Singh v Minister for Home Affairs
[2020] FCCA 1022
•8 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1022 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) Visa – decision of the Administrative Appeals Tribunal – where visa was cancelled – whether the Tribunal properly considered materials – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 140, 476 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | HARPREET SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 582 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 April 2020 |
| Date of Last Submission: | 23 April 2020 |
| Delivered at: | Perth |
| Delivered on: | 8 May 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms N Milutinovic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 582 of 2018
| HARPREET SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. On 14 July 2016, the applicant (as a member of the family unit of his wife) was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) Visa (the “visa”) (Court Book (“CB”) 53).
On 1 June 2017, the Department for the Minister for Home Affairs (the “Minister”) issued a Notice of Intention to Consider Cancellation (the “NOICC”) to the applicant. The NOICC advised him that, as he had declared in his own student visa application (which was lodged on 11 April 2017) that he was no longer with his wife, he was no longer a member of his wife’s “family unit” (CB 1-6). As such, it appeared that his visa could be cancelled pursuant to s.116(1)(a) of the Migration Act 1958 (Cth) (the “Act”).
On 18 June 2017 (two days outside the time within which the applicant was asked to respond), the applicant provided a number of documents to the Minister’s Department in support of his argument that the visa should not be cancelled. This included submissions, photographs, financial information and other visa related information (CB 13-47). Relevantly, the applicant’s submissions stated that the applicant was in fact still married to his wife and that the migration agent who prepared his student visa application had “made so many mistakes and misguided me”.
On 6 July 2017, a Ministerial delegate cancelled the applicant’s visa pursuant to s.116(1)(a) of the Act (CB 48-63).
The applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for a review of the delegate’s decision on 13 July 2017 (CB 64-67).
The applicant attended a hearing before the Tribunal on 28 September 2018 (CB 83-85).
On 10 October 2018, the Tribunal affirmed the decision to cancel the applicant’s visa (CB 90-94).
On 7 November 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision.
Tribunal’s Decision
The Tribunal’s decision is 5 pages long and spans 23 paragraphs. The Minister’s written submissions filed 30 March 2020 (at [11]-[19]) accurately summarise the Tribunal’s decision. The Court adopts those submissions as its own. With minor additions, the summary in those submissions provides as follows.
The Tribunal began by providing an overview of the factual background to the application (at [1]-[5]).
After summarising s.116 of the Act (at [6]), the Tribunal considered whether a ground for cancellation arose (at [7]-[10]). The Tribunal wrote:
6.Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(a). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
7.A visa may be cancelled under s.116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.
8.The delegate’s decision record states that the applicant was granted the Subclass 573 visa, having met the secondary criteria, because he as a member of the family unit of [the applicant’s wife]. The Department sent the applicant on 1 June 2017 a Notice of Intention to Consider Cancellation (NOICC) as it had been informed that the applicant was no longer a member of [the applicant’s wife’s] family unit. The applicant responded and indicated that he believed the ground for cancellation did not exist as he was still in a “marriage relationship” with [the applicant’s wife]. He stated that his then migration agent was to blame for indicating in a student visa application lodged on his behalf in April 2017 - either accidentally or knowingly - that he was separated from his wife. Ultimately, the delegate in cancelling the visa was satisfied that the ground provided by s.116(1)(a) existed.
9.The Tribunal finds that the applicant was granted the Subclass 573 visa on 14 July 2016 because the Department was satisfied he was the husband of [the applicant’s wife] and therefore a member of her family unit. At the hearing the applicant confirmed that he and [the applicant’s wife] separated in March 2017, when she moved out. He agreed that he is no longer a member of her family unit and that the circumstance no longer exists. The Tribunal finds that the applicant is no longer the spouse of [the applicant’s wife]. He is therefore no longer a member of her family unit. Therefore a particular fact or circumstance leading to the grant of the visa, his membership of [the applicant’s wife’s] family unit, is no longer the case.
10.For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
The Tribunal had regard to the matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (at [11]).
