SINGH v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2345

Catchwords:
MIGRATION – Judicial Review.

Legislation:

Migration Act 1958, s.116
Migration Regulations 1994

Associate Provincial Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Craig v South Australia (1995) 184 CLR 163
Kruger v The Commonwealth (1997) 190 CLR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

GAGANPREET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 11 of 2015

Judgment of:

Judge Howard

Hearing date:

25 June 2015

Date of Last Submission:

16 August 2015

Delivered at:

Brisbane

Delivered on:

28 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr P. Travers

Solicitors for the Applicant:

Chand Lawyers

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application be dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 11 of 2015

GAGANPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India. He was born on 22 June 1993. On 23 November 2013 the applicant was granted a student (class TU) higher education sector (sub class 573) visa. The visa was said to be valid until 30 August 2017. The following conditions were placed on the visa:-
“Conditions
8202 – CONTINUES STUDYING
8533 – NOTIFY ADDRESS
8501 – HEALTH INSURANCE
8105 – WORK LIMITATION
8516 – MAINTAINS ELIGBILITY
8517 – DEPENDANTS EDUCATION”
Of particular note is condition 8516 which required the applicant to “maintain eligibility”.
On 5 September 2014 the Department of Immigration and Border Protection issued to the applicant a “Notice of Intention to Consider Cancellation Under Section 116 of the Migration Act 1958”. It was stated by that correspondence (in the said notice) that the circumstances which permitted the grant of the visa to the applicant no longer existed. The particular circumstance which permitted the grant of the visa was that the applicant was an “eligible higher degree student” as defined by clause 73.111 of the Migration Regulations 1994 and that the applicant satisfied the primary criteria set out in sub clause 573.223(1A) of Schedule 2 of the Regulations.
A delegate of the Minister cancelled the applicant’s visa on 19 September 2014. This was done on the basis that the applicant was no longer an “eligible higher degree student” – as defined by clause 573.111 for the purpose of clause 572.223(1A) of the Migration Regulations 1994. As foreshadowed in the notice that had been sent to the applicant – the Minister’s delegate had decided that the circumstances that permitted the grant of the visa to the applicant no longer existed.
The applicant lodged an application to the Migration Review Tribunal for a review of the delegate’s position. The application was lodged on 21 September 2014. On 16 December 2014 the applicant appeared before the Tribunal in order to give evidence and present arguments. The applicant’s representative attended the hearing by telephone. On 17 December 2014 the Tribunal affirmed the decision of the delegate.
On 13 January 2015 the applicant sought Judicial Review by the Federal Circuit Court of Australia of the decision of the Migration Review Tribunal dated 17 December 2014.
The application for Judicial Review filed 13 January 2015 stated the following grounds:-
“Grounds of application
1. The Tribunal engaged in conduct which amounted to jurisdictional error in the following respects:
a) that the Tribunal erred in that it failed to properly consider, on balance, all relevant factors in assessing whether its power to cancel the applicant’s visa should be exercised, in particular:
1. the circumstances surrounding the applicant’s withdrawal from TAFE Queensland Brisbane;
2. the hardship caused by the cancellation of the applicant’s visa; and
b) the Tribunal fell into jurisdictional error by making an erroneous findings, in the circumstances, that:
1. the failure of the applicant to continue to meet the requirements of his visa were not the result of circumstances beyond his control; and
2. the applicant was adequately warned as to consequences from withdrawing from TAFE Queensland Brisbane; and
c) the Tribunal fell into jurisdictional error by acting unreasonably in its consideration of the application.”
The hearing of the application for Judicial Review took place on 25 June 2015 in Brisbane.
As was rightly pointed out in the written submissions of the first respondent filed on 18 June 2015 – the applicant raised additional grounds in his written submission filed 16 June 2015. In particular the additional grounds were that the Tribunal:-
(a) Failed to consider relevant factors including IMMI 14/047;
(b) Considered irrelevant factors, including IMMI 14/007; and
(c) Made erroneous findings that:
(i) IMMI 14/007 was the relevant instrument; and
(ii) The enrolment at American and Alphacrucis Colleges would prevent the applicant from satisfying the requirements of cl 573.111.”[1]

