PURI v Minister for Immigration

[2016] FCCA 395

FEDERAL CIRCUIT COURT OF AUSTRALIA

PURI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 395

Catchwords:
MIGRATION – Judicial review of Tribunal’s decision to cancel the applicant’s student visa.

Legislation:

Federal Circuit Court Rules 2001 (Cth), schedule 1
Migration Regulations 1994 (Cth), cl.573.233(1A)

Applicant: ANISH PURI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 759 of 2015

Judgment of: Judge Harland

Hearing date: 9 February 2016

Date of Last Submission: 9 February 2016

Delivered at: Melbourne

Delivered on: 29 February 2016

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondents: Mr Young

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for judicial review filed on 13 April 2015 is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 759 of 2015

ANISH PURI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the Tribunal’s decision dated 18 March 2015 which affirmed the Delegate’s decision made on 5 September 2014 to cancel the applicant’s student visa.

2. The applicant filed his application for judicial review on 13 April 2015 setting out the following grounds:

   1.  The tribunal in jurisdictional error in concluding that the applicant had taken actions to enrol after getting the NOICC from DIBP;

   2.  The Tribunal erred in not considering that applicant was responsible for the circumstances;

   3.  The Tribunal failed to consider the circumstances, which led the applicant to enrol in a vocational course;

   4.  The Tribunal failed to consider that the circumstances which led the applicant to enrol in a vocational course were as a result of ill advice;
   5.  The Tribunal failed to recognise the attempts made by the applicant to get his confirmation of enrolment reinstated.

1. The applicant filed an affidavit in support which annexes documents in addition to the decision of the Tribunal which he claims supports his case. The documents annexed to his affidavit appear in the Court Book (CB) and were considered by the Tribunal when making its decision.

2. The applicant did not file any written submissions as directed. This is commonly the case when applicants appear without legal representation. The applicant did not need the assistance of an interpreter.

3. The Minister’s legal representative filed written submissions and relied on those submissions at the hearing.

4. The applicant had a subclass 573 higher education sector visa. On

   
   

   12 September 2014, the Department sent the applicant a notice of intention to consider cancellation of his visa on the basis that he was not enrolled in a higher degree course which was a requirement of his visa. The relevant provision is clause 573.233(1A) of schedule 2 to the Migration Regulations 1994 (Cth) the text of the regulation appears at CB 235. In summary, the requirements for a higher education sector visa are that a student be enrolled in a principal course of study for the award of a bachelor’s degree or masters degree by coursework and the principal course of study is to be provided by an eligible education provider. It is not necessary to consider the other requirements set out in clause 573.233(1A) because the issue in this case is that the applicant was no longer involved in a eligible higher degree course.

5. The Tribunal Member sets out the background in its decision. It records that the Delegate cancelled the applicant’s student visa because he was not enrolled in an eligible higher education course. The applicant had tried to re-enrol with his original course provider however, that application was refused. The applicant provided a letter of offer from the course provider but that course was not due to commence until June 2016.

6. The applicant’s submissions were primarily that he and other students were misled when given advice to change their subclass visa. The applicant was granted a 573 visa for higher class education. The applicant admitted that he no longer satisfied the conditions for the visa. The applicant did not make a complaint against Mr Singh from the CECA who advised him he could change his subclass to 572 and helped him with the application. His application for a 572 subclass visa was refused.

7. The applicant initially studied at Deakin University. The applicant says he had trouble adjusting to life as a student in Australia and had accommodation problems. He failed his exams. Deakin University refused his application to re-enrol based on his poor academic performance and concern that he was not a genuine student. The applicant did not undertake any action to re-enrol in a course until after he received the notification that the Department was intending to cancel his visa.

8. The Tribunal asked why the applicant tried to enrol in an accounting course at Charles Darwin University when he only scored 4% in the advanced math course he studied at Deakin University. The applicant said that he tried to get into any course and planned to transfer to an engineering course after a semester.

9. The applicant was represented by a migration agent at the Tribunal hearing. The Tribunal member raised a concern about course hopping. This is where students are granted 573 visas which are streamlined and have lower evidentiary requirements only to switch to 572 courses, which are subject to more stringent entry assessments.

10. The Tribunal observed that the applicant did not take any steps to lodge any complaint against Mr Singh and the CECA despite seeking advice from others including his migration agent. The Tribunal found that it was the applicant’s own actions which caused him to be in the situation he finds himself in. The Tribunal noted that the applicant did not avail himself of any of the student services available to him at Deakin University when he studying there but went to an outside agency.

11. The Tribunal found that the applicant was assisted with his application for a 572 visa.

12. The Tribunal considered the discretionary factors when considering whether or not to cancel his visa.  He noted that the applicant does have a qualification from India although it is not as good as a qualification he could have received in Australia. He does not have family in Australia.

13. The Tribunal found that the applicant was responsible for his circumstances and affirmed the Delegate’s decision.

14. It is very clear from the Tribunal decision itself, that contrary to the applicant’s assertions in his application for review, the Tribunal did consider in some detail the applicant’s circumstances and the issues complained of in his review application.

15. The oral submissions the applicant made at the hearing sought to raise merit arguments. In answer to his submissions, I explained to him that the Court has no power to force a university to accept his enrolment application.

16. The applicant has been unsuccessful in establishing any jurisdictional error by the Tribunal therefore I will dismiss his application.

17. The Minister’s solicitor sought costs in the event the applicant’s application was not successful in the sum of $5,800 which is less than the amount set out in the costs scale set out in schedule 1 Division 3 of the Federal Circuit Court Rules 2001 (Cth). I make that order for costs.

18. The Minister’s solicitor also sought an order that the name of the first respondent be amended to the Administrative Appeals Tribunal.  Registrar Burns made that order 22 July 2015.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 29 February 2016