Singh v Minister for Home Affairs
[2018] FCA 1998
•26 November 2018
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Home Affairs [2018] FCA 1998
Appeal from: Singh v Minister for Immigration & Anor [2018] FCCA 1233 File number: QUD 256 of 2018 Judge: RANGIAH J Date of judgment: 26 November 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – application for judicial review of Administrative Appeals Tribunal decision – cancellation of student visa – where appellant did not maintain satisfactory course attendance – where appellant claims denial of natural justice – whether all relevant material was considered – where ground was not argued before primary judge – appeal dismissed. Legislation: Migration Act 1958 (Cth) s 116
Migration Regulations1994 (Cth) Sch 8, condition 8202
Date of hearing: 26 November 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr G King Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 256 of 2018 BETWEEN: BHUPINDER SINGH
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
26 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE AND REVISED)RANGIAH J:
This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 6 April 2018. The Federal Circuit Court dismissed the appellant’s application for review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent to cancel the appellant’s Student Visa.
When the appeal was called on for hearing today, the appellant did not appear. A person called Kamaljeet Singh, identifying himself as a friend of the appellant, appeared and handed up two medical certificates. He stated that the appellant has diarrhoea and was unable to attend today. He sought an adjournment of the hearing.
The Minister opposed the adjournment, submitting that the medical certificates do not contain the sufficient detail to indicate that the appellant was unable to appear today.
There are two medical certificates. The first is dated 25 November 2018 and was prepared by a Dr Allahwala. It certifies that:
Mr Bhupinder Singh has a medical condition and will be unfit for work/school from 25/11/2018 to 25/11/2018 inclusive.
The second medical certificate is dated 26 November 2018 and was prepared by a Dr Rao. It states that Dr Rao examined Mr Bhupinder Singh and that:
He will be unfit for work from 26/11/2018 to 26/11/2018 inclusive.
Neither of the medical certificates indicated that the appellant was unfit to attend the hearing. I was not satisfied of his inability to attend, and was not satisfied that an adjournment of the hearing should be granted. I decided to proceed with the hearing in the appellant’s absence.
The appellant was enrolled in a Diploma of Business with Skills Institute Australia (Skills) on 4 December 2015. Skills certified the appellant as not having achieved satisfactory course attendance.
On 6 January 2016, the delegate decided to cancel the appellant’s student visa under s 116 of the Migration Act 1958 (Cth). That section provides, relevantly:
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
…
The appellant applied to the Tribunal for review of the delegate’s decision. On 21 September 2017, the Tribunal decided to affirm that decision.
In its decision record, the Tribunal found that the appellant failed to comply with condition 8202 of Sch 8 of the Migration Regulations1994 (Cth), which requires that the visa holder has not been certified by his or her education provider as not achieving satisfactory course attendance as specified.
The Tribunal then considered the exercise of its discretion to cancel the visa. The Tribunal noted the appellant’s claims as follows.
17.At the hearing however, the applicant provided the Tribunal a story which can only be described as unbelievable. The applicant said that he received correspondence on 4 December 2015 from the Department asking him to confirm his contact details. He said that as a result he went to Skills either that day or a few days later, his evidence on this was inconsistent, and asked whether his visa was being cancelled. He said that someone nicknamed Ruby at Skills told him that Skills had not cancelled his enrolment but rather that the Department had withdrawn his COE. The applicant then claimed that he was told that Skills had cancelled his enrolment because they were concerned with some criminal activity alleged against him. The applicant said that Skills had manufactured a narrative and faked documents in relation to his attendance because they did not want him enrolled with them because of his supposed criminal activity.
18. The Tribunal indicated that this story seemed to be inconsistent with a different, yet equally unbelievable, accusation put in the applicant’s written submissions, that is, that Skills had manufactured a narrative in relation to his attendance because they wanted him to re-enrol with them and pay more in tuition. The Tribunal indicated that the applicant was saying at the hearing that Skills manufactured the attendance story because they did not want him to attend their institute because of his supposed criminal activity and yet his written submissions asserted the opposite, that the reason that Skills manufactured the attendance story was so that he would re-enrol and pay them more money.
