Rekha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 There are two issues on this appeal. The first concerns the operation of s 359A of the Migration Act 1958 (Cth) ('the Migration Act') and the second, the proper construction of condition 8516 in Sch 8 to the Migration Regulations 1994 (Cth) ('the Regulations').

Section 359A 2 For the purposes of this appeal, the relevant parts of s 359A of the Migration Act are subsections (1) and (4)(b). These provide: (1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. … (4) This section does not apply to information: … (b) that the applicant gave for the purpose of the application for review; or … 3 To understand the issue about s 359A(1), it is necessary to begin with some relevant facts. At first instance, the Appellant sought judicial review of a decision made by the Administrative Appeals Tribunal ('the Tribunal'). The Tribunal's decision was to affirm on review an earlier decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ('the Minister') to cancel the Appellant's student visa. The delegate concluded that from 17 August 2016 until the date of its decision, 12 April 2017, the Appellant had not been enrolled in a higher education course at an approved institution. The conditions to which the Appellant's visa was subject required her to be enrolled in such a course (condition 8202(2)(a)). A discretionary power in the delegate to cancel the visa arose under s 116(1)(b) of the Migration Act if the delegate was satisfied that the Appellant had not complied with that condition. Since the delegate was satisfied that the Appellant had not been enrolled in an appropriate course since 17 August 2016, this power was enlivened. In the exercise of his discretion, the delegate concluded that he should cancel the Appellant's visa. 4 Before the Tribunal, the Appellant did not dispute the delegate's factual conclusion that she had not been enrolled in an appropriate course between 17 August 2016 and the date upon which her visa cancelled by the delegate, 12 April 2017. Mr Chia, counsel for the Appellant, submits that the transcript of the hearing before the Tribunal and a portion of its reasons provide material from which it may be inferred that the Tribunal, at the time of the hearing, was contemplating that the Appellant had breached the conditions of her visa on a different ground to that relied upon by the delegate. This ground was that from the time of the delegate's decision to the time of the hearing in the Tribunal, the Appellant had continued not to be enrolled in a course of higher education. 5 Whether the Tribunal was contemplating this precise course is a matter to be determined. But for present purposes, it will be noted that the delegate's focus was on the period between 17 August 2016 and the date of his decision, 12 April 2017, whilst this latter view focusses on the period between 12 April 2017 and the date of the Tribunal's hearing (which was 26 June 2017). Despite two different periods being involved, it was not in dispute that across both periods the Appellant was not enrolled in a course of higher education at an approved institution. 6 Mr Chia submits that if the inference for which he contends is drawn, then the Tribunal's potential conclusion would be information to which s 359A(1)(a) applies. Leaving aside questions of discretionary refusal of relief, there is no dispute that if Mr Chia gets this far, then he will have demonstrated the existence of jurisdictional error. 7 There are two issues. First, should the inference be drawn that the Tribunal considered that the information 'would be the reason, or part of the reason, for affirming the decision under review' (the language of s 359A(1)(a))? Secondly, where did the information come from? The Minister submits that it was provided by the Appellant herself. If that be right then, so the Minister submits, the exception in s 359A(4) is engaged. 8 To answer these two questions, it is necessary to identify the information with precision. As the Appellant's case was finally put, the information was the fact that the Appellant had not been enrolled in a course of higher education at an approved institution for the period between the date of the delegate's cancellation decision and the date of the Tribunal's hearing, that is to say, during the period between 12 April 2017 and 26 June 2017. Although in earlier iterations of the Appellant's submission, the information was said to be certain records containing this information, by the time of the hearing in this Court it was clear that the information for the purposes of s 359A(1) was the information contained in those records and not the records themselves. 9 The hearing before the Tribunal had these pertinent features: 10 First, it was confined to whether the discretion to cancel the visa should be exercised and was not concerned with whether the power of cancellation was enlivened. At p 2 of the transcript, this exchange occurred: Member: Well that's the end of the introduction. So, it appears from the decision of the Delegate and this is confirmed on Government Systems PRISMS to which the Tribunal has access that you ceased to be enrolled in a registered course of study from 17 August 2016. So, the first issue I have to determine is whether that is the case. So, do you agree that you ceased to be enrolled on 17 August? Applicant: Yes Member: Alright. So that means the ground for cancellation is made out and then it remains to consider the discretionary issues, um as to whether the visa will be cancelled. 