XUE v Minister for Immigration

[2015] FCCA 1476

FEDERAL CIRCUIT COURT OF AUSTRALIA

XUE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1476

Catchwords:
MIGRATION – Migration Review Tribunal – Subclass 573 Higher Education Sector – whether the Tribunal failed to bring an independent and impartial mind to the determination of the matter – no jurisdictional error.

Legislation:  

Migration Act 1958, s.476

Applicant: YAO XUE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 868 of 2015

Judgment of: Judge Street

Hearing date: 29 May 2015

Date of Last Submission: 29 May 2015

Delivered at: Sydney

Delivered on: 29 May 2015

REPRESENTATION

The applicant in person.

Solicitors for the Respondents: Ms N. Senanayake
DLA Piper

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $2800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 868 of 2015

YAO XUE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ, within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal affirming a decision of the delegate to cancel the applicant’s Subclass 573 Higher Education Sector.

2. The applicant was issued with a notice of intention to consider cancellation dated 17 October 2014, because the delegate considered the applicant did not comply with condition 8516 of his visa, that he ceased to be enrolled in a higher education sector course.  On 12 January 2015 the delegate decided to cancel the visa held by the applicant under s.196(1)(b) on the basis that the applicant breached condition 8516 of his visa.  The applicant lodged an application for review on 12 January 2015 and appeared before the Tribunal on 2 March 2015 to give evidence and present arguments, and was assisted by an interpreter and represented by a registered migration agent.

3. The Tribunal identified the relevant law and noted that the applicant had provided a copy of the delegates decision which indicated that the applicant was granted a visa in subclass 573 higher education on the basis of his enrolment in a higher education course and that the delegate found the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course that is a course of study that was the principle course required by clause 873.231.

4. The Tribunal made the following relevant findings: 

   10. The Tribunal finds that courses specified for Subclass 573 visas are, relevantly, higher education sector courses. The Tribunal finds that the applicant ceased to be a person who satisfied the primary criteria because he ceased to be enrolled in, or to be the subject of an offer of enrolment in, an eligible course and he was not an eligible higher degree student.

   11. The Tribunal accepts that the applicant provided to the Tribunal an offer of enrolment at Holmes Institute for a Bachelor of Business, which was issued in February 2015. However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in a higher education course, despite the re-enrolment.

   12. Condition 8516 requires that the visa holder must ‘continue to be a person who would satisfy the primary or secondary criteria … for the grant of the visa’. The reference to ‘the visa’ in this context is to the visa which was granted and to which the condition attaches. If the applicant was granted a Subclass 573 visa, the grant of the visa has been done pursuant to s.65 on the basis of the Minister’s satisfaction that the visa applicant satisfies the criteria for grant of a Subclass 573 visa. The relevant criteria to be considered in relation to compliance with condition 8516 are the criteria applicable to the Subclass 573 visa at the time it was granted.

   …

   14. The Tribunal finds that when the applicant ceased to be enrolled in a higher education course, he ceased to be a person who would satisfy the primary criteria for the grant of the visa. There is also no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. As such, the Tribunal finds that the applicant breached condition 8516 of his visa.

   15. The Tribunal is satisfied that the ground for 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.

5. It was in those circumstances that the Tribunal turned to consider the issue of discretion and relevantly found: 

   19. The Tribunal has considerable concerns about the applicant’s evidence. If the applicant felt he could not cope with the course and wanted to transfer to another course, there was no reason for him to transfer to a vocational course rather than the higher education course. The applicant claims the school failed to advise him about visa requirements. The Tribunal is of the view that it is not the school’s responsibility to provide the applicant with immigration advice. The applicant claims he relied on the advice of an education agent who also misled him. However, the Tribunal is of the view that it is the responsibility of the applicant, as the holder of the visa, to familiarise himself with the condition of the visa and what these required him to do. The Tribunal is not satisfied that the applicant took adequate steps to ensure his compliance with visa conditions.

   20. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case.

   21. The Tribunal considers it significant that the applicant has not completed any substantive study since entering Australia. The applicant transferred from course to course without completing these. The applicant informed the Tribunal that he completed all classes for the Certificate IV in Business but he claims he had not passed the exams. The applicant claims he only needs three months to complete the Diploma but the Tribunal is mindful that, according to the primary decision record, the applicant was granted the student visa in September 2012. The applicant held the visa for more than two years yet he had not completed any substantive study, other than English courses, in Australia. The Tribunal is not satisfied that the applicant is a genuine student.

   22. The Tribunal also considers it problematic that the applicant obtained an offer letter for a bachelor course from Holmes Institute on 11 February 2015. The applicant waited a month after his student visa was cancelled, when he was well aware of condition 8516 and of his breach of that condition. The applicant has not taken the first available opportunity to return to higher education study. The Tribunal has formed the view that the applicant obtained the offer of enrolment only because his visa was being cancelled and not because he has a genuine intention of undertaking higher education study in Australia. The applicant also informed the Tribunal that he wanted to complete his Diploma course, which would take three months. The applicant suggested he would do both the Diploma and the Bachelor simultaneously. The Tribunal is not convinced that the applicant will do so. The Tribunal is not convinced that if the visa is reinstated, the applicant will pursue a higher education course.

   …

   25. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant breached condition 8516 of his visa. The Tribunal has found that there are no extenuating or compassionate circumstances in this case. The Tribunal has considerable concerns about the applicant’s study intentions, given that he has completed no substantive study since he came to Australia and the Tribunal is not convinced the applicant will engage in a higher education course in the future. The Tribunal accepts that some hardship would be caused by the cancellation. It will not affect any other person’s visa and will not be in breach of Australia’s obligations.

   26. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

6. The grounds of the application are as follows: 

   l. I am a Chinese citizen and have been a genuine student since I arrived in Australia. I always obey my visa condition.

   2. Tribunal's over objective in judging the explanation and the response of the applicant at the hearing.

7. The grounds fail to identify any arguable jurisdictional error.  To that extent, relevantly, ground 1 appears to be an impermissible challenge to the adverse findings of fact made by the Tribunal.  Ground 2 seeks to criticise the Tribunal’s alleged over objectively judging.  It was a matter for the Tribunal to evaluate the applicant’s explanation and to determine whether there were extenuating or compassionate circumstances. The adverse finding by the Tribunal does not give rise to the position that a reasonable person might believe that the Tribunal failed to bring an independent and impartial mind to the determination of the matter on its merits.

8. The adverse findings by the Tribunal were clearly open.  The application fails to identify any jurisdictional error.  The application is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  3 June 2015