Singh v Minister for Immigration
[2017] FCCA 1008
•19 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1008 |
| Catchwords: MIGRATION – Review of decision of Migration Review Tribunal – jurisdictional error – decision to cancel higher education sector visa – is decision legally unreasonable – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5; 116(1)(b); 474; 476 Migration Regulations 1994, r.1.40A |
| Cases cited: Singh v Minister for Immigration & Border Protection & Anor (2016) 240 FCR 1 Singh v Minister for Immigration & Anor [2015] FCCA 3486 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158 |
| Applicant: | GURPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 110 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 15 March 2017 |
| Date of Last Submission: | 15 March 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 19 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Singh in person |
| Counsel for the Respondents: | Mr O'Leary |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 110 of 2015
| GURPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings, by way of his application filed on 27 March 2015, seeks an order to quash a decision of the Migration Review Tribunal (as the Administrative Appeals Tribunal was formerly known) made on 25 February 2015.
In the decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration & Border Protection to cancel a subclass 573 higher education sector visa,[1] pursuant to the provisions of section 116(1)(b) of the Migration Act 1958 (Cth).[2]
[1] I will refer to this visa as the 573 higher education sector visa or more simply the 573 visa.
[2] Hereinafter referred to as “the Act”
The applicant is an Indian national born on 19 February 1993. He was granted the 573 higher education visa, whilst offshore, on 25 April 2014. He entered Australia, pursuant to it, in May 2014. In support of his visa application, the applicant indicated his intention to undertake a Bachelor of Information Technology course, at the Queensland University of Technology in Brisbane (QUT).
The applicant did not commence his studies at QUT. It his evidence, which does not appear to be controversial that he was homesick and unhappy in Brisbane. As a consequence, he decided to move from Brisbane to Adelaide, where he had relatives. QUT cancelled the applicant’s enrolment on 12 May 2014 and refunded his tuition fees.[3]
[3] See Singh v Minister for Immigration & Border Protection & Anor (2016) 240 FCR 1 at 3 [8]
On 13 June 2014, he applied for a subclass 572 temporary vocational education and training sector visa,[4] with the assistance of a migration agency. He indicated that he intended to study a Diploma of Website Development, under the auspices of a training provider, the Institute of Technology Australia, which is based in Adelaide.
[4] I will refer to this as the 572 vocational education and training sector visa or more simply the 572 visa.
The conditions applying to the 572 visa are specified in clause 572.223(1)(a) of the Migration Regulations 1994. The relevant portions of the provision reads as follows:
“(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) The Minster is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) The applicant’s circumstances; and
(ii) The applicant’s immigration history; and
(iii) …
(iv) Any other relevant matter;”
In general terms, an applicant for a 572 visa must satisfy the condition that he or she is a genuine student in the sense that his or her presence in Australia is for the purpose of study alone and therefore of a temporary nature.
On 4 August 2014, a delegate of the Minister refused to grant the applicant the subclass 572 vocational education and training sector visa. The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student. In reaching this conclusion, the delegate placed significant weight on the applicant’s apparent change in migration and study intent – that is his abandonment of his tertiary studies in Queensland and his move to South Australia.
In the relevant decision, the decision maker concerned wrote as follows:
“I give weight that your intended studies are in a course related to your previous studies. I place stronger weight however on that fact (sic) that you were granted your initial and current student visa, TU 573, to study at an Education Provider that is eligible under student visa streamline arrangements. In my decision, I have also referred to the decision record of your original visa granted where the case officer was satisfied to grant based on your enrolment with an eligible streamlined provider based on academic progression from previous relevant studies. Not long after your arrival in Australia, you have applied to study a significantly cheaper course in a different state of Australia, at an Education Provider which is not eligible under streamline arrangement. Whilst it is not uncommon for a person to seek to a change in career or study pathway, I find such a regression in pathway so soon after arriving in Australia and without sufficient reasoning, indicates your intentions are not of a genuine temporary basis.
