Shrestha v Minister for Immigration

[2016] FCCA 828

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 828

Catchwords:
MIGRATION – Review of decision of the former Migration Review Tribunal – cancellation of a higher education sector visa – visa holder ceasing to be an eligible higher degree student – no discretionary factors weighing against cancellation – whether the Tribunal erred by failing to consider the facts and circumstances upon which the visa was granted considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.116

Migration Regulations 1994 (Cth)

Cases cited:
Minister for Immigration v Zhang (1999) 84 FCR 258

Applicant: CHETAN SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 747 of 2015

Judgment of: Judge Driver

Hearing date: 12 April 2016

Delivered on: 17 June 2016

REPRESENTATION

Counsel for the Applicant: Ms Costello

Solicitors for the Applicant: Da Gama Pereira & Associates

Counsel for the Respondents: Mr Aleksov

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application as amended in Court on 12 April 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 747 of 2015

CHETAN SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 17 March 2015. The Tribunal affirmed a decision of the delegate of the Minister to cancel the applicant’s (Mr Shrestha) subclass 573 higher education sector visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. On 11 October 2013, Mr Shrestha was granted a student (temporary) (class TU) higher education sector (subclass 573) visa (visa).

4. At the time of the grant of Mr Shrestha’s 573 Visa, he was enrolled to study a Diploma of Computing at Melbourne Institute of Business and Technology (MIBT), followed by a Bachelor of Information Technology at Deakin University. 

5. Mr Shrestha found the subjects in the Diploma difficult and failed all his subjects. On the advice of an education agent, Mr Shrestha enrolled in a cookery course with another institution, the Hospitality Management Institute of Australia (HMIA), in lieu of the Diploma. Mr Shrestha remained enrolled in the Bachelor of IT at Deakin University at the time of the cancellation notice referred to at [6] below.

6. On 5 September 2014, Mr Shrestha was sent a Notice of Intention to Consider Cancellation (NOICC). The NOICC referred to s.116(1)(a) of the Migration Act 1958 (Cth) (Migration Act) and said:

   Information available in the Provider Registration and International Student Management Systems (PRISMS) indicates that whilst you are enrolled in a principal course of study for the award of a bachelor’s degree or a masters degree by coursework that is provided by an eligible education provider, you are not enrolled in another course of study before and for the purposes of the principal course of study.

7. On 22 October 2014, Mr Shrestha’s visa was cancelled by the Minister’s delegate.

8. Mr Shrestha sought a review of the delegate’s decision before the Tribunal. The Tribunal was unable to make a favourable decision on the papers and invited Mr Shrestha to attend a hearing on 4 February 2015 to give evidence and present arguments relating to his case. Mr Shrestha’s agent provided a written submission dated 13 January 2015, which was subsequently withdrawn. A replacement submission dated 3 February 2015 was provided by the agent. In that submission the agent took issue with the Cancellation Notice and presented arguments going to the exercise of the discretion not to cancel the visa.

9. Mr Shrestha attended the Tribunal hearing on 4 February 2015 with his agent. His education history was discussed, as well as the information available from the Department’s PRISMS database and Mr Shrestha’s attempts to enrol in other qualifying courses. Significantly, the Tribunal records at [20] of its decision record, that it explained the definition of an “eligible higher degree student” to Mr Shrestha. The Tribunal informed Mr Shrestha of its opinion that he no longer satisfied the definition. Questions bearing on the exercise of the discretion not to cancel were also discussed.

10. At the end of the hearing Mr Shrestha’s agent requested time to make further submissions following her perusal of Mr Shrestha’s visa application file which she had requested from the Minister’s Department. That request was refused but, after the hearing, the Tribunal provided the agent with the relevant PRISMS record and granted time for further submissions until 11 February 2015. Mr Shrestha’s agent made a further submission on that day, advancing the proposition that Mr Shrestha was by then enrolled in a Bachelor of Information course and a Diploma of Management which, in her opinion, satisfied the definition of an eligible higher degree student.

Tribunal decision

1. The Tribunal reviewed Mr Shrestha’s background and enrolment history, and mentioned that it had discussed with him, at the Tribunal hearing, PRISMS information indicating that he had ceased to be enrolled in the Diploma of Computing.  The Tribunal recorded that Mr Shrestha explained that he had failed all the units he undertook in the first semester, and then he had spoken with an assistant who gave him bad advice which he followed.[1]

   [1] Tribunal Reasons [1]-[32]

2. The Tribunal noted that it appeared that Mr Shrestha’s migration agent at the hearing had misconceived the basis of the proceeding – the agent believing that it was a proceeding under s.116(1)(b) of the Migration Act. The Tribunal correctly found that the agent’s belief was wrong.