Ground/Particular (a)

a) That the Tribunal erred in that it failed to properly consider, on balance, all relevant factors in assessing whether its power to cancel the Applicant’s visa should be exercised, in particular:-

1. The circumstances surrounding the applicant’s withdrawal from TAFE Queensland Brisbane;

[1] Note paragraph 13 of the first respondent’s written submissions filed 18 June 2015

2. The hardship caused by the cancellation of the applicant’s visa.

The matters raised in this ground are all matters that were before the Tribunal. It is noted that, for instance, the applicant was originally enrolled at the Brisbane North Institute of TAFE. On 7 April 2014 the applicant received written notification that from the end of the semester (the first semester 2014) the Brisbane North Institute of TAFE (BNIT) were no longer running programs in the Ithaca Campus in Brisbane. The email in question is included at page 53 of the Court Book (exhibit 1) and states:
“Your program will continue to be offered in semester 2, 2014 at our South Bank Campus and we will fully support you to make the transition to this new campus location.
We appreciate this change may cause you some concern. We want to assure you that TAFE Queensland is committed to ensuring every student can complete their studies successfully and that those affected by this decision will be fully supported to complete their studies at our South Bank Campus.”
The applicant decided not to enrol at the South Bank campus. He took advice from a Migration Agent and the applicant decided to enrol at an institution called Spencer College. It seems that Spencer College was not (at any material time) an educational business partner. The eligible educational providers and educational business partners are mandated in instruments issued or approved by the Minister or the Assistant Minister. The instrument relied upon by the Tribunal was IMMI 14/007. That instrument commenced on 22 March 2014 and was issued or approved by the Assistant Minister for Immigration and Border Protection. I will return that issue later in these reasons for judgment.
The closure of the BNIT was an unfortunate turn of events for the applicant. However it did not relieve the applicant from the condition imposed upon him by his visa requirement – namely that he be an “eligible higher degree student”.
I note paragraph 14 of the Tribunal’s decision (page 82 of the Court Book). That paragraph states:
“Conclusions
14. In making its decision, the Tribunal has taken account of the applicant’s and his representative’s claims, including that the applicant was ill-advised by his previous representative and that this person and Spencer College have behaved unethically. The Tribunal also accepts that cancellation of his visa will cause the applicant hardship because in all likelihood he will not be able to fulfil his stated ambition of pursuing further studies in Australia.”
The grounds referred to in paragraph 1(a) of the applicant’s application filed 13 January 2015 essentially request this Court to embark upon a merits review of the Tribunal’s decision. Such a review is impermissible. I note in particular the decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at page 272:
“… any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:
“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 exercise 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.”
Further, the Tribunal’s decision dated 17 December 2014 reveals that the Tribunal did in fact consider the applicant’s circumstances and all of the matters referred to in paragraph 1(a)(1) and (2) of the application filed 13 January 2015.
I have come to the conclusion that grounds (a) of the grounds for review included in the applicant’s Application for Judicial Review filed 13 January 2015 does not reveal any jurisdictional error in the decision of the Tribunal made on 17 December 2014.
The second grounds for review are referred to in paragraph 1(b)(1) and (2) of the Application for Judicial Review filed 13 January 2015.
As to ground (1)(b) I note the following paragraph from the decision of the Tribunal dated 17 December 2014:-
“15. The Tribunal does not consider that the failure of the applicant to continue to meet the requirements of his Subclass 573 visa was the result of circumstances beyond his control. The Tribunal notes that in seeking a release from Southbank TAFE, TBQ explicitly warned the applicant as the holder of a Subclass 573 visa, the applicant must obtain a release from QUT as the eligible education provider. The Tribunal considers that this warning should have alerted the applicant to the fact that the terms of his Subclass 573 visa required the applicant to remain enrolled in a degree course with an eligible education provider.”[2]
[2] Note page 82 of the Court Book
Clearly, the Tribunal did take into account the matters referred to in ground (b) of the applicant’s application filed 13 January 2015. The findings made by the Tribunal were open to it based on the evidence available.
Ground (b) does not demonstrate any jurisdictional error by the Tribunal.
Ground (c) in the application filed 13 January 2015 relates to the question of unreasonableness. I will return to that issue later in these reasons for judgment.
In the meantime, it is convenient for the Court to note the additional grounds contained in the applicant’s written submissions filed 16 June 2015. I have referred to those grounds earlier in these reasons for judgment however for convenience I will restate those grounds (as they were summarised in the first respondent’s written submissions filed 18 June 2015). Namely that the Tribunal:-
“(a) Failed to consider relevant factors including IMMI 14/047;
(b) Considered irrelevant factors, including IMMI 14/007; and
(c) Made erroneous findings that:
(i) IMMI 14/007 was the relevant instrument; and
(ii) The enrolment at American and Alphacrucis Colleges would prevent the applicant from satisfying the requirements of cl 573.111.”
It is said that the Tribunal erred by considering instrument IMMI 14/007. Further, it is said that the Tribunal erred in failing to consider instrument IMMI 14/047.
The various instruments require some consideration. On the date that the applicant applied for a student visa (18 November 2013) the relevant instrument was 13/057. That instrument had commenced on 1 July 2013.
On the very date that the Department of Immigration and Border Protection granted a student visa to the applicant (23 November 2013) instrument IMMI 13/124 commenced.
On 22 March 2014 instrument IMMI 14/007 commenced and, upon commencement, it revoked the earlier instrument IMMI 13/124.
On 1 July 2014 instrument IMMI 14/047 commenced.
