minister nor Curtin University informed him otherwise;[44] and
[44] CB 144.
v)the applicant seeks to use any and all qualifications successfully completed in Australia for long-term employment opportunities in either his home country of India or in Australia;[45]
[45] CB 144.
b)as to the reason for, and extent of the breach, the applicant says that:
i)the alleged breach of the Higher Education Visa was due to it never being cancelled by the Minister until almost four years after he withdrew from his studies at Curtin University;[46]
[46] CB 144.
ii)by the time that the Higher Education Visa was cancelled the applicant had finished two and half years of full-time study and had a right to apply for the Temporary Graduate Visa;[47]
[47] CB 144.
iii)he obtained verbal advice about his right to apply for a Temporary Graduate Visa from the Department’s Perth office and its telephone advice service national telephone number;[48] and
[48] CB 144.
iv)he acted honestly and reasonably in making his Temporary Graduate Visa application;[49]
[49] CB 144.
c)as to whether the breach occurred in circumstances beyond the applicant’s control, the applicant submits that:
i)it remained the Minister’s responsibility to cancel the Higher Education Visa at the appropriate time, citing ss.71A, 82(2) and 97 of the Migration Act;[50]
[50] CB 144.
ii)it remained Curtin University’s responsibility to inform the Minister that the applicant had withdrawn from studies at Curtin University and to update the PRISMS record online, citing ss.19 and 108 of the Education Services for Overseas Students Act 2000 (Cth);[51]
iii)Curtin University never sent any notices to the applicant that he was in breach of his Higher Education Visa conditions under s.20 of the ESOS Act;[52]
iv)the Department’s Brisbane GSM Processing Centre did not identify any breach of previous visa conditions when processing the applicant’s Temporary Graduate Visa application;[53] and
v)the breach therefore occurred in circumstances beyond the applicant’s control and awareness and it would be legally unfair to impose the burden of ensuring that the Minister and Curtin University performed their visa issuing and cancellation tasks correctly upon an overseas student who should not be expected to be well-versed in Australian migration and visa laws;[54] and
d)as to the applicant’s past and present behaviour it was submitted that:
i)the applicant had always been truthful and diligently attended all scheduled appointments and the Department’s Perth office with his legitimate inquiries, and had engaged an onshore agent to assist him from July 2011, and that agent’s representative had accompanied him to the Department’s office;[55]
ii)the applicant had prepared any requested documentation and provided documentation of his own accord to clarify queries regarding his visa status;[56] and
iii)the applicant had been granted full-time work rights under a Bridging Visa E[57] and had provided all requested documentation and other evidentiary proof of his financial need, and had been able to support himself whilst the visa application process was ongoing.[58]
[51] “ESOS Act”; CB 144.
[52] CB 144.
[53] CB 145.
[54] CB 145.
[55] CB 145.
[56] CB 145
[57] “Bridging Visa”.
[58] CB 145.
In relation to other relevant factors raised by the applicant, being the final matter listed in the PAM 3 Guidelines, the applicant submitted that:
a)he had legitimate expectations based upon:
i)his being allowed to withdraw from Curtin University, changing his course of study to a TAFE course, and then apply for a Temporary Graduate Visa, and therefore possessed a legitimate expectation that Curtin University and the Minister had correctly cancelled his Higher Education Visa at the right time, and that the Minister had sought information from Curtin University,[59] citing Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam;[60]
[59] CB 145.
[60] (2003) 214 CLR 1; [2003] HCA 6.
ii)because of the matters set out in (i) above, and because all of the applicant’s subsequent study and graduate applications were successfully processed, he developed a legitimate expectation that his visa status in Australia remained legal, and that he was now studying under the VET Visa;[61] and
[61] CB 146.
iii)because of his studies in Australia the applicant had a legitimate expectation that any cancellation of his Higher Education Visa would not disadvantage his legal status whilst in Australia,[62] citing Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors;[63] and
[62] CB 146.