3. The Tribunal found that when Mr Shrestha ceased to be enrolled in the Diploma of Computing, he ceased to satisfy the definition of an “eligible higher degree student”. Importantly, the Tribunal stated that Mr Shrestha did not provide any evidence to show that he otherwise met the definition of an eligible higher degree student. Accordingly, the Tribunal found that a circumstance which permitted the grant of the visa (Mr Shrestha being an eligible higher degree student) no longer existed, and therefore, the power under s.116(1)(a) of the Migration Act was engaged.[2]

   [2] Tribunal Reasons [41]-[52]

4. The Tribunal considered all of the arguments made by Mr Shrestha in relation to the discretion under s.116(1)(a) of the Migration Act. The Tribunal noted that Mr Shrestha’s principal arguments were that he was not aware of the requirements to maintain enrolment, that he was poorly advised, and a hardship argument based on the fact that his family had heavily invested in his Australian education. The Tribunal found that Mr Shrestha could have taken steps to inform himself about his migration obligations and avoided the present circumstances, and so concluded that the discretionary factors in favour of Mr Shrestha did not outweigh the fact of the breach of s.116(1)(a) of the Migration Act. Accordingly, the Tribunal affirmed the decision to cancel the visa.[3]

   [3] Tribunal Reasons [53]-[60]

Present proceedings

1. These proceedings began with a judicial review application filed on 10 April 2015. Mr Shrestha now relies upon an amended application tendered in Court on 12 April 2016.[4] There are four grounds in the amended application:

   [4] Mr Shrestha’s solicitors had been unable to file the amended application and further submissions in support of it but I directed those to be filed within seven days

   1.The Tribunal erred by reasoning that because the applicant no longer satisfied cl.573.111 of the Migration Regulations 1994, a particular fact or circumstances was no longer the case or no longer existed without considering what particular facts or circumstances had permitted the grant of the visa.

   2. The Tribunal erred by finding that the applicant was no longer an eligible higher degree student when in fact at the date of cancellation (22 October 2014), the applicant was an eligible higher degree student because he was enrolled in the Bachelor of IT at Deakin University and therefore remained an eligible higher degree student within the meaning of cl 573.111.

   3. The Tribunal erred in exercising its discretion to cancel under s.116 of the Migration Act 1958 by failing to consider that at the time of cancellation the applicant was enrolled in the Bachelor of IT at Deakin University.

   4. The Tribunal erred in exercising its discretion to cancel under s.116 of the Migration Act 1958 by finding that it was not plausible that an applicant could apply for a visa and expect that visa to continue if any circumstances permitting the grant of the visa no longer existed whilst not taking into account that

   (a) the visa conditions were not set out in the visa granted to the applicant.

   (b) the applicant had tried to change back into an SVP course at Kent Institute and held a letter.

2. I have before me as evidence the court book filed 27 May 2015.

3. Mr Shrestha and the Minister both made helpful written and oral submissions through their counsel. I am grateful for the assistance provided by counsels’ submissions.

Consideration

Ground 1 – did the Tribunal err by not considering the basis upon which the visa had been granted?

The legislative regime

1. A criterion applicable to the grant of the visa was that Mr Shrestha satisfy clause 573.223(1)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This required that Mr Shrestha meet the requirements of clause 573.223(1A) or clause 573.223(2).

2. Clauses 573.223(1A) and 573.223(2) establish “alternative pathways” for obtaining a subclass 573 student visa; one pathway for those who are “eligible higher degree students” (under clauses 573.223(1A) and 573.111), and another pathway for those who are not an “eligible higher degree student” (under clause 573.223(2)).  The pathway under clause 573.223(1A) is described as the Streamlined Visa Processing pathway (the SVP), and the pathway under clause 573.223(2) is the conventional pathway.  The difference between the two is that if a person is an “eligible higher degree student” within clauses 573.111 and 573.223(1A), they are not required to produce the onerous evidence required under Schedule 5A to the Regulations as to their skills in the English language, their financial capacity, and their educational pre-requisites.  An incident of the requirement to comply with Schedule 5A is considerably delayed processing times.

3. Clause 573.111 defined “eligible higher degree student” to mean:

   (a) the applicant is enrolled in a principal course of study for the award of:

   (i)a bachelor’s degree; or

   (ii) a master’s 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.