Like the other instruments, instrument IMMI 14/047 is headed:-
“Commonwealth of Australia
Migration Regulations 1994
ELIGIBLE EDUCATION PROVIDERS AND EDUATIONAL BUSINESS PARTNERS
(Clauses 573.112, 574.112 and 575.112)”
Instrument IMMI 14/047 states further:-
“I, MICHAELIA CASH, Assistant Minister for Immigration and Border Protection, acting under clauses 573.112, 574.112 and 575.112 and 575.112 of Schedule 2 to the Migration Regulations 1994;
1. REVOKE Instrument IMMI 14/007 signed on 11 February 2014, specifying eligible education providers and educational business partners for clauses 573.112, 574.112 and 575.112; AND
2. SPECIFY for paragraphs 573.112(a) and 574.112(a) and clause 575.112, in relation to an application for a student visa made on or after 1 July 2014, the education providers listed in column 1 of Schedule A to this Instrument as eligible educations providers; AND
3. SPECIFY for paragraphs 573.112(b) and 574.112(b), in relation to an application for a student visa made on or after 1 July 2014, the education providers listed in column 2 of Schedule A to this Instrument as educational business partners of the education provider mentioned in column 1.
This instrument, IMMI 14/047, commences on 1 July 2014.”
The words in bold type from the abovementioned quotation namely, “in relation to an application for a student visa made on or after 1 July 2014” – did not appear in instruments IMMA 14/007, IMMA 13/124 or IMMA 13/057.
As noted earlier, when the BNIT closed (or stopped providing the relevant course in which the applicant had been enrolled) the applicant decided not to continue his course at the South Bank campus. He seems to have thought about applying in September 2014 to the Alphacrucis College. That College is stated as an eligible education provider in instrument IMMA 14/047. Further, at the same time, the applicant considered applying to the American College which is an eligible “Educational Business Partner” pursuant to instrument IMMA 14/047.
But, in fact paragraph 13 of the Tribunal’s decision date 17 December 2014 states that:-
“13. Mr Chand provided the Tribunal with copies of some forms by Alphacrucis College (a Student Study Intention Statement, an International Student Application Checklist and an Agent GTE Evaluation Form) and American College (International Student Application Form) which Mr Chand said had been completed and signed by the applicant and dated 9 September 2014 but which had not been sent to Alphacrucis College and American College by the previous representative. Mr Chand noted that Alphacrucis College is an eligible education provider and that the applicant could renew efforts to enrol in the college if the Tribunal set aside the cancellation of the applicant’s Subclass 573 visa.”
Therefore the situation is that – even though the applicant apparently had signed applications to join the Alphacrucis College and the American College and dated such applications 9 September 2014 – it seems those applications were not lodged with those colleges by the applicant’s previous representative.
To the extent that any submission was made on behalf of the applicant that the applicant had in fact applied to enrol at Alphacrucis College and the American College – that in fact is not correct. The Tribunal set out the circumstances in paragraph 13 of its decision. That paragraph is included in quotation marks above. The applicant had not even lodged an application to enrol in either Alphacrucis College or the American College. To the extent that his failure to lodge such applications came about because of the negligence of his previous agent – that submission was put before the Tribunal. It is not permissible for this Court to embark upon a merits review of how the Tribunal dealt with that submission and/or that evidence.
It is submitted, by Mr Travers of Counsel on behalf of the applicant, that the Tribunal took into account an irrelevant consideration – namely instrument IMMA 14/007. The Tribunal did consider that was the relevant instrument. I note paragraph 16 of the conclusions reached by the Tribunal where it is stated:-
“16. Since the applicant is no longer enrolled in a bachelor’s or master’s degree course with an eligible education provider, he does not meet the ongoing requirements for a Subclass 573 visa granted on the basis of his being an eligible higher degree student. The applicant’s representative has provided evidence that the applicant took steps towards transferring to American College and Alphacrucis College, noting that Alphacrucis College is an eligible education provider. However, in the relevant instrument in writing (IMMI 14/007), the Minister does not identify American College as an educational business partner of Alphacrucis College and the business pathway package of vocational courses endorsed by the applicant in completing American College’s International Student Application Form would prevent the applicant from meeting the requirements of an eligible higher degree student. The Tribunal considers that, were the Tribunal to set aside the delegate’s decision and substitute a decision that the visa is not cancelled, the applicant would continue to be in breach of the ongoing requirements for a Subclass 573 visa.”[3]
[3] Note page 82 of the Court Book
Counsel for the applicant has submitted that the instrument IMMA 14/007 commenced on 22 March 2014 and was revoked on 1 July 2014 when instrument IMMA 14/047 commenced.
In oral submissions it was said, firstly, that the Tribunal had taken into account an irrelevant consideration – namely instrument IMMA 14/007. It was submitted that, at the time that the applicant applied for a student visa instrument IMMA 14/007 was not operative. It was further submitted that, at the time that the delegate made their decision – instrument IMMA 14/007 was not operative and it was also stated that at the time of the Tribunal’s decision (17 December 2014) instrument IMMA 14/007 was not operative. Hence, it is said, on behalf of the applicant that the Tribunal has taken into account an irrelevant consideration.
It is necessary to have regard to the term “jurisdictional error” more closely. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 the High Court of Australia repeated and relied upon an earlier passage from an earlier decision of the High Court in Craig v South Australia (1995) 184 CLR 163. In Craig’s case the High Court had provided crucial guidance for Australian Courts undertaking the judicial review of administrative decisions. In Yusuf’s case from paragraph 82 the High Court (per McHugh, Gummow and Hayne JJ) stated:-
“82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):-
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”

