Singh v Minister for Immigration

[2018] FCCA 1994

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1994

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – student visa – whether Tribunal failed to consider claims raised by the Applicant – whether Tribunal erred by making a decision in accordance with s.362B(1A)(a) of the Migration Act 1958 (Cth) – where Applicant was aware of the issues arising in relation to the review – where Applicant seeks merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 357A, 360, 360A, 362B, 368.

Migration Regulations 1994 (Cth), Sch.2, cls. 573.231, 573.223, reg.1.40A.

Cases cited:

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited and Anor (1996) 162 CLR 24.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280.

Applicant: CHANVIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1660 of 2017

Judgment of: Judge Hartnett

Hearing date: 18 July 2018

Delivered at: Melbourne

Delivered on: 18 July 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Mr Blusztein

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1660 of 2017

CHANVIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 31 July 2017 wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 3 July 2017.  By that decision, the Tribunal affirmed a decision of the First Respondent (‘the Minister’) by his delegate to cancel the Applicant’s student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa (‘the visa’). 

2. By response to the application filed 12 September 2012, the First Respondent seeks dismissal of the application and that the Applicant pay the First Respondent’s costs.

3. The matter proceeded before Registrar Ryan on 4 April 2018.  On that day, consent orders were entered into by the parties.  Those consent orders included, relevantly, that the Applicant file and serve 28 days before the final hearing date, any amended application with proper particulars of the grounds of the application and written submissions. 

4. The Applicant has failed to file any written submissions and has not filed any amended application with proper particulars of the grounds of the application. The Applicant was, however, offered the opportunity of making oral submissions at the hearing this day, and he did so.  I shall return to the Applicant’s oral submissions in due course, but none of them went to the establishment of jurisdictional error in the decision of the Tribunal of 3 July 2017. 

5. The grounds of application are as follows:-

   “1. The member did not consider my circumstances fully and the decision is affected by administrative errors; 

   2. The member stated in paragraph 3 that I did not advise the Tribunal and did not provide any explanation for non-appearance, however, I did call the Tribunal on 30/06/2017 that I would not be attending as I requested more time over the phone.  I was advised that I should send an email as well, which I forgot as I was sick and was in Victoria at that time.  This clearly shows that the member didn’t check all my documents and made the decision based on his assumption rather than the facts of the case. 

   3. In paragraph 13, the member mentioned that my COE was cancelled on 12/05/2015.  However, the college never communicated that to me as I had requested deferment from the course so I could complete another course at diploma level to complement the same and prepare me to handle the degree level course.  I do agree that the course I chose was different to the degree course; 

   4. The member did not consider that there are a number of young people that go through a phase in life where they are simply lost and go through heaps of ups and downs putting them in situation[s] where they make a number of mistakes.  However, many of them do realise that at some point in their life and try to put their lives back on track.  This is no different to Australian youngsters going through similar phase in their lives.  That shouldn’t mean that the community should just give-up on them.  Everyone needs a chance to try to fix their lives and such an opportunity has been denied by the member to me, particularly, where, I am the one victimised by the college.  I am not alleging it to mean racial profiling, however, it does point to some degree of discrimination that has affected this decision 

   5. I request the Federal Circuit Court to consider my case and allow me to present my case for proper consideration.  I am not trying to abuse the process to extend my stay, but want to exercise my right to present [sic] my arguments for a fair and proper consideration before the Court.”

Background

1. The Applicant was born on 13 July 1995.  He is a citizen of India.  He speaks the Punjabi language and has had available to him, including at the hearing this day, an interpreter fluent in the Punjabi and English languages. 

2. The Applicant was granted the visa on 11 April 2014.  The visa was subject to the following conditions:  8105 - work limitation; 8202 – meet course requirements; 8501 – maintain health insurance;  8516 – must maintain eligibility;  8517 – maintain education for dependants;  8532 – < 18, approve welfare;  8533 – inform provider of address.  The Applicant was notified that his visa allowed multiple entries to Australia until 15 March 2018 when his visa would expire. 

3. By letter dated 4 November 2016, the Department of Immigration and Border Protection (‘the Department’) sent the Applicant a notice of intention to consider cancellation (‘NOICC’) in relation to his visa, pursuant to s.116 of the Migration Act 1958 (Cth) (‘the Act’). The NOICC related to the Applicant’s alleged breach of cl.573.231 or cl.573.223(1A) of the Migration Regulations 1994 (Cth) (‘Regulations’) as the Applicant had failed to commence his Bachelor of Information Technology at Queensland University of Technology. In that letter, the Department requested that the Applicant provide a response addressing any reasons why his visa should not be cancelled. A response was required within five working days.

