FEDERAL COURT OF AUSTRALIA

Sidhu v Minster for Immigration and Border Protection [2019] FCA 1504

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    This is an appeal from the Federal Circuit Court of Australia in Sidhu v Minister for Immigration & Anor [2018] FCCA 2763. The primary judge affirmed a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to cancel the appellant’s student (temporary) (class TU) (subclass 573) Higher Education visa.

Background

2    On 20 December 2013 the appellant, a citizen of India, applied for the visa. The visa was granted on 28 January 2014 on the basis that the appellant study for a Diploma of Information Technology and a Bachelor of Information Technology at Victoria University. The visa was made subject, by operation of condition 8516 attached to the visa, to the appellant’s continued enrolment in an eligible course in satisfaction of sub-clauses 573.231 or 573.223(1A) of the Migration Regulations 1994 (Cth). The Bachelor of Information Technology was an eligible course.

3    On 9 September 2014 the appellant withdrew from these courses and his enrolment was cancelled.

4    As a result of the appellant’s withdrawal, on 17 October 2014 a delegate of the Minister sent the appellant a notice of intention to consider cancellation of the visa under s 116 of the Migration Act 1958 (Cth). The notice of intention set out the two-step process to be followed in determining whether to cancel the appellant’s visa. Firstly, whether the power to cancel exists under s 116, and second whether the discretion to not cancel the visa should be exercised in the appellant’s favour. The notice of intention also set out several matters which would be taken into account in making these decisions.

5    On 23 October 2014 the appellant responded to the notice of intention, explaining the course of events leading to his withdrawal from the eligible courses. The appellant stated that he had only studied the information technology courses as that was his parents’ preference, but despite having attended all classes, found the courses hard. He approached Victoria University to seek to transfer to a commercial cookery course but was informed the University did not offer such a course. He then withdrew from the eligible course and enrolled in a certificate level course in commercial cookery at a different institution.

6    The appellant attached to his response a confirmation of enrolment certificate dated 23 October 2014 for a Bachelor of Business course at Holmes Institute, and a receipt dated 22 October 2014 from the Australian College of Trade indicating his enrolment in Certificates 3 and 4 in Commercial Cookery. Despite these enrolments, the appellant was not enrolled in an eligible course between 9 September 2014 and 23 October 2014. Further, as was noted by the Minister and the Tribunal, these courses were enrolled in after the appellant received the notice of intention.

7    On 30 January 2015 a delegate of the Minister wrote to the appellant indicating that the delegate had decided to cancel the visa under s 116(1)(b) of the Act for non-compliance with condition 8516 requiring the appellant to be a person who would relevantly satisfy either of sub-clauses 573.231 or 573.233(1A), and attaching a Decision Record of the delegate’s decision. The Decision Record stated that the cancellation power was enlivened as the appellant was not enrolled in an eligible course for the period between 9 September 2014 and 17 October 2014 (being the date of the notice of intention). Further, the delegate was not satisfied that the appellant intended to study at the higher degree level in Australia, as is the purpose of the subclass 573 visa.

8    On 3 February 2015 the appellant applied for a review of the delegate’s decision in the then Migration Review Tribunal. The Migration Review Tribunal merged with the Tribunal on 1 July 2015. On 17 February the appellant appeared before the Tribunal to provide additional evidence in support of his application. He had also provided submissions in advance of the hearing to which I shall refer below.

9    On 18 February 2016 the Tribunal notified the appellant of its decision to affirm the delegate’s decision, and provided its Decision Record dated 17 February 2016. As mentioned above, the Tribunal noted that the appellant ceased his information technology studies on 9 September 2014, and only enrolled in an eligible higher degree level course after receiving the notice of intention. The Tribunal found that the power to issue the notice of intention had been enlivened by the appellant’s failure to remain enrolled in an eligible course of study.

10    The Tribunal considered whether the discretion not to cancel the visa should be exercised in the appellant’s favour by reference to, but not limited by, the matters identified in the Department of Immigration and Border Protection’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. In addition to the matters in PAM3, the Tribunal considered the appellant’s evidence that he had been misguided by advice from migration agents which had led him to believe he could change courses without being in breach of his visa, and the potential hardship occasioned to him by a cancellation decision. The Tribunal decided not to exercise the discretion in favour of the appellant, as it found that he was not a genuine student at the higher degree level.

