FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCA 611

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) the requirement that the applicant make his application for leave to appeal in the manner and form specified in the rules be dispensed with.

2.    The application for leave to appeal is allowed.

3.    The appeal is allowed in part.

4.    The judgment of the Federal Circuit Court dismissing the applicant’s application for judicial review pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) is set aside.

5.    Subject to the order in paragraph 6, the applicant’s cause is remitted to the Federal Circuit Court for final hearing and determination.

6.    The first respondent is to show cause at a final hearing why an order for the relief claimed by the applicant should not be made on the ground that the Migration Review Tribunal failed to give sufficient weight to the fact that, and the circumstances in which, the applicant had previously applied for a subclass 572 visa, so as to commit a jurisdictional error in the manner identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72].

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia published as Singh v Minister for Immigration & Anor [2015] FCCA 3486.

2    The applicant is a 23 year old Indian national. He entered Australia on 1 May 2014 holding a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (573 Visa) issued under the Migration Act 1958 (Cth) (Act). On 16 September 2014 a delegate of the first respondent (Delegate) cancelled the 573 Visa. The then-named Migration Review Tribunal (Tribunal) affirmed the Delegate’s decision.

3    The applicant made an application to the Federal Circuit Court for judicial review of the Tribunal’s decision. The Minister applied for an order that the applicant’s judicial review application be dismissed pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules). The Federal Circuit Court allowed the Minister’s application on the basis that the application for judicial review did not raise an arguable case for the relief claimed.

4    The judgment of the Federal Circuit Court is interlocutory: r 44.12(2) of the FCCA Rules. The applicant requires leave to appeal from the judgment: ss 24(1)(d) and 24(1)(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

5    The applicant filed a Notice of Appeal in this Court on 29 December 2015. No formal application for leave to appeal was filed. On 4 May 2016, this Court heard argument from the parties both as to the grant of leave and as to the substantive merits of the appeal.

6    For the reasons given below, the application for leave to appeal from the judgment of the Federal Circuit Court should be allowed, and the appeal allowed in part.

Background

7    The 573 Visa had been granted to the applicant on 25 April 2014, that is, prior to his arrival in Australia. In support of his application for the 573 Visa, the applicant provided confirmation of his enrolment in a Diploma of Information Technology and a Bachelor of Information Technology at Queensland University of Technology (QUT) in Brisbane.

8    The applicant never commenced his studies at QUT. QUT cancelled the applicant’s enrolment on 12 May 2014. It subsequently refunded the applicant’s tuition fees.

9    On 13 June 2014, the applicant applied for another visa. That application was for a Vocational Education and Training Sector (subclass 572) visa (572 Visa). In that application, he stated that he intended to study a Diploma of Website Development through a training provider trading as Institute of Technology Australia, situated in Adelaide.

10    A delegate of the first respondent refused the applicant’s application for the 572 Visa. The application was refused on the basis that the applicant did not meet the criteria for the 572 Visa because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student: see subclause 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate placed significant weight on the applicant’s “changes of migration and study intent”. The applicant did not make any application for review of the delegate’s decision to refuse his application for the 572 Visa.

11    The subsequent and separate decision to cancel the applicant’s 573 Visa was made pursuant to s 116(1)(b) of the Act. It provides:

116 Power to cancel

(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; …

12    The Delegate determined that the applicant had not complied with a condition of the 573 Visa that required that he continue to be a person who would satisfy the criteria for the grant of that visa. The relevant condition is specified in Item 8516 of Schedule 8 to the Regulations. It applies to the 573 Visa by virtue of subclause 573.611 of Schedule 2 of the Regulations. I will refer to it as condition 8516.

13    The Delegate held that the applicant did not comply with condition 8516 because he was no longer enrolled in the QUT courses or any course that would satisfy the criteria for the grant of a 573 Visa.

14    At the time of the Delegate’s decision, and at the time of the Tribunal’s decision there was evidence demonstrating that the applicant retained a certificate of enrolment in the Diploma of Website Development that had formed the subject matter of his unsuccessful 572 Visa application. That enrolment forms an important part of the background to this appeal.

