Grewal v Minister for Immigration

[2016] FCCA 323

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREWAL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 323

Catchwords:
MIGRATION LAW – Application for judicial review of decision of Migration Review Tribunal – show cause hearing ordered by consent – Applicant’s case not raising arguable case for relief claimed – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)

Applicant: NAVTEJ SINGH GREWAL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1221 of 2015

Judgment of: Judge Burchardt

Hearing date: 11 December 2015

Date of Last Submission: 11 December 2015

Delivered at: Melbourne

Delivered on: 10 March 2016

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Hornsby

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application filed on 29 May 2015 be dismissed pursuant to r.44.12(1) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1221 of 2015

NAVTEJ SINGH GREWAL

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a show cause hearing ordered by consent by Registrar Allaway on 30 September 2015.  The applicant, who is self-represented, has not taken the opportunity to file and serve written submissions.  This is not a matter of any criticism, given his self-representation and the lack of familiarity with the law of Australia that I would infer.  But it means that the court has, in effect, the reasons of the Tribunal and the first respondent’s written submissions as almost the only material before it, together of course with the Court Book (“CB”).

2. The application filed 29 May 2015 asserts a number of grounds of application. Relevantly, it is asserted that the applicant is from India, and arrived in Australia on a student subclass 573 visa. A delegate of the first respondent cancelled the applicant’s visa under s.116 of the Migration Act 1958 (“the Act”) on the basis that he had not complied with condition 8516. 

3. The application goes on to assert that the applicant applied for review at the Migration Review Tribunal, and it notes that he had withdrawn his “572 visa Lodgement” as he had intention to enrol in a Master’s Level of education.  The application asserts in general terms a lack of procedural fairness in the decision of the Tribunal and refers to his affidavit as explaining how his situation had arisen. 

4. The application also asserts that decision records of the Tribunal had been submitted with his affidavit and that further written and oral submissions would be submitted later.  The application records that the applicant’s education is “essential and very vital to my future career in India” and expresses a hope that this court would have jurisdiction to hear the matter. 

5. The affidavit of the applicant filed contemporaneously with the application is, in reality, a fleshing out of the matters in the grounds of application.  It reveals that the applicant came to Australia in January 2014 to undertake a Master of Information Technology course in Melbourne, such course to last for two years from January 2014.  The affidavit asserts that the Tribunal misconstrued his PRISM history and goes on to say (at paragraph 4):

   “30 July 2014, I have ceased the Masters education on my own because of I have been advised wrongly and some misunderstanding happened in my life from parents and other parents, obviously from the agent advise I had to choose between the Diploma of Hospitality in Management at ACE College.  My volition doesn’t mean that I wanted to do cheap course in Australia to drag the residency.”

6. The affidavit goes on, relevantly, to assert (at paragraph 6):

   “Representative may have done his submission and I might have told something to the Tribunal, but I’m writing to Federal Circuit Court is true and that I have tried my best to rejoin in to Master’s program but I could not get the E-coe and even I went to ATMC and tried to negotiate to get the admission in Masters, they have agreed to give the admission mean while Immigration has cancelled my visa gradually I am ended up with no study rights in Australia.  Now I couldn’t study Diploma nor can

   
   

   I study Masters of Education, two doors have been closed.”

7. The rest of the affidavit is essentially an assertion of the applicant’s motivation to come to Australia, his hope that he could complete his education here and the disadvantages that would be occasioned to him were he not to be permitted to complete his education in Australia. 

   
   

   The affidavit also annexes a copy of the Tribunal’s decision given on

   
   

   8 May 2015.  It is appropriate to turn to that decision next. 

8. The Tribunal’s decision commences by characterising the application for review.  It is asserted that it is an application for review of

   
   

   a decision dated 20 January 2015 made by a delegate of the first respondent to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act.  The delegate cancelled the visa on the basis that the applicant had breached condition 8516

   
   

   of his visa, and the issue, therefore, was whether that ground

   
   

   for cancellation was made out and, if so, whether the visa should

   
   

   be cancelled. 

9. The decision notes that the applicant appeared before the Tribunal on

   
   

   9 April 2015 to give evidence and present arguments, which he did with the assistance of an interpreter.  He was represented in relation

   
   

   to the review by his registered migration agent. 

10. The Tribunal’s decision goes on to refer to the terms of s.116 of the Act. The decision is correct in asserting that, first, grounds for cancellation must be made out and, second, having regard to all the relevant circumstances, the question is whether the visa should be cancelled.

11. One ground for cancellation pursuant to s.116(1)(b) of the Act is the state of satisfaction on the part of the Minister or the Tribunal that the applicant did not comply with a condition of their visa. The relevant condition attached to the applicant’s visa was a requirement that he “must continue to be a person who would satisfy the primary or secondary criteria as the case requires for the grant of the visa”. 

