Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 278
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 278
File number: MLG 2718 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 21 April 2022 Catchwords: MIGRATION – Cancellation of a Student (Higher Education Sector) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal adhered to its procedural fairness obligations – whether the Tribunal “properly” exercised its power – whether the Tribunal failed to consider the evidence before it regarding incorrect advice provided by the applicant’s migration agent – whether the conduct of the applicant’s migration agent amounted to a “fraud on the Tribunal” – no jurisdictional error – application dismissed. Legislation: Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), ss 116, 360, 476, 477
Migration Regulations 1994 (Cth), reg 1.40A, cll 573.223(1A) and 573.231 in Schedule 2, condition 8516 in Schedule 8
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107
Craig v State of South Australia (1995) 184 CLR 163
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 14 April 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms M Richardson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2718 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARMANPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
21 APRIL 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 30-34). On 1 April 2014, he was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (the “visa”) (CB 8).
The applicant first arrived in Australia in June 2014 as the holder of the visa (CB 26 & 29). The visa was valid until 30 August 2017 (CB 51).
On 25 November 2016, the then Department of Immigration and Border Protection (the “Department”) sent the applicant a “Notice of Intention to Consider Cancellation” letter (the “NOICC”) (CB 7-12). The NOICC referenced a breach of condition 8516 of the applicant’s visa – highlighting that it appeared that the applicant had not continued “to be a person who would satisfy the primary or secondary criteria … for the grant of the visa” (CB 8). Relevantly, it appeared the applicant had ceased to be enrolled in a Bachelor or Masters degree since 20 April 2015 (CB 9).
On 9 December 2016, the applicant’s representative sent an email to the Department in response to the NOICC. That email attached written submissions, a statutory declaration made by the applicant and supporting documents (CB 22-45).
On 13 December 2016, the applicant’s visa was cancelled. He was sent a notice of cancellation (through his representative) (CB 46-50) which attached a copy of the delegate’s decision record (CB 51-56). The delegate had determined that, because the applicant had not maintained enrolment in a course of study (that is a principal course of a type specified for the visa) from 20 April 2015 to 8 December 2016, he was not a person who would satisfy either cll 573.231 or 573.223(1A) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). On that basis, the delegate was satisfied that the applicant had breached condition 8516 in Schedule 8 of the Regulations (CB 53).
On 19 December 2016, the applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 57-58).
On 12 May 2017, the Tribunal invited the applicant (through his representative) to attend a hearing before it, scheduled for 22 June 2017 (CB 69-72).
On 1 June 2017, the Tribunal notified the applicant (through his representative) that the Tribunal hearing had been postponed (CB 73-75).
On 13 October 2017, the Tribunal invited the applicant (through his representative) to attend a rescheduled hearing before it on 7 November 2017 (CB 76-79).
On 19 October 2017, the applicant’s representative notified the Tribunal that they no longer held instructions to act for the applicant (CB 80-81).
On 7 November 2017, the applicant attended a hearing before the Tribunal. He did so with the assistance of a support person, but without representation (CB 88-90).
On 8 November 2017, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa (CB 95-99).
On 13 December 2017, the applicant sought judicial review of the Tribunal’s decision in this Court (CB 100-105). The application was supported by an affidavit which annexed a copy of the Tribunal’s decision (CB 106-109).
In his application for judicial review, the applicant has requested an order that the time for making the application be extended pursuant to s 477 of the Migration Act 1958 (Cth) (the “Act”).
The Minister, in written submissions filed on 1 April 2022, does not oppose the applicant being granted an extension of time (noting that, “by acceding to the extension, the Minister does not concede that the applicant’s grounds of review establish jurisdictional error”) and submits that the application should thus be taken to be brought pursuant to s 476(1) of the Act.
The timeframe in which the application for review ought to have been filed is within 35 days of the date of the migration decision: s 477(1) of the Act. The Tribunal’s decision was made on 8 November 2017 and the application for judicial review was filed by the applicant on 13 December 2017. By the Court’s calculations, the application was filed on the last day upon which an application for review could be made and was thus made within time.
The Court discussed this with the Minister’s representative at the hearing of this matter. The Minister now agrees that the application for judicial review was filed on the 35th day and that no extension of time is required in this matter.
