Suthar v Minister for Immigration

[2016] FCCA 2844

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUTHAR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2844

Catchwords:
MIGRATION – Student visa – cancellation of visa under section 116 – relevance of likelihood of obtaining future visa where cancelled visa would have expired by effluxion of time prior to review decision.

Legislation:

Migration Act 1958 (Cth), ss.116, 499

Migration Regulations 1994 (Cth), cl. 573.223

Cases cited:

Singh v Minister for Immigration and Border Protection [2016] FCA 74

First Applicant: RUCHI TIKENDRA SUTHAR

Second Applicant: TIKENDRA SUKHDEVBHAI SUTHAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2805 of 2015

Judgment of: Judge Riethmuller

Hearing date: 29 August 2016

Date of Last Submission: 29 August 2016

Delivered at: Melbourne

Delivered on: 7 November 2016

REPRESENTATION

Counsel for the Applicants: Ms M. Szydzik

Solicitors for the Applicants: Clothier Anderson & Associates

Counsel for the First Respondent: Ms C. Symons

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2805 of 2015

RUCHI TIKENDRA SUTHAR

Applicant

TIKENDRA SUKHDEVBHAI SUTHAR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 30 November 2015. In that decision, the Tribunal declined to alter a decision of the delegate to cancel her student visa.

Background

1. In this matter, the applicant came to Australia on a student visa that was issued on 10 January 2012. She arrived in February 2012 to take a course at the Kangan Batman Institute in fashion design and technology. This visa (a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa) was valid until 15 March 2015.

2. The applicant attended her course until it ended on 24 June 2014, but failed to submit satisfactory work in order to complete all of the units in the course. The applicant told the Tribunal that she had to resubmit work in relation to various units, although it seems that she never successfully completed that particular course. The applicant was therefore without an enrolment from 24 June 2014 in breach of her visa conditions (condition 8202). As a result, the department issued a notice of intention to consider cancelling her visa on 12 November 2014 on the basis that she had not been enrolled in a course since June 2014.

3. The applicant appeared before the delegate, who determined that it was appropriate to cancel the visa, and then lodged an application to the Tribunal on 29 January 2015. The Tribunal acknowledged the application and invited the applicant to provide further material on

   
   

   2 February 2015, but received no response from her or her registered migration agent. On 28 October 2015, the applicant was invited to attend a hearing on 26 November 2015 to give evidence and present arguments.

4. On 25 November 2015, the day before the hearing, the Tribunal received a copy of a booking for the applicant to sit an English language test on 12 December 2015, and an offer from an institution called the Cambridge International College to undertake a Bachelor of Business Management degree at that institution. The documents appear in the Court Book showing that the total course costs were $61,915, although some $15,165 of that was a fee for overseas student health care cover for the applicant on a family basis (her husband is in Australia with her).

5. The Tribunal member turned to consider the matters that appeared relevant in this case under the general discretion available under section 116 of the Migration Act 1958. Section 116 relevantly provides:

   116(1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (b)  its holder has not complied with a condition of the visa;…

6. In this case, the applicant was again enrolled in a course, although a very different course to that which she initially sought to undertake. The applicant’s original visa was only valid until 15 March 2015. I am told that provided that she succeeds in overturning the cancellation, she can rely on her offer of a place in November 2015 in order to bring an onshore visa application for a student visa. Whereas, in circumstances where a student visa has been cancelled, the applicant will need to apply offshore and there may be a period where she is unable to apply for another student visa (such as a three year ban). Whether these matters are correct were not matters that were argued before me, nor was I taken to the relevant legislation. However, I accept that a determination of this question is not, in fact, academic or hypothetical as it may have practical consequences for the applicant.

7. The Tribunal decision focused heavily upon whether the applicant was a genuine student. The Tribunal member found that the applicant was not a genuine student having regard to the history of her studies, the date of her enrolment and the courses that she has undertaken, as well as the differences in the courses between her initial and intended course of study and her new intended course of study.

8. The grounds of the application for a review are set out in great detail in the amended application.  The first ground is in the following terms:

   1. The Tribunal asked itself a wrong question, applied a wrong test or failed to exercise jurisdiction in determining whether the applicant's visa should be cancelled under s 116(1)(b) of the Act.

   Particulars

   a. The applicant was. as the holder of a Student visa, required to be enrolled in a registered course: cl 573.611(a) of Schedule 2 and cl 8202(2)(b) of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations).

   b. A delegate of the Minister for Immigration and Border Protection (the Delegate) cancelled the applicant's visa on the basis that she had 'breached condition 8202(2) of her student visa by remaining without enrolment in a registered course for several months': Tribunal's reasons, para [2].

   c. The Tribunal had a discretion to affirm or set aside the cancellation of the applicant's Student visa if she was  found  not to have complied with a condition of that visa: s 116(1)(b) of the Act.

   d. The Tribunal found at para [17] that the applicant had breached condition 8202(2) of her visa, and then considered the discretion to cancel the visa in the following terms:

   [24] I indicated to the applicant during the discussion  of evidence and exercise of discretion that in mv view a relevant consideration in a cancellation of a student matter relate to the core purpose of the student visa scheme and criteria requiring that the applicant is a genuine student and intends genuinely to remain in Australia temporarily...

