Syed v Minister for Immigration

[2017] FCCA 797

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYED v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 797

Catchwords:
MIGRATION – Student 573 visa – show cause – applicant ceasing enrolment in relevant course and failing to adhere to visa conditions – no error by Tribunal.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.116

Migration Regulations 1994 (Cth), condition 8516 of sch.2, cl.573.221 of sch.2

Cases cited:

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68
Minister for Immigration and Citizenship v Li and Anor (2013) 249 CLR 332
Spencer v Commonwealth of Australia (2010) 241 CLR 118
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: ZAKI HASAN RAZVI SYED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1188 of 2015

Judgment of: Judge Wilson

Hearing date: 6 April 2017

Date of Last Submission: 6 April 2017

Delivered at: Melbourne

Delivered on: 6 April 2017

REPRESENTATION

Applicant in person

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application filed 27 May 2015 is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1188 of 2015

ZAKI HASAN RAZVI SYED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

Introduction

1. On 30 September 2015 Registrar Allaway ordered that this proceeding be heard under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. On a show cause hearing, the Court is empowered to dismiss the whole proceeding if satisfied that the applicant has not raised an arguable case. Such a conclusion is not to be lightly reached, as the High Court of Australia said in Spencer v Commonwealth of Australia[1] and also as the Full Court of the Federal Court of Australia held in AMF15 v Minister for Immigration and Border Protection.[2]

   [1] (2010) 241 CLR 118.

   [2] [2016] FCAFC 68.

3. The Registrar ordered the applicant to file written submissions 14 days prior to today. The applicant failed to do so. The Minister filed written submissions in accordance with the Registrar’s order. The question before me is whether the applicant raised an arguable case in this application for judicial review.

Synopsis

1. In my view, for the reasons that follow the applicant did not raise an arguable case that the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), fell into jurisdiction error.

A short factual narration

1. On 6 May 2015 the Tribunal affirmed a decision of the

   
   

   Minister’s delegate made on 21 January 2015,[3] pursuant to which the Minister’s delegate cancelled the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (“the visa”).[4] Some background history must be stated to put the delegate’s decision and the Tribunal’s affirmation of the delegate’s decision in context.

   [3] Court book filed 21 January 2016 at pp.113-146.

   [4] Court book filed 21 January 2016 at pp.48-53.

2. The visa applicant arrived in Australia on 7 March 2013 as the holder of the visa, the expiry date of which was 15 March 2015, a little over two years later. On 20 January 2015, the delegate cancelled the visa on the basis that the applicant had not complied with condition 8516 of sch.8 of the Migration Regulations 1994 (Cth) (“the regulations”).

   
   

   As the Tribunal recorded in paragraph 12 of its reasons for decision, condition 8516 (attached to the visa in this case) required the applicant, as the holder of the visa, to be a person who would satisfy the primary or secondary criteria for the grant of a visa.

3. As the Tribunal recorded in paragraph 13 of its reasons, the criteria for the grant of the visa required the applicant to satisfy cl.573.231 of sch.2 to the regulations. That clause specified that the applicant was enrolled in, or was the offeree of enrolment in a principle course of a kind specified by the Minister for that subclass, operative when the visa application was made. In essence, the applicant was required to have been enrolled in, or offered enrolment in a bachelor’s degree or a master’s degree. The Tribunal found that when the delegate made the delegate’s decision on 21 January 2015, the applicant was not enrolled in a bachelor’s degree or a master’s degree, nor was the applicant enrolled in a course of study, being a principle course of study, of the type specified for a subclass 573 visa.

4. Going backwards chronologically, on 31 October 2014 the Minister’s delegate sent the applicant a notice of intention to consider cancellation of the visa.[5] In that notice, the delegate alerted the applicant to the possibility that the applicant had breached condition 8516 that was attached the applicant’s visa. The delegate gave the applicant five working days to respond, later extended by a further five working days.[6]

   [5] Court book filed 21 January 2016 at pp.4-8.

   [6] Court book filed 21 January 2016 at p.17.

