Sidhu v Minister for Immigration
[2017] FCCA 540
•24 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIDHU v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 540 |
| Catchwords: MIGRATION – Student visa – whether Applicant should be granted an extension of time in which to file his application - whether the Tribunal misconstrued the Applicant’s claim and/or evidence in support of his claim that the Tribunal should not exercise its discretion under s.116 of the Migration Act 1958 (Cth) to cancel his visa – held no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 477(1), 477(2) Migration Regulations 1994 (Cth), sub-cls.573.231, 573.223(1A), condition 8516, sch.8 |
| Cases cited: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 |
| Applicant: | RAMANDEEP SINGH SIDHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2511 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 15 February 2017 |
| Date of Last Submission: | 15 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The Applicant be granted an extension of time pursuant to sub-s.477(2) of the Migration Act 1958 (Cth) in which to file an application for judicial review.
The amended application for judicial review filed 25 August 2016 be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2511 of 2015
| RAMANDEEP SINGH SIDHU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
By an Amended Application filed 25 August 2016, the Applicant seeks an extension of time to bring judicial review proceedings in relation to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 October 2015 under the Migration Act 1958 (Cth) (“the Act”). The Tribunal affirmed a decision of a delegate of the Minister of Immigration and Border Protection (“the Minister”) to cancel the Applicant’s Subclass 573 Higher Education Sector visa (“the visa”).
Pursuant to sub-s.477(1) of the Act, an Applicant applying for judicial review in the Federal Circuit Court is required to, “in relation to a migration decision”, make the application “within 35 days of the date of the migration decision”. The Applicant made his application for judicial review on 11 November 2015, being two days out of time.
Pursuant to sub-s.477(2) of the Act, the Court may extend that 35 day period, if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In his application for judicial review, the Applicant has complied with sub-s.477(2)(a) of the Act. Accordingly, it falls to the Court to consider whether it is satisfied that it is necessary, in the interests of the administration of justice, to make the Orders sought by the Applicant for an extension of time.
In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, Foster J dealt with an application for judicial review of a decision of this Court, refusing to extend the time under s.477(2) of the Act. His Honour explained the matters relevant to an application under s.477(2) of the Act, as follows (at [46]-[48]):
46. There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
47 . The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
48 . The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
In MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, the Full Court of the Federal Court, whilst not actually deciding the point, approved the approach to s.477(2) of the Act elucidated by Justice Mortimer in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391. In essence, Justice Mortimer said that, if a Judge, in considering whether to extend time under the requirements of s.477(2) of the Act, engages in what is apparently a full-blown hearing, then the Judge will have erred in discharging his or her discretion. The Full Court referred to this extract from her Honour’s decision (at [21]-[22]):
21. Her Honour nonetheless continued to express her “disquiet” about the manner in which the FCC had dealt with the factor of the merits of the appellant’s proposed grounds of review in considering the application to extend time “lest these reasons be taken as an endorsement of the approach taken by the Federal Circuit Court” (at [61]). In this regard, her Honour held first that:
62. … it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
22. In this regard, her Honour expressed her agreement with the observations of Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (appeal dismissed in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158). In particular, her Honour agreed with Wigney J in SZTES at [102] that the practice in the FCC of listing both an application for an extension of time and the final hearing together may encourage an undue focus upon the merits of the proposed grounds of review and result in an artificial approach to the extension of time application. Nonetheless, her Honour considered that, provided that the proper tests are applied, there is no reason why that practice cannot be followed.
(emphasis added)
The Applicant arrived in Australia on 15 March 2013 as the holder of a Higher Education Sector Subclass 573 visa, relying upon enrolment in a Bachelor of Business (Management) course due to commence on 30 June 2014, and ancillary enrolment in a Diploma of Business and an English language course.