In relation to the applicant’s relationship with his wife, the Tribunal recorded as follows:
12.At the hearing the applicant told the Tribunal that he and [the applicant’s wife], who married in October 2014, arrived in Australia in August 2016 and lived together at addresses in Maylands and Cannington before [the applicant’s wife] initiated the end of the relationship in March 2017. He told the Tribunal that [the applicant’s wife] had not been happy in their relationship “right from the beginning”. He said he recalled being at work and taking a phone call from [the applicant’s wife] during which she told him she was going back to India. He said he rushed home when the call ended, but she had already left with all of her belongings. He said he has had no contact with [the applicant’s wife] since that time. The relationship is now over.
In relation to the applicant’s “purpose for staying in Australia”, the Tribunal noted:
13.… he now wishes to remain here to work in order to be able to repay his parents for the money he claims he and [the applicant’s wife] were loaned by them for their visa costs, living expenses in Australia and student fees. He indicated he does not want to return to India “empty handed”. The Tribunal has taken this into account. It has concerns however, which it discussed with the applicant, that his reason for wishing to remain in Australia to work is not consistent with the purpose of the Subclass 573 visa program, which is to enable higher education sector study or to allow members of the family unit of persons who are engaging in higher education sector study to remain here with them for the duration of that period of study. The Tribunal acknowledges that as [the applicant’s wife’s] dependant the applicant’s visa conditions did not prohibit him working. However, the Tribunal notes that the applicant is no longer the dependant of the primary subclass 573 visa holder, [the applicant’s wife]. The Tribunal also noted to the applicant that [the applicant’s wife], as the primary visa applicant must have demonstrated to the Department prior to being granted the visa, that she had sufficient funds to fund her studies in Australia. The applicant did not dispute that, but indicated that his parents had still made contributions. The applicant has not provided any documentary evidence of the financial contributions of his parents. The Tribunal is of the view that if the applicant wishes to work in Australia, then the Subclass 573 visa is not the appropriate visa for the applicant to hold. The Tribunal gives this factor significant weight in favour of cancelling the visa.
In relation to the applicant’s “compliance with visa conditions”, the Tribunal noted that:
14. As to the applicant’s compliance with visa conditions, he told the Tribunal that up until his visa was cancelled he had been working for several months at a vegetable market in [omitted] between 25 and 30 hours a week. When the Tribunal suggested that working these hours meant that he had not complied with the 20 hour a week work condition which was attached to his visa, the applicant said that he had relied on the advice from the agent in India who had arranged his visa, that he was able to work on a full time basis when he arrived in Australia. There is also evidence before the Tribunal that is relevant to its consideration of the applicant’s compliance with visa conditions as well as his past and present behaviour towards the Department. The Tribunal suggested to the applicant that on the basis of his evidence to it, he had been dishonest in his response to the Department’s NOICC, in which he maintained he was in a continuing relationship with [the applicant’s wife]; indicated an unscrupulous agent had prepared and lodged a student visa application on his behalf in April 2017 which stated, incorrectly, that he was separated from his wife; and provided documentary evidence in the form of photographs and correspondence directed to both himself and [the applicant’s wife] at the same address to support his claims that they were still in a spouse relationship. The Tribunal also noted it was concerned that it was only at the Tribunal hearing - one and a half years after his relationship with [the applicant’s wife] had ceased - that he had finally conceded that his relationship was over. The applicant indicated to the Tribunal that he was scared his visa would be cancelled and by his response to the NOICC he was trying to secure his future by remaining in Australia. He also indicated that he had relied on the advice of his agent, who had more knowledge than him about how to deal with his visa issue. He told the Tribunal that it was at his hearing that he had to admit it was finally over.
The Tribunal concluded that the applicant’s non-compliance with the work conditions attached to his visa, his failure to inform the Department that his relationship with his wife had ended and the misrepresentations contained in his NOICC response represented non-compliance with visa conditions as well as dishonest behaviour towards the Department (at [14]).
In relation to the degree of hardship that might be caused if the visa remained cancelled, the Tribunal acknowledged that there might be some financial consequences for the applicant and his parents if the visa was cancelled. However, the Tribunal was not satisfied that any hardship would be serious (at [15]).
In relation to the circumstances in which the ground for cancellation arose, the Tribunal was prepared to accept that the applicant’s wife initiated the breakdown of the relationship. However, regardless of this, the Tribunal did not consider that this constituted circumstances outside the applicant’s control such that it outweighed the ground for cancellation (at [16]).
