Singh, Balwinder v Minister for Immigration and Multicultural Affairs

[1998] FCA 1562

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 816 of 1998

BETWEEN:	BALWINDER SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J.
DATE:	1 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Proceedings
The applicant seeks review of a decision of the Immigration Review Tribunal (“IRT”), made on 6 August 1998. The IRT affirmed a decision by a delegate of the Minister, made pursuant to s 116 of the Migration Act 1958 (Cth) (“Migration Act”) to cancel the applicant’s Class TU Student (Temporary) Subclass 560 visa (“the visa”).  The delegate’s decision was made on 27 July 1998.

The applicant is an Indian citizen, aged 22.  On 22 May 1998, he obtained the visa in India.  The visa was expressed to be valid until 3 June 2000.  It enabled him to complete a two year diploma course in Business Management at the Kent Business College in Sydney (“the College”).  The course for which the applicant enrolled commenced on 8 June 1998.

The visa included the following conditions (see Migration Regulations, Schedule 8):

“8105           The holder must not engage in work in Australia (other than in relation to the holder’s course of study or training) for more than 20 hours a week during any week when the institution at which the holder is studying is in session.”

8202The holder must satisfy course requirements.”

The applicant entered Australia on 1 July 1998.  The College advised the Department in writing on 27 July 1998 that the applicant’s enrolment had been cancelled.  A handwritten note on the Department’s file records advice from the College director that no staff at the College had ever seen the applicant and that he had made no contact with the College.  The College also advised that there was no break in July.

Within a few days of arriving in Australia, the applicant proceeded to Griffith, in New South Wales, apparently in order to see some friends.  As he subsequently admitted to both the Departmental Compliance Officer and the IRT, while in Griffith he worked for Riverina Wines for two weeks prior to the cancellation of his visa.  During one of those weeks he worked 17.5 hours; in the other he worked 29.5 hours.

On 27 July 1998, the applicant went with some friends to Canberra. One of his friends was required to attend an interview at ACT Regional Office of Department of Immigration and Multicultural Affairs. According to the applicant, he went to Canberra “just for the ride”. Be that as it may, the applicant was interviewed on that day by a Compliance Officer. The Compliance Officer notified the applicant in writing at the interview that his visa had been cancelled pursuant to s 116(1)(a) and (b) of the Migration Act.  The grounds identified were that the applicant had failed to meet the College course requirements in consequence of which his enrolment had been cancelled and that he had worked in breach of the conditions attached to his visa.  The applicant was immediately taken into custody.  He has since remained in custody.

On 29 July 1998, the applicant had a further interview with a Compliance Officer.  However, on this occasion no decision was made relevant to the present proceedings.

The applicant applied to the IRT for review of the cancellation decision (see Migration Act, s 346(1)(d); Migration Regulations, reg 4.09(d)).  On 6 August 1998, the IRT affirmed the decision under review.

The applicant now applies to the Court for review of the IRT’s decision.  He claims that the IRT’s decision involved an error of law (Migration Act, s 476(1)(e)), in that it failed

• to consider the financial and emotional hardship that the applicant would experience if his visa were cancelled; or

• to weigh the circumstances bearing on the exercise of the discretion conferred on the Minister by s 116(1) of the Migration Act.

The Legislation

Section 116(1) of the Migration Act, so far as relevant, provides as follows:

“116(1)        …the Minister may cancel a visa if he or she is satisfied that:

(a)any circumstances which permitted the grant of the visa no longer exist; or

(b)its holder has not complied with a condition of the visa….”

IRT Decision

The IRT gave its decision after a hearing on 5 August 1998 at which the applicant was represented by a migration agent.  The IRT stated that it took into account the oral evidence and the written material in the files.  The IRT had the benefit of brief written submissions made on the applicant’s behalf by the migration agent.

The IRT quoted from the policy guidelines (MSI 169) applicable to cases in which a visa may be cancelled.  The relevant sections of the guidelines are as follows:

“17.   DECIDING WHETHER TO CANCEL

17.1The decision whether to cancel a visa under s 128 is a two-step process.  The delegated officer must first consider whether he or she is satisfied that there is a ground for cancellation under s 116.  If it is decided that a ground for cancellation does not exist, no further action needs to be taken.

17.2If the delegated officer determines that a ground for cancellation exists, the officer is to decide whether to cancel the visa, having regard to, but not being limited by, the following matters:

·    The purpose of intended travel to Australia;

·    Whether evidence suggests that the visa holder intends a temporary stay or permanent say in Australia;

·    Whether the visa holder has travelled to or spent any time in Australia on other occasions;

·    The present circumstances of the visa holder, such as:

-the degree of hardship which would be caused to Australian citizens or permanent residents, if the visa were cancelled and the person not permitted to travel to and/or enter Australia;

-any hardship the visa holder would suffer;

·     the circumstances in which the ground for cancellation arose;

·     the seriousness of the ground for cancellation;

·the visa holder’s previous behaviour in relation to the Department cooperation with the Department, willingness to come forward, timeliness of responses to the Department.

