Sandhu v Minister for Immigration
[2020] FCCA 1158
•20 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDHU v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1158 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa – Visa cancellation – decision of Administrative Appeals Tribunal – whether Tribunal properly considered evidence and Visa criteria – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 476 Migration Regulations 1994 (Cth), reg.1.40A, cls.573.223(1A), 573.231 of sch.2, condition 8516 of sch.8 |
| Cases cited: Ravinder v Minister for Immigration & Anor [2018] FCCA 803 Singh v Minister for Immigration [2018] FCA 29 Singh v Minister for Immigration and Border Protection [2016] FCA 611 |
| Applicant: | AMNINDER SINGH SANDHU |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2114 of 2015 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 18 June 2018 |
| Date of Last Submission: | 18 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 May 2020 |
REPRESENTATION
| The Applicant: | In person with the assistance of an interpreter |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 15 September 2015 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2114 of 2015
| AMNINDER SINGH SANDHU |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application filed on 15 September 2015 (Judicial Review Application), the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 19 August 2015.
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister), dated 12 January 2015, to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa (Visa).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). To obtain relief from this Court, the Applicant must show jurisdictional error in the Tribunal’s decision.
Background
The Court had before it a Court Book numbering 74 pages. The Court has reviewed the material contained in the Court Book in detail.
The Court notes that the Minister’s written submissions filed on 1 June 2018 (Minister’s Submissions) at [4]-[10] accurately summarise the factual history of this matter. The Court adopts those submissions, with minor amendments, as its own. They provide, relevantly, as follows.
On 11 February 2013, the Applicant was granted the Visa[1].
[1] Court Book (CB) 17.
On 24 October 2014, a delegate of the Minister sent the Applicant a Notice of Intention to Consider Cancellation of the Applicant’s Visa (NOICC)[2].
[2] CB 3-7.
The NOICC informed the Applicant, among other things, that there appeared to be grounds for cancellation of his Visa under s.116(1)(b) of the Act, as evidence before the Delegate indicated that the Applicant was not enrolled in a bachelor’s degree, master’s degree, or a principal course of a type specified for the Visa by the Minister in an instrument made under reg.1.40A of the Migration Regulations 1994 (Cth) (Regulations). The NOICC indicated that as a result, the Applicant did not meet the criteria for the grant of the Visa under cl.573.223(1A) or cl.573.231 of sch.2 of the Regulations and therefore the Applicant had not complied with condition 8516 of his Visa[3].
[3] CB 5.
The NOICC sought a response from the Applicant within five working days of the date he was taken to have received the NOICC.
The Applicant did not respond to the NOICC[4].
[4] CB 18.
On 12 January 2015, the Delegate decided to cancel the Visa under s.116(1)(b) of the Act on the ground that the Applicant no longer met the criteria for the grant of the Visa under cl.573.223(1A) or cl.573.231 of sch.2 of the Regulations and had therefore not complied with condition 8516. The Delegate was satisfied that the reasons for cancelling the Visa outweighed the reasons for not cancelling the Visa[5] (Delegate’s Decision).
[5] CB 15-19.
On 19 January 2015, the Applicant applied to the then named Migration Review Tribunal (now the Tribunal) for review of the Delegate’s Decision[6].
[6] CB 20-21.
On 28 May 2015, the Applicant was invited to attend a hearing before the Tribunal on 19 August 2015 (Tribunal Hearing)[7]. The Applicant attended the Tribunal Hearing with the assistance of a Punjabi interpreter[8]. Both the Applicant and his brother gave evidence to the Tribunal[9].
[7] CB 26-28.
[8] CB 49-52.
[9] CB 49; 60 at [3].
At the Tribunal Hearing the Applicant gave evidence that he came to Australia to study a Masters of Information of Technology at the University of Ballarat, but “flunked” his examinations in the first semester and withdrew from the course in August 2013[10]. The Applicant claimed that:
a)He subsequently enrolled in Certificates III and IV in Commercial Cookery and a Diploma of Hospitality on the advice of a migration agent[11]. He claimed that another migration agent enrolled him in a Certificate IV and a Diploma and Advanced Diploma of Business upon receipt of the NOICC, on the mistaken belief that he did not hold a certificate of enrolment[12].
b)The agent said he would respond to the NOICC but did not[13]. The same agent was also claimed to have filed an application for a Student (Temporary) (Class TU) (Subclass 572 – Vocational Education and Training Sector) visa on behalf of the Applicant after the Visa was cancelled, which was refused by a delegate of the First Respondent[14]. The Applicant said that he had not reported either migration agent to the Migration Agents Registration Authority[15].
c)Cancellation of the Visa would cause his family financial hardship and mental stress, and that he would struggle to get admission to university in India[16]. The Applicant told the Tribunal that if his Visa was not cancelled he would re-enrol in the Masters of IT, which his brother was presently studying and achieving excellent results; and that his brother would assist him with his studies[17].
