SINGH v Minister for Home Affairs

[2019] FCCA 2120

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2120

Catchwords:
MIGRATION – Cancellation of student visa due to non-compliance with requisite enrolment conditions – materiality of one of the findings of the Tribunal – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), Sch 2, Cl 573.231, Cl 573.223(1A), Sch. 8, Condition 8202(2), 8516

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

Cases cited:

Hossain v Minister for Immigration [2018] 359 ALR 1

Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429
CED15 v Minister for Immigration and Border Protection [2018] FCA 451
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332
Applicant WAEE v Minister and Multicultural and Indigenous Affairs [2003] 236 FCR 593

Applicant: SARBJEET SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 334 of 2018

Judgment of: Judge Egan

Hearing date: 25 July 2019

Date of Last Submission: 25 July 2019

Delivered at: Brisbane

Delivered on: 25 July 2019

REPRESENTATION

Solicitors for the Applicant: Mr Tien of Legal Guru

Solicitors for the Respondent: Ms Helsdon of Sparke Helmore

ORDERS

1. That the application for review filed on 4 April 2018 be dismissed.

2. That the applicant pay the first respondent's costs of and incidental to the application for review fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 334 of 2018

SARBJEET SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India. On 29 January 2016, he was granted a subclass 573 higher education sector visa. On 7 March 2017, a delegate to the Minister issued a notice of intention to consider cancellation (NOICC) of the applicant's visa. The NOICC was issued on the basis that the applicant had not complied with condition 8516 of the Migration Regulations 1994 (Cth) (‘the Regulations’).

2. Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had ceased to be enrolled in a course of study compliant with the issue of the visa on 11 July 2016, and that the applicant had not held enrolment in a course of relevant study specified for the visa after that date. The applicant, by his representative, provided a number of documents in response to the NOICC.

3. On 23 March 2017, the delegate cancelled the applicant's visa pursuant to the provisions of s.116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’), on the basis that the applicant had not complied with condition 8516, which was attached to the visa. [1]

   [1]        Court book page 46.

4. Section 116(1)(b) of the Act provided as follows:

   “116 Power to cancel

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (b) its holder has not complied with a condition of the visa; or

   …”

5. Condition 8516 of the Regulations provided as follows:

   “8516

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.”

6. It transpired, during the course of the hearing today, that Mr Tien, the lawyer representing the applicant, conceded that the applicant's course of study, which had initially complied with the requisite conditions for the grant of the visa, had been cancelled on 11 July 2016 due to the applicant's poor record of attendance at such course. It was also conceded by Mr Tien that the applicant did not re-enrol in another higher education course which was compliant with the conditions of the grant of the visa until 13 March 2017 - a period of some eight months after the initial course had been cancelled. 

7. Mr Tien, on behalf of the applicant, points to the applicant having enrolled in a registered course (not a higher education course) on 19 July 2016, his submission being that from the date of cancellation of the applicant’s enrolment in the higher education course on 11 July 2016, it was reasonable for the applicant to have taken some eight days to enrol in a different course.  

8. Mr Tien concedes, however, that the course for which the applicant enrolled was not a course compliant with the conditions attached to the grant of the visa. In any event, it is apparent, based on the concession of Mr Tien, that for at least an eight day period, the applicant was not enrolled in either a higher education course of study compliant with the visa, or any other course of study, including a registered course of study. 

9. It is also apparent, from a reading of the materials before the Tribunal, that though the applicant re-enrolled for what was a compliant higher education course of study on 13 March 2017, the course so enrolled in on that day was not due to commence until 19 July 2018. It was, therefore, clear that the applicant, on any reading of the evidence, was not going to undertake study in a compliant higher education course for more than a year after the date of cancellation of the course which was the subject of the grant of the visa on 11 July 2016.  

10. Mr Tien referred to the grounds for review as set out in the originating application for review as follows:

    a)The second respondent failed to provide natural justice to the applicant, which is an error of law;

    b)The second respondent took irrelevant considerations into account, and/or did not take relevant considerations into account, which was an error of law.