4. Thus clause 573.111 provides that an “eligible higher degree student” is an applicant who is enrolled in a principal course of study, being either a bachelor’s degree or a master’s degree by coursework, and that the principal course of study is provided by an eligible education provider.

5. The SVP regime recognises that bachelor’s and master’s degrees may have educational pre-requisites to entry (as required by the particular educational institution).  The regime accommodates that fact by enabling a visa applicant to obtain an SVP 573 visa on the footing that the applicant will complete any pre-requisite study whilst in Australia, prior to commencing the principal course.  However, where an applicant proposes to undertake a course before, and for the purpose of, the principal course, in order to be an “eligible higher degree student”, clause 573.111 requires that the applicant be enrolled in that (pre-requisite) course and in the principal course.

6. Section 116(1)(a) of the Migration Act relevantly provided that the Minister may cancel a visa if satisfied that any circumstances which permitted the grant of the visa no longer exist.

7. The term “circumstances” is elastic, and can embrace bare facts as well as legal propositions. A circumstance may be that the “fact” that a person is of a certain age, but it might also be the legal proposition that by reason of that fact, i.e. being that age, the person is not a minor. The “circumstances” to which s.116(1)(a) speak extend to each of these notions. Thus, at least, s.116(1)(a) applies to the facts which were required to exist in order for the person to satisfy the legal criteria applicable to the grant of the visa.[5]

   [5] Minister for Immigration v Zhang (1999) 84 FCR 258

8. Section 116(1)(a) is not concerned with hypothetical possibilities or alternatives that were not pursued by an applicant. Rather, it is concerned with the manner by which the applicant in fact obtained the visa. That is, how did this applicant obtain this visa?

9. So much is plain from the expression “any circumstances which permitted the grant of the visa”.  The term “permitted” requires that attention be given to an historical fact, and the historical fact to which attention is directed is the circumstance by which the applicant was granted the visa. 

10. This is significant in relation to subclass 573 visas under clause 573.223 because the clause allows for alternative pathways to obtain the same result; a subclass 573 visa might be obtained via the SVP (clause 573.223(1A)) or via the “slow” pathway which requires onerous evidence of the kind described in Schedule 5A (clause 573.223(2)).

The material facts

1. In the present case, although it is not entirely clear, the Minister submits that Mr Shrestha obtained the visa by meeting the requirements of clauses 573.111 and 573.223(1A), as an eligible higher degree student, in that he was enrolled in a Bachelor of IT degree at Deakin University, and he was enrolled in another course before, and for the purpose of, the Bachelor’s degree, being a Diploma of Computing at MIBT (which is an educational business partner of Deakin University).  That is, he relied on paragraphs (a), (b) and (c) of clause 573.111.  As explained below, in the absence of evidence to the contrary I have proceeded on that basis.

2. It appears that Mr Shrestha chose to proceed via the SVP pathway by his answer to the relevant question on the visa application form.  This question asked whether Mr Shrestha was eligible for the SVP pathway or fell within Assessment Level 1, or whether Mr Shrestha fell within Assessment Levels 2 or 3.  “Assessment Levels” is a reference to the degree of information required under Schedule 5A, and in Mr Shrestha’s case, because he is a citizen of Nepal, he would have been subject to Assessment Level 3.  Mr Shrestha checked the box indicating that he was eligible for SVP or in Assessment Level 1, which indicates that he wished to have his application assessed in the SVP stream.

3. Mr Shrestha was therefore not required to provide the onerous evidence which would have been required if he were to pursue the non-SVP regime under Schedule 5A to the Regulations. 

4. After failing all three of the courses he undertook in his first semester in the Diploma of Computing, Mr Shrestha changed his enrolment.  He withdrew from the Diploma of Computing and sought to enrol in a Diploma of Cookery.  After the delegate’s decision, but prior to the Tribunal’s decision, Mr Shrestha also withdrew from the Bachelor of IT.

An issue of construction

1. It is useful to note at this stage that Mr Shrestha’s construction of s.116(1)(a) of the Migration Act asks the Court to treat the provision as though it has an operation which extends across time, requiring decision makers to assess not only the circumstances which permitted the grant of the visa, but whether an applicant’s present circumstances, or potential future circumstances, might enable them to be eligible for the same visa (based on different circumstances to those on which they relied to obtain the visa).

2. The Full Federal Court in Minister for Immigration v Zhang discussed at some length the term “circumstances” in s.116(1)(a). At [74] Merkel J said:

   In my view the subsection is concerned with a material change in the circumstances, other than the Minister's satisfaction, which led the Minister to be satisfied that the criteria necessary for the grant of the relevant visa were met. Without endeavouring to be exhaustive of those circumstances they will include any matter, other than the ministerial satisfaction, in respect of which the Minister is required to be satisfied under either the Act or the Regulations prior to granting a visa.