[10] CB 61 at [10].
[11] (CB 61 [11]; 62 [19].
[12] CB 61 at [11]; 63 at [20].
[13] CB 63 at [20].
[14] CB 63 at [20].
[15] CB 63 at [21].
[16] CB 64 at [27].
[17] CB 65 at [34].
The Tribunal’s Decision
The Tribunal’s decision appears at pages 59 to 65 of the Court Book (Tribunal’s Decision). The Minister’s Submissions at [11]-[16] accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
On 19 August 2015, the Tribunal affirmed the Delegate’s Decision[18]. The Tribunal found that in August 2013 the Applicant ceased to be enrolled in an eligible course and that he did not have such an enrolment afterwards[19]. The Tribunal found that the Applicant consequently ceased to satisfy cls.573.231 or 573.223(1A) of sch.2 of the Regulations, and so failed to comply with condition 8516 of his Visa[20]. The Tribunal was therefore satisfied that, pursuant to s.116(1)(b) of the Act, the ground for cancellation of the Visa existed[21].
[18] CB 59-65.
[19] CB 62 at [13].
[20] CB 62 at [14].
[21] CB 62 at [15].
The Tribunal then proceeded to consider matters relevant to the exercise of the discretionary power to cancel the Applicant’s Visa. In doing so, it had regard to matters identified in the Minister’s Department’s Procedures Advice Manual[22].
[22] CB 62 at [16].
The Tribunal found that the Applicant’s failure to remain enrolled in an eligible course was within his control[23]. The Tribunal took into account the Applicant’s claims that he had received poor advice from migration agents[24] but was not satisfied on the evidence before it that the Applicant had been misadvised or that his second migration agent had failed to respond to the NOICC[25].
[23] CB 62 at [18]; 63 at [24].
[24] CB 62-63 at [19]-[21].
[25] CB 63 at [22].
The Tribunal took into account that the Applicant was in breach of condition 8516 for a substantial period of time and considered that the extent of the breach was a significant factor that favoured cancellation of the Visa[26]. The Tribunal also took into account the Applicant’s explanation for why he cancelled his course at the higher education level and enrolled in cookery courses. The Tribunal considered the Applicant’s willingness to stop studying at the master’s level and swap to low level courses in a totally unrelated field of cookery and hospitality indicated that he was attempting to use the Visa he was granted for a different purpose[27].
[26] CB 63 at [25].
[27] CB 63 at [26].
The Tribunal considered whether the Applicant or his family would suffer hardship as a result of the cancellation of the Visa, and found that the Applicant already had a bachelor degree which he could use to gain admission to university in India or find employment in the IT sector in India[28]. The Tribunal accepted that the Applicant’s family would be disappointed, but did not accept that would cause them substantial mental stress or hardship[29].
[28] CB 64 at [27].
[29] CB 64 at [27].
The Tribunal took into account that the Applicant had successfully completed a number of units in commercial cookery, but gave it only limited weight in his favour[30]. The Tribunal considered and gave some weight to the Applicant’s evidence that if his Visa was not cancelled he would seek to enrol again in a Masters of IT with the assistance of his brother[31], but concluded, considering the Applicant’s circumstances as a whole, that the Visa should be cancelled[32].
[30] CB 65 at [33].
[31] CB 65 at [34].
[32] CB 65 at [35].
Proceedings before the Court
The Applicant’s Judicial Review Application contains one ground of review as follows:
The Tribunal did not consider my evidence which I provided to grant my Visa, as I request them to continue my study on same course and same visa subclass in which I got my visa previously.
By Orders of a Registrar of this Court, dated 17 February 2016, the Applicant was given an opportunity to file an amended application, any affidavits and written submissions. Despite this, the Applicant filed no material and his sole ground of review remains unparticularised.
The Applicant appeared before the Court without legal representation and with the assistance of an interpreter. The Court notes that the Applicant advised the Court during the hearing that he did not require the interpreter to translate everything for him. The Applicant relied on the interpreter when required. The Court is satisfied that the Applicant was able to effectively participate in the proceedings.
At the hearing, the Applicant said that it was “misguidance” by his migration agent (the Court notes that the Applicant had two migration agents) that caused him to change his course. He indicated that he knew he made a mistake but he would like to continue with his studies to help his family and therefore he would like the Court to provide him with a Visa to do so.
