SHRESTHA v Minister for Immigration
[2017] FCCA 1875
•10 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHRESTHA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1875 |
| Catchwords: MIGRATION – Student 573 visa – higher degree student – vocational and educational diploma – failure to consider all relevant regulations. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 IMMI 14/047 Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth), sch.2, cls.573.111, 573.112, 573.211, 573.212, 573.223(1A), 573.223(2), 573.231 |
| Cases cited: House v R (1936) 55 CLR 499 |
| Applicant: | SANTOSH SHRESTHA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1124 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 26 July 2017 |
| Date of Last Submission: | 26 July 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 August 2017 |
REPRESENTATION
| Counsel for the applicant: | Mr A. Aleksov |
| Solicitors for the applicant: | Da Gama Pereira & Associates Pty Ltd |
| Counsel for the first respondent: | Ms J. Lucas |
| Solicitors for the first respondent: | DLA Piper Australia |
ORDERS
An order in the nature of a writ of certiorari issue directed to the
second respondent quashing the decision made on 22 April 2015.
An order in the nature of a writ of mandamus issue directing the
second respondent to hear and determine the application for review according to law.
The first respondent pay the costs of the applicant.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1124 of 2015
| SANTOSH SHRESTHA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in this proceeding raised an intriguing point concerning a 573 visa and its cancellation.
The applicant was granted a 573 visa on 23 October 2013 so as to undertake two courses. The first was a diploma of computing at Melbourne Institute of Business and Technology. The second was a bachelor of information technology. Condition 8516 applied to the
573 visa. The visa was granted on the basis that the applicant intended to study at a higher education level course at a particular education provider. Apparently, the applicant encountered personal difficulties and ceased his study in the diploma of computing in June 2014 after eight months of study. His enrolment in the bachelor of information technology was cancelled on 31 July 2014. On 20 June 2014 he applied for a 572 visa but that was refused on 5 September 2014.
After notifying the applicant of its intention to consider cancelling the 573 visa on 12 September 2014, the delegate of the Minister duly cancelled the applicant’s 573 visa on 12 November 2014 relying mainly on the applicant’s failure to comply with condition 8516. Specifically, according to the Provider Registration and International Student Management System (“PRISMS”), the applicant was not then enrolled in a bachelor’s degree or a master’s degree nor was he enrolled in a course of study that was a principal cause of a type specific to subclass 573 visas.
The Minister’s delegate decided to cancel the applicant’s 573 visa relying on s.116 of the Migration Act 1958 (Cth) (“the Act”).[1]
The Migration Review Tribunal affirmed the delegate’s decision in April 2015.[2] The applicant applied to this court for judicial review of the Tribunal’s decision.
[1] Court book filed 29 June 2015 at pp.33-40.
[2] Court book filed 29 June 2015 at pp.91-97.
Synopsis
For the reasons that follow, in my judgment the Tribunal fell into jurisdictional error for which constitutional writs must issue.
The amended application for judicial review
On behalf of the Minister Ms Lucas of counsel consented to the applicant’s amendments to the initiating application.[3] Mr Aleksov of counsel for the applicant pressed grounds 3, 4 and 5 of the amended application and he formally abandoned ground 6. The three grounds, as amended, advanced by the applicant were as follows (verbatim) –
3. The Tribunal erred in exercising its discretion to cancel under s.116 of the Migration Act 1958 by taking into account an irrelevant consideration that “students have an obligation to enrol themselves in courses that are appropriate to their aptitude and English skills” when no such obligation exists.
4. The Tribunal failed to take into account that the Applicant was, at 31 July 2014, enrolled in a Diploma of Hospitality and a Diploma of Computing which were principle courses as defined in cl.573.221 and specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and in force at the time the application was made, and thereby fell into jurisdictional error (see Singh v Minister for Immigration and Border Protection [2016] FCA 611).
5. The Tribunal’s decision is affected by jurisdictional error in that the Tribunal failed to consider whether the Applicant had maintained eligibility by satisfying clause 573.231 by his enrolment in a principle course or courses, in circumstances where 573.223(1A) did not apply because was no longer an eligible higher degree student.[4]
[3] Amended application filed 28 July 2017.
[4] Amended application filed 28 July 2017 at pp.2-3.
