RAVINDER v Minister for Immigration
[2018] FCCA 803
•6 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAVINDER v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 803 |
| Catchwords: MIGRATION – Whether the Tribunal considered the criteria that applicant was required to satisfy under the Migration Regulations 1994 (Cth) (“the Regulations”) for a subclass 573 Higher Education Sector visa when deciding to cancel applicant’s visa under s.116 of the Migration Act 1958 (Cth) (“the Act”) – whether the Tribunal understood and considered applicant’s claims when deciding to exercise its discretion under s.116 of the Act – held the Tribunal failed to exercise its statutory task by not considering both cls.573.223(1A) and 573.231 of sch.2 to the Regulations with the consequence that the Tribunal engaged in jurisdictional error – held Tribunal understood and considered applicant’s claims and no jurisdictional error arose – writs issued. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth), reg.1.40A, sch.2 cls.573.2, 573.6, 573.22, 573.111, 573.223, 573.231, 573.611, sch.8 cl.8516 |
| Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 |
| Applicant: | RAVINDER RAVINDER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1446 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 18 October 2017 |
| Date of Last Submission: | 18 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 6 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Solomon-Bridge |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Brown of Australian Government Solicitor |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 3 June 2015.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the Applicant for review of the delegate of the First Respondent’s decision.
The First Respondent pay the Applicant’s costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1446 of 2015
| RAVINDER RAVINDER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application for judicial review of the decision of the Second Respondent (“the Tribunal”) dated 3 June 2015, affirming a decision of a delegate of the First Respondent (“the Minister”) dated 9 December 2014 to cancel the Applicant’s Subclass 573 Higher Education Sector visa (“the visa”) under s.116 of the Migration Act 1958 (Cth) (“the Act”).
The amended grounds of judicial review (set out in full below at [27] and [69]):
a)impugn the Tribunal’s satisfaction that a ground existed under s.116(1)(b) of the Act to cancel the Applicant’s visa and, alternatively, the Tribunal’s decision to proceed to exercise its discretion to cancel the visa; and
b)attack the Tribunal’s decision for failure to consider or respond to two claims or integer of claims made by the Applicant.
Because of the way in which the Applicant argued his case that the Tribunal fell into jurisdictional error, it is necessary to set out the chronology of the Applicant’s enrolment and cancellation of enrolment of courses of study, and the relevant provisions of the Act, the Migration Regulations 1994 (Cth) (“the Regulations”), and any applicable instrument issued by the Minister under reg.1.40A of the Regulations.
Background
The Applicant, who is an Indian national, arrived in Australia on
19 February 2014 as a holder of the visa. The course of study for which the Applicant was granted the visa and in which he was enrolled was a Bachelor of Business (Marketing Management) at the University of Canberra (“the Bachelor Degree”) (CB 15, 68). The Applicant was also enrolled in a Certificate IV in Business, and a Diploma of Management at the Holmesglen Institute (CB 15, 88 at [4](d)(i)). The successful completion of the courses at the Holmesglen Institute was a pre-requisite to commencing the Bachelor Degree.
The Applicant commenced studying the Certificate IV at Holmesglen Institute in 2014 but, for personal reasons (considered below), failed to complete the first semester of that course.
On 22 July 2014, the Applicant enrolled in a Diploma of Management and Advanced Diploma of Management at the Brighton Institute of Technology (CB 48-49, 61).
On 23 July 2014, the Applicant’s enrolment in the Bachelor Degree was cancelled by the University of Canberra.
On 23 July 2014, the Applicant applied for a Subclass 572 Vocational Education and Training Sector visa on the basis of his enrolment in the courses of study at the Brighton Institute of Technology (CB 34). On 14 August 2014, a delegate of the Minister refused to grant the Applicant this visa (CB 34, 88 at [4(d)(iii)]).
On 5 September 2014, the Applicant was issued with a Notice of Intention to Consider Cancellation (“NOICC”) (CB 29-33), on the basis it appeared that the Applicant had breached a condition of his visa (condition 8516), which required that he continue to satisfy the primary criteria for the grant of the visa.
On 11 September 2014, the Applicant enrolled in a Bachelor of Business at Stott’s College, and was provided with a Certificate of Enrolment (“COE”) for that course (CB 44-45).
The Applicant responded to the NOICC on 11 September 2014 (CB 34-35).
The Applicant commenced the Diploma of Management at the Brighton Institute on 15 September 2014 (CB 48). He told the Tribunal that because he found the course difficult, in November 2014 he changed his course to a Certificate IV Commercial Cookery (CB 91 at [18]).
On 9 December 2014 a delegate of the Minister determined that a ground existed for the cancellation of the Applicant’s visa under s.116(1)(b) of the Act, and exercised the available discretion to cancel the visa (CB 58-64).
The Applicant made an application for review of the delegate’s decision at the Tribunal. The Applicant attended a hearing to give evidence and present arguments on 1 April 2015, assisted by an interpreter in the English and Hindi languages, and represented by a new migration agent.
Legislative Provisions
Section 116 of the Act relevantly provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
The criteria for the grant of a subclass 573 student visa were specified in sch.2 to the Regulations.