The Applicant completed one trimester of the Diploma course and never commenced studying the Bachelor course, enrolling instead in another course which was beneath the level required for this subclass of visa. His enrolment in the Bachelor course was cancelled due to non-commencement of his studies. The Department of Immigration and Border Protection (“the Department”) issued a Notice Of Intention to Consider Cancellation (“NOICC”) on 24 October 2014 (CB 7-11), on the basis that the Applicant had breached condition 8516 contained in sch.8 of the Migration Regulations 1994 (Cth) (“the Regulations”), which required that the Applicant continue to satisfy the primary criteria. In this case, the primary criteria for the grant of the visa required the Applicant to maintain a relevant enrolment (sub-cl.573.231 and sub-cl.573.223(1A) of the Regulations).
There is no dispute that the Applicant breached condition 8516 contained in schedule 8 of the Regulations, because he was not enrolled in a higher degree course during the period of 10 October 2013 to 30 October 2014. As a consequence, it is accepted that the power under sub-s.116(1)(a) of the Act was engaged, with the only live question before the Tribunal being whether the discretion not to cancel the Applicant’s visa should be exercised in his favour. The Tribunal decided, considering the circumstances as a whole, that the visa should be cancelled.
The Applicant’s ground of judicial review is directed to the Tribunal’s exercise of its discretion, and is as follows:
The decision of the Tribunal is affected by Jurisdictional Error because the Tribunal constructively failed to conduct a review, in that the Tribunal misunderstood the applicant’s statement to the Department in 2014 and his evidence of being the victim of poor advice from his one-time migration agent, or being misled by his one-time migration agent.
The Applicant relies on the decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 (“NABE”) for his submission that the Tribunal misconstrued or overlooked his evidence in reaching its finding and thereby fell into jurisdictional error. The Applicant submits that the Tribunal misconstrued or overlooked the totality of his evidence that the breach of condition 8516 contained in sch.8 of the Regulations arose because of poor advice given to him by his one-time migration agent as to the requirements which apply to his visa. He submits that his evidence was that, he was told by his then migration agent that receipt of an offer of enrolment from a qualifying institution in a relevant higher degree course was sufficient and that he did not need to actually be enrolled in that course. Acting on this advice, the Applicant submits that he pursued an alternative study strategy. The Applicant argues that the Tribunal focused on one aspect of his evidence in relation to this point, but overlooked other critical aspects of the evidence in support of his argument that he acted on poor advice from a migration agent.
Should an extension of time be granted?
The Minister does not oppose an extension of time being granted by the Court, and I am satisfied that the Minister would not suffer any prejudice by the grant an extension in time.
The delay in the making of the application for judicial review is very short. The Applicant claims that this delay was as a consequence of his then legal representative failing to provide him with a copy of the Tribunal’s decision in a timely manner. I am not satisfied that the reason for the delay is adequate. Nonetheless, the delay itself involves only a short period of time.
Having regard to the material before the Court, I am satisfied that the Applicant’s case is not plainly hopeless. Balancing all of the relevant factors, I am satisfied that, in the interests of the administration of justice, an extension of time should be granted to enable the Applicant to agitate his application for judicial review.
Tribunal decision
Under the heading, “Consideration of discretion”, the Tribunal commenced by noting that neither the Act nor the Regulations specify the matters that are required to be considered in relation to the exercise of the discretion to cancel the visa. The Tribunal noted, however, that in deciding whether to exercise its discretion, it had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual (“PAM3”) “General visa cancellation powers” (CB 82 at [11]).
The focus of the judicial review application is the following paragraphs of the Tribunal’s decision record. The Tribunal extracted, in full, a statement provided by the Applicant to the Department, which included the following (CB 82-83 at [12]):
… I was made aware of the various factors that have to be kept in mind while on student visa [sic]. I believe that I have maintained my visa condition and have not breached my 573 subclass condition. I have changed my course prior to the education aware program in January 2014 and request the respectful officer to consider the circumstances.
The Tribunal proceeded to set out a record of its discussion with the Applicant, regarding the Applicant’s circumstances at the hearing, including the following (CB 83 at [15]-[16]):
15. The Tribunal asked why the applicant had not enrolled in a Higher Degree business course at the time he enrolled in the vocational courses. The applicant stated he had received a letter of offer from Stott’s College, but did not enrol. The applicant stated he was told by his then agent ‘CECA’ that he did not need a CoE in the higher degree at that time, he could get it later, the offer letter was adequate. The agent provided him with the offer letter and enrolments. The applicant stated he was misguided by the agent. The applicant has made no complaint about his agent. The Tribunal noted that the applicant had been quick to enrol and pay $7000 when advised he was in breach of his visa requirements in October 2014.