3. It is also useful to emphasise what “circumstances” existed in this case which permitted the grant of the visa.  These were:

   a)Mr Shrestha was enrolled in a principal course of study, being a bachelor’s degree: the Bachelor of IT at Deakin University;

   b)Mr Shrestha was enrolled in a course of study, before, and for the purpose of, the principal course: the Diploma of Computing at MIBT.  The Minister contends that Mr Shrestha relied on this enrolment for the grant of the visa, which was initially acknowledged in his written submissions (that is, that Mr Shrestha met requirements of paragraphs (a), (b) and (c) of clause 573.111) but that submission was withdrawn; 

   c)at [25] of his submissions, Mr Shrestha submits that he did not need to satisfy paragraph (c) of clause 573.111 to have been granted the visa.  This is however, contrary to the manner in which the Tribunal approached the review. Counsel for the Minister pressed upon me the proposition that, if Mr Shrestha is to overcome the effect of this finding by the Tribunal, it is necessary that Mr Shrestha prove, on the balance of probabilities, that this factual finding was not lawfully made or was not lawfully open to the Tribunal.  Mr Shrestha advances no evidence to support this allegation, and in the absence of evidence, it is said to be not open to me to accept his submissions;

   d)at no stage did Mr Shrestha advance any evidence indicating that he satisfied the evidential requirements of Schedule 5A, nor did he make any argument to this effect.  Accordingly, there was no suggestion that he met the alternative non-SVP pathway under clause 573.223(2).  This was not a relevant issue in the review by the Tribunal.

4. Mr Shrestha ceased to be enrolled in the Diploma of Computing, described by the Minister as the “pre-requisite course”, on 16 July 2014. This triggered the NOICC, following which, the delegate decided to cancel the 573 visa under s.116(1)(a) of the Migration Act.

The parties’ contentions

1. As noted above, in his submissions counsel for the Minister has drawn the Court’s attention to [10] of Mr Shrestha’s submissions dated 30 March 2016, which stated:

   Mr Shrestha’s application fitted each of the paragraphs of the definition of “eligible higher degree student.

2. At the trial Mr Shrestha withdrew his submission and said instead that there was no evidence before the Tribunal whether the circumstance that permitted Mr Shrestha to obtain his student visa was his enrolment in the bachelor degree only or whether the circumstances were his enrolment in both the bachelor and diploma courses. 

3. The Minister submitted at [30] of his submissions that:

   The Tribunal proceeded on the basis that the applicant was required to have been enrolled in a course “before, and for the purposes of” the principal course in order to have met the definition of an eligible higher degree student in cl 573.111. This implies that the Tribunal believed that the applicant was required to rely on cl 573.111(c) in order to meet this definition, which in turn, implies that the Tribunal believed that the applicant could not have enrolled in the principal course (Bachelor of IT) without also being enrolled in the pre-requisite course (Diploma of Computing) (see Reasons [46], CB 173-174) That is, the Tribunal believed that the applicant was required to be enrolled in the Diploma of Computing in order to have been able to enrol in the Bachelor of IT (whether because of Deakin University pre-requisites, or otherwise) .

1. Mr Shrestha submits that the Tribunal did not make the implied findings gleaned by the Minister; or if it did, the Tribunal erred in doing so.

2. The Tribunal is said to have misconstrued the meaning of “eligible higher degree student” in clause 573.111 in that the Tribunal approached the matter as if all three paragraphs (a), (b) and (c) of the definition of “eligible higher degree student” needed to be satisfied to meet the definition. The words of the definition of eligible higher degree student[6] reveal that is not necessarily the case. 

   [6] See the definition of the Clause referred above at [20]

3. A person might satisfy (a) and (b) and not (c) and still be an “eligible higher degree student”.  The Minister asks the Court to imply that the Tribunal believed Mr Shrestha was required to rely on clause 573.111(c) in order to meet this definition. Mr Shrestha contends that, to the extent that such an implication can be drawn it would reveal error because it is “erroneous” to find that Mr Shrestha was required to rely on clause 573.111(c) in order to meet the definition of eligible higher degree student. 

4. On the facts here, Mr Shrestha remained enrolled in the bachelor degree at the time of cancellation by the delegate (only enrolment in the diploma ceased at that stage). 

