Singh v Minister for Home Affairs
[2018] FCCA 2978
•19 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2978 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth) |
| Cases cited: CQG15 v Minister for Immigration [2016] FCAFC 146 |
| Applicant: | TALWINDER SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 4018 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 4018 of 2017
| TALWINDER SINGH |
Applicant
And
| MNISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIAVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 November 2017. The Tribunal affirmed a decision of a delegate of the Minister to cancel Mr Singh’s student visa. Backgrounds facts relating to this matter are set out in the Minister’s outline of submissions filed on 9 October 2018.
Mr Singh is a male citizen of India who was granted a student (Temporary) (Class UK) subclass 573 higher education sector visa on 4 April 2014.[1]
[1] Court Book (CB) 18, 62
As the holder of a subclass 573 visa, Mr Singh was required to comply with condition 8202 in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) as required by clause 573.611 of Schedule 2 to the Regulations. Relevantly, condition 8202(2)(a) required Mr Singh to be enrolled in a registered course.
On 21 July 2016, the Minister’s Department issued a Notice of Intention to Consider Cancellation (NOICC) to Mr Singh.[2] The NOICC notified Mr Singh that there appeared to be a ground for cancellation of his visa under s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act), on the basis of material before the delegate which indicated that he had not complied with condition 8202(2)(a). The NOICC identified that evidence before the delegate in the Provider Registration and International Management System (PRISMS) indicated that he had not been enrolled in a registered course of study since 3 June 2015.[3] The NOICC invited Mr Singh to respond to the information within five working days.[4]
[2] CB 18-23
[3] CB 19
[4] CB 20
On 26 July 2016, Mr Singh’s representative sought an extension of time to respond to the NOICC,[5] which was granted.[6]
[5] CB 24-35
[6] CB 36-40
On 5 August 2016, Mr Singh (through his representative) responded to the NOICC.[7] Mr Singh stated, amongst other things, that his father had suffered a heart attack which “shocked” him and he felt depressed. Mr Singh was not able to attend classes and “eventually” his enrolment was cancelled.[8] Mr Singh submitted education documents and medical evidence (including a report from his psychologist), in support of his claims.[9]
[7] CB 41-55
[8] CB 41-44
[9] CB 45-55
On 31 August 2016, the delegate cancelled Mr Singh’s visa pursuant to s.116(1)(b) of the Migration Act.[10] The delegate found that there were grounds for the cancellation of the visa on the basis that PRISMS records demonstrated that Mr Singh had not been enrolled in a registered course of study since 3 June 2015, and therefore he had breached condition 8202(2)(a).[11] The delegate had regard to Mr Singh’s claims and circumstances but found the reasons for cancelling the visa outweighed those against cancellation.[12]
[10] CB 62-71
[11] CB 63
[12] CB 71
The Tribunal proceedings
On 8 September 2016, Mr Singh applied to the Tribunal for review of the delegate’s decision.[13] Mr Singh provided the Tribunal with copies of the delegate’s decision and notification letter.[14]
[13] CB 72-82
[14] CB 82
On 18 August 2017, the Tribunal wrote to Mr Singh requesting further information.[15] The Tribunal identified that Mr Singh had provided a statement of his results for his Certificate IV in Business from 21 July 2014 but could not ascertain from that document whether Mr Singh had completed all of the units listed on that statement. The Tribunal asked Mr Singh to provide a transcript showing further details and to clarify whether he completed his Certificate IV in Business and, if so, when.[16]
[15] CB 91-93
[16] CB 92
On 29 August 2017, Mr Singh was invited to a hearing before the Tribunal scheduled for 21 November 2017.[17]
[17] CB 94-99
On 31 August 2017, Mr Singh responded to the Tribunal’s request for further information.[18] Mr Singh appointed a migration agent as his authorised representative and provided a Form 956 (CB 102-104). He also confirmed that he passed five out of the seven units of his Certificate IV in Business and attached a transcript showing the units he had completed.[19]
[18] CB 100-110
[19] CB 105
On 5 September 2017, Mr Singh responded to the Tribunal’s hearing invitation[20] and provided the Form 956 again.
