Sandhu v Minister for Immigration - [2020] FCCA 1158

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1158

Catchwords:
MIGRATION – Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa – Visa cancellation – decision of Administrative Appeals Tribunal – whether Tribunal properly considered evidence and Visa criteria – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 476

Migration Regulations 1994 (Cth), reg.1.40A, cls.573.223(1A), 573.231 of sch.2, condition 8516 of sch.8

Cases cited:

Ravinder v Minister for Immigration & Anor [2018] FCCA 803
Shrestha v Minister for Immigration & Anor [2017] FCCA 1875

Singh v Minister for Immigration [2018] FCA 29

Singh v Minister for Immigration and Border Protection [2016] FCA 611

Applicant:

AMNINDER SINGH SANDHU

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2114 of 2015

Judgment of:

Judge C. E. Kirton QC

Hearing date:

18 June 2018

Date of Last Submission:

18 June 2018

Delivered at:

Melbourne

Delivered on:

20 May 2020

REPRESENTATION

The Applicant:

In person with the assistance of an interpreter

Solicitors for the Respondents:

Sparke Helmore Lawyers

The Second Respondent:

Submitting appearance, save as to costs

ORDERS

The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 15 September 2015 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2114 of 2015

AMNINDER SINGH SANDHU

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By way of an application filed on 15 September 2015 (Judicial Review Application), the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 19 August 2015.
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister), dated 12 January 2015, to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa (Visa).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). To obtain relief from this Court, the Applicant must show jurisdictional error in the Tribunal’s decision.

Background

The Court had before it a Court Book numbering 74 pages. The Court has reviewed the material contained in the Court Book in detail.
The Court notes that the Minister’s written submissions filed on 1 June 2018 (Minister’s Submissions) at [4]-[10] accurately summarise the factual history of this matter. The Court adopts those submissions, with minor amendments, as its own. They provide, relevantly, as follows.
On 11 February 2013, the Applicant was granted the Visa[1].
[1] Court Book (CB) 17.
On 24 October 2014, a delegate of the Minister sent the Applicant a Notice of Intention to Consider Cancellation of the Applicant’s Visa (NOICC)[2].
[2] CB 3-7.
The NOICC informed the Applicant, among…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1158
Decision Date: 20 May 2020

CaseChat Overview and Summary

This matter concerned an application to the Federal Circuit Court of Australia by an applicant challenging the Administrative Appeals Tribunal's decision to affirm the cancellation of his Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa. The dispute arose from the Tribunal's finding that the applicant had ceased to be enrolled in an eligible course and consequently failed to comply with condition 8516 of his visa, thereby providing a ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth).

The court was required to determine whether the Tribunal had properly considered all relevant evidence and visa criteria when affirming the cancellation decision, and whether it had committed any jurisdictional error in its assessment. Specifically, the court examined the Tribunal's findings regarding the applicant's enrolment status, his compliance with visa conditions, and its subsequent consideration of discretionary factors relevant to the cancellation of the visa.

In its reasoning, the court adopted a summary of the Tribunal's decision, which detailed the Tribunal's findings that the applicant's failure to maintain enrolment was within his control. The Tribunal had considered the applicant's claims of receiving poor advice from migration agents but was not satisfied that misadvice had occurred or that a migration agent had failed to respond to a Notice of Intention to Consider Cancellation. The Tribunal weighed the substantial period of breach of condition 8516, the applicant's shift to unrelated cookery courses suggesting an attempt to use the visa for a different purpose, and the lack of substantial hardship to the applicant or his family upon cancellation. While acknowledging the applicant's completion of some commercial cookery units and his stated intention to re-enrol in a Master of IT course, the Tribunal concluded, after considering all circumstances, that the visa cancellation was warranted. The court found no jurisdictional error in the Tribunal's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal’s decision appears at pages 59 to 65 of the Court Book (Tribunal’s Decision). The Minister’s Submissions at [11]-[16] accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own. On 19 August 2015, the Tribunal affirmed the Delegate’s Decision[18]. The Tribunal found that in August 2013 the Applicant ceased to be enrolled in an eligible course and that he did not have such an enrolment afterwards[19]. The Tribunal found that the Applicant consequently ceased to satisfy cls.573.231 or 573.223(1A) of sch.2 of the Regulations, and so failed to comply with condition 8516 of his Visa[20]. The Tribunal was therefore satisfied that, pursuant to s.116(1)(b) of the Act, the ground for cancellation of the Visa existed[21].[18] CB 59-65.[19] CB 62 at [13].[20] CB 62 at [14].[21] CB 62 at [15]. The Tribunal then proceeded to consider matters relevant to the exercise of the discretionary power to cancel the Applicant’s Visa. In doing so, it had regard to matters identified in the Minister’s Department’s Procedures Advice Manual[22].[22] CB 62 at [16]. The Tribunal found that the Applicant’s failure to remain enrolled in an eligible course was within his control[23]. The Tribunal took into account the Applicant’s claims that he had received poor advice from migration agents[24] but was not satisfied on the evidence before it that the Applicant had been misadvised or that his second migration agent had failed to respond to the NOICC[25]. [23] CB 62 at [18]; 63 at [24].[24] CB 62-63 at [19]-[21].[25] CB 63 at [22]. The Tribunal took into account that the Applicant was in breach of condition 8516 for a substantial period of time and considered that the extent of the breach was a significant factor that favoured cancellation of the Visa[26]. The Tribunal also took into account the Applicant’s explanation for why he cancelled his course at the higher education level and enrolled in cookery courses. The Tribunal considered the Applicant’s willingness to stop studying at the master’s level and swap to low level courses in a totally unrelated field of cookery and hospitality indicated that he was attempting to use the Visa he was granted for a different purpose[27].[26] CB 63 at [25].[27] CB 63 at [26]. The Tribunal considered whether the Applicant or his family would suffer hardship as a result of the cancellation of the Visa, and found that the Applicant already had a bachelor degree which he could use to gain admission to university in India or find employment in the IT sector in India[28]. The Tribunal accepted that the Applicant’s family would be disappointed, but did not accept that would cause them substantial mental stress or hardship[29].[28] CB 64 at [27].[29] CB 64 at [27]. The Tribunal took into account that the Applicant had successfully completed a number of units in commercial cookery, but gave it only limited weight in his favour[30]. The Tribunal considered and gave some weight to the Applicant’s evidence that if his Visa was not cancelled he would seek to enrol again in a Masters of IT with the assistance of his brother[31], but concluded, considering the Applicant’s circumstances as a whole, that the Visa should be cancelled[32].[30] CB 65 at [33].[31] CB 65 at [34].[32] CB 65 at [35].

Ratio Decidendi

Legal Principle Established

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