The application is thus brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is five pages long and spans 30 paragraphs (with the final two paragraphs being left blank).
The Tribunal began by detailing the type of decision under review (at [1]) and noted that the relevant issue before it was whether the applicant’s visa should be cancelled pursuant to s 116(1)(b) of the Act (at [2]).
The Tribunal confirmed that the applicant had appeared before it at a hearing on 7 November 2017 (at [3]).
The Tribunal then explained the circumstances under which the Minister may cancel a visa pursuant to s 116 of the Act (at [6]-[7]).
The Tribunal noted that, in this matter, the delegate had determined that the applicant had failed to satisfy cll 573.223(1A) or 573.231 in Schedule 2 of the Regulations (at [8]).
The Tribunal then explained as follows:
9.For a person in the applicant’s circumstances these criteria can be summarised as Smith J did at paragraph 31 of his reasons in Singh v Minister for Immigration & Anor [2015] FCCA 2998 as follows:
“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:
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
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.”
10.The courses currently specified by the Minister are contained in instrument IMMI14/015 made pursuant to regulation 1.40A. The courses specified for a subclass 573 visa are:
•Diploma (Higher Education);
•Advanced Diploma (Higher Education);
•Bachelor Degree;
•Graduate Certificate (Higher Education);
•Graduate Diploma (Higher Education);
•Associate Degree; and
•Masters by Coursework
The Tribunal outlined that education providers apply for classification of registered courses as either Higher Education (“HE”), Vocational Education and Training (“VET”) courses or English Language Intensive Courses for Overseas Students courses under the Education Services for Overseas Students Act 2000 (at [11]) and noted that details of registered courses are found in the Commonwealth Register of Institutions and Courses for Overseas Students (at [12]).
The Tribunal continued:
13.The Minister’s delegate determined that the applicant had not met the criteria in paragraphs 573.223(1A) or the alternative criteria in paragraph 573.231 of Schedule 2 to the regulations since 20 April 2015 when his enrolment in a Bachelor of Business was cancelled. This is consistent with the records held by the Department and was conceded by the applicant. The applicant re-enrolled in a Bachelor of Business degree on 9 December 2016 after he had received the Notice of Intention to Consider Cancellation (NOICC) from the Department. A copy of the delegate’s decision was provided to the Tribunal by the applicant.
14.On the basis of the above information, the Tribunal finds that the applicant ceased to meet paragraph 573.223(1A) when his enrolment in the Bachelor of Business was cancelled on 20 April 2015 and he did not meet the alternative criteria in paragraph 573.231 as he was not enrolled in a course specified by the Minister in IMMI14/015.
The Tribunal was satisfied that the ground for cancellation (pursuant to s 116(1)(b) of the Act) existed and, noting that the ground for cancelation did not require mandatory cancellation under the Act, proceeded to “consider whether the power to cancel the visa should be exercised” (at [15]).
In this regard, the Tribunal explained that:
16.There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
The Tribunal then outlined the applicant’s evidence at the Tribunal hearing as follows:
(a)the applicant was enrolled in a Certificate IV in Business (to be followed by a Diploma in Business and a Bachelor of Business) when he arrived in Australia and the applicant claims he was unable to complete the Certificate IV because he had not paid his tuition fees in full. His enrolment in Diploma and Bachelor degree courses were consequently cancelled on 20 April 2015 and the applicant was in breach of condition 8516 in Schedule 8 of the Regulations from that date (at [17]);
(b)he was advised by a migration agent that he didn’t need to maintain enrolment in a HE course but simply needed to be enrolled in a HE course before the expiration of his visa (at [18]); and
(c)the applicant enrolled in a Diploma and Advanced Diploma in Business and a Diploma and Advanced Diploma in Marketing with an alternate education provider but withdrew from the courses as they were “too difficult”. He instead enrolled in a Certificate IV in Commercial Cookery (which he completed in mid-2016) and commenced a Diploma in Hospitality in August 2016. He was sent the NOICC by the Department on 25 November 2016, enrolled in a Bachelor of Business course on 9 December 2016 and his visa was cancelled on 13 December 2016 (at [19]).
