SINGH v Minister for Immigration
[2015] FCCA 2347
•28 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2347 |
| Catchwords: MIGRATION – Judicial Review – Student Visa. |
| Legislation: Migration Act 1958 (Cth), ss.116, 474, 476 |
| Abebe v Commonwealth (1999) 197 CLR 510 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948 1 KB 223 Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 Minister for Immigration and Citizenship v Li (2013) 249 CLR 323 Minister for Immigration and Citizenship v MZYNN [2012] FCA 117 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC SZRPT v Minister for Immigration and Border Protection [2004] FCA 24 Waterford v Commonwealth (1987) 163 CLR 54 |
| Applicant: | SHAGANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 65 of 2015 |
| Judgment of: | Judge Howard |
| Hearing date: | 14 July 2015 |
| Date of Last Submission: | 21 July 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 28 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Travers |
| Solicitors for the Applicant: | Chand Lawyers |
| Counsel for the Respondents: | Mr McGlade |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the Application filed 20 January 2015 be dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 65 of 2015
| SHAGANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is a national of India.
On 15 January 2014 the applicant was granted a student visa in subclass 573. He entered Australia as a holder of that visa on 27 January 2014.
The visa was granted to the applicant on the basis that he was enrolled in a Bachelor of Information Technology course at the Queensland University of Technology. That course was due to commence in approximately June 2014.
Prior to commencing the bachelor course the applicant had enrolled to study a Certificate IV in IT and a Diploma of IT. It seems that these were prerequisite courses for the Bachelor of Information Technology course at Queensland University of Technology.
Shortly after arriving in Australia on 27 January 2014 the applicant commenced his studies in the Certificate IV in IT course.
Evidently, the applicant found the Certificate IV (IT) course difficult. He therefore decided to change direction.
As part of this change of heart the applicant (while he was still apparently undertaking the Certificate IV (IT) course) obtained a confirmation in another course – namely a Certificate IV in Commercial Cookery at Spencer College. The applicant commenced the Certificate IV in Commercial Cookery at Spencer College after the Certificate IV in IT course had been completed. He also obtained a confirmation of enrolment in relation to a further course – namely a Diploma of Hospitality.
On 18 June 2014 the applicant’s enrolment at the Queensland University of Technology in the Bachelor of Information Technology course was cancelled. The enrolment was cancelled because of the applicant’s “non commencement of studies”.
Courses specified for a student (temporary) (class TU) (subclass 573 – Higher Education Sector) visa are – as the name suggests – visas designed for higher education sector courses. In essence, it was a condition of the visa that the applicant continue to remain enrolled in the Bachelor of Information Technology course at the Queensland University of Technology – or, at the very least, the applicant had to be and remain enrolled in a higher education course.
From the date that the applicant’s enrolment in the Bachelor of Information Technology at the Queensland University of Technology was cancelled – the applicant was in breach of an important condition of his visa. The applicant does not dispute this fact. The applicant conceded as much both before the minister’s delegate and before the Migration Review Tribunal.
Pursuant to section 116(1)(b) of the Migration Act 1958 (Cth) (hereinafter referred to as the Act) the Minister has a discretion to cancel a visa if there has been a breach of a visa condition.
On 5 September 2014 the applicant was issued with a “Notice of Intention to Consider Cancelation (NOICC)” because the minister’s delegate considered that the applicant was no longer complying with condition 8516 of his visa – as the applicant had ceased to be enrolled in a higher education course.
On 9 September 2014 the applicant provided a response to the NOICC.
On 30 September 2014 the minister’s delegate decided to cancel the applicant’s visa pursuant to section 116(1)(b) of the Act.
On 10 October 2014 the applicant applied to the Migration Review Tribunal for a review of the delegate’s decision.
On 23 December 2014 the applicant appeared before the Migration Review Tribunal where he gave evidence and presented arguments.
By decision dated 23 December 2014 the Migration Review Tribunal affirmed the delegate’s decision.
On 29 January 2015 the applicant filed an application in the Federal Circuit Court of Australia seeking judicial review of the decision of the Migration Review Tribunal dated 23 December 2014.
