Zhang v Minister for Immigration
[2018] FCCA 1946
•24 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHANG v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1946 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeal Tribunal’s decision materially affected by inaccurate Provider Registration and Internal Student Management System (PRISMS) records – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474, 476 Migration Regulations 1994 (Cth), reg.2.01 Education Services for Overseas Student Act 2000 (Cth), s.19 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 |
| Applicant: | MINGCHANG ZHANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3228 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 11 July 2018 |
| Date of Last Submission: | 11 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr David Godwin |
| Solicitors for the Applicant: | Brett Slater Solicitors |
| Counsel for the Respondents: | Mr Tim Reilly |
| Solicitors for the Respondents: | Australian Government Solicitors |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3228 of 2016
| MINGCHANG ZHANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 24 October 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 7 March 2016 cancelling the Applicant’s Student (Class TU) (Subclass 573) Visa (“Student Visa”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the relevant legislative framework, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.
Background
The Applicant was granted a Student Visa on 11 October 2011.
On 23 February 2016 the Department of Immigration and Border Protection (“the Department”) sent to the Applicant a Notice of Intention to Consider Cancellation of the Student Visa (“the NOICC”).
On 24 February 2016 the Applicant provided a written response to the Department’s NOICC.
On 7 March 2016, the Delegate cancelled the Applicant’s Student Visa.
On 8 March 2016, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 24 October 2016, the Tribunal handed down its decision affirming the decision of the Delegate to cancel the Student Visa.
On 21 November 2016, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (“the Act”), the first respondent may cancel a visa if it is satisfied that the visa holder has not complied with a condition of the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa was a Student Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and sch.1 of the Regulations).
Condition 8202 of sch.8 of the Regulations (“Condition 8202”) describes the conditions that apply to all student visa holders. Relevantly, Condition 8202(1)-(3) requires the visa holder to maintain enrolment in a registered course, as follows:
“8202
(1)The holder (other than the holder of a Subclass560 (Student) visa who is an AUSAID student or holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student – the holder is enrolled in a full time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 11 of the National Code of Practice for Registration and Authorities and Providers of Education and Training to Overseas Students 2007.”
[Emphasis added]
Under s.338 of the Act, a decision to cancel a visa is a decision which may be reviewed by the second respondent.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The Delegate’s decision
On 7 March 2016, the Delegate cancelled the Applicant’s Student Visa on the basis that the Applicant breached Condition 8202 of the Student Visa by failing to maintain his enrolment in a registered course.
The Delegate’s decision referred to records on the Department’s Provider Registration and Internal Student Management System (“PRISMS”), which indicated the Applicant had not been enrolled for less than 18 months in a registered course of study since 2 September 2014. This information was incorrect. The Applicant had been accepted for enrolment in September 2015 for the following semester.
The Tribunal’s review and decision
On 8 March 2016, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 6 September 2016, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 26 September 2016 to give oral evidence and present arguments.
On 26 September 2016, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal explored the Applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.
The Tribunal noted that the Delegate’s decision record showed that the information available in the PRISMS’ database indicated that the Applicant had not been enrolled in a registered course of study since 2 September 2014. In response, the Applicant stated he returned to the University of New South Wales (“UNSW”) on 2 September 2015 and was enrolled in a Bachelor of Commerce for one semester. The Tribunal found the Applicant’s evidence in relation to his claimed return to studies to be “incoherent, uncorroborated and inconsistent with information” available on the PRISMS, and was therefore not satisfied that the Applicant had returned to UNSW as claimed.
The Applicant did not dispute that he was not enrolled in a registered course of study for at least a year. The Tribunal gave significant weight to the fact the Applicant was not enrolled in a course of study for a lengthy period of time. Accordingly, the Tribunal found the Applicant had not complied with Condition 8202 and proceeded to consider whether the Applicant’s student visa should be cancelled under s.116(1)(b) of the Act.
At hearing, the Applicant told the Tribunal that he failed to maintain his enrolment in a registered course due to mental health issues. The Applicant provided two psychologist reports dated 23 February 2016 and 9 September 2016 in support of his application for review. Both psychologist reports indicated that the Applicant suffered from anxiety which, it was submitted by the Applicant’s representative, contributed to the Applicant’s failure to comply with Condition 8202.