The Tribunal’s decision

15    The Tribunal noted that prior to cancelling the 573 Visa, the Delegate had issued the applicant with a notice pursuant to s 119 of the Act dated 5 September 2014. The notice invited the applicant to respond to a number of issues, including the question of whether or not he had complied with condition 8516. The applicant did not respond to the notice. He told the Tribunal that he did not appreciate he was required to respond.

16    The Tribunal found that the applicant did not, at the time of its decision, satisfy the criteria specified in cl 573.223(1A) or cl 573.231 to Schedule 2 of the Regulations. Those subclauses provide (emphasis added):

573.223

(1)    The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

….

(1A)    If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

(a)    the applicant gives the Minister evidence that the applicant has:

(i)    a level of English language proficiency that satisfies the applicant’s eligible education provider; and

(ii)    educational qualifications required by the eligible education provider; and

(b)    the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii)    any other relevant matter; and

(c)    the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

(i)    the costs and expenses required to support the applicant during the proposed stay in Australia; and

(ii)    the costs and expenses required to support each member (if any) of the applicant’s family unit.

…

573.231

If subclause 573.223(1A) does not apply:

(a)    the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

(b)    the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

(i)    made under regulation 1.40A; and

(ii)    in force at the time the application was made.

17    As I have mentioned, at the time of the Tribunal’s decision, the applicant was enrolled in a Diploma of Website Development. It is implicit in the Tribunal’s reasons that the Tribunal did not consider that course to be a “higher education course” for the purpose of cl 573.231 of the Regulations. The Tribunal noted that, as a result of the applicant not being enrolled in a “higher education course” the applicant was in breach of condition 8516, and that a ground therefore existed for the cancellation of 573 Visa. It went on to find that:

(1)    the breach of condition 8516 occurred in circumstances where the applicant had been lonely and homesick, and had relocated from Brisbane to Adelaide on the advice of friends who were “worried about him”;

(2)    the applicant was aware that the condition attached to his visa, but did not seek professional advice from the Department before withdrawing from the QUT courses and relocating to Adelaide;

(3)    the applicant had not sought to enrol in a higher education course after relocating to Adelaide, which would have been consistent with the requirements of condition 8516;

(4)    if the Delegate’s decision was set aside, the applicant would remain in breach of condition 8516;

(5)    the applicant’s non-compliance with condition 8516 did not occur in circumstances that were beyond the applicant’s control and there were no extenuating or compassionate circumstances.

The proceedings in the Federal Circuit Court

18    Section 476(1) of the Act confers on the Federal Circuit Court the same original jurisdiction in relation to the Tribunal’s decision as the High Court has under s 75(v) of the Constitution. The remedies sought by the applicant in the Federal Circuit Court were only available if the applicant could show that the Tribunal made a jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76], 508 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

19    In his application for judicial review before the Federal Circuit Court, the applicant relied on the following grounds (original spelling and grammar retained):

Tribunal member refused my case stating that he is not satisfied that breach occurred in exceptional circumstances that were beyond my control. In paragraph 15 of the decision I clearly had stated that I was home sick, depressed and was unable to cope up with the studies. ‘15. At hearing, the applicant explained that he had studied computers in India and had always wanted to study IT. However, after arriving in Queensland, he found that he was very lonely and homesick. He comes from a small town in India where his father is a dairy farmer and his mother has a beauty salon. He is the oldest of three children. He is unmarried and has no children.’ But tribunal stated that ‘The Tribunal does not consider that the breach of condition 8516 occurred in circumstances beyond the applicant’s control. It is the primary responsibility of the applicant to ensure that he meets the terms and conditions of his visa. The Tribunal is not satisfied there are extenuating or compassionate circumstances in this case.’ Tribunal clearly failed to put weight on my mental status. I always did the right thing. I applied for subclass 572 visa as I had decided to study diploma due to depression and finding existing course hard but tribunal did not out [sic] enough weight on this fact that I was depressed which is beyond my control and made error in decision.