   [25] However. in my view. while she held the visa the applicant remained without an enrolment in a registered course for several months. not only resulted in a breach of a condition of the visa but also put  into question whether at that time she remained a genuine applicant to stay in Australia as a student.

   e. In purporting to exercise the discretion under s 116(1) of the Act, the Tribunal treated as a relevant consideration the question whether the applicant was a genuine student and intends genuinely to remain in Australia temporarily' within the meaning of cl 573.223(1)(a) of Schedule 2 to the Regulations.

   f. The Tribunal was therefore required to have regard to each of the considerations in cll 573.223(1)(a)(i)-(iv) of Schedule 2 to the Regulations and Ministerial Direction 53 - Assessing the genuine temporary entrant criterion for Student visa applications made under s 499 of the Act (the Direction), but failed to consider:

   i. the  applicant's circumstances (cl 573.223(l)(a)(i) of Schedule 2 and paras [9]-[11] of Direction 53); or

   ii. the applicant's immigration history (cl 573.223(l )(a)(ii) of Schedule 2).

   g. If the Tribunal had had asked itself the correct question, it would have been open to find that the applicant was a genuine student and intended genuinely to remain in Australia temporarily, and consequently to decide that the discretion to cancel the visa should not be exercised.

9. In substance, the argument in Ground 1 was that the Tribunal member had imported part of the test for granting a student visa, that of “genuine applicant for entry and stay as a student” together with “intends genuinely to stay in Australia temporarily”, into the general considerations under section 116. This is said to be evidenced by the use of these phrases at paragraph [24] and [31] of the decision.

10. The applicant argues, that by considering this test (which would be part of the test as to whether or not to grant a visa), the Tribunal has erred as it was not considering the grant of a subsequent visa but the cancellation of one under section 116. Secondly, if consideration of whether or not a future visa would be granted with respect to the Bachelor of Business course was undertaken, it ought to have been done so in accordance with the requirements of clause 573.223 of the Migration Regulations 1994.

11. In a case such as this, where in substance, the only real purpose of avoiding cancellation of the student visa is to enable a simpler pathway to applying for a further student visa rather than having to apply offshore, then it must be a relevant consideration under section 116 as to whether or not a future student visa is likely to be obtained under the relevant regulations. More generally in cases where the visa breach is indefensible but the future study plan clear, the discretion in section 116 must allow the possibility of not cancelling the visa. In such a case it may only be the future study plan that weighs against cancellation. To this extent, it does not appear to me that the Tribunal member has erred in considering the circumstances relating to whether or not the applicant is a genuine applicant for entry into Australia.

12. If the decision-maker was having regard to the likelihood of the applicant satisfying the test for the grant of a subsequent visa, then the operation of sections 65 and 499 would result in Direction 53 (made by Minister Bowen in 2011), applying. This Direction is a mandatory consideration for the grant of a student visa. The Tribunal member did not refer to this direction, nor was it discussed in the hearing. The Direction contains a long and detailed list of considerations relevant to determining whether or not the applicant is a genuine, temporary entrant to Australia for the purposes of a student visa application.

13. Direction 53 is in the most curious terms. It commences at clause 1 by stating that:

    Decision makers should not use the factors specified in this Direction as a checklist.  Rather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

14. However, later sections are in a form of words that appears mandatory; creating a list that has the appearance of a checklist. For example, clause 6 states that:

    Decision makers must have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    And clause 9, which provides that:

    In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:

15. The matters required to be considered appear to total around 35 separate considerations.

16. The operation of this direction has been considered by Reeves J in Singh v Minister for Immigration and Border Protection [2016] FCA 74 in the context of an application for a student visa, not a cancellation of a student visa, where his Honour said:

    28. Direction 53 is a direction issued by the Minister under s 499(1) of the Migration Act. The Tribunal’s decision records that, at the hearing, among other things, it outlined the relevance of that Direction to Mr Singh. Then, in the “Consideration of claims and evidence” section of its decision, the Tribunal set out the terms of Direction No 53 and observed (at [27] and [28]) that “the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole ...”. At two points thereafter in its decision, the Tribunal stated that it had had regard to the factors specified in that Direction (at [29] and [39]). Whether or not the Tribunal specifically mentioned every factor in Direction 53 in its decision, I consider it is clear that it took account of the whole of the import of that Direction in reaching its decision.

17. In this case, counsel referred to a number of matters in Direction 53 that were not specifically addressed in the reasons given by the Tribunal member, however none of them appeared to be relevant upon the evidence that was placed before the Tribunal. It was argued that they nonetheless required specific identification and reference in the decision. 

18. It appears to me that the decision-maker is not required to make reference to statutory section numbers, regulation numbers or direction numbers when determining a matter if it is apparent from the terms of the decision that they have considered the relevant facts and circumstances in exercising a discretion. It is in this sense that the instrument is not a checklist. In this case, all of the relevant facts and circumstances that bore upon the issues raised by Direction 53 were considered by the Tribunal member. I would not, in these circumstances, be prepared to conclude that the Tribunal had not had regard to the proper law in this respect.