16. The Tribunal also took the applicant to an inconsistency in his evidence. The Tribunal notes that the applicant had provided a written submission to the Department. In that letter he had stated:
I learnt about the immigration education awareness program from immigration which has waived the condition that student who have changed their provider before 14th January from SVP to non SVP providers. I was made aware of the various factors that have to be kept in mind while on student visa.
The Tribunal then proceeded to discuss this evidence by the Applicant that he was misguided by his agent (CB 84 at [17]):
17. In this statement the applicant acknowledged that he was aware of the education campaign of January 2014, which discussed issues arising from course swapping from SVP to non-SVP course providers. The statement goes further, the applicant stated that “I was made aware of the various factors that have to be kept in mind while on student visa”. Clearly this includes the need to remain enrolled in a higher degree course to meet the requirements of 573.231. The applicant had a letter of offer at that time, but did not take up the offer. The applicant clearly knew he was in breach of his visa requirements, but did not take any step at this time to rectify his situation. This is not the agent’s fault, this is the activity of the applicant himself. The Tribunal considers that the applicant was made aware of his visa issues, but did not take any step to rectify this situation. The applicant did not return to his high degree enrolment at or after he was notified of the visa concerns of the Department. The Tribunal does not accept that the applicant intended to return to this high degree level, but only did so after realising his visa predicament.
The Tribunal then proceeded to consider the question of hardship to the Applicant and his family as well as his work experience as it related to the Applicant’s stated plan of running a restaurant.
The Tribunal then found as follows (CB 84-85 at [22]-[23]):
22. The Tribunal has considered all these aspects of the applicant’s circumstances. He left the higher degree courses that would appear to have been appropriate for his stated aim of running a business, and enrolled in vocational courses. He demonstrated no intention of returning to the high degree courses until after he was advised of his visa breach, which causes significant doubt as to the intention of the applicant enrolling in such a course. Further, the applicant knew he was in breach of his visa by his previous written statement in January 2014, yet did not do anything to rectify this situation. He blamed his agent, whilst acknowledging that he was aware that he was told of what he needed to keep in mind while on the student visa. This included the need to meet the enrolment requirements of the 573 visa. The Tribunal does not accept that the agent is to blame for the applicant’s predicament.
23. The applicant stated intention of running a business is not supported by his actions. He studies are at the vocational level of being a cook in kitchen [sic]. He has not sought practical experience while in Australia, which may have supported his claim that he needed to know everything about a restaurant. He did not do this, the Tribunal considers that the applicant stated plans are not supported by his choice of study or work.
The Tribunal then proceeded to make findings with respect to the question of hardship (CB 85 at [241]). It stated that, in considering the circumstances as a whole, it concluded that the visa should be cancelled (CB 85 at [25]).
Judicial Review
The Applicant submitted that the error engaged in by the Tribunal was that identified in NABE (at [55]):
55. Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at 394 [26]):
... the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.
In that case the Tribunal should have decided the matter which was put to it by reference to the particular social group defined in the applicant’s submissions – namely entrepreneurs and businessmen in Russia who publicly criticise law enforcement authorities for failing to take action against crime or criminals. Instead it decided whether the applicant’s membership of the group of ‘businessmen in Russia’ was a reason for his persecution.
Counsel for the Applicant submitted that, the principal argument made by the Applicant in support of a favourable exercise of discretion by the Tribunal, was that he relied on poor advice from his migration agent and that, upon learning of the mistake, he took steps to correct that mistake, and enrolled in a suitably qualifying course.
The Applicant submitted that the Tribunal’s finding (at [17] of its decision record, extracted in full at [18] above) that, “[t]he applicant clearly knew he was in breach of visa requirements, but did not take any steps at this time to rectify his situation”, was a crucial finding in the merits review as it led the Tribunal to conclude in the same paragraph that, “[t]his is not the agent’s fault, this is the activity of the applicant himself.”