11    On 7 March 2016 the appellant made an application for judicial review of the Tribunal’s decision in the Circuit Court. The matter was heard on 12 September 2018. The appellant appeared unrepresented in the Circuit Court. He sought judicial review on six grounds. None of the grounds were particularised. The primary judge rejected each of the grounds of appeal and gave ex tempore reasons at the conclusion of the hearing.

Application for extension of time and judicial review

12    On 11 October 2018 the appellant filed an application for extension of time within which to appeal from the orders of the Circuit Court. At that time, r 36.03 of the Federal Court Rules 2011 (Cth) required that an appeal be filed within 21 days from the handing down of the orders being appealed. The appellant was eight days out of time filing his appeal and accordingly requires leave to appeal.

13    The appellant’s application for leave attached a draft notice of appeal which contained three grounds as follows:

(a)    That the Judge erred in dismissing the review and not according substantial justice to the applicants.

(b)    That the Judge erred in dismissing the appellants without considering the circumstances of the application in entirety.

(c)    My application clearly raises an arguable case as there is a jurisdictional error committed during the hearing as I was not provided natural justice.

(errors in original)

14    The application for an extension of time was listed for hearing on 7 February 2019. Counsel for the Minister opposed the grant of leave, although it was accepted that there was no prejudice to him save for costs. The Minister opposed the application on the basis that the delay was inadequately explained, and that the grounds in the draft notice of appeal were insufficiently particularised to be meaningful.

15    Notwithstanding the Minister’s submissions, I extended the time for filing the notice of appeal to 11 October 2018 and directed the appellant to file and serve any particulars of the grounds of appeal, or any amended grounds of appeal by 21 February 2019, in lieu of which his draft notice of appeal would stand as the grounds of appeal.

16    On 20 February 2019 the appellant filed a document entitled “Amended Grounds of Appeal and Further and Better Particulars”. This document contained two new particularised grounds of appeal. On 13 May 2019 the Minister filed written submissions. As the appellant did not raise either of these grounds before the Circuit Court, leave was required for the appellant to rely upon them.

17    The Minister did not oppose leave, save for one objection to a potential issue raised by particulars (iii) and (iv) to Ground 2. I shall refer below to the opposition to leave in respect of these grounds. For present purposes, it is sufficient to note that the Minister opposed leave on several bases, including that the issue which had been raised could have been dealt with by further evidence and should not be heard unless the Minister is able to lead further evidence: see Coulton v Holcombe (1986) 162 CLR 1, 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); Water Board v Moustakas (1988) 180 CLR 491, 497 [13] (Mason CJ, Wilson, Brennan and Dawson JJ); Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598; 200 ALR 447, 461 [51] (Gleeson CJ, McHugh and Gummow JJ). In advance of the hearing, the Court informed the Minister that he should file any further evidence as may be required in the event that leave were granted to rely upon the new ground. On 15 May 2019 the solicitors for the Minister filed and served an affidavit of Mr Lambert, affirmed that day, in answer the new ground.

18    On 16 May 2019 the appellant filed by email to my chambers a document entitled “submissions” and several other documents concerning the appellant’s studies.

Consideration

Ground 1

19    Ground 1 is a generalised allegation that the Tribunal took into account an irrelevant consideration or failed to take into account a relevant consideration when exercising the discretion available to it to not cancel the visa. This ground was particularised as follows:

  (i)    at paragraph 17 of Federal Circuit Court Judgement, it was mentioned that

"the tribunal considered the degree of hardship that may have been caused to the applicant and his family members if the visa was cancelled, doing so in paragraph 17 of its reasons. The tribunal considered that the applicant and his family might suffer some emotional and financial hardship if the applicant were returned to India. However, the tribunal did not accept that the applicant would be unable to get a job or do further studies in India. Accordingly, the tribunal gave the matter little weight.

(ii)    The Tribunal put insufficient weight on emotional and financial hardship and significant weight on assuming that the applicant would be able to get a job or do further studies in India.

(iii)    The Tribunal and Federal court failed to understand implications of degree of hardship.

(a)    depression

(b)    Medical problems

(c)    Financial Hardship

(d)    Years of Hardship to earn Degree

(e)    Failure to complete course and suicidal thoughts

(iv)     In Storie v Storie the High Court, cited Blunt v. Blunt where Viscount Simon LC held:

"If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal

(Errors in original)

20    In substance the above particulars are directed to the reasons the appellant submits that the Tribunal should have exercised a discretion to not revoke the visa. The matters set out under sub-paragraph (iii) identify the subject matter which the appellant contends was not adequately considered by the Tribunal, more generally alluded to in sub-paragraphs (i), (ii) and (iv). None of the matters listed under sub-paragraph (iii) were mandatory considerations in accordance with PAM3, although some of the factors were considered by the Tribunal as discussed below.

(iii)(a) Depression

21    The Minister submitted:

23.     Depression. In response to questioning from the Tribunal about why he changed courses, the appellant said that he was “under a lot of stress and depression at the time” that he changed courses. However, there is nothing in the materials to suggest that the appellant’s depression was ongoing, or that it was relevant to the hardship that the appellant would suffer by reason of the cancellation of his visa. The appellant also claimed at the hearing that he would suffer emotional hardship if the visa was cancelled, but it is clear that the Tribunal took this into account.

(Appeal book references omitted)

22    The Tribunal considered the potential impact of the cancellation at [18] and [20] of the Decision Record:

18.    I then discussed with the applicant the circumstances relating to the breach and whether he considered these beyond his control. … He said that he was also' depressed. I asked if he had any evidence of his depression and he said he did not, he was just under a lot of stress, he saw agents and lawyers and took their advice. …

I noted to him that what I was raising with him at this point was not about whether he had complied with conditions, but whether he had the intention to study at the higher education level, and I noted that I might take the view that after he left the diploma at VU he stopped having an intention to study at higher education level. He said that he came here to do higher education; he could have done a Diploma in India as well. He said he was under a lot of stress and depression at the time and he dropped to a lower level; that is the certificate III, as that was in a different stream of cookery from IT that is why he had to start at a lower level.

…

20.    I have had regard to the applicant's evidence in relation to the breach [of his study conditions]. I do not accept that the breach was beyond his control - even if I accept his claims about the difficulties he had in studying, the applicant had choices which would not have involved breach of his conditions, such as studying in an area where he could gain enrolment at the Bachelor or Masters level. I accept that he may have been stressed, but I do not accept that he was depressed on the evidence before me, and I do not accept that stress in this circumstance has contributed to the breach - many international students arrive in Australia and may have difficulties with study and pressures from parents, but not all chose to leave their studies and cancel their enrolment. ...

(Emphasis added)

23    It is evident from the above that the Tribunal considered, but rejected, the appellant’s evidence concerning his depression. That finding was open on the evidence before the Tribunal. In my view, there was no legal error in the Tribunal’s finding or in failing to consider evidence before it relevant to this finding.

(iii)(b) Medical problems

24    The second sub-particular makes reference to ‘medical problems’. The Minister submitted:

24.     Medical problems. Other than the reference to being “under a lot of stress and depression at the time” that he changed courses, there is nothing in the materials to indicate that the appellant ever claimed that he suffered from any other medical problem, or that this was relevant to the hardship he would suffer by reason of the cancellation of his visa.

(Appeal book references omitted)

25    The appellant did not refer to any medical problems other than stress and depression considered by the Tribunal in the passages extracted above. There is no evidence that the appellant placed before the Tribunal any other evidence concerning any other medical problems that the Tribunal failed to consider. Accordingly, there is no legal error in relation to the Tribunal’s consideration of the appellant’s medical condition.

(iii)(c) Financial hardship and (d) Years of hardship to earn degree

26    The appellant contends the Tribunal failed to consider or give adequate weight to the financial hardship associated with the appellant’s studies.

27    The Minister submitted:

25.     Financial hardship. It appears from the Tribunal’s decision record that the appellant claimed at the hearing that he would suffer financial hardship if the visa was cancelled, but it is also clear that the Tribunal took this into account.

26.     Years of hardship to earn degree. The appellant did complain that he “wasted previous year of my life” because of the decision to cancel his visa. However, this was dealt with by the Tribunal when it accepted that the appellant would suffer emotional and financial hardship as a result of the cancellation of his visa.

(Footnotes and appeal book references omitted)

28    In the appellant’s written submissions to the Tribunal, he said:

I hope you can understand and see how difficult it is for an international studying to study and complete the course … [n]ot only have I spent thousand of dollars but have wasted previous year of my life not getting into the stress this has given me.

(Errors in original)

29    The Tribunal considered the appellant’s hardship at [17] of the Decision Record:

17.     I asked the applicant about any hardship that cancellation of the visa may cause. He said that there would definitely be hardship. He said that if he had to go back to India and get admission to college there, there has been quite a study gap. He said that he had been here for 2 years, and had wasted a lot of his parents' money and their hopes. I asked if he could not get a job with his current qualification, his diploma of computer science. He said it would be very difficult. He asked why he would have come here to do higher education if there were jobs there. I noted that people make choices about their education and careers, and that does not demonstrate that there are not opportunities in India. I asked if he had worked in Australia or India and he said he had not worked here or there. I have considered the evidence of the applicant. I accept that he, and his parents, would suffer some emotional and financial hardship if the visa remained cancelled and he had to return to India. However, he has a vocational qualification, and I do not accept his arguments, which I consider are not grounded in clear reasons or evidence, that he could not either get a job with this qualification, or seek to do higher studies in India. I accept that the study gap may cause difficulties but I do not accept that it would make further education impossible. I consider that the evidence of the applicant indicates that there would be some hardships, but he has not established that there would be significant or lasting hardships. I therefore give this factor little weight.

30    It is evident from the above that the Tribunal considered the financial harm as well as the opportunity cost associated with the appellant studying in Australia if the decision to cancel his visa remained unaltered. However, the Tribunal did not attach the weight to that consideration that the appellant urged it should. The Tribunal’s consideration of this factor and the weight it gave to it does not constitute a legal error and accordingly is not a ground for upholding this appeal.

(iii)(e) Failure to complete course and suicidal thoughts

31    The appellant also sought to impugn the Tribunal’s reasons on the grounds that it failed to take into account, or placed too little weight, on the appellant’s failure to complete his course and his suicidal thoughts, or the relationship between them. The Minister submitted:

27.     Failure to complete course and suicidal thoughts. There is nothing in the materials to indicate that the appellant ever claimed that he had suicidal thoughts, or that this was relevant to the hardship he would suffer by reason of the cancellation of his visa.

32    There is no evidence that the appellant said to the Tribunal he was suffering from suicidal thoughts. The appellant did not point to any material suggesting he had told the Tribunal about those thoughts.

33    It is not clear whether the appellant contends that suicidal thoughts were a symptom of his depression and that the depression was an impediment to completing his course, or whether not being able to complete his course as a consequence of his visa being cancelled has, or will, result in an exacerbation of his depression, including experiencing suicidal thoughts. In context, it is probably the latter. In either case, however, there is no evidence that the appellant told the Tribunal about his suicidal thoughts, either as an impediment to his studies, or as a hardship he would suffer if his visa remained cancelled. In these circumstances, there is no error in the Tribunal’s decision arising from the absence of any consideration of the appellant’s claim to be suffering from, or that he has since the cancellation of his visa suffered from, suicidal thoughts.

Ground 2

34    By ground 2 the appellant contends that the Tribunal misconstrued condition 8516 and sub-clauses 573.223(1A) and 573.231 of the Regulations by concluding the power to cancel the appellant’s visa under s 116 was enlivened. The appellant provided the following particulars under ground 2:

The requirement in reg 573.231 that the requisite enrolment in principal course in force at the time the application was made is in contrast of the construction that the enrolment in the principal course to be continuous.

(i)    at the time of initial student visa application (TU-573 on 28 January 2014) the delegate was satisfied that the requirements of subclauses 573.223(1A) or 573.231 is met.

(ii)    The delegate cancelled visa for not having enrolment in principal course i.e. Degree course for 9 days i.e. from 09 Sept 2014 to 17 Sept 2014.

  (iii)    During this time, I have active enrolment in Diploma course.

  (iv)    I am at no stage without enrolment in Australia.

(v)    at the time of cancellation, the delegate is provided with enrolment in a Higher Education Sector Course.

(vi)    So construed, as per s 13 of the Acts Interpretation Act, it does not require that the emolment in principal course is to be Continuous.

(vii)    Moreover, in this case, the constrnction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred.

(viii)    It does not follow that the criterion can only be satisfied by continuous enrolment in higher degree course.

(ix)    My personal circumstances are beyond my control to maintain continuous enrolment in principal course.

(Errors in original)

35    As indicated above, the Minister did not object to leave being granted to amend the draft Notice of Appeal, save for the matters raised in particulars (iii) and (iv).

