Rekha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1304

FEDERAL CIRCUIT COURT OF AUSTRALIA

Rekha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1304

File number(s):	SYG 2613 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	10 June 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – whether there was non-compliance with the Visa requirements – whether the Tribunal correctly identified that the applicant breached visa conditions – whether the Tribunal misconstrued the requirements of the applicant’s visa conditions – whether the Tribunal failed to comply with the requirements of subsection 359A(1) of the Act – no jurisdictional error found – amended application dismissed.
Legislation:	Migration Act1958 (Cth) ss 359A, 359A(4)(b), s 359AA, 359AA(b)(i), 359AA(b)(iii), 359(1)(b)(iv), 476.
Number of paragraphs:	25
Date of hearing:	10 June 2021
Place:	Sydney
Counsel for the applicant:	Mr R Chia
Solicitors for the applicant:	Ms J Icao, Jessie Icao Solicitors
Counsel for the respondent:	Mr G Johnson
Solicitors for the respondent:	Ms K Evans, Sparke Helmore
Table of Corrections
3 September 2021	Number of paragraphs in end-certification updated

ORDERS

SYG 2613 of 2017

BETWEEN:

JULIE REKHA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	10 JUNE 2021

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2.The amended application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision by the Administrative Appeals Tribunal (“the Tribunal”) made on 14 July 2017, affirming a decision of a delegate of the first respondent (“the delegate”) to cancel the applicant’s Student (Class TU) (subclass 573) visa (“the Visa”). 

2. On 7 March 2017, the applicant was sent a notice of intention to cancel the Visa, on the basis of breach of condition 8202, in circumstances where the Provider Registration and International Student Management System (“PRISMS’) record identified that the applicant had not been enrolled in a registered course of study since 17 August 2016. 

3. On 12 April 2017, the delegate determined that there had been a non-compliance with the condition of the visa. The delegate found  that the ground for cancellation had been made out and found, taking into account the PRISMS’s record, that the applicant had not been enrolled in a registered course of study since 17 August 2016.

4. The delegate found that the circumstances were such, that the visa should be cancelled.

   THE TRIBUNAL DECISION

5. On 5 May 2017, the applicant applied for review.  The applicant was invited by a letter dated 5 June 2017 to attend the hearing.  The applicant attended to give evidence and present arguments and was represented by a migration agent at the hearing.  A transcript of the hearing has also been tendered. 

6. The Tribunal received submissions from the applicant.  Those submissions expressly referred to the applicant’s enrolment in the Bachelor of Business degree at the Southern Cross University in 2015 and the problems that the applicant encountered in undertaking those subjects. The submissions referred to the fact that the applicant had been unable to continue her bachelor’s degree and had failed to enrol in a new course of study since August 2016. That information was provided by the applicant for the purpose of the application for review.

7. The Tribunal in its reasons identified the background to the review application. The Tribunal then turned to whether or not the applicant had breached condition 8202. The Tribunal found that the Delegates’ decision indicated that the applicant had not been enrolled in a registered course of study since 17 August 2016. That was information that the applicant gave for the purpose of the application for review within s 359A(4)(b) of the Act. The Tribunal found the applicant was not enrolled in a registered course of study and found that the applicant had not complied with the condition 8202. 

8. The Tribunal then turned to the issue of cancellation and expressly referred to the considerations under the Procedures Advice Manual 3 (“PAM 3”), which included the extent of compliance with visa conditions.  The Tribunal identified the applicant’s submissions and considered the circumstances in which she could not cope with her Bachelor of Business studies which commenced in 2015 and the problems that she said she encountered during this course.  The Tribunal also referred to the fact that the applicant had not complied with condition 8516.

9. The Tribunal identified that the applicant was in breach of condition 8516 since 17 August 2016, up until the cancellation of the visa, because she had ceased to be enrolled in the higher education sector course, being the Bachelor of Business.   The information that the applicant had not been enrolled in the Bachelor of Business since 17 August 2016, was information of a kind that had been provided to the Tribunal in the delegates’ decision and by the applicant’s submissions, which it was relevant for the Tribunal to take into account.

10. Accordingly, it was not new information of a kind enlivening any obligation under s 359A of the Act. It followed in the circumstances, that if the applicant was not enrolled in that higher education registered course of study in accordance with clause 8202, then the applicant was also in breach of condition 8516. The taking into account of the consequence of the applicant not being enrolled in the Bachelor of Business, by which she was not complying with condition 8516, is not information of a kind that engaged any obligation under s 359A of the Act. The consequence of not being enrolled was that there was a breach of condition 8516 and is not information of a kind that falls within s 359A of the Act.

11. Further, in any event, the Court finds that this was information that had been provided for the purpose of the review upon s 359A(4)(b) of the Act, both in the delegates’ decision of which was provided the Tribunal and in the submissions by the applicant to the Tribunal to which the Court has already referred. Accordingly, there was no obligation upon the Tribunal to comply with s 359A or s 359AA of the Act. It is, however, apparent that the Tribunal did comply with the requirements of s 359AA from the transcript on page 6 at [32], page7at [33], page 8 at [15-19], [30], page 9 at [4], [40] and page 11 at [23]. Mr Chia of Counsel, submitted that the Tribunal had failed to comply with ss 359AA (b)(i), (ii) and (iii) of the Act. The transcripts reveal that the Tribunal engaged in the exercise under s 359AA (b)(i) of the Act in relation to the information referrable to condition 8516 and the consequences of that information being relied upon.