…
I find that you have not clearly demonstrated sufficient reasoning why you did not commence studies in the Higher Education Sector and at an eligible streamlined provider. I therefore am not satisfied that you are a genuine student.”[5]
[5] See Case Book at pages 74 – 75
The decision in respect of the 572 vocational education and training sector visa was not subject to review by the applicant. It is his position that he did not properly understand the import of the decision and only received advice about it from family and friends, who were ill-equipped to advise him what he should do about it.
Accordingly, this decision is not directly subject to these proceedings but has peripheral relevance, for reasons which relate to his subsequent appeal to the Federal Court. What is germane, however, is that the applicant has never been granted a 572 visa and has no application on foot in respect of such a visa, at the present time.
At the time of the refusal to grant the 572 visa, although the applicant was not enrolled in the QUT course, his 573 visa remained current. At the same time, although he did not have the prerequisite visa for a vocational visa course, the applicant was formerly enrolled, as an overseas student, in the Diploma of Website Development course at the Institute of Technology Australia. In the applicable Confirmation of Enrolment the course is described as a Diploma (Course Sector VET).[6] This has significance for what occurred on his appeal to the Federal Court.
[6] See Case Book at page 27
The grant of the subclass 573 higher education sector visa is also subject to the satisfaction of conditions. Again, these are stipulated in the Migration Regulations 1994 (Cth) “the Regulations”. Relevantly, in the current matter, the applicable condition is specified in item 8516 of schedule 8 to the Regulations.
Item 8516 stipulates that a visa holder must continue to be a person who would satisfy the primary and secondary criteria, as the case requires, for the grant of the visa in question. So far as a 573 higher education visa is concerned, these criteria are set out in schedule 2 to the Regulations.
In particular, clause 573.231(a) & (b) provide as follows:
“(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principle course of study; and
(b) the principle course of study is of a type that was specified for Subclass 573 visas by the Minister in an instrument;
(i) made under regulation 1.40A;”
In summary, the holder of a 573 higher education sector visa is required, amongst other things, to be enrolled in a principle course of study, as specified by the Minister for Immigration & Border Protection in any instrument issued by the Minister from time to time. Pursuant to regulation 1.40A the Minister must specify, by written instrument, the type of course for each subclass of student visa.
The relevant ministerial instrument, dated 16 March 2014, stipulates that the type of course required to satisfy a subclass 573 higher education sector visa are as follows:
·Diploma (higher education);
·Advanced diploma (higher education);
·Bachelor degree;
·Graduate certificate (higher education);
·Graduate diploma (higher education);
·Associate degree;
·Masters by casework.[7]
[7] See IMMI 14/015 dated 16 March 2014
As will become clear, in due course, the inclusion of graduate certificate (higher education) in this list of courses was germane in the outcome of Mr Singh’s appeal to the Federal Court. The issue being whether Mr Singh’s enrolment in his diploma course at the Institute of Technology Australia could satisfy the condition contained in clause 573.231 (b) requiring enrolment in a course of study prescribed in Ministerial Instrument IMM14 made under regulation 1.40A.
On 5 September 2014, the Department issued the applicant with a notice of intention to consider cancellation of the 573 higher education sector visa, on the basis that he was no longer enrolled in a course of higher education study falling within any of the above mentioned categories, given that his enrolment at QUT had been discontinued.
At the time, however, the applicant was apparently engaged in a course of study at the Institute of Technology Australia. The applicant did not respond to the invitation contained in the notice to provide information to the Department about his change of course.
The power of the delegate to cancel a visa, issued under the Act, derives from section 116(1)(b) of the Act, which provides as follows:
“(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or”
Following the applicant’s failure to respond to the notice of intention to consider cancellation, on 16 September 2014, a delegate of the Minister cancelled the 573 higher education sector visa, which had been earlier granted to the applicant. Thereafter the applicant applied to have this decision reviewed in the Tribunal, which affirmed the delegate’s decision. It is this decision, which is the subject of the current proceedings.