Prevailing authority on point
Many of the points raised in this case have been previously addressed, at least in the context of an application for leave to appeal from a decision of this court. Charlesworth J in Singh v Minister for Immigration and Border Protection[5] (“Singh”) addressed a number of the matters of the sort as were raised before me. In this case, counsel for the Minister contended that her Honour’s decision did not bind me. Unsurprisingly, Mr Aleksov submitted that her Honour’s decision was a decision of an immediate superior court that should be followed.
He qualified that submission slightly by stating that the observations of Charlesworth J may possibly be obiter dictum and therefore not strictly binding and that even if reasons existed to doubt the correctness of
her Honour’s reasons, that was a matter for an appeal court, not for me.
[5] [2016] FCA 611.
Let me at once pronounce upon the question of the binding nature of the decision of Charlesworth J in Singh. I am bound by it, although to the extent that the facts of that case may stand apart from the facts of this case, a basis may exist by which some particular observation in that case can be distinguished from this case. I do not share the same enthusiasm that the Minister’s counsel espoused for the proposition that the decision in Singh “[does] not bind this Court” as was stated in paragraph 37 of the written submissions filed by the Minister on
19 July 2017. In Trident General Insurance Co Ltd v McNiece Bros Pty Ltd[6] (“Trident”) Brennan J of the High Court of Australia held as follows –
Courts are bound to apply the principles laid down by courts higher in the appellate hierarchy and observance of that rule avoids the futility of delivering judgments which will be reversed on appeal.[7]
[6] (1988) 165 CLR 107.
[7] (1988) 165 CLR 107 at 129-130.
The Federal Court of Australia – whether at single judge or Full Court level – is a court higher than this court in the appellate hierarchy.
This court is bound by the decisions of the Federal Court of Australia. It is legally erroneous to say, as the Minister invited me to conclude, that the decision of Charlesworth J in Singh did not bind me. It does bind me. Whether a specific observation in that decision is somehow distinguishable from the facts of this case is a matter calling for analysis. But as a matter of conceptual or doctrinal overview,
her Honour in that case laid down certain principles relevant to a
573 visa and to the operation of clause 573 of Schedule 2 of the Migration Regulations1994 (Cth). Her Honour was at the relevant date a member of a court higher than me in the appellate hierarchy.
Quad erat demonstrandum,it follows that the observations of
Brennan J in Trident are directly on point with the consequence that I am bound by her Honour’s decision, it being idle to contend otherwise. I have little choice in the matter.
Condition 8516
The applicant’s visa was cancelled pursuant to s.116(1)(b) of the Act. Relevantly paraphrased, that subsection enabled the Minister to cancel a visa if satisfied that its holder had not complied with a condition of the visa. Pursuant to condition 8516 the visa holder was required to continue to be a person who would satisfy the primary or secondary criteria, as the case required, for the grant of the visa. Clauses 573.231 and 573.223(1A) of the regulations therefore were relevant.
The applicability of each of those clauses depended on whether the applicant was or was not an “eligible higher degree student”.
Clause 573.223(1A) of the regulations applied where the applicant was an eligible higher degree student and clause 573.231 of the regulations applied where the applicant was not an eligible higher degree student. Enrolment in a principal course of study for the award of a bachelor’s degree or, broadly, a master’s degree where the principal course of study was provided by an eligible education provider meant that the student was an “eligible higher degree student” for the purposes of clause 573.111 of Schedule 2 to the regulations. By reason of the applicant’s enrolment in a bachelor of information technology at Deakin University the applicant was, when he remained so enrolled,
an “eligible higher degree student” for the purposes of clause 573 of Schedule 2 of the regulations.
Information maintained under PRISMS revealed the applicant’s course status as at 6 June 2014 and beyond that date. On 6 June 2014 the applicant’s enrolment in the diploma of computing was shown on the PRISMS as having been cancelled on account of his unsatisfactory progress.
When the Department issued a notice of intention to consider cancellation of the applicant’s visa on 12 September 2014, PRISMS records revealed that the applicant was not enrolled in –
a)a bachelor’s degree course;
b)a master’s degree course;
c)or had an offer of enrolment in a course of study that was a principal course specified by the Minister for 573 visas in an instrument made under regulation 1.40A in force when the visa application was made.
The Tribunal determined that grounds for cancellation of the applicant’s 573 visa existed under s.116(1)(b) of the Act. The Tribunal also determined that the discretionary grounds refusing to cancel the visa were not evident. In the result, the Tribunal decided to cancel the applicant’s 573 visa.
