Chundru v Minister for Immigration and Border Protection

BACKGROUND 6 The background to this application can be briefly stated. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 17 June 2013. It was granted on the condition that Mr Chundru remain enrolled in a Masters of Information Systems with the University of Ballarat which commenced on 22 July 2013. The applicant's enrolment in this course was cancelled on 4 August 2014 with the citation "student notifies cessation of studies" as the reason for cancellation. Mr Chundru subsequently enrolled in a Certificate III in Commercial Cookery within the Vocational Education and Training (VET) sector on 14 July 2014. 7 At the hearing of his application for leave, Mr Chundru explained that he was stressed when he withdrew from his Masters of Information Systems course but he did not cease his studies since he subsequently enrolled in commercial cookery courses. Mr Chundru affirmed that he was at all times a genuine student. By reason of the provisions mentioned hereafter, however, the cancellation of his enrolment in the Masters of Information Systems course meant that Mr Chundru failed to comply with a condition of his visa and was liable to have his visa cancelled. 8 The legislative framework is not straightforward but its effect is clear in Mr Chundru's case. Pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) the Minister may cancel a visa if satisfied that "its holder has not complied with a condition of the visa". The applicant's visa was subject to condition 8516 which required that "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". Mr Chundru was the primary visa holder and was therefore required to continue to satisfy the primary criteria for grant of the visa. 9 The primary criteria for grant of the visa included clause 573.231 of schedule 2 of the Migration Regulations 1994 (Cth). That clause required as follows: 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. 10 Clause 573.223(1A) set out application requirements for applicants who were at the time of application an "eligible higher degree student". Clause 573.111 defined the term "eligible higher degree student" 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: (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. 11 It follows that to satisfy condition 8516 Mr Chundru needed to continue to be enrolled or have an offer of enrolment in a course specified in an instrument (being IMMI 14/015): see subclause 573.231. Alternatively, he needed to be enrolled in a course provided by an eligible education provider for the award of a bachelor's degree or a Master's degree by course work: see clause 573.223(1A) and the definition of "eligible higher degree student" in clause 573.111. 12 The types of courses which would satisfy clause 573.231 were limited to Diploma (Higher Education), Advanced Diploma (Higher Education), Bachelor Degree, Graduate Certificate (Higher Education), Graduate Diploma (Higher Education), Associate Degree and Masters by Coursework: see IMMI14/015. Enrolment in Certificate III in Commercial Cookery within the VET sector was not enrolment in a course which met the requirements of clauses 573.213 or 573.223(1A). 13 On 6 November 2014, after Mr Chundru had been issued with a Notice of Intention to Consider Cancellation of his visa (NOICC) on 31 October 2014, Mr Chundru subsequently applied for a TU-572 Vocational Education and Training Sector visa. 14 Mr Chundru responded to the NOICC on 10 November 2014. He explained that he came to Australia to further his education. After starting the program, however, he found that he was unable to understand the concepts, and had trouble understanding English. He explained that this was the reason he had decided to enrol in the VET courses. Further, he said that when he received the NOICC he was unable to re-enrol in a Master's program. 15 On 15 January 2015 the Minister's delegate made a decision to cancel the subclass 573 visa. The delegate found that Mr Chundru had not complied with condition 8516 on the basis that he had ceased to be enrolled in a course which satisfied the criteria for grant of a subclass 573 visa. On 20 January 2015, Mr Chundru applied for merits review of the delegate's decision. When Mr Chundru attended a hearing before the (then) Migration Review Tribunal (now the Administrative Appeals Tribunal) on 28 April 2015, the Tribunal agreed to his request for an extension of time to 15 May 2015 to provide further documents, in particular, evidence of enrolment or an offer letter for a place in a Masters of Business Administration. After considering his case, the Tribunal was unable to make a favourable decision and invited Mr Chundru to appear at a hearing on 8 October 2015. 16 Prior to this hearing, Mr Chundru submitted documents including PTE Academic test results from December 2014; IELTS test results from April 2012; and copies of applications he had made for enrolment in an MBA at Holmes Institute and a Master of Networking at MIT. He also provided copies of emails sent by his representative to the institutes enquiring about progress of the applications.

