Sheng v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 840

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sheng v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 840

File number(s):

SYG 485 of 2020

Judgment of:

JUDGE KAUR - BAINS

Date of judgment:

6 September 2024

Catchwords:

MIGRATION – jurisdictional error – Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – cancellation decision on basis of  non- compliance with condition 8516 –  ceased to continue to be enrolled in bachelor’s degree – issue as to agent’s fault

Legislation:

Migration Act 1958 (Cth) ss 116, 476, 477

Migration Regulations 1994 (Cth) cl 573.231

Cases cited:

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

Sidhu v Minster for Immigration and Border Protection [2019] FCA 1504

Singh v Minister for Immigration and Border Protection [2016] FCA 679

SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

21

Date of hearing:

4 September 2024

Place:

Sydney

Counsel for the Applicant:

The Applicant appeared in person

Solicitor for the First Respondent:

Mr R Terrell of Australian Government Solicitor

Solicitor for the Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 485 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ZHIGUANG SHENG

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KAUR - BAINS
DATE OF ORDER:	6 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.

2.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Kaur-Bains

1. The Applicant is a citizen of China. On 29 April 2014, the Applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (visa). The visa grant notice provided that if the Applicant did not comply with the specific visa conditions stated in the notice, including condition 8516, there may be serious consequences including visa cancellation. Visa condition 8516 provided the holder of the visa “must continue to be a person who would satisfy the primary or secondary criteria, as the case requires for the grant of the visa”. Relevantly under cl 573.231 of the Migration Regulations 1994 (Cth) (Regulations), the Applicant, was required to continue to be enrolled in a bachelor’s degree.   

2. On 11 December 2017 the visa was cancelled by a delegate of the First Respondent (Minister) under s 116(1)(b) of the Migration Act 1958 (Cth) (Act). That section provided the Minister may cancel a visa if he or she was satisfied the holder of the visa had not complied with a condition of the visa. The delegate noted that according to the Provider Registration and International Student Management System (PRISMS), the Applicant had not commenced the bachelor’s degree on 31 March 2015 and his enrolment had been cancelled.

3. The decision to cancel the visa was affirmed by the Second Respondent (Tribunal) on

   
   

   30 January 2020. The Applicant now seeks judicial review of the Tribunal’s decision. This Court has jurisdiction to determine this matter pursuant to s 476 of the Act. The application for review has been brought within the time set out in s 477 of the Act.

   TRIBUNAL’S DECISION

4. The Applicant appeared before the Tribunal on 12 December 2019 represented by his registered migration agent, who presented arguments. The Tribunal noted that following the hearing the Applicant’s migration agent provided further submissions by email, which the Tribunal considered.

5. The Tribunal correctly identified the power to cancel the visa under to s 116(1)(b) of the Act. The Tribunal noted the Applicant had not been enrolled in a bachelor’s degree since

   
   

   31 March 2015. At the Tribunal hearing, the Applicant confirmed he held an enrolment in a Bachelor of Business upon his arrival in Australia. He said he was unable to proceed with his enrolment when he began to fail his English language course, such that he was not enrolled in a higher sector course of study after 4 February 2016. Given the aforesaid, the Tribunal was satisfied the Applicant had not complied with condition 8516 of the visa, being that he “continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa.”

6. The Tribunal then noted, given it was satisfied that a ground for cancellation under s 116(1)(b) of the Act existed, it was required to consider whether or not to exercise its discretion to cancel the Applicant’s visa. The Tribunal from [15] to [41] of its decision identified various factors it took into consideration in the exercise of its discretion, including that 2 days before the Tribunal hearing the Applicant enrolled in a higher education course as required by the visa. At [42] the Tribunal after considering the circumstances, decided to affirm the decision under review to cancel the Applicant’s visa.

   GROUNDS IN THE APPLICATION

7. In the Application filed 28 February 2020 only one ground was raised, being that the Tribunal “failed to consider the material circumstances of the applicant presented in this case and mistakenly made the decision.”

   PROCEEDING BEFORE THE COURT

8. The Applicant appeared before the Court at the hearing unrepresented. The Applicant was assisted by a Mandarin interpreter. The Applicant confirmed he was in possession of the Application for Review, the Court Book and the Minister’s Written Submissions. The Applicant confirmed the visa had been granted to him and he understood his visa had been cancelled owing to him not remaining enrolled in his bachelor’s degree.

9. I explained to the Applicant he needed to explain to me what the Tribunal “did wrong”, so I could consider whether the matter should be remitted to the Tribunal to reconsider. It was also explained to the Applicant that this Court could not engage in merits review or grant him a student visa.

