Sidhu v Minister for Immigration
[2018] FCCA 2763
•12 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIDHU v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2763 |
| Catchwords MIGRATION – Student (temporary) (class TU) (subclass 573) visa – applicant withdrew from tertiary course and enrolled in vocational course – breach of visa condition – tribunal considered circumstances of applicant’s change of enrolment – applicant’s grounds of review lacked particulars – sought impermissible merits review – application dismissed. |
| Legislation Migration Act 1958, s.116 |
| Applicant: | GURPREET SINGH SIDHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 442 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 12 September 2018 |
| Date of Last Submission: | 12 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 September 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed on 7 March 2016 is dismissed.
The applicant pay the first respondent’s costs of the proceeding in the fixed sum of $5 000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 442 of 2016
| GURPREET SINGH SIDHU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent Applicant
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
By application filed 7 March 2016, the applicant sought judicial review of a decision made on 17 February 2016 by the Administrative Appeals Tribunal, pursuant to which the tribunal affirmed the decision of the minister’s delegate to cancel the applicant’s subclass 573 higher education sector visa.
Grounds of review
The applicant relied on six grounds of review. Broadly, the applicant contended that the tribunal failed to consider his circumstances and the reason for his change in education pathways. He also hinted at a denial of procedural fairness. In the passages below, I have addressed each of his grounds of review, but it is sufficient to identify at this point in broad terms the contentions he made in this case.
Synopsis
For the reasons that follow, I reject the contentions that the tribunal fell into jurisdictional error in this case with a consequence that this application for judicial review must be dismissed and I order the applicant to pay the minister’s costs.
This application in context
On 20 December 2013 the applicant applied for a student (temporary) (class TU) (subclass 573) visa. On 28 January 2014 the applicant was granted the visa on the basis that he intended to study for a diploma of information technology and a bachelor of information technology at Victoria University.
It was common ground that on 9 September 2014 the applicant’s enrolment in those courses of study was cancelled on the basis that the applicant had withdrawn from his study. On 17 October 2014 the department sent the applicant a notice of its intention to consider cancelling his student visa in reliance upon s 116 of the Migration Act. In that notice the departmental officer stated that it appeared to the department that the applicant had breached condition 8516, being a condition imposed on his visa.
That condition required the holder to continue to be a person who satisfied the primary or secondary criteria for the grant of a visa. In the notice the department stated that, according to the PRISMS records, it appeared that the applicant was no longer enrolled in a bachelor’s degree or a master’s degree course and he was not enrolled in a course of study that was a prescribed course of study of the type specified for subclass 573 visas, with the consequence that he did not continue to satisfy sub‑cls 573.231 or 573.223(1)(a) of the Migration Regulations (“regulations”).
In that notification the department indicated that a two-step process was involved in deciding whether to cancel the applicant’s student visa. The notice went on to state that the delegate would take into account –
a)such matters as the purpose of his travel to and study in Australia;
b)the extent of his compliance with any conditions subject to which the visa was granted;
c)the degree of hardship that may be caused to the applicant and any family members if the visa was cancelled;
d)the circumstances in which the ground for cancellation arose; and
e)his past and present behaviour towards the department.
On 23 October 2014 the applicant provided a response to the departmental notice of intention to consider cancellation. He asserted that –
a)his parents pressured him to undertake the diploma course in information technology;
b)he was unable to cope with the course; and
c)he had approached an education counsellor and a migration agent to assist with changing his enrolment into commercial cookery so that he could pursue his study.
The applicant provided a letter of offer and confirmation of enrolment certificate for a bachelor of business at Holmes Institute dated 23 October 2014.
On 30 January 2015 the delegate cancelled the applicant’s visa on the basis that the applicant had breached condition 8516. Chief among its reasons was the delegate’s satisfaction that during the period from 9 September 2014 until 17 October 2014 the applicant had not continued to satisfy cls 573.231 or 573.223(1A) of sch 2 to the regulations and therefore he had breached condition 8516. The delegate also indicated that, having considered all relevant factors, the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.
On 3 February 2015 the applicant applied to the tribunal for a merits review of the delegate’s decision.
On 18 January 2016 the tribunal invited the applicant to attend a hearing scheduled on 17 February 2016 to give evidence and present arguments.
On 8 February 2016 the applicant provided a submission to the tribunal in which he addressed his study background in Australia. He also provided various certificates of enrolment for commercial cookery courses. The hearing was duly convened on 17 February 2016 before the tribunal, at which the applicant appeared.
On 17 February 2016 the tribunal affirmed the delegate’s decision to cancel the applicant’s visa. The tribunal stated it had considered the relevant factors recorded in the department’s procedures and advice manual (PAM3).
In paragraph 15 of its reasons the tribunal took into account the applicant’s evidence of the purpose of his travel to and stay in Australia, accepting that the applicant came to Australia to study and complete qualifications in information technology.
The tribunal considered the extent of his compliance with any conditions subject to which the visa was granted. That was in paragraph 16 of its reasons. The tribunal indicated it was willing to give the applicant the benefit of the doubt and it accepted that the applicant sought to maintain compliance with the conditions on his visa, giving that matter some weight.
The tribunal considered the degree of hardship that may have been caused to the applicant and his family members if the visa was cancelled, doing so in paragraph 17 of its reasons. The tribunal considered that the applicant and his family might suffer some emotional and financial hardship if the applicant were returned to India. However, the tribunal did not accept that the applicant would be unable to get a job or do further studies in India. Accordingly, the tribunal gave the matter little weight.