11. In its decision handed down on 28 February 2018, it was recorded in [2] of the reasons of the Tribunal that the delegate had cancelled the applicant's visa pursuant to the provisions of section 116(1)(b) of the Act by reason of a breach of condition 8516 of the Migration Regulations.

12. At [6] and [7] of its reasons, the Tribunal set out the relevant considerations to be taken into account in relation to the proposed cancellation of the visa, pursuant to the provisions of section 116(1)(b) of the Act, relevant to condition 8516 of the Regulations. Reference was made to the primary criteria set out in subclause 573.231 and subclause 573.223(1A), which respectively are as follows:

    “573.231

    If subclause 573.223(1A) does not apply:

    (a)     the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

    (b)     the principle course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

    (i) made under regulation 1.40A; and

    (ii) in force at the time the application was made.

    eligible higher degree student means an applicant for a Subclass 574 visa in relation to whom the following apply:

    (a)     the applicant is enrolled in a principal course of study for the award of:

    (i) a bachelor’s degree; or

    (ii) a masters degree by coursework;

    (b)     the principal course of study is provided by an eligible education provider;

    (c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

    (i) the applicant is also enrolled in that course; and

    (ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

    …

    573.223(1A)

    If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)     the applicant gives the Minister evidence that the applicant has:

    (i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii) educational qualifications required by the eligible education provider; and

    (b)     the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii) any other relevant matter; and

    (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)     the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)     the costs and expenses required to support each member (if any) of the applicant’s family unit.”

13. At [8] - [17] of its reasons, the Tribunal referred to, and closely considered, the submissions which had been made to the department by the applicant in support of his maintenance of the visa. 

14. At [16] of its reasons, the Tribunal noted that the applicant had obtained enrolment in a registered course not being a course compliant with the conditions attached to the visa on 13 March 2017, which was shortly after the issue to the applicant of the NOICC. 

15. Having considered all of the matters put to it by the applicant, and the circumstances in which the cancellation decision was made, the Tribunal, at [17] of its reasons, concluded that it was satisfied that a ground for cancellation of the visa, pursuant to the provisions of section 116(1)(b) of the Act, existed.

16. The Tribunal then recorded that because that ground did not result in a mandatory cancellation pursuant to the provisions of section 116(3) of the Act, the Tribunal was to proceed to consider whether the power to cancel a visa should be exercised or not.

17. At [18] - [33] of its reasons, the Tribunal gave consideration as to whether the visa should be cancelled, based upon the material before it. At [20] of its reasons, it was noted by the Tribunal that the applicant had his compliant higher education course of study cancelled only five months after arriving in Australia on 6 February 2016. 

18. It was also noted by the Tribunal that though the applicant did enrol in a higher course of study on 13 March 2017, that course of study did not commence until 19 July 2018 in circumstances where the applicant's 573 visa was only valid until 15 September 2018. 

19. The clear inference open on the Tribunal’s findings is that the expiration of time was such that any compliant course enrolled in on 13 March 2017 could not have been completed between the time for commencement of such course on 19 July 2018, and the date of the expiration of the applicant's visa two months later on 15 September 2018.  

20. The Tribunal found, in that regard, that the applicant's intention in coming to Australia was not to study in accordance with the conditions of the visa granted to him, but for other reasons. The Tribunal was entitled, after a close examination of all of the material before it, to come to that conclusion.  

21. As to ground 1 of the application for review, there is no evidence before this court to suggest that the Tribunal did not comply with its natural justice obligations pursuant to the provisions of the Act under Division 5 of Part 5 thereof. The Tribunal invited the applicant to appear before it to give evidence, and availed the applicant of the opportunity for him to make extensive submissions, which submissions were received by the Tribunal.

22. The applicant was given a fair opportunity to address all of the issues of relevance to be considered by the Tribunal and which were before the Tribunal, and the Tribunal gave the applicant the opportunity to comment upon the fact that the applicant had, for a period of eight months, not been enrolled in, or had an offer for enrolment accepted in a compliant higher education course of study in conformity with the conditions under the visa issued to him. No jurisdictional error was demonstrated by the applicant in relation to ground 1 of the application for review.