19. The applicant said that Skills told him that they cancelled his enrolment because of supposed criminal activity but if he was willing to apologise for not attending classes they would talk to the Department about allowing the applicant to re-enrol with Skills.
The Tribunal rejected the appellant’s claims, finding that he had:
…simply fabricated his evidence to excuse his failure to maintain satisfactory attendance with skills.
The Tribunal accepted that the appellant and his family members may experience disappointment that his visa was cancelled before he was able to complete his course. It also noted that as his visa had been cancelled, he may have to wait for some time to be granted another visa to Australia. In addition, the Tribunal accepted that he may face emotional distress and embarrassment at not being able to remain in Australia to study. It found, however, that it was the appellant’s responsibility to comply with the conditions of his visa and to inform himself of those conditions. He had every chance to study but had not taken that opportunity. It found that, in any event, his lack of desire and ability to successfully undertake higher education courses in Australia heavily outweighed any hardship that he or his family members may face because of the cancellation of his student visa. The Tribunal accordingly affirmed the delegate’s decision.
The appellant then applied to the Federal Circuit Court for review of the Tribunal’s decision. The Federal Circuit Court described the appellant’s grounds of review as follows:
The Tribunal said that there is a lack of desire and ability to successfully undertake higher education, which I object to. The Department of Immigration and Borden Protection, the — I was not complied with para 8202(3)(b) of condition 8202. However, I differ with it. Both the Tribunal and the department has given weight to statements of my education provide, Skill Institute, and not my statement. I differ and not agree to the arguments given in the decision record and here appealing to the respective Federal Court. I was regularly attending my classes, and my education provider cancelled my COE without giving me any notifications, and hence my visa.
(Errors in the original.)
The primary judge held:
11. It might be discerned from those grounds that the applicant is cavilling with the Tribunal’s determination that circumstances had arisen such that the power to cancel the visa had arisen for consideration. The applicant’s argument seems to be that whilst his education provider had certified his poor attendance, the certification was wrong and had been given by the education provider for the wrong reasons. However, none of that is to the point because, as Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 makes clear, and the Tribunal referred to this decision in its reasons for decision, upon the education provider providing the relevant certification, the non-compliance with condition 8202 is complete and there is no occasion in proceedings such as these to challenge the decision of the education provider to issue the relevant certification.
…
15. The Tribunal concluded the discretionary question against the applicant and affirmed the decision under review. To the extent that the applicant’s grounds of review, as set out in the application for judicial review, go beyond cavilling with the finding that condition 8202 had not been breached and no occasion for consideration of cancellation of his visa had been triggered, the grounds of review simply agitate dissatisfaction and disagreement with the Tribunal’s factual findings. That is not a matter with which this Court in the circumstances of this case can or should interfere. The Tribunal considered the discretionary question in an unremarkable way and in a way that was consistent with the functions given to it pursuant to the Migration Act.
16. In those circumstances the applicant for judicial review does not demonstrate that the Tribunal’s decision is affected by jurisdictional error and the application must be dismissed.
Before this Court, the appellant’s notice of appeal contains the following grounds:
1. The appellant was denied natural justice in that all relevant material was not taken into account.
2. (Appellant will amend the Notice of Appeal when he receives the Reasons for the Decision.)
The appellant has not applied for leave to amend the notice of appeal to include any other grounds. He has not filed any written submissions. As I have said, he has not appeared at the hearing.
The appellant’s ground that he was denied natural justice in that all relevant material was not taken into account was not argued before the primary judge. It is unparticularised and contains no identification of the relevant material said not to have been taken into account. No such material is discernible from the evidence before the Court. The ground cannot succeed.
The appeal must be dismissed with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 12 December 2018
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