The tribunal considered the circumstances in which the ground for cancellation arose in paragraph 18 of its reasons. Specifically, the tribunal considered the applicant’s evidence regarding the circumstances of his breach of condition 8516 and whether the reasons for the breach were beyond his control.
The tribunal considered the applicant’s claims that he had been misguided by various persons, including migration agents, who advised him to cancel his enrolment at Victoria University. However, the tribunal relied on the applicant’s evidence that he wanted to apply for a subclass 572 visa so that he could undertake vocational education training, concluding that the applicant did not intend to study at higher education level and instead wanted to pursue education consistent for a trade or other vocation.
The tribunal did not accept that stress and depression contributed to the breach. It found that the applicant had no real idea about his future plans when asked about the identity of a prospective employer for which he might work once he finishes his bachelor of business in Australia. The tribunal concluded that it did not accept that his actions, which led to the breach of condition 8516, were beyond his control.
In paragraph 20 of its reasons the tribunal concluded that it was not satisfied that the applicant was a genuine student at higher education level and it placed significant weight on that factor in considering whether the visa should remain cancelled. In paragraphs 22 and 23 of its reasons the tribunal addressed whether the applicant had or had not been compliant with the department. Ultimately, the tribunal concluded that the visa should be cancelled, and it did so in paragraph 25 of its reasons in this court.
In this court
The applicant relied on six grounds in his application to this court. None were the subject of particulars. The minister’s solicitor pointed out that the absence of particulars entitled me to determine this case adversely to the applicant. However, when pressed, he did not rely on that ground, instead preferring me to consider each of the grounds on which the applicant relied, which I have done in the passages below.
Ground one
The minister construed that ground as a contention that the tribunal failed to consider the applicant’s circumstances in the facts of this case, relying on the reasoning in paragraph 11 to 15 and in paragraph 18 of the tribunal’s reasons. The minister contended that the tribunal did in fact consider the applicant’s circumstances and the reasons for the change in the applicant’s educational pathway. The minister contended that the relevant criteria were, in fact, addressed, those being stipulated in condition 8516, especially the criteria in cl 573.231 and sub‑cl 573.223(1)(a). I agree. It was apparent from a consideration of the tribunal’s reasons in paragraphs 15, 16, 17, 18 and 22 that it gave active intellectual consideration to the matters it was required to consider.
I reject ground one.
Ground two
Under this ground the applicant contended that the tribunal did not apply principles of natural justice. I do not agree. To the extent that the tribunal was required to comply with principles of procedural fairness, the tribunal did so. It gave the applicant notice of the hearing on 18 January 2016 in which the applicant was squarely told that the subject of the cancellation of his subclass 573 higher education sector visa was in issue and that he should provide documents on that issue.
The applicant knew or ought to have known the proceeding in the tribunal was a merits review and that the tribunal would be examining the same issues that the delegate examined, including the matters that the applicant had been told previously that the delegate would take into account. It could not be said in those circumstances that the applicant was under any misapprehension about the matters the tribunal was to investigate.
It must not be forgotten that the burden was on the applicant to establish his entitlement to the relief that he claimed. The applicant gave no details about the way in which he contended that there was any deviation in the tribunal’s conduct of this case according to the principles of procedural fairness. In those circumstances, I was not persuaded that ground two was made out.
Ground three
Under this ground the applicant contended that the tribunal failed to consider the circumstances that led to a change of his course from one of business and information technology to one of commercial cooking. I do not agree. A cursory reading of the tribunal’s reasons between paragraphs 11 and 15 and paragraphs 18 and 19 indicated that the tribunal did in fact consider the circumstances of the applicant’s change in educational pathways. As it happened the applicant was dissatisfied with the outcome of the tribunal’s consideration. That did not amount to jurisdictional error. Insofar as the applicant wanted me to somehow reach a different decision to the one the tribunal reached, I would be engaging in an impermissible merits review by acceding to his request and I expressly decline to do so.
Ground three was without merit.
Ground four
Under that ground the applicant appeared to assert that he contested the conclusion about the genuineness of his status as a student. Again, under that ground, the applicant was in reality inviting me to engage in a merits review, something expressly forbidden in an application for judicial review as a long line of cases in the High Court has established.
Ground five
The applicant asserted without particulars that the tribunal committed jurisdictional error. It was impossible to understand what he meant by that and I was unable to distil any factual or legal basis for that assertion.
I dismiss ground five.
Ground six
Under ground six the applicant said the hearing was de novo but the tribunal did not consider afresh the circumstances of his case, especially his having successfully obtained enrolment in the “same visa sector”. That last point was wrong. The applicant’s visa that was cancelled related to a higher education level and was applicable to his studies in information technology and business. The level at which he obtained a different form of enrolment was vocationally based, calling for admission to an inferior, vocationally-based course.
In my view the tribunal made no error when concluding that it did not accept the applicant’s evidence that he intended genuinely to study at a higher education level. The tribunal also recorded that the applicant only enrolled in a bachelor of business after he received the department’s notice of intention to consider cancellation, a matter passed upon in paragraph 21 of its reasons.
In my view ground six was without merit.
Conclusion
None of the grounds of review have been made out. I dismiss this application for judicial review and order the applicant to pay the minister’s costs fixed in the sum of $5 000.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 25 September 2018
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