Sachin v Minister for Immigration
[2016] FCCA 2815
•21 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SACHIN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2815 |
| Catchwords: MIGRATION – Review of former Migration Review Tribunal decision – cancellation of a higher education visa – whether the Tribunal overlooked an integer of the applicant’s claims or took account of an irrelevant consideration considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.116 Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | SACHIN SACHIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1268 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner of Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | Mr K Eskerie of Sparke Helmore |
ORDERS
The application as amended on 24 June 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1268 of 2015
| SACHIN SACHIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Mr Sachin) seeks judicial review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 16 April 2015. The Tribunal affirmed a decision of a delegate of the Minister to cancel Mr Sachin’s subclass 573 Higher Education Sector visa. Mr Sachin is aggrieved by the Tribunal decision because he considers that the Tribunal improperly placed weight on an issue of non compliance enlivening the Tribunal’s discretion to cancel the visa and because the Tribunal failed to make any finding on issues raised by Mr Sachin concerning his former migration agent.
The following statement of background facts is derived from the submissions of the parties.
Mr Sachin was born on 15 August 1994 in India and is a citizen of that country[1].
[1] Court Book (CB) 1
On 11 August 2013, Mr Sachin applied for a student visa sub class 573[2].
[2] CB 1
On 21 December 2013, that visa was granted[3].
[3] CB 41
On 24 October 2014, a delegate of the Minister (delegate) sent Mr Sachin a Notice of Intention to Consider Cancellation of Mr Sachin’s Higher Education Sector (subclass 573) visa by reason of his non compliance with condition 8516 of clause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[4]. Mr Sachin provided a response to the delegate on 28 October 2014[5]. On 8 January 2015, the delegate decided to cancel Mr Sachin’s visa on the basis that Mr Sachin had breached condition 8516[6]. On 12 January 2015, Mr Sachin applied to the Tribunal for review of the delegate’s decision[7]. On 16 April 2015, following a hearing on the same day[8], the Tribunal affirmed the decision under review[9].
[4] CB 48-52
[5] CB 53
[6] CB 54-68
[7] CB 69-70
[8] CB 87
[9] CB 91-99
Relevant legislation
Pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act), the Minister may cancel a visa if he is satisfied that its holder has not complied with a condition of the visa. At the relevant time, clause 573.231 of Schedule 2 provided the following criteria to be satisfied at the time of the decision for the grant of a subclass 573 visa[10]:
[10] See rule 1.40A of the Regulations and Legislative Instrument 14/015
(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.
At the relevant time, clause 573.611 of Schedule 2 of the Regulations provided the conditions to be satisfied “if the applicant satisfies the primary criteria,” including condition 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.
Further, the definition of “eligible higher degree student” provided in part that[11]:
(a) the applicant is enrolled in a principal course of study for the award of:
(ia) an advanced diploma in the higher education sector; or
(i) a bachelor’s degree; or
(ii) a masters degree by coursework;
[11] clause 573.111
Tribunal's decision
The Tribunal relevantly noted the following evidence:
a)on an unspecified date, Mr Sachin withdrew from his higher education course[12] and, on 1 August 2014, he applied for a subclass 572 student visa[13]. On 29 August 2014, Mr Sachin enrolled in a Diploma of Hospitality[14]. On 17 October 2014, a delegate of the Minister refused to grant the subclass 572 visa[15];
b)by letter dated 24 October 2014, the Minister’s Department sent the applicant a Notice of Intention to Consider Cancellation of the subclass 573 visa[16].
[12] CB 94, 98 at [4](c) and [14]
[13] CB 94 at [4](d)
[14] CB 95 at [6](e)
[15] CB 94 at [4](f)
[16] CB 95 at [6](f)
At the hearing, Mr Sachin agreed that he did not comply with condition 8516, but said “it was not his fault,” having been “misguided by the agent”[17]. Mr Sachin accepted that it was his decision to change to the hospitality course, but said he “accepted the agent’s advice”[18].
[17] CB 96 at [8](c)
[18] CB 96 at [8](e)
The Tribunal found that at the time of the delegate’s decision, Mr Sachin was not enrolled in a Bachelor’s degree or a Master’s degree, and was not enrolled in a principal course for a subclass 573 visa[19]. The Tribunal therefore found that Mr Sachin had not continued to be a person who would satisfy the primary criteria for a subclass 573 visa, as required by condition 8516[20]. Accordingly, the Tribunal was satisfied that the ground for cancellation in s.116(1)(b) of the Migration Act existed[21]. Noting that the ground did not require mandatory cancellation under s.116(3), the Tribunal proceeded to consider whether the power to cancel the visa should be exercised[22].
[19] CB 98 at [14]
[20] CB 98 at [15]
[21] CB 98 at [16]
[22] CB 98 at [16]
The Tribunal noted that there were no specified matters it needed to consider in the exercise of its discretion to cancel Mr Sachin’s visa[23]. Nevertheless, the Tribunal noted that it had had regard to the relevant circumstances including but not limited to the matters identified in the relevant policy[24].