The Tribunal found that there was no evidence before it that cancellation would result in the applicant being unlawful and subject to detention, or that indefinite detention was a possible consequence of cancellation (at [17]). It noted that there was no evidence that any international obligations would be breached (at [18]) or that there would be consequential cancellations under s.140 of the Act (at [19]).
At [20], the Tribunal stated:
The Tribunal has considered and weighed up all of the relevant circumstances in the applicant’s case. It has found that the basis for the applicant’s grant of the Subclass 573 visa, his membership of [the applicant’s wife’s] family unit, no longer exists. The Tribunal gives this factor significant weight. It accepts that the applicant now wants to remain in Australia to work, however, it is of the view that this is not consistent with the purpose of the Subclass 573 visa program. It also gives this factor significant weight. While the applicant may have borrowed money to enable himself and [the applicant’s wife] to come to Australia, and consequently may suffer some financial hardship, the Tribunal is not satisfied any hardship will be serious. Nor is it satisfied that the applicant is unable to safely return to India. There is evidence to suggest the applicant breached visa conditions and the Tribunal has concerns about his conduct towards the Department. The Tribunal attributes weight to these factors. The applicant now holds a Bridging visa E so the cancellation would not result in the visa holder being in Australia unlawfully and subject to detention.
As a whole, the Tribunal was satisfied that the reasons for cancelling the visa outweighed the reasons for not cancelling the visa and found that cancelling the applicant’s visa was the correct and preferable decision (at [21]-[22]).
The Tribunal affirmed the decision to cancel the applicant’s visa (at [23]).
Proceedings in this Court
This application is brought pursuant to s.476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into a jurisdictional error.
The materials before the Court included the applicant’s judicial review application dated 7 November 2018, an affidavit from the applicant affirmed 6 November 2018, a Court Book numbering 99 pages (marked as Exhibit 1) and an outline of submissions for the Minister filed on 30 March 2020.
The grounds of review in the applicant’s judicial review application provide:
1. Response to natural justice was not considered.
2. The details were not completed in error.
The applicant’s affidavit provides:
1. I am the applicant.
2. On 14 July 2016, my wife Student visa was granted.
3. On 24 July 2016, I came to Australia.
4. On 03 April 2017, my wife left me on an argument between us. At that point we are not sure about or separation.
5. On 11 April 2017, I applied for a student visa subclass (500). My agent Make a mistake. He mentioned that I am separated with my wife.
6. But at that time we are not separated officially.
7. On 01 June 2017, my visa was cancelled.
8. I applied for a review with Administration Appeal Tribunal on 06 July 2017.
9.On 28 September 2018, I attended the interview with AAT, which resulted in the cancelled my decision.
10. I am not satisfied with the decision by AAT is unreasonable as the official disregarded the response provided on 10 October 2018
The hearing of this matter took place by teleconference as a result of recent health protocols adopted by the Court. The applicant appeared without legal representation. The Court confirmed with the applicant at the hearing that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave the applicant the opportunity to elaborate on, and further particularise, the grounds of review in his application for judicial review. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained what it could and could not do. It noted that its role was limited to determining whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or elect not to cancel the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court asked the applicant to explain what he thought the Tribunal “did wrong”.
In effect, the applicant stated that at the time his visa was cancelled he was not, in fact, “separated from his wife”. The applicant also noted that he was not aware that he was working above the hours that he was allowed to work in accordance with his visa and had received little or poor advice from his migration agent.
In relation to the submission about working hours, the applicant appears to be referring to what the Tribunal states at [14]. The fact that the applicant was unaware of what he could and could not do in relation to working hours or he relied on the (arguably poor) advice of his migration agent does not amount to jurisdictional error. The applicant was in breach of a visa condition and there is no error in the Tribunal taking this into account.
Otherwise, to the extent necessary, the Court will refer to the applicant’s oral submissions below.
Consideration
The applicant’s affidavit (at [1]-[9]) does no more than set out factual matters. It does not identify any jurisdictional error. However, [10] of the applicant’s affidavit can arguably be construed as a ground of review and the Court will address this below.
Ground 1
Response to natural justice was not considered.
