SHRESTHA v Minister for Immigration

[2015] FCCA 2454

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2454

Catchwords:
MIGRATION – Student visa – discretionary cancellation – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal made a decision which was irrational and unreasonable, took irrelevant considerations into account and erroneously applied a rebuttable presumption in favour of cancellation when it exercised its discretion to cancel the applicant’s visa.

Legislation:

Migration Act 1958 (Cth), ss.116, 415, 474

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Education Services for Overseas Students Act2000, ss.19, 20
Migration Regulations 1994, reg.2.43, cl.573.6 of sch.2, item 8202 of sch.8

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Applicant: KRISHA SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3068 of 2013

Judgment of: Judge Cameron

Hearing date: 3 September 2015

Date of Last Submission: 3 September 2015

Delivered at: Sydney

Delivered on: 11 September 2015

REPRESENTATION

Counsel for the Applicant: Mr J.R Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the First Respondent: Mr P.M Knowles

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3068 of 2013

KRISHA SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal who was granted a Student (Temporary) (Class TU) subclass 573 visa on 22 February 2012. On 7 November 2012 a delegate of the first respondent (“Minister”) cancelled the applicant’s visa pursuant to s.116 of the Migration Act 1958 (“Act”) on the basis that the applicant had failed to satisfy one of the conditions of her visa. The applicant subsequently applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. Amongst other conditions set out in cl.573.6, subclass 573 visas are subject to condition 8202 which is found in sch.8 to the Migration Regulations 1994 (“Regulations”). It relevantly provides:

   (1)The holder … must meet the requirements of subclauses (2) and (3).

   …

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i) section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)     standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

   …

2. At the relevant time, ss.19 and 20 of the Education Services for Overseas Students Act2000 (“ESOS Act”) relevantly provided:

   19          Giving information about accepted students

   …

   (2)A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.

   …

   20 Sending students notice of visa breaches

   (1) A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.

3. The consequences of breaching condition 8202 are set out in s.116 of the Act which at all material times has relevantly provided:

   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; …

   …

   (3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

4. At the time the delegate cancelled the applicant’s visa, the prescribed circumstances referred to in s.116(3) were found in reg.2.43 of the Regulations which relevantly provided:

   2.43 Grounds for cancellation of visa (Act, s 116)

   …

   (2)For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

   …

   (b)     in the case of a Student (Temporary) (Class TU) visa:

   …

   (ii)     that the Minister is satisfied that:

   (A) the visa holder has not complied with condition 8202; and

   (B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

5. By the time the Tribunal made its decision on the applicant’s review application, reg.2.43(2)(b) had been omitted and no prescribed circumstances under s.116(3) for Student (Temporary) (Class TU) visas applied to the applicant or to Student (Temporary) (Class TU) visas.

Background facts

Course progress

1. In November 2011 the applicant commenced studying a Bachelor of Information Technology (“IT”) at the University of Ballarat (“University”).  Information provided to the Minister’s Department (“Department”) by the University indicated that the University had written to the applicant:

   a)on 15 March 2012 advising her that her course progress was unsatisfactory and warning her that another unsatisfactory term would result in her being excluded from her course.  The applicant was advised that she needed to make an appointment with the academic coordinator to discuss an intervention strategy;

   b)on 10 July 2012 notifying her that she had not attained satisfactory course progress and was liable to be excluded from her course for two years.  The applicant was given seven working days to respond to the letter and to provide reasons why she should not be excluded.  She was also advised to contact her academic coordinator to discuss her options;

   c)on 6 August 2012 advising her that as a result of her failure to respond to the 10 July 2012 notification, she had been excluded from her course for a period of two years.  The applicant was advised that she could appeal the decision within twenty working days of receiving the letter; and

   d)on 6 September 2012 noting that she had failed to appeal her exclusion and confirming that she was excluded from her course for two years.  The applicant was advised that the University would report her exclusion to the Department.

2. On 18 September 2012 the University issued the applicant with a written notice under s.20 of the ESOS Act certifying that she had not achieved satisfactory course progress for the purposes of s.19 of the ESOS Act and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (“Certification”).