[20] CB 106-110
On 15 November 2017, the Tribunal wrote to Mr Singh requesting further information. Namely, it requested he provide an “interim transcript” from his education provider for the Diploma of Business that he was currently studying.[21]
[21] CB 111-112
On 17 November 2017, Mr Singh (through his representative) responded to the Tribunal’s request for further information.[22] Mr Singh provided a large volume of documents in response to the Tribunal including: written submissions;[23] proof of his father’s retirement;[24] an unsigned offer of enrolment for a Major in Management at Group Colleges Australia;[25] his previous and current Confirmation of Enrolments (CoEs);[26] a letter of progress and transcript from Hannah International College;[27] an email from Holmes Institute;[28] his IELTS test results dated 1 June 2016;[29] medical documents;[30] photographic evidence of his involvement in community projects;[31] and screenshots of messages between Mr Singh and a person called “Sulemaan” between 28 July 2016 and 13 September 2016.[32]
[22] CB 113-196
[23] CB 115-127
[24] CB 132
[25] CB 133-146
[26] CB 147-155
[27] CB 156-157
[28] CB 162-164
[29] CB 167
[30] CB 168, 171-172
[31] CB 173-190
[32] CB 191-196
Mr Singh attended the scheduled hearing on 21 November 2017 with a witness and his representative.[33]
[33] CB 197-198
The Tribunal’s decision
On 24 November 2017, the Tribunal affirmed the delegate’s decision to cancel Mr Singh’s student visa.[34]
[34] CB 202-213
The Tribunal identified the issue before it was whether Mr Singh, as a holder of a student visa, had breached condition 8202, which would give rise to its discretionary power to cancel the visa under s.116(1) of the Migration Act.[35]
[35] CB 203, [8]
The Tribunal had regard to the delegate’s decision, which indicated Mr Singh had not been enrolled in a registered course of study since 3 June 2015; as well as Mr Singh’s own evidence that he had ceased to be enrolled in a registered course since 3 June 2015.[36] The Tribunal found Mr Singh was not enrolled in a registered course and accordingly, he had not complied with condition 8202(2).[37]
[36] CB 204, [11], [13]
[37] CB 204, [14]
The Tribunal identified that it was required to decide whether to exercise its discretion to cancel the visa.[38] The Tribunal identified that the legislation did not impose mandatory considerations but it would have regard to the matters in the Minister’s Department’s Procedures Advice Manual (PAM3) “General visa cancellation powers”.[39]
[38] CB 204, [15]
[39] CB 204, [16]
The Tribunal expressly stated that it had regard to the reasons and evidence provided by Mr Singh to the Minister’s Department in response to the NOICC as well as the detailed submissions and supporting documents that had been provided to it.[40]
[40] CB 204, [17]
The Tribunal referred to PRISMS records before it which indicated Mr Singh’s enrolment in the Certificate IV in Business was cancelled due to non-payment of fees,[41] which was consistent with his claim made in submissions to the Tribunal dated 14 November 2017 that he could not afford his studies and therefore had his CoEs cancelled. Mr Singh, at the hearing, agreed that there were financial impediments to him being enrolled.[42]
[41] CB 205, [20]
[42] CB 207, [35]
The Tribunal observed Mr Singh had made no mention of financial impediments in his response to the NOICC,[43] albeit this was “tangentially” mentioned in the psychologist’s report provided with the response to the NOICC. The Tribunal was not satisfied that financial issues were a significant cause, as this was inconsistent with later “claims” that Mr Singh was seeking to enrol in courses following the cancellation of the enrolment.[44] The Tribunal rejected Mr Singh’s submission that his migration agent (who assisted Mr Singh in responding to the NOICC) was “so deficient” that he had neglected to explain his financial impediments as a reason for failing to be enrolled.[45]
[43] CB 210, [61]
[44] CB 210, [62]
[45] CB 211, [68]
The Tribunal found the medical evidence indicating that Mr Singh was suffering significant levels of depression and anxiety was inconsistent with Mr Singh’s and witness’ evidence that the “situation” had improved greatly by the end of 2015, including Mr Singh being in a position to work as a truck driver,[46] and claims by Mr Singh that he was in fact seeking to enrol in courses but could not successfully do so.[47] The Tribunal was of the view that if Mr Singh was suffering from depression and anxiety, he should have maintained enrolment and sought deferral on compassionate and compelling grounds.[48]
[46] CB 210, [65]
[47] CB 210, [63]
[48] CB 210, [64]
While the Tribunal was prepared to accept that Mr Singh was not in a “good space of mind” when his father became ill in the first half of 2015, the Tribunal found this did not account for the breach of 14 months.[49] The Tribunal also accepted Mr Singh was given incorrect advice that he could not study following the cancellation of a study visa and did not draw any adverse inference from the failure of Mr Singh to enrol and study from the cancellation of his visa and his enrolment in a registered course on 18 July 2017.[50] The Tribunal also acknowledged that Mr Singh had made appropriate progress as a student initially in Australia as well as since 18 July 2017.[51]
[49] CB 210-211, [67]
[50] CB 211, [70]
[51] CB 211, [71]
The Tribunal accepted there would be hardship to Mr Singh if he were to return to India having not made meaningful study progress but rejected the contention that Mr Singh or his family would be socially ostracised, banned from worship or Mr Singh would be unemployable or unable to get married. The Tribunal considered Mr Singh applicant had exaggerated the level of hardship that would be suffered.[52]
[52] CB 211, [73]
The Tribunal was satisfied there was no evidence that Mr Singh:
a)failed to abide by any visa conditions other than condition 8202 and 8516;[53]
b)had acted in an adverse way towards the Minister’s Department;[54]
c)would face persecution or significant harm on return to India;[55] or
d)the interests of children in Australia would be affected by the continued cancellation of the visa.[56]
[53] CB 211, [75]
[54] CB 212, [76]
[55] CB 212, [78]
[56] CB 212, [79]
After considering Mr Singh’s evidence and circumstances as a whole, the Tribunal concluded that the visa should be cancelled and affirmed the decision under review.[57]
[57] CB 212, [84]-[85]
The present proceedings
These proceedings began with a show cause application filed on 22 December 2017. Mr Singh continues to rely upon that application:
1. The Tribunal (second respondent) has made Jurisdictional error as tribunal failed to consider that there are exceptional reasons that were exists and those reasons were beyond the control of the applicant, mainly the family illness, the applicants personal circumstances, his mental illness and the impact on the situation.