23. As to ground 2 of the application for review, Mr Tien, on behalf of the applicant, pointed to paragraph [21] of the reasons of the Tribunal as constituting a basis for the contention that the Tribunal had taken irrelevant matters into consideration when arriving at its decision. [21] of the reasons of the Tribunal is, as follows:

    “[21] The Tribunal notes that the applicant did not comply with condition 8516 attached to the visa. This logically means that he was also in breach of condition 8202(2). The Tribunal is unaware of any other instances of non-compliance with visa conditions. The Tribunal places some weight upon this factor in exercising the discretion to cancel the visa.”

24. It was submitted, on behalf of the applicant, that the Tribunal had erroneously held that non-compliance with condition 8516 of the Regulations necessarily constituted a breach of condition 8202(2) of the Regulations. It was submitted that the use of the word "logically" by the Tribunal gave validity to such submission.

25. The use of the word "logically" in paragraph [21] of the Tribunal's reasons was factually correct, in the sense that what had been canvassed by the applicant in submissions to the Tribunal, and what was otherwise evidenced in documentation put before the Tribunal, indicated that, at least for a period of eight days (as conceded by Mr Tien), the applicant was not enrolled in either a higher education course of study, or in any other course, be it registered or otherwise, under condition 8202(2). 

26. Condition 8202(2) provided as follows:

    “8202

    …

    (2)     A holder meets the requirements of this subclause if:

    (a)     the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student – the holder is enrolled in a full time course of study or training.

    …”

27. The Tribunal might have used the word "logically" in a loose manner, but this court does not consider that the use of such word either detracts from the concession made on behalf of the applicant that, for eight days, from 11 July 2016 until 19 July 2016, the applicant was not enrolled in any course at all, [2] nor in terms of the concession made by Mr Tien that for a period of eight months between 11 July 2016 and 13 March 2017, the applicant was not enrolled in a higher education course of study at all.

    [2]        Court Book pages 29-30

28. To the extent that it might be submitted that the Tribunal was in error by its use of the word "logically," this court does not consider such error to fall into the category of material error as referred to by Nettle J at [40] and Edelman J at [72] in Hossain v Minister for Immigration [2018] 359 ALR 1, where it was respectively said:

    “[40] With respect, however, I wish to observe that there may be a number of circumstances in which an error is jurisdictional despite not depriving a party of the possibility of a successful outcome.  Edelman J has referred to one such circumstance:  where respect for the dignity of the individual may mean that a denial of procedural fairness should be regarded as a jurisdictional error regardless of the effect it may have had on the result reached by the decision maker. Another such circumstance is where a decision maker is required to make a decision by reference to a single specified criterion and, in error, addresses himself or herself to the wrong criterion. In such a case, the decision maker's error will be a jurisdictional error – a failure to exercise the jurisdiction of deciding the question according to the applicable criterion – regardless of whether one can say that, if properly directed and having determined the application by reference to the correct criterion, the decision maker would have been bound to make the same decision.

    …

    [72] In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power.  In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome.  One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.”

29. Any such error on the part of the Tribunal, if so found, did not give rise to jurisdictional error.

30. The Tribunal otherwise dealt with questions of hardship and the applicant's personal circumstances, including his state of health, and disappointment which might be suffered by him as a result of the cancellation of the visa. 

31. It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ in Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429 at [25] - [27], where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

1. The conclusions reached by the Tribunal were open on the evidence before it. As Thawley J said at [21] - [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:

   “[21]    In his written submissions, the appellant was more specific.  The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

   69.    The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

   70.    However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

   [22]  The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

   [23]  It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70].  The conclusions which the Tribunal reached were open on the evidence before it.  Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true.  Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

   [24]  The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”

2. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [130]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

3. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

4. Neither does this court consider that the use by the Tribunal of the word "logically" in [21] of its reasons gave rise to jurisdictional error. An administrative body ought not to be scrutinised "with an eye keenly attuned to error," as was referred to by the Full Court of the Federal Court in Applicant WAEE v Minister and Multicultural and Indigenous Affairs [2003] 236 FCR 593 at [46] - [47] where it was said, per French, Sackville, and Healy JJ:

   “[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

5. The applicant has failed to establish any jurisdictional error on the part of the Tribunal.

6. The application for review is without merit and is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  5 August 2019