As indicated to the Applicant at the hearing, this Court does not have the ability to review the merits of the Tribunal’s Decision. It can only look at whether there is jurisdictional error in the Tribunal’s Decision. Nor can this Court grant the Applicant the visa that he seeks.
As for the comments about his migration agent made at the hearing, the Tribunal expressly addressed these same concerns and found that no migration agent had “misadvised” the Applicant as he claims. It cannot be said that there has been any fraud on the Tribunal. Further, the Tribunal was not satisfied that the Applicant was misled by his migration agents, as there was no evidence to support his claims and the Applicant had not made a complaint or sought further advice in relation to his agents’ conduct[33]. It was open to the Tribunal to make these findings and no jurisdictional error arises.
Consideration
[33] CB 62-63 at [19]-[24].
Judicial Review Application
The Applicant’s sole ground of review appears to suggest that the Tribunal failed to consider the Applicant’s evidence that he would re‑enrol in the Masters of IT.
The Tribunal, when considering “Any other matters raised by the visa holder”, stated as follows[34]:
The applicant told the Tribunal that if his visa was not cancelled he would seek to enrol again in the Masters of IT. He said that his brother was studying this course and achieving excellent results and was being employed as mentor at Federation University. He said his brother would help him with his studies. The applicant’s brother told the Tribunal that he would take full responsibility for him and they would not make the same mistake as before. The Tribunal has taken these matters into account and it accepts from the submitted results statement that the brother has achieved excellent grades for the course and is being employed there and that he would be a useful resource and aid for the applicant. The Tribunal has given this factor some weight that supports not cancelling the visa.
[34] CB 65 at [34].
It is apparent that when considering whether to exercise the discretion not to cancel the Visa, the Tribunal took into account the Applicant’s evidence that, with the support of his brother, he would re-enrol in the Masters of IT. The Tribunal found that this weighed in favour of the Visa not being cancelled. Therefore, the Tribunal clearly considered this evidence.
The Tribunal considered the evidence the Applicant suggests was overlooked, in addition to the other matters that it had regard to. When assessed as a whole, the Tribunal was not satisfied that the Visa should not be cancelled. Notwithstanding that some factors were seen to favour the Applicant, given the “significant” extent of the breach[35], the Tribunal found other matters supported the cancellation of the Visa. Ultimately, it was a matter for the discretion of the Tribunal to determine what weight it would give these matters overall, and it was open to the Tribunal to find as it did.
[35] CB 63 at [25].
Finally, to the extent that the Applicant may be suggesting that the Applicant requested that the Tribunal adjourn the matter or defer making its decision to allow him to re-enrol in the master’s degree, the Court is not satisfied that any jurisdictional error can be established.
The context in which the Applicant appears to have raised his re‑enrolment was when the Tribunal was discussing whether it should exercise the discretion not to grant the Visa. The Tribunal specifically records that “The applicant told the Tribunal that if his visa was not cancelled he would seek to enrol again in the Masters of IT”[36] (emphasis added). The way in which the Tribunal has recorded the Applicant’s evidence is that the Applicant intended to enrol if his Visa was not cancelled, not that he would do so to prevent his Visa being cancelled. In the absence of a transcript to suggest that the Applicant requested an adjournment, the Court is not prepared to infer that one was requested.
[36] CB 65 at [34].
The Tribunal considered the Applicant’s evidence that he would enrol in the master’s course if his Visa was not cancelled. The Tribunal considered this (favourably) to the Applicant, however it was simply not enough to warrant the Tribunal exercising the discretion not to cancel the Visa.
The Applicant’s sole ground of review is dismissed.
Otherwise
The Minister, in its role as a model litigant, noted that the Tribunal’s reasoning at [13]-[14] may be open to some criticism. Those passages provide as follows:
13. The evidence before the Tribunal shows that at the time of the delegate’s decision, the applicant was no longer enrolled in a bachelor’s degree or master’s degree and he was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under r.1.40A. The evidence before the Tribunal shows that in August 2013 the applicant ceased to be enrolled in a bachelor’s degree or master’s degree by coursework or a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and that he did not have such an enrolment (or an offer of enrolment) afterwards.
14. The requirement in condition 8516 is for a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. Given the applicant was not enrolled in a bachelor’s degree or master’s degree by coursework or a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and was not the subject of a current enrolment in such a course, he ceased to be an eligible higher degree student and he did not continue to satisfy subclauses 573.231 or 573.223(1A) and he thus failed to comply with condition 8516.