20    In its filed Response in the Federal Circuit Court, the first respondent alleged that the application for judicial review impermissibly invited the Federal Circuit Court to undertake a merits review of the Tribunal’s decision, that the application did not establish any jurisdictional error in the decision of the Tribunal, and that the application should be dismissed pursuant to r 44.12 of the FCCA Rules because it did not raise an arguable case for the relief claimed.

21    The first respondent’s application pursuant to r 44.12 of the FCCA Rules came before the Federal Circuit Court Judge on 16 December 2015. The learned Federal Circuit Court Judge summarised the applicant’s ground of review as follows (at [2]):

(1)    The applicant complains that the Tribunal erred in finding that his breach of condition 8516 of his visa did not occur in exceptional circumstances that were beyond his control.

(2)    The Tribunal erred in failing to give sufficient weight to his mental status, the fact that his claimed depression was beyond his control, and the fact that he had unsuccessfully supplied [sic applied] for a subclass 572 visa.

22    It was not contended by either party before the Federal Circuit Court or before this Court on this appeal that grounds of review should not have been fairly understood in that way.

23    Rule 44.12 of the FCCA Rules provides:

Show cause hearing

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)     if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed--adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

24    At [6] of his reasons, the learned Federal Circuit Court Judge said, of this rule:

[6]    For the purpose of a show cause hearing, I am confined by r.44.13(1) of the Rules to considering the relief sought and the grounds mentioned in his application. There has been no application made by the applicant to amend his application. As I explained to the applicant, the purpose of this hearing is to give him an opportunity to satisfy the Court, if he is able to do so, that he has an arguable case that the decision of the Tribunal has been affected by jurisdictional error. I explained to the applicant at the commencement of these proceedings what was meant by the term jurisdictional error. I remind myself that an arguable case means simply that, and that the applicant is not required to finally satisfy the Court that the relief he seeks should be granted. …

25    At [13] – [15] of his reasons, the learned Federal Circuit Court Judge said:

[13]    I have considered the ground advanced by the applicant, the decision record of the Migration Review Tribunal, and the submissions made by both the applicant and the first respondent. I am not satisfied the applicant has established that he has an arguable case that he is entitled to the relief that he seeks. In effect, the applicant seeks to have this court engage in an impermissible merits review. The question of the weight to be given to the factors identified by the applicant as the extenuating personal circumstances that called for compassion was entirely a matter for the Tribunal.

[14]    I have had regard to the decision of the High Court in the Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 and the authority cited by the first respondent in its Outline of Submissions, Tran v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297. Both of those authorities support this proposition.

[15]    Taking the applicant’s ground for review at its broadest, there is no arguable case that the Tribunal has failed to have regard to a relevant matter or relied on any irrelevant matter in making the decision that it did. There is no arguable case that the decision was irrational, unreasonable or illogical.

The grant of leave to appeal

26    This Court’s discretion to grant leave to appeal from an interlocutory judgment is unfettered: SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052 [12] (Flick J). In Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564, French J (as he then was) said that the policy underlying s 24(1A) of the FCA Act was plain:

The time and resources of the Court and the parties should not likely be taken up with appeals about decisions in connection with proceedings that do not finally determined the rights of the parties.

27    In the present case, the circumstance that the judgment of the Federal Circuit Court had the practical effect of bringing an end to the proceedings before that Court is a relevant consideration weighing in favour of the grant of leave. As explained by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor Corporation) (at 400):

When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice - concerning which the High Court has given (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 171) a strong warning that ‘a tight rein’ should be kept on appeals - and an interlocutory decision determining a substantive right - where leave will more readily be granted.

28    The two major considerations guiding the exercise of the Court’s discretion are, first, whether, in all of the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal and, second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation (at 398-399). These considerations, necessarily, bear upon each other.