The Tribunal noted that the psychologist report dated 9 September 2016 did not refer to any intervening treatment or consultation since the report dated 23 February 2016. The Tribunal found that the fact that the Applicant did not continue to see the psychologist after the initial report raised some doubts as to the extent of the claimed impact of the Applicant’s reported mental health.
While the Tribunal accepted that the Applicant had suffered from anxiety and other mental health problems, it expressed its concern about the lack of or limited action the Applicant had taken in relation to the difficulties he was facing.
The Tribunal accepted as plausible that the Applicant’s grandmother, with whom he was very close, was unwell and that his parents were having relationship difficulties during his time in Australia. The Tribunal further accepted such difficulties would naturally have played some part in the Applicant’s breach of Condition 8202.
The Tribunal accepted that the Applicant had enrolled in a Bachelor of International Studies at Top Education Institute in February 2016. However, the Tribunal noted that the Applicant’s academic record dated 6 September 2016 raised concerns about the Applicant’s capacity to progress satisfactorily in his studies in Australia. Moreover, given the Applicant had enrolled at the Institute after his Student Visa had been cancelled, the Tribunal was not persuaded that the enrolment constituted evidence of a genuine intention to continue studying in Australia.
The Tribunal considered the Applicant’s submission that, if forced to return to China without a university degree, he would not have much of a chance of obtaining employment. The Tribunal accepted that the Applicant may face some difficulties in gaining entry to university in China or pursuing further studies in Australia as a result of his Student Visa being cancelled. However, the Tribunal was not satisfied that this would create a degree of hardship for the Applicant that meant the visa should not be cancelled.
Accordingly, having determined that the Applicant breached Condition 8202, the Tribunal was not satisfied that the Applicant’s circumstances meant the Student Visa should not be cancelled and affirmed the decision under review.
The proceeding before this Court
The Applicant was represented by Mr David Godwin, of counsel.
On 22 March 2017, the Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
On 19 May 2017 the Applicant filed an Amended Application.
Mr Godwin confirmed that the Applicant relied on the grounds contained in the Amended Application, filed on 19 May 2017, as follows:
“1. The Second Respondent failed to take into account the material evidence before it and made findings without probative evidence.
Particulars
a. The Second Respondent found there was no evidence before the Tribunal that there are no international obligations that could be breached as a result of the cancellation whereas in the Psychologist Report at CB 63 the Psychologist reported that Applicant was “worried about receiving corporal punishment,” if he had to return to China, which raised for consideration Australia’s obligations under Article 7 of the International Covenant on Civil and Political Rights.
b. The Second Respondent found that there was no evidence before the Tribunal that there was any victim of domestic violence or there would be any such impact whereas in the Psychologist Report at CB 63 the Psychologist reported, in the context of the “serious reaction” his parents would have if he returned, that Applicant was “worried about receiving corporal punishment,” if he had to return to China.
c. The Second Respondent found that the Applicant did not continue to see the psychologist after the initial report. However the Applicant gave evidence that he would ring the Psychologist from time to time on his private number. The Tribunal overlooked this evidence.
2. The exercise of power under s116(1)(b) of the Migration Act 1958 by the Second Respondent was invalid because it was tainted by the noncompliance by UNSW with s19 of the Education Services for Overseas Students Act 2000.
Particulars
a. The Applicant enrolled at UNSW in the second semester of 2015.
b. UNSE failed to upload this information onto PRISMS.
c. The Tribunal did not accept that the Applicant had enrolled at UNSW in the second semester of 2015 because this was not stated on PRISMS and its decision was thereby materially affected.”
Ground 1
In the course of submissions made by the Applicant in support of Ground 1 and discussion between the Court and counsel for the Applicant, the Court made clear the concerns it had about the particulars in support of Ground 1; the evidence relied on; and, the written and oral submissions made in support. Ultimately, the parties agreed that in the event the Court was not satisfied that Ground 1 made out any jurisdictional error on the part of the Tribunal, reasons would not be required from the Court.
Accordingly, for the reasons that were discussed with counsel for the Applicant in the course of oral submissions, Ground 1 is not made out.