5. On 12 November 2014 the applicant supplied a collection of documents to the delegate along with a statement.[7] In essence, in the statement the applicant said that he –

   a)ceased his enrolment in his original course, as he was finding it impossible to complete; 

   b)subsequently enrolled in a Certificate IV course; 

   c)acknowledged that his cessation of his original course and his commencement of the Certificate IV course caused him to cease to comply with a condition of the visa (although he said any such ceasing to comply was “unknowingly” committed)[8]; and

   d)applied in relation to a degree that did comply with the visa criteria once he learned of his non-compliance.

   [7] Court book filed 21 January 2016 at pp.29-31.

   [8] Court book filed 21 January 2016 at p.31.

6. The delegate found that the applicant had not continued to be enrolled in or was subject to a current offer of enrolment in a course of study that was a principle course as required by clause 573.231 of sch.2 of the regulations.

7. On 22 January 2015 the applicant sought a merits review of the delegate’s decision. On 10 March 2015 the Tribunal invited the applicant to attend a hearing before the Tribunal on 6 May 2015.[9]

   
   

   The applicant duly attended the hearing on that day.

   [9] Court book filed 21 January 2016 at pp.89-93.

8. So far as was relevant, the Tribunal condensed the applicant’s evidence as follows –

   a)the applicant was granted the visa to undertake a master’s degree in biotechnology and bioinformation;

   b)the applicant recalled being required to stick to his course;

   c)the applicant passed the first three subjects of his course;

   d)the applicant took the view he should change to a different course;

   e)in May 2013, the applicant’s grandfather died;

   f)thereafter, the applicant became depressed, yet he did not seek medical help for depression;

   g)he did not contact the Department of Immigration and Border Protection upon being told by an agent that he could study a VET course while holding a subclass 573 visa;

   h)in June or July 2013, the applicant cancelled his enrolment in the master’s degree and he enrolled in a Certificate IV in Business, and a Diploma in Management;

   i)he completed courses in commercial cookery and hospitality;

   j)he commenced a Certificate III course in commercial cookery in October 2014 but stopped after he received the notice of intention to consider cancellation of the visa;

   k)the applicant instructed an agent to lodge an application for a 572 visa but subsequently instructed the agent to withdraw the application; and

   l)the applicant enrolled in an MBA.

9. The Tribunal found that when the delegate made the decision under review, the applicant was not enrolled in a bachelor’s degree or a master’s degree, nor was he enrolled in a course of study that was a principle course, as required for the visa. The Tribunal found that sufficient grounds existed for cancelling the visa under s.116(1)(b) of the Migration Act 1958 (Cth) (“the Act”). The Tribunal also found it was not required, on a mandatory basis, to cancel the visa. Accordingly,

   
   

   the Tribunal went on to consider whether the power to cancel the visa should be exercised. The Tribunal found that no basis existed to exercise its discretion in not cancelling the visa.

This application for judicial review

1. On 27 May 2015 the applicant filed an application in this Court and thereby commenced his application for judicial review. He advanced 12 propositions that he put forward as “grounds of application”, although many could hardly be properly so described. The Minister identified three as possibly supporting a contention that they were proper grounds of application, namely grounds 5, 6 and 10. Before turning to whether any of the 12 numbered paragraphs of his application for judicial review gave rise to jurisdictional error, it is necessary to record the tenor and content of each of those 12 paragraphs. For ease of reference, I shall call them “grounds of review”, even though they not, in fact or in law, proper grounds of review.

2. In ground 1, the applicant stated he was a student from India on a subclass 573 visa. That was not a ground of review.

3. In ground 2, the applicant submitted the delegate cancelled his 573 visa under s.116 of the Act. That was also is not a ground of review.

4. Ground 3 merged a submission of law with fact. It was not a ground of review. 

5. Ground 4 recited that the applicant applied to the Tribunal. Likewise, that was not a ground of review. 

6. Ground 5 merged a submission of law with fact, the submission being the applicant’s assertion that he had a “strong reason beyond [his] enrolment in Diploma”, the fact being that he withdrew the 572 visa lodgment and the expression of a subjective state of mind being his intention to enrol. None were proper grounds of review.

7. Ground 6 was a submission about there being no procedural fairness.

   
   

   It may also have been a ground of review, yet its unparticularised starkness was glaring. I address that below.