The primary criteria for the grant of the visa were found under cl.573.2 of sch.2 to the Regulations. The criteria to be satisfied at the time of decision for the visa were specified in cl.573.22 of sch.2 to the Regulations.
Clause 573.223(1) of sch.2 to the Regulations relevantly required that the Minister be satisfied that the Applicant is a genuine applicant for entry and stay as a student because, amongst other things, pursuant to sub-cl.573.223(1)(b), the Applicant met the requirements of
sub-cls.(1A) or (2).
Clause 573.223(1A) of sch.2 to the Regulations provided:
(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.
Clause 573.231 provided:
573.231
If subclause 573.223(1A) does not apply:
(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 1.40A; and
(ii) in force at the time the application was made.
Clause 573.111 relevantly defined “[e]ligible higher degree student” as
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.
(Emphasis in original)
There is no dispute that cls.573.223(1A) and 573.231 of sch.2 to the Regulations were alternative means by which an applicant for the visa may satisfy the criteria for the grant of the visa.
Clause 573.6 of sch.2 to the Regulations contained conditions to be met when the visa is in effect. Clause 573.611 of sch.2 to the Regulations relevantly required that the Applicant satisfy condition 8516 as contained in cl.8516 of sch.8 to the Regulations. Condition 8516 relevantly provided:
The holder must continue to be a person who would satisfy the primary… criteria… for the grant of the visa.
For the purposes of cl.573.231(b) of sch.2 to the Regulations, the Ministerial instrument in force at the time of the decision was the Migration Regulations 1994 - Specification of Types of Courses for Student Visas, IMMI 12/037 (Cth) (“IMMI 12/037”).
Schedule 1 to IMMI 12/037 set out types of courses for the corresponding visa subclass, as follows:
VISA SUBCLASS
TYPES OF COURSES
Subclass 570 (Independent ELICOS Sector) Non-Award ELICOS Certificate I in ELICOS Certificate II in ELICOS Certificate III in ELICOS Certificate IV in ELICOS Subclass 571 (Schools Sector) Primary School Secondary School (including Junior Secondary and Senior Secondary) Secondary Exchange Programs Subclass 572 (Vocational Education and Training Sector) Certificate I, II, III and IV, other than ELICOS Vocational Education and Training Diploma Vocational Education and Training Advanced Diploma Vocational Graduate Certificate Vocational Graduate Diploma Subclass 573 (Higher Education Sector) Higher Education Diploma Higher Education Advanced Diploma Bachelor Degree Graduate Certificate Graduate Diploma Associate Degree Masters by Coursework Subclass 574 (Postgraduate Research Sector) Masters by Research Doctoral Degree Subclass 575 (Non-Award Sector) Full time courses other than ELICOS not leading to an Australian award
Judicial Review
The Applicant filed his application for judicial review on 25 June 2015. He filed an Amended Application for judicial review on
6 September 2017.
Ground One
The Applicant’s first ground of judicial review is as follows:[1]
[1] The Applicant’s Amended Application filed on 6 September 2017.
1. The Tribunal committed jurisdictional error by failing to take into account a relevant consideration and/or by identifying a wrong issue or asking itself the wrong question
Particulars
A. In considering whether there existed a ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth), the Tribunal failed to consider whether the Applicant’s enrolment in a Diploma of Management and an Advanced Diploma of Management constituted a principal course of study which was of a type that was specified in IMM 12/037.
B. Alternatively, in considering whether to cancel the Applicant’s visa, the Tribunal failed to consider whether the Applicant’s enrolment in a Diploma of Management and an Advanced Diploma of Management was no different in substance than enrolment in a principal course of study which was of a type that was specified in IMM 12/037 and/or the extent to which they were similar.
(Underlining omitted)
The Tribunal’s reasoning that led to its finding that a ground for cancellation under s.116(1)(b) of the Act existed, is contained in the following extracts from its decision record (CB 93-94 at [32]-[36]):
32. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of his visa. In this instance, condition 8516 was attached to the applicant’s visa. This condition requires that 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.
33. The applicant entered Australia as the holder of a Subclass 573 visa, on 19 February 2014. The criteria for the grant of the visa required the applicant to satisfy cl.573.231: that the applicant is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application, or cl.573.223(1A) and the definition of eligible higher degree student, which provides, in part, that the applicant must be enrolled in a principal course of study for the award of a bachelor’s degree or a master’s degree by coursework.
34. The applicant was granted the Subclass 573 visa based on his enrolment in a Bachelor of Business. That enrolment was cancelled on 23 July 2014.
35. As a result of the cancellation of his enrolment in the Bachelor of Business, the applicant was not enrolled in a bachelor’s degree or a master’s degree and was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas.
36. The Tribunal notes that on 11 September 2014, after he received the NOICC from the Department, the applicant enrolled in a bachelor degree at Stott’s College. The requirement of condition 8516 is that the applicant must continue to be a person who would satisfy the primary criteria for the grant of the visa. The applicant did not continue to be a person who would satisfy the primary criteria for the grant of the visa because he was not continuously enrolled in a bachelor’s degree or a master’s degree. The Tribunal therefore finds that the applicant did not comply with condition 8516.
