Gill v Minister for Immigration

[2016] FCCA 472

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 472

Catchwords:
MIGRATION – Review of decision of former Migration Review Tribunal – cancellation of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.116
Migration Regulations 1994 (Cth)

Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration v Singh(2014) 231 FCR 437
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Zhang v Minister for Immigration & Anor [2016] FCCA 298

Applicant: JAGJEET SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 140 of 2015

Judgment of: Judge Driver

Hearing date: 3 March 2016

Delivered at: Sydney

Delivered on: 3 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Lucchese of Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 140 of 2015

JAGJEET SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 24 December 2014.  The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s, Mr Gill’s, higher education sector visa.  Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 24 February 2016.   

2. Mr Gill, a citizen of India, was the holder of a subclass 573 visa which was granted on 11 September 2013[1].  On 3 October 2014, a Notice of Intention to Consider Cancellation (NOICC) was sent to Mr Gill by email[2]. The NOICC stated that it appeared that Mr Gill had breached condition 8516, which, by reason of clause 573.611 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), Mr Gill was required to comply with at all times as a condition of his visa. On 29 October 2014, after considering his response to the NOICC, the delegate cancelled Mr Gill’s visa[3].

   [1] Court Book (CB) 70

   [2] CB 38-42

   [3] CB 70-72

3. On 31 October 2014, Mr Gill applied to the Tribunal for review of the delegate’s decision[4].  On 1 December 2014, the Tribunal invited Mr Gill to appear at a hearing to give evidence and present arguments, which he attended with his representative on 24 December 2014[5].  On the same day, the Tribunal affirmed the decision to cancel Mr Gill’s visa[6].

   [4] CB 76-77

   [5] CB 82-85, 88-89

   [6] CB 94-98

Tribunal decision

1. The relevant issues before the Tribunal were whether there were grounds for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act) and whether Mr Gill’s visa should be cancelled under that provision[7].

   [7] at [5]

2. Referring to the delegate’s reasons, the Tribunal found that Mr Gill’s visa was cancelled on the basis that he did not satisfy condition 8516 because he no longer satisfied the primary criteria for the grant of the visa (namely clause  573.231)[8].  Clause 573.231 relevantly required that Mr Gill was enrolled in, or was the subject of a current offer of enrolment in, a course of study that was a principal course[9].  

   [8] at [2]

   [9] at [10]

3. The Tribunal found there was nothing before it to suggest that Mr Gill satisfied clause  573.231[10].  In so finding, the Tribunal noted the prescribed courses in the relevant instrument[11].  Further, the Tribunal noted that Mr Gill’s visa was granted on the basis that he was enrolled in a Diploma of Business and a Bachelor of Business[12]. However, according to the Provider Registration and International Student Management Systems (PRISMS) records, Mr Gill’s enrolment in the Bachelor of Business was cancelled because he failed to pay the fees and re-enrol[13].  At the hearing, Mr Gill confirmed his enrolment had been cancelled[14].

   [10] at [10]. “Principal course” is defined in Legislation Instrument 14/015 as made under regulation 1.40A of the Regulations. “Eligible higher degree student” is defined in clause 573.111 of Schedule 2 to the Regulations

   [11] See Zhang v Minister for Immigration & Anor [2016] FCCA 298 at [27]

   [12] at [11]

   [13] at [11]

   [14] at [11]

4. Having regard to this information, the Tribunal found that Mr Gill ceased to be enrolled, or to be the subject of an offer of enrolment, in an eligible course and he was not an eligible higher degree student[15].  Accordingly, the Tribunal found that Mr Gill was no longer a person who would satisfy the primary criteria for the grant of the visa, and as there was no evidence to indicate Mr Gill satisfied the secondary criteria for the grant of the visa, the Tribunal found Mr Gill was in breach of condition 8516 of his visa[16].

   [15] at [12]

   [16] at [12]

5. As the Tribunal was satisfied that the ground for cancellation in s.116(1)(b) of the Migration Act existed, it proceeded to consider whether the discretion to cancel the visa should be exercised[17].

