FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2016] FCA 1581

Appeal from:

Kaur v Minister for Immigration [2016] FCCA 3289

File number:

VID 1454 of 2016

Judge:

PAGONE J

Date of judgment:

22 December 2016

Catchwords:

MIGRATION – judicial review of decision of Federal Circuit Court of Australia affirming decision of delegate to cancel appellant’s Student (Subclass 357) visa – whether appellant failed to comply with Condition 8105

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Date of hearing:

22 December 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

10

Counsel for the Appellant:

Ms J Lucas

Solicitor for the Appellant:

Carina Ford Immigration Lawyers

Solicitor for the Respondent:

Mr D Brown of Australian Government Solicitor

Table of Corrections

20 January 2017

In paragraph 2, ‘in’ has been replaced with ‘as’; ‘, however,’ has been inserted; ‘whether’ has been replaced with ‘refer more specifically to a period during which’; and ‘actually’ has been inserted.

20 January 2017

In paragraph 3, ‘been’ has been inserted; and that she was’ has been replaced with ‘, on being’.

20 January 2017

In paragraph 5, ‘been’ has been inserted; ‘present’ has been replaced with ‘prevent’; ‘refers’ has been replaced with ‘referred’; and ‘was’ has been inserted.

20 January 2017

In paragraph 6, ‘. These’ has been replaced with ‘”. The notice went on to say that “[t]hese’; ‘is’ has been replaced with ‘” was’; ‘is’ has been removed; and ‘Her’ has been replaced with ‘In that regard her’.

20 January 2017

In paragraph 7, ‘defines’ has been replaced with ‘defined’.

20 January 2017

In paragraph 9, ‘just’ has been inserted; and ‘created by the conflation’ has been inserted.

ORDERS

VID 1454 of 2016

BETWEEN:

ANKUSHPREET KAUR

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

JUDGE:

PAGONE J

DATE OF ORDER:

22 DECEMBER 2016

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 16 December 2016 be set aside and in place of those orders the following orders be made:

(a)    The decision of the respondent’s delegate dated 11 December 2016 be set aside; and

(b)    The respondent pay the appellant’s costs of the proceeding and of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

PAGONE J:

1    This appeal comes to the Court as an expedited hearing. The appellant is in custody in anticipation of being deported to India following the cancellation of her student visa on 11 December 2016. On that day she returned to Melbourne after a short period of time in India and was questioned by officers of the Department of Immigration and Border Protection upon her arrival. At the time she held a Student (Class TU) (Subclass 573) visa which was cancelled later that day after departmental officers questioned her. The following day she filed an application challenging the cancellation of her visa and sought interlocutory orders preventing her removal from Australia. Interlocutory orders were made and an expedited hearing was given by the Federal Circuit Court. On 16 December 2016 Judge Jones dismissed the appellant’s application with costs. The appeal from her Honour’s decision to this Court was commenced on 19 December 2016.

2    The notice of appeal contains five grounds but ground 2 was not pressed. It is convenient, however, to deal with grounds 4 and 5. Ground 4 was initially expressed as a question of construction of the provision upon which the cancellation of the appellant’s visa depended. The appellant, however, was given leave at the appeal, by consent, for ground 4 to be amended as follows:

The primary judge erred in finding that Condition 8105 applied to the appellant in circumstances where the appellant was no longer enrolled in a course of study at the time of the purported breach of Condition 8105 and accordingly in finding that the delegate had not erred.

The decision to cancel the appellant’s student visa was made under s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”) which entitled the Minister to cancel a visa if satisfied that “its holder has not complied with a condition of the visa”. The relevant condition to be construed and applied in this appeal was condition 8105(1) of Schedule 8 to the Migration Regulations 1994 (Cth) which provided:

(1)    Subject to subclause (2), the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session.