The Tribunal then raised numerous “concerns” with the applicant, as follows:
20.The Tribunal raised its concern that, as the applicant had failed to remain enrolled in a HE course and had instead decided to fill the time he had on his visa by undertaking VET courses, the applicant may not have the will or desire to successfully undertake HE course in Australia. The applicant said that he always had the intention of enrolling in a bachelor’s degree course after he had completed the hospitality course and that he had been misled by the unnamed migration agent into believing that he was not required to maintain enrolment in a HE course.
21.The Tribunal raised its concern that because the applicant had been unable to complete a Certificate IV in Business and then withdrew from a Diploma of Business after less than two weeks because he found it too difficult, the applicant may not have the ability to successfully undertake a HE course in Australia. The applicant said that he had not really applied himself in the past and that he was now confident that he would be able to successfully complete a degree course.
The Tribunal noted that, in response, the applicant “indicated that he would suffer hardship if his visa was cancelled” because he would be unable to apply for a visa for three years. The Tribunal noted that “it did not appear that PIC 4013 applied to visas cancelled under section 116 for a breach of condition 8516” (at [22]).
The Tribunal found the applicant’s breach of condition 8516 in Schedule 8 of the Regulations was serious and weighed in favour of cancellation of the visa (at [23]). The Tribunal also found as follows:
24.The Tribunal finds that the applicant does not have the desire or the ability to successfully undertake a HE course in Australia. His lack of desire to undertake a degree course is evidenced by his failure to remain enrolment in a HE course and that he instead decided to fill the time he had on his visa by undertaking VET courses. The applicant’s inability to successfully undertake a HE course is evidenced by his inability to complete a Certificate IV in Business and then his withdrawal from a Diploma of Business after less than two weeks because he found it too difficult.
The Tribunal continued:
25.The Tribunal is willing to accept that the applicant and his family members may experience minor disappointment that the applicant’s visa was cancelled before he was able to complete a course in Australia. However, even if his visa had not been cancelled it would have expired in August 2017 and his student visa will not be restored whether or not the cancellation decision is set aside. The only apparent benefit to the cancellation decision being set aside is that the applicant would be able to apply for another visa onshore, whereas if the decision is affirmed he will have to apply offshore. It does not appear that the applicant would be subject to any bar on applying for another visa offshore. The Tribunal notes that, even if the applicant was prevented by PIC 4013 from reapplying for another visa for three years, the Tribunal would have still affirmed the decision.
The Tribunal ultimately determined as follows:
26.The Tribunal finds that the applicant’s serious breach of conditions 8516 and the applicant’s lack of desire and ability to successfully undertake HE courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.
Considering the applicant’s circumstances as a whole, the Tribunal concluded that the visa should be cancelled (at [27]) and affirmed the delegate’s decision (at [28]).
PROCEEDING IN THIS COURT
The application for judicial review filed by the applicant on 13 December 2017 contains eight “grounds of review”, as follows (without alteration):
1.That a breach of natural justice occurred in connection with the making of the decision by the department
2.That the applicant was denied procedural fairness in connection with the making of the decision
3.That procedures that were required by law to be observed in connection with the making of the decision were not observed
4.That the making of the decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made
5.The Tribunal in its refusal dated 09/11/2017 under No 18 and No 20 has not accepted the applicant argument that a migration agent had not provided him with accurate information that I had to maintain a degree course enrolment
6.A migration agent is registered with OMARA and is qualified and registered to give accurate information where I was misled
7.I always had the dream on completing the diploma and then going on to study the degree program and hence changed the courses business and marketing.
8.Getting into cookery and hospitality was something derived from my interest and practical courses were more helpful to my career advancement and that was being successfully completed until the department cancelled my visa
In support of his application, the applicant filed an affidavit which was deposed by him on 12 December 2017. That affidavit annexed a copy of the Tribunal’s decision and restated the grounds of review (as outlined above).
The applicant was given an opportunity to file any amended application, affidavit evidence and written submissions. No further materials were provided by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 13 December 2017, a Court Book numbering 109 pages (marked as Exhibit 1) and written submissions filed by the Minister on 1 April 2022.