5. Mr Shrestha contends that, what can be taken from the Tribunal’s decision is that the Tribunal misconstrued the definition of “eligible higher degree student” by seeing fulfilment of (c) as being necessary when it was not.  The Tribunal is said to have erred in finding that:[7]

   When the applicant ceased to be enrolled in the Diploma of Computing at MIBT and enrolled in cookery courses in the VET sector, he ceased to be an eligible higher degree student because the cookery courses were not “before and for the purposes of the principal course of study (the Bachelor of IT). When he ceased to satisfy the definition of an eligible higher degree student, the circumstances that enabled him to satisfy cl.573.223(1A) no longer existed

   (emphasis added)

   [7] Tribunal Reasons [46]

6. Mr Shrestha further submits that, to the extent that the Tribunal believed that Mr Shrestha could not have enrolled in the principal course without being enrolled in the pre-requisite course, the Tribunal acted on no-evidence and/or took into account an irrelevant consideration. The Minister asks the Court to imply that the Tribunal believed that Mr Shrestha could not have enrolled in the principal course without also being enrolled in the pre-requisite course. 

7. On one hand, Mr Shrestha contends that such an implication cannot be drawn from the Tribunal’s decision, particularly in the absence of evidence of what the original decision maker relied upon in the original decision to grant the visa. 

8. On the other hand, he contends that, if the implication is to be drawn then it reveals error: the Tribunal should not have guessed about whether it was (a) and (b) only - or (a), (b) and (c) - that was considered to be satisfied when the visa was granted.  Nor should the Court take a guess about this.

9. The SVP process “outsourced” to the educational institution the decision whether to accept a student for enrolment. Nevertheless, whether the higher educational institution would have allowed Mr Shrestha to enrol in a bachelor degree course without a diploma is said by him not to be material to the decision to grant the visa and so cessation of enrolment in the diploma course cannot be a material change that would invoke cancellation under s.116(1)(a).

10. Mr Shrestha submits that his enrolment in the bachelor degree at Deakin University was the circumstance that permitted the grant of the visa.  The fact that Mr Shrestha’s enrolment in a Diploma of Commerce at MIBT ceased did not materially change that circumstance.

11. Mr Shrestha submits that the Tribunal did not have the application form for the visa before it when it made its decision. The form is not in the court book. The Tribunal did not refer to the visa application form. He submits that the Court should not find that the application form was taken into account by the Tribunal.

Resolution

1. In my opinion, Mr Shrestha’s contentions might in a hypothetical case be made out but this is not that case. The central question to resolve is whether the diploma course in which Mr Shrestha enrolled at the time he applied for the visa engaged paragraph (c) of the definition of eligible higher degree student in clause 573.111 of the Regulations. That paragraph is engaged where, in addition to the visa applicant’s principal course of study the visa applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study.

2. The paragraph will be engaged in circumstances where the additional course of study is a pre-requisite for the principal course of study. One can reasonably anticipate that an additional course of study of that nature would be identified by the eligible education provider and that information would be available to the Minister at the time the visa is granted. In such circumstances the engagement of paragraph (c) will be apparent to a decision maker in considering cancellation of the visa. There will, no doubt, be other circumstances where the additional course is not a pre-requisite for the principal course of study but is being undertaken by the visa applicant in order to support later study in the principal course. One can assume that those circumstances would be apparent on the face of the visa application and, if the visa is granted on the basis that paragraph (c) is engaged, any subsequent consideration of cancellation of the visa would proceed on the same basis.

3. There may be other cases where a visa applicant enrols in an additional course that is plainly unrelated to the principal course of study and hence irrelevant to paragraph (c). In such a case the visa, if granted, would be granted only on the basis of paragraphs (a) and (b) of the definition of eligible higher degree student, and the unrelated preliminary course would not be relevant to a later cancellation decision.

4. In the present case the preliminary computing diploma course appeared to be related to Mr Shrestha’s principal course of a Bachelor of Information Technology. It is not known whether the preliminary course was a pre-requisite imposed by Deakin University or whether Mr Shrestha enrolled in it for his own purposes.

5. When the delegate considered the question of cancellation he obtained information from the PRISMS database and formed the view that paragraph (c) of the definition of eligible higher degree student was engaged. Relevantly, the delegate said in his decision record:[8]

   PRISMS indicates that the visa holder is currently enrolled in a Bachelor of Information Technology, due to commence 23 February 2015, with Deakin University, a SVP approved provider. This course was approved, 26 August 2013, as part of a package linked to the grant of the visa holder’s 573 visa and was linked to the visa holder’s Diploma of Computing course with MIBT. As the visa holder found the Diploma of Computing too tough, failed to pass any subjects in the first term and received very bad marks he will be unable to progress to the Bachelor of Information Technology. His enrolment will also prevent another streamlined education provider from enrolling the visa holder in a course without a release letter from Deakin University. As the visa holder is not enrolled in a course of study which could lead to commencing the Bachelor of Information Technology, due to commence 23 February 2015, with Deakin University, the visa holder is no longer an eligible higher degree students and the circumstances that enabled the visa holder to satisfy subclause 573.223(1A) permitting the grant of the visa no longer exists.  

