SINGH v Minister for Immigration
[2019] FCCA 1333
•23 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1333 |
| Catchwords: MIGRATION – Judicial review – citizen of India – higher education visa cancellation affirmed by Administrative Appeals Tribunal – whether cancellation for particular fact or circumstance that is no longer the case which was basis for grant of the visa – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.116, 474, 476 Migration Regulations 1994 (Cth), reg.1.40A, Sch.2, cll.573.111, 573.223, 573.231, Sch.5A, cll.5A507, 5A508, Sch.8, Condition 8516 |
| Cases cited: Jiang v Minister for Immigration & Citizenship [2007] FCA 907 |
| Applicant: | PARWINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 52 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 24 February 2017 |
| Date of Last Submission: | 24 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 23 May 2019 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 52 of 2016
| PARWINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 4 February 2016 the applicant filed an application for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 4 January 2016. The Tribunal affirmed the decision of the delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to cancel the applicant’s Higher Education Sector visa (“Higher Education Visa”) under s.116 of the Migration Act: Court Book (“CB”) 290 at [35]-[36].
The Tribunal Decision appears at CB 286-290. A Supplementary Court Book (“SCB”) was filed on 22 February 2017.
Background prior to the Tribunal Decision
The relevant background prior to the Tribunal Decision is as follows:
a)the applicant is a citizen of India and was granted the Higher Education Visa on 12 February 2014: CB 1, 5 and 46;
b)on 14 November 2014 the Department of Immigration and Border Protection (“Department”) issued the applicant with a notice of intention to consider cancellation (“NOICC”) of the Higher Education Visa on the basis that the circumstances which permitted the grant of the Higher Education Visa in cl.573.223(1A) of Sch.2 (“cl.573.223(1A)”) to the Migration Regulations 1994 (Cth) (“Migration Regulations”) no longer existed: CB 5-9;
c)records in the Provided Registration and International Student Management System (“PRISMS”) indicated that whilst the applicant was enrolled in a principal course of study for the award of a Bachelor's degree with Group Colleges Australia (“Group Colleges”), he was not enrolled in another course of study before and for the purpose of the principal course: CB 6;
d)on 19 November 2014 the applicant responded stating that he was enrolled in a Diploma and Bachelor degree course: CB 10, and attached a copy of the certificates of enrolment for a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality provided by Kingston International College Pty Ltd (“Kingston College”): CB 15-20;
e)on 28 January 2015 the Delegate decided to cancel the Higher Education Visa under s.116(1)(a) of the Migration Act: CB 46-51;
f)on 4 February 2015 the applicant lodged an application for review with the Tribunal and appointed a migration agent to represent him: CB 52-53; and
g)written submissions were filed by the applicant’s migration agent on 21 December 2015, and on 22 December 2015 there was a hearing before the Tribunal (“Tribunal Hearing”): CB 72-103 (“Written Submissions”) and 278-281 (“Tribunal Hearing Record”).
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)referred to the Written Submissions provided by the applicant’s registered migration agent which made reference to Condition 8516 (“Condition 8516”) of Sch.8 to the Migration Regulations, and noted that the Delegate’s Decision did not refer to a breach of Condition 8516, but relied on s.116(1)(a) of the Migration Act: CB 287 at [3];
b)referred to the ground set out in s.116(1)(a) of the Migration Act, namely that a visa may be cancelled if the Minister is satisfied that the circumstances which permitted the grant of the visa no longer exist, and if satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa ought to be cancelled whilst considering all the relevant circumstances, including matters of government policy: CB 287 at [7]-[8];
c)found that the applicant's Higher Education Visa was granted on the basis of his enrolment in a Bachelor of Business with Queensland University of Technology (“Bachelor of Business – QUT” and “QUT” respectively), an eligible education provider, and a Diploma of Business and Commerce Studies with Gold Coast Institute of TAFE (“TAFE Diploma” and “Gold Coast TAFE” respectively), an educational business partner of that provider, thus satisfying the definition of an "eligible higher degree student'' in cl.573.111 (“cl.573.111”) of Sch.2 (“Sch.2”) to the Migration Regulations: CB 287 at [9];
d)found that information from PRISMS showed the TAFE Diploma was to commence on 7 July 2014 but had been cancelled on 4 August 2014 and the Bachelor of Business – QUT was to commence on 20 July 2015 but had been cancelled on 5 July 2014, in both courses by reason of non-commencement of studies: CB 287-288 at [10];
e)noted that the applicant had been issued with the NOICC on 14 November 2014: CB 288 at [11];
f)noted that the applicant responded to the NOICC on 19 November 2014 providing the following confirmation and enrolments: CB 288 at [12]:
Certificate III in Commercial Cookery dated 18 July 2014 commencing 25 August 2015 (Kingston International College).
Certificate IV in Commercial Cookery dated 19 August 2014 commencing 10 August 2015 (Kingston International College).
Diploma of Hospitality dated 19 August 2014 commencing 22 February 2016 (Kingston International College).
Bachelor of Business dated 30 October 2014 commencing 6 March 2017 (Group Colleges Australia).
(“Certificate III – Cookery”, “Certificate IV – Cookery”, “College Diploma” and “Bachelor of Business – Group Colleges” respectively);
g)noted that the applicant said he had changed his study pathway from business to cookery because his English language score was not good enough, but that the Statement of Achievement for his English course indicated he had attained B and C grades and was not required to re-sit any part of the English course: CB 288 at [13];
h)noted that the applicant subsequently enrolled in another Bachelor of Business course on 30 October 2014, and that he did so because he was aware that his Higher Education Visa required him to be enrolled in a bachelor degree course: CB 288 at [14];
i)found that the applicant’s Higher Education Visa was granted on the basis that he met the requirements set out in cl.573.223(1A) and that the Higher Education Visa was cancelled because the circumstances which permitted the granting of the Higher Education Visa no longer existed, being that although he was enrolled in a principal course of study for a bachelor’s degree he was no longer enrolled in another course of study prior to and for the purposes of the principal course: CB 288 at [15];
j)found that the course of study prior to the principal course was the TAFE Diploma at the Gold Coast TAFE, which was an education business partner of QUT, and when the applicant cancelled his enrolment in the TAFE Diploma and enrolled in the Certificate III – Cookery and Certificate IV – Cookery courses, he no longer satisfied the definition of an eligible higher degree student, and no longer satisfied cl.573.223(1A) because the Certificate III – Cookery and Certificate IV – Cookery courses were not “before and for the purposes of the principal course of study”, that is, the Bachelor of Business – QUT: CB 288 at [16];
k)rejected a submission that the applicant’s enrolment in the College Diploma satisfied the requirement that the applicant be enrolled in another course of study before and for the purposes of the principal course of study and that the applicant therefore met the requirements of cl.573.231 (“cl.573.231”) of Sch.2, because the Tribunal found that the Higher Education Visa was granted on the basis that the applicant met the requirements of cl.573.223(1A): CB 288-289 at [17];
l)found at CB 289 at [18]-[19] as follows:
18. The Tribunal finds that·at the date of cancellation the applicant was not enrolled in another course of study before and for the purposes of the principal course of study as required. Accordingly, the Tribunal finds he was not an eligible higher degree student and did not satisfy the requirements of cl. 573.223(1A) because a circumstance which permitted the grant of the visa no longer existed.
19. Further, the Tribunal noted that the delegate's decision stated that Group Colleges Australia is not an eligible education provider and Kingston International College is not an educational business partner as required under the Regulations.
m)found that the applicant’s circumstances therefore satisfied the grounds for cancellation of the Higher Education Visa under s.116(l)(a) of the Migration Act: CB 289 at [20]; and
n)in considering whether the discretion to cancel the applicant’s Higher Education Visa should be exercised, the Tribunal had regard to the relevant factors contained in the PAM 3 “General visa cancellation powers” document (“PAM 3 Guidelines”) and the applicant’s evidence to the Department and the Tribunal. The Tribunal made the following relevant findings:
i)the applicant came to Australia for the purpose of undertaking study at a higher education level and the applicant ceased to be an eligible higher degree student on the cancellation of his enrolments in the TAFE Diploma and Bachelor of Business – QUT: CB 289 at [25];
ii)the applicant ceasing to be an eligible higher degree student was significant because it was the circumstance of being an eligible higher degree student which enabled the applicant to satisfy cl.573.223(1A) which permitted the grant of the Higher Education Visa, and that circumstance no longer existed: CB 290 at [31];
iii)it was prepared to accept that the applicant may suffer hardship as a result of the cancellation of the Higher Education Visa as he would not be able to pursue study in Australia: CB 290 at [32];
iv)it was not satisfied that the applicant had a genuine intention of pursuing higher education in Australia: CB 290 at [33]; and
v)it was for the applicant to understand the responsibilities of the Higher Education Visa and he could have informed himself of the relevant Higher Education Visa requirements: CB 290 at [34].
Considering the applicant’s circumstances as a whole: CB 290 at [35], the Tribunal considered that the Higher Education Visa should be cancelled, and affirmed the Delegate’s Decision to cancel the Higher Education Visa: CB 290 at [36].
Having regard to what the Tribunal said at CB 289 at [19] concerning the Delegate’s Decision (see [4(1)] above), the Court notes that in the Delegate’s Decision at CB 49 it was said that:
I have given little weight to Parwinder Sing’s (sic) enrolment at Kingston International College and Group Colleges Australia because:
- Kingston International College is not an eligible business partner.
- Group Colleges Australia is not an eligible education provider.
Judicial Review Application – grounds
The grounds of the Judicial Review Application are as follows:
1. I was granted Student Visa (Class TU) Higher Education Sector (subclass 573) visa on 12 Feb 2014
2. On 15/02/2014 I arrived in Australia as holder of student visa and commenced my studies at Department Of Education, Training and Employment.
3. I was granted Subclass 573 (Higher Education Sector Visa) based on my principal course of study i.e. Bachelors degree (Prescribed by Minister of Immigration and Border protection under Federal Legislative instrument IMMI 12/037 for provision of student visa)
4. After completing my English studies from Gold Coast Institute of Technology (part of Department of Education, Training and Employment) I moved to Perth.
5. After moving to Perth I choose to enrol in study Package consisting of Certificate III Commercial Cookery, Cert IV commercial Cookery and Diploma of Hospitality from Kingston International College and Bachelors of Business from Group Colleges Australia.
6. On 14 November 2014 I was issued Notice of Intention of cancellation of visa under Section 116(1)(a) of the Migration Act.
7. In response to the notice I provided Department of Immigration and Border Protection (DIBP) with my COE as an evidence of my enrolment including my enrolment in Bachelors course.
8. On 28 January 2015 my visa was cancelled by DIBP as department believed that I am in breach of section 116(1)(a) of the Migration Act.
9. I applied for review of decision with Migration Review Tribunal on 4 Feb 2015.
10. I was invited by Tribunal on 22 December 2015 for hearing in relation to my case.
11. On 05 January 2016 Administrative Appeals Tribunal's Migration and Refugee division affirmed the decision made by Department of Immigration and Border Protection.
12. I would like to bring to court's attention that when was granted my student visa on 12 Feb 2014 I was required to meet criteria set out in subclause 573.231 or 573.223(1A).
13. Both of these subclasses required an applicant to be enrolled in principal Course of Higher Education as prescribed by Minister of Immigration and Border Protection for the purpose of Student Visa.
14. Subclass 573.231 states as follows
573.231
If subclause 573.223(1A) does not apply:
(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.
15. As at the time of decision I was enrolled in my Principal Course of Bachelors Degree which was prescribed as suitable for the purpose of this subclass as per the Federal Legislative Instrument issued by Minister of Immigration and Border Protection under Regulation 1.40A.
16. Therefore I request honourable court to please review my case again in light of all the evidence.
(Transcribed verbatim – emphasis in original).
Applicant’s Affidavits
Applicant’s First Affidavit
The applicant swore an affidavit in support of the Judicial Review Application in these proceedings on 3 February 2016 (“Applicant’s First Affidavit”) in which he asserted that:
1. I was granted Student(Temporary)(Class TU0 Higher Education Sector (subclass 573) visa on 12 Feb 2014
2. On 15/2/2014 I came to Australia and commenced my studies at Department of Education, Training and Employment in Queensland. My principal course of study was Bachelors of Business from Queensland University of Technology.
3. After completing my English studies from Gold coast institute of Technology (Department of Education, Training and Employment) I moved to Perth.
4. In Perth I choose to study under different Course package. I was enrolled in Diploma of Hospitality (Commercial Cookery) including Cert III and IV Commercial Cookery followed By Bachelors of Business. My principal course of study was still a Bachelors Degree under new course package.
5. On 14 Nov 2014 Department of Immigration and Border Protection issued me with Notice of Intension of Cancellation of my visa.
6. On 19 Nov 2014 I replied to Department of Immigration and Border Protection with my Certificate of Enrolment of all the courses including my principal course of Bachelors degree.
7. Subsequently my visa was cancelled on 28 January 2015 my visa was cancelled under Section 116(1)(a) of the Migration Act.
8. I applied for review of decision with Migration Review Tribunal on 4 Feb 2015.
9. I was invited by Tribunal on 22 December 2015 for hearing in relation to my case. Later on my application was refused by Tribunal.
10. I would like to state that I never breached my visa condition. Even though I changed my Education provider I still was enrolled in principal course of study at Bachelors level and thus I was still maintaining the circumstances that led to grant of my visa i.e my enrolment in Higher Education course
(Transcribed verbatim).
The Applicant’s First Affidavit:
a)at [1]-[9] simply reiterates factual material regarding the timeline of when the applicant applied for the Higher Education Visa, up until the time of the Tribunal Hearing and Tribunal Decision; and
b)at [10] makes a submission that the applicant did not breach the conditions of the Higher Education Visa because he was still enrolled in a principal course of study at the bachelors degree level, a circumstance which led to the grant of the Higher Education Visa, albeit with a different education provider.
Applicant’s Second Affidavit
The applicant filed a further affidavit on 16 February 2017, sworn on 15 February 2017 (“Applicant’s Second Affidavit”). The Minister took no objection to the very late filing of the Applicant’s Second Affidavit, it having been due to be filed by 31 March 2016 pursuant to orders made by a Registrar of this Court on 2 March 2016. In light of the Minister’s lack of objection it is unnecessary for the Court to take any issue with the lateness of the Applicant’s Second Affidavit. Relevantly, the Applicant’s Second Affidavit provides as follows:
1. I applied for Judicial Review of my decision to cancel my student visa.
2. I was granted Student Visa on 12 Feb 2014, and my visa was subjected to condition 8516.
3. My student visa was cancelled by DIBP as I was found that conditions that prevailed grant of my visa didn't exist.
4. The criteria applicable for grant of such visa was that the applicant satisfies cl.573.223(1) or cl.573.231. At the time of grant of my visa subclass 573 visa can be granted if applicant satisfied either of these criteria.
5. Secondly, I was granted subclass 573 visas on the fact that I was enrolled in principle course of study for the sector.
6. At the time of grant, the legislative instrument that was applicable in determining the type of student visa was IMMI 12/037 (for the purpose of Regulation 1.40A(1).
7. As per the legislative instrument if my principal course of study was Bachelors then I was eligible for Subclass 573 visa.
8. As a result, I always maintained circumstances that lead to the grant of my visa. I was always enrolled in a course that qualifies my entitlement for Subclass 573 visa.
9. My visa was subclass 573 visa, and my visa grant letter does not mention anything about any processing arrangement.
10. I have always complied with my visa and maintained my enrolment as required for the applicable subclass.
(Transcribed verbatim).
The Applicant’s Second Affidavit contains a mix of factual material and submissions, and in particular at [2] and [4]-[9], contains factual content contrary to findings in the Tribunal Decision, as follows:
a)the Delegate’s Decision did not refer to a breach of Condition 8516: CB 287 at [3];
b)the applicant’s Higher Education Visa was granted on the basis that he met the requirements contained in cl.573.223(1A), not cl.573.231: CB 288-289 at [15] and [17];
c)the applicant’s Higher Education Visa was granted on the basis of his enrolment in the Bachelor of Business – QUT and the TAFE Diploma: CB 287 at [9]; and
d)the applicant cancelled his enrolment in the Bachelor of Business – QUT on 5 July 2014 and the TAFE Diploma on 4 August 2014: CB 287-288 at [10], and subsequently enrolled in the Bachelor of Business – Group Colleges on 30 October 2014: CB 288 at [14]. The applicant did not enrol in another course of study before or for the purposes of the principal course of study as required: CB 289 at [18], and Group Colleges is not an eligible education provider, and Kingston College is not an educational business partner of an eligible education provider as required under the Migration Regulations: CB 289 at [19].
Submissions
Submissions in the Applicant’s First and Second Affidavits
The Minister did not object to either the Applicant’s First or Second Affidavits on the basis they contained both factual material and submissions. With regard to the submissions contained within both the Applicant’s First and Second Affidavits the Court will treat them as submissions. Insofar as any factual content contained in both the Applicant’s First and Second Affidavits is concerned, it appears the applicant is simply inviting the Court to undertake a merits review which, as set out below, is impermissible: see [20] below.
The Minister filed written submissions in relation to those parts of the Applicant’s First Affidavit the Minister considered to be submissions, and made further oral submissions in relation to those parts of the Applicant’s Second Affidavit the Minister considered to be submissions, oral submissions being necessary given that the Applicant’s Second Affidavit was filed not only late, but after the Minister’s written submissions were filed.
Applicant’s submissions
The applicant did not file any written submissions and was self-represented at the hearing with the assistance of an interpreter.
The submissions made by the applicant in the Applicant’s First and Second Affidavits were that:
a)he never breached the Higher Education Visa conditions because even though he changed his education provider, he was still enrolled in a principal course of study in a bachelors degree course, and those were the circumstances that led to the grant of the Higher Education Visa;
b)the Higher Education Visa was subject to Condition 8516; and
c)at the time of the grant of the Higher Education Visa the legislative instrument applicable to determining the type of visa, for the purpose of reg.1.40A(1) of the Migration Regulations was Schedule 1 of the relevant government instrument, Minister for Immigration & Citizenship, Types of Courses For Student Visas (IMMI 12/037, 24 March 2012), and the applicant asserts that he maintained the circumstances that led to the grant of the Higher Education Visa by always being enrolled in a course that qualified for a Higher Education Visa because his principal course of study was for a bachelor level degree.
At hearing the applicant made the following oral submissions:
a)at the time of applying for the Higher Education Visa he provided financial evidence for the grant of the Higher Education Visa, meaning he did not use the streamlined visa processing (“SVP”) arrangement for grant of a Higher Education Visa;
b)there is evidence of his financial capacity and English language proficiency in the SVP;
c)according to Sch.5A (“Sch.5A”) of the Migration Regulations there is no need to provide evidence of any funds to be granted a visa; and
d)he changed pathways for a better career in hospitality, but his principal course was always a bachelor degree course required for the Higher Education Visa.
Minister’s submissions
The Minister filed written submissions, and made oral submissions at hearing, and submitted that:
a)the applicant obtained the Higher Education Visa by meeting the requirements of cl.573.223(1A), as an eligible higher degree student, as he was enrolled in a Bachelor of Business – QUT, and for the purpose of the Bachelor of Business – QUT, enrolled in the TAFE Diploma at Gold Coast TAFE, which was an educational business partner of QUT;
b)the applicant was never required to provide evidence to satisfy the requirements of Sch.5A;
c)enrolment in a bachelor degree course, of itself, would not have permitted the grant of the Higher Education Visa because the applicant would also have been required to satisfy the criteria in Sch.5A concerning the applicant's English language proficiency and financial capacity;
d)cl.5A507(1) (“cl.5A507(1)”) of Sch.5A required the applicant to complete an IELTS test with an overall band score of at least 5.5 within the two years prior to lodging the application for the Higher Education Visa. The applicant submitted an IELTS test report dated 10 October 2013 with an overall score of 5.0: SCB 12;
e)in accordance with cl.5A508 (“cl.5A508”) of Sch.5A the applicant would be required to provide evidence of having funds from an acceptable source sufficient to meet his course fees, living costs and travel costs for the first 18 months. Whilst the applicant did provide evidence of funds held by financial sponsors, the evidence of funds available did not meet the quantum of funds that would have been required;
f)the applicant applied for the Higher Education Visa under the SVP, and on that basis the applicant was an eligible higher degree student: SCB 15 at [4], and therefore was not required to provide evidence to satisfy Sch.5A;
g)even if the Minister were to accept that the evidence provided by the applicant of the money deposits were sufficient to meet the requirements of Sch.5A, the total funds fall well below what would have been required to be demonstrated at the time of the application: cl.573.223(2)(a) of Sch.2: SCB 20 and 24;
h)to suggest that the applicant being an eligible higher degree student was not a circumstance existing at the time of the grant of the Higher Education Visa is a submission that is unsustainable;
i)there is no suggestion in s.116(l)(a) of the Migration Act that the power to cancel the Higher Education Visa is not engaged because it may have been possible for the applicant to have met the requirements for the Higher Education Visa through an alternative mechanism, where there was no evidence to that effect before the Delegate at the time of application for the Higher Education Visa;
j)the Tribunal cannot be said to have committed any error in not considering whether or not the application was within the terms of cl.573.223(2); and
k)the Tribunal was required to decide the review in accordance with the fact that a circumstance which existed at the time of the grant of the Higher Education Visa, permitting its grant, was that the applicant met the definition of "eligible higher degree student" and at the time of Tribunal Decision, this circumstance no longer existed, and the failure of the applicant to continue to be an eligible higher degree student enlivened the power to cancel under s.116(1)(a) of the Migration Act.
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. Jurisdictional error may occur where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material, in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA1284; (2009) 112 ALD 424 at [15] per Jagot J.
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for a Higher Education Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Court notes that the applicant is a self-represented litigant, and the Court ought therefore to remain alert to the possibility of legal error in the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112] per Mortimer J.
Section 116(1)(a)
The Court notes that the initial question for determination by the Tribunal was whether grounds for the cancellation of the Higher Education Visa existed under s.116(1)(a) of the Migration 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:
(a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; …
(Section 116(2) and (3) of the Migration Act are not relevant for present purposes).
Grounds in the Judicial Review Application
Grounds 1-11 and 16
Grounds 1-11 and 16 of the Judicial Review Application raise no competent legal grounds of review. Grounds 1-11 simply recount the procedural history of the matter and submissions before the Delegate and the Tribunal, while ground 16 is a request for review but asserts no discernible jurisdictional error.
Grounds 12-15
The applicant’s contention in grounds 12-15 of the Judicial Review Application, read as a whole, appears to be that the grounds for cancellation of the Higher Education Visa did not exist because the applicant met the requirements of cl.573.231.
Ground 12 claims that for the grant of the Higher Education Visa the applicant was required to meet the criteria set out in cll.573.231 or 573.223(1A).
The Tribunal expressly found that the Higher Education Visa was granted because the applicant met the requirements of cl.573.223(1A): CB 288 at [15] and 288-289 at [17]. The Tribunal rejected an argument that because the applicant was enrolled in the College Diploma he allegedly met the requirements of cl.573.231 because the applicant said that he continued therefore to be an eligible higher degree student, the Tribunal noting, again, that the Higher Education Visa was granted because he met the requirements of cl.573.223(1A): CB 288-289 at [17]. That is a finding of fact grounded upon probative material: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [37]-[42] per Gummow CJ and Kiefel J. In the Court’s view that is a finding of fact which the applicant cannot challenge on judicial review, and for that reason ground 12 cannot succeed. In any event, contrary to the applicant’s assertion that for the grant of the Higher Education Visa the applicant was required to meet the requirements of cl.573.231, there is no evidence that the requirements of cl.573.231 formed any part of the bases for the grant of the Higher Education Visa. It follows from that that whether or not the applicant subsequently met those requirements was a matter which was irrelevant for the purposes of determining whether there was a particular fact or circumstance that is no longer the case, or that no longer exists, upon which the decision to grant the Higher Education Visa was based: Migration Act, s.116(1)(a).
Ground 13 purports to describe the effect of cll.573.231 and 573.223(1A), but does not assert any relevant jurisdictional error, nor, because of what is said in relation to cl.573.231 regarding ground 12, does it establish any jurisdictional error in the Tribunal Decision.
Ground 14 merely sets out the provisions of cl.573.231.
Ground 15 asserts that as the applicant was enrolled in a principal course leading to a bachelors degree prescribed as suitable for the purposes of that subclass by a legislative instrument issued under reg.1.40A of the Migration Regulations. That assertion is incorrect. It is necessary to refer to the relevant provisions in further detail to demonstrate why that is so.
Clause 573.223 provided as follows:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister 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) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (1A) or (2).
(1A) If the applicant is 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:
(a) the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.
(2) If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
The phrases “eligible higher degree student”, “educational business partner” and “eligible education provider” were relevantly defined in cl.573.111 as follows:
eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:
(a) the applicant is enrolled in a principal course of study for the award of:
(i) a bachelor’s degree; or
(ii) a masters degree by coursework;
(b) the principal course of study is provided by an eligible education provider;
(c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:
(i) the applicant is also enrolled in that course; and
(ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.
educational business partner, in relation to an eligible education provider, means an education provider specified as an educational business partner in an instrument made under clause 573.112.
eligible education provider means an education provider specified as an eligible education provider in an instrument made under clause 573.112;
Schedule A of the relevant government instrument, Assistant Minister for Immigration & Border Protection, Eligible Education Providers & Educational Business Partners (IMMI 14/007, 22 March 2014), lists QUT as an eligible education provider and Gold Coast TAFE as its educational business partner. Group Colleges is not listed as an eligible education provider, and Kingston College is not listed as an educational business partner of Group Colleges.
Regulation 1.40A of the Migration Regulations provided as follows:
(1) The Minister must specify, by instrument in writing, the types of courses for each subclass of student visa.
(2) The Minister is not required to specify a course if:
(b) the course would be undertaken by:
(i) an applicant for a Subclass 573 (Higher Education Sector) visa who would be an eligible higher degree student within the meaning of Part 573 of Schedule 2; or
Schedule 1 of the relevant government instrument, Minister for Immigration & Citizenship, Types of Courses For Student Visas (IMMI 12/037, 24 March 2012), states that for a Higher Education Visa a bachelor degree is one of the types of courses specified in the schedule: CB 75.
The principal course of study in this case is the Bachelor of Business – QUT. The TAFE Diploma was a course before and for the purposes of the principal course of study, being the Bachelor of Business – QUT. Therefore, the moment the applicant ceased to be enrolled in the TAFE Diploma he ceased to be enrolled in a course before and for the purposes of the principal course, and therefore ceased to be an “eligible higher degree student” pursuant to the definition of that phrase in cl.573.111. The fact that the applicant was no longer so enrolled constituted a particular fact or circumstance which was no longer as it was at the time the decision to grant the Higher Education Visa was granted, and upon which the grant of the Higher Education Visa was based, and which therefore enlivened the power to cancel the Higher Education Visa under s.116(1)(a) of the Migration Act.
For the above reasons, the Tribunal did not err in determining that the applicant did not continue to meet the relevant criteria for the Higher Education Visa after the cancellation of his enrolment in the TAFE Diploma and the Bachelor of Business – QUT course. It follows that there was no jurisdictional error in relation to that determination. It also follows that ground 15 is not made out, and consequently grounds 12-15 are not made out and do not establish any jurisdictional error in the Tribunal Decision.
The applicant focused upon his subsequent enrolment in the Certificate III and IV – Cookery courses and the College Diploma at Kingston College and the Bachelor of Business – Group Colleges course at Group Colleges. Those enrolments did not however assist the applicant to meet the relevant criteria for the Higher Education Visa. That is because those enrolments do not qualify the applicant as an “eligible higher degree student” for the purposes of cl.573.111, which the applicant must be in order to meet the requirements for the Higher Education Visa. In this case, the applicant did not meet the relevant criteria to be an “eligible higher degree student” when he enrolled at Kingston College and Group Colleges because the latter is not an eligible education provider, and the former is not an educational or business partner of an eligible education provider (and in particular Group Colleges): see [4(1)], [6] and [31]-[32] above, and therefore any course undertaken at those institutions does not meet the definition of “eligible higher degree student” in cl.573.111. That further demonstrates that from the moment the applicant ceased to be enrolled in the TAFE Diploma he ceased to be an eligible higher degree student, and therefore ceased to meet the criteria for the Higher Education Visa.
In the above circumstances it is plain that even if the Tribunal had committed some kind of jurisdictional error (which it has not) in cancelling the Higher Education Visa the Court would be entitled to refuse to grant prerogative relief in the exercise of its discretion to do so because to do so would lack utility or be an exercise in futility: SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J; Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31] per Lucev FM (from which an appeal by the applicant was dismissed in Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per Bennett J).
Grounds in Applicant’s First and Second Affidavits
The applicant’s submissions raise certain other matters which it is necessary to address on the basis that they might constitute jurisdictional error: MZAIB at [100] and [112] per Mortimer J. Each of these discrete matters is dealt with below.
Condition 8516
The applicant suggests in his submissions that the grant of the Higher Education Visa was subject to Condition 8516.
Condition 8516 states:
The 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.
The Court notes that:
a)the NOICC sent to the applicant made no reference to any breach by the applicant of Condition 8516: CB 5-9;
b)the Delegate’s Decision makes no reference to a breach of Condition 8516: CB 46-51;
c)the Tribunal Decision refers to the written submissions filed by the applicant’s registered migration agent on 21 December 2015, which submitted that the reason for the Delegate’s Decision was that the applicant had breached Condition 8516, and the Tribunal states that the Delegate’s Decision did not refer to a breach of Condition 8516: CB 287 at [3]; and
d)there is no evidence either in the CB, or otherwise provided by the applicant, which indicates that Condition 8516 was a condition of the grant of the Higher Education Visa, or that the Higher Education Visa was subject to Condition 8516, or, most pertinently, that Condition 8516 was a basis for the cancellation of the Higher Education Visa.
In the above circumstances, the Court is of the view that Condition 8516 is not relevant to the Judicial Review Application, and provides no basis for establishing jurisdictional error in the Tribunal Decision.
SVP regime
The SVP exists in order to streamline the processing of visa applications in relation to particular student visas. The SVP is available to those who are “eligible higher degree students”, and who satisfy the requirements of cl.573.223(1A). The effect of the SVP is that an “eligible higher degree student” who satisfies the requirements of cl.573.223(1A) does not have to produce the onerous evidence required under Sch.5A as to their skills in the English language, their financial capacity, and their educational prerequisites.
In the present case, the applicant was enrolled in a Bachelor of Business – QUT, and was enrolled in the TAFE Diploma at Gold Coast TAFE as a prerequisite course, thus satisfying the requirements of cl.573.223(1A) to be as an eligible higher degree student at the time of that enrolment.
The SVP regime recognises that bachelors degrees at eligible education providers have educational prerequisites to entry, and accommodate this by enabling an applicant to obtain a Higher Education Visa on the premise that the applicant will complete any pre-requisite study whilst in Australia and prior to commencing the principal course. Where a prerequisite course is required before the applicant can commence the principal course, in order to be an “eligible higher degree student” the applicant must be enrolled in the prerequisite course, and the prerequisite course must be provided by an eligible education provider or an educational business partner of the eligible education provider of the principal course. The applicant ceased to meet this eligibility criteria when he ceased to be enrolled in the TAFE Diploma and the Bachelor of Business – QUT, and enrolled in the Certificate III and IV – Cookery, College Diploma and Bachelor of Business – Group Colleges courses which were not provided by an eligible education provider or an educational business partner of the eligible education provider of the principal course.
The Court notes that the applicant provided the following documents in support of his student visa application:
a)a financial declaration dated 23 December 2013 which referred to SVP: SCB 15 at [4]-[5];
b)a document entitled “Applying under university streamlined visa processing – matrix”: SCB 23; and
c)an attachment to financial details referring to the assessment level as SVP: SCB 24,
but these were not documents required for the purposes of Sch.5A, but rather for the purposes of the SVP regime. It follows from the requirements under the SVP regime, in particular that the applicant be an “eligible higher degree student”, and the findings already made by the Court in that regard, namely that when the applicant ceased to be enrolled in the TADE Diploma leading to the Bachelor of Business – QUT that he ceased to be an eligible higher degree student, and that that position was not altered by his subsequent enrolment in the Certificates III and IV – Cookery, the College Diploma and the Bachelor of Business – Group Colleges, that nothing turns on the provision of the above documents for the purposes of the SVP regime, and further, that the applicant was not required to provide documents for the purposes of meeting Sch.5A. In the circumstances, matters related to the SVP regime provide no basis for establishing jurisdictional error in the Tribunal Decision.
Clause 573.223(2)
The applicant appeared to assert that the Tribunal ought to have considered whether or not the applicant satisfied the requirements of cl.573.223(2) for the grant of a Higher Education Visa.
Where a person is not an “eligible higher degree student” or does not satisfy the requirements of cl.573.223(1A) they must meet the requirements of cl.573.223(2) (“cl.573.223(2)”) of Sch.2 to the Migration Regulations to be granted a Higher Education Visa. The issue before the Court is not however whether the applicant met the requirements of cl.573.223(2) at any time, but rather whether the Tribunal made a jurisdictional error in cancelling the Higher Education Visa. Even if the Tribunal was required to give consideration to whether or not the applicant might have met the requirements of cl.573.223(2) (which it was not) that would not have assisted the applicant because:
a)the enrolment in the bachelor degree course, of itself, would not have permitted the grant of the Higher Education Visa because the applicant would also then have been required to satisfy the criteria in Sch.5A concerning the applicant’s English language proficiency and financial capacity at an assessment level 3;
b)clause 5A507(1) required that the applicant had completed an IELTS test within the two years prior to making the application for the Higher Education Visa and achieved an overall band score of at least 5.5. The applicant submitted an IELTS test report dated 10 October 2013 in support of his application, but had only achieved an overall score of 5.0: SCB 12; and
c)clause 5A508 required that the applicant provide evidence of having funds from an acceptable source sufficient to meet his course fees, living costs and travel costs for the first 18 months. The applicant did provide evidence of funds held by financial sponsors, but the evidence of funds available did not meet the quantum of funds required: SCB 20 and 24,
and the applicant would not therefore have met the requirements or criteria in Sch.5A for the grant of a Higher Education Visa.
The Tribunal was considering whether or not to affirm the cancellation of the applicant’s Higher Education Visa, not whether to grant him a Higher Education Visa on a basis different to that upon which the Higher Education Visa was originally granted. However, as the analysis at [49] above demonstrates, even if the Tribunal was required to consider whether or not to grant the applicant a Higher Education Visa on a basis other than that under cl.573.223(1A) when considering whether or not to affirm the Delegate’s Decision to cancel the Higher Education Visa, the applicant did not meet the requirements for the grant of a Higher Education Visa under cl.573.223(2). Thus, even if there was a jurisdictional error in failing to consider satisfaction of the cl.573.223(2) requirements, that jurisdictional error has no effect because of the applicant’s failure to meet the cl.573.223(2) requirements, and the grant of prerogative relief in respect thereof would lack utility or be futile: see [38] above, and for that reason the Court ought not grant prerogative relief even if there was a jurisdictional error (which the Court does not consider there was).
Clause 573.231
The applicant’s contention that he met the requirements of cl.573.231 by virtue of his enrolment in a bachelor degree was also made in the Applicant’s First Affidavit at [4], the Applicant’s Second Affidavit at [7]-[8], and at the hearing before this Court: Transcript, page 5, but for the reasons set out at [26] above whether or not the applicant met the requirements of cl.573.231 was irrelevant for present purposes.
Exercise of discretion to cancel
The Tribunal was satisfied that a ground for cancellation existed in s.116(1)(a) of the Migration Act and, as part of deciding whether to exercise its discretion to cancel the Higher Education Visa considered the following:
a)relevant factors under the PAM 3 Guidelines: CB 289 [22]-[23];
b)the applicant’s reasons for changing his courses: CB 289-290 at [26]-[29];
c)any hardship to others and the applicant if the Higher Education Visa was not reinstated: CB 290 at [30] and [32]-[33]; and
d)the onus on the applicant to understand his responsibilities under the Higher Education Visa: CB 290 at [34].
In determining whether or not to exercise its discretion to cancel the Higher Education Visa the Tribunal also addressed the matters which were put to it by the applicant in relation to the exercise of the discretion not to cancel the Higher Education Visa.
The Tribunal Decision demonstrates that the Tribunal gave active consideration to the exercise, or otherwise, of the relevant discretion as it was required to do: Minister for Immigration & Citizenship v Khadgi & Anor [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26 at [57] per Stone, Foster and Nicholas JJ, and there is nothing to suggest that the exercise of its power to affirm the cancellation of the Higher Education Visa by the Delegate was in any way contrary to the principles with respect to the reasonable exercise of a statutory discretion: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181. It follows that the Tribunal gave proper and active consideration to the exercise of the discretion under s.116(1)(a) of the Migration Act to cancel the applicant’s Higher Education Visa, and did not act unreasonably in so doing.
Conclusion and orders
The Court has concluded that the Tribunal Decision was not affected by jurisdictional error, and the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 23 May 2019
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