The Grounds of Appeal

29    The proposed grounds of appeal were not stated on the draft Notice of Appeal. Three proposed grounds were expressed in an affidavit sworn by the applicant as follows (reproduced verbatim):

1.    I am the Applicant and I am authorised to make this affidavit.

2.    There is jurdictional error in the tribunals judgment.

3.    Tribunal made many errors in its decision. Tribunal clearly failed to understand the clause in migration act of genuine student. As an International student I should have the right to choose my course of study. I came to Australia to study bachelors in Information technology and later realised that course is very hard and was home sick as well. I came to Adelaide from Brisbane and took admission to study diploma in related course so in future I can study bachelors. I did everything right and what I felt like. I am a student and paying for my course. I exercised my basic right to do what I feellike. Department and Tribunal has misinterpreted the definition of genuine student and put wrong condition on student visa which led to refusal to my basic right as a consumer. They have violated my basic right of consumer and hence there is error in its decision. I explained Court my stand but the Respected Judge failed to figure out jurdictional error. I feel judgment is made on wrong grounds.

30    The first thing to be observed about these grounds is that they seek to challenge the Tribunal’s decision on grounds that differ from those relied upon in the Federal Circuit Court. No formal application has been made before this Court to introduce on the proposed appeal grounds of review that were not raised in the Federal Circuit Court. To the extent that the task of this Court on the application for leave to appeal involves an assessment of the prospects of the success on appeal, I take into account the applicant’s prospects of successfully applying, on the appeal, to introduce new grounds. I consider the applicant’s prospects in that regard to be hopeless, especially in light of the nature of the power exercised by the Federal Circuit Court, the principles governing its exercise and the prescription in r 44.13(1) of the FCCA Rules. The task of this Court on appeal is not to engage in its own judicial review of the Tribunal’s decision. Rather, its task is to discern whether there is appealable error in the judgment appealed from.

31    In the circumstances, I have proceeded on the basis that the permissible ground of appeal before this Court is that specified in paragraph 2 of the grounds, understood narrowly to allege that the Federal Circuit Court erred in failing to identify any jurisdictional errors that had been raised in the grounds of review before that Court.

Consideration

32    In determining whether the decision of the Federal Circuit Court is attended with sufficient doubt to warrant the grant of leave, careful attention should be given to the requirements of r 44.12 of the FCCA Rules and the high threshold an applicant for relief under that rule must overcome. The test in the Federal Circuit Court was not so much whether the alleged errors of the Tribunal had been made and were properly described as jurisdictional errors. Rather, the test was whether it was arguable that the errors had been made arguable that they could be so described.

33    The power conferred under r 44.12 of the FCCA Rules is similar to the power of this Court to enter summary judgment against a party pursuant to s 31A of the FCA Act or r 26.01 of the Federal Court Rules 2011 (Cth). Such a power is to be “sparingly employed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (Barwick CJ). The power should only be exercised in cases that are so obviously groundless that they could not, on any reasonable view, succeed: see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90-92 (Dixon J).

34    As I have said, in determining the first respondent’s application made pursuant to r 44.12 of the FCCA Rules, the Federal Circuit Court was confined to considering the relief sought by the applicant and the grounds mentioned in his application: see r 44.13(1) of the FCCA Rules. Further, as Logan J recently explained in BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 (BHK) (at [15]):

… it was not, under our system of justice, the function of the learned Federal Circuit Court judge himself to identify the jurisdictional error. It was his Honour’s function, as I have already mentioned, fairly to read the grounds of alleged jurisdictional error. Were there an arguable ground revealed, it was then his Honour’s function to hear and determine whether that ground was made out. It was not though his Honour’s function to go looking for a ground of review.

35    The task of fairly reading the grounds of alleged jurisdictional error may be one attended with considerable difficulty, particularly (but not exclusively) in cases where the grounds are drafted by an unrepresented litigant. As the learned Federal Circuit Court Judge in the present case recognised, the task is one concerned with substance and fairness rather than form. Nothing said by Logan J in BHK precludes a court, on judicial review, from paraphrasing with the concurrence of the parties, its own fair reading of a poorly-cast ground of review, to distil the substance of the applicant’s case from the form of words that the applicant has employed. Ordinarily, the Court may readily infer that the errors alleged by the applicant are intended to be read as allegations of the kind of errors that would sound in a remedy that the Court has the jurisdiction to grant. The very making of the application by the applicant in that particular Court may support such an inference in any given case.