   [8] Court Book (CB) 34

6. Mr Shrestha had several opportunities during the visa cancellation process to contend that his Diploma course did not engage paragraph (c) of the definition:

   (a)when he received the NOICC;

   (b)when he applied to the Tribunal to review the decision of the delegate;

   (c)when he responded to the Tribunal’s invitation to comment issued pursuant to s.359A of the Migration Act;

   (d)at the Tribunal hearing; and

   (e)in submissions made before and after the hearing.

7. At no stage did Mr Shrestha contend before either the Minister’s Department or the Tribunal that his Diploma of Computing course was not one falling within the definition of eligible higher degree student at (c). Neither has Mr Shrestha advanced any evidence in these proceedings to support that proposition.

8. The Tribunal plainly proceeded on the basis that paragraph (c) of the definition was engaged. At [42]–[46] of its decision record the Tribunal said:

   The applicant’s Subclass 573 visa was granted on the basis of his enrolment in a Bachelor of IT with an eligible education provider (Deakin) and a Diploma of Computing with an educational business partner of that provider (MIBT). With these enrolments, the applicant satisfied the definition of an “eligible higher degree student” in cl.573.111 of the Regulations.

   After failing three out of three units attempted in the Diploma of Computing, he consulted an agent who suggested that he enrol in cookery courses and apply for a Subclass 572 visa. The applicant said he thought he would complete the cookery courses and then apply for enrolment in a Bachelor of Business Administration, which is the course he really wanted to do when he applied for a visa to study in Australia. The applicant enrolled in the VET cookery courses and applied for a Subclass 572 visa.

   A submission from the applicant’s agent on 11 February 2015 states that, when the visa was cancelled on 22 October 2014, the applicant was still enrolled in the Bachelor of IT at Deakin. She acknowledges that the COE is now cancelled.

   As stated in the primary decision, at the time of that decision, PRISMS indicated that the applicant was still enrolled in a principal course of study for a bachelor’s degree (the Bachelor of IT at Deakin) that is provided by an eligible education provider, but he was not enrolled in another course of study before and for the purposes of the principal course of study and provided by an education business partner of Deakin.

   The Diploma of Computing at MIBT (an education business partner of Deakin) was a course of study before and for the purposes of the principal course of study (the Bachelor of IT at Deakin). When the applicant ceased to be enrolled in the Diploma of Computing at MIBT and enrolled in cookery courses in the VET sector, he ceased to be an eligible higher degree student because the cookery courses were not “before and for the purposes of the principal course of study (the Bachelor of IT). When he ceased to satisfy the definition of an eligible higher degree student, the circumstances that enabled him to satisfy cl.573.233(1A) no longer existed.

9. In my opinion, the conclusions reached by the Tribunal were open to it on the material before it. That material included the delegate’s decision and the PRISMS record. It logically follows that the “no evidence” argument advanced by Mr Shrestha in submissions cannot succeed. Further, there was no obligation on the Tribunal to make further inquiries (such as obtaining the original visa application) in circumstances where the diploma course appeared to be related to the bachelor course and Mr Shrestha did not suggest otherwise either before the delegate or before the Tribunal.

10. Ground 1 fails.

Ground 2 – did Mr Shrestha remain an eligible higher degree student on the basis of his Bachelor of IT enrolment?

1. In the light of my findings in relation to ground one this ground cannot succeed. I have found no error in the Tribunal’s decision that paragraph (c) of the definition of eligible higher degree student was engaged in Mr Shrestha’s case. It must logically follow that the question of whether he continued to satisfy paragraphs (a) and (b) is immaterial. I have nevertheless considered Mr Shrestha’s contentions. I prefer the Minister’s submissions on this issue.

2. Mr Shrestha’s contention appears to involve the following logic:

   a)if Mr Shrestha did rely on paragraph (c) of clause 573.111, it was not necessary that he do so – satisfaction of paragraphs (a) and (b) would have been, or would now be, adequate; 

   b)therefore, even if the Tribunal was correct to conclude that Mr Shrestha no longer satisfied paragraph (c) of clause 573.111, the Tribunal needed to inquire into whether Mr Shrestha continued to satisfy paragraphs (a) and (b) alone.

3. This logic is faulty because it does not follow the terms of s.116(1)(a) of the Migration Act. As noted above, s.116(1)(a) is not concerned with whether an applicant might satisfy some definition at any particular time; it is concerned with whether certain necessary historical circumstances continue to exist.

4. In this case, Mr Shrestha “fitted” all of the circumstances in paragraphs (a), (b) and (c) of clause 573.111 in meeting the definition of “eligible higher degree student”. It follows that the Tribunal’s finding that Mr Shrestha ceased to satisfy paragraph (c) of clause 573.111, which was a circumstance which existed at the time of the grant of the visa permitting its grant, is a finding that engages the power under s.116(1)(a) of the Migration Act.

5. Mr Shrestha says that this finding was not lawfully made because he did not need to satisfy paragraph (c) of clause 573.111.[9]

   [9] Applicant’s submissions, filed 30 March 2016, [25]

6. This assertion is contrary to the manner in which the Tribunal approached the review, and contrary to implicit findings made by the Tribunal.  The Tribunal proceeded on the basis that Mr Shrestha was required to have been enrolled in a course “before, and for the purpose of” the principal course in order to have met the definition of an eligible higher degree student in clause 573.111.  This implies that the Tribunal believed that Mr Shrestha was required to rely on clause 573.111(c) in order to meet this definition, which in turn, implies that the Tribunal believed that Mr Shrestha could not (or would not) have enrolled in the principal course (Bachelor of IT) without also being enrolled in a preliminary course (Diploma of Computing).[10] That is, the Tribunal believed that Mr Shrestha needed to be enrolled in the Diploma of Computing in order to enrol in the Bachelor of IT (whether because of Deakin University pre-requisite requirements, or otherwise).

   [10] Tribunal Reasons [46], CB 173-174

7. I accept that, as Mr Shrestha makes an allegation contrary to the basis on which the Tribunal decided the review, he bears the onus to prove that allegation on the balance of probabilities.   Mr Shrestha advances no evidence that his visa application could have been granted without him satisfying paragraph (c) of clause 573.111.  For example, Mr Shrestha advances no evidence that he was eligible to enrol in the Bachelor of IT without first undertaking pre-requisite courses, such as a Diploma of Computing. Even if he was so eligible there is a strong inference against Mr Shrestha; it is doubtful that he would have enrolled in a Diploma of Computing prior to a Bachelor of IT unless he considered that it was a necessary preliminary step.

8. In these circumstances, it is not open for the Court to accept the Mr Shrestha’s argument on ground two because there is no evidential foundation to support the contention.

9. In any event, this argument would not assist Mr Shrestha. The fact remains that Mr Shrestha did rely on his Diploma of Computing to satisfy the definition of an “eligible higher degree student”. This was a circumstance which permitted the grant of this visa. Accordingly, it falls within the scope of s.116(1)(a) of the Migration Act, and the Tribunal was correct to find that its power under that provision was engaged.

Grounds 3 and 4 – did the Tribunal err in considering the exercise of discretion?

1. Mr Shrestha makes the following contentions:

   a)the Tribunal erred in considering its exercise of discretion by failing to consider that Mr Shrestha’s processing via the SVP stream was not as a result of any special application by him to be in that stream, but as a result of Australia’s administrative arrangements in relation to visa processing of student visa applications for persons enrolled with particular eligible education providers.  In other words, Mr Shrestha did not ask to be in the SVP stream. There was no separate application for the SVP stream, there was just the usual student visa application form;

   b)the Tribunal’s reasons at [54] show that the Tribunal thought it was relevant that Mr Shrestha had obtained the visa in a process where “the evidentiary requirements were less stringent than would otherwise be the case”.  It seems that the Tribunal’s view was that because Mr Shrestha had switched to a course that would not have had him in the “fast queue” (i.e. non-SVP processing), he should have his visa cancelled, even if Mr Shrestha could have met the non-SVP requirements;

   c)what the Tribunal overlooked was that the point of the SVP provisions was to assist Australia’s overseas student industry and particular education providers by allowing streamlined enrolment of their students;

   d)in light of the purpose of the SVP system, the fact that a student subsequently struggles to succeed in such a course and switches to a non-SVP education provider should not mean that they automatically lose their visa.   Rather, all relevant matters to the exercise of discretion should be considered in deciding whether to allow the relevant overseas student to continue studying in Australia;