36    I shall first consider the particulars under ground 2 that were not objected to by the Minister.

37    The evidence does not support the appellant’s contention that the appellant was at all times enrolled in a course of study: “I am at no stage without enrolment in Australia”. There was a period of at least eight days during which the appellant was not enrolled in any course. For this reason the first particular under ground 2 must fail. The second particular must similarly fail. Contrary to these particulars, condition 8516 requires that the visa holder remain enrolled at all times (cls 573.223(1A) or 5723.231): Singh v Minister for Immigration and Border Protection [2016] FCA 679, [37]-[38]; see also Paul v Minister for Immigration [2016] FCCA 64, [26]. As the primary judge held, correctly, referring to Singh, once the discretion to cancel the appellant’s visa under s 116 was enlivened, it was “not removed by the fact that a breach is not ongoing, or by the fact that new arrangements have been put in place which attempt to substitute the original foundation for the grant of the visa” (at [37]). In other words, once the power is enlivened, though the contravention may be cured, the power to cancel the visa endures.

38    As the power to cancel the visa is enduring notwithstanding that the breach has been cured, the balance of the particulars advanced under ground 2 (for which leave to amend was not opposed by the Minister) must also fail.

39    I now turn to the particulars under ground 2 in respect of which the Minister opposed leave to amend.

40    The Minister opposed leave to amend to rely on the implicit allegation in sub-particulars (iii) and (iv) that the Tribunal failed to consider whether the Diploma of Hospitality, a course the appellant was enrolled in between 17 September 2014 and 21 October 2014, satisfied the requirements of a “principal course” for the purpose of cl 573.231.

41    As indicated above, the appellant provided submissions to the Court, via email to my chambers, in support of leave being granted:

1.    Matter arising from particulars (iii) and (iv) to ground two of amended grounds of appeal and further and better particulars

2.    Particulars (iii) and (iv) to ground two give rise to a further matter — namely, that the Tribunal failed to consider whether the Diploma of Hospitality course in which the appellant was enrolled between 17 September 2014 and 21 October 2014 … met the requirements of a “principal course” for the purposes of cl 573.231.12

3.    The respondent’s argument that a Diploma course will be a “principal course” for the purposes of cl 573.231 if it is a Higher Education Diploma course. However, a Diploma course will not be a “principal course” for the purposes of cl 573.231 if it is a Vocational Education and Training Diploma course.

4.     The respondent failed to recognise that the Diploma Course is a pathway to Degree course.

5.     As per “ESOS” definition the principal course of study refers to the main course of study to be undertaken by an overseas student where a student visa has been issued for multiple courses of study.

  6.    In this case main course of study is Hospitality, which I am already enrolled.

  7.     Accordingly, this additional matter does give rise to jurisdictional error.

(Errors in original, appeal book references omitted)

42    The Minister accepted in his written submissions that the Tribunal did, in fact, fail to consider this matter, and that this was an error of law. However, the Minister further submitted that his failure was not a jurisdictional error as this failure, if rectified, could not reasonably be considered to have affected the Tribunal’s conclusion. The Minister submitted that if the Tribunal had considered whether the Diploma of Hospitality was an eligible principal course, it would have been bound to find that it was not. Mr Lambert’s evidence established, by reference to the Provider Registration and International Student Management System maintained by the Department of Education and Training, that the Diploma of Hospitality the appellant was enrolled in was not an eligible course due to being of a vocational, not higher educational, level: see also, Singh v Minister for Immigration and Border Protection [2018] FCA 29 where a similar finding was made.

43    The Minister also submitted that, even if the hospitality course was an eligible course, there was still a gap of eight days between the cancellation of the appellant’s enrolment in his eligible information technology studies course and the Diploma of Hospitality course, and accordingly the power to cancel under s 116(1)(b) was enlivened in any event. I agree with the Minister’s submissions on these matters.

44    For the above reasons, the failure of the Tribunal to consider whether the Diploma of Hospitality course was a qualifying course, while a legal error, was not material and accordingly there was no jurisdictional error. Having regard to this conclusion, it is unnecessary to decide whether leave should be granted to rely upon the matters referred to in sub-paragraphs (iii) and (iv). However, if it were necessary for me to decide the question of leave, I would refuse leave on the grounds that the matters raised have no prospect of success. Accordingly, the appeal should be dismissed with costs.

disposition

45    The appeal is dismissed with costs.

Associate:

Dated:    13 September 2019