Sidhu v Minister for Immigration

[2018] FCCA 1043

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1043

Catchwords:
MIGRATION – Visa – student visa – failure to satisfy conditions of visa – impermissible merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116(1)(b)

Cases cited:

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
CNN15 v Minister for Immigration and Border Protection [2017] FCA 579
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: JARNAIL SINGH SIDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 9 of 2017

Judgment of: Judge Heffernan

Hearing date: 6 March 2018

Date of Last Submission: 6 March 2018

Delivered at: Adelaide

Delivered on: 7 May 2018

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms N Milutinovic

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant to pay the costs of the first respondent fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 9 of 2017

JARNAIL SINGH SIDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for constitutional writs in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 12 December 2016.  That decision affirmed an earlier decision of the delegate of the first respondent which cancelled the applicant’s student (Temporary) (Class TU) Higher Education (subclass 573) visa (‘the visa’).  The applicant has raised one ground as follows:

   “The Tribunal is agree with my all circumstances and evidences which I already provided them, but I am not satisfied with their decision, because my all reasons are genuine.  I want to recheck their decision, because my future stands on this decision.”  (verbatim)

2. On 2 March 2017, a Registrar of the Court gave the applicant leave to file and serve such further material on which he sought to rely by 28 April 2017.  He was also given leave to file any amended application by that date.  He was ordered to file and serve any outline of submissions at least 14 days prior to the hearing.  No further materials have been filed by or on behalf of the applicant, and he has not filed any amended application.  The Court has not received any written outline of submissions from him.

3. The applicant indicated that he relied on the materials in the Court Book as well as the affidavit sworn by him on 10 January 2017, which accompanied the originating application.  That affidavit simply annexes a copy of the decision record of the Tribunal, but otherwise adds nothing of substance to these proceedings.  The background to this matter has been conveniently summarised in the written submissions of the first respondent.  I do not understand any aspect of that summary to be disputed by the applicant, and for that reason I have paraphrased it below.

4. In essence, the applicant was in a position whereby he was unable to pay his fees for the tertiary course in which he sought to be enrolled.  That placed him in breach of a condition of his student visa, and as a result gave rise to grounds for the Minister to cancel that visa.  A delegate cancelled the visa, and the Tribunal affirmed that decision.

5. The applicant is an Indian citizen and was initially granted the visa on 10 June 2014.  That visa was subject to condition 8202.  That condition required that the applicant be enrolled in a registered course at all times whilst he held the visa.  It was the applicant’s intention to study a Masters of Information Technology. 

6. The Department issued the applicant with a Notice of Intention to Consider Cancellation (‘NOICC’) on 14 April 2016. The basis of that Notice was that pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’), there appeared to be a ground for cancellation because of a breach of condition 8202(2)(a), which required the applicant to be enrolled in a registered course. The applicant was given an opportunity to respond to the NOICC.

7. A migration agent, acting on behalf of the applicant, responded to the NOICC on 21 April 2016.  No issue was taken with the fact that grounds for cancellation existed.  However, it was submitted on the applicant’s behalf that he had not enrolled in the relevant course because he had mental health issues and personal issues relating to his family and his upbringing as a child.[1]  The migration agent provided a letter from the applicant’s doctor and psychologist in support of that submission, as well as statutory declarations from the applicant, a friend of the applicant, and the applicant’s cousin.

   [1]     Court Book (‘CB’) pp 7 – 11.

8. A delegate of the Minister cancelled the visa pursuant to s.116(1)(b) on 27 April 2016. The basis for cancellation was a breach of condition 8202. The delegate was satisfied on the basis of information obtained from the Provider Registration and International Student Management System (‘PRISMS’) database that the applicant had not been enrolled in a registered course of study since 10 December 2014. Accordingly, the delegate was satisfied that the applicant did not meet the requirements of condition 8202(2)(a). The delegate was satisfied that the basis for cancelling the visa outweighed any considerations against cancelling it.

9. The applicant applied to the Tribunal to review that decision.  The applicant was aware of the basis for the delegate’s decision because a copy of it was provided to the Tribunal with the review application.

10. The Tribunal hearing took place on 22 November 2016, and on 12 December 2016 the Tribunal affirmed the delegate’s decision to cancel the visa. The Tribunal relied on, and was satisfied, that the information from PRISMS established that the applicant had ceased to be enrolled in a registered course on 10 December 2014. As a result it was satisfied that a ground for cancellation existed under s.116(1)(b) of the Act.[2]

    [2]     CB p 65 at [8] to [10].

11. In considering the exercise of the discretion to cancel the applicant’s visa the Tribunal took into account those matters identified in the Department’s Procedures Advice Manual (‘PAM3’) and the evidence that had been given by the applicant to both the Department and the Tribunal.

12. In particular, the Tribunal had regard to the letter from the applicant’s doctor which indicated that he was suffering from depression relating to stress and traumatic events in his childhood.[3]

    [3] CB p 66 at [15].

13. The decision record of the Tribunal indicates that it gave active consideration to both the general practitioner’s report, a report from the psychologist Dr John Gurr, and the statutory declarations made by the applicant, his cousin and his friend.[4]

    [4]     CB p 66 at [16]-[19].