The applicant appeared before this Court without legal representation. An interpreter in the Punjabi language had been retained at the applicant’s request but the applicant ultimately chose to speak to the Court in English. No issues arose in this regard. The applicant spoke with conviction and clarity. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 (“Singh”) at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that he did not have anyone to assist him at the Tribunal hearing and was very nervous when he appeared before the Tribunal. The applicant also stated that he was “shocked” by his visa cancellation and that he was not able to explain himself at the hearing. The applicant asked for “another chance” to go back to the Tribunal so that he might “explain himself properly”.
Whilst the Court is sympathetic to all self-represented litigants in the applicant’s situation (who often find themselves having to navigate the complex legislative requirements for the visas they seek), the concerns raised above do not identify errors of the sort that this Court can address.
However, noting that the applicant prepared his application for judicial review without legal assistance, the Court will, in its duty to him as a self-represented litigant, read the applicant’s grounds of review as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
CONSIDERATION
Grounds 1, 2 & 3
For ease of reference, grounds 1, 2 and 3 provide:
1.That a breach of natural justice occurred in connection with the making of the decision by the department
2.That the applicant was denied procedural fairness in connection with the making of the decision
3.That procedures that were required by law to be observed in connection with the making of the decision were not observed
To the extent that the applicant suggests that there was an error in relation to the delegate’s decision, this Court has no jurisdiction to review that decision: the Act, ss 476(2) and (4). Further, the Tribunal conducts a de novo review which would in effect “cure” any error in the delegate’s decision: Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
Insofar as the applicant raises concerns regarding whether the Tribunal adhered to its procedural fairness obligations, the Court notes as follows:
(a)the applicant was given an opportunity to provide information and evidence explaining why his visa should not be cancelled;
(b)the applicant provided an explanation to the Department (through his representative) (CB 22-45) and to the Tribunal at the hearing. That information was considered by the Tribunal;
(c)the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments: s 360 of the Act. The applicant appeared before the Tribunal (with a support person) (CB 88-90);
(d)there is nothing on the face of the Tribunal’s decision to suggest that the Tribunal displayed any bias or prejudgment (as per the principles in SZRUI and Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]);
(e)the applicant was given an opportunity to provide further evidence in relation to the visa cancellation but did not do so; and
(f)the findings made by the Tribunal were open to it on the evidence before it (which, whilst limited, was provided by the applicant and his former representative) and those findings cannot be seen to be illogical, irrational or unreasonable (as per the principles in SZMDS, Li and Singh).
Any allegation of “unfairness” in relation to the Tribunal’s conduct cannot be made out.
Grounds 1, 2 and 3 are, accordingly, dismissed.
Ground 4
Ground 4 provides as follows:
4.That the making of the decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made
Without particulars, this ground is not entirely clear, and it is difficult to assess what the applicant is referencing here. Noting, however, that the applicant is unrepresented, the Court has read this ground of review as broadly as possible to ensure that, to the extent that legal error of any sort is identified, it can be scrutinised: MZAIB.
A visa may be cancelled by the Minister in certain circumstances. Here, the Minister (and, subsequently, the Tribunal), had the power to cancel the applicant’s visa pursuant to s 116(1)(b) of the Act, which states as follows (emphasis added):
116 Power to cancel
(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; or
(aa)the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or
(b) its holder has not complied with a condition of the visa; or
…
The applicant in this matter did not comply with condition 8516 of his visa, which required that he must continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa.
Here, the Tribunal found that the applicant had ceased to meet the criteria set out in cll 573.223(1A) or 573.231 of Schedule 2 of the Regulations. At the time of the grant of the applicant’s visa approval, the relevant clauses provided as follows:
573.223
…
(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.
…
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.
The relevant instrument made under reg 1.40A of the Regulations for the purpose of cl 573.231(a)(i) in Schedule 2 of the Regulations was IMMI14/015. That instrument outlined the courses specified in relation to a Subclass 573 visa as follows:
Diploma (Higher Education)
Advanced Diploma (Higher Education)
Bachelor Degree
Graduate Certificate (Higher Education)
Graduate Diploma (Higher Education)
Associate Degree
Masters by Coursework
Here, the Tribunal correctly found that the applicant ceased to meet the criteria set out in cl 573.223(1A) in Schedule 2 of the Regulations on 20 April 2015 (when his enrolment in his Bachelor of Business course was cancelled). The Tribunal noted that the Departmental records supported this finding and the applicant himself had conceded this point (at [13]).