The Minister, and her Honour, construed and applied the terms of condition 8105 to refer to the whole of the period of the course of study of the appellant to which the appellant had committed and not to refer more specifically to a period during which the appellant was required to attend classes or to complete course work requirements of the course of study in which she was actually enrolled. That construction and application was challenged on the appeal.

3    The appellant is a 21 year old citizen of India who was granted a student visa on 27 May 2014. Judge Jones found that the appellant had been enrolled in a course of study at the commencement of 2016 for a diploma of hospitality which had a duration of one year, but that the appellant had terminated her enrolment in 2016 and had worked during August and September 2016 in excess of 40 hours a fortnight. The course in which she ought to have been enrolled was in session during the period in which she worked in excess of 40 hours a fortnight but she was in fact not enrolled in the course at that time. The appellant may, therefore, have been in breach of condition 8202(2)(a) because she was not enrolled in a course but the delegate had based the decision to cancel the visa, and the Minister had contended in the Federal Circuit Court and on appeal, on being in breach of condition 8105.

4    The Minister’s submission to the Federal Circuit Court, and on appeal, was that the phrase “when the holder’s course of study or training is in session” in condition 8105(1) referred to the period of time of the particular course of study in which a visa holder was enrolled rather than the time within the period when a student was required to attend classes or to complete course work requirements for the course. Her Honour accepted that construction and said in her reasons at [108]-[110]:

108    The Minister’s submission is that that phrase should be taken to refer to the period of time of the particular course of study in which a visa holder was enrolled. It is argued that the Applicant’s construction would defeat the evident purpose of the statutory framework by enabling, for example, visa holders to defer or cease to be enrolled in courses for the purpose of engaging in work rather than study.

109.    In my opinion, the words “in session” refer to the currency of the course of study the Applicant was enrolled in, not whether the Applicant is attending classes and completing any coursework requirements of the course of study. Otherwise, visa holders who fail to attend classes or complete any coursework requirements during the period the course of study was continuing would be able to defeat the requirement in Condition 8105, that the visa holder not work in excess of 40 hours a fortnight.

110.    The Applicant was enrolled in a course of study at the commencement of 2016; that being, a Diploma of Hospitality. The duration of the course was a period of one year. The Applicant’s enrolment in the course was terminated during the currency of the course, from early 2016 to the end of 2016. That course of study remained in session until the end of 2016. The Applicant worked during August and September 2016 in excess of 40 hours a fortnight, when her course of study was in session. Consequently, she did not comply with Condition 8105(1) during the period of August and September 2016.

Her Honour’s construction and application of condition 8105 relied upon the purpose of the statutory framework as being to avoid the abuse of the system under which visas were granted: see Reasons at [105].

5    For present purposes it is sufficient to note that the appellant was not enrolled in a course at the time when she worked for more than 40 hours per fortnight and, therefore, that condition 8105 did not apply. The appellant had been enrolled in a course in 2016 which was in session during the period in which the appellant worked more than 40 hours per fortnight but at that time, as her Honour found at [110], the appellant’s enrolment in the course had terminated. Her Honour’s construction of condition 8105 equated the “session” of a course of study or training with the whole of the period during which it is conducted rather than, for example, that period during which the holder of a relevant visa may be required to attend classes or complete course work requirements. It may be accepted, and as the Minister submitted, that a purpose of the statutory framework might be defeated by visa holders deferring or ceasing to be enrolled, but it does not follow that condition 8105 required the construction for which the Minister contended. The work achieved by condition 8105 is part of the statutory framework, but the prohibition on defeating the overall purpose of the statutory scheme in the specific way submitted is to be found in condition 8202 rather than in condition 8105. The latter did not apply to the appellant once her enrolment had been terminated. Her course of study or training would have been in session had she been enrolled but, perhaps wrongly, she had terminated her enrolment. The specific purpose of the statutory scheme sought to be achieved by condition 8105 is the attendance to educational requirements in which a student visa holder is enrolled rather than to prevent work when not enrolled. For present purposes it is not necessary to determine a related question of whether “in session” referred not to the overall course period but more specifically to that period within the course period when classes are conducted or course work was required to be undertaken.