(Emphasis added)
In my opinion, there is no doubt that at [33] of the Tribunal decision record, the Tribunal appreciated that the Applicant could satisfy it that he met the requirements for the visa, because he satisfied either cls.573.231 or 573.223(1A) of sch.2 of the Regulations. In my view, the question is whether the Tribunal considered, or turned its mind to consider, whether the Applicant satisfied either of those clauses. The Applicant submits that the Tribunal failed to do so. The Minister submits that the Tribunal considered both clauses.
The Applicant submits that it is evident from IMMI 12/037 that, in addition to a Bachelor’s Degree and a Master’s Degree by Coursework, “Higher Education Diploma” and “Higher Education Advanced Diploma” were specified courses for the purposes of the visa. As the Applicant notes, that there are no definitions of those terms in IMMI 12/037.
The Applicant submits that the following propositions emerge from the relevant criteria and IMMI 12/037:
a)if the Applicant did not continue to satisfy cl.573.223(1A) of sch.2 to the Regulations, he would nonetheless be compliant with his visa conditions if he continued to satisfy cl.573.231 of sch.2 to the Regulations;
b)unlike cl.573.223(1A) of sch.2 to the Regulations, cl.573.231 of sch.2 to the Regulations did not depend on enrolment in a Bachelor’s Degree or Master’s Degree; and
c)enrolment in a diploma would satisfy cl.573.231 of sch.2 to the Regulations provided that it could be characterised as either a “Higher Education Diploma” or a “Higher Education Advanced Diploma”.
The Applicant notes that prior to the cancellation of the Bachelor Degree, he was enrolled (and remained enrolled) in a Diploma of Management and an Advanced Diploma of Management at Brighton Institute of Management.
For his argument the Applicant relies on two decisions. The first is Singh v Minister for Immigration and Border Protection [2016] FCA 611 (“Singh 2016”); a decision of Justice Charlesworth. The second is Shrestha v Minister for Immigration & Anor [2017] FCCA 1875 (“Shrestha”); a decision of Judge Wilson.
In Singh 2016, the Court was required to determine whether the Federal Circuit Court’s failure to identify an arguable basis for the relief claimed by the Applicant amounted to an appealable error. The Federal Circuit Court had dismissed the applicant’s application for judicial review pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), on the basis that the application had not raised an arguable case for relief. As Justice Charlesworth acknowledged in his decision, it was a “very low threshold” to be met (Singh at [45]).
In my respectful view, in considering Singh, Judge Wilson correctly stated that this Court is bound by a decision of a single judge of a superior court (Shrestha at [8]). His Honour said (Shrestha at [9]):
9. …Whether a specific observation in that decision is somehow distinguishable from the facts of this case is a matter calling for analysis. But as a matter of conceptual or doctrinal overview, her Honour in that case laid down certain principles relevant to a 573 visa and to the operation of clause 573 of Schedule 2 of [the Regulations].
The facts in Singh 2016 were as follows:
a)the appellant entered Australia on 1 May 2014 as a holder of a subclass 573 visa, and was enrolled in a Diploma of Information Technology, and a Bachelor of Information Technology at Queensland University of Technology (“QUT”);
b)on 12 May 2014, QUT cancelled the appellant’s enrolment, and on 13 June 2014, the appellant applied for a subclass 572 visa, on the basis he intended to study a Diploma of Website Development through another training provider. This application for grant of a subclass 572 visa was refused;
c)on 16 September 2014, delegate of the Minister cancelled the appellant’s 573 visa;
d)at the time of the delegate’s decision to cancel the visa and the Tribunal’s decision affirming the delegate’s decision, there was evidence demonstrating that the appellant retained a COE for the Diploma of Website Development that had formed the subject matter of the unsuccessful subclass 572 visa application; and
e)the Tribunal found that, at the time of its decision, the appellant did not satisfy the criteria specified in cls.573.223(1A) or 573.231 of sch.2 to the Regulations.
Justice Charlesworth found that (Singh 2016 at [17] ):
17. … It is implicit in the Tribunal’s reasons that the Tribunal did not consider [a Diploma of Website Development] to be a “higher education course” for the purpose of cl 573.231 of the Regulations…
Justice Charlesworth, having noted that the evidence before the delegate and Tribunal was that the appellant retained a COE in a Diploma of Website Development, relevantly said (Singh 2016 at [41]):
41. …The Tribunal’s reasoning proceeds from an assumption that the applicant’s enrolment in that course did not satisfy the requirement for the 573 Visa. There is no consideration given in the reasons of the Tribunal to the correctness of that assumption. Moreover, the nature of the course in which the applicant remained enrolled was a consideration relevant to the Minister’s assessment of the seriousness of the applicant’s breach of condition 8516…
Her Honour went on to reason as follows (Singh 2016 at [43]-[44]):
43. It is, in my opinion, arguable that the Diploma in which the applicant remained enrolled was a “higher education course”. The argument may be briefly stated. A “higher education course” includes a course specified in an instrument made under reg 1.40A of the Regulations: see cl 573.231 (1A)(b) of Sch 2 to the Regulations extracted at [16] of these reasons. At the time of the Minister’s decision to cancel the applicant’s 573 Visa, a “higher education course” was specified, in such an instrument, to include a “Diploma (Higher Education)”: see Instrument IMMI 14/015 titled Types of Courses for Student Visas. The instrument also specifies a “Diploma (Vocational Education and Training)” to be a course for the purposes of a Subclass 572 (Vocational Education and Training Sector) visa. The instrument, unhelpfully, gives no guidance as to which of those two descriptions apply to any particular Diploma course. In the context of the present case, it does not assist a decision-maker to determine whether the applicant’s Diploma has the characteristic of a “Higher Education” Diploma or “Vocational Education and Training” Diploma. There is room for argument in and around that.