The Tribunal Decision
The Tribunal noted that section 116(1)(b) granted a discretion to cancel if a decision-maker was satisfied that a visa holder had failed to comply with a condition attaching to the grant of a visa.
It further noted the application of condition 8516 which requires that the [visa] holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.
In respect of the jurisdiction conferred upon it, the Tribunal was concerned with any conditions applying to the 573 higher education sector visa. In this context, it noted two such primary criteria set out in clause 573.223(1A) or 573.231.
Although the Tribunal did not specifically delineate the contents of clause 573.223, the Tribunal found as follows:
“The applicant acknowledged at the hearing he was no longer enrolled in a higher education course as his principle course, which is a requirement of cl. 573.231 or, alternatively, cl 573.223(1A). The delegate in the Decision Record also found that, based on the Government’s enrolment records, the applicant no longer met the requirements of either cl. 573.223(1A) or cl. 573.231.
For these reasons, the Tribunal is satisfied that the applicant does not continue to be a person who would satisfy the primary criteria (cl. 573.223(1A) or cl. 573.231) for the grant of the visa and therefore has breached condition 8516. It follows that a ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.”[8]
[8] See Case Book at page 94 [23] – [24]
In exercising its discretion, the Tribunal had reference to departmental policy contained in the Procedural Advice Manual in respect of the application of condition 8516, which indicated the significance to be accorded to the prerequisite that visa holders continue to meet the conditions of their visa and not change their arrangements, upon arrival in Australia, to avoid visa requirements.
In this context, it noted condition 8516 mandated the continuance of adherence to the primary and secondary conditions attaching to a visa. Clause 573.223 (1A) is a time of application condition, which requires that an applicant be an eligible higher degree student.
Eligible higher degree student is defined in clause 573.111(a) and means an applicant enrolled in a principal course of study for the award of a bachelor’s degree or a master’s degree by course work. In this context, the Tribunal found that the applicant was “no longer enrolled in a requisite higher education course as his principal course, he does not satisfy the primary criteria for a subclass 573 visa and is in breach of condition 8516.”[9]
[9] Ibid at [27]
Thereafter, the Tribunal summarised a number of the applicant’s personal circumstances, which included the following:
·His parents were hardworking people who would not be able to support him if he returned to India;
·His future hinged on the successful completion of studies in Australia;
·The Tribunal acknowledged that the applicant had indicated that he had changed course because of homesickness;
The Tribunal also noted the following:
·The applicant had not sought professional advice in respect of the consequences of enrolling in a vocational course in Adelaide;
·He had abandoned his higher education studies very soon after arriving in Australia;
·As such, the breach of condition 8516 was not beyond the applicant’s control;
·It was accepted that the cancellation of the visa would cause personal hardship to the applicant;
·Nothing adverse was known in respect of the applicant’s migration history.
In these circumstances, the Tribunal found that the applicant had breached condition 8516 of his 573 visa by ceasing to be enrolled in a requisite higher education course. In these circumstances, the Tribunal found as follows:
“The Tribunal has found that the applicant has breached condition 8516 of his Subclass 573 visa by ceasing to be enrolled in a requisite higher education course. The Tribunal considers that breach to be significant because the applicant ceased to undertake study at the level for which his visa was granted. He continues not to be enrolled in a requisite higher education course and were the Tribunal to set aside the decision under review and substitute a decision not to cancel the applicant’s Subclass 573 visa, he would remain in breach of the primary criteria and condition 8516.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.”[10]
[10] Ibid at [39] – [40]
The application for review
In his self-prepared application, Mr Singh has provided the following grounds in support of his application:
“Tribunal member refused my case stating that he is not satisfied that breach occurred in exceptional circumstances that were beyond my control. In paragraph 15 of the decision I clearly had stated that I was home sick, depressed and was unable to cope up with the studies. ‘15. At hearing, the applicant explained that he had studied computers in India and had always wanted to study IT. However, after arriving in Queensland, he found that he was very lonely and homesick. He comes from a small town in India where his father is a dairy farmer and his mother has a beauty salon. He is the oldest of three children. He is unmarried and has no children." But tribunal stated that ‘The Tribunal does not consider that the breach of condition 8516 occurred in circumstances beyond the applicant's control. It is the primary responsibility of the applicant to ensure that he meets the terms and conditions of his visa. The Tribunal is not satisfied there are extenuating or compassionate circumstances in this case.” Tribunal clearly failed to put weight on my mental status. I always did the right thing. I applied for subclass 572 visa as I had decided to study diploma due to depression and finding existing course hard but tribunal did not out enough weight on this fact that I was depressed which is beyond my control and made error in decision.”