Ground 2
At the heart of Ground 2 is a contention that the First Respondent’s decision to cancel the Applicant’s student visa was tainted by the non-compliance of UNSW with s.19 of the Education Services for Overseas Student Act 2000 (Cth) (“the ESOS Act”). Section 19 is as follows:
“Giving information about accepted students
1) A registered provider must give the following information within the applicable number of days after the event specified below occurs:
(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student--the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of an accepted student's studies (whether as a result of action by the student or the provider or otherwise) before the student's course is completed;
(e) any change in the identity or duration of an accepted student's course;
(f) any other prescribed matter relating to accepted students.
(1A) The applicable number of days is:
(a) if the accepted student is less than 18 years old and the information is of a kind referred to in paragraph (1)(c) or (d)--14 days; or
(b) otherwise--31 days.
(2) A registered provider must give particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.
(2A) A registered provider must give particulars of a breach by a student under subsection (2) even if the student has ceased to be an accepted student of the provider.
(3) A registered provider must give the information required by this section by entering the information in the computer system established by the Secretary under section 109.
Note 1: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
Unincorporated registered providers
(4) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the information as required under this section.
(5) A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(6) An offence under subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.”
[Emphasis added]
The NOICC, dated 23 February 2016, stated that the Applicant was in breach of Condition 8202 of his visa because he was not enrolled in a registered course. That statement in the NOICC was based on the PRISMS records which showed the Applicant had not been enrolled in a registered course of study since 2 September 2014. The NOICC informed the Applicant that pursuant to s.116(1)(b) of the Act, the Minister may cancel the Applicant’s visa if the Minister is satisfied that the Applicant has not complied with a condition of his visa.
The First Respondent concedes that the Applicant was enrolled in a Bachelor of Commerce degree at UNSW for the second semester in September 2015 and that, contrary to its statutory obligation, acceptance of the enrolment had not been uploaded onto the PRISMS.
The NOICC stated that the Applicant must provide any response in writing within 5 working days after he is taken to have received the NOICC. The letter stated that if the Applicant did not respond within the timeframe, a decision on whether to cancel his visa would be made using the information held by the Department at the time.
On 24 February 2016 the Applicant sent to the Department a response, including the following:
“In July 2014, I applied to suspend my studies at UNSW since I felt I was in an able status to continue my studies. When making the application online, I mistakenly ‘discontinuation’ without realising the mistake myself. The University approved my application and cancelled my enrolment. I did not know what actually happened until one year later when I applied to resume my studies. I talked to the University and the head of the Faculty and was able to get the permission for enrolment.”
On 8 March 2016, the Department wrote to the Applicant notifying him of the cancellation of his Student Visa on the basis that the Applicant had not complied with Condition 8202 of his visa, because the Applicant was not enrolled in a registered course. Again, the NOICC referred to the PRISMS records that erroneously stated that the Applicant had not been enrolled in a registered course of study since 2 September 2015.
As stated above, the Delegate’s decision record stated that the Applicant had not been enrolled in a registered course of study for more than 18 months since 2 September 2014. It is common ground that that statement was not correct. As stated above, the Applicant had been accepted for enrolment in September 2015 for the following semester.
The Tribunal correctly identified the issue as whether or not the Applicant, as the holder of a Student Visa, had breached Condition 8202 of sch.8 of the Regulations, in which case his visa may be cancelled.
As stated above, Condition 8202 required the Applicant to be enrolled in a registered course in the Higher Education Sector.
The Tribunal raised with the Applicant at the hearing that the PRISMS record indicated that as at 23 February 2016 (the date of the NOICC) the Applicant had not been enrolled in a registered course of study since 2 September 2014. The Tribunal noted the Applicant’s response that he was not enrolled between 2 September 2014 and 2 September 2015. The Applicant told the Tribunal that his enrolment in the Bachelor of Commerce course for the next semester was accepted by UNSW on 2 September 2015. The Tribunal noted that the Applicant said that the manager of the school at UNSW “manually” enrolled him in the course in September 2015. The Tribunal noted that it asked the Applicant if he had any evidence to support the claim that he was enrolled on 2 September 2015 and noted that the Applicant stated he did not. The Tribunal also noted that the Applicant said that the he thought the UNSW would have communicated this to the Department.