8. Ground 7 was a submission. It was not a proper ground for review. 

9. Ground 8 was a statement of fact, not a proper ground of review. 

10. Ground 9 was, likewise, a submission that further written submissions would be filed in the future. As it happened, the applicant missed the date for filing his submissions in this Court. 

11. Ground 10 may have amounted to a ground of review, as it spoke of exceptional circumstances relating to enrolment. That is addressed below. 

12. Ground 11 was a submission, not a ground of review. 

13. Ground 12 was a hope. This Court does, in fact, have the jurisdiction mentioned.

14. Let me go to grounds 6 and 10.

15. Ground 6 spoke of procedural fairness, yet it did not identify what the Tribunal failed to do, nor did it identify the way in which the Tribunal did not exhibit procedural fairness. I was unable to discern the precise issue about which the applicant complained under ground 6. Nothing he told me today took the matter any further. The applicant bore the burden of properly articulating his case. Ground 6 did not articulate, in any shape or form, the basis of the applicant’s contention that “there is no procedure (sic) Fairness in the Immigration and Tribunal Member Decision”.[10] Even allowing for language issues, as well as the complexity of migration law, ground 6 gave no insight at all into any aspect of the applicant’s case. Under no circumstances could ground 6 be said to have raised an arguable case.

    [10] Application filed 27 May 2015 at p.3.

16. That left ground 10. In it, the applicant stated as follows:

    I do have exceptional circumstance beyond my control to not enrol the Bachelors or Masters because of there is no university is issuing the E-coe once any applicant is breached the 8516 condition (verbatim).[11]

    [11] Application filed 27 May 2015 at p.4.

17. Precisely what that amounted to is none too easy to say. Insofar as that ground invited an examination in the nature of a merits review of the Tribunal’s decision, that will not found a basis for jurisdictional error. This Court is not permitted to undertake a merits review in an application for judicial review. Even applying a charitable interpretation to ground 10, it made no grammatical sense. I was unable to distil any legal basis that was embedded in the ground.

18. Properly, on behalf of the Minister it was contented that the ground may be a poorly expressed way of saying that the Tribunal incorrectly applied the law to the facts of the case. Accepting that the gravamen of ground 10 lies in that concept, let me turn to the more general subject of whether the Tribunal correctly applied the law to the facts of the case. It seemed me to that the Tribunal correctly applied s.116 of the Act. Specifically, the Tribunal correctly considered the Minister’s discretion to cancel the visa where the visa holder had not complied with a condition. It also seemed to me the Tribunal correctly considered whether grounds existed for the cancellation of the visa. It found that grounds did exist. That was correct. The Tribunal also correctly considered the exercise of its discretion. More specifically the Tribunal addressed –

    a)condition 8516;

    b)the continuing nature of the obligation under s.116 of the Act;

    c)clause 573.223(1A) and its application to an “eligible higher degree student”, as defined; and

    d)clause 573.221, especially the particular course involved.

19. So far as the exercise of the Tribunal’s discretion to cancel the visa was concerned, that discretion is largely free, fettered only by legal reasonableness as was held in the High Court’s decision in Minister for Immigration and Citizenship v Li and Anor.[12] No matters are specified in the Act or the regulations that are required to be considered.
    

    [12] (2013) 249 CLR 332 at [66].

    [13] (2006) 228 CLR 152.

    It seemed to me no legal unreasonableness was exhibited in the Tribunal’s exercise of its discretion to cancel the visa. Lest the applicant’s suggestion of procedural fairness could be said to have merit, I am of the view there was nothing in the point of ground 10. The obligations in s.360 of the Act were discharged. The applicant had been given advance notice of issues arising in relation to the decision under review as the High Court held was the important consideration in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[13]

Conclusion

1. The question for me in this case was whether an arguable case was disclosed. I take the view none was. In my judgment the Tribunal properly addressed the matters that arose from the delegate’s decision. The delegate undertook a proper merits review. I was unable to detect jurisdictional error in the Tribunal’s decision.

2. In debate today, the applicant admitted he had not complied with the visa conditions. In those circumstances, the application for judicial review is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Associate: 

Date:  21 April 2017