FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2018] FCA 29

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    This is an appeal against the judgment of the Federal Circuit Court (the FCC) in Singh v Minister for Immigration [2017] FCCA 1008. By that judgment, the FCC dismissed the Appellant’s application for judicial review of a decision of the former Migration Review Tribunal (MRT) made on 25 February 2015.

2    The full history of the proceedings is set out in some detail in the FCC judgment. In these reasons, I will recount only those parts of the history which are necessary for the disposition of the appeal.

3    The Appellant is a national of India. On 25 April 2014, he was granted a Student (Subclass 573) visa and entered Australia on 1 May 2014. His intention at that time was to undertake a Bachelor of Information Technology course at the Queensland University of Technology in Brisbane (QUT). However, the Appellant did not commence that course. Instead, he moved to Adelaide and enrolled in a course for a Diploma of Website Development provided by Universal Network of Infotech Pty Ltd, which traded as “Institute of Technology Australia”. That course was scheduled to commence on 9 June 2014.

4    On 13 June 2014, the Appellant applied for a Student (Subclass 572) visa. That application was refused by a delegate of the Minister on 4 August 2014. The Appellant did not seek review of that decision.

5    Clause 572 of the Regulations provides that a Subclass 572 visa is for students studying in the “Vocational Education and Training Sector”. It contrasts with cl 573 which provides that a Subclass 573 visa is for students studying in the “Higher Education Sector”.

6    In his Statement of Purpose in support of the application for the Subclass 572 visa, the Appellant explained that he had been lonely and homesick in Brisbane and had wished to move to Adelaide because of family connections. He also explained that the Diploma of Website Development involved a two year course in contrast to the three year Bachelor degree at QUT. The delegate of the Minister who refused the application for the Subclass 572 visa accepted that the course of study at the Institute of Technology Australia was in the Vocational Education Sector and not the Higher Education Sector.

7    On 5 September 2014, the Department of Immigration and Border Protection (the Department) served on the Appellant notice of its intention to consider, under s 116 of the Migration Act 1958 (Cth) (the Act), cancellation of his Student (Subclass 573) visa. The Appellant did not respond to that notice and the visa was cancelled on 16 September 2014.

8    The Appellant then sought review of the cancellation decision in the MRT but was unsuccessful. His application to the FCC under s 476 of the Act for judicial review of that decision was also unsuccessful: Singh v Minister for Immigration [2015] FCCA 3486. However, the Appellant’s appeal to this Court against that judgment of the FCC succeeded in part, and the matter was remitted to the FCC for further consideration: Singh v Minister for Immigration and Border Protection [2016] FCA 611.

9    On the rehearing in the FCC, the Applicant was again unsuccessful: Singh v Minister for Immigration [2017] FCCA 1008. It is from that decision that the Appellant brings the present appeal.

The criteria for the Subclass 573 visa

10    Under the Migration Regulations 1994 (Cth) (the Regulations) in force in April 2014, the criteria for a Subclass 573 visa which the Appellant had to satisfy were those in Sch 2 in subcl 573.223(1A) or in subcl 573.231 of Sch 2.

11    Clause 573.223(1A) provided:

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)    …

(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 condition subject to which the visa is granted; and

(ii)    any other relevant matter; and

(c)    …

12    As can be seen, cl 573.223(1A) applied to an applicant who was “an eligible higher degree student”. That term was defined in cl 573.111 of the Regulations as follows:

eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

(a)    the applicant is enrolled in a principal course of study for the award of:

(ia)    an advanced diploma in the higher education sector; or

(i)    a bachelor’s degree; or

(ii)    a masters degree by coursework;

(b)    the principal course of study is provided by an eligible education provider;

(c)    if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

(i)    the applicant is also enrolled in that course; and

(ii)    that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

13    The term “eligible education provider” used in subpara (b) of the definition of “eligible higher degree student” was defined in cl 573.111 to mean:

[A]n education provider specified as an eligible education provider in an instrument made under clause 573.112.

14    The alternative criteria, contained in subcl 573.231, were as follows:

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.