The grounds for review contained in the application filed 29 January 2015 were subsequently amended. Ground 1(a) was abandoned and ground 1(b) was amended and particularised in the applicant’s outline of submissions filed on 6 July 2015. Indeed, an Amended Application was filed on 21 July 2015 – so that the Court file properly reflects the case run on behalf of the applicant. I note paragraph 14 of those written submissions where it was stated:-
“14. The applicant will seek leave at the final hearing to amend ground (b) to reflect the following:
(b) The tribunal fell into jurisdictional error by ignoring relevant material such as the applicant’s proposed course of study, in making erroneous findings, including:
(i) the applicant had taken no steps to pursue higher education study in Australia since his enrolment in the Bachelor of IT; and
(ii) the applicant would not pursue higher education study even if his visa was reinstated.”[1]
[1] These are the terms of the Amended Application filed 21 July 2015.
One of the visa criteria applicable to the applicant’s visa application was clause 573.231 of Schedule 2 of the Migration Regulations 1994 (Cth) (hereinafter the Regulations). Clause 573.231 required the applicant to satisfy the minister that:-
573.231
…
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation 1.40A and;
(ii) in force at the time the application was made.”
For the purposes of clause 573.231(b) – the types of courses specified by the minister were set out in the Ministerial Instrument (IMMI) 12/0.37 (noting that the applicant’s visa was granted on 15 January 2014.
The types of courses set out in the said Ministerial Instrument were higher education sector courses.
Earlier in these reasons for judgment I referred to condition 8516. Clause 573.611 of Schedule 2 of the Regulations (read in conjunction with section 41(1) of the Act) imposed condition 8516 of Schedule 8 of the Regulations on the applicant’s visa. I have merely referred to this as, “condition 8516”.
In paragraph 5 of the decision of the Migration Review Tribunal it is stated:-
“The issues before the Tribunal are:
a. Are there grounds for cancelling the visa;
b. If so, should the visa be cancelled.”
The court book is exhibit 1.
As to the first step in the process identified by the Migration Review Tribunal in paragraph 5 of the decision of the Tribunal – the Tribunal concluded (as indeed had the delegate) that the applicant breached condition of 8516 of the visa because he no longer satisfied the primary criteria once he ceased to be enrolled in a course of study that was the principal course – as required by clause 573.231.
At paragraph 13 the Tribunal stated:-
“The tribunal is satisfied that the 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 or not the power to cancel the visa should be exercise.”
In any event, as noted, the applicant does not in fact challenge the Tribunal’s conclusion in relation to the first step. The applicant’s sole challenge relates to the second step – namely the Tribunal’s exercise of discretion.
The Applicant’s First Contention (Ground (b)(i))
On 23 December 2014 the applicant provided to the Migration Review Tribunal a letter dated 8 September 2014. This document is contained in the court book at page 19. It is a letter from the American College containing an offer of enrolment in a Diploma of Management course and, subsequently, a further offer of enrolment in an Advanced Diploma of Management course. The applicant never in fact enrolled in those courses.
But, in any event, his failure to enrol in those courses is irrelevant. Those courses are not higher education sector courses.
The argument on behalf of the applicant is that, even though those courses were not higher education sector courses – because the American College in fact offered “pathways to other degrees” – the applicant contends that it was not correct for the Migration Review Tribunal to say that “the applicant had taken no steps to pursue higher education study in Australia since his enrolment in the Bachelor of IT (course) was cancelled”.
In fact the American College, as noted, only offered pathways to other degrees. It is said, on behalf of the applicant, that the offer from the American College was in fact an offer from, “an educational business partner of an eligible education provider”. The American College was the educational business partner of the Alphacrucis College (an eligible education provider). The Alphacrucis College, it was argued on behalf of the applicant, offers higher education sector courses – and there was a possibility that the applicant, down the track, would study a Bachelor of Business course. I note paragraph 25 of the applicant’s outline of submissions filed 6 July 2015 where it is stated:-
“25. The tribunal erred in its consideration of the applicant’s proposed study. It failed to recognise that the Proposed Courses could lead to higher education study and enable the applicant to satisfy condition 8516”.
On the material before the Tribunal – it was certainly open to the Tribunal to reach a conclusion that the applicant had taken no steps to pursue higher education study in Australia since his enrolment in the Bachelor of IT course was cancelled. I note what was stated by the Tribunal in paragraph 11 of its decision:-
“11…His enrolment in the Bachelor of IT at Queensland University of Technology (QUT), for which his visa was granted, was cancelled on 18 June 2014 due to non-commencement of studies. The applicant obtained a new CoE for a Certificate IV in Commercial Cookery at Spencer College on 20 June 2014 and he commenced that course. He also holds a CoE for a Diploma of Hospitality…”
In addition I note that the courses referred to in the letter from the American College were not higher education courses. In any event the applicant failed to enrol in the courses referred to in the letter from the American College dated 8 September 2014.