How the grounds were arranged
In his amended application the applicant deleted the original grounds
1 and 2 of his application. He preserved ground 3 although upon the deletion of grounds 1 and 2 the original application ground 3 should have but was not renumbered with the consequence that the amended grounds commenced at ground 3 to which were added grounds 4 and 5. With the abandonment of ground 6 only three grounds were debated, those being curiously numbered 3, 4 and 5.
In his address before me Mr Aleksov arranged his submissions in such a manner that grounds 4 and 5 represented the mainstay of debate. Ground 3 received some attention but little in the overall. In those circumstances, it is appropriate to focus on and commence with grounds 4 and 5.
Grounds 4 and 5
A disagreement emerged between Ms Lucas and Mr Aleksov about whether, as a matter of fact, the applicant was or was not enrolled in a diploma of computing as at July 2014. In paragraph 29 of her written submissions Ms Lucas stated that the applicant was no longer enrolled in that course as at 31 July 2014, his enrolment having been cancelled on 6 June 2014 due to unsatisfactory progress.
My reading of the PRISMS records accorded with the Minister’s submissions as disclosed in the final line entry at page 56 of the court book. It showed that in relation to the diploma of computing,
the applicant’s enrolment was cancelled on 6 June 2014 by reason of unsatisfactory course progress. So far as the applicant’s studies for the degree of bachelor of information technology was concerned, PRISMS records relevant to the applicant revealed that his enrolment was cancelled on 31 July 2014 as he had not commenced his studies.
That was the second-last entry on the PRISMS records at page 56 of the court book.
In the first sentence of paragraph 13 of its reasons, the Tribunal recorded following –
The applicant ceased his study in the Diploma of Computing in June, after 8 months and his enrolment in the Bachelor of Information Technology was cancelled on 31 July 2014.[8]
[8] Court book filed 29 June 2015 at p.93.
That information corresponded precisely with information about the applicant’s studies in those disciplines in the PRISMS records relevant to him. There was no factual error by the Tribunal in that.
The real debate in relation to ground 4 concerned the status of the applicant’s studies in a diploma of hospitality. In essence, Mr Aleksov contended that as at 31 July 2014 the applicant was enrolled in a diploma of hospitality and that the PRISMS records bore that out.
On one construction of the PRISMS records, the applicant’s enrolment in a diploma of hospitality ceased on 28 July 2014. The proper construction of the PRISMS records was a matter for the Tribunal.
At all events, the argument under ground 4 focused on whether a diploma of study was a “principal course of study” of a type specified for subclass 573 visas. Mr Aleksov contended that it was, relying heavily on the decision of Charlesworth J in Singh. The Minister advanced submissions concerning the status of the diploma course in connection with the more general discretionary considerations that bore upon refusal of a request to cancel the 573 visa under s.116 of the Act. The Tribunal addressed discretionary considerations in the context of the application of the matters identified in PAM3 “general visa cancellation powers”.
It is as well to commence the analysis with the applicant’s contentions.
Mr Aleksov submitted that the higher education sector visa requirements and stipulations were set out in clause 573 of Schedule 2 of the regulations. Certain critical definitional concepts were applicable, especially “eligible education provider” and “eligible higher degree student”, both of which terms were defined in
clause 573.111. The criteria an applicant was required to satisfy where the application was made in Australia was set out in clause 573.211. Clause 573.212 applied in the case of an eligible higher degree student. The criteria an applicant had to satisfy at the time of the delegate’s decision was set out in clause 573.223. In this case, clause 573.223(1A) was of particular relevance. It is necessary to set it out in terms –
(1A)If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a)the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.
Applying clause 573.223(1A) the definition of “eligible higher degree student” was engaged in this case. That phrase was defined as
follows –
eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:
(a)the applicant is enrolled in a principal course of study for the award of:
(i) a bachelor’s degree; or
(ii) a masters degree by coursework;
(b)the principal course of study is provided by an eligible education provider;
(c)if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:
(i) the applicant is also enrolled in that course; and
(ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.
Two matters of significance emerged from that definition of
“eligible higher degree student”. First, the person’s enrolment must have been for a bachelor’s degree or master’s degree by coursework. The word “degree” was expressly used, twice. The word “diploma” was not used. In tertiary education, it is notorious that a bachelor’s degree is inferior to a master’s degree and a diploma is not a degree, although in some universities a diploma is offered as a postgraduate qualification after a person has been awarded a bachelor’s degree.