Tribunal's decision 17 The Tribunal's statement of decision and reasons noted that the delegate had cancelled Mr Chundru's visa on the basis that he breached condition 8516 of the subclass 573 visa as he had ceased to be enrolled in the master's degree course for which the visa was granted. The Tribunal also noted that he had been granted the subclass 573 visa on the basis of his enrolment in a Masters of Information Systems. 18 The issue before the Tribunal was whether the relevant ground for visa cancellation was made out, and if so, whether the power to cancel the visa should be exercised. Before the Tribunal, Mr Chundru conceded that he had breached condition 8516, on the basis that he had ceased to be enrolled in a higher education sector course for which he had been granted the visa. The Tribunal was therefore satisfied that the ground for cancellation in s 116(1)(b) of the Migration Act existed. As that ground did not require mandatory cancellation under s 116(3), the Tribunal went on to consider whether the power to cancel the visa should be exercised. 19 Mr Chundru told the Tribunal that he had failed the four units he had taken during his first semester in the Masters of Information Systems. In July 2014, he ceased attending that course and decided to undertake courses at certificate III and certificate IV levels in commercial cookery, followed by a diploma of hospitality. He told the Tribunal that by this change in course of study he did not intend to change his career path, but that he intended to return to his original course. He also told the Tribunal that he had more recently sought to enrol in a bachelor's degree course in information technology. 20 After considering his enrolment history, the Tribunal concluded that Mr Chundru was not a genuine student. The evidence before the Tribunal indicated that he was unable to secure an offer of a place in a higher education sector course. Given that the purpose of the subclass 573 visa was to study a registered course in that sector, the Tribunal concluded that it would be not be logical to exercise the discretion to recommend reinstating the visa. Accordingly, the Tribunal concluded that the applicant's visa should be cancelled, and affirmed the decision of delegate to cancel the visa.

FCCA's Decision 21 Mr Chundru sought judicial review of the Tribunal's decision in the FCCA on a number of grounds. The first ground was that the Tribunal ignored his claims and did not give him time to provide documents. The learned Federal Circuit Court judge held that this claim was not supported by the material before it. His Honour concluded that Mr Chundru's second ground could not succeed as it related to a separate visa. His Honour held that grounds 3 to 8 effectively sought merits review of the Tribunal's decision and could therefore not establish jurisdictional error. His Honour reached the same conclusion in respect of grounds 9 to 13, stating "they do not allege specific jurisdictional error and seem to be seeking a merits review to the extent that they're seeking that the Court generally review the decision to look for a ground for review for the applicant". 22 His Honour then went on to consider a further ground raised by the applicant at the hearing, stating: 14. The applicant at the hearing before me articulated a ground on the basis that he believed he had a course that he could undertake and that he could not get a certificate of enrolment until the previous institution had released him from their enrolment status. This was the reason he said he was unable to obtain the visa. 15. It seems to me that this is not a sufficient basis for a judicial review, particularly in this case given that the Tribunal member had said, as they set out at paragraph [12] of their decision, that they had only sought from him evidence of enrolment or an offer letter for a place in the Master of Business Administration. It seems to me that the Tribunal member was content to consider an offer of a place and that the applicant did not, at that stage, need necessarily an actual certificate of enrolment. The documents the applicant took me to do not show that he was actually made an offer of a place in an MBA course. At best, it seems that he had a place in a Certificate III or a Certificate IV cookery course and this is not within the categories of courses that were the basis of the grant of his visa. 16. In circumstances where a person seeks to study information systems at the Master's level, then undertakes a cookery course, and then claims that they wish to pursue an MBA but has no enrolment or even offer of enrolment, it is certainly open to the Tribunal to come to the view that they did as to whether or not he was a genuine student. It seems to me that the decision, it was open to the Tribunal on the material before it and it would be a merits review for me to consider whether a different outcome should apply. 