   [17] at [13]

6. Noting that there were no specified matters it needed to consider in the exercise of its discretion and having regard to the Procedures Advice Manual (General Visa Cancellation Powers) policy[18], the Tribunal considered the following factors:

   a)the Tribunal considered Mr Gill was not fulfilling the purpose of his travel to, and stay in, Australia as he had not engaged in the level of study for which his visa was granted[19] ;

   b)the Tribunal accepted that Mr Gill found the business course difficult and that he transferred to another course.  However, the Tribunal noted that the course Mr Gill transferred to was “not at the appropriate level”[20]; 

   c)the Tribunal did not accept Mr Gill’s submission that his level of English would have been insufficient to enrol in a bachelor course[21];

   d)Mr Gill submitted that he was misguided because he was advised he could transfer to a different course and apply for a different (and appropriate) visa[22].  The Tribunal did not accept that submission noting it was Mr Gill’s responsibility to comply with the conditions of his existing visa[23];

   e)Mr Gill told the Tribunal that he had applied for a Confirmation of Enrolment (CoE) for a bachelor course.  The Tribunal considered this evidence to be problematic[24].  This was because, according to Mr Gill, he had only applied for the CoE two weeks prior to the Tribunal hearing.  The Tribunal considered Mr Gill had ample time to organise his enrolment and this evidence suggested that Mr Gill did not have a genuine intention of pursuing higher education[25];   

   f)the Tribunal found that the breach did not occur in “circumstances beyond the applicant’s control” and that there were no “compassionate or extenuating circumstances” in this case[26];

   g)the Tribunal accepted that Mr Gill may experience some hardship if his visa was cancelled[27].

   [18] at [14]

   [19] at [15]

   [20] at [17]

   [21] at [18]

   [22] On 11 August 2014, Mr Gill applied for a subclass 572 visa which was refused by a delegate on 23 September 2014 (CB 1-36).

   [23] at [19]

   [24] at [20]

   [25] at [20]

   [26] at [21]

   [27] at [22]

7. For these reasons, the Tribunal found that Mr Gill breached condition 8516 and formed the view that Mr Gill’s visa should be cancelled under s.116(1)(b) of the Migration Act[28].  Accordingly, on 24 December 2014, the Tribunal affirmed the decision under review.

   [28] at [24]-[25]

The present proceedings

1. These proceedings began with a show cause application filed on 20 January 2015.  Mr Gill continues to rely upon that application.   The grounds of review advanced are set out in an affidavit which accompanied that application.  Essentially, Mr Gill considers that the outcome before the Tribunal was unfair to him. 

2. I have before me as evidence the court book filed on 30 April 2015. 

3. Mr Gill impressed me as an honest person who was attempting better himself in this country through the pursuit of hospitality studies.  It appears that he has become the victim of a complex visa system, and poor advice from a migration agent.  He thought honestly that he was able to change his studies without affecting his visa.  He was wrong.  The Tribunal dealt with the visa requirements in its decision, and in my opinion the Tribunal made no error in so doing. 

4. The issues are dealt with in the Minister’s submissions and I agree with them. 

5. The application states that the grounds of the application are set out in Mr Gill’s affidavit, sworn on 20 January 2015 and filed in support of the application. The affidavit states that Mr Gill attended a hearing before the Tribunal and “put forward [his] circumstances”.  However, Mr Gill contends that the Tribunal did not give him a “fair chance” to continue studying and the decision was “unfair”. 

6. It is clear from a fair reading of the Tribunal’s reasons that it gave active and conscious consideration to the evidence before it, including Mr Gill’s submissions and oral evidence, and exercised its discretion to cancel Mr Gill’s visa reasonably[29].  The Tribunal’s findings were open to it on the evidence before it and for the reasons it gave.

   [29] cf Minister for Immigration v Li (2013) 249 CLR 332; Minister for Immigration v Singh(2014) 231 FCR 437

7. Further, there is no evidence before the Court, nor is it apparent from the Tribunal’s reasons, that the Tribunal failed to comply with its obligations under Division 5 of Part 5 of the Migration Act.

8. Mr Gill’s contention otherwise invites the Court to undertake impermissible merits review and does not disclose an arguable case for the relief Mr Gill seeks[30].

   [30] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

9. I conclude that while Mr Gill’s circumstances are unfortunate, there is no basis upon which the court can assist him.  He is not able to demonstrate that the Tribunal made a jurisdictional error, or indeed that there is an argument that it did so. 

10. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

11. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Gill doubts his capacity to pay, but the issue for me is whether the costs have been reasonably and properly incurred.  I believe they have been.

12. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 8 March 2016