The Applicant argued that this finding was later summarised by the Tribunal when it stated, “… the applicant knew he was in breach of his visa by his previous written statement in January 2014, yet did not do anything to rectify this situation. He blamed his agent, whilst acknowledging that he was aware that he was told of what he needed to keep in mind while on the student visa” (CB 84 at [22], extracted at [20] above).
It was submitted by the Applicant that the Tribunal’s consideration of this issue was flawed, because it misunderstood the Applicant’s evidence, with the result that the exercise of the Tribunal’s discretion was miscarried. The Applicant argued that the misunderstanding is apparent from paragraph [16] of the Tribunal’s decision record, which immediately follows its record of the Applicant’s claim that he was misled at [15] of the decision record. The Applicant submits that at [16] of the decision record, the Tribunal referred to only part of the Applicant’s statement; namely, that the Applicant “… was made aware of the various factors that have to be kept in mind while on student visa.” Counsel for the Applicant submitted that the Tribunal omitted to refer to the next, and crucial part of Applicant’s statement that, “[he] believe[d] that [he had] maintained [his] visa condition….” Counsel for the Applicant described this sentence as the Applicant’s “qualifying statement.”
The Applicant submitted that the Tribunal omitted to deal with the critical, qualifying aspect of his statement; that he thought that, by accepting the agent’s advice, he had maintained compliance with his visa conditions. The Applicant submitted that the Tribunal’s failure to consider that qualifying statement amounts to a jurisdictional error of the type contemplated in NABE. The Applicant submitted that the jurisdictional error arises because the Tribunal’s discretion miscarried, as the Tribunal had misunderstood what constituted the Applicant’s principal argument for a favourable exercise of its discretion.
The Minister submitted that the task of constructing the Applicant’s evidence was one for the Tribunal, and that it constructed it in a particular way. The Minister argues that it is evident from [15] of the decision record that, the Tribunal grappled with the Applicant’s claim when it recorded the Applicant’s evidence that he had received a letter of offer from Stott’s College but did not enrol, that he was told by his then agent that he did not need a Confirmation of Enrolment (“CoE”) in the higher degree at the time, and that he was provided with the offer letter and enrolments by the agent.
The Minister submitted that, in fact, at [15] of its decision record, the Tribunal set out the basis for the Applicant’s belief that he was compliant with his visa conditions. In so doing, the Tribunal directed its attention to the Applicant’s evidence about the basis for his belief. The Minister argued that it was unnecessary, given that the Tribunal had earlier set out the Applicant’s claim about the basis for his belief that he was compliant with the visa conditions, to repeat the Applicant’s statement about his belief.
The Minister noted that, whilst the Tribunal had set out the Applicant’s claim, it then noted that the Applicant had made no complaint about his agent, and that he had been quick to enrol and pay $7,000 when advised that he was in breach of his visa requirements in October 2014.
The Minister argued that the Tribunal then proceeded to set out what it believed was the pivotal part of the Applicant’s statement; namely, that the Applicant “… was made aware of the various factors that have to be kept in mind while on student visa.” The Minister argued that the fact that the Tribunal relied on this statement, referring to it expressly at [16] of its decision record, does not amount to misconstruction of the Applicant’s evidence, in circumstances where the Tribunal had earlier set out the Applicant’s claim about his belief at [15] of the decision record.
The Minister submitted that at [17] of its decision record, the Tribunal clearly set out its basis for rejecting the Applicant’s claim that he believed he was compliant because he was acting on his agent’s advice.
The Minister argued that it is evident from [17] what was exercising the mind of the Tribunal at this time. In the final two sentences of that paragraph, the Tribunal sets out its doubts about the Applicant’s claim:
The applicant did not return to his higher degree enrolment until after he was notified of the visa concerns of the Department. The Tribunal does not accept that the applicant intended to return to this higher degree level, but only did so after realising his visa predicament.