44. In the proceedings in this Court, the Minister contended that a Diploma in Website Development should be regarded as “Diploma (Vocational Education and Training)” within the meaning of the instrument, because that was how it was described by the educational institution offering the course. As I have mentioned, the question of whether the course properly met that description involves a question of construction of the Act and the instrument. It is not a question for the educational institution itself to finally determine…
Counsel for the Applicant properly informed me of a decision of the Federal Circuit Court on remittal had issued a decision. On investigation, it became apparent that this decision was the subject of an appeal to the Federal Court of Australia.
It is apparent from the decision of the Federal Court of Australia in Singh v Minister for Immigration and Border Protection [2018] FCA 29 (“Singh 2018”) that the Federal Circuit Court on remittal in Singh v Minister for Immigration & Anor [2017] FCCA 1008 failed to address the particular issues raised by Charlesworth J in relation to cl.573.231 of sch.2 to the Regulations. In the interests of finality of litigation, rather than remit the matter yet again to the Federal Circuit Court, Justice White decided to determine these matters of concern in his Honour’s appeal decision (Singh 2018 at [29]-[38]):
29. At the resumed hearing, the Appellant did not refer to any legislative instruments nor seek to adduce further evidence. Counsel for the Minister did seek, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), to adduce further evidence. Relevantly, this evidence comprised an affidavit of Qing Zahn, an Assistant Director in the Student and Graduate Visas Section of the Department of Immigration and Border Protection and two instruments made by the Assistant Minister. These were IMMI14/047 and IMMI14/015 which concerned the Diploma of Website Development course and the Institute of Technology Australia.
30. I considered it appropriate to admit this evidence in the interests of the administration of justice and, in particular, in the interests of achieving finality in the litigation. I took into account that the material could (and should) have been adduced in the FCC but considered that that consideration was outweighed by the non‑contentious nature of the material, its materiality to the issues in dispute and, as indicated, the public interest in the finality of litigation: see generally, CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at [107]‑[111]. The admission of the Ministerial instruments into evidence made it unnecessary to consider whether the Court could in any event, have had regard to them pursuant to s 143(1) of the Evidence Act 1995 (Cth).
31. The assessment of the Diploma of Website Development course is to be made having regard to the integrated statutory scheme for which the Migration Act and the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) provide. A stated object of the ESOS Act is to complement Australia’s migration laws by ensuring that institutions providing courses of educational training to holders of student visas collect and report information relevant to the administration of the law relating to “student visas”: see s 4A(c) of the ESOS Act. In Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22, the High Court outlined the statutory scheme in some detail, at [6]‑[15]. It is not necessary for present purposes to repeat the detail of that scheme.
32. A number of matters indicate that the Diploma of Website Development course cannot reasonably be understood as a course for a Diploma (Higher Education) so that the Appellant’s enrolment in that course could satisfy the cl 573 criteria. First, Institute of Technology Australia was not included in the list of education providers specified by the Minister in IMMI14/047 for the purposes of cl 573. Accordingly, it could not be an “eligible education provider” for the purposes of the subcl 573.223(1A) criteria.
33. Secondly, it was the Australian Skills Quality Authority (ASQA), the entity with responsibility under the ESOS Act for Australia’s vocational education and training (VET) sector, which approved the Diploma of Website Development course at the Institute of Technology Australia. ASQA could (and did) approve the Diploma of Website Development course only as a VET course. The course has not been approved as a higher education course.
34. Thirdly, the Overseas Student Confirmation of Enrolment completed by the Institute of Technology Australia on 26 May 2014 in accordance with its obligations under the ESOS Act in respect of the Appellant’s enrolment identified the “course sector” of the Diploma of Website Development as “VET”. It did not identify the course as a higher education course.
35. Fourthly, the Diploma (Higher Education) course specified in IMMI14/015 made by the Assistant Minister on 16 March 2014 relates to only Subclass 573 (the Higher Education Sector) and not Subclass 572 (the Vocational Education and Training Sector).
36. Fifthly, the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records the Diploma of Website Development as a VET course.
37. Finally, there is no evidence that the Diploma of Website Development has ever been approved as a Diploma (Higher Education) course in the Higher Education Sector.
38. In these circumstances, it is plain that grounds for cancellation of the Appellant’s Subclass 573 visa existed. No error in the MRT’s conclusion on that question has been shown. Further, as already noted, the Appellant had acknowledged in the MRT that he had commenced a VET course. It was because he had commenced a VET course that he had applied for a Subclass 572 visa (being the visa appropriate for those studying VET courses).