Cancellation

1. On 26 September 2012 the Department sent the applicant a Notice of Intention to Consider Cancellation (“NOICC”) of her visa pursuant to s.116 for breach of condition 8202 by reason of the Certification. In a statutory declaration dated 3 October 2012 and provided in response to the NOICC, the applicant claimed that:

   a)she had found her Bachelor of IT course very challenging and had had difficulties with the workload;

   b)in her first semester she had spoken to the University’s administration staff on a number of occasions about her difficulties with the four subjects she had been undertaking but had been told she had to complete those four subjects;

   c)at the end of the first semester she sat exams for two subjects but only passed one subject;

   d)in her second semester she undertook three subjects and only passed one;

   e)during the time she was studying at the University, she found out that her grandfather was ill and had later died.  Her grandfather’s illness and death had upset and distressed her and led to her not being able to concentrate on her studies;

   f)she had spoken to the University’s representatives about her difficulties but they had not helped or offered any possible solutions.  She had not been offered any intervention strategies and was not advised of any complaints handling or appeal processes.  She had been wrongly advised that she could not leave her course until the end of her second semester despite her request to do so early in her first semester; and

   g)she had enrolled in a Bachelor of Accounting with another education provider, a degree which suited her better than the IT course.

2. As already noted, on 7 November 2012 the delegate cancelled the applicant’s visa pursuant to s.116 of the Act. The delegate was not satisfied that the applicant had demonstrated that she had been affected by exceptional circumstances beyond her control which had affected her ability to meet condition 8202.

Tribunal proceedings

1. On 10 September 2013 the applicant’s representative provided to the Tribunal a psychologist’s report dated 10 September 2013.  The psychologist stated that the applicant showed signs of high levels of depression, anxiety and distress as a result of her grandfather’s death and violence within sections of her extended family.  The psychologist reported that those factors had resulted in the applicant having difficulties studying and concentrating, resulting in her failing several subjects.

2. At a Tribunal hearing held on 27 September and 4 November 2013 the applicant further stated:

   a)she had completed a Diploma of IT in Australia in June 2011;

   b)she had ceased attending her Bachelor of IT course in July 2012 and had enrolled in a Bachelor of Business (Accounting) course with another education provider which she then stopped a month later.  She had not studied since then because she had decided to take a break and had been awaiting the outcome of her review application;

   c)she had received all the notices sent to her by the University before the Certification was issued; and

   d)if her visa was cancelled she would not be able to achieve her dream of obtaining a university degree and would have difficulties facing her family if she returned to Nepal without one.

3. In submissions provided to the Tribunal on 30 September 2013 the applicant’s representative submitted although the University had correctly advised the applicant that she could only withdraw from her course after six months, that advice had been incomplete and had not addressed issues related to “subject carry over and penalties”.

The Tribunal’s decision and reasons

1. On the basis of the s.20 notice issued by the University the Tribunal found that the applicant had breached condition 8202(3) of her student visa. It went on to consider whether it should exercise its discretion to cancel the visa and concluded that the applicant’s circumstances did not outweigh the grounds for cancelling the visa. In that regard:

   a)the Tribunal accepted that the applicant had been adversely affected by the death of her grandfather and that she had suffered depression and anxiety as  a result.  It also accepted that she had been adversely affected by serious internal problems within her extended family.  However, the Tribunal found that the applicant had enrolled in her Bachelor of IT course after her grandfather’s death, which indicated that she had considered herself fit to enrol in the course despite her grandfather’s death.  It also found that her extended family problems could not have severely affected her course progress because, despite those problems, she had given evidence that she had passed her school-leaving exams with very good results while in Nepal in 2008 and had been able to complete a Diploma of IT in Australia in June 2011;

   b)the Tribunal did not accept the applicant’s claim that the University had failed to provide her with sufficient remedial, catch up or counselling assistance, to provide her warnings in a timely manner and had failed to offer her a right to appeal.  It found that the applicant’s evidence and evidence from the University indicated that the applicant had been offered such help and that help had been provided to her.  The Tribunal also did not accept that the University had not provided the applicant with sufficient information concerning her request to be released from her course because there was evidence that it had correctly advised her that she could get the release after six months of enrolment with it;

   c)the Tribunal did not consider that the applicant finding her Bachelor of IT course very hard and challenging and being away from her parents outweighed the grounds for cancelling her visa because those circumstances were common among many overseas students in Australia.  It noted that the University had offered her assistance to deal with those issues but she had failed to take advantage of that assistance;

   d)the Tribunal found that the applicant had not been a genuine student because she had not engaged in any study in Australia in the fifteen months prior to its decision despite travelling to Australia for study purposes.  The Tribunal did not consider that the applicant’s reasons for not studying, namely that she had decided to take a break and await the outcome of her review application, were justifiable reasons for not engaging in study for such a long period of time;

   e)the Tribunal did not consider that any hardship the applicant might suffer in terms of having her dream of achieving a university degree shattered, losing face with her family members, not being able to make her family proud and her suffering of depression and anxiety outweighed the grounds for cancelling her visa, particularly in circumstances where she had not been a genuine student; and

   f)the Tribunal found that there was no evidence that the cancellation of the applicant’s visa would lead to the applicant’s removal from Australia in breach of Australia’s non-refoulement obligations.