The second matter of significance arising from the definition of “eligible higher degree student” was its incorporation of the defined term “eligible education provider”. That phrase was defined to mean an education provider specified as an eligible education provider in an instrument made under clause 573.112.
In this case two legislative instruments, that is to say two IMMI documents, were relevant, namely –
a)
IMMI 12/037 dated 21 March 2012 that commenced on
24 March 2012; and
b)IMMI 14/047 dated 2 June 2014 that commenced 1 July 2014.
As the applicant’s 573 visa was granted on 23 October 2013,
IMMI 12/037 applied. The types of courses applicable to a 573 visa as recorded in Schedule 1 to IMMI 12/037 were a higher education diploma, higher education advanced diploma, a bachelor’s degree,
a graduate certificate, a graduate diploma or an associate degree and a masters by coursework. The long list of eligible education providers and educational business partners were set out in IMMI 14/047 dated
2 June 2014.
Returning to clause 573.223 of Schedule 2 of the regulations,
subclause 573.223(2) applied where the student was not an eligible higher degree student.
In this case, Mr Aleksov submitted that while the applicant did not meet the requirements of clause 573.223(1A), it was open to the Tribunal to have accepted that the applicant had satisfied the elements of clause 573.223(2). He submitted that when applying Schedule 1 of IMMI 12/037 a significant amount of overlap existed in the types of courses relevant to 572 visas on the one hand and those relevant to
573 visas on the other, their names only being differentiating features. For example, Mr Aleksov submitted that diplomas and advanced diplomas applied for 572 visas as did diplomas and advanced diplomas apply for 573 visas. He said graduate diplomas and certificates applied to 572 visas as well as to 573 visas. Mr Aleksov submitted that the applicant enrolled in a diploma of hospitality but it was not possible to say whether that diploma was a higher education diploma or a vocational education and training diploma. If it was a higher education diploma, the applicant satisfied the criteria prescribed by
clause 573.223(2) of Schedule 2 to the regulations. That was the argument, at any rate.
Mr Aleksov took me to clause 573.231. That appeared to be the regulation’s enabling connection of 573 visas with IMMI 14/047.
Mr Aleksov submitted it was the alternative pathway to a 573 visa when the applicant did not meet regulation 573.223(1A).
As mentioned earlier in these reasons, the applicant relied heavily on the decision of Charlesworth J in Singh. It is necessary for me to go to that decision in some little detail.
That case concerned an application for leave to appeal from a decision of a judge of this court. Relevantly paraphrased, the factual circumstances of the case may be shortly stated. The applicant held a 573 visa that the delegate of the Minister cancelled under s.116 of
the Act. The Tribunal affirmed the delegate’s decision. The applicant sought judicial review in this court in response to which the Minister applied for orders dismissing the proceeding under r.44.12 of the Federal Circuit Court Rules2001 (Cth) on the basis of the applicant had not raised an arguable case for the relief claimed. Charlesworth J granted leave to appeal, it being an interlocutory order appealed against, and allowed the appeal in part.
In that case the applicant obtained his 573 visa prior to his arrival in Australia. The applicant provided confirmation of his enrolment in a diploma of information technology and a bachelor of information technology at Queensland University of Technology (“QUT”). He did not commence his studies at QUT as result of which QUT cancelled his enrolment. He later applied for a 572 visa. His 573 visa was then cancelled under s.116 of the Act. In making that decision the delegate considered that the applicant did not satisfy condition 8516 that applied to the 573 visa. The delegate took the view that the applicant did not comply with condition 8516 because the applicant was no longer enrolled in the QUT course that would satisfy the grant of a 573 visa. The applicant took his case to the Tribunal which found that, at the time of the Tribunal’s decision, the applicant did not satisfy the criteria under clause 573.223(1A) or clause 573.231 of Schedule 2 of the regulations. At the time of the Tribunal’s decision the applicant was enrolled in a diploma of website technology. The Tribunal found that the applicant was not entitled to the grant of a 573 visa.
In this court the applicant failed to show he had an arguable case.
He sought leave to appeal from orders dismissing his case.
Charlesworth J held that it was arguable that the diploma of website development was a “higher education course” for the purposes of clause 573.231(1A) of Schedule 2 of the regulations. Her Honour held that room for argument existed whether a “diploma” was properly characterised as a higher education diploma or a vocational education and training diploma and the relevant instrument, that is to say the IMMI, gave no guidance as to which of the two descriptions applied to any particular diploma course. Her Honour also held that an issue of importance arose as to whether the applicant was enrolled in a diploma that was no different in substance from a higher education diploma. Her Honour additionally held that the question whether the course properly met a given description involved a question of construction of the Act and the instrument and was not a question for the educational institution itself to finally determine.