It is to be noted that the decision of White J in Singh 2018 was delivered subsequent to the decision of Wilson J in Shrestha, and to the hearing in these proceedings.
In Shrestha, the relevant ground of judicial review was (Shrestha at [6]):
6. The three grounds, as amended, advanced by the applicant were as follows (verbatim) –
…
4. The Tribunal failed to take into account that the Applicant was, at 31 July 2014, enrolled in a Diploma of Hospitality and a Diploma of Computing which were principle courses as defined in cl.573.221 and specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and in force at the time the application was made, and thereby fell into jurisdictional error (see Singh v Minister for Immigration and Border Protection [2016] FCA 611).
…
Judge Wilson stated in respect of the Tribunal decision that (Shrestha at [38]):
38. It seemed the Tribunal addressed only the elements of clause 573.223(1A) of the regulations. Of that clause, the Tribunal seemed to have focused on whether the applicant was an eligible higher degree student who had a confirmation of enrolment in each course of study for which the applicant was an eligible higher degree student. The Tribunal undertook no further analysis…
In relation to this ground of judicial review, Wilson J held (Shrestha at [40]-[41]):
40. On this ground I was persuaded that the Tribunal did in fact fall into jurisdictional error. It failed to consider all elements of clause 573.223, especially clause 573.223(2) as well as clause 573.231 of the regulations. It failed to address the applicant’s enrolment in a diploma of hospitality and whether that enrolment attracted the application of different components of clause 573.223 and clause 573.231 of the regulations. Insofar as the construction of a legislative instrument was concerned, the Tribunal identified IMMI 12/037 in paragraph 14 of its reasons. The Tribunal gave no explanation about how it reasoned that the elements of that instrument applied to the facts of this case. To my mind, those failures demonstrated the existence of jurisdictional error by the Tribunal.
41. I do not accept that no possibility existed of a different outcome had error not been made by the Tribunal. To the contrary. Had the Tribunal properly engaged in the process of reasoning adumbrated by Charlesworth J then an arguable case might (or possibly “would”) have emerged to the effect that the visa should not have been cancelled.
In these proceedings, Counsel for the Applicant submitted that it was not evident from the Tribunal’s finding at [36] of its decision record (extracted at [28] above) that the Tribunal had considered the two alternative pathways in which the Applicant might have satisfied the criteria for the grant of the visa.
Counsel for the Applicant submitted that the Tribunal’s passing reference at [36] of its decision record to the fact that the Applicant was not enrolled in a course of study that is a principal course of a type specified for the visa, suffers from the deficiency of reasoning identified in Shrestha; that is, that the Tribunal’s remarks give “no explanation about how it reasoned that the elements of [IMMI 12/037] applied to the facts of this case” (Shrestha at [40]), which is sufficient to establish jurisdictional error.
Furthermore, Counsel for the Applicant submitted that the Tribunal’s reasoning at [37] of its decision record focused on the fact that the Applicant was not continuously enrolled in a Bachelor’s Degree or a Master’s Degree.
The Applicant submits that the Tribunal ought to have considered whether the Applicant’s enrolment in a Diploma of Management and an Advanced Diploma of Management at the Brighton Institute were either a “Higher Education Diploma” or a “Higher Education Advanced Diploma” for the purposes of IMMI 12/037 and cl.573.231 of sch.2 to the Regulations. The Applicant argues that the Tribunal’s failure to do so, constituted jurisdictional error.
As to the alternative limb of ground one, the Applicant submits that even if there was no jurisdictional error in the Tribunal’s satisfaction that a ground of cancellation existed under s.116(1)(b) of the Act, the Tribunal nevertheless erred in exercising its discretion to cancel the visa by failing to consider whether the Diploma of Management and Advanced Diploma of Management were substantially the same as a “Higher Education Diploma” or a “Higher Education Advanced Diploma”, as specified in IMMI 12/037.
The Applicant relies on the following extract from the decision in Singh 2016, where Charlesworth J identified as a further arguable point the following (Singh 2016 at [45]):
45. …It is also arguable, in the same sense, that upon any legally reasonable evaluation of the seriousness of the applicant’s breach of condition 8516, an issue of sufficient importance arose as to whether the applicant was enrolled in a Diploma that was no different in substance from a “higher education” Diploma [as specified in the instrument]…
The Applicant argues that, had the Tribunal considered and assessed whether the diplomas that the Applicant had been enrolled were substantially the same as a “Higher Education Diploma” or a “Higher Education Advanced Diploma”, and found that they were, such a finding would have considerably reduced the overall gravity of the Applicant’s breach of the visa conditions, and therefore, might have led the Tribunal to a different result.
Counsel for the Minister made the following relevant arguments in support of its submission that the Tribunal considered both of the statutory criteria (cls.573.223(1A) and 573.231 of sch.2 to the Regulations), that it was open to the Tribunal to find that the Applicant did not satisfy these criteria, and that therefore he breached a visa condition.