Previous proceedings in the Federal Circuit Court
Mr Singh’s application, filed on 27 March 2015, initially came on before Judge Heffernan, of this Court, on 16 December 2015, on what is known as a show cause hearing. Such hearings are authorised by the provisions of rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth), which authorises the court to dismiss an application for judicial review of certain migration decisions, if it is satisfied that the application concerned does not raise an arguable case for the relief sought.
Judge Heffernan was not satisfied that the applicant had such an arguable case. He determined as follows:
“I am not satisfied the applicant has established that he has an arguable case that he is entitled to the relief that he seeks. In effect, the applicant seeks to have this court engage in an impermissible merits review. The question of the weight to be given to the factors identified by the applicant as the extenuating personal circumstances that called for compassion was entirely a matter for the Tribunal.
…
Taking the applicant’s ground for review at its broadest, there is no arguable case that the Tribunal has failed to have regard to a relevant matter or relied on any irrelevant matter in making the decision that it did. There is no arguable case that the decision was irrational, unreasonable or illogical.”[11]
[11] See Singh v Minister for Immigration & Anor [2015] FCCA 3486 at paragraph 13 & 15
The proceedings before the Federal Court
This decision was subject to an appeal, in the Federal Court, which was determined by Charlesworth J on 31 May 2016.[12] The appeal was successful. Her Honour being satisfied that Mr Singh’s application did disclose an arguable case.
[12] Singh v Minister for Immigration & Border Protection & Anor [2016] 240 FCR 1
The applicant’s grounds of appeal were expressed by him in an affidavit filed in the Federal Court. Charlesworth J noted that the grounds expressed in the affidavit were of a different nature to those relied upon before Judge Heffernan and indeed before me on the remitted hearing. The relevant portion of the affidavit read as follows:
“Tribunal made many errors in its decision. Tribunal clearly failed to understand the clause in migration act of genuine student. As an International student I should have the right to choose my course of study. I came to Australia to study bachelors in Information technology and later realised that course is very hard and was home sick as well. I came to Adelaide from Brisbane and took admission to study diploma in related course so in future I can study bachelors. I did everything right and what I felt like. I am a student and paying for my course. I exercised my basic right to do what I feellike. Department and Tribunal has misinterpreted the definition of genuine student and put wrong condition on student visa which led to refusal to my basic right as a consumer. They have violated my basic right of consumer and hence there is error in its decision. I explained Court my stand but the Respected Judge failed to figure out jurdictional error. I feel judgment is made on wrong grounds.”
The determination of Charlesworth J that Mr Singh had disclosed at least an arguable case for relief flowed from the nature of the criteria specified in clause 573.223, the satisfaction of which was an essential pre-condition for the grant of the relevant 573 higher education sector visa. This is one of the primary criteria as specified in item 8516. In particular, one of the applicable criteria provided as follows:
573.223
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
….