[23] CB 98 at [17]
[24] CB 98 at [17] - PAM – General visa cancellation powers (ss.109, 116, 128, 134B and 140)
On the basis that Mr Sachin’s visa had been granted to enable study at a higher education level, the Tribunal considered that Mr Sachin’s failure to continue to be enrolled in a course at the appropriate level was a significant factor supporting cancellation[25].
[25] CB 98 at [18]
The Tribunal considered Mr Sachin’s evidence in relation to being misguided by his former agent, but found it “implausible that his agent in India told him that he must comply with the conditions of his visa and the applicant did not ask what those conditions [were]”[26]. Further, the Tribunal considered that[27]:
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,” and further that “he could have informed himself of his visa conditions … but he told the Tribunal that he did not do so.
[26] CB 98-99 at [20]-[22]
[27] CB 99 at [23]
The Tribunal found that the “applicant’s claimed ignorance of his visa conditions is not a reason not to cancel the visa,” and did not accept the “breach of condition 8516 occurred in circumstances which were beyond the applicant’s control”[28].
[28] CB 99 at [23]
The Tribunal made no findings about the alleged advice from Mr Sachin’s former agent[29].
[29] CB 99 at [24]
The Tribunal also considered Mr Sachin’s claims that he and his family would suffer hardship if his visa was cancelled and that he would now be unable to study in India[30]. However, considering Mr Sachin’s circumstances as a whole, the Tribunal found that Mr Sachin had breached condition 8516 and formed the view that Mr Sachin’s subclass 573 visa should be cancelled under s.116(1)(b) of the Migration Act[31]. As such, the Tribunal affirmed the decision under review[32].
[30] CB 99 at [24]-[25]
[31] CB 99 at [28]
[32] CB 99 at [29]
The present application
These proceedings began with a show cause application filed on 8 May 2015. Mr Sachin now relies upon an amended application filed on 24 June 2015. There are two grounds in that application:
1. The Tribunal failed to consider all integers of the applicant’s claim.
Particulars
a. The Applicant argued, inter alia, that he failed to meet the prescribed criteria due to the negligence of his agent, as per [6(e-h)] and [8(c)].
b. The Tribunal failed to consider this integer of the Applicant’s claim at [24]. “The Tribunal makes no findings about the alleged advice from the agent the applicant consulted in Australia.”
2. The Tribunal took account of an irrelevant consideration.
Particulars
When considering “consideration of Discretion” the Tribunal found [8] “the Tribunal considers his failure to continue to be enrolled in a course at the appropriate level as a significant factor that supports the cancellation of the visa”
This is not a relevant consideration in the exercise of the discretion as it is the reason for the cancellation being the step prior to the exercise of the discretion.
In addition to the court book filed on 12 June 2015, I have before me as evidence the affidavit of Mary Elinor Corkhill made on 22 June 2015, to which is annexed a transcript of the Tribunal hearing conducted on 18 May 2015. I also received as an exhibit an extract from the Policies and Procedures Manual (PAM)[33].
[33] Exhibit R1
Mr Sachin and the Minister both prepared pre-hearing submissions and made oral submissions through their representatives at the hearing before me on 2 November 2016.
Consideration
Ground 1 – did the Tribunal err in failing to make a finding concerning allegations against Mr Sachin’s former migration agent?
I accept the Minister’s submissions in relation to this ground.
By Ground 1 Mr Sachin contends that the Tribunal failed to consider the alleged negligence of Mr Sachin’s former migration agent in considering whether to cancel Mr Sachin’s visa. This claimed failure to consider an integer of Mr Sachin’s claims is framed in the written submissions as resulting from the Tribunal’s express statement that it “makes no findings about the alleged advice from the agent the applicant consulted in Australia”.
This contention, however, does not accord with a fair reading of the Tribunal’s decision. The Tribunal specifically considered Mr Sachin’s claims in relation to the alleged negligence of his agent as made in a statutory declaration dated 31 March 2015[34], and at the hearing[35]. In particular, the Tribunal considered these claims in relation to whether to exercise the power to cancel the visa pursuant to s.116(1)(b) of the Migration Act. Ultimately, the Tribunal found that it was Mr Sachin’s responsibility to ensure that he understood the relevant visa conditions; and it did not accept the “breach of condition 8516 occurred in circumstances which were beyond the applicant’s control”[36]. In light of these findings, it was not necessary for the Tribunal to make findings about the alleged advice from Mr Sachin’s agent[37].
[34] CB 81-83, see at [6](e)-(f)
[35] see at [8](c) and (e)
[36] at [23]
[37] WAEE v Minister for Immigration (2003) 236 FCR 593 at [47]
The position would have been different if Mr Sachin had raised an issue of agent fraud or if such an issue had squarely arisen from the available material. The circumstances presented to the Tribunal in this case, however, amounted to no more than asserted incompetence. The Tribunal at [24][38] declined to make findings concerning the advice alleged to have been given by the agent in circumstances where the Tribunal had invited Mr Sachin to make a formal complaint against the agent to the Office of the Migration Agents Registration Authority (OMARA). Mr Sachin was assisted by a new migration agent before the Tribunal who told the Tribunal that he would be assisting the Tribunal to lodge just such a complaint. As I read the Tribunal’s reasoning at [24] the Tribunal was simply declining to venture into territory best left to the OMARA. The Tribunal took into account the allegations made against the agent but, as has been pointed out above, the Tribunal did not consider those allegations provided a reason not to cancel Mr Sachin’s visa in circumstances where he made the decision to change courses and Mr Sachin did not seek any clarification from the Minister’s Department. That conclusion was open to the Tribunal on the material before it.
