RANA v Minister for Immigration
[2019] FCCA 395
•30 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RANA v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 395 |
| Catchwords: MIGRATION – Cancellation of visa – non fulfilment of relevant criteria – no evidence of an intention to complete a course of study – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.116, 476 Migration Regulations 1991 (Cth) r. 8202, 8516 |
| Cases cited: Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 359 Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 |
| Applicant: | LOVELY RANA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1059 of 2017 |
| Judgment of: | Judge Egan |
| Hearing date: | 30 January 2019 |
| Date of Last Submission: | 30 January 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 30 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Balzamo |
| Solicitors for the Applicant: | Stephens & Tozer Solicitors |
| Counsel for the Respondent: | Ms Franklin |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application for review filed on 26 October 2017 be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1059 of 2017
| LOVELY RANA |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal having been born on 14 March 1992. The applicant is now 26 years of age. On 16 July 2013, the applicant was granted a student visa. It was a subclass 572 higher education sector visa entitling the applicant to undertake a tertiary preparation pathway course followed by a Bachelor of Business degree. Whilst living in Brisbane, the applicant was financially supported by his parents who remained in Nepal.
On 16 May 2016, the department sent the applicant a notice of intention to consider cancellation of the student visa. It was indicated that the Minister was considering cancelling the visa pursuant to the provisions of Section 116 of the MigrationAct 1958 (Cth) (‘the Act’) because the applicant appeared to have breached condition 8202 of schedule 8 to the Migration Regulations 1994 (Cth) (‘the Regulations’) by failing to be enrolled in a registered course of study between 8 November 2015 and 12 May 2016. Condition 8202 of schedule 8 to the Regulations provides as follows:
8202
(1) The holder must be enrolled in a full‑time course of study or training if the holder is:
(a) a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full‑time registered course; and
(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) is enrolled in a course at the Australian Qualifications Framework level 10; and
(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.
On 18 May 2016, the applicant responded via email, explaining that his mother had been diagnosed with breast cancer, and that that had deeply affected his mental state and made it mentally and financially difficult for him to continue with his studies. On 24 May 2016, a delegate of the Minister cancelled the applicant’s student visa pursuant to section 116(1)(b) of the Act. The delegate found that the applicant had not met the condition 8202 criteria because he had not been enrolled in a full-time course between 8 November 2015 and 13 May 2016. It is noted, in that regard, that one day after receiving the notice of intention to cancel the visa from the department, the applicant enrolled in a certificate III course in “Spoken and Written English”.
On 1 June 2016, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision. The Tribunal invited the applicant to attend a hearing before the Tribunal on 13 March 2017. On 10 March 2017, the applicant had provided further material to the Tribunal in support of his review application, including a statutory declaration (CB75-82 inclusive), further enrolment documents (CB86-91) and medical evidence relating to his mother’s illness and his own mental state (CB92-124 inclusive).
On 13 March, the applicant appeared before the Tribunal with his registered migration agent. On 26 September 2017, the Tribunal affirmed the decision under review to cancel the applicant’s student visa. On 26 October 2017, the applicant filed an application for review to this Court pursuant to the provisions of Section 476 of the Act. The applicant’s ground of review, as expanded in the outline of submissions filed on behalf of the applicant, is set out in the application for review as follows:
1. The First and Second Respondent’s decision was affected by jurisdictional error in denying the Applicant procedural fairness, contrary to section 360(1) of the Migration Act 1958.
a. Failed to take or adequately take into account relevant considerations, particularly:
i. The Applicant’s mental state, caused by his Mother’s cancer and the family’s financial situation; and
ii. The short period the Applicant was not enrolled in a registered course.
b. Asking the wrong question and ignoring or not adequately considering relevant material:
i. The Applicant’s desire or ability to successfully undertake a higher course in Australia.
It was submitted on behalf of the applicant that the applicant was a genuine student who had suffered misfortune. Reliance was placed by the applicant upon the decision of Shrestha v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 669; [2001] FCA 359 where, at [20], it was said as follows:
[20] Even if the power to make the prescription in (b) is not conditional on its not being contrary to section 116(1), the power in (a) certainly is. The power only exists in relation to a non-genuine or likely non-genuine student. An otherwise genuine student does not lose his or her genuineness or likely genuineness because of transient misadventure. If the applicant’s was such a case, the regulation could not oblige the Minister to cancel his visa. The Tribunal, standing in the respondent Minister’s shoes, therefore, would have had a discretion as to whether to cancel the applicant’s visa.
At [10] of its reasons, the Tribunal found that the applicant had not been enrolled in a registered course between 8 November 2015 and 13 May 2016. It based its decision in that regard upon records held by the department, and it was noted in the reasons that such was conceded by the applicant. At [11] of its reasons, the Tribunal found that the applicant was not enrolled in a registered course, and that the applicant had therefore not complied with condition 8202(2) of the Regulations.
At [12-33] inclusive of its reasons, the Tribunal carefully and closely analysed the matters which went to the exercise of the discretion as to whether to confirm the decision of the delegate to cancel the applicant’s visa, as a matter of discretion, or not.
The Tribunal at [13] of its reasons recorded that in relation to the exercise of the discretion, the Tribunal had had regard to matters raised by the applicant as to why the visa should not be cancelled, together with the Government Policy Guidelines contained in the Department’s Procedures Advice Manual (PAM3). The Tribunal at [14] recorded that the applicant had arrived in Australia on 21 July 2013 and that he had enrolled in a tertiary preparation pathway course beginning in July 2013, to be followed by a Bachelor of Business course scheduled to begin in February 2014. The Tribunal recorded that the applicant stated that he did not successfully complete that course and, therefore, that his enrolment in the Bachelor of Business course was cancelled on 14 March 2014. The Tribunal recorded that the applicant, from that point onwards, was in breach of condition 8516 of the Regulations. Condition 8516 provides as follows:
8516
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.