(1A) If the applicant is, and was, at the time of application, 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:”
Charlesworth J said as follows:
“It is, in my opinion, arguable that the Diploma in which the applicant remained enrolled was a ‘higher education course’. The argument may be briefly stated. A ‘higher education course’ includes a course specified in an instrument under reg 1.40A of the Regulations: see cl 573.231(1A)(b) … At the time of the Minister’s decision to cancel the applicant’s 573 visa, a ‘higher education course’ was specified in such instrument to include a ‘Diploma (Higher Education)… The instrument also specifies a ‘Diploma (Vocational Education and Training)’ to be a course for the purpose of a Subclass 572 (Vocational and Education and Training Sector) visa. The instrument, unhelpfully, gives no guidance as to which of those two descriptions apply to any particular Diploma course. In the context of the present case, it does not assist a decision-maker to determine whether the applicant’s Diploma has the characteristic of a ‘Higher Education’ Diploma or ‘Vocational Education and Training’ Diploma. There is room for argument in and around that.”[13]
[13] Ibid at [43]
The course in which Mr Singh remained enrolled, referred to by Charlesworth J, was the Diploma of Website Development, in respect of which Mr Singh had applied for the 572 vocational education and training sector visa on 13 June 2014 but which had been refused on 4 August 2014.
Her Honour was satisfied that, although Mr Singh’s grounds for review were not felicitously drawn, he had nonetheless contended that the Tribunal had failed to give sufficient weight to the fact that, at the time of the cancellation of his 573 visa, he had previously been involved in the process of applying for a 572 visa and had secured and retained an enrolment in a diploma of website development course.
In these circumstances, Charlesworth J held as follows:
“In determining that this ground of review did not raise an arguable case for the relief claimed, it was necessary for the learned Federal Circuit Court Judge to make a proper assessment of the importance of the fact and circumstances of the applicant’s application for the 572 Visa by reference to the scope and purpose of the statute. This is particularly so, having regard to the evidence before the Tribunal (not rejected by it) that at the time of the Minister’s decision to cancel the 573 Visa, the applicant retained a certificate of enrolment in a Diploma of Website Development. The Tribunal’s reasoning proceeds from an assumption that the applicant’s enrolment in that course did not satisfy the requirement for the 573 Visa. There is no consideration given in the reasons of the Tribunal to the correctness of that assumption. Moreover, the nature of the course in which the applicant remained enrolled was a consideration relevant to the Minister’s assessment of the seriousness of the applicant’s breach of condition 8516. It is, in my opinion, at least arguable that these two questions are of sufficient importance so as to attract the principles stated by the High Court in Li, notwithstanding that the ground of review before the Federal Circuit Court was cast in terms of a complaint going to considerations of weight. The applicant’s complaint of considerations going to weight must fairly be taken to involve an allegation of jurisdictional error so as to require the Federal Circuit Court to determine where there was an arguable basis for the relief claimed …”[14]
[14] Ibid at [41]
In Minister for Immigration & Citizenship v Li[15] the High Court held that the failure of an administrative decision maker to give adequate weight to a relevant factor of great importance or to give disproportionate weight to some other factor might be characterised as being illogical, irrational or otherwise manifestly unreasonable and therefore amount to a jurisdictional error vitiating the decision in question.
[15] Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
On this basis Charlesworth J considered that the Federal Circuit Court had fallen into error in summarily dismissing Mr Singh’s application for judicial review as it had not, at first instant, considered whether the decision of the Tribunal was unreasonable in such jurisdictional terms and then had not considered the issue of whether Mr Singh’s enrolment in the diploma course offered by the Institute of Technology Australia satisfied the definition of Graduate Diploma (Higher Education) contained in Legislative Instrument IMMI 14.
Charlesworth J rejected the submission of the Minister on appeal that the relevant diploma should be regarded as a Diploma (Vocational Education and Training) because that was how it had been described by the education provider concerned on the following grounds:
“…the question of whether the course properly met that description involves a question of construction of the Act and the instrument. It is not a question for the educational institution itself to finally determine.”
In these circumstances, Charlesworth J set aside the initial judgment of the Federal Circuit Court and remitted the case back for rehearing, by this court, in regards to two distinct issues. Firstly, whether the decision of the Tribunal was vitiated by jurisdictional error because it had failed to accord adequate weight to a relevant factor or disproportionate weight to some other factor such to create a jurisdictional error.