15    By an instrument made on 16 March 2014 under reg 1.40A, of the kind contemplated by cl 573.231(b)(i), the Minister specified the following course types for Subclass 573 (Higher Education Sector) visas:

    Diploma (Higher Education);

    Advanced Diploma (Higher Education);

    Bachelor Degree;

    Graduate Certificate (Higher Education);

    Graduate Diploma (Higher Education);

    Associate Degree; and

    Masters by Coursework.

16    Section 41 of the Act provided that regulations made under the Act could specify conditions to which visas are subject. Regulation 2.05 stipulated a number of conditions applicable to the various classes of visa. By cl 573.611 in Sch 2, Condition 8516 was made a condition of a Subclass 573 visa. Condition 8516 was as follows:

The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

17    QUT is an “eligible education provider”. Accordingly, the Appellant’s enrolment in the Bachelor of Information Technology course at QUT meant that he satisfied the definition of “eligible higher degree student” and in turn the requirements of cl 573.223(1A).

18    However, the Appellant’s cancellation of that enrolment meant that he could not continue to rely on it to satisfy the visa criteria as required by Condition 8516. That meant that the Appellant’s continuing entitlement to the Subclass 573 visa depended, amongst other things, on Institute of Technology Australia being an “eligible education provider” or, if it was not, on the Appellant satisfying the criteria in cl 573.231.

The MRT decision

19    The MRT member was satisfied that grounds for cancellation existed. The member’s reasoning appears in the following paragraphs:

[12]    Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student within the terms and requirements of cl. 573.111, cl.573.112 and cl. 572.223(1A) … If the applicant is not an eligible higher degree student, the applicant must meet cl. 573.231 … which requires that he is enrolled in, or the subject of a current offer of enrolment in, a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application.

…

[23]    The applicant acknowledged at the hearing that he was no longer enrolled in a higher education course as his principal course, which is a requirement of cl. 573.231 or, alternatively, cl. 573.223(1A). The delegate in the Decision Record also found that, based on the Government’s enrolment records, the applicant no longer met the requirements of either cl. 573.223(1A) or cl. 573.231.

[24]    For these reasons the Tribunal is satisfied that the applicant does not continue to be a person who would satisfy the primary criteria (cl. 573.223(1A) or cl. 573.231) for a grant of a visa and has therefore breached Condition 8516. …

20    As can be seen, the MRT member appears to have relied principally on the Appellant’s concession that he was no longer enrolled in a “higher education course” as his principal course. As that term does not appear in either cl 573.223(1A) or cl 573.231, the MRT member may have been using it as a shorthand expression for the criteria specified in those clauses. In any event, the MRT found that the Appellant did not satisfy either of the two alternative sets of criteria.

21    The MRT then discussed discretionary matters and concluded that visa cancellation was appropriate.

The Federal Court decision of 31 May 2016

22    As previously noted, the Appellant’s application for judicial review in the FCC failed. It was dismissed in the exercise of the FCC’s power pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). Charlesworth J in this Court allowed the appeal against that decision because her Honour considered it arguable that the course of the Diploma of Website Development may have been a course for a “Diploma (Higher Education)” of the kind specified in the instrument made by the Minister on 16 March 2014, with the consequence that the Appellant’s enrolment in that course meant that he had continued to satisfy the Subclass 573 criteria, and with the further consequence that the Minister’s power of cancellation of the Subclass 573 visa had not been enlivened, at [45]. Her Honour considered that the Appellant’s concession in the Tribunal, if one of law, did not foreclose the issue. Charlesworth J also considered that it was reasonably arguable that regard had not been had to the circumstances of the Appellant’s application for the Subclass 572 visa, with the consequence that it may have been reasonably arguable that the MRT decision was legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, at [45]. For those reasons, her Honour remitted the matter to the FCC for further hearing and determination but confined the remittal to “the fact and circumstances of the applicant’s application for the 572 visa”.

The second FCC decision

23    Although the second FCC Judge recognised the basis upon which the matter had been remitted to the FCC, at [46]-[47], he did not determine the matter by reference to those considerations. The Judge’s approach is evident in the following paragraphs of his reasons:

[71]    However, in my view, the determination of the Tribunal turned not on clause 573.231(1A)(b) but on clause 573.223(1)(A) read in conjunction with condition 8516, which requires on-going adherence to a primary criterion not merely at the time of application but throughout the period a visa is current.