2. Tribunal has made decision to affirm was illogical and irrational as the Tribunal did not take the matter as afresh and confused itself with the evidences provided at the time of hearing and to determine as to whether the decision of the case officer for the breach of condition 8202 of the Act.
3. The Tribunal on paragraph 82 of its decision has made error of law by stating the applicant "has not been truthful, in parts" in the absence of evidence and without supporting as to why it thinks that the applicant was not truthful.
4. The Tribunal has asked itself irrelevant questions, and ignored the significant evidences into consideration which gives rise to jurisdictional error as the Tribunal on paragraph 21, 23, 70 and 71 acknowledged that the applicant was genuine student and did achieve competency at the time of the decision , tribunal also acknowledged in paragraph 3 7 that the applicant was suffering from situation beyond the applicant's control which were the illness in the family, financial stress and depression.
5. The Tribunal ignored the matters that are favourable to the applicant in the decision making which are set in paragraph 66, 73, 74 ,75, 80, 81 and failed to acknowledged that the applicant is currently enrolled in a registered course and did progressed academically however by considering little weight on the evidences and therefore the decision was affected by the jurisdictional error by not considering the policy guidelines in the Department’s Procedural Advice Manual and whether to cancel the visa under s.116 of the Migration Act.
6. The applicant in light of above grounds seeks the matter to be deal in accordance to law.
(errors in original)
The application is supported by an affidavit filed with it which I received as a submission.
I have before me as evidence the court book filed on 27 February 2018.
I invited oral submissions from Mr Singh this morning. He presented as sincere and earnest as well as somewhat emotional. It is clear that he has a very strong wish to complete his studies in Australia. He told me that in September this year he successfully completed his diploma course and he has an offer of enrolment at Group Colleges Australia for a degree course commencing in January 2019. That course would take two years to complete. Mr Singh earnestly seeks the opportunity to complete that course before departing Australia. It is unfortunate that Mr Singh encountered difficulties in his studies as he has generally shown himself to be a diligent student. He has also received some poor advice.
Those matters, however, go to the merits of the Tribunal decision which are beyond the scope of this proceeding. A different decision-maker might have made a more favourable decision. The conclusions reached by the Tribunal, however, were open to it for the reasons it gave.
It would have been open to the Tribunal to refer Mr Singh’s case to the Minister for his consideration. The Tribunal did not do so, but it remains open to Mr Singh to make that request himself. His circumstances as explained to the Tribunal and to me may warrant further consideration. Mr Singh was not, however, able to articulate an argument of jurisdictional error by the Tribunal. He did raise his concern that the Tribunal did not seek verification of his medical evidence, but, in my view, the Tribunal was under no obligation to do so. Further, with the exception of one medical report from India, the medical evidence itself did not raise any significant credibility issue.
There were inconsistencies which the Tribunal dealt with in its reasons. Fundamentally, however, the Tribunal was concerned at the significant length of time during which Mr Singh had ceased studying and was not satisfied that Mr Singh had persuasively explained the circumstances of that gap in his studies. That is unfortunate as he appears to have been a diligent student both before and after that interruption to his studies.
I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.
