PAUL v Minister for Immigration

[2016] FCCA 64

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAUL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 64

Catchwords:
MIGRATION – Student (subclass 573 – Higher Education Sector) (Temporary) (class TU) visa – condition 8516 – where applicant’s enrolment cancelled – where applicant subsequently received offer of enrolment – whether condition 8516 not met – whether tribunal did not take into account a relevant consideration – no jurisdictional error established.

Legislation:

Migration Act 1958 ss.116(1)(b), 474(2), 476
Migration Regulations 1994 (Cth), Schedule 2: cll.573, 573.111, 573.223(1A), 573.231; Schedule 8: cl.8516

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant: ANKUSH PAUL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 457 of 2015

Judgment of: Judge Jarrett

Hearing date: 21 August 2015

Date of Last Submission: 21 August 2015

Delivered at: Brisbane

Delivered on: 18 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Travers

Solicitors for the Applicant: Chand Lawyers

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Clayton Utz

The second respondent entered a submitting appearance.

ORDERS

1. The name of the second respondent be substituted with the name “Administrative Appeals tribunal (formerly known as the Migration Review tribunal)”;

2. The amended application filed on 4 August, 2015 be dismissed;

3. The applicant pay the first respondent’s costs of and incidental to the application including reserved costs, if any, fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 457 of 2015

ANKUSH PAUL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of a migration review tribunal given on 29 April, 2015 which affirmed a decision of a delegate of the first respondent to cancel the applicant’s student (subclass 573 – Higher Education Sector) (Temporary) (class TU) visa.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. Both parties were represented by solicitors and counsel.  I have the benefit of written submissions from each party.

Background

1. The applicant is a citizen of India.  He applied for the grant of a student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa (“visa”).

2. The relevant visa criteria that the applicant needed to satisfy to obtain the visa were set out in cl.573 of Schedule 2 of the Migration Regulations1994 (Cth). Clause 573 contained a number of criteria.

3. One of the visa criteria that the applicant needed to satisfy was that he was either enrolled in, or the subject of a current offer of enrolment in, a higher education course.

4. On 25 June, 2013 a delegate of the first respondent was satisfied that the applicant met the cl.573 visa criteria and granted the visa to the applicant. The visa was granted on the basis that the applicant had enrolled to study a Bachelor of Business degree and had enrolled to study two prerequisite vocational-level courses before undertaking the degree.

5. The applicant’s visa was subject to the condition prescribed in cl.8516 of Schedule 8 of the Regulations.  That condition provided:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

6. That condition, in substance and when read together with the relevant visa criteria, required the applicant to continue to remain enrolled in, or be the subject of a current offer of enrolment in, a higher education course.

7. On 1 August, 2014 the applicant’s enrolment in his Bachelor of Business was cancelled due to “non-commencement of studies”.  Instead, he enrolled in a Certificate IV in Commercial Cookery at the Australian Institute of Technology & Management.  He commenced that on 8 September, 2014.  The end date of that course was 7 March, 2016.  That course was a vocational level course, not a higher education course.

8. On 7 November, 2014 the first respondent’s delegate gave to the applicant a Notice of Intention to Consider Cancellation of his visa on the basis that he was in breach of condition 8516 because he ceased to be enrolled in a higher education sector course.

9. On 10 November, 2014 the applicant responded to the notice.  He did not cavil with the proposition that he was no longer enrolled in his bachelor degree for which he had a confirmation of enrolment when he obtained his visa.  He informed the delegate that he had been completing a Certificate IV at Sarina Russo and was enrolled for a diploma and bachelor programs at James Cook University. 

10. On 12 January, 2015 a delegate of the first respondent determined to cancel the applicant’s visa under s.116(1)(b) of the Migration Act1958 in consequence of the applicant’s breach of condition 8516 of his visa. 