[72]    Clause 573.223(1A) requires an applicant for a 573 higher education visa to have a confirmation of enrolment in course of study as an eligible higher degree student. This calls in the definition contained in clause 573.111 and 573.112. The Diploma of Website Development is not a course leading to the conferral of a bachelor’s degree or a master’s degree by casework. The Institute of Technology Australia is not an eligible education provider in the terms envisaged by clause 573.112. At the time, Mr Singh’s visa was cancelled, he was no longer enrolled at QUT, which is and was an eligible education provider.

[73]    Accordingly, in my view, there is no jurisdictional error attaching to the Tribunal’s determination that the applicant had breached the conditions attaching to his clause 573 higher education visa by ceasing his enrolment at QUT. It was a decision within the Tribunal’s jurisdiction and one which was open to it on the evidence available.

(Emphasis in the original)

24    As can be seen, the FCC Judge addressed only the criteria specified in cl 573.223(1A) and Condition 8516. He did not address the cl 573.231 criteria and the issue of whether the Appellant’s enrolment in the course for a Diploma of Website Development offered by Institute of Technology Australia could satisfy those criteria, nor the issue of legal unreasonableness.

25    The FCC Judge then considered the MRT’s exercise of the discretion and found that it was not affected by any jurisdictional error. Hence, the judicial review application failed for a second time.

The grounds of appeal

26    The Appellant represented himself on the appeal, as he had in the earlier proceedings. The grounds stated in his Notice of Appeal are as follows:

2.    There is jurisdictional error in the tribunal’s 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 paying for my course. I exercised my basic right to do what I feel like. 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 jurisdictional error. I feel judgment is made on wrong grounds. Now department has realised the mistake and under new migration law change for students all students who come to study either diploma or degree courses get subclass 500 visa. My application comes under old rule where law was constructed/written in wrong form and there were two different subclass 572 and 573 for students to study different courses and created lot of problems. My visa had been denied on wrong grounds. Department has rectified mistake in law and is being fair for new students, it has to be fair to me as well.

27    These grounds do not come to grips with three matters: first, the basis upon which the MRT affirmed the cancellation decision (the appellant no longer satisfied the Subclass 573 criteria); secondly, identifying an error in the reasons of the FCC Judge (the grounds amounted in effect to no more than an assertion that the Judge had failed to “figure out” the unidentified jurisdictional error by the MRT); and, thirdly, raising any complaint concerning the FCC’s omission to consider the basis for the remittal of the matter to that Court.

Consideration

28    I raised with counsel for the Minister whether the fact that the FCC Judge had not, in the second hearing in the FCC, addressed the cl 573.231 criteria meant that there had been error, even though not an error identified by the Appellant in his grounds of appeal. I also raised with the parties that the present hearing was the fourth in the Appellant’s pursuit of judicial review of the MRT’s decision and suggested that the interests of finality in litigation made any further remittal undesirable. I then invited counsel for the Minister to consider whether the issues which had been of concern to Charlesworth J could be addressed in the course of the present hearing, subject to the Court being provided with, or otherwise being permitted to have regard to, legislative instruments bearing upon the Diploma of Website Development course conducted by Institute of Technology Australia. I adjourned the hearing to allow the parties to consider those matters.

29    At the resumed hearing, the Appellant did not refer to any legislative instruments nor seek to adduce further evidence. Counsel for the Minister did seek, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), to adduce further evidence. Relevantly, this evidence comprised an affidavit of Qing Zahn, an Assistant Director in the Student and Graduate Visas Section of the Department of Immigration and Border Protection and two instruments made by the Assistant Minister. These were IMMI14/047 and IMMI14/015 which concerned the Diploma of Website Development course and the Institute of Technology Australia.