Secondly, whether the diploma of website development was or was not a principle course of study, in which Mr Singh was enrolled, and as such, was capable of satisfying the visa criteria. It being the case that an error in construction of a legislative instrument can amount to error of jurisdiction amenable to judicial review.
The legal principles applicable
The legal principles applying to applications of this type are complex. I will do my best to explain them. In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did.
Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it.
Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Administrative Appeals Tribunal. Part VIII of the Act deals with judicial review. Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions.
Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the Administrative Appeals Tribunal by way of a writ of certiorari, which is what, in effect, the applicant seeks.
However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions. A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[16]
[16] See Migration Act at section 5
Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.
Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision. As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[17]
[17] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[18]
[18] See Craig v South Australia (1995) 184 CLR 163
As previously indicated, jurisdictional error is a complex concept. In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction.
In Minister for Immigration & Citizenship v Li[19] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[19] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]
The applicant’s submissions
The applicant remains unrepresented. He has not prepared any fresh grounds of review since his successful appeal or sought to tender any further submissions to the court. In his oral submissions to the court, he continues to contend that the decision to cancel his 573 higher education visa was unfair.
Firstly, in his grounds of review filed in this court, he contends that the Tribunal did not give due weight to his personal circumstances, particularly his depression resulting from his arrival in Brisbane, which led to him deciding to move and change course.
Secondly, in his grounds of appeal to the Federal Court, Mr Singh contends that the Tribunal erred in determining that he was not a genuine student because he decided to change his course, which was his entitlement to do.
Mr Singh was not able to address explicitly the bases on which Charlesworth J remitted the matter back to this court. I am not critical of him in this regard, as he has been unrepresented throughout. Counsel for the Minister, understandably focused on these matters. The fact remains that Mr Singh’s application can be summarised as an inchoate appeal for fairness on the basis that he changed his course from QUT to the Institute of Technology Australia and moved from Brisbane to Adelaide for understandable reasons, which should not lead to his penalisation.
The Minister’s submissions
The Minister submits that the Tribunal decision cannot be regarded as unreasonable on the basis that the Tribunal failed to accord sufficient weight to a relevant factor of great importance or gave disproportionate weight to some other factor.
Rather, the Minister contends that the Tribunal gave appropriate weight to all the relevant submissions of the applicant arising from his decision to change his enrolment and move from Brisbane to Adelaide. In this context, Mr O’Leary submits that the weight given by the Tribunal, to the various contentions as to fairness advanced by Mr Singh, as justifying his change of enrolment, were matters falling within the jurisdictional freedom accorded to the Tribunal and so any errors of weigh are to be regarded as being errors within jurisdiction or arising as consequence of the discretion conferred upon the Tribunal.
In advancing this argument, Mr O’Leary relies on what was said by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Eden as follows:
“… in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an areas of ‘jurisdictional freedom’ within which a decision-maker has a genuinely free discretion … Within that area, reasonable minds might differ as to the correct outcome, but any decision or outcome within that area is within the bounds of legal reasonableness…”[20]
[20] Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158 at 171 [62]
In essence, Mr O’Leary submits that a reading of the decision of the Tribunal, as a whole indicates, that it is defensible in respect of its response to both the facts and the applicable law and so cannot be regarded as legally unreasonable. In particular, he contends that the Tribunal had regard to the fact that the applicant had earlier applied for a 572 visa and was aware of his personal circumstances in wishing to pursue a vocational course:
·The Tribunal indicated its awareness that Mr Singh had commenced a vocational education and training sector course because he was lonely in Queensland;
·The Tribunal indicated its awareness that Mr Singh had evinced a desire to study IT generally;
·The Tribunal was aware that Mr Singh had attended two months of classes in his diploma course and had attempted to gain a 572 visa;
·The Tribunal noted that Mr Singh was no longer enrolled in the QUT course and this was a higher education course and this engaged clause 573.223(1A) and clause 573.231.