Proceedings in this Court

1. In her application commencing these proceedings, as amended at the hearing, the applicant alleged:

   1.[Not pressed]

   2.The Second Respondent made jurisdictional error by adopting a test which fettered its discretion by the adoption of non statutory formula.

   Particulars

   At [25] the Second Respondent:

   (a)accepted that the applicant was adversely affected in that she suffered depression and anxiety

   (b)stated that the circumstances do not outweigh the grounds for cancelling the visa

   (c)the formula in (b) above was not authorized by law/or was a question begging formula

   (d)adopted a non-statutory formula that a relevant event or circumstance had to be shown not merely to have an adverse effect on course progress but a severe adverse effect

   3.[Not pressed]

   4.The Second Respondent made jurisdictional error in that it:

   (a)made an irrational or unreasonable decision, or alternatively;

   (b)took into account irrelevant considerations;

   in finding that the Applicant was not a genuine student based upon the conduct of the applicant after the cancellation decision.

Ground 2

1. Because the applicant had breached condition 8202, s.116 of the Act gave the Minister’s delegate a discretion to cancel her visa. Upon review, the Tribunal was called upon to re-exercise that discretion: s.415(1) of the Act. The applicant alleged that the Tribunal erred because it had proceeded on the basis that because she had breached condition 8202, the exercise of the discretion was conditioned by a rebuttable presumption that her visa should be cancelled. Citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, she submitted that such an approach was erroneous on the basis that although her breach of condition 8202 did cause the s.116 cancellation discretion to be enlivened, it did no more than that and, specifically, did not give rise to a presumption in favour of cancellation.

2. The applicant submitted that the Tribunal’s belief that such a presumption existed could be inferred from its various statements in para.25 of its reasons to the effect that the circumstances of her case did not “outweigh the grounds for cancelling the visa”.  She argued that the Tribunal’s exercise of discretion had miscarried because it had required her to rebut the purported presumption before it would exercise the discretion in her favour.

3. Although it is implicit in the Tribunal’s reasoning that breach of condition 8202 was a factor which was very relevant to whether the applicant’s visa ought to have been cancelled, its reasons do not demonstrate that that fact was treated as giving rise to a rebuttable presumption in favour of cancellation.  It appears that the Tribunal considered the applicant’s breach of condition 8202 to be a matter of more moment than the considerations she advanced in favour of an exercise of the discretion in her favour but that does not amount to a miscarriage of discretion through the application of an incorrect test.  The language used by the Tribunal does not evidence a belief that a presumption in favour of cancellation applied to the exercise of the discretion.  Rather, it points to the Tribunal weighing the information before it and reaching a decision through that process.

4. I find that ground 2 of the application is not made out.

Ground 4(a)

1. The allegation that the Tribunal made an irrational or unreasonable decision was pressed at the hearing of this application by reference to the following matters:

   a)in paras.20 and 25 of its reasons the Tribunal reached conclusions concerning the effect which the death of her grandfather had had on the applicant by reference to an incorrect chronology of events; and

   b)the Tribunal reached conclusions concerning the applicant’s ability to study in Australia by reference to her long-term family difficulties without having regard to the effect which her grandfather’s death had had on her.

2. In relation to the first of these matters, the transcript of the Tribunal hearing records that the chronology adopted by the Tribunal in its reasons had also been adopted by the applicant in her oral evidence at that hearing.  It was therefore open to the Tribunal to make the findings which the applicant challenged. 

3. As to the second matter, the Tribunal found that the applicant’s course progress had not been seriously affected by the death of her grandfather.  Because the Tribunal made that finding, it was not irrational or unreasonable, in the sense those terms are discussed in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, of the Tribunal to conclude that the applicant’s long-term family difficulties, which had not hindered her academic progress in the past, had not seriously affected her course progress in Australia either. It was rationally open to the Tribunal to conclude that one factor which had not impeded the applicant’s studies in the past did not assume a greater significance when combined with another factor which it found had not seriously affected her studies more recently.

Ground 4(b)

1. The applicant alleged that information concerning her lack of study once she had been certified under the ESOS Act had been irrelevant to the Tribunal’s exercise of discretion and the fact that that behaviour had been taken into account meant that the Tribunal’s discretion had miscarried. The applicant submitted that the circumstances in which she ceased study were such that that matter could rationally have had no relevance to the exercise of the Tribunal’s discretion.

2. The Tribunal was required to take into account any relevant material before it at the time of its review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286. When deciding whether to cancel a person’s student visa it would not be irrational to consider that person’s study history. The Tribunal did no more than that and did not err by doing so.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 11 September 2015