17.3This list is not intended to be comprehensive and it is incumbent on the decision-maker to take into account all relevant matters when deciding whether or not to cancel a visa.”

The IRT noted that policy guidelines are to be observed by the IRT unless there are cogent reasons to the contrary or the policy is inconsistent with law: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (FC).

The IRT then considered the evidence.  It recorded the applicant’s claim that he had attended the College on 2 or 3 July 1998, but had been told to return in about a week or ten days after the semester break.  The applicant had also said that he went to Griffith in order to visit a friend and took a temporary job there at the friend’s suggestion, intending to return to Sydney.  He asked for another chance, stating that it would destroy his life if he lost his visa since his parents would not allow him another opportunity to study.  The applicant said that he intended to apply the skills learned during his business studies to open a small business in India.

The IRT also recorded that the College had written to the applicant advising that he could re-enrol for a four week English course beginning on 31 August 1998 and commence his business studies on 12 October 1998.  The applicant stated that he wished to find accommodation in Sydney in order to take advantage of the College’s offer.  He claimed that he would receive financial support from his parents in India.

The IRT’s reasons continued as follows:

“Based on the above evidence, I find that a ground has been established that his visa may be cancelled.  The Applicant, by his own admission and on the evidence of his employer, was working more than 20 hours a week.  The ground for cancellation is in s 116(1)(b).

In answer to questions about the procedure followed by the Department to cancel the visa the Visa Applicant said he was told immediately that his visa was being cancelled and he was not given an opportunity to provide reasons why it should not be cancelled.  The Tribunal finds no evidence on the file to suggest that the Department did not comply with the requirements regarding visa cancellations.

The next step required by the law is to decide whether the visa should be cancelled.  In reaching this decision the Tribunal has had regard, among other things, to the matters set out in the policy guidelines.

The Visa Applicant travelled to Australia for the sole purpose of studying.  He has not previously visited Australia.  If this visa is cancelled, no hardship would be experienced by any Australian citizen or a permanent resident.  The Visa Applicant will not be able to pursue his studies because of his breach of Australian migration law.  Also in favour of the Applicant it may be said that he is young and may have misunderstood Australian laws and conditions.  He has cooperated with the Department.  However against this is the fact that he was granted a student visa to undertake a specific course and has not done so.  He knew the condition of his visa and chose to disregard it although he blames his friend and his employer for this decision.  On the basis of his behaviour I conclude that he had no intention of studying in this country.  Taking all of the above circumstances into account, I am satisfied that his visa should be cancelled.  Accordingly, I have decided the affirm the decision under review.”

It will be seen that the IRT found that the ground for cancellation was that specified in s 116(1)(b) of the Migration Act. It placed no reliance on s 116(1)(a) of the Migration Act, doubtless because of the letter from the College to which I have referred.

Complaints About the Delegate’s Decision

In the course of submissions, Mr Newman, who appeared on behalf of the applicant, pointed to what he said was procedural irregularities in the decision-making process of the delegate.  In particular, he complained that the delegate had given the applicant a mere ten minutes notice on 27 July 1998 of his intention to cancel the visa.  The applicant was required to show cause within that ten minutes as to why his visa should not be cancelled.

Mr Newman’s purpose in referring to the short period of notice afforded to the applicant appears to have been to suggest that the IRT was somehow infected by the delegate’s haste. In the course of argument, some reference was made to the possibility that the procedures adopted by the delegate did not conform to notification requirements specified in ss 119 and 121 of the Migration Act. However, Mr Newman correctly conceded that any deficiencies in the procedures followed by the delegate could not constitute a ground of judicial review open to the applicant in the present proceedings. Since the delegate’s decision was not a “judicially-reviewable decision”, as defined by s 475(1) of the Migration Act, the Court has no jurisdiction to review it: s 485(1).  It is therefore neither necessary nor appropriate to address whether the delegate’s procedures were flawed.

Did the IRT Err?

The substance of Mr Newman’s argument was that the IRT failed to take into account circumstances relevant to the exercise of the discretion conferred by s 116(1) of the Migration Act. In particular, Mr Newman argued that the IRT had failed to take into account that the breach of visa condition was relatively trivial and that the applicant would suffer hardship if the visa were cancelled.