19. I therefore dismiss this ground of review.

Ground 2

1. Ground 2 is in the following terms:

   2. The Tribunal acted beyond jurisdiction in purporting  to consider whether  the applicant  would satisfy the criteria for the grant of a student visa at the time of its decision.

   Particulars

   a. The applicant refers to and repeats particulars (a) to (d) in Ground 1 above.

   b. In purporting to exercise the discretion under s 116(1) of the Act, the Tribunal treated the applicant's application as 'in effect' an application for a new student visa.

   c. The Tribunal had no power to treat the applicant's application in this way and, by doing so, the Tribunal acted beyond power.

2. This ground again argues that the applicant should have had regard to the considerations under section 116 based upon criteria other than whether or not she may be likely to have received a visa on a future application. Given that this was the only purpose of continuing to pursue the reinstatement of her existing visa, it seems to me to be relevant for the Tribunal member to consider this under section 116(1).

Ground 3

1. Ground 3 states:

   3. The Tribunal denied the applicant procedural fairness by failing to give her a meaningful opportunity to present  evidence and make argument on a critical issue.

   Particulars

   a. The Tribunal regarded the question of whether the applicant was a genuine student and intended genuinely to remain in Australia temporarily as a critical issue in exercising its discretion to cancel the visa.

   b. The Tribunal did not advise the applicant that it wished to be addressed on this issue prior to the hearing or otherwise give her an opportunity to prepare submissions and obtain evidence in relation to whether or not she was genuine student and intended genuinely to remain in Australia temporarily.

   c. At the hearing, the Tribunal did not explain to the applicant or her representatives:

   i. That the concept of a genuine student who intended genuinely to remain in Australia temporarily had a particular legal meaning; or

   ii. That the concept of genuine student who intended genuinely to remain in Australia temporarily requires consideration of a range of matters, as set out in the Regulations and the Direction.

   d. The Tribunal did not give the applicant any opportunity to  provide it with further information relevant to the issue of whether she was a genuine  student and intends genuinely to remain in Australia temporarily,

   e. It cannot be said that the same result would have occurred if the applicant was given a meaningful opportunity to address the Tribunal on the question of whether she was genuine student and intended genuinely to remain in Australia temporarily.

2. The third ground is that the Tribunal member did not afford the applicant procedural fairness in that they did not advise the applicant they wished to be addressed on the issue of the question of, whether or not a future visa would be granted in the circumstances of this particular case with respect to the studies as a Bachelor of Business. It seems to me that the transcript shows that the Tribunal member clearly raised these practical matters and expressed them to the applicant and her migration agent.

3. For example, in the transcript, the following exchange took place (at p.18):

   I’m still not quite seeing it as clearly as what you’re saying because as I said, your visa was cancelled, has expired naturally some months ago so, in effect, you’re asking to have your visa cancellation set aside in order to apply for another visa now – a student visa while you’re in Australia. Right. The effect of that (indistinct) because if your visa is reinstated it’s already naturally expired. Now, I don’t know if Mr Ishra knows about this more than I do, but I understand the Department’s practice is if I were to set your cancellation aside in your circumstances where your visa is already expires, there’s no visa to reinstate, I understand the Department’s practice – and please tell me if I’m right or wrong, Mr Ishra – their practice is to allow you to lodge an application onshore and give you a period of time like in 28 days or thereabouts. Is that right?

   MR ISHRA: Yes

   MEMBER: So that you can lodge a fresh application. So we know that’s the likely effect of my decision to set it aside. So what I’m saying to you is you’re in effect applying for another student visa which is why in order to set aside your cancellation on the reasons that you were cancelled, one of the factors that I’m going to take into consideration when thinking about the discretion is whether you are now really can be taken to be a genuine student and I’m getting the impression that you’re undertaking another course which will see you here for another three years basically, 2016, 2017 and most of 2018. You’ve been waiting for the review the whole academic year.

   So in all, that’s four years longer than you planned to spend in Australian to get your qualifications in the fashion industry. Four years longer. And you’re saying – you’re not giving me a clear or satisfactory answer about the Bachelor of Business course and adding all this time. So that’s why the questions, I don’t think unreasonably arise in my mind, whether you’re a genuine applicant as a student and whether you genuinely intend to stay here temporarily or, alternatively, whether I reach the conclusion that I think you’re using the student visa as a means to maintain residence – ongoing residence in Australia. You’re shaking your head and you’re saying no.

4. The Tribunal member was not asked for an adjournment to enable the applicant to address these matters in more detail or to provide more information, despite her being represented by an agent.

5. In any event, it seems apparent that given the practical circumstances of this case, any reasonable person would have turned their mind to the question of whether or not the circumstances were such as to be likely to lead to the grant of a further student visa, as this was the only practical purpose of the review.

6. In the circumstances, I therefore find that the applicant is not able to succeed on this ground.

Conclusion

1. As the applicant has not established a ground for judicial review, the application must be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 7 November 2016