The Tribunal then stated:
“The Tribunal noted that if he had indeed returned to UNSW as claimed, PRISMS would have been updated and there is no evidence of such information in PRISMS.”
The Tribunal found the Applicant’s evidence in relation to his claimed return to studies in September 2015 to be “incoherent, uncorroborated and inconsistent with information in PRISMS as at 7 March 2016.” The Tribunal stated that for those reasons and on the basis of available information, the Tribunal was not satisfied that the Applicant had returned to UNSW in September 2015 as claimed. The Tribunal then made the following finding:
“Even if the Tribunal is wrong, what is not disputed by the Applicant is that for a year, he was not enrolled in a registered course of study. Accordingly, the Tribunal finds that since 2 September 2014 until at least 2 September 2015, the Applicant was not enrolled in a registered course of study. Therefore, the Tribunal finds that the Applicant has not complied with condition 8202(2).”
The Tribunal stated further in its decision record:
“The Applicant did not enrol in a registered course of study for at least one year which the Tribunal considers to be a considerable period for time. He claimed that he had returned to his studies in September 2015 but he was unable to provide any corroborative evidence but even if the Tribunal were to accept that he did return to his studies, on his own evidence he did not attend all classes, or sit for any exams, or pass any subjects, undermining any assertion of his capacity or willingness to study in Australia.”
Ultimately, the Tribunal concluded that although the Applicant had travelled to Australia for the purpose of studying, and that he did in fact study for a period of time, “his lack of enrolment for a lengthy period of time raises doubts about his intention to pursue or complete any further studies in Australia. The Tribunal considers the Applicant’s lack of enrolment to be significant and outweighs his own claimed personal circumstances.”
Counsel for the Applicant contends that the failure of UNSW to upload the Applicant’s PRISMS records, as required by the ESOS Act, meant that the Tribunal’s decision was materially affected.
In Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 (“Wei”) at [29] – [35] where Gageler and Keene JJ stated at [31] “the injustice of the holder of the student visa of the power to cancel that visa being exercised on the basis of incorrect information downloaded PRISMS is manifest.”
Their Honours, in considering the duty of a Registered Education Provider to comply with s.19 of the ESOS Act (which the Court found to be an imperative duty) stated as follows:
“29. The duty with which we are presently concerned is that imposed by s 19 of the ESOS Act on a registered provider to upload onto PRISMS confirmation of enrolment of a person holding a student visa. Within the statutory scheme, there is little difficulty in concluding that the statutory purpose of that duty would be advanced by holding that an exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act that is affected by a breach of that duty is invalid.
30. The statutory scheme establishes PRISMS as a repository of information available to be taken into account in decision-making under the Migration Act, and makes the requirement of s 19 of the ESOS Act for a registered provider to upload information onto PRISMS the means by which the integrity of that information is sought to be ensured. That scheme furthers the express statutory object of the ESOS Act: to complement Australia's migration laws by ensuring that institutions providing courses of education or training to holders of student visas collect and report information relevant to the administration of the law relating to student visas.
31. The injustice to the holder of the student visa of the power to cancel that visa being exercised on the basis of incorrect information downloaded from PRISMS is manifest. The facts of the present case well illustrate that such injustice is not necessarily mitigated by either the requirement to give notice of the decision or the availability of merits review.
32. The requirement of s 19 of the ESOS Act that a registered provider upload onto PRISMS confirmation of enrolment of a person holding a student visa is therefore properly characterised as an imperative duty, in the sense that material non-compliance with the requirement will result in an invalid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act.
33. The "satisfaction" required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law[30]. Equally, it is a state of mind which must be untainted by a material breach of any other express or implied condition of the valid exercise of that decision-making power. The imperative duty imposed on a registered provider by s 19 of the ESOS Act is such a condition.
34. Here, the delegate's satisfaction that the plaintiff was in breach of the visa condition that he be enrolled in a registered course was formed by a process of fact-finding which was tainted by Macquarie University's antecedent breach of its duty, under s 19 of the ESOS Act, to upload onto PRISMS confirmation of the plaintiff's then current enrolment. The delegate reached that satisfaction because the delegate found as a fact that the plaintiff was not enrolled in a registered course. The delegate found that fact on the basis of information contained in PRISMS. That finding was wrong because the information contained in PRISMS was wrong. The information contained in PRISMS was wrong because of Macquarie University's failure to perform its imperative statutory duty.