[63] (1986) 162 CLR 24.
b)the applicant had not been afforded procedural fairness due to the length of time it took to cancel the Higher Education Visa, and in that regard submitted that:
i)the applicant withdrew from studies at Curtin University at the beginning of February 2009;[64]
ii)he enrolled in the Diploma of Children’s Services course at TAFE which he completed at the end of 2010;[65]
iii)the applicant completed Certificate IV VET Business Studies at a private college at the end of June 2011;[66]
iv)the applicant’s aim was to find gainful employment, earn enough wages to fund further university studies (although not necessarily at Curtin University) and to gain an undergraduate degree;[67]
v)the Temporary Graduate Visa application was rejected in September 2012 because the applicant was unable to achieve the required English score in two band widths of his IELTS exam;[68]
vi)it took a further two months after the Temporary Graduate Visa rejection for the Minister to identify that the applicant’s Higher Education Visa was still in existence;[69] and
vii)by this time, the total elapsed time was almost three years and ten months.[70]
[64] CB 146.
[65] CB 146.
[66] CB 146.
[67] CB 146.
[68] CB 146.
[69] CB 146.
[70] CB 146.
Tribunal Decision
The Tribunal Decision on 2 December 2013:
a)identified the relevant issue in this matter as whether the applicant had breached Condition 8202 of Schedule 8 to the Migration Regulations which relevantly requires the holder of a Higher Education Visa to be enrolled in a registered course, failing which the Higher Education Visa may be cancelled under s.116(1)(b) of the Migration Act;[71]
[71] CB 151 at para.5.
b)noted that it was not in dispute that the applicant had not been enrolled in a registered course since April 2012, and the Tribunal was thus satisfied that the applicant had not complied with Condition 8202 of Schedule 8 to the Migration Regulations;[72]
[72] CB 151 at para.8.
c)having determined that it was satisfied that the applicant had not complied with Condition 8202 of Schedule 8 to the Migration Regulations, found that it had to consider whether to exercise its discretion to cancel the Higher Education Visa;[73]
[73] CB 151 at para.9.
d)noted that in considering whether to exercise its discretion to cancel the Higher Education Visa it had to have regard to the Department’s PAM3 guidelines;[74]
[74] CB 152 at para.10.
e)rejected the applicant’s claim that the breach of Condition 8202 of Schedule 8 to the Migration Regulations occurred because either Curtin University or the Department failed to cancel his Higher Education Visa when he withdrew from his original course at Curtin University, and found that the breach occurred because the applicant had failed to maintain enrolment once he had lodged his application for a Temporary Graduate Visa in the mistaken belief that he did not think he needed to maintain enrolment once he had applied for the Temporary Graduate Visa;[75]
[75] CB 153 at para.16.
f)held that the grant of a Bridging Visa A on 8 June 2011 at the time the applicant applied for the Temporary Graduate Visa:
i)would not have ceased the Higher Education Visa which remained in effect until it was due to cease in 2013; and
ii)meant that the applicant still held the Higher Education Visa until cancelled by the Delegate in December 2012;[76]
g)accepted that the applicant’s purpose in coming to Australia was to study and obtain a qualification, but found that since he ceased studying in April 2012 his purpose had shifted to working and obtaining permanent residency;[77]
h)did not accept that the breach of Condition 8202 of Schedule 8 to the Migration Regulations occurred because the applicant was not aware that he needed to maintain enrolment as he believed his Higher Education Visa had been cancelled, finding that it was within the applicant’s control to make enquiries about the status of his Higher Education Visa, to obtain advice from a registered migration agent, and to be aware of the conditions attached to his Higher Education Visa;[78]
i)noted that the applicant had not raised any specific claims about hardship, although it accepted that the applicant wished to remain in Australia and would experience some hardship if he returned to India without the qualification he aspired to;[79]
j)noted the applicant’s sense of grievance against Curtin University and an unresolved complaint to the Ombudsman relating to the “failure” of Curtin University to cancel his Higher Education Visa in 2009 when he ceased studying at Curtin University. The Tribunal found the applicant’s claim that his Higher Education Visa should not have been cancelled in 2012 because it should have been cancelled in 2009 illogical. The Tribunal found that the applicant’s confusion about his Higher Education Visa status and his belief that Curtin University and the Department were culpable for all of his difficulties did not amount to extenuating or compassionate circumstances;[80]
k)found that the extent of the applicant’s breach, being the failure to maintain enrolment and the positive decision to withdraw from study and work instead of studying, outweighed the issues raised by the applicant for not cancelling the Higher Education Visa, and the Tribunal therefore concluded that the Higher Education Visa should be cancelled;[81] and
l)affirmed the Delegate’s Decision.[82]
[76] CB 153 at para.14.