14. Further, the applicant gave evidence before the Tribunal, and it is apparent from the decision record that the Tribunal considered that and actively sought to illicit from the applicant the reasons for why he was in breach of the visa conditions.  The Tribunal took account of the personal circumstances that the applicant detailed to it and the impact on him in his view if he were to return to India without obtaining qualifications.[5]

    [5] CB p 67 at [26].

15. However, the view taken by the Tribunal was that given the purpose of the student visa was to enable a visa holder to undertake studies in Australia, and that the applicant had not been enrolled in a registered course for a period of 15 months prior to the date of issue of the NOICC, and that he had originally come to Australia to obtain a qualification in Information Technology and yet now indicated he wanted to undertake study in a different field, the Tribunal was satisfied the applicant was not fulfilling the purpose of his travel to and stay in Australia. 

16. It was satisfied that he had remained in Australia working rather than undertaking study.  Whilst the Tribunal noted the applicant’s evidence that he sought to enrol in a TAFE course in July 2015, it was not satisfied that he continued to attempt to enrol in an appropriate course of study during the relevant period.  Accordingly, the Tribunal found that the applicant’s breach of condition 8202 was significant, because he was not enrolled in a registered course for a substantial period of time, and by reason of that was not fulfilling the purpose of his travel to and stay in Australia.[6]

    [6]     CB pp 67 & 68.

17. Further, when considering whether or not to cancel the visa the Tribunal considered and found that the breach did not occur in circumstances that were beyond the applicant’s control.  The Tribunal found that there were no extenuating or compassionate circumstances in the applicant’s case.  It accepted that he had had a difficult childhood, and that this may have caused him to be depressed from time to time during his life, but was not satisfied that there was a direct link between his mental health and his failure to remain enrolled in a registered course of study.[7]

    [7] CB p 68 at [34].

18. With respect to the explanation advanced by the applicant that he was upset by his uncle’s demands and did not have the financial means to continue studying in 2014, the Tribunal correctly noted that it was a responsibility of a visa holder to ensure that they had adequate financial resources available to maintain enrolment for the duration of the student visa.[8]

    [8] Ibid.

19. The Tribunal accepted that the applicant would suffer hardship by virtue of the cancellation of his visa, because he would not be able to apply for a visa to return to Australia in the near future.  It also accepted that he had “nothing to do” when he returned to India.  As a result of the breach of the visa condition, the Tribunal affirmed the decision of the delegate.

Consideration

1. The ground of review does not identify any relevant jurisdictional error on the part of the Tribunal.  On its face that ground simply complains that the discretion was not exercised in the applicant’s favour.  In other words, the ground itself is a complaint relating to the merits of the Tribunal’s decision.  It is well established and beyond argument that it is not the purpose of this Court in conducting a judicial review in relation to migration matters to conduct a merits review. 

2. This Court has no power to simply substitute its own view of the evidence for that of the Tribunal.  The applicant made brief submissions before me.  He agreed that there was a basis upon which the Tribunal had a discretion to cancel his visa but told the Court his circumstances were problematic.  He told the Court that he was upset and that he was unable to pay his student fees.  His submission was that he had submitted all documents he was required to, and he just wants the decision of the Tribunal to be “rechecked” in order to give him one last chance. 

3. He reminded the Court that he had no relatives now in India, and that he had nothing to do if he were to return there.  He was adamant that he came to Australia to study, and that he genuinely desired to stay here for that purpose.  At no point in the applicant’s submissions was he able to demonstrate any error on the part of the Tribunal.  It was his position simply that the discretion should have been exercised in his favour. 

4. Allowing for the fact that the applicant is self-represented in these proceedings, I have read the decision record with an eye to considering whether or not there was any lack of procedural fairness on the part of the Tribunal.  I have also considered whether or not the Tribunal was correct in finding that there was a factual basis upon which to conclude that there had been a breach of condition 8202 and that as a result there were grounds pursuant to s.116(b) to cancel the visa.  I am satisfied that there was an appropriate evidential basis and that as a result the Tribunal was correct in concluding that grounds did exist to cancel the visa.

5. I accept the submission of the first respondent that the applicant’s ground of application lacks sufficient particularity to make it meaningful and does not disclose on its face any jurisdictional error.  I accept that it is permissible to dismiss an application on that basis alone.[9]  I accept the submission of the first respondent that on its face the applicant’s ground taken at its highest, and indeed his oral submissions, amount to a disagreement with the Tribunal’s finding of fact in considering the exercise of its discretion of whether to cancel the visa.  I am satisfied that this application amounts to a request for an impermissible merits review.  This is a matter in which the observations of the Full Court in NAHI v Minister for Immigration and Multicultural Affairs[10] are applicable:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants' case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

   [9]     WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [21].

   [10] [2004] FCAFC 10 at [10].

6. I am satisfied that the Tribunal’s finding that there had been a breach of condition 8202 was open to it. I am not able to discern that there has been any failure to comply with the principles of procedural fairness in terms of the Tribunal’s obligations under Part 5, Division 5 of the Act. The applicant was clearly on notice of the determinative issues by virtue of the delegate’s decision.

7. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  7 May 2018