The Minister argues that the above factual finding was open to the Tribunal, based on the material that had been put before it. The Tribunal had acknowledged what the Applicant said. It had acknowledged that the Applicant’s case was that, “… [he] was made aware of various factors. [He] believed [he] was compliant, and [he] acted on [his] agent’s advice to form that belief.” However, it rejected the Applicant’s claim that, at the time he had that belief largely because it focused on the part of the Applicant’s statement which says, “I was made aware of the various factors that have to be kept in mind while on a student visa.”
The Minister submitted that, even if it could be said the Tribunal misconstrued the Applicant’s evidence as claimed by the Applicant, there were other reasons given by the Tribunal for its decision to exercise its discretion to cancel the visa. The Minister asserts that these reasons are distinct and severable, and are located in the Tribunal’s decision record as follows (at [22]-[24]):
a)the fact that the Applicant left the higher degree course appropriate for his stated aim of running a business, and enrolled in vocational courses (CB 84 at [22]);
b)the Applicant demonstrated no intention of returning to the higher degree course until after he was advised of his breach of the visa condition, which causes significant doubt as to his intention of enrolling in such a course (CB 84 at [22]);
c)the Applicant’s stated intention of running a business is not supported by his actions. His studies are at the vocational level of being a cook in a kitchen (CB 84 at [23]);
d)the Applicant has not sought practical experience while in Australia, which may have supported his claim that he needed to know everything about a restaurant (CB 84-85 at [23]); and
e)the fact that the hardship for the Applicant is limited (CB 85 at [24]).
Counsel for the Applicant responded that, the fact that there may have been additional reasons for the Tribunal’s exercise of discretion does not overcome an error which is jurisdictional. Counsel referred to [63] of the decision in NABE, where the Full Court said:
… if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.
Consideration
I am satisfied that the Tribunal understood that the Applicant claimed that his breach of the visa condition arose from advice given to him by his agent that a letter of offer of enrolment was sufficient and that he did not need to have a CoE. This is evident from the Tribunal’s recitation of the Applicant’s claim regarding his then agent’s advice (CB 83 at [15]), the Tribunal’s rejection of the Applicant’s claim that his failure to be enrolled in a higher degree course was “the agent’s fault” (CB 84 at [18]) and, when the Tribunal, referring to the Applicant’s breach of his visa condition, said that “[h]e blamed his agent…” (CB 84 at [22]).
Counsel for the Applicant argued that the “qualifying statement”, which was relied on for the proposition that the Tribunal misconstrued or overlooked the Applicant’s evidence, is the sentence that immediately follows on from the sentence in the Applicant’s written submission, extracted by the Tribunal at [16] of its decision record; namely, “I believe that I have maintained my visa condition and have not breached my 573 subclass condition.” The Applicant fixes on the fact that the Tribunal failed to expressly refer to this qualifying statement as the basis for his submission that the Tribunal misconstrued his claim.
In my opinion, this argument fails to appreciate the manner in which the Tribunal approached its statutory task. The Tribunal referred firstly to the Applicant’s claim that he acted on the (erroneous) advice of his then agent (CB 83 at [15]). It then proceeded to note that it took the Applicant to inconsistencies in his evidence; namely, his awareness of changes in conditions applicable to streamlined visa processing (“SVP”) and non-SVP providers and, in particular, his statement, which was contrary to his claim about the agent’s advice, that he “was made aware of the various factors that have to be kept in mind while on student visa” (CB 83at [16]). In my opinion, the Tribunal was entitled to highlight the inconsistency of this claim with the Applicant’s evidence that he was given advice that resulted in a breach of his visa condition. The Tribunal went on to reject the Applicant’s claim that the breach of his visa condition was as a consequence of the agent’s advice. There is no doubt that, in rejecting the Applicant’s claim, the Tribunal relied on the Applicant’s statement that he was aware of the visa conditions. However, it was open to the Tribunal to prefer this evidence or claim over the Applicant’s inconsistent claim.