11. Following the cancellation of his visa, the applicant proceeded to withdraw from his courses. 

12. On 14 January, 2015 the applicant applied for review of the delegate’s decision by a migration review tribunal. 

13. On 17 March, 2015 the applicant was offered admission as an “SVP student” of American College “in articulation for Bachelor of Business (Subclass 573)” with Alphacrucis College for the following courses, once his MTR hearing outcome was successful:

    a)Diploma of Management;

    b)Advanced Diploma of Management;

    c)Bachelor of Business.

14. On 29 April, 2015 a migration review tribunal affirmed the delegate’s decision.

15. The tribunal was satisfied that the applicant had contravened condition 8516 by failing to continue to remain enrolled in, or the subject of an offer of enrolment in, a higher education course.  The tribunal said:

    10.    The Tribunal finds that courses specified for Subclass 573 visas are, relevantly, higher education sector courses. The Tribunal finds that the applicant ceased to be a person who satisfied the primary criteria because he ceased to be enrolled in, or to be the subject of an offer of enrolment in, an eligible course.

    11.    The Tribunal acknowledges that the applicant has provided to the Tribunal evidence of his enrolment in a Diploma, Advanced Diploma and a Bachelor course at the American College / Alphacrucis College. However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite the subsequent re-enrolment.

    12.    Condition 8516 requires that the visa holder must ‘continue to be a person who would satisfy the primary or secondary criteria … for the grant of the visa’. In the Tribunal’s view, condition 8516 contains a temporal requirement in the words ‘continue to be’. Although there has been no judicial consideration of condition 8516 and the meaning of this wording, in the context of a visa condition which applies at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times. The use of the term ‘would satisfy’ the criteria, suggests that it applies as if the criteria were being assessed at the time compliance with the condition is required, that is, at any time during the period of the visa. Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass, in this case, a higher education course, the applicant breaches condition 8516 of the visa.

    …

    14.    The Tribunal finds that when the applicant ceased to be enrolled, or to be the subject of an offer of enrolment, in a higher education course, he ceased to be a person who would satisfy the primary criteria for the grant of the visa. There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. As such, the Tribunal finds that the applicant breached condition 8516 of his visa.

16. After making that finding, the tribunal considered whether the applicant’s visa should be cancelled.  Cancellation was not mandatory.  However, the tribunal considered a number of matters and determined to cancel the applicant’s visa.

Grounds of review

1. The applicant presses one ground of review in his amended application filed on 4 August, 2015. That ground is in the following terms (errors in the original):

   1. The Tribunal engaged in conduct which meant the jurisdictional error in the following respects:

   Particulars

   (a) The Tribunal erred in that it failed to properly consider, on balance, all relevant factors in assessing the Applicant was in breach of subclause 573.111 and subclause 573.223(1A), in particular:

   (i) At the time of the Tribunal hearing cancellation the Applicant had been offered enrolment at an eligible educational provider was involved in a principal course of study for the award of a Bachelor’s Degree, and this is confirmed in the delegate’s decision dated 22 September 2014;

2. As can be seen, the applicant’s ground of review focusses upon cll.573.111 and 573.223(1A) of Schedule 2 of the Regulations. Moreover, it is directed to the tribunal’s finding that the applicant was in breach of visa condition 8516. The words: “in assessing the applicant was in breach of cl.573.111 and cl.573.223(1A)” make that plain. The applicant’s submissions, both written and oral also make that plain. The ground of review is not, on its face, directed to the exercise of the discretion to cancel the applicant’s visa.

3. Relevantly, the clauses referred to by the applicant, and some others that are relevant, were in the following terms:

   Subclass 573- Higher Education Sector

   573.1-Interpretation and preliminary 

   573.111

   In this Part:

   educational business partner, in relation to an eligible education provider, means an education provider specified as an educational business partner in an instrument made under clause 573.112.

   eligible education provider means an education provider specified as an eligible education provider in an instrument made under clause 573.112.

