Maan v Minister for Immigration

[2016] FCCA 790

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 790

Catchwords:
MIGRATION – Show cause hearing – whether the Applicant’s application for judicial review disclosed arguable case – Applicant applied for judicial review of Tribunal decision affirming decision of delegate to cancel student visa – grounds of review specified Applicant not satisfied with decision and Tribunal made an error – found no arguable case – application dismissed pursuant to Rule 44.12(1) of Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001 (Cth), re.44.12, 44.13

Migration Act 1958 (Cth), s. 116

Migration Regulations 1994 (Cth), cl.573.231 of sch.2, cl.573.223 of sch.2, sch.8
Migration Regulations 1994 - Specification of Types of Courses for Student Visas - IMMI 14/015

Cases cited:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SATKAR SINGH MAAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1143 of 2015

Judgment of: Judge Jones

Hearing date: 9 March 2016

Date of Last Submission: 9 March 2016

Delivered at: Melbourne

Delivered on: 9 March 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application for judicial review filed on 21 May 2016 be dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the First Respondent’s costs in the fixed sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1143 of 2015

SATKAR SINGH  MAAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This is an application by Mr Satkar Singh Maan (“the Applicant”) for judicial review of a decision by the then Migration Review Tribunal (“the Tribunal”) dated 23 April 2015, in which it affirmed the decision by a delegate of the Minister for Immigration and Border Protection (“the Minister”) to cancel the Applicant’s Student (Temporary) (Class TU) Higher Education Sector Subclass 573 visa.

2. This matter is being heard on an application pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001 (“the Rules”), namely, for a Show Cause hearing on the basis that the application for judicial review filed by the Applicant on 21 May 2016, has not raised an arguable case and should therefore be dismissed.

3. Rule 44.12 of the Rules provides that, if the Court is not satisfied the application has raised an arguable case for the relief claimed, it may dismiss the application. Rule 44.13 of the Rules provides that, at the hearing of an application for Show Cause, the Applicant is confined to the relief sought and the grounds mentioned in his application.

4. As the Applicant was self-represented, I explained to him the nature of the proceedings today, and I asked him to explain to the Court his grounds for application for judicial review. The grounds are set out initially in a narrative of the events that have led to the decision of the Tribunal. The actual grounds specified by the Applicant come at the end of the narrative that the Applicant has provided, and they are – and I confirmed this with the Applicant – that he is not satisfied with the decision made by the Tribunal, and that he believes that there is an error in the decision.

5. I asked the Applicant what error he believed was made by the Tribunal, and the Applicant stated that the Tribunal had failed to take into account two documents which he had provided to the Tribunal. One is a copy of a form issued by a consultancy called Career Education Consultancy Australia (“CECA”) (CB 122), which discloses that his current course is cookery and hospitality, and that his highest qualification is an Advanced Diploma in computer. The Applicant maintains that this document did not include the course change that he sought, which was to a Bachelor of Business.

6. The Applicant then took the Court to a document that was issued by Stott’s Colleges (CB 138), which is dated 22 October 2013 and is headed Student Letter of Offer and says, in part:

   We are pleased to offer you admission in the following course:  Bachelor of Business.

7. The relevance of this will become apparent later. I explained to the Applicant that it appeared to the Court, given his submissions that he was misguided by Mr Raul Singh from CECA, who told him that once he completed his Diploma in Cookery he could start his Bachelor with Stott’s Colleges, that it seemed that he was asking the Court to engage in a merits review, because these matters had been dealt with by the Tribunal in its decision.

8. I will deal briefly with the legislative background to this matter, including the requirements that the Applicant was required to meet.

Background

1. The Applicant was granted a Student (Temporary) (Class TU) Higher Education Sector Subclass 573 visa, on 29 May 2013. This visa was subject to condition 8516 of sch.8 of the Migration Regulations 1994 (“the Regulations”), which required that the Applicant continue to be a person who would satisfy the criteria for the granting of the visa.