The submission on behalf of the applicant is that the Migration Review Tribunal in this instance relied on irrelevant material and this amounts to “an error of law” which, it is submitted, amounts to jurisdictional error.
The decision in Craig and also in Yusef makes it clear that jurisdictional error will only arise if the decision maker (in this case the Tribunal) relied on irrelevant material “in a way that effects the exercise of power”. I have referred to this aspect later in these reasons for judgment.
On behalf of the Minister it is argued that instrument IMMA 14/007 was the correct instrument. It is argued, on behalf of the Minister, that instrument IMMA 14/047 is not the correct instrument. The submission is that instrument IMMA 14/047 only relates to applications for student visas if the application was made on or after 1 July 2014. That is not the case in the present matter before the Court. The applicant applied for a student visa on 18 November 2013.
In the first respondent’s written submissions filed 18 June 2015 it was submitted:-
“29. It is submitted that the additional grounds raised in the written submissions are not supported by the grounds of review advanced in the application.
30. The first respondent objects on the grounds being raised in circumstances where the applicant has failed to raise the grounds in accordance with the Court orders and has failed to raise them in an amended application. It is however conceded that the first respondent is not prejudiced by the issue save as to costs.
31. It is conceded that IMMI 14/047 commenced on 1 July 2014 and listed American College as a Business Partner of Alphacrucis College. However, the instrument was irrelevant to the issue before the Tribunal in circumstances where it only applied to student visa applications made on or after 1 July 2014. As noted above, the visa in the present matter was granted on 23 November 2013. The application lodgement date was 18 November 2013 (CB 3). Accordingly, IMMI 14/047 was not applicable.
32. Although IMMI 14/007 commenced on 22 March 2014 it did not specify that it could only be applied in relation to visa applications lodged on or after a certain date.
33. Accordingly, no jurisdictional error is revealed in relation to the applicant’s additional ground”.
I note that it was conceded that the first respondent was not prejudiced by the applicant seeking to raise grounds for review in his written submissions. The only prejudice said to have been suffered is with respect to costs. But given that the Court ordered on 25 June 2015 that the Minister would be given a further 14 days to make any further submissions – that issue is, in my view, no longer a live issue.
Of particular note is the submission contained in paragraph 32 of the first respondent’s submissions.
The Tribunal appears to have concluded that instrument IMMA 14/047 could not be applied because it only related to situations where an application for a student visa had been made on or after 1 July 2014. Instrument IMMA 14/007 was relied upon and it is said that it could be relied upon because it did not specify “that it could only be applied in relation to visa applications lodged on or after a certain date”.
Much of the argument surrounding the relevant instrument was based on the fact that the Alphacrucis College and the American College were not eligible education providers and educational business partners (respectively) pursuant to instrument IMMA 14/007 but they were eligible as a result of instrument IMMA 14/047.
The applicant had sought and obtained a “release” from QUT which was the primary institution in which he was enrolled. That institution was the eligible education provider at the time his student visa was granted. QUT had, as its educational business partners, both the BNIT and South Bank Institute.
At page 13 of the Court Book there is a document dated 2 June 2014 headed “Letter of Release”. By that document TAFE Queensland Brisbane (TQB) agreed to issue the letter of release to the applicant. It stated, inter alia:-
“This letter is to confirm that TAFE Queensland Brisbane (TQB) has considered your application to transfer and has agreed to issue this letter of release.
Please note: Your visa is a Higher Education Visa (subclass 573). TQB is not the provider of your principal course of study and cannot provide formal release. You are required to seek release from QUT.
Your enrolment at TQB in the Diploma of Information Technology has been cancelled on 02/06/2014.