Firstly, the Minister argues that the Confirmations of Enrolment (“COE”) issued by the Department of Education for the Diploma of Management and the Advanced Diploma of Management at the Brighton Institute of Technology each nominate the education provider, the course, the course level and the course start and end dates. Counsel for the Minister submits that it is relevant that the Applicant’s COE for the Diploma of Management specifies “Diploma (Course Sector: VET)” as the course level (CB 48), and that the Applicant’s COE for the Advanced Diploma of Management specifies “Advanced Diploma (Course Sector: VET)” as the course level (CB 49). Counsel for the Minister points out that “VET” is a reference to the “Vocational Education and Training Sector”.
Counsel for the Minister submits that on the face of the Applicant’s COEs, it is clear that both courses are undertaken in the “Vocational Education Training Sector”. Counsel for the Minister observed that this was the reason for the Applicant saying he was advised by his migration agent that he needed to apply for a subclass 572 student visa; courses in the “Vocational Education Training Sector” require a person who is undertaking them to hold a subclass 572 student visa.
Counsel for the Minister argued this characterisation of the Diploma of Management and the Advanced Diploma of Management that the Applicant was enrolled in is consistent with the Brighton Institute of Technology’s own course handbook (a publicly available document) about the status of such programs.
Secondly, Counsel for the Minister argued that the Tribunal noted, and was therefore aware of, the two bases upon which the Applicant could satisfy the criteria for the visa (CB 93 at [33]).
Thirdly, Counsel for the Minister argued that cl.573.231 of sch.2 to the Regulations required the Applicant to be enrolled in a program that was subject to the provisions of IMMI 12/037. The Ministerial instrument, IMMI 12/037, makes it clear that the title of a subclass 572 visa are those courses which fall within the Vocational Education and Training Sector.
Finally, Counsel for the Minister argued that the decisions in Singh 2016 and Shrestha can be distinguished on the following bases:
a)the reasoning in Singh 2016 must be considered in the context that all that was required for a successful appeal was that the Applicant’s application for judicial review was “arguable”; and
b)in Shrestha, it is not apparent whether Wilson J had before him the information contained in the COEs that were before the Tribunal.
Consideration
There is no dispute that when the Applicant’s Bachelor Degree was cancelled, he was enrolled in and remained enrolled in a Diploma of Management and an Advanced Diploma of Management at the Brighton Institute.
The Tribunal found that when the Applicant’s enrolment in the Bachelor Degree was cancelled, he was no longer enrolled in a Bachelor’s Degree or Master’s Degree, and consequently, he did not satisfy the requirements of cl.573.223(1A) of sch.2 to the Regulations (CB 94 at [36]). The Tribunal’s finding was clearly correct.
In my opinion, it can also be inferred that the Tribunal found that the Applicant’s enrolment in Diploma of Management and Advanced Diploma of Management at Brighton Institute did not satisfy cl.573.231 of sch.2 to the Regulations (CB 94 at [36]). This can be inferred from the fact the Tribunal adopted the wording of cl.573.231 of sch.2 to the Regulations when it found that the Applicant “was not enrolled in a course of study that is the principal course of a type specified for Subclass 573 visas” (CB 94 at [35]). However, the Tribunal’s decision record does not disclose the reasoning underlying this finding.
There is no reference at all to IMMI 12/037 in the Tribunal decision, and no consideration of whether the Diploma of Management and the Advanced Diploma of Management at the Brighton Institute were types of courses that could be said to be a “Higher Education Diploma” or a “Higher Education Advanced Diploma”, and thereby fell within the types of courses for subclass 573 visas.
As noted earlier, the concerns of Charlesworth J in Singh 2016 were finally determined by White J in Singh 2018. In Singh 2018, Justice White expressly considered whether a particular diploma course in which the appellant was enrolled fell within the meaning of cl.573.231 of sch.2 to the Regulations. In doing so, his Honour identified documents produced by the Minister, including two Ministerial instruments made under reg.1.40A of the Regulations, and an affidavit of a Senior Officer of the Department of Immigration and Border Protection’s Student and Graduate Visa Division. The information before his Honour also included the COE for the relevant diploma. Having identified the information before him, his Honour then proceeded to consider whether the Diploma course fell within cl.573.231 of sch.2 to the Regulations.
I agree with the submission of the Minister that the Tribunal had relevant information before it, in the form of the COEs issued by the Department of Education. Furthermore, on the face of the COEs
(CB 48-49), it may well be that the Diploma of Management and the Advanced Diploma of Management at the Brighton Institute fell within the available courses for subclass 572 visas (see Singh 2018 at [34], extracted at [41] above). The difficulty is that the Tribunal’s reasoning in considering whether the diplomas that the Applicant was still enrolled in fell within cl.573.231 of sch.2 to the Regulations is not evident from the Tribunal’s decision record. The Tribunal failed to refer to the information contained in cl.573.231 of sch.2 to the Regulations, or any Ministerial instrument it considered relevant to its decision.
In my opinion, the Tribunal plainly failed to engage in its statutory task to consider, by way of reasoning based on the factual material before it, whether the Applicant satisfied cl.573.231 of sch.2 to the Regulations and therefore, whether he met a condition of the visa.