6    The reliance by the Minister upon condition 8105 is relevant also to ground 5 in the notice of appeal. That ground contended that the Minister had failed to comply with his obligations under ss 119 and 120 of the Act in the notice of intention to consider cancellation which had been given to the appellant on 11 December 2016. The appellant had returned to Melbourne at 9.40am and, after an interview, was given the notice of intention to consider cancellation at 1.44pm. The notice specified that there appeared to be a ground for cancelling her visa by reason of a breach of condition 8105 “because [she had] engaged in work in Australia for more than 40 hours a fortnight and also because [she] worked whilst not holding a certificate of enrolment and [was] not enrolled in any further course of study. The notice went on to say that “[t]hese activities are not within the scope of activities allowed under condition 8105”. The reference in the notice to working “whilst not holding a certificate of enrolment was, as her Honour found, not something contemplated by condition 8105 but rather was to be found in condition 8202. In that regard her Honour found at [95] that the delegate had clearly “conflated requirements from two separate conditions in giving particulars” of the ground for cancellation of the visa.

7    Ground 5 in the notice of appeal contended that her Honour erred in concluding that the decision-maker’s conflation of condition 8105 with condition 8202 in the particulars of the notice was not a breach of the Minister’s obligations under s 119(1)(a) and s 120(2)(a). Section 119(1) of the Act required the Minister to notify the holder of a visa that there appeared to be grounds for cancelling the visa and, importantly, to “give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist”. Section 120(2) provided a further requirement that the Minister must “give particulars of the relevant information to the holder” and “ensure, as far as reasonably practical, that the holder understands why it is relevant to the cancellation…”. Section 120(1) defined “relevant information” to include information which the Minister considered “would be the reason, or part of the reason, for cancelling a visa”.

8    The notice to the appellant gave the following particulars as the specified particulars “of the ground and the information” appearing to the Minister to be prescribed circumstances in which the visa was to be cancelled:

You have arrived at Melbourne Airport as the holder of a Subclass 573 Student visa. Your Subclass 573 visa is subject to Condition 8105 which states the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session. Details of Condition 8105 can be found at the reverse of page 4 of this Form 1111: Notice of intention to consider cancellation.

On your Incoming Passenger Card (IPC) you have indicated that your main reason for coming to Australia today is ‘Education.’

During an interview with the Department of Immigration and Border Protection (DIBP) at Melbourne Airport, you have admitted to working from 12.30 pm to 10 pm five days per week during the months of August and September of this year. Evidence located in your phone confirmed you worked in excess of 40 hours per fortnight during this period.

Based on the above information, there appears to be a ground for cancelling your Subclass 573 visa because you have not complied with condition 8105 of your visa because you have engaged in work in Australia for more than 40 hours a fortnight and also because you worked whilst not holding a certificate of enrolment and were· not enrolled in any further course of study. These activities are not within the scope of activities allowed under condition 8105. The ground is described under S116(1)(b) on the reverse of page 1 of this document.

Her Honour correctly concluded that the delegate had “conflated” the requirements from two separate conditions in giving the particulars of the ground justifying cancellation of the visa but was not satisfied that the conflation constituted contravention of ss 119 or 120 of the Act.