The Department of Immigration has been notified via PRISMS that your studies with TQB have concluded. This change may affect your student visa.
It is important you contact the Department of Immigration as soon as possible to seek advice about the status of your student visa.”
One matter for consideration is – did the applicant actually seek a release from QUT? The applicant has not made any submission in relation to that possible question. My attention has not been drawn to any evidence relating to that question.
The letter of release does, on its face, seem to confirm that from 2 June 2014 the applicant was no longer enrolled at the TQB. In that regard the Ithaca Campus (BNIT) was about to close and the applicant had decided not to continue at the South Bank Campus. From 2 June 2014 therefore the applicant was not enrolled with an eligible educational business partner in an appropriate course.
At the time of the Tribunal’s decision (17 December 2014) it seems clear enough that the applicant was not enrolled in any course. He was no longer enrolled through TQB (whether at BNIT or elsewhere) and he had not even lodged an application to be enrolled at the Alphacrucis College or the American College.
At the time of the Tribunal’s decision the applicant was not an eligible higher degree student.
The wording used at the front of the instruments is somewhat unfortunate. The wording changed between 007 and 047. Indeed the wording used at the front of instrument 047 had not been used in the three instruments immediately prior to that instrument. The question of whether or not the Tribunal took into account an irrelevant consideration by having regard to 007 is, I conclude, irrelevant in itself. The High Court decisions in Craig and Yusuf make it clear than an “error” (such as reliance on a particular instrument) can only amount to “jurisdictional error” if such reliance occurs “in a way that effects the exercise of power”. The decision that was made did not depend upon 007 or 047. At the time of the decision (17 December 2014) this applicant was not enrolled in any course with any relevant institution. He was not an eligible higher degree student for the purpose of clause 572.223(1A) of the Migration Regulations 1994. The circumstances that permitted the grant of the visa in the first place no longer existed. The fact that two colleges (Alphacrucis College and the American College) were included as eligible providers in 047 is irrelevant. The applicant was not enrolled in either of those colleges at the time of the Tribunal’s decision. Further, I note, he was not enrolled in either of those colleges at the time of the delegate’s decision.
The argument put forward on behalf of the applicant therefore relating to whether or not the Tribunal had regard to the wrong instrument is, with respect, a red herring.
In my view no jurisdictional error has been established by the applicant in relation to the Tribunal’s reliance upon 007 and/or the Tribunal’s failure to rely upon instrument 047. To put it another way, nothing turns on it.
In any event, I consider that the Tribunal did not fall into any error. The Tribunal relied upon IMMI 14/007. In a supplementary submission filed on 9 July 2015 the first respondent stated:-
“4. The first respondent contends that IMMI 14/047 is not applicable to this matter on the basis that it specified education providers and educational business partners for the purpose of clauses 573.112(b) and 574.112(b) of the Migration Regulations 1994 (the Regulations) “in relation to an application for a student visa made on or after 1 July 2014” and as the applicant applied for his visa on 18 November 2013 it was not applicable. The first respondent contends that the Tribunal applied the correct instrument (being IMMI 14/007) as that instrument commenced on 22 March 2014 and did not stipulate any further qualifications for its application.”
I agree with this submission made on behalf of the first respondent. The Tribunal applied the correct instrument. I note that the applicant filed supplementary submissions also. Those supplementary submissions were filed approximately three weeks out of date. I have nonetheless taken those submissions into account. There is nothing contained in those supplementary submissions of the applicant that changes my view in any way in relation to the question of the correct instrument. Further, there is nothing contained in the supplementary submissions of the applicant that in any way would lead the Court to a different conclusion in this case.