11 Secondly, the Appellant sought to persuade the Tribunal that her visa should not be cancelled on two bases: (a) that there were extenuating circumstances surrounding her withdrawal from her course (which is what had led her enrolment to lapse on 17 August 2016); and (b) that she had in fact enrolled in a new course. 12 Thirdly, the Appellant did not submit, and the Tribunal did not suggest, that this new course was a course of higher education at an approved institution such that it could be seen as satisfying the visa condition. The course in question was of a different kind which may have made the Appellant eligible for a different kind of visa. The reason the Appellant raised her enrolment in this non-qualifying course was to aid her argument that her student visa should not be cancelled as a matter of discretion. The way the argument worked was that this course might be a stepping stone to a course which did qualify. 13 Fourthly, during the Tribunal hearing there was a minor debate concerning whether the Appellant was in fact enrolled in this course. As a matter of formality, she was not but as a result of representations made to the Tribunal by a person from the institution in question, the Tribunal seemed content that it was likely she would be enrolled. By the time of its decision, there was no doubt that she was enrolled and the Tribunal accepted this as a fact: see Tribunal reasons at [25] and [35]. 14 Fifthly, during the hearing the Tribunal raised with the Appellant a problem which it perceived to exist. The problem was this: in addition to the visa condition which the delegate had concluded was being breached (condition 8202(2)(a): enrolment in a course of higher education), there was another condition on the Appellant's visa. This condition required her to continue to be enrolled in such a course (condition 8516). The Tribunal's interest in this question necessarily was part of its consideration of whether to exercise the discretion not to cancel the visa for non-compliance with condition 8202(2)(a). Its concern was that if it exercised that discretion favourably to the Appellant it would result in her visa being reinstated. If that occurred, she would immediately be in breach of condition 8516 (there is a debate about this which is the second issue in the appeal but it is convenient to state it in these terms at this stage). At the hearing, the Tribunal flirted with the idea that this might be a reason not to exercise the discretion in the Appellant's favour. At p 7, the Tribunal said this to the Applicant: Member: What that means based on your PRISMS records when you ceased to be enrolled in the Bachelor of Business on 17 August 2016 you ceased to be enrolled in a higher education sector course and you've also indicated today that your intention when you finish your current course is to probably work and you haven't indicated you have an intention to enrol in a higher education course. So that means that even if I was to reinstate the visa you would be in breach of a 8516 and it doesn't seem to me you have any intention to remedy that breach. So those are matters that will be significantly adverse in the exercise of my discretion. 15 The reference to PRISMS records is a reference to the Provider Registration and International Student Management System. At an earlier point of the hearing the Tribunal had consulted the PRISMS records and noted that the course which the Appellant now claimed to be enrolled in did not appear in the PRISMS records. So much is clear from p 5: Member: So, the PRISMS record the Provider Registration International Student Management System doesn't show this course and doesn't show that there's a confirmation of enrolment for this course, but on that basis, it doesn't seem to me that it is a registered course. 16 I have explained above that the reason this was so was because the Appellant had not yet actually enrolled in the course. It is also clear that the Tribunal obtained this information itself as the extract of the transcript above at [10] shows. 17 From these matters, it is open to infer that at the hearing the Tribunal was exploring the option of exercising its discretion against the Appellant on the basis that if the Tribunal reinstated the Appellant's visa, she would immediately be in breach of condition 8516. The information on which it was contemplating acting was the information from the PRISMS records or, more precisely, the information which was not in the PRISMS records. It was considering not reinstating the visa on the basis that the PRISMS records showed the Appellant was not enrolled in a course of higher education at an approved institution. As an aid to comprehension, although Mr Chia identified the information as being information that the Appellant was not enrolled during the period between the delegate's cancellation decision and the Tribunal hearing, in point of fact, the information which was relevant to the Tribunal's contemplation was the fact that at the hearing she was not so enrolled. As a matter of formality, this narrower information is a subset of the information identified by Mr Chia. 18 Returning then to the second question posed above, it is tolerably clear that the information that the Appellant was not presently enrolled in a course of higher education during the period between the delegate's decision and the Tribunal's hearing was derived from the PRISMS records which the Tribunal had itself accessed. The Minister submitted that the information had been provided by the Appellant herself. I do not accept this submission. The evidence shows that the Appellant had provided the Tribunal with the delegate's reasons for his decision but these did not, indeed could not, contain any information about the Appellant's present enrolment status. The Appellant also provided the Tribunal with the information that she was enrolled (or shortly to be enrolled) in the non-qualifying course. Again, however, this is not the information which the Tribunal was contemplating using. 