[38] CB 99
Ground 2 – did the Tribunal take into account an irrelevant consideration?
Mr Sachin’s second ground contends that the Tribunal took into account an irrelevant consideration in considering the Tribunal’s failure to be enrolled in an appropriate level course in the exercise of its discretion.
The Tribunal found at [18][39] under the heading “Consideration of Discretion”:
… the Tribunal considers his failure to continue to be enrolled in a course at the appropriate level as a significant factor that supports the cancellation of the visa.
[39] CB 98
Mr Sachin contends that such a finding is the reason for cancelling the visa and is therefore, not relevant to the exercise of the discretion to cancel, or not cancel Mr Sachin’s visa.
The Tribunal found that because he had not continued to be enrolled, Mr Sachin failed to meet the terms of condition 8516[40].
[40] CB 98 at [15]-[16]
The Tribunal then went on to again consider that jurisdictional fact in the exercise of the discretion[41].
[41] CB 98 at [18]
Mr Sachin submits that that jurisdictional fact was not a relevant consideration in the exercise of the discretion.
I prefer the Minister’s submissions on this ground.
Mr Sachin’s failure to be enrolled in a registered course caused him to breach clause 573.231 of his previous visa and that that gave rise to the power to consider whether to exercise the discretion to cancel Mr Sachin’s visa under s.116(1)(b) of the Migration Act. However, this does not render Mr Sachin’s failure to enrol in a course at an appropriate level an irrelevant consideration in respect of the Tribunal’s assessment of whether to exercise the discretion to cancel.
Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard[42]. Accordingly, for a matter to constitute an irrelevant consideration, the consideration must be one that, either expressly or by implication, a decision maker is forbidden or prohibited from taking into account[43]. There was no such prohibition in this case.
[42] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40
[43] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; SZTBJ v Minister for Immigration [2015] FCCA 580 at [95]
In the absence of any prohibition identified by Mr Sachin, and given the unconfined terms of the provision conferring the discretion, the Tribunal was entitled to take into account Mr Sachin’s enrolment when considering whether to exercise its discretion under s.116 of the Migration Act.
Indeed, the PAM used by the Tribunal – General visa cancellation powers[44] expressly provides that in considering the exercise of the discretion to cancel a visa, decision-makers should have regard to the circumstances in which the ground for cancellation arose. It is well-established that a decision-maker will generally apply policy unless there are cogent reasons not to do so[45]. Accordingly, the Tribunal’s consideration of the basis on which Mr Sachin’s visa was granted, and Mr Sachin’s subsequent failure to maintain appropriate enrolment, was relevant to the exercise of its discretion and, as such, the Tribunal’s consideration of that matter was open to it.
[44] Clauses 109, 116, 128, 134B and 140
[45] ReDrake and Minister for Immigration (No 2) (1979) 2 ALD 634 at 640 per Brennan J
Further, the factor enlivening the discretion to cancel the visa cannot be irrelevant to a consideration of the discretion to cancel. There will be cases where there will be nothing advanced to the Tribunal bearing upon its discretion apart from the non compliance enlivening the cancellation power. In such a case, the Tribunal would be entitled to cancel the visa based on the non compliance. Further, Exhibit R1 establishes the circumstances in which the ground for cancellation arose is relevant to the exercise of discretion. The PAM Guidelines invite decision makers to look for any extenuating circumstances but, on the other hand, the circumstances may be particularly grievous and may count in favour of cancellation. In the present case, it is clear from the Tribunal’s reasons at [18] that the Tribunal considered it relevant to its exercise of discretion that the applicant had failed to continue to be enrolled in a course at the appropriate level which plainly subverted the purpose for which the visa had been granted. The Tribunal was entitled to regard that as a “significant factor” although the Tribunal could have explained itself better.
Another matter
At [25] of its reasons the Tribunal said:
The applicant said he and his family will suffer hardship if his visa remains cancelled because his parents have provided him with financial support to study in Australia and they have many hopes for him. While the Tribunal accepts that the applicant’s family have made financial sacrifices for his study in Australia, the Tribunal
It is apparent that the Tribunal failed to complete the final sentence of that paragraph of its reasons, and that the omission is so obvious that it should have been picked up by a proof reader. Mr Sachin does not raise this flaw in his application and the Minister submits that no error of law is indicated as the Tribunal’s reasoning is sufficiently clear from what appears in the paragraph. It is unfortunate that the Tribunal’s reasoning is in this instance incomplete but as no complaint was raised about this paragraph by Mr Sachin in his application, and in view of authority that a failure to give reasons is not of itself a jurisdictional error, I will say no more about it.
Conclusion
Mr Sachin has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 21 November 2016
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