Consequently, I am satisfied that the Tribunal’s decision is affected by jurisdictional error, on the basis of ground one of the Applicant’s Amended Application for judicial review.
Given this finding, it is unnecessary to consider the alternative argument put by the Applicant under ground one of his Amended Application for judicial review.
Ground Two
The Applicant’s ground two of his Amended Application for judicial review is as follows:
2. The Tribunal committed jurisdictional error by failing to consider a claim or its component integers and/or by failing to respond to a substantial, clearly articulated argument.
Particulars
A. The Applicant claimed that a reason for his purported non-compliance with his visa conditions was his emotional state following the news of his mother’s illness. The Tribunal addressed itself to a much narrower claim, being the Applicant’s having suffered from depression, and, in the absence of medical evidence, “place[d] no weight” on that narrower claim.
B. The Applicant claimed a reason for his purported non-compliance with his visa conditions was following advice given by a previous migration agent. The Tribunal failed to consider that claim in the necessary sense.
Counsel for the Applicant submits that this ground falls within the principles established in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at
[24]-[25].
Counsel for the Applicant relies on extracts from the decision in MZZQI v Minister for Immigration & Anor [2015] FCCA 2177 at [35], in which Whelan J quoted the following summary by Flick J of relevant authorities in WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; (2013) 140 ALD 612 at 615, [12]-[13]:
12. In considering whether or not a claim or a part of a claim has been taken into account and resolved, it is “the reality, and not the appearances, which matters”: cf. Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 595 per Kirby J. A requirement, whether imposed by common law or by statute, to consider a claim involves a decision-maker to engage in “an active intellectual process directed at that representation or submission”: Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ. See also: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, 147 FCR 51. Both Madgwick and Hill JJ endorsed the formulation of Black CJ in Tickner that “an active intellectual process” was required: [2005] FCAFC 134 at [46] per Hill J; see also [2005] FCAFC 134 at [212] per Madgwick J.
13 A conclusion that a decision-maker has failed to consider a claim or part of a claim is a conclusion to be reached by reference to the reasons for decision. It may be that some reservation should be exercised before such a conclusion is reached where the reasons that have been provided are “otherwise comprehensive”: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184. Again in the context of reviewing a decision of the Refugee Review Tribunal, French, Sackville and Hely JJ there observed:
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
These observations have since been applied in respect to a review undertaken by an Independent Merits Reviewer: SZQLS v Minister for Immigration and Citizenship [2012] FCA 1274 at [14] to [15] per Logan J.
The Applicant’s claim regarding his emotional state
The Applicant submits that his first claim, or integer of claim, arises from the following. Firstly, in his initial response to the delegate, the Applicant stated the following (CB 34-35):
During this time [when the Applicant commenced his Certificate IV in Business at the Holmesglen Institute], I was not able to concentrate on my studies because my mother got seriously ill and she was admitted in a hospital in India... I was stressed and because of her illness I was not even able to sit in the exams...
After my mother's death, I was in a great stress and depression...
…I was much [sic] stressed and was unable to understand anything.
The Applicant relies on the evidence given at by him at the Tribunal hearing that, following news of his mother’s illness, he stated:[2]
a)“I used to just spend time in my room”;[3]
b)“Because I was lost, I was lost at the time, I did not know what to do, I didn't feel like going out”; [4] and
c)“…I was not able to concentrate naturally”.[5]
[2] The Affidavit of Carina Ford filed on 6 September 2017, Annexure CF-1.
[3] Ibid Annexure CF-1, 15.
[4] Ibid.
[5] Ibid Annexure CF-1, 16.
The Applicant submits that the Tribunal’s reasoning in addressing the Applicant’s claim failed to understand that his claim concerned his emotional state (being emotionally unstable or emotionally distressed) in general, following the news of the illness (and later, the death) of his mother, and not just his depression.
The Applicant argues that this failure to address the his claim is evident in the Tribunal’s decision record (CB 94 at [41]):
41. The applicant did not discuss his difficulties [following the news of his mother’s illness] with his education provider, a counsellor or a medical practitioner. He said he just stayed at home. While the Tribunal accepts that news of his mother’s illness may have caused the applicant to have difficulty focussing on his study, he did not provide any medical evidence to support his claim that he was suffering from depression. The Tribunal also notes that the applicant did not ask to defer his course for compassionate reasons. In the absence of supporting evidence, the Tribunal therefore places no weight on the claim that the applicant was suffering from depression.
Counsel for the Applicant claims that the Tribunal’s reasoning treated the Applicant’s claim as if he claimed that he suffered from clinically diagnosable depression, for which he provided no supporting medical evidence.
Counsel for the Minister submits that, having regard to the Applicant’s initial response to the delegate, it was open to the Tribunal to interpret the Applicant’s claim as one that he was suffering depression and that the depression debilitated his ability to attend the course and to complete the course.
Furthermore, Counsel for the Minister referred to the Tribunal’s statement that (CB 94 at [44]-[45]):
44. If he was having difficulty in the Certificate IV in Business, it was open to him to seek counselling and/or study assistance from his education provider, but he did not do so… He did not contact the Department to discuss his circumstances and ask if he was permitted to change to a different course. The Tribunal does not accept that the breach of condition 8516 occurred in circumstances which were beyond the applicant’s control.