   RELEVANT LAW

10. Relevantly, at the material time, the Act provided as follows:

    116      Power to cancel

    (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

    …

    CONSIDERATION

    Ground 1

11. The Applicant said the Grounds in the Application had been drafted by his migration agent. The Applicant did not understand the ground for review and could not elaborate.

12. In relation to Ground 1, the Minister relied on his written submissions, being the ground was wholly unparticularised and was liable to be dismissed upon that basis alone: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760. The Minister also said in any event, on a fair reading of the Tribunal’s decision, the Tribunal considered the material and evidence presented by the Applicant. The Minister submitted the Tribunal, having regard to the totality of the evidence, concluded the Applicant had breached condition 8516 in view of his failure to maintain enrolment in a higher education course.

13. I have carefully considered the Tribunal’s reasons for its decision. It is clear from [6] to [8] of its decision that the Tribunal correctly identified the correct question before it, being the power to cancel pursuant to s 116(1)(b) of the Act. The Tribunal was clearly aware it first needed to be satisfied the Applicant had not complied with a condition of the visa. The Tribunal referenced the Applicant had ceased to be enrolled in the bachelor’s degree since 31 March 2015 and the Applicant’s evidence at [5] of this judgment. The Tribunal’s reasons disclose that on being satisfied a ground for cancellation existed, it then had a discretionary power whether to cancel the visa under s 116(1)(b) of the Act. I accept the Tribunal looked at all the various factors the Applicant put before it and as a matter of discretion reasonably concluded the visa be cancelled.

14. I also note the Tribunal considered the Applicant’s re-enrolment 2 days prior to the Tribunal’s hearing in a higher education level course. The Tribunal correctly noted this was relevant to the exercise of discretion, rather than to its state of satisfaction, as to whether the Applicant had complied with the condition of the visa. It is clear that condition 8516 requires the visa holder remain enrolled at all times: Singh v Minister for Immigration and Border Protection [2016] FCA 679 (Buchanan J) at [37] –[38]; Sidhu v Minster for Immigration and Border Protection [2019] FCA 1504 (Anastasiou J) at [37]; Rekha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 956; 181 ALD 90 (Perram J) at [27]. The Tribunal correctly considered the Applicant’s re-enrolment as being relevant to the exercise of its discretion, which it considered.

15. No jurisdictional error is disclosed by Ground 1.

    Additional Ground Raised at Proceedings before this Court – Unfair as Agent’s Fault

16. At the hearing the Applicant said the Tribunal’s decision to cancel the visa was unfair because it was not caused by him. Rather, it was caused by his migration agent who told him he could change to a different education provider with no risk being involved to his visa status. The Applicant said when the Department sent a letter requesting him to reply as to why the visa should not be cancelled, his agent was on holiday in the Gold Coast. Upon the agent’s return, the Applicant’s visa had been cancelled.

17. The Applicant said he had engaged a new migration agent and he had informed the migration agent as to what happened with the previous agent. The Applicant said he was told that what had occurred with the previous migration agent was “meaningless.” Further, the Applicant said he had consulted many lawyers who had all said there were limited prospects of him succeeding in relation to his first migration agent’s conduct.

18. Given the Applicant was unrepresented, I informed the Minister the fairest approach was to examine this additional ground as a ground of review. The Minister did not oppose that course. The Minister submitted that although there is well established precedent concerning fraud on the part of a migration agent, which gives rise to jurisdictional error, this is distinct from mere incompetence or negligence. The Minister concluded his submissions by stating the migration agent’s conduct amounted to at most incompetence, as distinct from fraud, that could have affected the Tribunal in dispensing with its decision-making process.

19. There is no evidence before this Court to support a finding of fraudulent conduct by the agent, which caused the Applicant to change his study course, resulting in non-compliance with the relevant visa condition. As the Full Court said in SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 (Perram, Robertson and Griffiths JJ) at [52]:

    It is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention. In Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, the Full Court (Tamberlin, Finn and Dowsett JJ) emphasised the necessity of demonstrating that an agent’s fraud in dealing with a visa applicant has resulted directly in a fraud on the Tribunal in discharging its decision-making functions.

20. No jurisdictional error is disclosed in relation to this ground as the agent’s conduct has not been proven to be fraudulent. In any event, the agent’s conduct cannot be seen to affect the Tribunal’s Part 5 decision making process.

    CONCLUSION

21. For the above reasons the application is dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur - Bains.

Associate:

Dated:       6 September 2024