The Court understands the applicant to be referring to his response to the NOICC dated 18 June 2017. He appears to be suggesting that this response was not considered by the Tribunal.
The response included a number of documents and submissions which relevantly stated that the applicant was still married at the time the visa was cancelled and which advised that the applicant’s migration agent had made an error in this regard when providing this information.
The Tribunal expressly acknowledged this response at [8] of its decision. The Tribunal (at [14]) also put matters to the applicant that directly related to the information that he had provided in his response.
It is true that the Tribunal did not specifically refer to the attached documents (such as the bank statement and invoice). These documents were provided to substantiate to the delegate that there was still a marital relationship. However, the applicant’s own evidence to the Tribunal was that his relationship had ended in March 2017 (and the response was dated 18 June 2017). As such, it was open to the Tribunal to find that the applicant was not married and it was not, as a result, necessary for the Tribunal to expressly refer to these documents.
The applicant repeated that he was still married to his wife and they were “just in an argument” at the time the visa was cancelled. As the Minister noted, this contradicts the applicant’s evidence at the hearing that he had not spoken to his wife since March 2017. In those circumstances, it was open to the Tribunal to find that the grounds for cancellation had arisen.
In relation to concerns raised about the migration agent, it was not necessary for the Tribunal to consider this in detail as, once again, the applicant admitted that he had not been in a relationship with his wife since March 2017. Hence, on the evidence, the ground for cancellation clearly arose. The “circumstances” through which the marital breakdown came to be known by the Minister’s Department may well have been as a result of the agent’s conduct. Nonetheless, the applicant’s own evidence was that he was separated. As such, the agent’s conduct was thus irrelevant.
It is clear that the Tribunal had regard to and considered the applicant’s response to the NOICC.
Ground 1, accordingly, fails.
Ground 2
The details were not completed in error.
It is unclear what the applicant is stating here. On one view, the applicant may be conceding that the details he provided in his student visa application (i.e., that he was separated) was not, in fact, an error.
The Tribunal made no finding on whether the details were entered in error. It was not necessary for it to do so. The Tribunal took into account all relevant considerations and made the findings it was required to make.
Whether or not the details were or were not completed in error does not raise any identifiable jurisdictional error.
Ground 2, accordingly, is dismissed.
The applicant’s affidavit
Paragraph [10] of the applicant’s affidavit states:
I am not satisfied with the decision by AAT is unreasonable as the official disregarded the response provided on 10 October 2018.
The applicant attended a hearing before the Tribunal on 28 September 2018. It does not appear that the applicant was provided additional time to provide any information, comments or response (CB 85) or that he requested more time at the hearing.
The Tribunal’s case notes indicate that on 4 October 2018 the applicant contacted the Tribunal and stated that he had not yet received a decision (but that his friend had) (CB 87). The applicant was advised that he would be emailed when the Tribunal had made its decision. There is nothing in that case note to suggest that the applicant indicated he intended to provide further information.
The Tribunal gave the applicant (by email) a copy of the Tribunal’s decision on 10 October 2018 at approximately 6.30pm. The Tribunal’s decision was made at 1.45pm.
When asked by the Court what response he was referring to, the applicant was unable to articulate what he meant.
There is nothing in the materials before the Court which indicates that the applicant provided any response or correspondence to the Tribunal on 10 October 2018.
In circumstances where there is nothing to indicate that the applicant had provided any response on 10 October 2018, it cannot be said to be “unreasonable” for the Tribunal to have disregarded such.
Furthermore, to the extent that the reference to “unreasonable” in the applicant’s affidavit can be seen to suggest that the Tribunal came to an “unreasonable decision” or that its findings lacked an evident or intelligible basis, the Court disagrees. On the materials that were provided to the Tribunal, including the applicant’s own rather candid evidence, it was entirely logical and reasonable for the Tribunal to come to the conclusions it came to.
Paragraph [10] of the applicant’s affidavit, accordingly, fails to identify any jurisdictional error.
Conclusion
The applicant’s application for judicial review and affidavit have failed to identify any error in the Tribunal’s decision. The Court has otherwise reviewed the Tribunal’s decision and is satisfied that there are no errors of the sort that can be addressed by this Court in review.
The application is, accordingly, dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 8 May 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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