It is by no means clear that, even if the applicant’s criticism of the IRT’s reasons were well-founded, it would give rise to a ground of review under the Migration Act: see s 476(2)(e).  However, I am prepared to assume that, if the criticism is well-founded, the applicant would be entitled to succeed.  The difficulty in the applicant’s path is that, although the IRT’s reasons are brief, I do not think it overlooked the considerations on which the applicant relied.

The principles upon which the IRT’s reasons are to be construed are well settled.  The Court is not to be concerned with looseness in the language of the reasons of an administrative decision-maker.  Nor is it to construe the reasons minutely “with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic (1993) 43 FCR 280 (FC), at 287, applied in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, per Brennan CJ, Toohey, McHugh and Gummow JJ.

Bearing these principles in mind, it cannot be said that the IRT failed to consider possible hardship to the applicant.  The IRT’s reasons explicitly noted the applicant’s claim that the cancellation of his visa would destroy his life.  When considering whether the discretionary power to cancel the visa should be exercised, the IRT took into account that, if the visa were cancelled, he would not be able to pursue his studies because of his breach of the migration laws.  In making this comment, the IRT plainly had in mind the consequences claimed by the applicant, to which it had previously made express reference.  The IRT considered that those consequences were outweighed by other factors.  In particular, it found that the applicant’s behaviour demonstrated that he had no intention of studying in Australia.  Mr Newman conceded that it was open to the IRT to make this important finding of fact, even though the finding was not consistent with the applicant’s evidence.

Nor do I not think it can be said that the IRT failed to give due consideration to the seriousness of the applicant’s breach of his visa conditions.  The IRT specifically quoted the policy guidelines which identified this as a material factor in deciding whether or not to cancel the visa.  It said that the guidelines had been taken into account in reaching its decision.  The IRT was obviously aware of the nature of the breach of the applicant’s visa condition.  It was entitled to take into account on this issue, as on others, the finding that the applicant had no intention of studying in Australia.  It is of course true that the applicant had worked for only two weeks and had exceeded the twenty hour limitation only once.  But, as the IRT obviously appreciated, he had only been in the country for a little over three weeks prior to the cancellation of his visa.  It was open to the IRT to conclude, as it obviously did, that the applicant’s breach of his visa condition was a serious matter, since it flowed from his intention not to undertake the studies for which his visa provided.

Mr Newman also argued that the IRT had not undertaken the weighing process contemplated and required both by s 116(1) of the Migration Act and the policy guidelines. This submission has largely been answered by what I have already said. Assuming that the IRT was required to undertake a weighing process, I think that it did so. The last paragraph of the reasons quoted earlier in this judgment addresses, albeit briefly, the circumstances material to the exercise of the discretion conferred by s 116(1). It is not accurate to suggest, as Mr Newman did, that the IRT simply listed the competing considerations without assessing them. The IRT considered that the factors in the applicant’s favour were outweighed by the competing considerations. In particular, the IRT formed the view that the breach was not trivial and that the applicant, despite the conditions attached to the visa, had no intention of studying in Australia. As I have noted, Mr Newman accepted that it was open to the IRT to make the latter finding.

Mr Newman cited observations made by Black CJ in Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409, at 412-413, quoted with approval by Burchett J in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 (FC), at 618 (who said that the observations were unaffected by the decision of the High Court in Teoh (1995) 183 CLR 273). In these observations, Black CJ specifically stated that the weight to be given to competing factors is a matter for the decision-maker to decide. Perhaps not every decision-maker would have reached the same conclusion as the IRT in the present case. But that is not a ground for judicial review of the IRT’s decision.

Finally, Mr Newman submitted that it was not open to the IRT to take into account the subjective intentions of the applicant.  He contended that the applicant’s intentions were relevant only on the issue of whether the IRT could be satisfied that any circumstances permitting the grant of the visa no longer existed (Migration Act, s 116(1)(a)). Since the IRT did not rely on s 116(1)(a), the finding that the applicant did not intend to study in Australia, although open to the IRT on the evidence, was not relevant to the question of whether the power to cancel the visa should be exercised.

This submission seems to travel beyond the grounds of review relied on by the applicant and, moreover, is not easy to reconcile with the other submissions made on his behalf.  In any event, the finding as to the applicant’s intention was clearly material to the circumstances in which the ground for cancellation arose and the purpose of the applicant’s travel to Australia (both matters specifically identified in the policy guidelines).  The submission should be rejected.

Conclusion

The appeal must be dismissed.  The decision of the IRT is affirmed.  The applicant must pay the Minister’s costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:             1 December 1998

Solicitor for the Applicant:	Newman & Associates
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 December 1998
Date of Judgment:	1 December 1998