   e)in considering the discretion, questions about whether the student would have been eligible for the visa through the non-SVP “slow lane”, by satisfying the Schedule 5A requirements, are relevant.  The Tribunal’s failure to consider whether Mr Shrestha would have obtained a normal non-SVP visa was erroneous; and

   f)the Tribunal erred in its discretionary considerations of Mr Shrestha’s claim that he did not know that changing course to a non-SVP would lead to cancellation:

   i)first, the Tribunal failed to take into account Mr Shrestha’s explanation that there was no indication on his visa that he could not change courses.  Even if the applicant could be expected to know that he had to maintain eligibility for a visa, that does not mean he could only be enrolled in an SVP-stream course; and

   ii)secondly, the Tribunal considered that Mr Shrestha should have sought and obtained advice that changing courses could lead to cancellation of his visa. Such reasoning presumes that ceasing to be enrolled in a preparatory course with an SVP provider would be a change of circumstances that would mean his visa was cancelled, even though he remained enrolled in the principal course. 

2. In my opinion, the Tribunal did not err in considering the exercise of discretion. In that regard, I agree with the Minister’s submissions.

3. The Tribunal considered all of Mr Shrestha’s arguments and responded to them clearly. The Tribunal’s principal finding was that the onus to ensure that Mr Shrestha’s migration status was correct was upon Mr Shrestha. Accordingly, the Tribunal was not sympathetic to his explanation as to how the present circumstances came into being (naivety and poor advice). The Tribunal accepted that Mr Shrestha would experience some hardship if the visa was cancelled, but in weighing up the circumstances, found that the breach of s.116(1)(a) of the Migration Act outweighed the factors favouring Mr Shrestha. This was a lawful course of reasoning by the Tribunal.

4. In relation to Mr Shrestha’s submissions:

   a)it is not relevant whether Mr Shrestha “chose” to be in the SVP or not.  All that is relevant is whether circumstances which permitted the grant of the visa ceased to exist (which they did).  In any event, Mr Shrestha is wrong to suggest that he did not chose to be considered under the SVP – his answer referred to above in the application form is the making of just such a choice.  Moreover, there is no basis on which it can be inferred that the Tribunal considered that switching courses out of the “fast queue” should expose his visa to cancellation;[11]

   b)Mr Shrestha raises matters of policy which were not relevant to the review; Mr Shrestha never raised an argument, or advanced any evidence, suggesting that he satisfies the requirements of the non-SVP stream under clause 573.223(2);

   c)further, it is well settled that, unless some consideration is a “mandatory” relevant consideration, no jurisdictional error arises from a failure to consider it. Mr Shrestha does not identify how it is said that the matters raised become a mandatory relevant consideration;

   d)the Tribunal was aware of the matters raised by Mr Shrestha in relation to his lack of understanding of the visa conditions,[12] and the response is subsumed within the finding that the onus is on an applicant to understand their migration responsibilities;[13] and

   e)there is nothing in the Tribunal’s reasons which indicates that the Tribunal thought that Mr Shrestha “should” do anything; rather, it merely notes that Mr Shrestha “could” have taken steps to avoid the relevant circumstances.[14]   In any event, there is no basis on which this Court can infer that the Tribunal “presumed” anything.  On the contrary, the Tribunal was careful to identify all of the facts and examine their significance against the legal criteria.

   [11] Even if there had been an available inference that might well have been a relevant consideration for the Tribunal

   [12] Tribunal Reasons [10], [11(e)], [30]

   [13] Tribunal Reasons [57]

   [14] Tribunal Reasons [57]

1. It was a necessary but not sufficient condition for the grant of the visa that Mr Shrestha be enrolled in a principal course. The fact that he was still enrolled in that course at the time of the delegate’s decision was known to the Tribunal, as was the fact that the enrolment was cancelled following the decision of the delegate. No inference can be drawn that the Tribunal failed to consider those issues in considering the exercise of discretion.

2. Likewise, the Tribunal was well aware of Mr Shrestha’s efforts to enrol in other SVP courses with other institutions and the confusion of Mr Shrestha (and his agent) about the relevant visa criteria. The Tribunal dealt with the confusion by explaining at the hearing the operation of the definition of eligible higher degree student. The Tribunal in its decision record noted Mr Shrestha’s efforts to enrol in other qualifying courses but found that his efforts had either been unsuccessful or that the relevant course did not qualify. There was, in my opinion, no need for the Tribunal to revisit those issues in considering the exercise of discretion.

Conclusion

1. Mr Shrestha has failed to establish that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.

2. I will hear the parties as to costs.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  17 June 2016