In the circumstances, where the applicant did not meet cll 573.223(1A) or 573.231 in Schedule 2 of the Regulations on the basis of the cancellation of his course enrolment, he was not enrolled in a course specified by the Minister in IMMI14/015 as was required.
On that basis, the Minister (and, subsequently, the Tribunal), had the power to cancel the applicant’s visa pursuant to s 116(1)(b) of the Act.
The Tribunal’s exercise of its power in this regard was valid and no error arises in relation to ground 4.
Grounds 5 & 6
Grounds 5 and 6 provide as follows:
5.The Tribunal in its refusal dated 09/11/2017 under No 18 and No 20 has not accepted the applicant argument that a migration agent had not provided him with accurate information that I had to maintain a degree course enrolment
6.A migration agent is registered with OMARA and is qualified and registered to give accurate information where I was misled
The applicant here takes issue with the Tribunal’s treatment of his evidence in relation to his migration agent.
The Tribunal, in conducting its review, is required to give “proper, genuine and realistic consideration” to the claims and evidence before it: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29] and [32]-[33].
It is clear from the Tribunal’s written reasons that the Tribunal did consider the applicant’s (limited) evidence about his migration agent, as follows:
18.The applicant said that he approached a migration agent, whose name he could not remember, who advised him that he did not need to maintain enrolment in a HE course so long as he enrolled in a HE course before his visa expired.
…
20.The Tribunal raised its concern that, as the applicant had failed to remain enrolled in a HE course and had instead decided to fill the time he had on his visa by undertaking VET courses, the applicant may not have the will or desire to successfully undertake HE course in Australia. The applicant said that he always had the intention of enrolling in a bachelor’s degree course after he had completed the hospitality course and that he had been misled by the unnamed migration agent into believing that he was not required to maintain enrolment in a HE course.
The Tribunal went on to consider the other evidence before it, including the applicant’s study history and his evidence regarding the courses he had undertaken. The Tribunal then made findings based on that information as follows:
24.The Tribunal finds that the applicant does not have the desire or the ability to successfully undertake a HE course in Australia. His lack of desire to undertake a degree course is evidenced by his failure to remain enrolment in a HE course and that he instead decided to fill the time he had on his visa by undertaking VET courses. The applicant’s inability to successfully undertake a HE course is evidenced by his inability to complete a Certificate IV in Business and then his withdrawal from a Diploma of Business after less than two weeks because he found it too difficult.
There is nothing before the Court to suggest that the Tribunal did not assess all of the evidence before it.
Further, it is well accepted that the Tribunal is able to determine whether to accept or reject evidence and the weight to place on that evidence: Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
No error arises in the Tribunal’s consideration of the applicant’s evidence about his migration agent.
To the extent that the applicant raised concerns in his oral submissions before this Court about the “conduct” of his migration agent, while the Court is sympathetic to the concerns of all applicants who express frustration with what they perceive to be poor migration advice, the concerns raised here do not assist the applicant in relation to the issue of jurisdictional error. There is nothing, for example, that leads the Court to conclude that the agent’s conduct amounts to a “fraud on the Tribunal”: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
In so far as the applicant has concerns about the advice he was given by his agent, the Court refers him to the services of the Office of Migration Agents Registration Authority. Unlike this Court, that entity is legislatively empowered to investigate and address concerns about the provision of migration services in Australia.
Grounds 5 and 6 are, accordingly, dismissed.
Grounds 7 & 8
Grounds 7 and 8 provide as follows:
7.I always had the dream on completing the diploma and then going on to study the degree program and hence changed the courses business and marketing.
8.Getting into cookery and hospitality was something derived from my interest and practical courses were more helpful to my career advancement and that was being successfully completed until the department cancelled my visa
Grounds 7 and 8 are merely aspirational statements regarding the applicant’s future and a factual statement about why he changed his course enrolments. They do not allege jurisdictional error or identify any issues of the sort that this Court can address.
Grounds 7 and 8 are, accordingly, dismissed.
CONCLUSION
The application for judicial review filed by the applicant on 13 December 2017 has failed to identify any jurisdictional error on the part of the Tribunal. This Court has also failed to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 April 2022
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