Ground 1
Ground 1 contends the Tribunal failed to consider there were exceptional reasons as to why Mr Singh did not comply with condition 8202 imposed on his visa. The complaint fails at a factual level. Contrary to Mr Singh’s assertion, the Tribunal considered in detail Mr Singh’s explanations as to why he had not been enrolled in a registered course since 3 June 2015.[58] Mr Singh has not provided any particulars to clarify what “exceptional reasons” the Tribunal allegedly failed to consider. Properly understood, Ground 1 seeks impermissible merits review.[59]
[58] see for example at CB 205-207 [19], [25], [26]-[34]
[59] Minister for Immigration v Wu Shan Liang (1995) ALR 367 at 281-282
Ground 2
Ground 2 asserts the Tribunal decision was “illogical and irrational” as the Tribunal did not “take the matter as afresh” and “confused” itself with the evidences provided at the hearing. Mr Singh has failed to identify with particulars which aspects of the Tribunal decision give rise to the alleged error of illogicality or what evidence the Tribunal allegedly “confused”. There is nothing to suggest the Tribunal’s decision was somehow illogical because a rational Tribunal could have reached the same conclusion on the material before the Tribunal.[60] Without particulars to make the complaint under Ground 2 meaningful, it cannot be made out.
[60] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131], [135] per Crennan and Bell JJ; Minister for Immigration v Stretton (2016) 237 FCR 1 at [21]
Ground 3
Ground 3 contends that there is an “error of law” at [82] of the Tribunal’s decision by it finding that Mr Singh had “not been truthful, in parts, in his evidence to the Tribunal.”
Throughout its decision, the Tribunal identified inconsistent evidence as to Mr Singh’s mental health conditions,[61] whether Mr Singh was working during 2015 and 2016[62] and the reason for his failure to be enrolled in a registered course in June 2015.[63] These matters provided a cogent basis to support the Tribunal’s adverse credit findings, which were a matter of fact for the Tribunal.[64] To the extent that Mr Singh alleges the Tribunal should have come to a different conclusion on the basis of its assessment of his circumstances and evidence, such complaints seek to cavil with the Tribunal’s factual findings and invite the Court to engage in impermissible merits review.[65] Ground 3 must be rejected.
[61] CB 208, [50]
[62] CB 208-209, [51]-[52]
[63] CB 209, [56]
[64] CQG15 v Minister for Immigration [2016] FCAFC 146 at [59]-[61]
[65] Minister for Immigration v Wu Shan Liang, op cit
Ground 4
Ground 4 is difficult to understand. Mr Singh refers to [20], [23], [37], [70]-[71] of the Tribunal decision. Those paragraphs contain the Tribunal’s findings which: acknowledged Mr Singh was given incorrect advice that he could not study following the cancellation of the student visa;[66] he had made appropriate progress as a student for his first 10 months in Australia and was making appropriate progress in the Diploma of Business from August 2017.[67] The Tribunal also acknowledged[68] that the psychologist’s report contained references that the failure of Mr Singh to obtain work created financial impediments.
[66] CB 211, [70]
[67] CB 205, [20]-[21]; [23] and CB 211, [71]
[68] at CB 2-7, [37]
Mr Singh appears to contend these “significant evidences” (sic) were not taken into consideration and the Tribunal asked itself “irrelevant questions”. Plainly, the Tribunal did take these factors into consideration but on balance, was not satisfied the matters favourable to Mr Singh outweighed the matters in favour of cancellation.[69] Ground 4 appears to be a further allegation that the Tribunal should have arrived at a different conclusion on the basis of the material before and cannot be made out.
[69] CB 212, [83]
Ground 5
Ground 5 states the Tribunal “ignored” the matters favourable to Mr Singh. This ground cannot be made out in circumstances (as above) where the Tribunal plainly recognised there were factors in Mr Singh’s favour.[70] Again, properly understood, Mr Singh seeks impermissible merits review. Mr Singh also makes a bare assertion in this ground that the Tribunal misapplied policy guidelines in considering whether to cancel Mr Singh’s visa. In considering whether to exercise its discretion to cancel the visa, the Tribunal observed that the legislation did not impose mandatory considerations but that it would have regard to the matters raised by Mr Singh as to why his visa should not be cancelled, as well as government policy guidelines contained in the PAM3.[71] No error is demonstrated in this approach and Ground 5 must fail.
[70] CB 212, [81]
[71] CB 204, [16]
Ground 6
Ground 6 simply asks for the matter to be dealt with in accordance with the law and does not assert any error on the part of the Tribunal.
I conclude that Mr Singh is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Singh claims impecuniosity, but that is not a reason for the Court to refrain from making a costs order.
I will order that Mr Singh is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 23 October 2018
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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Procedural Fairness
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