36    In circumstances where the grounds of review are expressed in terms that are ambiguous or otherwise embarrassing, a respondent may apply for relief by way of better particulars or by the striking out of one or more grounds as being defective as a matter of form. No such application was made by the first respondent in the present case. The first respondent acceded to the Federal Circuit Court’s reading of the applicant’s grounds of review as expressed at [2(2)] of the reasons of the learned Judge. Although the expression “jurisdictional error” is not there used, it is apparent that the learned Judge proceeded on the assumption that the applicant had alleged that the errors complained of were jurisdictional. He was correct to proceed on that assumption.

37    The learned Federal Circuit Court Judge then proceeded to determine the show cause application by rejecting, as inarguable, the contention that errors in the ascription of weight are properly to be regarded as jurisdictional errors. It is to that issue that I now turn.

38    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) (Hayne, Kiefel and Bell JJ said at 365-6 [72]) (emphasis added, footnote retained):

… in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [FN: (1986) 162 CLR 24 at 41, Gibbs CJ and Dawson J agreeing at 30, 71], Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

39    In light of what was said by the plurality in Li it is not correct to say, in absolute terms, that questions of weight are entirely a matter for an administrative decision maker. The authorities of this Court in which it is stated, without express qualification, that errors affecting the ascription of weight cannot be categorised as “jurisdictional” are, in my opinion, to be understood as being subject to the principles affirmed by the plurality in Li (at [72]) to which I have referred. The earlier decision of the Full Court of this Court in Tran v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 297, on which the learned Federal Circuit Court Judge relied, is an example.

40    In his application for judicial review before the Federal Circuit Court, the applicant complained that the Tribunal had given insufficient weight to the fact that he had applied for a 572 Visa. In the legal context of the show cause application, the Federal Circuit Court was required to determine whether it was arguable that the 572 Visa application was relevant and, if so, whether it was arguable that the Tribunal failed to ascribe sufficient weight to that factor and, if so, and whether any such failure could arguably be characterised as a jurisdictional error.

41    The applicant had applied for the 572 Visa in circumstances where he had secured enrolment in a Diploma of Website Development. In determining that this ground of review did not raise an arguable case for the relief claimed, it was necessary for the learned Federal Circuit Court Judge to make a proper assessment of the importance of the fact and circumstances of the applicant’s application for the 572 Visa by reference to the scope and purpose of the statute. This is particularly so, having regard to the evidence before the Tribunal (not rejected by it) that at the time of the Minister’s decision to cancel the 573 Visa, the applicant retained a certificate of enrolment in a Diploma of Website Development. The Tribunal’s reasoning proceeds from an assumption that the applicant’s enrolment in that course did not satisfy the requirement for the 573 Visa. There is no consideration given in the reasons of the Tribunal to the correctness of that assumption. Moreover, the nature of the course in which the applicant remained enrolled was a consideration relevant to the Minister’s assessment of the seriousness of the applicant’s breach of condition 8516. It is, in my opinion, at least arguable that these two questions are of sufficient importance so as to attract the principles stated by the High Court in Li, notwithstanding that the ground of review before the Federal Circuit Court was cast in terms of a complaint going to considerations of weight. The applicant’s complaint of considerations going to weight must fairly be taken to involve an allegation of jurisdictional error so as to require the Federal Circuit Court to determine where there was an arguable basis for the relief claimed by reason of what was said by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at [41], as affirmed in Li.

42    As to the question of whether the course in which the applicant remained enrolled would, in any event, satisfy the definition of a “higher education course” for the purposes of the Act, in my opinion, a further arguable issue fell for determination by the Federal Circuit Court. It is a question that goes to a jurisdictional fact conditioning the exercise of the Minister’s power to cancel the 573 Visa at all and which, in any event, was relevant to the Minister’s assessment of the seriousness of the applicant’s alleged breach of condition 8516.