19 As to the first question, as I have explained that the Tribunal was at the hearing contemplating exercising the discretion against the Appellant on the basis of this information. 20 In light of those two conclusions I therefore accept that s 359A(1) was engaged and that the exception in s 359A(4) was not engaged. 21 In principle, a jurisdictional error is established. The Minister submitted, however, that relief should still be declined on discretionary grounds. I accept this submission. The Tribunal's discussion of condition 8516 indicates that after the hearing it changed its mind about how it was going to use it. During the hearing, the argument it was contemplating was that it was relevant to the exercise of the discretion that if the visa were reinstated the Appellant would immediately be in breach of condition 8516. This was a prospective use of condition 8516. In its reasons, however, it decided to focus on the Appellant's historical failure to comply with condition 8516. So much appears from [36]-[39], [48], [51] and [59]: 36. The Tribunal discussed with the applicant condition 8516 which attaches to her visa. 37. The condition 8516 obligation was outlined to the applicant in the hearing as follows. Condition 8516 states that: 'The holder must continue to be a person would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa'. The criteria for the grant of the Student visa includes, amongst other criteria, subclause 573.231 and 573.223(1A). 38. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a course of study that is the principal course of the type specified in an instrument for the subclass 573 visa. The relevant instrument sets out a list of relevant courses in the higher education sector. 39. PRISMS records indicate that, since the applicant ceased to be enrolled in the Bachelor of Business on 17 August 2016, she has not met the criteria of either subclause 573.21 or cancellation of the visa. Further, the PRISMS record indicates no current enrolment in a course that would meet the requirements. In the hearing, the applicant acknowledged that from 17 August 2016 she had been in breach of condition 8516. … 48. Adverse to the applicant is the fact that she has also been in breach of condition 8516, effectively requiring her to be enrolled in a higher education sector course, from 17 August 2016 until the visa was cancelled. The Tribunal is not satisfied that there are an extenuating circumstances beyond the applicant's control for her failure to meet this visa obligation. The Tribunal does not think that any lack of ability on the part of the applicant to undertake a course at this level can constitute an extenuating circumstance beyond her control given that the obligation to be enrolled in and on a pathway to a higher education sector course is an inherent requirement of condition 8516. … 51. The reach of condition 8516 for eight months, together with the fact that the Tribunal does not consider that the applicant has a genuine intention to progress to undertake a Bachelor course are adverse to the applicant in the exercise of the Tribunal's discretion. … 59. Whilst the Tribunal has sympathy for the applicant in relation to the hardship caused by the cancellation, neither that hardship or the applicant's solid study history until 2013, her current studies, or any other relevant discretionary factors, outweigh the length of the breaches of both conditions 8202 and 8516 in the context of there being no exceptional circumstances beyond the applicant's control for the breaches, and the fact that the Tribunal does not consider that the applicant has a genuine intention or ability to study a higher education course. 22 What these show is that in its reasons, the Tribunal considered the Appellant's non-compliance with condition 8516 but only during the eight month period between 17 August 2016 to 12 April 2017. It did not ultimately reason that the visa should not be reinstated because to do so would put the Appellant immediately in breach of condition 8516. Consequently, this topic is disconnected from the actual course the Tribunal's reasoning took. 23 If s 359A(1)(a) had been complied with, it may be assumed that the Appellant would have responded to the invitation s 359A(1)(c) provides for by making submissions about the significance of the information. There are two possibilities only. The Tribunal either could have accepted or rejected those submissions. However, neither outcome impacts on what the Tribunal actually did which was to refuse the application on quite different grounds. 24 Consequently, the case is like SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [29]. The Tribunal's failure to comply with s 359A(1)(c) had no possible impact on the outcome. I therefore accept the Minister's submission that relief should be declined on discretionary grounds.