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a)  the applicant is enrolled in a principal course of study for the award of:

   (i)  a bachelor’s degree; or

   (ii)  a masters degree by coursework;

   (b)  the principal course of study is provided by an eligible education provider;

   (c)  if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i)  the applicant is also enrolled in that course; and

   (ii)  that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

   …

   573.22--Criteria to be satisfied at time of decision

   573.223

   …

   (1A)  If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a)  the applicant gives the Minister evidence that the applicant has:

   (i)  a level of English language proficiency that satisfies the applicant’s eligible education provider; and

   (ii)  educational qualifications required by the eligible education provider; and

   (b)  the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)  the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)  any other relevant matter; and

   (c)  the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i)  the costs and expenses required to support the applicant during the proposed stay in Australia; and

   (ii)  the costs and expenses required to support each member (if any) of the applicant’s family unit.

   573.231

   If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

   (b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i) made under regulation J.40A; and

   (ii) in force at the time the application was made.

4. The first respondent submits, and I accept, that the applicant’s ground of review is a claim by him that the tribunal did not take into account a relevant consideration.

5. Insofar as the question of a breach of condition 8516 was concerned, the tribunal’s reasons make it plain that it clearly took into account that the applicant had received the offer of enrolment from American College/Alphacrucis College.  The applicant argued that the receipt of that offer by him was sufficient for him to demonstrate that he had met the primary visa requirements because, although he had no confirmation of enrolment, the offer was sufficient to engage cl.573.231 of the Regulations.  The tribunal understood this argument.  I have set out the tribunal’s reasons above.

6. The applicant points out that the tribunal acknowledged evidence of “[the applicant’s] enrolment in a Diploma, Advanced Diploma and a Bachelor course at the American College/Alphacrucis College”.  He argues that the offer from that organisation was sufficient to engage cl.573.231 so that he was a person who satisfied the primary criteria for the grant of a subclass 573 visa.

7. However, that offer of enrolment did not avail the applicant on the question of whether he had breached his visa condition.  That is because the applicant, between the cancellation of his enrolment on 1 August, 2014 and the receipt by him of an offer of enrolment from American College/Alphacrucis College was not enrolled, or the subject of an offer of enrolment sufficient to satisfy either cll.573.223(1A) or 573.231 of the Regulations.  He was required to continue to be a person who would satisfy the primary visa criteria.  He had ceased to be so when his enrolment was cancelled.  The breach of condition 8516 occurred at that point.  It was not “cured” by the subsequent offer of enrolment.

8. The tribunal’s determination that the applicant was in breach of visa condition 8516 was a decision which was clearly open on the evidence.  Indeed, it was the only decision at which the tribunal could arrive because:

   a)condition 8516 required the applicant to continue to be a person who would satisfy the primary criteria for the grant of his visa;

   b)he was thereby required to continue to be enrolled in, or subject to an offer of enrolment in, a principal course of a kind specified for his visa; and

   c)he was plainly not so enrolled, or subject to an offer of enrolment, in the period between the cancellation of his enrolment in the Bachelor of Business degree and before he received the American College/Alphacrucis College offer.

9. The tribunal was correct to reach the conclusion that it did on this issue.  It was right to give the offer of enrolment no weight on this issue.

10. The applicant’s written submissions might suggest that the applicant’s complaint is more about the exercise of the discretion to cancel the visa than the tribunal’s finding that he had breached visa condition 8516.

11. The applicant points out that at paragraph [17] of its decision record, the tribunal said:

    The purpose of a student visa is to enable the visa holder to undertake study in Australia. The purpose of the Higher Education visa is to enable the visa holder to undertake study at the higher education level. The applicant had not engaged in higher education study in Australia.  The applicant claims in his submissions of 2 April 2015 that he has shown willingness to enrol with an SVP provider and stated his preparedness to arrange enrolment with the American College/Alphacrucis College for a higher education course. The applicant claims that he has taken steps to rectify the problem. In the Tribunal’s view, showing a willingness to engage in higher education study is not sufficient. The visa required the applicant to actually engage in higher education study, or to have maintained an offer of enrolment or CoE in such a course. The Tribunal is not satisfied that the applicant is fulfilling the purpose of his travel to and stay in Australia because he is not undertaking study at the level for which his visa was granted.