Mr O’Leary also contends that the Diploma of Website Development does not fall within the definition of principle course of study as defined by clause 573.111 as it does not lead to the conferral of either a bachelor’s degree or a master’s degree by course work. Nor is the Institute of Technology Australia an eligible education provider in the terms envisaged by clause 573.112, which empower the Minister to specify educational providers as such by ministerial instrument.
Conclusions
I can find no jurisdictional error in the relevant Tribunal decision. The decision turned on the finding that the applicant had breached condition 8516 by failing to continue to be enrolled in a requisite higher education course.
Charlesworth J considered that it was arguable that the Diploma of Website Development might be considered to be such a higher education course for the purposes of clause 573.231(1A)(b) of Schedule 2 to the Regulations because of the inclusion of Graduate Diploma (Higher Education) contained in Ministerial Instrument IMMI 14/015.
This was not an issue considered by Judge Heffernan when he dismissed the application for review pursuant to the provisions of rule 44.12(1) of the Federal Circuit Court Rules 2001 and for this reason, along with whether the reasoning of the Tribunal could be characterised as being legally unreasonable, the matter was remitted back for rehearing.
However, in my view, the determination of the Tribunal turned not on clause 573.231(1A)(b) but on clause 573.223(1)(A) read in conjunction with condition 8516, which requires on-going adherence to a primary criterion not merely at the time of application but throughout the period a visa is current.
Clause 573.223(1A) requires an applicant for a 573 higher education visa to have a confirmation of enrolment in course of study as an eligible higher degree student. This calls in the definition contained in clause 573.111 and 573.112. The Diploma of Website Development is not a course leading to the conferral of a bachelor’s degree or a master’s degree by casework. The Institute of Technology Australia is not an eligible education provider in the terms envisaged by clause 573.112. At the time, Mr Singh’s visa was cancelled, he was no longer enrolled at QUT, which is and was an eligible education provider.
Accordingly, in my view, there is no jurisdictional error attaching to the Tribunal’s determination that the applicant had breached the conditions attaching to his clause 573 higher education visa by ceasing his enrolment at QUT. It was a decision within the Tribunal’s jurisdiction and one which was open to it on the evidence available.
Thereafter, the Tribunal had a discretion to consider whether the visa in question should be cancelled pursuant to the powers arising under section 116(3) of the Act. I am satisfied that the Tribunal considered the various mitigating factors put forward by the applicant in respect of this issue, including his personal circumstances; the level of hardship likely to be suffered by him; and his desire to study IT in Australia in some form.
I am also satisfied that, as it was bound to do, the Tribunal also considered departmental policy arising in respect of visa holders who change their initially designated form of study to another form at an early stage following arrival in Australia. These were all matters which the Tribunal was authorised to consider.
After having considered these matters, the Tribunal determined to confirm the decision that the applicant’s higher education visa be cancelled. In so doing, the Tribunal was aware that the applicant had applied, albeit unsuccessfully for a vocational education sector visa and had enrolled in a vocational education course. Accordingly, I am satisfied that it considered all the relevant matters advanced by the applicant but after weighing them up reached the decision not to alter the delegate’s determination.
In all these circumstances, I agree with Mr O’Leary’s characterisation of the decision concerned as falling within an area of decisional freedom available to the Tribunal. As such, it is one which falls within the ambit of jurisdiction conferred upon the Tribunal and cannot be described as being legally unreasonable.
For all these reasons, the application should be dismissed. The Minister seeks costs. Costs should follow the event. I will make the costs order as sought. The relevant schedule to the court’s rules fixes costs in the sum of $7,206.00 for a proceeding concluded at a final hearing.[21] I will make an order for costs in this sum.
[21] See Federal Circuit Court Rules 2001 Schedule 1 Part 3 Division 1
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 19 May 2017
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