There is no dispute in this case that the Applicant was not an “eligible higher degree student” as he was not enrolled in a bachelor’s or master’s degree course. The issue is whether the Tribunal proceeded on an “assumption” that the Diploma of Hospitality (which the Applicant indicated to the Tribunal that he was enrolled in[37]) did not satisfy the cl.573.231 which, relevantly, provides as follows:
[37] CB 64 at [11].
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.
The Minister referred the Court to three cases: Singh v Minister for Immigration and Border Protection [2016] FCA 611; Shrestha v Minister for Immigration & Anor [2017] FCCA 1875 and Ravinder v Minister for Immigration & Anor [2018] FCCA 803 (Ravinder). The substantive point to take from these cases was that there was evidence before the Tribunal that indicated that the applicants in those matters were enrolled in a diploma or an advanced diploma level course. It was found that (or it was reasonably arguable that) the Tribunal had failed to engage with, or outline its reasoning, whether the courses fell within cl.573.231 of sch.2 of the Regulations.
Accepting that the Tribunal’s reasons must be read as a whole and without an eye attuned to error, the Tribunal clearly acknowledged cl.573.231 was distinct and:
a)Summarised cl.573.231 and noted that it was applicable if “cl.573.223(1A) does not apply”[38];
b)Referred to the requirements of cls.573.223(1A) and 573.231 disjunctively throughout its consideration (implying that it was aware they were a separate consideration)[39]. The Tribunal used the connectors “and” and “or” to clearly separate the two considerations; and
c)Made express reference to the “primary and secondary criteria”[40].
[38] CB 60 at [7].
[39] CB 65 at [13]-[14].
[40] CB 65 at [14].
In Ravinder, there was before the Tribunal evidence that the Applicant was enrolled in a diploma. The Tribunal’s reasoning for finding that a ground for cancellation existed was as follows[41]:
[…]
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.
[…]
[41] Ravinder at [28].
The Tribunal was found to have fallen into jurisdictional error because:
65[…] 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.
66[…] 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.[42]
[42] Ravinder, at [65]-[66].
The Tribunal’s reasoning in this matter is somewhat similar to that in Ravinder above. That is, the Tribunal did not refer to the Diploma of Hospitality nor identify the relevant instrument applicable. However, the critical distinction was that the Applicant was not “still enrolled” as was the case in Ravinder.
Notwithstanding that the Tribunal had before it a Confirmation of Enrolment in a Diploma of Hospitality (dated 2 October 2013)[43], indicating that the course end date of the Diploma of Hospitality was August 2015 and the Tribunal made no express finding that the Applicant was no longer enrolled in the course, this must be considered in the context of the materials that were before the Tribunal. Relevantly, the evidence was that the Applicant was not enrolled in any course of study[44], and that the Applicant’s enrolment in the Diploma of Hospitality was cancelled on 18 February 2014 (which was prior to the Delegate’s Decision being made).
[43] CB 33-34.
[44] CB 24-25.
Read as a whole, the Court is satisfied that the Tribunal properly considered cl.573.231 of the Regulations. It could be suggested that the Tribunal assumed the Diploma of Hospitality did not meet cl.573.231 of the Regulations. However, in circumstances where it was plain on the materials that the Applicant did not hold the relevant enrolment at the time of the Delegate’s Decision and the Tribunal’s Decision and the Confirmation of Enrolment in the Diploma of Hospitality specifically indicated “Course Sector: VET”, the grounds for cancellation existed[45].
[45] Singh v Minister for Immigration [2018] FCA 29.
While the Tribunal did not expressly make a finding on whether the Diploma of Hospitality course met cl.573.231 of the Regulations or explain why that was the case, in the Court’s view the evidence was sufficiently clear before the Tribunal. Further, the Applicant advanced no case otherwise to dispute that the ground for cancellation did not exist. Therefore, it was not necessary for the Tribunal to provide any further reasoning on this point than it did.
No jurisdictional error arises from the additional issue the Minister raised as a model litigant.
Conclusion
The Judicial Review Application fails to identify any jurisdictional error.
The Court is otherwise not satisfied that any jurisdictional error arises.
The Judicial Review Application is to be dismissed.
In the Minister’s Submissions, the Minister sought costs in the sum of $5,500 in the event the Judicial Review Application was dismissed. It is noted that this sum is less than what would be awarded in accordance with pt.3 of sch.1, item 3 of the Federal Circuit Court Rules 2001 (Cth).
In those circumstances there will be a further order that the Applicant pay the First Respondent’s costs fixed in the sum of $5,500.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 20 May 2020
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