The Tribunal then set out its reasoning in relation to the Applicant’s claim that his failure to comply with a visa condition was because of the misguided advice of his former agent. At [22] of its decision record, the Tribunal reasoned as follows:
a)the Applicant left the higher degree appropriate for his stated aim of running a business, and enrolled in vocational courses;
b)the Applicant demonstrated no intention of returning to the higher degree courses until after he was advised of his visa breach. This fact caused the Tribunal significant doubt as to the intention of the Applicant enrolling in such a course;
c)the Applicant knew he was in breach of his visa, evidenced by his previous written statement in January 2014, yet did not do anything to rectify the situation; and
d)the Applicant blamed his agent, whilst acknowledging that he was aware that he was told of what he needs to keep in mind while on the student visa. This included the need to meet the enrolment requirements of the subclass 573 visa.
Accordingly, the Tribunal rejected the Applicant’s claim stating that it did not accept that the agent is to blame for the Applicant’s predicament.
I agree with the submissions of the Minister, that the Tribunal appreciated and dealt with the Applicant’s evidence that he believed that he was compliant with the visa conditions because of the advice given by his migration agent that he was only required to have a letter of offer and not a CoE in a higher degree course. This is evident from the Tribunal’s record of the Applicant’s evidence contained at [15] of its decision record. The Tribunal did not need to refer specifically to the Applicant’s so-called “qualifying statement” in considering his claim, in circumstances where it is manifestly apparent that the Tribunal appreciated the basis for his belief that he was compliant with the visa conditions.
In that same paragraph (at [15] of the Tribunal’s decision record), after it had recorded the basis for the Applicant’s belief, the Tribunal noted that the Applicant had made no complaint about his agent, and that the Applicant had been quick to enrol in and pay $7,000 when he was advised he was in breach of his visa condition in October 2014. In the subsequent paragraph, the Tribunal said that it took the Applicant to an inconsistency in his evidence; namely, that he was made aware of the various factors that have to be kept in mind while on student visa (CB 84 at [16]).
In my opinion, the Tribunal was entitled to take the Applicant’s evidence contained in his statement made to the Department that he was made aware of the various factors to be kept in mind while on a student visa, as evidence given by the Applicant that he was in fact aware of the conditions attached to the visa, including the requirement remain enrolled in a high degree course. The Tribunal was entitled to contrast this statement with the Applicant’s belief, as recorded in the previous paragraph [15] of its decision record, that he believed he was being visa compliant because of the agent’s advice.
The fact that the Tribunal’s extract of the Applicant’s statement to the Department, at [16] of the decision record, failed to include the Applicant’s statement that “I believe that I have maintained my visa condition and have not breached my 573 subclass condition”, does not warrant a conclusion that the Tribunal misconstrued the Applicant’s evidence. Taken as a whole, it is evident from the Tribunal’s decision record that it understood the Applicant’s claim and correctly construed his evidence. It is apparent that the Tribunal understood that the Applicant’s claim in support of his argument that the Tribunal should exercise its discretion in his favour, was that the breach of his visa condition was as a result of advice from his migration agent and that, based on this advice, he believed that he was compliant with the conditions of the visa.
The Tribunal simply did not accept the Applicant’s claim that the breach of his visa condition was because he formed a belief that he was compliant based on advice from his migration agent. The Tribunal formed a view that the Applicant’s breach of his visa conditions was as a consequence of his own inactivity. It did so on the basis of the Applicant’s statement that he was aware of the visa conditions and its conclusion, based on the Applicant’s enrolment history, made it clear that this caused it to doubt the Applicant’s intentions (see [22] of the decision record, extracted in full at [20] above).
Accordingly, I find that the Tribunal did not misunderstand or misconstrue the claim advanced by the Applicant, nor did the Tribunal base its conclusion in whole or in part upon the claim so misunderstood.
I find no jurisdictional error arises on the judicial review ground advanced by the Applicant.
Conclusion
For the reasons set out in this judgment, Orders will be made granting the Applicant an extension in time to file his application for judicial review, dismissing his application for judicial review, and requiring the Applicant to pay the First Respondent’s costs in a fixed amount.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 24 March 2017
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