12. The Tribunal said at paragraphs 8-10 of the decision record:

    “8.    The applicant was granted the Subclass 573 visa in December 2013 on the basis of enrolment in and to undertake studies at the higher education level in the higher education sector. 

    9.    The delegate had information that the applicant ceased enrolment in a higher education sector course and therefore no longer continued to be a person who would satisfy the primary or secondary criteria for a Subclass 573 visa.

    10.  The delegate invited the applicant to comment in the Notice of Intention to Consider Cancellation (NOICC) of the visa (s.119 Notice), and the applicant responded.”

13. I note that, at paragraph 11, the Tribunal recorded:

    “At the Tribunal hearing, the applicant understood the ground for cancellation, the significance of Condition 8516 and did not contest that he has breached his visa Condition.”

14. The Tribunal also verified for itself through the database maintained

    
    

    by the Education Department (PRISMS) that the applicant ceased his enrolment in a higher education sector course in December 2013

    
    

    for “Non-commencement of studies”; and again on 26 March 2014

    
    

    for “Change to student enrolment”; and again on 30 July 2014 for “Student notifies cessation of studies”. 

15. The Tribunal noted that the last of those matters indicated the applicant ceased studies in the higher education sector of his own volition. 

    
    

    The Tribunal therefore was satisfied that the ground for cancellation

    
    

    in s.116(1)(b) existed but noted that this did not require mandatory cancellation under s.116(3).

16. The Tribunal therefore went on to consider whether the power to cancel the visa should be exercised. The Tribunal member noted that there were no matters specified in the Act or regulations that were required to be considered in relation the exercise of discretion to cancel the visa, but the Tribunal had regard to relevant circumstances, including but not limited to matters identified in the department’s Procedures Advice Manual, PAM3, “General visa cancellation powers”.

17. The Tribunal noted that the applicant’s written response to the delegate’s invitation to comment in the NOICC could be summarised as follows (paragraph 15, CB98):

    “He attended his studies but failed one core subject, which shocked him, so he decided not to waste any more time or money and to discontinue studying the Master of Information Technology course and take studies in commercial cookery with a different education provider. 

    He has done extensive research and found that the future potential of work in the hospitality industry in Australia is good.”

18. The Tribunal noted that the applicant’s representative’s written submission argued that the breach of condition was unintentional and referred to the significant financial hardship the applicant would undergo if his visa was cancelled and stated, inter alia (paragraph 16):

    “The submission submits in more detail that the applicant decided to come to Australia because he wanted to live and work in Australia and made his application through an agent and was not aware that he was granted the visa through the Streamlined Visa Processing (SVP) arrangement and therefore did not know when he changed courses and providers that he was not in an approved course or provider for SVP.  The applicant was homesick, experienced cultural shock and his mother was ill, he and a friend were the subject of racial abuse; all of which contributed to the applicant’s inability to study the course for which he was granted the visa.”

19. The Tribunal went on to note the applicant’s oral evidence at the Tribunal.  The Tribunal summarised the evidence as follows (paragraph 17 CB99):

    “He had completed a bachelor degree course in India prior to arriving in Australia in January 2014 to undertake a Master of Information Technology.  He attended classes and tried his best, but he failed one subject and one assignment.  He decided he was wasting his time and money. 

    He said he had interest in cookery before he left India but was advised by an agent that he must apply for a master degree course and was also told that he is allowed to change courses after 6 months. 

    His migration agent in Australia advised him to withdraw from his master degree course so he could enrol in a college to study in a course of his choice. 

    He did some research and discovered that there was a strong demand for commercial cookery jobs in Australia. 

    He enrolled at ACE College and attended the cookery course for three to four months and applied for a Subclass 572 visa.  He then received a decision to cancel his Subclass 573 visa followed by a decision to refuse his Subclass 572 visa. 

    In relation to the difficulties the applicant said he had experienced in the master degree course, he said that he had sought assistance and managed to pass three quarters of the course but was mentally upset.  But it was not such that he needed medical help; he was just feeling bad. 

    I questioned why he would abandon the course if he had 75 % success.  He said others had told him that the course would become more difficult and he should change courses while he has the chance. 

    He had met many students who changed to cookery and continued studies through to university level; his migration agent gave him similar advice.  He is enrolled up to diploma level in hospitality and has an offer for a bachelor degree in commercial cookery.”

20. The Tribunal’s decision goes on to paraphrase the discussions had with the applicant, which included, at paragraphs 19-21 (CB99-100):

    “I also noted that the SVP arrangement’s intention is to give the applicant in this stream the benefit of a ‘lighter’ assessment.  His evidence that he accepted advice from an agent that he must apply for a master degree course and change in 6 months gives the impression that he proposed this course only so he would have a better prospect of being granted the visa; and in fact he may not have had any interest in undertaking this course.  This impression is further supported by his evidence that he abandoned the course even though he had passed 75 % of the units he had passed.