2. The primary criteria for the granting of the visa included cl.573.231 of sch.2 of the Regulations. In effect, combined with cl.573.223(1A) of sch.2 of the Regulations, the Applicant was required, in order to satisfy condition 8516 of sch.8 of the Regulations, to continue to be enrolled or have an offer of employment in a course specified in Migration Regulations 1994 - Specification of Types of Courses for Student Visas - IMMI 14/015 (“the Instrument”), or be enrolled in a course provided by an eligible education provider for the award of a Bachelor’s Degree or Master’s Degree by Coursework. Pursuant to the Instrument, the types of courses which would satisfy cl.573.231 of sch.2 of the Regulations were limited to a Diploma (Higher Education), Advanced Diploma (Higher Education), Bachelor Degree, Graduate Certificate (Higher Education), Graduate Diploma (Higher Education), Associate Degree, and Masters by Coursework.

3. The Provider Registration and International Student Management System (“PRISMS”) records show that the Applicant’s enrolment in the Diploma of Information Technology course was cancelled on 25 September 2013, and his enrolment in the Bachelor of Information Technology course at Latrobe University was cancelled on 24 September 2013 (CB 17). Section 116(1)(b) of the Act provides the Minister with the power to cancel a visa if its holder does not comply with a condition of the visa. A notice of intention to consider the cancellation of his visa was sent to the Applicant on 31 October 2014 (CB 3). He provided a written statement in response dated 6 November 2014 (CB 9).

4. In his written statement, the Applicant indicated that he had ceased his studies and contemplated returning to India. In summary, he referred to his inability to adapt to the demands of university life and that he was extremely stressed and very uncertain, that he completed his first trimester of study but didn’t pass a single subject, realised he might not be doing the right course and decided to give up on his study and go back to India. He then decided to consult, and, upon guidance, had taken admission in CERT111, CERT IV in Commercial Cookery and Diploma of Hospitality. He said he now realised that he has been given wrong advice that led to a breach of the student visa condition.

5. He referred to the fact that he has now taken admission into a higher education Bachelor of Business course at Holmes Institute Melbourne, and he has taken this course not only to comply with his visa conditions under sub-cl.573 of sch.2 of the Regulations, but also to gain essential knowledge and comprehensive foundation in the breadth of business disciplines.

6. I should say that the Minister’s delegate cancelled the Applicant’s visa pursuant to s. 116(1)(b) of the Act, on 9 January 2015, for the reason that the Applicant breached condition 8516 of sch.8 of the Regulations by failing to remain in a higher degree course (CB 19).

Tribunal decision

1. Turning to the decision of the Tribunal, the Tribunal identified the relevant powers under s.116(1)(b) of the Act, and the fact that the Applicant’s visa was subject to condition 8516 of sch.8 of the Regulations. It noted the delegate’s finding and that the Applicant breached condition 8516 of sch.8 of the Regulations by failing to continue to be a person who satisfied the primary criteria for the grant of the visa (para. 10, CB 146).

2. The Tribunal formed the opinion that a ground for cancellation under s.116(1)(b) of the Act existed, and then subsequently turned to consider in its discretion whether or not to cancel the visa. In so doing, the Tribunal has regard to the Department of Immigration and Border Protection’s Procedure Advice Manual, PAM3, titled ‘General Visa Cancellation Powers’ (para.12, CB 146).

3. The Tribunal referred to the Applicant’s written submissions, and found that the Applicant arrived in Australia to complete a Diploma of Information Technology, before commencing a Bachelor of Information Technology. The Tribunal set out the Applicant’s evidence that he was having difficulty in the Diploma of Information Technology course (para.14, CB 146) and that it was his dream to have a job in Information Technology (para.16, CB 146).

4. The Tribunal set out that the Applicant told the Tribunal that he left the Diploma course because he was really upset that his mother had been diagnosed with Hepatitis C, and he decided to return to India (para.19, CB147). The Applicant also told the Tribunal that he attended extra tutorials to improve his English, and that he went on to study cookery (paras. 20-21, CB 147-148).