43    It is, in my opinion, arguable that the Diploma in which the applicant remained enrolled was a “higher education course”. The argument may be briefly stated. A “higher education course” includes a course specified in an instrument made under reg 1.40A of the Regulations: see cl 573.231 (1A)(b) of Sch 2 to the Regulations extracted at [16] of these reasons. At the time of the Minister’s decision to cancel the applicant’s 573 Visa, a “higher education course” was specified, in such an instrument, to include a “Diploma (Higher Education)”: see Instrument IMMI 14/015 titled Types of Courses for Student Visas. The instrument also specifies a “Diploma (Vocational Education and Training)” to be a course for the purposes of a Subclass 572 (Vocational Education and Training Sector) visa. The instrument, unhelpfully, gives no guidance as to which of those two descriptions apply to any particular Diploma course. In the context of the present case, it does not assist a decision-maker to determine whether the applicant’s Diploma has the characteristic of a “Higher Education” Diploma or “Vocational Education and Training” Diploma. There is room for argument in and around that.

44    In the proceedings in this Court, the Minister contended that a Diploma in Website Development should be regarded as “Diploma (Vocational Education and Training)” within the meaning of the instrument, because that was how it was described by the educational institution offering the course. As I have mentioned, the question of whether the course properly met that description involves a question of construction of the Act and the instrument. It is not a question for the educational institution itself to finally determine. Quite apart from the principles in Li to which I have referred, an error in construction of a legislative instrument is an error that is ordinarily amenable to judicial review.

45    In all of the circumstances, the fact that the applicant made an application for a 572 Visa on the basis of his enrolment in a Diploma in Website Development would, in the performance of the Tribunal’s function of reviewing the decision to cancel the 573 Visa, arguably be a matter of “great importance”, to employ the expression used by Mason J in Peko-Wallsend at [41]. The word “arguably” in this context is to be understood as a reference to the very low threshold of an arguable case for the purposes of r 44.12 of the FCCA Rules. It is arguable, in that sense, that the Diploma was a higher education course such that the Minister did not have the jurisdiction to cancel the applicant’s 573 Visa at all. It is also arguable, in the same sense, that upon any legally reasonable evaluation of the seriousness of the applicant’s breach of condition 8516, an issue of sufficient importance arose as to whether the applicant was enrolled in a Diploma that was no different in substance from a “higher education” Diploma. It is also arguable that in all of the circumstances, it was not reasonably open to the Tribunal to find that the applicant had conceded any question of law in connection with the proper characterisation of a Diploma of Website Development.

46    This Court on appeal makes no determination as to whether the factors I have identified are indeed of such importance that any error in the ascription of weight in determining them might amount to jurisdictional error in the sense explained by Mason J in Peko-Wallsend and reaffirmed by the plurality in Li. It is enough to identify that the issue is arguable.

47    There is appealable error in the Federal Circuit Court’s failure to identify a limited arguable basis for the relief claimed by the applicant. That limited aspect of the applicant’s judicial review application should not have been dismissed summarily and should be remitted to the Federal Circuit Court for hearing and determination. The limited aspect is that referred to at [2(2)] of the reasons of the Federal Circuit Court, but only insofar as the ground of review there paraphrased concerns the fact and circumstances of the applicant’s application for the 572 Visa.

Disposition of the application and the appeal

48    The judgment of the Federal Circuit Court is attended by sufficient doubt to justify the grant of leave to appeal.

49    I will allow the appeal in part.

50    Rule 44.12(2) of the FCCA Rules provides that if the Federal Circuit Court is satisfied that an application raises an arguable case for the relief claimed, the Federal Circuit Court may adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court.

51    In all of the circumstances, it is appropriate to set aside the judgment of the Federal Circuit Court and to make ancillary orders pursuant to s 28(1)(b) of the FCA Act providing for the final determination of only that part of the applicant’s application for judicial review that raises an arguable basis for relief as specified in my orders.

52    I will hear the parties further as to costs.

Associate:

Dated:    31 May 2016