12. What this paragraph demonstrates is that:

    a)the tribunal was aware that the applicant had obtained an offer of enrolment in a higher education course with American College/Alphacrucis College;

    b)the tribunal understood the applicant’s argument that by arranging that offer of enrolment, he was demonstrating his commitment to higher education study; and

    c)the tribunal rejected that argument.

13. To the extent that the applicant argues that the tribunal did not take into account the applicant’s offer of enrolment, it plainly did.

14. The applicant argues that in effect, the tribunal found that it was not enough that the applicant was willing to study - he had to actually engage in study or maintain a confirmation of enrolment.  However, he argues that his visa was granted for the purpose of undertaking higher education and the courses the subject of the American College/Alphacrucis College offer were higher education courses.  He argues that the tribunal was wrong to approach the matter on the basis that he had to actually engage in study.

15. He argues that because his visa was cancelled on 12 January, 2015 a confirmation of enrolment could not be issued to him, nor could he commence study in that or any other program. In effect, whilst the review process occurred, the applicant was in a state of limbo and he could not take any steps to enrol in courses to comply with his visa.

16. For those reasons, he says that the courses proposed in the American College/Alphacrucis College offer were to commence once the applicant was successful in his tribunal hearing.  Without approval or extension of his visa, the applicant could not “engage in study” as required by the tribunal.  All he could do was to seek enrolment in an eligible educational provider to commence after the approval of his visa.

17. With that reasoning in mind, the applicant submits that:

    the Tribunal erred in its consideration of the American College/Alphacrucis College offer. Whilst the Tribunal acknowledged the offer, it did not comprehend the nature and the restrictions of the offer in circumstances where it required the Applicant to be “engaged” in study.  Relevantly,

    a.  The American College/Alphacrucis College offer included higher education courses at eligible education providers;

    b.  The offer was, in effect, conditional upon the Applicant being successful in his MRT hearing;

    c.  Until the Tribunal approved the Applicant’s visa, he could not satisfy the Tribunal’s requirement that he actually be “engaged” in the relevant courses.

    26. It is submitted that in failing to consider the full circumstances and restrictions of the American College/Alphacrucis College offer the Tribunal came in to jurisdictional error.

18. However, this argument misapprehends the tribunal’s decision.  The tribunal’s decision did not, in effect, require the applicant to engage in study.  The tribunal was alive to the requirements of the relevant regulations.  However, having found the breach of visa condition 8516, as set out above, the tribunal considered whether the applicant’s visa should be cancelled.  In reaching the conclusion that it should, the tribunal took into account the fact that the applicant had obtained an offer of enrolment in a higher education course.  However, the tribunal determined to affirm the decision under review because:

    30.   Overall, the Tribunal has found that the applicant breached condition 8516 of his visa. The Tribunal considers the breach to be significant because the applicant failed to engage in higher education study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. The Tribunal has rejected the reasons put forward by the applicant because although the applicant was able to transfer to another provider and another course, the Tribunal is not satisfied that necessitated the applicant’s abandonment of the higher education study for which he was granted the visa. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control and that there are no extenuating or compassionate circumstances. The cancellation will not affect any other person’s visa and will not result in a breach of Australia’s international obligations. Family violence is not an issue. The Tribunal is prepared to accept that hardship may be caused by the cancellation.

1. Further, as the first respondent submits, even if the tribunal did not consider “the full circumstances and restrictions of the American College/Alphacrucis College offer”, its failure to do so was not a jurisdictional error because the applicant does not suggest that such a consideration was a mandatory consideration in the sense discussed by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

Conclusion

1. No jurisdictional error is established by the applicant’s ground of review. The tribunal’s decision is a privative clause decision for the purposes of s.474(2) of the Act and is not reviewable under s.476 of the Act.

2. The application must be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 18 January, 2016.

Date: 18 January 2016