45. …The Tribunal sympathises with the applicant’s family circumstances, however, the applicant was required to remain involved in a course suitable for a 573 visa and he did not do so.
Consideration
I reject the Applicant’s submission that he made a claim about his emotional state separate to his claim that he suffered from depression.
In his response to the delegate, the Applicant clearly articulated his claim that he suffered from depression. The Applicant’s reliance on the evidence he gave at the Tribunal hearing needs to be considered in context.
The evidence given by the Applicant at the Tribunal hearing was in response to questions from the Tribunal Member about whether he had told anyone in authority that he was having problems with his studies because of his concerns about his mother’s ill health, and why, if he could not study in Australia as his family wanted him to, he did not return to India. His responses were not, in my opinion, separate claims about his emotional state, but were in reality, evidence about the symptoms of his claimed depression. It is relevant to note that preceding this questioning by the Tribunal Member, the Applicant had given evidence to the Tribunal that he “was in severe depression”.[6]
[6] Ibid Annexure CF-1, 12.
I reject the Applicant’s claim that the Tribunal treated his claim as being that he had clinically diagnosed depression.
The Tribunal considered a number of factors in assessing the Applicant’s claim regarding his reasons for his failure to study. The Tribunal noted that the Applicant did not discuss the situation with his education provider, nor with the Department of Border Protection for assistance, and failed to provide medical evidence or other supporting evidence regarding his condition.
Accordingly, I am satisfied that the Tribunal understood the Applicant’s claim, and genuinely and actively considered his claim.
Consequently, I do not find that jurisdictional error arose on this part of ground two.
Claim that the Applicant received poor advice from former migration agent.
With respect to the Applicant’s claim that he received poor advice from his former migration agent, the Applicant notes that the Tribunal recited his claim as follows (CB 91-93 at [18], [24], [28]):
18. He said:
…
h. The agent said he should cancel his enrolment in the business courses and enrol elsewhere. The agent said the Department would not find out. The applicant clearly told the agent that he did not want to break any laws. The agent said he could change education providers and apply for a Subclass 572 visa. The applicant agreed to do so on the basis that the agent said it was legal.
…
24. Asked why his visa should not be cancelled, the applicant said he did not deliberately break any immigration laws. He followed his agent’s advice and applied for a 572 visa and thought he was doing the right thing…
…
28. The Tribunal asked the applicant if there was anything else he wanted to say before the end of the hearing. He said he was misguided by his previous agent, which is why he broke the rules.
Counsel for the Applicant submitted that while the Tribunal identified the Applicant’s claim that he received poor advice from his former migration agent, it failed to give genuine consideration to his claim in considering whether to exercise its discretion, and in the course of evaluating the Applicant’s claim. Counsel for the Applicant submitted that this failure by the Tribunal in evaluating the Applicant’s claim, together with its statement at the penultimate paragraph of the decision record that “[t]here are no other relevant matters to be considered” (CB 95 at [46]), permits an inference that the Tribunal failed to address this claim.
The Minister submits that the Applicant’s claim regarding his former migration agent was noted at [18(h)] of the Tribunal’s decision record in some detail, and that the Tribunal touched on this point where the Tribunal said (CB 92-93 at [24], [28]):
24. Asked why his visa should not be cancelled, the applicant said he did not deliberately break any immigration laws. He followed his agent’s advice and applied for a 572 visa and thought he was doing the right thing. He did not want to do anything to cause himself problems and he was still new in Australia. He is only 21 years of age and has to think of his future.
…
28. The Tribunal asked the applicant if there was anything else he wanted to say before the end of the hearing. He said he was misguided by his previous agent, which is why he broke the rules.
Counsel for the Minister submitted that the Tribunal’s identification of the Applicant’s claim underpinned its later reasoning that (CB 94 at [42]):
42. The applicant was required to comply with condition 8516 of his Subclass 573 visa. The Tribunal accepts that he was young when he arrived in Australia, however, it is the applicant’s responsibility to ensure that he understands the conditions attached to his visa and to ensure that he complies with those conditions while holding the visa.
Counsel for the Minister submits that, in other words, the Tribunal is stating that it was the Applicant’s responsibility to ensure that he complied with condition 8516, and not by implication, anybody else, including a migration agent.
Consideration
I agree with the Minister’s submissions. The Tribunal identified the Applicant’s claim regarding the poor advice that he received from his former migration agent, in detail. In my opinion, the Tribunal’s reasoning at [42] of the Tribunal’s decision record is responsive to the Applicant’s claim that he was young, and relied on the advice of others. The Tribunal simply found that it was the Applicant’s responsibility to ensure that he complied with his visa conditions.
Accordingly, I am not satisfied that jurisdictional error arises from this part of ground two of the application for judicial review.
Conclusion
For the reasons set out in this judgment, I will issue a writ of certiorari and a writ of mandamus. Orders will be made that the Minister pay the Applicant’s costs in a fixed amount.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 6 April 2018
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