12. It was not contended that there was any breach of s 359AA(a) of the Act.  There was compliance with (b)(i) on a fair reading of the transcript,  as the Tribunal member did endeavour to ensure that the applicant understood the information as to non-compliance within condition 8516 and its significance in terms of consequences of that information as a reason for affirming the review. The Tribunal in that regard said “there is another issue that I need to raise with you and this is a significant issue and it’s your obligation to under condition 8516. So essentially 8516 in combination with certain regulations requires you to be enrolled in a higher education sector’. The Tribunal read out the condition and said “that means you have to be enrolled in a higher education sector”. The Tribunal member explained that the breach “will be significantly adverse in the exercise of my discretion”.

13. The applicant on a fair reading of the transcript, was given an opportunity by invitation to comment or respond, which amounted to compliance with s 359AA(b)(ii) of the Act.

14. Further, on a fair reading, the applicant was advised that she could seek additional time to comment or respond. This is supported by the Tribunal saying at [8.30] “do you want to make submissions?”, the applicant responding “alright” to the seven days for an opportunity to respond and the Tribunal saying at [11.14] “you may want to make further submissions” and at [11.16]  “in writing if you wish or now if you prefer”. The applicant was given the opportunity to provide written submissions and that amounted to additional time to comment or respond to the information in compliance with s 359AA(b)(iii) of the Act. It was not contented that there was any breach of s 359(1)(b)(iv) of the Act, as the applicant was given the opportunity for additional time to comment or respond by the opportunity to put on written submissions. 

15. The Tribunal, in its reasons, after referring to the applicant’s circumstances, found that the visa should be cancelled and affirmed the delegates’ decision.

    THE GROUNDS

16. Mr Chia of counsel confirmed that he did not press Ground 3.  That was the proper position for Mr Chia to take, as it had no reasonable prospect of success. 

17. The Grounds in the amened application filed on 25 October 2017 are as follows:

    Ground 1

    1.The second respondent (Tribunal) failed to comply with the mandatory requirements of section 359A of the Migration Act 1958 (Act).

    Particulars

    The Tribunal failed to comply with the requirements of subsection 359A(1) of the Act in respect of information referred to as “PRISMS records” which, it considered, indicated the applicant had been in breach of condition 8516 to her Student (Class TU) (subclass 573) visa.

    Ground 2

    2.Further or in the alternative, the Tribunal misconstrued the requirements of the applicant’s visa conditions.

    Particulars

    The Tribunal misconstrued the requirements of condition 8516.

    GROUND 1

18. In relation to Ground 1, Mr Chia of Counsel for the applicant, contended that the non-compliance with condition 8516 engaged an obligation to comply with s 359A of the Act. That is the information on the PRISMS record, which the Tribunal considered indicated that the applicant was in breach of condition 8516. Not being enrolled in a higher education course was information provided by the applicant to the Tribunal, both through the delegate’s decision and in submissions. The Court does not accept in these circumstances that not being enrolled in the higher education course engaged any obligation under s 359A of the Act for the reasons the Court has already given.

19. The Court does not accept that the consequence of not being enrolled in the higher education sector, being in itself a breach of condition 8516, was information of a kind that was adverse and enlivened an obligation under s 359A of the Act. That is because it was a condition that the Tribunal was required to take into account, in terms of compliance with the PAM 3.

20. Further, it was merely a consequence of information for which there was no obligation under s 359A of the Act, as the information as to not being enrolled in the higher education sector course was provided by the applicant to the Tribunal for the purpose of the review within s 359A(4)(b) of the Act. It follows that there was no obligation to comply with the requirements of s 359A of the Act.

21. Further, for the reasons the Court has given in paragraph 11 to 13 above, the Court finds the Tribunal did, in fact, comply with requirements of s 359AA of the Act, in respect of the alleged non-compliance under subs 1(b)(i), (ii) and (iii).

22. In these circumstances, no jurisdiction error as alleged in Ground 1 is made out. 

    GROUND 2

23. In relation to Ground 2, Mr Chia contended that the Tribunal had misconstrued the requirements of the condition 8516, and that a current offer as to a course of enrolment would meet the requirements of condition 8516.  Mr Chia referred to the transcript in which there was a reference to the applicant having a letter of offer.  A difficulty which Mr Chia did not take issue with, was that it was not a registered course at the higher education level, but was for a Diploma in Business.  In those circumstances, even if there had been any misconstruction of the relevant provision, it could not possibly have given rise to a jurisdictional error.

24. In any event, the Court does not accept that there is any misconstruction as to the requirements of condition 8516 by the Tribunal.  The Court accepts the first respondent’s submissions that on the proper construction, the purpose of the condition is to ensure that the applicant remains in Australia for the same purpose for which the visa was granted which was, in this case, to undertake higher education studies.  The Tribunal was correct to find a breach of condition 8516.  No jurisdictional error as alleged in Ground 2 is made out.

25. Accordingly, the amended application must be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 June 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       22 September 2021