The decision in Singh was handed down on 31 May 2016. In this case the decision of the Tribunal significantly predated that decision,
the Tribunal’s decision having been given in April 2015. That said,
in this case the Tribunal gave no consideration at all to whether the diploma of hospitality course was a higher education diploma or whether it was a vocational education diploma. In addition,
the Tribunal gave no consideration of clause 573.223(2) or to clause 573.231, each of which was predicated on the applicant not being an eligible higher degree student.
It seemed the Tribunal addressed only the elements of clause 573.223(1A) of the regulations. Of that clause, the Tribunal seemed to have focused on whether the applicant was an eligible higher degree student who had a confirmation of enrolment in each course of study for which the applicant was an eligible higher degree student. The Tribunal undertook no further analysis. The Tribunal needed to consider clause 573.223(2) of the regulations if it was of the view that the applicant was not an eligible higher degree student or if the applicant did not have a confirmation of enrolment in each course of study for which the applicant was an eligible higher degree student.
In any event, as Charlesworth J held in Singh, the question of whether a particular course met the description ascribed to it as a diploma, whether higher educational or vocational, involved the construction of the legislation as well as the relevant instrument and any error made in the construction of a legislative instrument was ordinarily amenable to judicial review.
On this ground I was persuaded that the Tribunal did in fact fall into jurisdictional error. It failed to consider all elements of clause 573.223, especially clause 573.223(2) as well as clause 573.231 of the regulations. It failed to address the applicant’s enrolment in a diploma of hospitality and whether that enrolment attracted the application of different components of clause 573.223 and clause 573.231 of the regulations. Insofar as the construction of a legislative instrument was concerned, the Tribunal identified IMMI 12/037 in paragraph 14 of its reasons. The Tribunal gave no explanation about how it reasoned that the elements of that instrument applied to the facts of this case. To my mind, those failures demonstrated the existence of jurisdictional error by the Tribunal.
I do not accept that no possibility existed of a different outcome had error not been made by the Tribunal. To the contrary. Had the Tribunal properly engaged in the process of reasoning adumbrated by Charlesworth J then an arguable case might (or possibly “would”) have emerged to the effect that the visa should not have been cancelled.
Expressed in terms of a more classical formulation of jurisdictional error, it seemed to me that the Tribunal failed to consider a matter that ought to have been considered. Grounds 4 and 5 succeeded.
Ground 3
The applicant complained under this ground that in its reasons the Tribunal stated in paragraph 27 that “students have an obligation to enrol themselves in courses that are appropriate to their aptitude and English skills”.[9] The applicant characterised any such obligation as a mystery, contending that the 573 visa was subject to conditions, none of which required (or “obliged”) the applicant to enrol in a course that was appropriate to his aptitude and English skills. The applicant said that in stating such an obligation in those terms the Tribunal took into account an irrelevant consideration.
[9] Court book filed 29 June 2015 at p.96.
The Minister said the Minister had a broad and unconfined discretion to cancel the visa by reference to any factual consideration identified by the Minister. In support of that submission the Minister relied on a decision of a magistrate. I do not accept the submission nor do I accept the validity of the authority that supposedly supports it. Rarely is the exercise of a discretion at large and unfettered. In the absence of an express enabling legislative provision, discretion must usually be exercised in accordance with well-established authority such as
House v R.[10]
[10] (1936) 55 CLR 499.
I was unable to identify the source of the obligation – assuming the Tribunal intended the obligation mentioned in paragraph 27 of its reasons as being a legal obligation – to which the Tribunal referred. Whether the obligation about which the Tribunal spoke represented a conclusion that had any bearing on the outcome of the Tribunal hearing is difficult to say. However, the statement had all the hallmarks of an irrelevant consideration.
In my view, ground 3 was made out.
Ground 6
This ground was abandoned and therefore I need not consider it.
Conclusion
In view of the success of grounds 3, 4 and 5 this application for judicial review succeeded and constitutional writs must issue.
I order the Minister to pay the applicant’s costs and otherwise remit the proceeding to a differently constituted Tribunal for determination according to law in accordance with these reasons.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 10 August 2017
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