5. The Tribunal made what was ultimately one of a series of adverse credibility findings, where it did not accept that the Applicant took extra classes to improve his English, and found that he was “willing to contrive evidence” (para.22, CB 148). The Tribunal also went on to deal with the Applicant’s claims relating to his mental health (para.25, CB 149), that the Applicant claimed was a consequence of his mother’s illness.

6. The Tribunal stated that (para.25, CB 149):

   In response to questions the applicant confirmed he had not been diagnosed by medical practitioner as having depression. The tribunal considers the applicant’s claims in this regard to be contrived and manufactured.

7. The Tribunal then went on to deal with the Applicant’s claim that he was misguided by his Migration Agent. As the Applicant has identified the Tribunal’s failure to consider his evidence on this point (para.25, CB 149), it is appropriate to extract from that paragraph the following:

   “… The applicant broadly referred to being advised by a migration agent that he could pursue cookery as one of a number of options.  The applicant claimed that his agent told him that he wasn’t able to take admission into course of study in IT at that time; he chose cookery because he was fond of it.  The tribunal does not accept as truthful the applicant’s claim that he was told there were no IT course available. Indeed the applicant, in giving that evidence, really didn’t address the fact that he had already decided to change courses and had already terminated his enrolment in the IT course at Latrobe University.  If he had truly wanted to study in the field of information technology, he need not have cancelled his enrolment in Diploma of Information Technology.”

8. The Tribunal also stated (para.26, CB 149):

   “The tribunal places no weight on the applicant’s claim that he was misadvised by previous migration agent.  It appears to the tribunal that the applicant’s real complaint is that the agent did not advise him comprehensively about how he could appear to meet the conditions for the subclass 573 visa without in fact having any intention to complete a degree course.”

9. The Tribunal then moved on to consider the document which the Applicant has referred to in today’s proceedings, and that is the offer of Stott’s Colleges, dated 22 October 2013, in respect of a Bachelor of Business degree commencing 16 November 2015, with a completion date of 30 June 2017. The Tribunal noted that it spent some time discussing with the Applicant his future aspirations in commercial cookery and stated (para.27, CB 149):

   “… The applicant claims that he always intended to enrol in the Bachelor of Business degree subsequent to completing the hospitality qualifications. The tribunal is not satisfied the applicant obtained the offer of enrolment from Stott’s Colleges in the sincere belief that he would later in fact commence and complete that course. Rather the tribunal considers it more likely that the applicant obtained the offer of enrolment as a means of demonstrating as a technical exercise that he had an offer enrolment in a degree course, should he later need to do so. The tribunal places considerable weight on its finding that the applicant never in fact intended to complete the diploma and degree in IT.”

10. The Tribunal went on to consider hardship issues, but ultimately determined not to exercise its discretion to waive the failure of the Applicant to meet the visa condition, and decided that the visa should be cancelled.

11. Turning to the judicial review, I have earlier referred to the Applicant’s grounds for judicial review and the fact that the Applicant, in essence, says that the error of the Tribunal is its failure to consider the documents from CECA, and the offer of enrolment from Stott’s Colleges in a Bachelor degree, and his complaint that he was misguided by the CECA about the courses that he should enrol in.

12. There is no doubt in my mind that, in essence, the Applicant is asking the Court to review the merits of the Tribunal’s decision. It is settled principle that the assessment of the credibility of an Applicant is the function of the Tribunal and, as is apparent from the extracts of the decision record, the Tribunal simply found the Applicant not to be a credible person, and did not accept his claims about being misguided and the genuineness of his enrolment in the Stott’s Colleges Bachelor degree.

13. The Court cannot engage, as I emphasised to the Applicant at the commencing of proceedings, in merits review.  I refer to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

Conclusion

1. For the reasons that I have set out, I am satisfied that the Applicant does not have an arguable case simply because there is no evidence of jurisdictional error.

2. I have decided, therefore, that the application should be dismissed pursuant to Rule 44.12 (1)(a) of the Rules with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 9 March 2016