9    Her Honour was not satisfied that the conflation constituted a contravention of the provisions for the reasons given in paragraph [96] of her reasons, namely:

I am not satisfied that this conflation constituted a contravention of the provisions of ss.119 or 120 of the Act, for the following reason. Firstly, the delegate, without a doubt, gave particulars of the ground for cancelling the visa. When Part A is considered as a whole, the delegate specified the ground as being, that it appeared the Applicant had breached Condition 8105, and set out the information upon which it appeared the condition had not been complied with. These particulars and information are clearly set out in paragraphs 1 and 3 of the box under item 6 of Part A in Form 1111 (see the extract at [32] above). In my view, that clumsy conflation of two conditions applicable to the visa at paragraph 4 does not detract from the fact that the particulars and information were given to the Applicant. I have considered whether the delegate ensured, as far as reasonably practicable, that the Applicant understood why the information was relevant to the cancellation. I am satisfied that he did so. The information that the applicant had worked in excess of 40 hours per fortnight during August and September 2016 was conveyed with clarity in the NOICC.

It can be accepted that as a matter of substance a person reading the particulars in the notice might understand the ground of cancellation to be that the appellant had worked for more than 40 hours a fortnight when she ought to have been enrolled in a course of study, but the problem with the particulars was not just a “conflation” of two grounds but with the assumption in the particulars created by the conflation that condition 8105 had been breached in circumstances in which the appellant had ceased to be enrolled and therefore that she had no course of study or training which could be in session for her. It was, perhaps, condition 8202 that had been breached by the appellant, but that had not been the ground which had been particularised as the basis for cancellation of the visa. Condition 8202 provided:

(1)    The holder must be enrolled in a fulltime course of study or training if the holder is:

(a)    a Defence student; or

(b)    a Foreign Affairs student; or

(c)    a secondary exchange student.

(2)    A holder not covered by subclause (1):

(a)    must be enrolled in a fulltime registered course; and

(b)    subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

(c)    must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

(i)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

(ii)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

(3)    A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

(a)    is enrolled in a course at the Australian Qualifications Framework level 10; and

(b)    changes their enrolment to a course at the Australian Qualifications Framework level 9.

Her Honour correctly observed at [93] that the latter part of the particular in the notice referred to the condition located in 8202 and not to condition 8105. At [93] her Honour said:

The NOICC recorded, at item 6, that a possible ground for cancellation of the visa was because it appeared that the Applicant had breached Condition 8105. In the explanatory box, the delegate stated in the first paragraph that the Applicant’s visa was subject to Condition 8105 which “states the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session” (“the work condition”). The delegate then set out the particulars of the information; namely, the hours the applicant worked at a restaurant during August and September 2016. However, the delegate then went on to record, at the fourth paragraph, that because of that information it appears there was a ground for cancelling her visa because she had breached the work condition of Condition 8105 and, in the same sentence stated, “and also because you worked whilst not holding a certificate of enrolment and were not enrolled in any further course of study.” It seems to me that the ordinary meaning of that paragraph was that the particulars the delegate was giving the Applicant, were that she had not complied with Condition 8105 because of the work condition and also because she did not hold a current certificate of enrolment. This latter condition has no place within Condition 8105. It is located in Condition 8202.

The “conflation” of the 8202 ground with that of 8105 was, therefore, not expressed in terms that were apt to produce a meaningful understanding by the recipient of a notice who was asked, in effect, to address a question upon a premise that did not exist. That was the consequence of the “conflation” which her Honour found to have occurred. Her Honour’s conclusion that the delegate had “conflated” the two conditions ought to have led to the conclusion that the Minister had not complied with his obligations under ss 119 and 120 of the Act because the notice proceeded upon the assumption that a breach of condition 8202(2) was also part of the breach of condition 8105. Her Honour did not find that the particulars in the notice had been of one ground for cancellation based upon a construction of condition 8105 to include (independently of ground 8202) a failure to hold a certificate of enrolment. Her Honour ought to have held that the delegate had contravened ss 119 and 120 because the “conflated” ground did not put the appellant in the position of knowing what she needed to respond to. The “conflated” ground was neither (a) that she had failed to comply with condition 8202 by not being enrolled, nor (b) that she had failed to comply with condition 8105 because it needed to be read as applying to her even though she had terminated her enrolment.

10    Accordingly, the appeal will be allowed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

Associate:

Dated:    23 December 2016