Unreasonableness

In the High Court decision of Minister for Immigration and Citizenship v Li [2013] HCA 18 at paragraph 88 Gageler J noted:-
“Reasonableness as a statutory implication
88. Brennan CJ (in Kruger v The Commonwealth (1997) 190 CLR 1)cited Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234 for the proposition that “when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised” (Kruger v The Commonwealth (1997) 190 CLR 1). He explained the application of “Wednesbury unreasonableness” as a court acting on the "implied intention of the legislature that a [statutory] power be exercised reasonably" to hold invalid “a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action” (Attorney-General (NSW) v Quin (1990) 170 CLR 1.”
One of the conditions for the applicant’s visa was the condition 8516. By that condition the applicant was to “maintain eligibility”. He could only maintain eligibility by remaining enrolled in (and progressing with) an appropriate course of study with eligible providers. He failed to remain enrolled in an appropriate course of study with an eligible provider. At the time of the Tribunal’s decision the applicant was, therefore, not an eligible higher degree student for the purpose of clause 572.223(1A) of the Regulations. In those circumstances it cannot be said, in my view, that the Tribunal’s decision in the present case was “unreasonable” as that term was explained by Brennan CJ in Kruger v The Commonwealth (1997) 190 CLR 1, by the English Court of Appeal in Associate Provincial Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and as adopted by Gageler J in Li’s case.
I have come to the conclusion that the applicant has not been able to establish any jurisdictional error and the application should be dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Howard

Associate:

Date: 28 August 2015

[2015] FCCA 2345

28 August 2015

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction