Singh v Minister for Immigration & Anor
[2015] FCCA 2998
•27 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2998 |
| Catchwords: WORDS & PHRASES – “Maintain” – “continue”. |
| Legislation: Migration Act 1958 (Cth), ss.29, 31(1), 45, 46(1)(a), 47(3), 116 Migration Regulations 1994 (Cth), regs.1.40(2), 1.40A, 2.01, 2.02, cls.573.211, 573.221, 573.223, 573.231 of sch.2, cl.8516 of sch.8 |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Stephen Argument, Delegated legislation not of lesser importance to primary legislation – but is it subject to the same standards of scrutiny? (2015) 26 PLR 137 |
| Applicant: | SIMRANJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 506 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 25 August 2015 |
| Date of Last Submission: | 23 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr R. Turner, Turner Coulson Immigration Lawyers |
| Counsel for the First Respondent: | Ms N. Case |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 506 of 2015
| SIMRANJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 4 September 2013, the applicant was granted a Class TU subclass 573 visa in order to undertake a Bachelor of Information Technology at a university in Ballarat, Victoria. The applicant arrived in Australia for that purpose on 19 September 2013.
After failing all of the units of his course, the applicant ceased to be enrolled in the degree on 8 April 2014. On 17 September 2014 he became enrolled in a Bachelor of Business course at an institution called Stott’s Colleges.
The applicant’s visa was subject to the condition that 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 Minister has the power to cancel a person’s visa if, amongst other things, that person has not complied with a condition of the visa: Migration Act1958 (Cth) sub-s.116(1)(b).
On 10 November 2014 a delegate of the Minister exercised the power to cancel the applicant’s visa on the basis that the applicant was no longer enrolled in a bachelor’s degree or masters degree and was not enrolled in the course of study that was a principal course of a type specified for the applicant’s subclass of visa by the Minister in an instrument made under reg.1.40A of the Migration Regulations 1994 (Cth).
The applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal found that the applicant had breached the condition on his visa because he was no longer an eligible higher degree student after 8 April 2014 and so did not satisfy the primary criteria set out in sub-cl.573.223(1A) of sch.2 to the Regulations.
The applicant argues that the Tribunal applied the wrong test in determining whether or not there was a discretion to cancel his visa. He argues that the word “continue” in the condition to his visa meant that he could comply with the condition in circumstances where, although he had stopped complying with it at some point in time, he had later resumed compliance with it.
At the hearing, there also arose an issue as to whether the Tribunal had properly understood what was meant by the “criteria … for the grant of the visa”. The applicant was granted leave to amend his application orally to include that issue and the parties both filed supplementary written submissions addressed to it.
In order properly to understand the issues and their resolution, it is necessary to appreciate in some detail the scheme for the grant of visas set out in the Act and the Regulations. Although that scheme can seem, at first, to be an impenetrable thicket of detail, its essential features are relatively straightforward. Beyond those features, it helps to understand that the scheme is intended to deal comprehensively with an enormous array of different people and their individual circumstances and the complexities of immigration policy.
The statutory scheme
The Act
The Minister has power under the Act to grant a non-citizen permission, known as a visa, to travel to enter Australia and/or to remain in Australia: s.29. The Act provides for the prescription of classes of visas: sub-s.31(1). Subject to certain exceptions, the person who applies for a visa must apply for a visa of a particular class: s.45. Indeed, an application in which a class of visa is not specified is not valid: sub-s.46(1)(a). The consequence of an application being invalid is that the Minister must not even consider the application: sub-s.47(3).
Most of the detailed provisions regarding visas are left to the Regulations. For present purposes, the Regulations provide for both the criteria for a visa or visas of a specified class (sub-s.31(3)) as well as the conditions to which those visas are subject: sub-s.41(1).
Before turning to the Regulations, it is important to note two further central provisions in the Act relating to visas. The first is s.65 which provides that, after considering a valid application for a visa, the Minister must grant the visa if satisfied of several matters including that the criteria for the visa prescribed by the Act or the Regulations have been satisfied. If the Minister is not so satisfied, then he or she is to refuse to grant the visa.
Second, there are a number of powers under the Act to cancel a person’s visa after it has been granted. One of those powers is in s.116 which arises in a number of circumstances including where the Minister is satisfied that the visa holder has not complied with a condition of the visa: sub-s.116(1)(b).
Those are the essential features of the visa system in Australia. It is necessary now to turn to the details in the Regulations.
The Regulations
The classes, criteria and conditions for visas are specified for the purposes of the Act in div.2.1 of pt.2 of the Regulations. The classes of visas prescribed (with some exceptions) are those set out in the respective items in sch.1 to the Regulations: sub-reg.2.01(1)(a). The classes of visa referred to in sch.1 can be further identified by reference to a subclass set out in that schedule: reg.2.02.
Schedule 2 is divided into parts, each identified by the word “subclass” followed by a three-digit number (the number of the subclass of visa to which the Part relates) and the title of the subclass: sub-reg.2.02(1).
This part of the scheme is best illustrated by way of example. Schedule 1 sets out the classes of visas. It is divided into a number of parts including “Part 1 – Permanent visas” and “Part 2 – Temporary visas (other than bridging visas)”. Each class of visa is identified by both a set of two capitalised letters and a four digit number. Thus, in pt.2 of sch.1 there is a class of visa described as a Student (Temporary) (Class TU) visa which is given the number 1222. Subclause 1222(4) provides that the subclasses for that class of visa are a 570 Independent ELICOS Sector, 571 Schools Sector, 572 Vocational Education and Training Sector, 573 Higher Education Sector, 574 Postgraduate Research Sector, 575 Non-Award Sector, 576 Foreign Affairs or Defence Sector, and 580 Student Guardian.
Separate provisions are made in sch.2 in respect of each of those subclasses by reference to the three digit number given to them. Those provisions include the criteria for the grant of the visa (reg.2.03) and the conditions applicable to the visas (reg.2 05).
The names of the available subclasses reveal that a Class TU visa might be granted for a wide variety of study purposes – English language study, high school education, undergraduate tertiary study and so on. As will be seen, each of the subclasses also addresses a variety of circumstances in which this particular class of visa may be granted.
Subclass 573
The subclass of visa relevant to the applicant’s circumstances was the 573 Higher Education Sector. The criteria relevant to that subclass were set out in pt.573 of sch.2. That part was divided into a number of sub-parts: interpretation and preliminary (573.1), primary criteria (573.2), secondary criteria (573.3), circumstances applicable to grant (573.4), when the visa is in effect (573.5), conditions (573.6) and way of giving evidence (573.7). The present proceedings concerned the primary criteria and conditions.
The primary criteria were, in turn, divided into two parts: criteria to be satisfied at time of application (573.21) and criteria to be satisfied at time of decision (573.22). Of these, the second is pertinent to the issues in the proceedings. Subclause 573.221, the first provision relating to the time of decision criteria, dealt with three possibilities: first, circumstances where an applicant met the requirements of the time of application criterion except for those specified in sub-cl.573.211(4). In those circumstances, an applicant was required to satisfy the criteria at the time of the decision contained in cls.573.222 to 573.234: cl.573.221(1). The second possibility applied if the applicant had met the time of application requirement in sub-cl.572.211(4). The third possibility applied when the applicant met the requirements at the time of application set out in sub-cl.573.211(5). We are concerned only with the first of these possibilities; however, it is important to note that although each of these possibilities is set out in the relevant part of sch.2, it is clearly neither possible nor necessary for a single applicant to meet all of them (although of course it may be possible for both the first and third possibility is to apply to an applicant). They are alternative criteria.
Of all the criteria that must be met in order to satisfy the first possibility in cl.573.221(1), there are two subclauses relevant to these proceedings and it is necessary to set both of those out in full. The first is cl.573.223 which provided:
(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, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(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 subclause (1A) does not apply:
(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 second is cl.573.231 which provided:
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.
It can be seen that there is one broad criterion in cl.573.223, namely that the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student. That satisfaction, however, must be “because” of two further criteria. The second of those criteria (sub-cl.573.223(1)(b)) is that the applicant meets the requirements of subclause (1A) or (2). The chapeau of the first of these requirements presents a factual condition to the applicability of that requirement. There are two consequences if that condition does not apply. The first is that subclause (2) must be satisfied by the applicant. The second is that the applicant must satisfy the requirements in cl.573.231. That consequence arises from the opening words of cl.573.231, namely, “if subclause 573.223(1A) does not apply…”.
Clearly enough, if the factual conditions referred to in the chapeau to sub-cl.573.223(1A) are met, then the applicant must satisfy the criteria in that subclause. It is necessary then to consider what is meant by that factual condition.
The first aspect worthy of note, bearing in mind that it is a time of decision criterion, is that it applies if the applicant “is, and was, at the time of application” an “eligible higher degree student”. An “eligible higher degree student” is defined by cl.573.111 to mean an applicant for a subclass 573 visa in relation to whom three matters apply. As has been explained above, the visa applicant does not in fact apply for a subclass of visa but for a class of visa. However, the reference to the subclass in this requirement is readily understood as being to a person who has applied for a class TU visa on the basis that he or she satisfies the criteria relating to subclass 573.
As provided by cl.573.111, the three matters required in order to be an eligible higher degree student are:
(a)the applicant is enrolled in a principal course of study for the award of:
(ia)an advanced diploma in the higher education sector; or
(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.
The next part of the factual condition to sub-cl.573.223(1A) is that the applicant has a confirmation of enrolment in each course of study for which he or she is an eligible higher degree student.
From this it appears that if a visa applicant is not enrolled in a course of study for the award of, amongst other degrees, a bachelor’s degree, then he or she is not an eligible higher degree student and so sub-cl.573.223(1A) does not apply. In that case, the applicant must satisfy the criterion in cl.573.231. As can be seen from above, that requires the applicant in the first place to be enrolled in or the subject of the current offer of enrolment in a course of study that is a principal course.
A “course of study” is a full-time registered course of study: sub-cl.573.111. Regulation 1.40(2) provides that a course of study is a “principal” course of study in pt.573 of sch.2 to the Regulations if an applicant for a student visa proposes to undertake a course of study that is a registered course the course is the principal course.
In addition, cl.573.231 requires that the principal course is of a type that is specified for subclass 573 visas by the Minister in an instrument made under reg.1.40A and was in force at the time the application was made. Essentially, this requirement gives some flexibility to the Minister as to the type of courses which are suitable for the grant of a student visa under the higher education subclass. In short, the alternative criterion in cl.573.231 is aimed at applicants who are not intending to study a course for the award of an advanced diploma, a bachelor’s degree or masters degree by coursework.
In summary, in order to satisfy the criteria for the grant of a class TU visa by reference to subclass 573; an applicant in this applicant’s circumstances had to either:
a)have had, both at the time of application and at the time of decision, a confirmation of enrolment in a course of study for the award of, relevantly a bachelor’s degree, or
b)at the time of decision be enrolled in or be the subject of the current offer of enrolment in a course of study specified by the Minister.
With that outline of the scheme in mind, it is necessary to return to the facts.
Factual background
The applicant was granted a Class TU visa on for September 2013. There is very little information about the basis upon which that visa was granted other than that the delegate was satisfied that he “met the requirements of subclauses 573.223(1A) or 573.231”. That visa was subject to condition 8516.
The applicant was enrolled in a Bachelor of Information Technology degree course at the Federation University Australia. As noted, he did not do well in that course and undertook his last day of study in it on 31 March 2014. His enrolment was cancelled on 7 April 2014.
Later in April 2014 the applicant enrolled in a number of other courses at the Victorian Institute of Technology: a Certificate III in Commercial Cookery that was to commence on 12 May 2014; a Certificate IV in Commercial Cookery that was to commence on 11 May 2015; a Diploma of Hospitality that was to commence on 15 February 2016 and an Advanced Diploma of Hospitality that was to commence on 25 May 2016. He received confirmation of his enrolment in the first of these on 10 April 2014 and in respect of the others on 17 April 2014. On 17 April 2014 he applied for a Class TU subclass 572 visa. That application was refused on 5 September 2014.
The applicant then enrolled in a Bachelor of Business degree at Stott’s Colleges and received a letter of offer on 12 September 2014. His enrolments in the other courses have all been cancelled. Although there is no evidence as to precisely when that happened, it must have been sometime between April 2014 and 9 January 2015 (being the date of the record showing the cancellation). I infer that the applicant cancelled those enrolments at some time after he failed to obtain a subclass 572 visa and enrolled in the Bachelor of Business course.
On 12 September 2014 an officer of the Department of Immigration sent the applicant a notice of intention to consider cancellation under s.116 of the Act. That notice relevantly stated:
According to the Provider Registration and International Student Management Systems (PRISMS), it appears that you are no longer enrolled in a bachelors degree or masters degree course and you are not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A.
Based on this information, it appears that you have not continued to be a person who would satisfy either subclauses 573.231 or 573.223(1A). As such, it appears that you have not continued to be a person who would satisfy the primary criteria for the grant of the visa and had not complied with condition 8516.
The notice that invited the applicant to make a response to the information and explained the matters that the delegate would take into account in considering whether there was a ground for cancelling his visa and, if so, whether or not to do so.
The applicant responded by letter dated 18 September 2014. He explained that he came to Australia to study a Bachelor of Information Technology at the “University of Ballarat” and, although he studied very hard, he failed all of his units. He gave a number of reasons for this and stated that, given his growing interest in cooking, he had wanted to study commercial cookery. He then explained his enrolment history and the reasons for it as follows:
I was aware of my visa conditions. Therefore, I have applied for student visa subclass 572 on 17 April 2014 as I don’t want a breach any condition of my visa. Unfortunately I got refusal on fire September 2014. I know that I have to study in higher education to maintain my current visa subclass 573 therefore; I have applied for Bachelor of Business to Stott’s College and got offer letter on 12 September 2014. Then I had applied for my Confirmation of Enrolments in Stott’s and I got my COE on 17 September 2014.
…
I have maintained all my visa conditions so my visa should not be cancelled. I came in Australia in Bachelor of Information Technology and I have studied my principal course for more than six months and still marinating (sic: maintaining?) my Student visa subclass 573. Currently, I am also holding confirmation of enrolment for Bachelor of Business from Stott’s College with Certificate III in Commercials cookery, Certificate IV in Commercial Cookery, Diploma of Hospitality and Advanced Diploma of Hospitality from Victoria Institute of Technology which is requirement of student visa subclass 573.
On 10 November 2014 a delegate of the Minister decided to cancel the applicant’s visa. The delegate found that the applicant was no longer enrolled in bachelor’s degree or masters degree course and was not enrolled in a course of study that was a principal course of a type specified the subclass 573 visas by the Minister in an instrument made under reg.1.40A for his current visa. For that reason he considered that there was a ground for cancellation under sub-s.116(1)(b), namely that the applicant had breached condition 8516.
The delegate then considered the matters put forward by the applicant in response to the notice of intention to cancel and, being satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling, decided to cancel a visa.
The applicant applied to the Tribunal for review of the delegate’s decision.
On 3 February 2015 the applicant wrote to the Tribunal restating the matters set out in his response of the notice of intention to cancel and attaching a number of documents including confirmations of enrolment from the Victorian Institute of Technology and Stott’s College as well as the academic transcript from his Bachelor of Information Technology course.
The Tribunal made its decision on 10 February 2015 affirming the decision of the delegate.
Tribunal’s decision
The Tribunal first considered whether there was a ground for cancellation. Its findings on this question were set out in the following paragraphs:
[10]Is (sic) apparent from the evidence, and the tribunal finds, that the applicant did not maintain enrolment in a higher education course and that he did not maintain his status as an ‘eligible higher degree student’ after 8 April 2014 until at least 17 September 2014, when the confirmation of enrolment for the Bachelor Business degree in respect of Stott’s Colleges was created (as set out on the confirmation of enrolment certificate provided by the applicant to the tribunal). The applicant agreed at hearing (sic) when that question was put to him. The tribunal notes that it does not necessarily accept that Stott’s College is an eligible education provider and so that enrolment may not have satisfied the relevant requirements in any event.
[11]As the applicant was no longer an eligible higher degree student after 8 April 2014 he no longer satisfied the primary criteria set out in subclause 573.223(1A) of Schedule 2 to the Regulations. For these reasons, the Tribunal is satisfied that the ground the cancellation in s. 116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
(Emphasis added)
The Tribunal then turned to consider the exercise of discretion. Having considered a number of matters raised in evidence by the applicant, it noted:
[23]On the evidence before it the tribunal is not satisfied that the applicant would incur any particular difficulties if his visa is cancelled. At hearing he vaguely asserted that there were no education providers of hospitality courses in India and then changed his evidence to be that there are only a limited number. Taking into account the applicant’s academic performance and his stated reasons for failing three out of four subjects in his first semester the tribunal has little confidence the applicant would have any better academic achievement if his visa was not cancelled. The tribunal is not satisfied the applicant in fact is a genuine student wishing to improve his educational qualifications in order to have a better career. The tribunal considers that the applicant was attempting to prolong his stay in Australia for reasons unrelated to academic and vocational success.
The Tribunal concluded that, considering the circumstances as a whole, the visa should be cancelled.
Consideration
Ground raised in application
The applicant raised one ground in his application. That ground was:
1. The Tribunal applied the wrong test.
Particulars
(a) The Tribunal found [10]
“… the applicant did not maintain enrolment in a higher education course and that he did maintain his status as an ‘eligible higher degree student’ after 8 April 2014 until at least 17 September 2014, …”
(b)The correct test, set out in condition 8516 in Schedule 8 to the Migration Regulations
“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”.
(c)There is a material difference between “continue” and maintain”.
The Macquarie Dictionary definition of “continue” includes
“to go on after an interruption”
“maintain”
“to keep in existence”
The first issue focuses on the meaning of the word “continue” in condition 8516. Condition 8516 provides that 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 applicant seizes on the Tribunal’s use of the word “maintain” at [10] of its reasons (see [45] above). He argues that there is a difference between the word “continue” and “maintain”. He says the meaning of the former includes to “go on after an interruption” whereas to “maintain” means to “keep in existence”. He makes the valid point that the Tribunal had to have regard to the normal meaning of the word. However, he went on to argue that where a word has multiple meanings the Tribunal had to consider all of the meanings.
I reject that last submission. The Tribunal’s role was to make findings of fact and to apply the legislation, properly construed, to those facts. If the legislation and, in particular the word “continue” does not, in its statutory context, bear the meaning relied upon by the applicant, then it was no part of the Tribunal’s duty to consider it.
The real question then is the proper construction of condition 8516.
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 the High Court said at 107 [39]:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text."
(Reference omitted)
See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47 [47]; Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378, 388 [23]; Theiss v Collector of Customs (2014) 250 CLR 664 at [22].
Condition 8516 is a condition that applies to a visa that has been granted. Therefore, as a matter of logic, it applies to a time after the grant of the visa. However, the conditional tense (“would satisfy”) points to a hypothetical state at a point in time prior to the grant of the visa. In particular, it points to the time of the decision.
There are a number of important contextual considerations that go to the proper construction of this condition. First, a visa is a permission that may be granted to a person by the Minister to travel to and enter Australia or to remain in Australia: sub-s.29(1). Second, the visa cannot be granted unless the Minister is satisfied that the criteria for the grant of that visa have been satisfied. Third, the application must be for a class of visa and classes of visa reflect the purpose for which the visa applicant wishes to travel to and remain in Australia. Similarly, the subclasses within each class are directed towards more particular purposes for travel to and remaining in Australia.
Those contextual considerations suggest that the purpose of condition 8516 is to ensure that a visa holder remains in Australia for the same purpose for which the visa was granted, which was, in this case, to undertake higher education studies.
The applicant’s argument focussed on the word “continue”. That word does have a number of meanings. It can mean, for example, to carry on, keep up, maintain, go on with, persist in (an action, usage, etc.): Oxford Dictionary (online). The Macquarie Dictionary (online) expresses the same sense as: “to go on with or persist in: to continue an action”. It can also, as the applicant submits, mean to carry on from the point of suspension or interruption; to continue a narrative: Macquarie Dictionary (online). However, the ordinary meaning in the context of a condition of a visa is the former.
The latter meaning strains the language of the condition, would have anomalous results and is not consistent with the purpose of the condition. On the applicant’s construction, a student could, without breaching the condition of his or her visa, immediately cease studying, give up enrolment and, say, simply work to earn money so long as, at some point prior to the determination of whether there has been a breach, re-enrol in a relevant course. That would not be consistent with the type of permission given to the visa holder. The purpose of having and granting student visas is not simply to have non-citizens enrolling at the moment of being granted a visa but, rather, to continue that enrolment in order to attain a higher education.
For those reasons, the Tribunal’s use of the word “maintain” at [10] of its reasons does not reveal any error. It was correct to conclude that, because the applicant was no longer an eligible higher degree student after 8 April 2014, he no longer satisfied the criteria in sub-cl.537.223(1A). The words “maintain” and “no longer” are not contained in condition 8516 but they do bear the same meaning as “continue”. Although decision-makers might risk error by failing to adhere to the statutory text, to do so does not necessarily mean that the wrong test has been applied: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572. The ground as raised in the application is rejected.
Grounds raised at hearing
The conclusion, at [11] of the Tribunal’s reasons, that the applicant “no longer satisfied the primary criteria set out in sub-cl.573.223(1A) of Schedule 2” was not a complete answer to the question whether he continued “to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa”. That is because, if as explained above, sub-cl.573.223(1A) did not apply to the applicant, he could satisfy the criteria for the grant of the visa by satisfying the criterion in sub-cl.573.231.
The applicant argued that the Tribunal erred by failing to consider whether the applicant met the criteria in sub-cl.573.231. The Minister put a number of more complicated arguments. I will deal with the Minister’s arguments first.
The first argument is that, in the following circumstances, the applicant does not satisfy the criteria because they did not apply:
a)criterion 573.223(1A) applied at the time of the application;
b)criterion 573.223(1A) did not continue to apply at the time of the Tribunal’s decision because the applicant did not meet the terms of the chapeau (for the reasons set out above); and
c)criterion 573.231 did not apply at any relevant time.
The third of these premises relies on the second limb of the first argument.
In my view, the argument fails to understand the nature of a criterion. In the context of the Regulations, a criterion is a standard or principle against which, relevantly, an application for the grant of a visa is to be tested: Minister for Immigration & Citizenship v Islam (2012) 202 FCR 46 at 53 [38] per Robertson J referring to Pillay v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 368 at [32]. However, it is not the case that an applicant must satisfy every criterion in respect of a particular class or even subclass of visa in order to be entitled to be granted a visa.
In determining what criteria must be satisfied by an applicant, it must be kept in mind that regulations are ordinarily drafted with less care than principal legislation: see Environment Protection Authority v Schon G Condon as Liquidator of Orchard Holdings (NSW) Pty Ltd (2014) 86 NSWLR 499 at [44]; Day v Harness Racing New South Wales [2014] 88 NSWLR 594 at 610 [79]; but see Stephen Argument, Delegated legislation not of lesser importance to primary legislation – but is it subject to the same standards of scrutiny? (2015) 26 PLR 137. Thus, for example, in Ching v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1131 Lindsay FM considered a number of conditions not all of which could possibly be satisfied (cls.3001, 3003 and 3004 of sch.3 to the Regulations) and said, at [8]:
The way in which the Sch 3 criteria apply is capable of generating confusion. The applicant must satisfy “Sch 3 criteria 3001, 3003 and 3004” unless the Minister is satisfied that there are compelling reasons for not applying those criteria. The reference is to all three of the criteria. But it must be taken to mean such of the three criteria as are applicable to the applicant. Criterion 3003 cannot ever apply to the applicant, for example, because he did not hold a substantive visa on or after 1 September 2004. Criteria 3001 and 3004 both appear to be applicable. So, if he cannot satisfy the criteria of either, the Tribunal will need to find compelling reasons for not applying them.
The same reasoning applies here: if the criteria did not apply to the applicant’s circumstances, they were not in fact criteria that he needed to continue to satisfy. That much is made pellucid by the conditional nature of the chapeau to each of sub.cl.573.223(1A) and cl.573.231: “If …”.
For that reason, the first argument is rejected.
The second argument starts from the premise that, from the day on which the applicant received confirmation of his enrolment in a Diploma or Advanced Diploma, cl.573.231 applied to him. That is not quite correct. In fact, cl.573.231 applied the moment that sub-cl.573.223(1A) did not apply, namely, on 7 April 2014 when he ceased enrolment in his bachelor degree course. Here the word “apply” is used to mean that the condition in the chapeau was met so that the applicant had to satisfy the criteria found in the balance of the subclause.
The argument continues with the contention that, between 8 April 2014 and 17 April 2014 neither sub-cl.573.223(1A) nor cl.573.231 applied to the applicant. I take the word “applied” here to mean that the criteria in neither of those subclauses were satisfied by the applicant.
Finally, the Minister relies on the fact that the applicant’s enrolment in the Diploma and Certificate courses had been cancelled by the time the Tribunal made its decision.
The Minister argues that these facts mean that the applicant was in breach of condition 8516 at various times and so the ground for cancellation under sub-s.116(1)(b) was established.
That argument has a potentially fatal difficulty. The unstated premise in it is that it is a matter for the Court to determine whether a ground for cancellation existed. If that were the case, it would be what is often called a jurisdictional fact and the Court could determine for itself whether the ground existed. However, sub-s.116(1) provides that the Minister may cancel a visa if “he or she is satisfied” that one of the matters in the sub-paragraphs apply. Thus, the precondition to the existence of the power to cancel is the Minister’s satisfaction rather than that of the Court.
I have said “potentially” fatal because the argument could succeed if understood in a slightly different way. The same facts could be presented as suggesting that the Tribunal was bound, one way or another, to conclude that the power to cancel had arisen. That submission goes to the discretion of the Court, namely, that relief should not be granted because there would be no utility in doing so: see SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1198 [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 109 [58] per Gaudron and Gummow JJ referring to Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 at 228.
However, the Minister did not argue the point in that way and I would be slow to decide the matter in a way which the applicant had not had any opportunity to address. There is a further reason, though, why I consider that this argument can be left to one side. The process of cancellation has two steps: the first is the inquiry as to whether there is power to cancel; the second is whether to exercise that power. Those steps are distinct but also related. They are related because the reason for which the power arose cannot be irrelevant to the exercise of the power. For example, the seriousness and nature of a particular breach of condition might lead the decision-maker to exercise the power differently to circumstances involving a relatively insignificant breach. Put another way, the nature of the breach is something that must be weighed by the decision-maker in determining whether to cancel the visa.
In light of that, it cannot be said that the Tribunal could only have cancelled the applicant’s visa on the basis of a failure to continue to satisfy cl.573.231. For that reason I would not refuse to grant relief as a matter of discretion.
The Minister’s third argument is based on the Tribunal’s finding that the applicant was not a genuine student: see [23] of the Tribunal’s reasons. The consequence of that finding, it is argued, is that the applicant did not satisfy the “genuine student” requirement under sub-cls.573.223(1A) or 573.223(2)(b) and so was in breach of condition 8516. There are two difficulties with this argument. First, as with the second argument, it is properly understood as going to discretionary refusal of relief and so suffers from the same issues identified in respect of the second ground. Secondly, the “genuine student” requirement is more complicated than is suggested by the Minister’s argument.
The “genuine student” requirement appears in a number of ways in cl.573.223. First, as part of sub-cl.573.223(1) which requires the Minister to be satisfied that the applicant is a “genuine applicant for stay and entry as a student”. That sub-clause, however, not only requires the Minister to be satisfied that the applicant is a genuine student, but that he be so satisfied because of the matters in sub-cls.573.223(1)(a) and (b). Thus, although the words “genuine student” are plain English words, they are constrained by the considerations set out in the subclause. The second of these, 573.223(b) is that the “applicant meets the requirements of subclause (1A) or (2).” In other words, the inquiry provided for by subclause 573.223(1A) is only a sub-set of the “genuine student” requirement. The alternative, sub-cl.573.223(2), imposes further mandatory matters to be taken into account by the Minister when considering whether the applicant is a genuine student (or, rather, a genuine applicant for stay and entry as a student). In short, the question posed by cl.573.223 is not answered by a finding that the applicant is not a genuine student unless all of the relevant matters have been taken into account.
Here, the Tribunal’s reasons do not reveal any consideration by the Tribunal of the matters referred to in cl.573.223 in relation to whether the applicant was a genuine applicant for entry and stay as a student. Rather, they reveal that the Tribunal found that the applicant was not a genuine student as part of its consideration of whether or not to cancel his visa.
For those reasons, the third argument is rejected.
The applicant’s argument is more straightforward. He submits that the operation of the provision of sub-cl.573.223(1A) and cl.573.231 is that a decision maker must consider sub-cl.573.223(1A) and, if an applicant does not meet that criterion by operation of condition 8516, the decision-maker must consider whether an applicant then meets the criteria set out in cl.573.231. The Tribunal, he says, clearly failed to take the second step.
While I accept the first part of the argument, the second is more difficult.
The difficulty arises from the following sentence at [10] of the Tribunal’s reasons:
Is [sic] apparent from the evidence, and the tribunal finds, that the applicant did not maintain enrolment in a higher education course and did not maintain his status as an ‘eligible higher degree student’ after 8 April 2014 until at least 17 September 2014 …
(Emphasis added)
There does not appear to be a definition of “higher education course” in either the Act or the Regulations and the Tribunal does not explain what it meant by the phrase. That is not satisfactory. It requires the Court to dig around in the reasons to understand what is meant. That is arguably a step further than the approach to administrative decisions urged by decisions such as Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. However, there are two indications of what the Tribunal might have meant by the use of the phrase: first, it used the term at [2] of its reasons by reference to the finding of the delegate; and secondly, the word “and” in [10] shows that it contrasted the phrase with the requirements of being an “eligible higher degree student”.
The relevant part of the delegate’s reasons is as follows:
According to Provider Registration and International Student Management Systems (PRISMS), it appears that Simranjeet Singh no longer [sic] enrolled in a bachelor’s degree or masters degree course and Simranjeet Singh not enrolled [sic] in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A for his current visa.
(Emphasis added)
The delegate’s use of the word “and” here, distinguishes the failure of the applicant to be enrolled in a bachelor’s or masters degree from being enrolled in a principal course of a type specified by the Minister in an instrument. This appears to be the same as the distinction drawn by the Tribunal at [10] of its reasons. This suggests that the phrase “higher education course” in the Tribunal’s reasons is simply a short hand way of saying “a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under reg.1.40A for his current visa”. That phrase comes directly from cl.573.231. From that I conclude that, although it did not expressly say so, the Tribunal in fact addressed the question posed by cl.573.231.
Although, as I have said, I consider that the Tribunal’s reasons are inadequate, my concern at the consequence of that is allayed by reference to the instruments in which the relevant courses were prescribed by the Minister under reg.1.40A. From either 10 or 17 April 2014, the applicant was enrolled in Certificate III and IV courses as well as Diploma and Advanced Diploma courses. Such courses were prescribed by the Minister under reg.1.40A for the purposes of subclass 572: see IMMI 12/037 and its replacement IMMI 14/015. They were not prescribed for the purposes of a subclass 573 visa. The description of a subclass 572 visa is “Vocational Education and Training Sector” whereas the description of subclass 573 is a “Higher Education Sector”. This makes the Tribunal’s reference to “higher education course” more readily understandable.
In light of the findings at [10] of the Tribunal’s reasons, when understood against the background of the delegate’s decision and the relevant instruments, I am not satisfied that the Tribunal failed to consider whether the applicant continued to satisfy the criteria for the grant of his visa by reference to the matters set out in cl.573.231.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 27 November 2015
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