[77] CB 153 at para.15.
[78] CB 153 at para.16.
[79] CB 153 at para.17.
[80] CB 154 at para.18.
[81] CB 154 at para.21.
[82] CB 154 at para.22.
Grounds of application
The application as filed sets out three grounds of application for judicial review, each of which is set out below.[83]
[83] See paras.18, 24 and 41 below.
Applicant’s submissions
The applicant did not file written submissions as ordered by the Court on 28 July 2014.
At hearing, the applicant sought to rely upon two affidavits, one of Ms Yeo sworn or affirmed on 20 July 2014, and another of the applicant affirmed on 23 July 2014. Those affidavits were originally filed in relation to a successful application in a case to set aside a summary judgment dismissing the application for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). Both the affidavits were read at hearing, but on a detailed re-reading of those affidavits neither has any content which is relevant for present purposes.
At hearing, and notwithstanding the failure to file written submissions, the Court marked as Exhibit 1 the applicant’s document styled “Final Summarised Witness Statement”, which in reality was a short set of submissions. In the Final Summarised Witness Statement the applicant:
a)indicated that he relied upon what had been put before the Tribunal in his Full Witness Statement, which is set out above;[84] and
b)only had three further submissions to make, being:
i)that the points of law which he submitted to the Tribunal remained good law, and although the Minister’s submissions characterised the applicant’s argument as not making sense or as being otherwise illogical, he submits that the Minister’s late action and Curtin University’s mistake or omission led to the circumstances in which he finds himself;[85]
ii)that he would be able to pay any reasonable and fixed costs;[86] and
iii)that he wished to thank the Minister and the Court for the opportunity to remain in Australia whilst judgment was delivered and that he had worked and contributed to the Australian economy and improved his written and spoken English during that time.[87]
Only the first of these three further submissions is of immediate relevance.
[84] See para.6 above.
[85] Final Summarised Witness Statement at paras.5-6.
[86] Final Summarised Witness Statement at para.7.
[87] Final Summarised Witness Statement at para.8.
Minister’s submissions
The Minister submits that:
a)all of the grounds stated above are misconceived, and the applicant is, as he did before the Tribunal, simply ventilating a misplaced sense of grievance with Curtin University and the Department for actions which he believed, without foundation, should have occurred when he originally ceased studying at Curtin University. To the limited extent that they relate to the exercise of the cancellation power under s.116 of the Migration Act, the matters raised in the first two grounds were taken into consideration by the Tribunal. The third ground is confusing and does not appear to bear any relevance to whether the cancellation decision is affected by jurisdictional error;
b)as it was clear that the applicant was not enrolled in a registered course and had breached Condition 8202 of Schedule 8 to the Migration Regulations, the issue before the Tribunal was whether, having regard to the relevant policy, there were any reasons why the discretion to cancel should not be exercised. The applicant’s confusion and sense of grievance, whilst apparently genuine, could not be said to form a cogent reason for not exercising the discretion to cancel; and
c)there is nothing in the Tribunal Decision which leads to a concern that the Tribunal failed to afford procedural fairness to the applicant. The Tribunal was aware of, and had regard to, all of the applicant’s claims. The Tribunal approached its task correctly and in good faith, did not fail to take into account a relevant consideration or take into account an irrelevant consideration. Equally, nothing indicates that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a proper review in accordance with the Migration Act.
Consideration
Jurisdictional error
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error.[88] 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 the Tribunal Decision exceeding or failing to exercise the authority or powers given under the Migration Act.[89]
[88] Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[89] Minister for Immigration & Multicultural Affairs v Yusuf& Anor (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ (“Yusuf”).
Ground 1
Ground 1 is as follows:
1. There was a misapplication of the relevant visa laws in regards to whether the issue of the Applicant’s Bridging Visa A (“BVA”) as at the time he applied for his Graduate Visa #485 online in Brisbane QLD (Temporary Residence – “TR”), would have existed in conjunction with his previous WA-issued Student Visa subclass 573 (Higher Education – “StudentVisa”) or would have, in effect, “cancelled” the Student Visa;
The Migration Act specifies the circumstances in which visas cease to be in effect,[90] and in which they may be cancelled.[91]
[90] Migration Act, ss.68 and 82.
[91] Migration Act, ss.116 and 137J.
In this case, the Tribunal Decision affirmed the Delegate’s Decision to cancel the Higher Education Visa under s.116(1)(b) of the Migration Act for non-compliance with Condition 8202 of Schedule 8 to the Migration Regulations. A visa that is cancelled “ceases to be in effect on cancelation”.[92] None of the other specified events in s.82 of the Migration Act with respect to the cessation of effect of a visa applied to the Higher Education Visa. In particular, s.82 of the Migration Act does not provide for a bridging visa, of any type, to cancel a substantive visa. To do so would be inconsistent with:
a)the primary criteria for the grant of, relevantly, a Bridging Visa A which include the holding of a substantive visa, such as a Higher Education Visa, at the time that an application is made for another visa, for example, the Temporary Graduate Visa;[93] and
b)the provisions of s.68(4) and 82(3) of the Migration Act which provide for a bridging visa to cease to have effect if another visa comes into effect, and for a bridging visa to come into effect again in certain circumstances where a non-citizen does not hold a substantive visa that is in effect.[94]
[92] Migration Act, s.82(1).
[93] Migration Regulations, Schedule 2, cl.010.211(1), (2) and (3).
[94] For a detailed discussing of the relevant provisions of the Migration Act and their application, albeit in a somewhat different factual and legal matrix, see Hossain v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FMCA 35 at paras.44-76 per Nicholls FM.
A Bridging Visa A is thus “granted to eligible non-citizens lawfully in Australia and not in immigration detention, who hold a substantive visa or a bridging A or B visa, and apply for another substantive visa or, within the legislated timelines, for merits or judicial review of a refused visa application.”[95]
[95] J Vrachnas, M Bagaric, P Dimopoulos and A Pathinayake, Migration and Refugee Law. Principles and Practice in Australia (3rd Ed) (Port Melbourne: Cambridge University Press, 2012), page 148.
It is thus a normal incident of an application for a Temporary Graduate Visa that the applicant would be granted a Bridging Visa A even where, as here, the person making application for the Temporary Graduate Visa already held another substantive visa, in this case the Higher Education Visa. The grant of a Bridging Visa A in such circumstances is not, and does not constitute, the cancelation of an existing substantive visa, such as the Higher Education Visa. The Tribunal clearly considered this issue, finding correctly in the Court’s view, that the Bridging Visa A did not effect a cessation of the Higher Education Visa.[96]
[96] CB 153 at para.14.
In all of the above circumstances, ground 1 cannot be made out, and does not establish jurisdictional error on the part of the Tribunal in making the Tribunal Decision.
Ground 2
Ground 2 is as follows:
2.There was a misapplication of the relevant visa laws in placing the sole onus on the Applicant to ascertain whether his honest (but mistaken) belief that his StudentVisa had already been cancelled by the Respondent – care of the Department of Immigration & Border Protection (“DIBP”) – was indeed correct, when the Applicant had already taken all reasonable steps to do so and was given the erroneous advice by both the DIBP’s Perth Office and his educational institution, Curtin University of Technology at its Bentley WA campus (“Curtin”) that his StudentVisa “would be cancelled or, in the alternative, that it was “OK for the Applicant” to pursue studies at other institutions or to pursue other visa applications;
No steps were taken by the Minister to cancel the applicant’s Higher Education Visa until after the applicant failed to comply with Condition 8202 of Schedule 8 to the Migration Regulations in April 2012 by ceasing to be enrolled in an approved course of study. The suggestion that the Higher Education Visa was, or should have been, cancelled earlier is therefore erroneous. The basis for its cancellation did not arise, and was not invoked, until after the applicant had ceased to be enrolled in an approved course of study, and further until after his Temporary Graduate Visa application had been refused. At that time, 20 August 2012, the applicant still had the Higher Education Visa, which, subject to compliance with its conditions, was valid until 2013. The problem for the applicant was not, as he asserts, that at some earlier time than April 2012, Curtin University or other service providers or the Department ought to have cancelled his Higher Education Visa, but rather that from April 2012, the applicant was non-compliant with Condition 8202 of Schedule 8 to the Migration Regulations which required a current enrolment in a registered course, and was found to be so by the Delegate and ultimately the Tribunal. In that respect the correctness of the advice then given by Curtin University was irrelevant.
The applicant therefore still had a valid Higher Education Visa at the time the Bridging Visa A Application was granted. The Higher Education Visa could only be cancelled in accordance with the provisions of the Migration Act, and not by an education service provider or the Department unilaterally. The basis for cancellation of the applicant’s Higher Education Visa did not arise until, at the earliest, April 2012, and was not pursued until the applicant was given notice of an intention to cancel in November 2012, after the earlier failure of the applicant’s Temporary Graduate Visa application.[97]
[97] CB 14, item 1.
The advice that the applicant asserts that he was given, namely that his Higher Education Visa would be cancelled, or alternatively that he could pursue further studies or another visa application, was in fact correct. Had the applicant failed to comply with Condition 8202 of Schedule 8 to the Migration Regulations upon his withdrawal from, or non-enrolment at, Curtin University in February 2009, his Higher Education Visa might have been susceptible to automatic cancellation under s.137J of the Migration Act if, under s.20 of the ESOS Act, Curtin University had reported a breach of the applicant’s Higher Education Visa. But the Minister does not, and did not before the Tribunal or this Court, assert that there was any such failure to comply by the applicant until April 2012 at the earliest, and therefore conditions for cancellation of the applicant’s Higher Education Visa did not arise until April 2012 when the applicant ceased to be enrolled in a registered course. Indeed, the applicant did exactly what he had been correctly told that he could do. That is, he pursued alternative studies in what is seemingly accepted by the Minister to be a registered course, and ultimately made an application for another visa, the Temporary Graduate Visa. It was not until such time as he ceased those alternative studies, and his application for the Temporary Graduate Visa was refused (based on a failure to meet English language and skills assessment requirements), that the Minister moved to cancel the applicant’s Higher Education Visa.
In all the circumstances, the advice the applicant says he was given by the Department and Curtin University was in fact correct, and the factual basis for that aspect of this ground is not made out. These matters were considered by the Tribunal, and there is, on the basis of the foregoing analysis, no error (jurisdictional or otherwise) which warrants this Court’s intervention. But, even if the factual basis for the advice given by Curtin University or the Department was erroneous, that would not found jurisdictional error on the part of the Tribunal in the circumstances of this case.
In Minister for Immigration & Multicultural Affairs v SZFDE & Ors[98] the minority in the Full Court of the Federal Court observed that:
There are sound policy reasons why a person whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made.[99]
Those comments were approved on appeal by the High Court in SZFDE & Ors v Minister for Immigration & Citizenship & Anor.[100]
[98] (2006) 154 FCR 365; [2006] FCAFC 142 (“SZFDE – Full Federal Court”).
[99] SZFDE – Full Federal Court FCR at 399 per French J; FCAFC at para.129 per French J.
[100] (2007) 232 CLR 189 at 207 per Gleeson CJ, Gummow, Kirby, Hayne Callinan, Heydon and Crennan JJ; [2007] HCA 35 at para.53 per Gleeson CJ, Gummow, Kirby, Hayne Callinan, Heydon and Crennan JJ (“SZFDE – High Court”).
In Singh v Minister for Immigration & Anor[101] it was held that there could be no estoppel against the Tribunal on the basis of a purported representation by the Tribunal. A representation by the executive cannot give rise to estoppel because such a proposition is contrary to the doctrine of the separation of powers: which is that officers of the executive government have no power to alter statutory schemes.[102] Singh followed Attorney General (NSW) v Quin[103] where the High Court held there that “[t]he Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion … by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power”.[104] In Singh it was further concluded that those who seek the benefits of an Act and the officers of the executive administering that Act are both equally bound by it. There cannot be any express agreement to alter an Act, and therefore, there cannot be any estoppel arising out of such conduct.[105] Whilst Singh dealt with a purported representation by the Tribunal to an applicant, the same argument applies to a representation made by a third party: no representation or promise could change the statutory scheme regulating the applicant’s Higher Education Visa. In Cheng the Federal Magistrates Court having cited Singh said that:
In other words, the time frame could not be extended by officers of the Department, the Tribunal or indeed by the Court. Even if such an impression had been conveyed to the applicant by a Departmental officer in error, that would not extend the time for review or otherwise give rise to jurisdictional error on the part of the Tribunal (see Singh at [49]).[106]
Even if the applicant was told by Curtin University he could leave the university or change courses, this does not affect the fact that at the time of the Tribunal Decision the applicant did not satisfy the Higher Education Visa conditions. Curtin University has no power to bind the Delegate or the Tribunal in the exercise of the power under s.116 of the Migration Act to cancel a visa.
[101] (2011) 190 FCR 552; [2011] FCAFC 27 (“Singh”).
[102] Singh FCR at 565 per Keane CJ, Collier and Logan JJ; FCAFC at para.47 per Keane CJ, Collier and Logan JJ.
[103] (1990) 170 CLR 1 (“Quin”).
[104] Quin CLR at 17 per Mason CJ. See also: Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105 per Davies, Whitlam and Branson JJ.
[105] Singh FCR at 566 per Keane CJ, Collier and Logan JJ; FCAFC at para.48 per Keane CJ, Collier and Logan JJ; Jihui Cheng v Minister for Immigration & Citizenship [2011] FMCA 461 at paras.54-55 per Barnes FM (“Cheng”).
[106] Cheng at para.55 per Barnes FM.
An applicant simply receiving bad advice from a migration agent or some other third party has been held by the Federal Court of Australia not to constitute a jurisdictional error. In MZWOQ v Minister for Immigration & Multicultural & Indigenous Affairs[107] the Federal Court held that there was no jurisdictional error where an applicant did not attend their Tribunal hearing, even if the failure to attend was the result of bad advice from a migration agent.[108] Further, in Reddy v Minister for Immigration & Citizenship[109] an applicant did not attend a Tribunal hearing due to bad advice from his migration agent. The Federal Court observed that the failure of the applicant to attend the Tribunal in those circumstances would be no basis for jurisdictional error.[110]
[107] [2005] FCA 1436 (“MZWOQ”).
[108] MZWOQ at para.6 per Marshall J.
[109] [2007] FCA 1764 (“Reddy”).
[110]Reddy at para.15 per Spender J.
In the circumstances of this case any argument based on purported bad advice from, or estoppel arising from, the acts of the Delegate, the Tribunal, or any officer of the Department acting for or in relation to the Delegate or the Tribunal, or any officer or employee of Curtin University, must therefore fail.
The applicant also alleged an honest or reasonable but mistaken belief that the Higher Education Visa had been cancelled, and by extension, that he had a VET Visa. That was a matter which was considered by the Tribunal, and as it observed, a VET Visa would still have required the applicant to maintain enrolment in a registered course, which the applicant had not done since ceasing to study in April 2012.[111] Further, the suggestion that the applicant was somehow transferred to a VET Visa lacks any logical basis, particularly in circumstances where the applicant did not apply for a VET Visa, was not (on his account) told about a VET Visa by the Department, and, at least on part of his case, could not have known with any certainty about the conditions attaching to a VET Visa because of his lack of understanding of relevant visa migration laws under the Migration Act. There was, in the circumstances, a more than adequate factual basis for the Tribunal to find “difficulty understanding or accepting this claim”[112] with respect to the honest or reasonable but mistaken belief of the applicant as to his visa status. Moreover, even if an honest but reasonable mistake was established, in circumstances where that honest or reasonable but mistaken belief was considered by the Tribunal, in the context of the requirement to maintain enrolment in a registered course no matter whether the applicant was on the Higher Education Visa or a VET Visa, no jurisdictional error arises because the Tribunal has exercised its powers taking into account, and not ignoring, any relevant material.[113]
[111] CB 153 at paras.12-13.
[112] CB 153 at para.12.
[113] Yusuf CLR at 351 per McHugh, Gummow and Hayne JJ; HCA at para.82 per McHugh, Gummow and Hayne JJ.
Although not considered in terms, it does appear that the applicant raised with the Tribunal the issue of legitimate expectation as a matter to be considered as another relevant factor under the PAM 3 Guidelines. The primary factual elements of the alleged legitimate expectation were however considered by the Tribunal, particularly in relation to whether the Minister was required to cancel the applicant’s Higher Education Visa at an earlier time.[114] As the Tribunal pointed out the notion that the Higher Education Visa ought to have been cancelled earlier gives rise to illogicality, in that the applicant would not then have had a visa which entitled him to remain in Australia, and, the Tribunal did not accept the applicant’s claim of an honest or reasonable but mistaken belief that he was entitled to a VET Visa.[115] The factual basis for any so-called “legitimate expectation” was therefore not made out.
[114] As to which, generally, see para.11(e), (f) and (k) above.
[115] CB 153 at para.12.
The applicant faces a more fundamental problem with respect to his alleged “legitimate expectation”. In Plaintiff S10/2011 & Ors v Minister for Immigration & Citizenship & Anor,[116] the High Court was dealing with a submission that the relevant dispensing provisions of the Migration Act did not meet the requirement for the attraction of principles of procedural fairness, and the failure to exercise those provisions was not apt to have a substantial adverse effect on an asserted legitimate expectation.[117] The majority judgment in the High Court observed that:
… the phrase “legitimate expectation” when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded. …
Rather, the issue presented by the first submission of the defendants is to be considered by asking whether the failure by the Minister to consider the exercise and thus to exercise the dispensing powers in question is apt to affect adversely what is the sufficient interest of a party seeking the exercise of those powers in favour of that party.[118]
[116] (2012) 246 CLR 636; [2012] HCA 31 (“Plaintiff S10/2011”).
[117] Plaintiff S10/2011 CLR at 658 per Gummow, Hayne, Crennan and Bell JJ; HCA at para.64 per Gummow, Hayne, Crennan and Bell JJ.
[118] Plaintiff S10/2011 CLR at 658 per Gummow, Hayne, Crennan and Bell JJ; HCA at paras.65-66 per Gummow, Hayne, Crennan and Bell JJ.
In this case, the Tribunal exercised the powers available to it, and for reasons set out above did so by reference to its statutory powers, and having regard to relevant material and not relying on irrelevant material. The Tribunal did not identify a wrong issue or ask the wrong question: the issue being whether or not the applicant was enrolled in a registered course, and whether the applicant’s visa was cancelled on the basis that he was not enrolled in a registered course. In determining that issue the Tribunal had regard to the relevant discretionary guidelines, the PAM 3 Guidelines. In having regard to the statutory powers to be exercised, the material to be considered, and the discretionary guidelines, there was more than adequate evidentiary material for the Tribunal to arrive at its decision to affirm the cancellation of the applicant’s Higher Education Visa, and to reject the other assertions made by the applicant as to his visa status. Having regard to the above-cited observations of the High Court in Plaintiff S10/2011,[119] the question of legitimate expectation does not arise. Otherwise, there was in these circumstances no failure by the Tribunal to exercise its powers, and the issue presented by Plaintiff S10/2011 does not therefore arise for consideration by this Court.
[119] Which has been followed in this Court: see SZTRD v Minister for Immigration & Anor [2014] FCCA 1225 at paras.17-19 per Judge Cameron.
The applicant also asserted that there was a denial of procedural fairness by reason of a delay in cancelling his Higher Education Visa because it ought to have been cancelled upon his failure to enrol at Curtin University, or at least, at some point of time prior to its cancellation by the Delegate. There was, however, no relevant delay in this case. The Minister does not assert that the applicant failed to comply with the conditions of the Higher Education Visa prior to April 2012. Shortly thereafter, on 8 June 2011, the applicant applied for the Temporary Graduate Visa which application was determined on 20 August 2012, adversely to the applicant.[120] A little over three months later, on 27 November 2012, the applicant was given notice of intention to consider cancelling the Higher Education Visa by the Delegate.[121] The cancellation occurred on 5 December 2012.[122] This is the delay about which the applicant complains.[123]
[120] See para.2(d) and (e) above.
[121] CB 120.
[122] See para.2(f) above.
[123] See para.10(b) above.
The above delay is not, in any event, significant. Moreover, the delay is justified, initially, by the fact that the applicant had a Temporary Graduate Visa application pending, in respect of which he had been granted a Bridging Visa A, and was therefore entitled to remain in Australia pending the outcome of that application. The subsequent delay is a matter of weeks only. It is, in light of the fact that the applicant was not in breach of his Higher Education Visa requirements until April 2012, the only relevant delay. That delay prior to the decision by the Delegate to cancel the Higher Education Visa cannot give rise to a jurisdictional error, by way of a denial of procedural fairness, by the Tribunal. This Court’s role on judicial review is limited to a review of the Tribunal Decision.[124] Judicial review by this Court does not entail a review of the Delegate’s Decision,[125] or the processes preceding the Delegate’s Decision. Thus, the delay complained about is not reviewable by this Court.
[124] Migration Act, ss.474 and 476.
[125] SZSJM v Minister for Immigration & Border Protection [2013] FCA 1260 at para.4 per Katzmann J.
In the Court’s view all of the Tribunal’s findings of fact were open to it on the evidence before it, and the ultimate decision to affirm the cancellation of the Higher Education Visa was, on the basis of those factual findings, open to the Tribunal and within the proper exercise of its powers under the Migration Act, and not vitiated by any jurisdictional error.
In all of the above circumstances ground 2 cannot be made out, and does not establish jurisdictional error on the part of the Tribunal in making the Tribunal Decision.
Ground 3
Ground 3 is as follows:
3.The Respondent – care of the DIBP – erred in law by charging the Applicant two respective sets of Bridging Visa B (“BVB”) fees when the Applicant went offshore to his home country of India to visit his family for short holiday periods during 2012 and 2013 respectively whilst his TR Visa was being processed in Brisbane. Moreover, if the Applicant’s StudentVisa was indeed still in existence, then the DIBP would not have required payment of any BVB fees because the StudentVisa granted multiple entry and exit conditions whilst in force.
The question of whether or not the Minister erred in law by charging the applicant fees for bridging visas whilst his Temporary Graduate Visa was being processed is not a “migration decision” for the purposes of s.476 of the Migration Act, and therefore not a matter within this Court’s jurisdiction to review. In this respect, ground 3 is misconceived, and must fail as it establishes no jurisdictional error on the part of any person or body, let alone the Tribunal.
The discretion to grant prerogative relief
The Court is entitled to consider whether prerogative relief would be granted in the exercise of the discretion to do so. Even if Mr Patel had established jurisdictional error the Court would be entitled to refuse to grant prerogative relief where it “would lack utility”[126] or would “be an exercise in futility”.[127]
[126] SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at 265 per Allsop J; [2006] FCAFC 2 at para.232 per Allsop J.
[127] Jiang v Minister for Immigration & Anor [2007] FMCA 215 at para.31 per Lucev FM, upheld on appeal: Hao Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at para.30 per Bennett J.
The Court notes the applicant’s admission in his Full Witness Statement that due to his lack of English language skills he may have misheard or misunderstood advice given to him by Curtin University and the Department.[128] The Tribunal did not make a specific factual finding in relation to this admission, but the admission is relevant for the purposes of determining whether or not to grant prerogative relief, and its utility or futility, because it raises, starkly, the possibility that the applicant’s case which, relies heavily on the allegedly incorrect advice (which the Court has found was, if given, in fact correct) may not have been given to the applicant at all.
[128] See para.6(h) above.
The fact that the advice about which the applicant complains may not have been given at all, but which, if given, was correct, distinctly raises the possibility that granting relief in these circumstances would be futile if the Tribunal were to give proper weight to the admission made by the applicant on a subsequent review.
A further basis on which to refuse prerogative relief is that it would have no practical effect, that is, it would be futile, because the applicant’s Higher Education Visa expired in 2013. Thus, even if cancellation of the Higher Education Visa were a consequence of jurisdictional error (which it is not in the Court’s view) prerogative relief would have no practical consequence, the Higher Education Visa long since having expired.
In all of the above circumstances, even if this were a case of jurisdictional error by the Tribunal (which it is not) the Court would not have been prepared to grant the prerogative relief sought by the applicant.
Conclusion and order
The Court has concluded that none of the three grounds of the application for judicial review or any other matters asserted by the applicant constitute jurisdictional error by the Tribunal in making the Tribunal Decision. The Court would not, for reasons set out above, be prepared to grant prerogative relief even if jurisdictional error had been established by the applicant (which it was not). It follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 26 November 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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