23 His Honour dismissed the application for judicial review pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Application for leave to appeal 24 Mr Chundru seeks leave to appeal from the judgment of the FCCA. Mr Chundru's draft notice of appeal sets out the following draft grounds of appeal: Grounds of appeal I have been granted 573 visa which was granted on June 2013 from India to study Masters Education including the ELICOS in Australia. 'Notice of Intention to Consider Cancellation' of 'NOICC') dated 31 October 2014 was sent to by delegate to cancel the my visa due to my non enrolment and I was enrolled in to Diploma Level Course as there is no enrolment was given to me from my Masters education provider. As there is no option left in front of me rather than taking the education at Diploma Level to not to breach the Condition of 573 Subclass. But I have tried to get the enrolment in Masters but I could not get the enrolment, mean while I was advised by agent to lodge the 572 visa subclass. And application was made and then all of sudden Immigration has sent me the NOICC to cancel the 573 visa. My efforts went mere, could not get the enrolment for Masters as every university requires the SVP criterion so same explanation was explained to Immigration He did not listen and Delegate has cancelled the visa. Delegate has started processing the 572 visa subclass and asking my previous history of Masters Education and Breach of the 573 visa Subclass. I have explained everything about the breach and exceptional Circumstances about my breach, Delegate has refused the 572 visa application, I was hit this cancellation and refusal one by one when my Australian Experience 6 Months old, just I have been in Australia for six months, just started recovering myself from Home sick and other things. Then these refusals and cancellation hit me the Bridging visa E where I could not study, this is the reason I have brought the decision to Tribunal Discuss and they did not listen our outcry, they ask the questions I had to answer and they affirm not grant the visa and also affirm to cancel the visa. One student comes to different country to study in Australia, authorities expecting high standards from Applicant is not good. I am keep doing same thing then my Visa refused that is different story. Just within Six months my hands are tightened and become not to study in Australia or not able to get the E-Coe from any university is tuff and feeling pain. Therefore, I come to federal circuit court for legitimate decision but honourable judge Reith Muller has been misguided by solicitors of DIBP, federal circuit court application under the judicial Review has been made on 29th October 2015, I am not known any information that Federal circuit court has been requesting the further amended affidavits to be submitted to the court. I went to the court hearing and Judge did not give me a chance and just the gave the Decision which is not meeting the Natural Justice. In the Federal Circuit court decision online shows that orders been made but not decision made. I have been waiting for decision and requested the Registrar and DLA piper lawyers to know about the decision. But Decision has not been made and I am applying FCA with court orders only as my timeframe is go off. Applicant has not known any of these information. However have not been able to understand with my lack of knowledge. I have not had any control of my situations which became very bad in Australia to provide reasons at tribunal. According to letter received by mail I have lodged the review application in time frame and Judicial Review. New argument came to light which demonstrates the unsatisfactory evidence hasn't been done by me, it has been done by Immigration Regulations, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute? 2. The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of I am ready to provide valid reasons why I had to have Diploma education, and how I am is eligible to lodge the review application at Migration review tribunal if I am given chance by Federal court or DIBP (Department of Immigration and Border Protection) Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn't even looked at applicant claims as there was big barrier " Judicial review has been made which has not been proved by applicant to make it Valid application", but he has exceptional circumstance beyond his control. The same paragraphs were set out under the heading "Grounds of application" in the application for leave to appeal filed by Mr Chundru.

Discussion and disposition 25 The first two paragraphs under the heading "Grounds of appeal", which are quoted above, set out some background material, but the third paragraph touches on an issue that Mr Chundru advanced as a central to his case. I note in connection with the third and fourth paragraphs under the heading "Grounds of appeal", that Mr Chundru submitted that he had attempted to enrol in Masters courses that would satisfy clause 573.231 (see [12] above) but that he had been unable to do so because he had previously breached the condition of his subclass 573 visa (see [6] above) by withdrawing from the Masters of Information Systems at the University of Ballarat. It was for this reason, he said, that he had subsequently applied for a subclass 572 visa, but that visa had been refused. Mr Chundru stated that he had explained his predicament to the Department of Immigration and Border Protection and referred me to a letter about this that had been sent to the Department in November 2014. As noted already in these reasons, and mentioned in the fifth paragraph under the heading "Grounds of appeal", his explanation did not persuade the delegate to make a decision in his favour in January 2015. In the sixth paragraph under the heading "Grounds of appeal", Mr Chundru indicated he explained all of this to the Tribunal and that it did not listen to his "outcry". If this were thought to raise a claim of procedural fairness, there is nothing shown to support that claim. The applicant attended two hearings before the Tribunal and, on the first occasion, the Tribunal agreed to his request for an extension of time in which to provide "evidence of enrolment or an offer letter for a place in a Master of Business Administration" - although none was later provided. The reasons of the Tribunal dated 9 October 2015 were detailed and apparently gave careful attention to Mr Chundru's submissions. Indeed, the Tribunal's reasons record that the Tribunal referred Mr Chundru "to the extension of time he requested, and was granted ... [h]e replied that he had tried but could not obtain enrolment or offer of a place". The Tribunal specifically noted that: The applicant made further comments that he has made every attempt to re-enrol and return to a higher education sector course but that "all the doors are closed" and what is he to do? 26 As to this the Tribunal stated that it "reiterated [its] impressions of his efforts being desperate acts in order to maintain a visa rather than an indication of a genuine commitment to study". The Tribunal concluded that it was "not satisfied that [Mr Chundru] is a genuine student on the evidence he has given and arguments he has presented," adding: Critically, he has confirmed inability to secure an offer of a place in a higher education sector course and the purpose of the subclass 573 visa, if it were to be reinstated, is to study a registered course in that sector ... There is nothing to indicate that the Tribunal did not listen to Mr Chundru. 27 In the seventh and eighth paragraphs, under the heading "Grounds of appeal", Mr Chundru complained of what happened to him in the FCCA. He said that he "went to the [Federal Circuit Court] hearing and Judge did not give me a chance and just gave the Decision which is not meeting the natural Justice". When asked about this allegation (and the statements in the following paragraph), Mr Chundru said that he had told the judge that he could not obtain an enrolment in a suitable course because he had breached the condition of his subclass 573 visa to maintain his enrolment in the Masters course at Ballarat University but the judge did not listen to him. The reasons of the Federal Circuit Court judge show, however, that his Honour did in fact listen to him. His Honour noted that the Tribunal "only sought from [Mr Chundru] evidence of enrolment or an offer letter for a place in the Master of Business Administration", adding that: It seems to me that the Tribunal member was content to consider an offer of a place and that the applicant did not, at that stage, need necessarily an actual certificate of enrolment. The documents the applicant took me to do not show that he was actually made an offer of a place in an MBA course. At best, it seems that he had a place in a Certificate III or a Certificate IV cookery course and this is not within the categories of courses that were the basis of the grant of his visa. There is no basis shown for Mr Chundru's claim that the Federal Circuit Court judge did not listen to him or that his Honour treated him unfairly in some other way. 28 To the extent that Mr Chundru asserts that his Honour erred by denying him natural justice, Mr Chundru has failed to identify any basis for this claim. It is clear that Mr Chundru was given the opportunity to seek judicial review and to be heard in relation to it. There is no basis shown for the claim that he was denied natural justice. If this claim is aimed at the fact that the applicant sought to argue an interpreter error, absent a written or oral record of the Tribunal hearing, this claim could not be established. There was no written or oral record of the Tribunal hearing before his Honour that might have supported an inference that there was any error in interpreting. 29 In the ninth paragraph, under the heading "Grounds of appeal", Mr Chundru referred to "new arguments" and "unsatisfactory evidence". When asked at the hearing to explain what he meant and to identify such argument and evidence, Mr Chundru was unable to this, despite being given time do so. 30 In support of the statements made in the final two paragraphs under the heading "Grounds of appeal", Mr Chundru reiterated his predicament - that he was unable to gain re-enrolment because he had breached the condition of his earlier subclass 573 visa. One may understand Mr Chundru's unhappiness on this account. This is not, however, a sufficient basis to grant leave to appeal. 31 The draft notice of appeal does not articulate any alleged error on the part of the FCCA that might justify the grant of leave to appeal. There is nothing that indicates a possibility of jurisdictional error on the Tribunal's part. As the Federal Circuit Court judge noted, it was open to the Tribunal on the material before it to find that Mr Chundru was not a genuine student. 32 Mr Chundru has not shown that the appeal that he seeks to bring has any prospect of success. He has not shown that the interlocutory judgment of the Federal Circuit Court is attended by sufficient doubt to justify its reconsideration by this Court on appeal. 33 For the reasons stated, I would refuse leave to appeal. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.