    The applicant replied that the master degree course was expensive, that is why he decided to change; the diploma and bachelor degree packages were a lower cost.  I question how undertaking a 2-year course leading to a diploma followed by a bachelor degree of 2-3 years would be less expensive when consideration is given to course fees, living costs and the additional time before potential employment would start. 

    The applicant replied that he was told he could change courses after 6 months.  He realises now that changing courses was a mistake and if he could find an SVB provider for commercial cookery, he would take it.”

21. The Tribunal put to the applicant that considering his evidence

    
    

    as a whole, it may reasonably give the impression that he would do anything which would secure a visa to remain in Australia. 

    
    

    The Tribunal went on to find at paragraphs 27-28: (CB100-101)

    “In the present case after considering the evidence as a whole

    
    

    I formed the view that the applicant had agreed from the outset, prior to applying for his first student visa from overseas,

    
    

    to purport to have an interest in undertaking a course at master degree level and under the SVP arrangement because it gave him a better prospect of being granted a visa to Australia. 

    
    

    His decision after he arrived was to abandon the course even though he had successfully completed 75 % of the part of the course he had attempted. His submission that he had abandoned it because he had failed one subject and one assignment does not stand to reason.  He later changed his reason for abandoning the course in his oral evidence and said it was because the course was expensive.  This also does not stand

    
    

    to reason firstly because he was aware of the expenses and had to satisfy the original decision maker that granted him the visa that he had the financial capacity to pay his expenses. Further his argument that it was less expensive to study for 4-5 years rather than 2 years before seeking employment was also flawed. 

    Moreover, considering the totality of the applicant’s evidence

    
    

    I am satisfied that the applicant intended to come to Australia

    
    

    to live and work rather than to study.  He has used the student visa program in order to gain entry and stay in Australia but not in a matter consistent with the purpose of the student visa program.”

22. The Tribunal went on to assert at paragraphs 30-34 (CB101):

    “I consider the breach of the visa Condition 8516 to be very serious and significant in the circumstances of the present case and I do not accept that the breach was ‘unintentional’.

    I have considered the representatives’ arguments and have had regard to the court cases he cited to the extent of the relevance the circumstances of the present case have to the findings in those cases.  I do not find that the arguments and factors the representative requests the Tribunal to take into account outweighed the reasons not to cancel the visa. 

    I have had regard to the applicant’s evidence regarding the hardship he would suffer because of the loan from friends.  I am sympathetic to him in this regard but I do not find this to be a reason to outweigh the reason not to cancel the visa. 

    There is no evidence or submissions that the cancellation would result in any consequential cancellations under s.140 of the Act. Nor is there any evidence that any of Australia’s international obligations would be breached as a result of the cancellation.

    Considering the circumstances as a whole, the Tribunal concludes the visa should be cancelled.”

23. The First Respondent’s written submissions, which counsel was content to adopt at the show cause hearing without further oral submissions, correctly identified the test the Court has to apply. The issue for determination is whether the application raises an arguable case for the relief claimed (see r.44.12(1), Federal Circuit Court Rules 2001).  The written submissions traverse the history of the matter very much in the terms in which the Tribunal itself dealt with it and likewise traverses the decision of the Tribunal itself.

24. At paragraph 19, the written submissions assert:

    “The First Respondent submits that these are template grounds that do not contain any particulars to make them meaningful and on this basis alone they should not succeed.  The grounds simply set out the procedural history of the matter, at their highest seek impermissible merits review and do not identify any jurisdictional error in the Tribunal decision.  Furthermore, a fair reading of the Tribunal’s decision does not suggest that the grounds are capable of being made out.”

25. At the Court hearing, the applicant, who was self-represented with the assistance of an interpreter, said that when he attended the Tribunal hearing he told them that he made a mistake.  He told them that his migration agent had advised him he could change his course.  He said that he admitted this mistake and it was a big mistake.  He told the Tribunal he should be given another opportunity to study here.  He did not wish to go back to India empty-handed and did not wish to have his future spoiled.

26. In reply, after the Minister had adopted his written submissions, the applicant asserted:

    “I just want to say I made a big mistake.  I just need one more chance to finish my study and go back.”

27. It seems clear that the Tribunal was well-seized of the task it had to conduct. The Tribunal accurately paraphrased the terms of s.116. The Tribunal was keenly aware that even if the applicant had breached a visa condition, cancellation was not mandatory. The Tribunal’s finding that the applicant breached his visa condition is unassailable on the facts as they are presented in the Tribunal’s decision and in the Court Book, which they accurately represent. The Tribunal’s approach to the exercise of its discretion seems to me to be wholly unremarkable, and, indeed, in the face of the applicant’s changing story and the underlying facts, which he himself admitted, the Tribunal’s decision was, on any view of the matter, clearly open to it.

28. I am not able to discern any jurisdictional error.  Indeed, I am not able to discern any error at all in the Tribunal’s decision.  The applicant does not have an arguable case for the relief claimed. It follows that the application will be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 10 March 2016