It was noted that the applicant re-enrolled in a bachelor course in May 2016 after he had received from the Department a notice of intention to consider cancellation of his visa for relevant non-enrolment. At [15] of the reasons of the Tribunal it was recorded that the applicant had been enrolled in a Certificate IV course in Business Administration and a Diploma of Business. It was also recorded that the certificate IV course was cancelled in July 2014 for unsatisfactory course attendance, and that the diploma course was subsequently cancelled on 29 July 2014. At [16] of the reasons of the Tribunal the applicant was recorded as having enrolled in a Diploma of Management course commencing in August 2014 and ending in March 2015, as well as an Advanced Diploma of Management beginning in April 2015 and ending in November 2015.
At [17] of its reasons, the Tribunal recorded that the applicant had stated that in August 2014 the applicant had found out that his mother had breast cancer, his further stating that his mother was being treated by a family member who was a homeopathy practitioner, saying that such treatment was going well. It was recorded that the applicant told himself that he would not let his mother’s condition affect his studies. At [18] of the reasons of the Tribunal it was recorded that the applicant had stated that at some point before August 2015 the applicant was told that the homeopathy treatment was not working, and that his mother would have to have an operation in August 2015. The applicant stated that that made him very worried and stressed, saying that he could not cope with studying as a result.
At [19] of the tribunal’s reasons, it was recorded that the applicant said that after August 2015 his father and brother could not afford to continue to pay for his fees, and that that was why he did not enrol in a course from November 2015 to May 2016. The applicant stated that his family had to pay for medical bills for his mother’s treatment and for a full repair to the family home, which had been damaged in an earthquake. It was recorded in [20] of the reasons of the Tribunal that the applicant had had his visa cancelled on 24 May 2016.
At [22] of the reasons of the Tribunal it was recorded that the applicant admitted that he did not report his alleged depression, or otherwise seek medical assistance in relation to any depression, during the currency of his visa, and only reported his depression to a doctor some five weeks before the hearing. The medical practitioner consultant provided a letter stating that the applicant was suffering from anxiety and depression associated with his mother’s health condition.
After considering whether the applicant had a genuine desire to undertake higher education in Australia, the Tribunal at [25] of its reasons found that the applicant did not have the requisite desire or ability to successfully undertake any such higher education course in Australia. At [26] of its reasons the Tribunal found that the applicant’s inability to successfully undertake a higher education course was evidenced by a very poor academic record in Australia. It was noted that though the applicant had been in Australia since 2013, he had not completed a single course during that time.
Though the Tribunal accepted that the applicant’s ability to successfully complete courses was affected by news of his mother’s condition, the Tribunal noted at [27] of its reasons that even before the applicant learnt of the seriousness of his mother’s condition in August 2015, the applicant had failed to even successfully complete a tertiary preparation pathway course, the completion of such course being a prerequisite for the applicant having entry into the Bachelor of Business higher education course.
At [28] of its reasons the Tribunal further found that before the applicant discovered that his mother was ill, the applicant lacked the desire to successfully undertake a higher education course, as was demonstrated by his failure to maintain satisfactory attendance at the certificate IV course. The Tribunal did not accept the applicant’s claim that he had, in fact, been attending classes but that he had not correctly recorded such attendance, noting that the applicant knew that the making of a record of his attendance at classes was important for his continued enrolment.
At [29] of its reasons the Tribunal also found that the applicant’s lack of desire to undertake a higher education course in Australia was evidenced by the fact that the applicant was not enrolled in a course from November 2015, and that he only enrolled in another course one day after receiving the notice of intention to cancel the visa from the Department.
The Tribunal did not accept that it was coincidental that his family’s ability to pay for his tuition one day after receiving the notice of intention to cancel was unrelated to receipt of such notice.
At [31] of its reasons, the Tribunal analysed the practical consequences of the Tribunal affirming the delegate’s decision to cancel the visa.
At [32] of its reasons, the Tribunal found that the applicant lacked the ability and desire to successfully undertake higher education courses in Australia. It found that such lack of ability and desire outweighed any hardship that the applicant or his family members could face because of the cancellation of the applicant’s visa. As was evidenced from the above, it cannot be said that the Tribunal failed to take into account relevant considerations relating to the applicant’s mental state and the duration of the applicant’s non-enrolment in a registered course.
Each of the grounds raised by the applicant in the application for review, as filed and in the applicant’s submissions, are without merit. The Tribunal considered all relevant questions the subject of complaint by the applicant. It fairly addressed each of the matters raised by the applicant in the hearing before it. It gave a detailed consideration of the applicant’s education history and the findings at the Tribunal were clear and concise.
To the extent that it was submitted on behalf of the applicant that the Tribunal had failed to take relevant considerations into account “adequately”, such submission goes to the fact finding exercise undertaken by the Tribunal. This Court is not permitted to undertake a merits review, and to examine whether the Tribunal had adequately taken into account such considerations would be doing just that.
As to the assertion that the Tribunal had asked the wrong questions, that un-particularised complaint is also without merit. The Tribunal relevantly found that the applicant had failed to comply with condition 8202 of schedule 8 to the Regulations by not being enrolled in a registered course between 8 November 2015 and 13 May 2016, which fact was an accepted fact, agreed to by the applicant. It cannot be said that no other rational or logical decision-maker could not have made the same decision as that made by the Tribunal in this case. [1]
[1] See Minister for Immigration & Citizenship v SZMDS (2010) CLR 611 at [130].
Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification, as those respective concepts were considered in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66 ] and [76] where it was said:
[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The application for review being without merit, it is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 21 February 2019
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