35. The case is one of jurisdictional error.”
[Emphasis added]
The First Respondent contends that the fact that the PRISMS records had not been uploaded with the Applicant’s information about his enrolment at the UNSW in September 2015 did not materially affect the Tribunal’s decision given that the Applicant had failed all the subjects in which he was enrolled for that semester. Further, the First Respondent contends that the Tribunal made its decision in the contemplation of even if it was wrong and the Applicant was in fact enrolled as at September 2015.
However, it is clear from the Tribunal’s decision record that the length of time that the Applicant had been away from his studies was relied upon as being the critical factor in the exercise of the Tribunal’s discretion to cancel the visa. The Tribunal did not accept the Applicant’s claim that he had enrolled in the second semester of 2015, and its disbelief of that claim may well have influenced its credibility assessment in relation to the Applicant’s history and future intentions.
I accept the submission of the Applicant that the Tribunal’s decision was influenced by the PRISMS records. One cannot be sufficiently confident that the Tribunal would inevitably have reached the same decision had the Applicant’s true enrolment position been reflected on the PRISMS.
As stated above, the Tribunal did not accept the Applicant’s claim that his enrolment had been accepted in September 2015. Further, the Tribunal did not accept the Applicant’s explanations about mental health problems and personal and family issues as being sufficient to waive Condition 8202. Indeed, the Tribunal found that psychological reports provided by the Applicant suggested that they were obtained for the purpose of the visa cancellation which caused the Tribunal to have doubts about the extent of the claimed impact of the Applicant’s reported mental health and family circumstances on his studies and substantial lack of enrolment.
It is impossible to unpick the Tribunal’s credibility findings based on its lack of acceptance of the Applicant’s claims. In my view, if the Applicant had been accepted as truthful in his claim to have been enrolled in September 2015, despite the incorrect PRISMS record, it is possible that the Tribunal may well have not have had as many as doubts as it expressed in relation to the Applicant’s evidence in support of waiving compliance with Condition 8202. In other words, the Tribunal may well still have found Condition 8202 breached as a result of the failure of the Applicant to be enrolled in September 2014 and September 2015 in a registered course. However, the Tribunal may have more readily accepted the Applicant’s explanations as to why that was so in considering whether it should waive compliance with Condition 8202.
Because of the failure of UNSW to comply with s.19 of the ESOS Act and ensure that the PRISMS record in respect of the Applicant was accurately uploaded within the statutory time frame, the Applicant may have been denied the opportunity of being found to be a credible witness in respect of all his claims, both in respect of the period of non-enrolment and the Tribunal’s exercise of its discretion to cancel the Applicant’s Student Visa, having found a breach of Condition 8202.
In the circumstances, the Tribunal’s process of fact finding was tainted by UNSW’s breach of its duty under s.19 of the ESOS Act to upload onto PRISMS confirmation of the Applicant’s enrolment in 2015.
As in Wei, the information contained in the PRISMS to which the Tribunal had regard was wrong because UNSW had failed to perform its imperative statutory duty of s.19 of the ESOS Act.
I am satisfied that in the case before this Court, it was material non-compliance by the UNSW of its requirement to comply with s.19 of the ESOS Act and upload the information about the Applicant’s September 2015 enrolment within the specified time (being either 14 days or 31 days, depending on the Applicant’s age).
As in Wei, that material non-compliance by the UNSW resulted in an invalid exercise of the power to cancel the Applicant’s visa made pursuant to s.116(1)(b) of the Act for the reasons given by the Tribunal. The Tribunal’s decision to cancel the Applicant’s Student Visa for the reasons it gave was tainted by the non-compliance of UNSW with s.19 of the ESOS Act because the Tribunal failed to appreciate that failure; and, that failure was material to the Tribunal’s decision to cancel the Applicant’s Student Visa.
Accordingly, in the circumstances, the Tribunal’s decision is affected by jurisdictional error.
For the reasons above, the Court’s discretion should be exercised to grant the Applicant the relief he seeks. The Tribunal’s decision should be set aside and the matter remitted to the Tribunal for determination according to law.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 24 July 2018
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