Finally, the applicant in fact provided no evidence whatsoever to the Migration Review Tribunal that he had any intention of enrolling in a course of study at a higher educational level. All of the evidence before the Migration Review Tribunal indicated to the contrary.
In paragraph 50 of the outline of submissions of the first respondent filed 8 July 2015 it is stated:-
“50. The mere fact of the applicant being offered enrolment (which had expired at the time of the Tribunal’s decision) in a non-higher educational course at a college which offered pathways to higher educational course could not, it is submitted, reasonably constitute taking steps to pursue higher education study – especially in circumstances where the applicant had not even expressed an intention to take up such an opportunity and study at a higher educational level. At the very least, it was open to a reasonable decision-maker to adopt the aforementioned view”.
I agree with this submission made on behalf of the first respondent. Furthermore, I also note that the submission was elaborated upon in the first respondent’s submissions filed on 21 July 2015 (in particular in paragraphs 24-29). I accept those submissions are correct.
In any event, I note what the Tribunal had to say in paragraph 16 of its decision. The Tribunal stated there:-
“16. The Tribunal has considered the applicant’s circumstances. In his response to the NOICC the applicant stated, essentially, that he found IT course difficult and could not pass the assessments. He decided to transfer to a different course, as his passion now is hospitality, but he could not obtain the letter of release from QUT. He enrolled in a hospitality course at another institution and has good attendance. He did not know about condition 8516 or SVP providers. The only suitable provider he has found in his area was TAFE, which refused to offer him a hospitality course. He has now found another provider, the American College, which offers pathways to degrees, and has a letter of offer from that institution. He never intended to breach any visa conditions”.
Condition 8516 required that the applicant must continue to satisfy the criteria stated in the visa. In particular the applicant had to continue to satisfy the criteria stated in the visa – which existed as at the date that the visa was granted. That date was 15 January 2014. The ministerial instrument in force at the time was IMMI 13/124. I agree with the submission made at paragraph 44 (and thereabouts) in the written submissions of the first respondent filed 21 July 2015 – to the effect that the applicant did not comply, at the relevant times, with the relevant visa criteria. This was the conclusion of the Tribunal. This conclusion was open to the Tribunal in the circumstances of this case.
The Tribunal was aware that, at some later time, it was a possibility, that the applicant may be able to study at a higher educational level. I agree with the contention of the first respondent (outlined further in the written submissions filed by the first respondent on 21 July 2015) that the Tribunal had concluded that the applicant had not taken steps to pursue higher education study. This conclusion was open to the Tribunal on the material that was before it. In paragraph 25 of the Tribunal’s decision it is noted:-
“25. The Tribunal has formed the view that the applicant had taken no steps to pursue higher education study in Australia since his enrolment in the Bachelor of IT course was cancelled. The Tribunal is not satisfied that the applicant has a genuine intention to pursue higher education study in Australia. The Tribunal is not satisfied that he will pursue such study in the future, even if his visa was reinstated. In the Tribunal’s view, that outweighs other considerations”.
Therefore, the Tribunal considered that the applicant had not formed any genuine intention to pursue higher education study in Australia. This conclusion was open to the Tribunal.
In Waterford v Commonwealth (1987) 163 CLR 54 at pages 77-78 Brennan J noted:-
“There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.”
Therefore, even if the Tribunal had made a wrong finding of fact – this does not constitute jurisdictional error. For instance, if the finding by the Tribunal that the “applicant had taken no steps to pursue higher education study in Australia since his enrolment in the Bachelor of IT course was cancelled” was, in fact, an erroneous finding of fact (a contention which I do not accept) – this would not in any event constitute jurisdictional error. It would constitute an error of fact within jurisdiction. The decision of Brennan J in Waterford highlights this point. The point was made again more recently in Abebe v Commonwealth (1999) 197 CLR 510 at paragraph 137 where Gummow and Hayne JJ noted:-
“137. The issues at stake in this litigation involve more than what might be seen as technical questions respecting federal jurisdiction. We turn to explain why this is so. The Constitution, as Dixon J put it in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193, is an instrument framed on the assumption of the rule of law. In the conduct of government under the Constitution, this means at least that, while there is no error of law simply in making a wrong finding of fact, (a) “[i]t is, emphatically, the province and duty of the judicial department, to say what the law is”, the terms used by Marshall CJ in Marbury v Madison (1803) 5 US 87 at 111, and (b) to adopt remarks of Isaacs J in R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518 and 541-542, every person “is entitled to his personal liberty except so far as that is abridged by a due administration of the law”.”
