Sidhu v Minister for Immigration and Border Protection
[2018] FCA 1829
•21 November 2018
FEDERAL COURT OF AUSTRALIA
Sidhu v Minister for Immigration and Border Protection [2018] FCA 1829
Appeal from: Sidhu v Minister for Immigration & Anor [2018] FCCA 1043 File number: SAD 116 of 2018 Judge: MOSHINSKY J Date of judgment: 21 November 2018 Legislation: Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Sch 8, cl 8202
Date of hearing: 21 November 2018 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 19 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms NA Milutinovic of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
SAD 116 of 2018 BETWEEN: JARNAIL SINGH SIDHU
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
21 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
3.Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
4.In the absence of agreement, within 21 days the first respondent file and serve an affidavit constituting a costs summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).
5.Within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
6.In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
The appellant, a citizen of India, appeals from orders of the Federal Circuit Court of Australia, relating to the cancellation of a student visa.
The background to the appeal is as follows.
On 10 June 2014, the appellant was granted a Student (Temporary) (Class TU) Higher Education (Subclass 573) visa (student visa). This visa was subject to condition 8202, which required the appellant to be enrolled in a registered course. The appellant was due to undertake a Masters of Information Technology.
On 14 April 2016, the Department of Immigration and Border Protection (the Department) issued a notice of intention to consider cancellation of the appellant’s student visa on the basis that he was in breach of condition 8202.
The appellant’s migration agent responded to the notice on the appellant’s behalf.
On 27 April 2016, a delegate of the first respondent (the Minister) cancelled the appellant’s student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the appellant was not enrolled in a registered course and thus was in breach of condition 8202.
The appellant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision. The appellant presented evidence at a hearing before the Tribunal.
On 12 December 2016, the Tribunal affirmed the decision of the delegate to cancel the appellant’s student visa. The Tribunal first considered whether there was a ground to cancel the visa. The Tribunal had regard to information on the Provider Registration and International Management System (PRISMS) that showed that the appellant had not been enrolled in a registered course of study from 10 December 2014. On this basis, the Tribunal found that the appellant ceased to be enrolled in a registered course on 10 December 2014 and therefore breached condition 8202 of his student visa. It does not appear that there was any real issue about these matters.
The Tribunal then went on to consider whether to exercise the discretion to cancel the visa. The Tribunal described the material provided by the appellant by way of explanation for his failure to be enrolled in a registered course: see [13]-[28] of the Tribunal decision. The Tribunal stated, at [30], that the purpose of the student visa was to enable the visa holder to undertake study in Australia. The Tribunal noted that the appellant had not been enrolled in a registered course since 10 December 2014, and 15 months had elapsed from that date until the date when the notice of intention to consider cancellation was issued. The Tribunal found, at [33], that the appellant’s breach of condition 8202 was significant because he was not enrolled in a registered course from 10 December 2014 and was not fulfilling the purpose of his travel and stay in Australia. The Tribunal found that the appellant’s non-enrolment from 10 December 2014 was a significant breach given the central importance of enrolment to a student visa and the time that had elapsed.
The Tribunal also found, at [34], that: the breach did not occur in circumstances beyond the appellant’s control; and there were no extenuating or compassionate circumstances. The Tribunal made note of the appellant’s personal circumstances as described in his evidence and took these matters into consideration in reaching its decision. Ultimately, the Tribunal concluded that the appellant’s student visa should be cancelled.
The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellant was self-represented. His sole ground of judicial review was:
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.
(Errors in original.)
The appellant appeared for himself at a hearing before the Federal Circuit Court. The hearing took place on 6 March 2018.
On 7 May 2018, the Federal Circuit Court decided to dismiss the application for judicial review. The primary judge described the background to the application, including the decision of the Tribunal. The primary judge considered the application for judicial review at [20]-[25] of the reasons. The primary judge noted at [20] of the reasons that: the ground of review did not identify any relevant jurisdictional error on the part of the Tribunal; on its face, the ground simply complained that the discretion had not been exercised in the appellant’s favour; and, in other words, the ground was a complaint relating to the merits of the Tribunal’s decision. The primary judge noted, at [22], that: at no point in the appellant’s submissions was he able to demonstrate any error on the part of the Tribunal; his position was simply that the discretion should have been exercised in his favour.
In circumstances where the appellant was self-represented, the primary judge went on to consider whether there had been any denial of procedural fairness by the Tribunal. His Honour was satisfied that there had not been any denial of procedural fairness: see [23] and [25] of the primary judge’s reasons.
The appellant appeals to this Court from the orders of the Federal Circuit Court. The appellant is self-represented. His notice of appeal contains the following ground:
The Tribunal is agree with my all circumstances and evidence which I already provided. I am not satisfied with their decision becoz my all reasons are genuine.
(Errors in original.)
The appellant has not filed any submissions in support of his appeal. At the hearing today, he made some brief oral submissions referring to his personal circumstances, but did not identify any error in the decision of the primary judge or the decision of the Tribunal.
The appellant’s ground of appeal does not identify with any particularity any error by the primary judge or by the Tribunal.
On the basis of my review of the reasons of the primary judge, I do not detect any error. Further, based on my review of the decision of the Tribunal, I do not detect any jurisdictional error. I am satisfied that the view that the Tribunal reached was open to it on the basis of the material that was before it.
It follows that the appeal is to be dismissed. In relation to costs, the usual order is that costs follow the event. The appellant has referred to his financial circumstances, but this does not provide a proper basis upon which to depart from the usual position that costs follow the event. I will also make directions for the costs to be determined by way of a lump sum.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 27 November 2018
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