30    I considered it appropriate to admit this evidence in the interests of the administration of justice and, in particular, in the interests of achieving finality in the litigation. I took into account that the material could (and should) have been adduced in the FCC but considered that that consideration was outweighed by the non-contentious nature of the material, its materiality to the issues in dispute and, as indicated, the public interest in the finality of litigation: see generally, CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at [107]-[111]. The admission of the Ministerial instruments into evidence made it unnecessary to consider whether the Court could in any event, have had regard to them pursuant to s 143(1) of the Evidence Act 1995 (Cth).

31    The assessment of the Diploma of Website Development course is to be made having regard to the integrated statutory scheme for which the Migration Act and the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) provide. A stated object of the ESOS Act is to complement Australia’s migration laws by ensuring that institutions providing courses of educational training to holders of student visas collect and report information relevant to the administration of the law relating to “student visas”: see s 4A(c) of the ESOS Act. In Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22, the High Court outlined the statutory scheme in some detail, at [6]-[15]. It is not necessary for present purposes to repeat the detail of that scheme.

32    A number of matters indicate that the Diploma of Website Development course cannot reasonably be understood as a course for a Diploma (Higher Education) so that the Appellant’s enrolment in that course could satisfy the cl 573 criteria. First, Institute of Technology Australia was not included in the list of education providers specified by the Minister in IMMI14/047 for the purposes of cl 573. Accordingly, it could not be an “eligible education provider” for the purposes of the subcl 573.223(1A) criteria.

33    Secondly, it was the Australian Skills Quality Authority (ASQA), the entity with responsibility under the ESOS Act for Australia’s vocational education and training (VET) sector, which approved the Diploma of Website Development course at the Institute of Technology Australia. ASQA could (and did) approve the Diploma of Website Development course only as a VET course. The course has not been approved as a higher education course.

34    Thirdly, the Overseas Student Confirmation of Enrolment completed by the Institute of Technology Australia on 26 May 2014 in accordance with its obligations under the ESOS Act in respect of the Appellant’s enrolment identified the “course sector” of the Diploma of Website Development as “VET”. It did not identify the course as a higher education course.

35    Fourthly, the Diploma (Higher Education) course specified in IMMI14/015 made by the Assistant Minister on 16 March 2014 relates to only Subclass 573 (the Higher Education Sector) and not Subclass 572 (the Vocational Education and Training Sector).

36    Fifthly, the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records the Diploma of Website Development as a VET course.

37    Finally, there is no evidence that the Diploma of Website Development has ever been approved as a Diploma (Higher Education) course in the Higher Education Sector.

38    In these circumstances, it is plain that grounds for cancellation of the Appellant’s Subclass 573 visa existed. No error in the MRT’s conclusion on that question has been shown. Further, as already noted, the Appellant had acknowledged in the MRT that he had commenced a VET course. It was because he had commenced a VET course that he had applied for a Subclass 572 visa (being the visa appropriate for those studying VET courses).

39    As noted earlier, the MRT considered separately the exercise of the discretion to cancel the visa, under s 116 of the Migration Act. The Appellant’s grounds of appeal, set out earlier, indicate his dissatisfaction with the MRT’s decision on that question. The question for this Court, however, is whether or not there is any error identifiable in the FCC judgment on that question. Because the FCC Judge did not consider all the matters remitted to that Court for consideration, I have reviewed afresh the MRT’s exercise of the discretion. On that reconsideration, I have reached the same conclusion as did the FCC Judge. It is apparent that the MRT considered the various mitigating factors which the Appellant had put forward including his personal circumstances, the reasons for his change of course, the hardship which he perceives he will suffer by reason of the visa cancellation and the frustration of his wish to study Information Technology in Australia. I have not been able to identify any matter in the MRT’s consideration of the exercise of the discretion which could constitute jurisdictional error.

40    Furthermore, it is not possible, in my opinion, for the MRT decision to be characterised as legally unreasonable. On the contrary, the decision is readily understandable in the circumstances. This is not a case in which the Appellant’s non-compliance with the cl 573 criteria was of short duration only. At the time of the MRT decision, the Appellant’s breach of his visa conditions was still continuing.

41    To the extent that the Appellant’s grounds of appeal raise other matters, they are not within the scope of judicial review and accordingly lack merit.

Conclusion

42    For these reasons, the appeal is dismissed. I will hear from the parties as to costs.

Associate:

Dated:    31 January 2018