Futher, I note what was stated in the decision of Katzmann J in SZRPT v Minister for Immigration and Border Protection [2014] FCA 24 at paragraph 36. At that paragraph Katzmann J stated:-
“36. The like effect, in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [20] the Full Court said that “unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6” (cf. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004 HCA 32 at [39] per Gummow and Hayne JJ, Gleeson CJ agreeing at [1]). A fact is classed as jurisdictional if it must objectively exist before an administrative decision-maker’s jurisdiction to exercise a power is enlivened or if it is a criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion: Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57], [107]. Whether or not the appellant had been baptised was not a jurisdictional fact.”
The “fact” currently under consideration is not a jurisdictional fact. I agree with the “Supplementary Outline of Submissions” filed by the first respondent on 21 July 2015 in this regard. I note that the applicant did not file any submission on this point and, indeed, ran no argument based on this issue.
It is impermissible for this Court to embark on a merits review of the Tribunal’s decisions and it is impermissible to seek to challenge the findings of fact made by the Tribunal or the merits of the Tribunal’s decision.
I note, for instance the comments made by Brennan J in Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at pages 35 and 36. It was there that His Honour stated:-
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercises of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
The Applicant’s Second Contention (Ground (b)(ii))
This part of the applicant’s case relates to the finding made by the Tribunal in paragraph 25 where it was stated:
“The Tribunal is not satisfied that he will pursue such study in the future even if his visa was reinstated.”
The words “such study” relate to higher education study.
For the reasons stated earlier herein (in particular paragraphs 33-46) – I have come to the conclusion that the Tribunal’s finding in this regard was open to it on the facts and evidence that was before the Migration Review Tribunal.
For the same reasons that ground (b)(i) has been rejected by the Court – this part of the applicant’s case also has to be rejected. No jurisdictional error has been identified. The finding made by the Tribunal was open to the Tribunal. It is not permissible for this Court to embark upon a merits review.
Ground (c)
The applicant has relied upon his submissions for ground (b). In addition the applicant has, essentially, submitted that the decision made by the tribunal was unreasonable.
In Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230 Lord Greene MR stated:
“…if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere…”
In Minister for Immigration & Citizenship v Li (2013) 249 CLR 323 at paragraphs 106 and 108, Gageler J stated:-
“106. The label “Wednesbury unreasonableness” indicates “the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion” Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken “attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground”.
…
108. Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.”
I also note the comments of Hayne, Keifel and Bell JJ in paragraph 66 of the High Court’s decision in Li where their Honours noted:
“66. This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker…”
I note, in particular what was said by Gray J in Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177. His Honour noted at paragraph 46:-
“[46] Even assuming that it would be permissible for the court to apply the unreasonableness principle in the present case, it is a principle that can only be applied to the tribunal’s decision to affirm the refusal to grant the first respondent a protection visa. It is not a principle application to an individual finding of fact.”
Further, in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 McKerrarcher J (with whom Reeves J agreed) stated:-
“[83]…it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions.”
The applicant’s contention that the particular finding of fact made by the Tribunal was “unreasonable” – is, in fact, not a contention upon which the applicant can rely. It is not open to the applicant because – “unreasonableness” is not a ground applicable to individual findings of fact.
Hence, the “unreasonableness” ground of review relied upon by the applicant cannot be accepted by the Court in this case. The exercise of the Tribunal’s discretion was open to it on the basis of the facts and evidence before the Tribunal.
Even if individual findings of fact could be challenged by the applicant on the grounds of “unreasonableness” (which would be contrary to the authorities) – the findings that were made were open to the Tribunal in any event. Given that the findings were open to the Tribunal it cannot possibly be said, in my view, that the decision reached by the Tribunal or even the individual findings of fact leading to the decision reached by the Tribunal could be said to be “unreasonable” within the meaning of that term as used by the Courts. There was no Wednesbury unreasonableness.
Conclusion
I have come to the conclusion that no jurisdictional error has been established by the applicant. The decision by the Tribunal is a privative clause decision under section 474(2) of the Act and it is not reviewable under section 476 of the Act.
The application should be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Howard
Associate:
Date: 28 August 2015
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