4. By email dated 9 November 2016, the Applicant responded to the NOICC, stating that he:- 

   a)had changed his study to a Diploma of Management and Advanced Diploma of Leadership and Management and that he did not realise he had breached his visa conditions by doing so;

   b)studied the Bachelor of Information Technology for two and a half months, however was failing and it “was getting it [sic] so tough for me to pass these studies”; 

   c)has now completed a Diploma of Management.  The Applicant provided a certificate verifying this; 

   d)is currently completing an Advanced Diploma of Leadership which is nearly complete.  The Applicant provided an overseas student Certificate of Enrolment (‘COE’) for this course; 

   e)has applied for a “new COE for diploma leading to degree but I need week or so to get that”;  and

   f)breached his visa conditions “without knowingly [sic] and without any intension [sic] to do so”.  

5. By letter dated 29 November 2016, the delegate notified the Applicant of the decision to cancel the visa. 

6. As noted in the delegate’s decision, the Applicant did not dispute there were grounds for cancellation but provided to the Department reasons why his visa should not be cancelled.  The delegate considered those reasons.  The delegate noted that the Applicant had stated during the application process for the student visa that his intended purpose of travel to, and stay, in Australia, was to study a course package leading up to a Bachelor of Information Technology at Queensland University of Technology, and a student visa (subclass 573) was granted to him. 

7. Information available to the delegate in PRISMS, however, indicated that the Applicant’s enrolment in the higher education sector level course was cancelled from 12 May 2015. At the time of the delegate’s decision, the Applicant was no longer enrolled in a bachelor or master degree course of a type specified for (subclass 573) visas by the Minister in an instrument made under reg.1.40A of the Regulations; therefore, the Applicant did not meet the requirements of condition 8516 of his visa.

8. The delegate noted that since 12 May 2015 the Applicant had been enrolled in lower level courses.  The Applicant acknowledged before the delegate that he was not enrolled in the appropriate level to his visa grant and requested the Department to allow him a week or so to obtain enrolment at the correct level.  The delegate noted, however, that the Applicant had not been enrolled in the higher education level for more than 18 months since 12 May 2015, and continued to not be so enrolled at the correct level at the time of decision.  The delegate was satisfied there was no reason not to cancel the Applicant’s visa.

9. On 7 December 2016, the Applicant applied to the Tribunal for merits review of the delegate’s decision with the assistance of his migration agent.  A copy of the delegate’s decision was attached to the Applicant’s application.

The Tribunal

1. By email dated 5 June 2017 sent to the Applicant’s migration representative, the Tribunal invited the Applicant to attend a hearing on 3 July 2017 at 1.00pm (Queensland time) at the Administrative Appeals Tribunal at its address in Brisbane, Queensland.  The Tribunal requested that:-

   “…any additional documents or information that you may wish to rely on during the hearing be provided to us by 26 June 2017.”

2. Relevantly, the hearing invitation informed the Applicant that:-

   a)the Tribunal would only change the hearing date if it was satisfied that the Applicant had a “very good reason” for being granted an adjournment; 

   b)if the Tribunal did not advise the Applicant that an adjournment had been granted, the Applicant “must assume that the hearing will go ahead”;  and

   c)if the Applicant did not attend the scheduled hearing, the Tribunal:-

   “…may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.”

3. On 3 July 2017, the Applicant failed to attend the Tribunal hearing.

4. By letter dated 4 July 2017 sent by email to the Applicant’s migration representative, the Tribunal notified the Applicant of its decision dated 3 July 2017.

5. The Tribunal, as set out in paragraph 4 of the Statement of Decision and Reasons (‘the Decision Record’), concluded that the decision to cancel the Applicant’s visa should be affirmed.

6. The Tribunal noted in paragraph 6 of the Decision Record:-

   “A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa.  This condition requires that a visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of a visa.”

7. The Tribunal noted that the delegate had found the Applicant had failed to continue to satisfy the criteria of the grant of the visa in cl.573.223(1A) or the alternative criteria in cl.573.231 of Schedule 2 to the Regulations.

8. The Tribunal found that the Applicant had ceased to meet cl.573.223(1A) when his enrolment in the Bachelor of Information Technology degree was cancelled on 12 May 2015, and he did not meet the alternative criteria in cl.573.231 as he was not enrolled in a course specified by the Minister in instrument IMMI 14/015 made pursuant to reg.1.40A of the Regulations.

9. The Tribunal noted that the Applicant admitted that he had not met the criteria in cl.573.223(1A) or the alternative criteria in cl.573.231 of Schedule 2 to the Regulations. The Applicant’s admission of this fact accorded with the records held by the Department.

10. The Tribunal was satisfied that the ground for cancellation in s.116(1)(b) of the Act existed before proceeding to consider whether the power to cancel a visa should be exercised.

11. In the Tribunal’s consideration as to whether it should exercise its discretion not to cancel a visa, having regard to the Applicant’s circumstances, and having regard to those matters identified in the Department’s Procedures Advice Manual PAM3 “General Visa Cancellation Powers”,  the Tribunal:-

    a)considered the Applicant’s response to the NOICC dated 9 November 2016; 

    b)found, as set out in paragraph 19 of the Decision Record:-

    “…that it was the applicant’s responsibility to be aware of the conditions of his visa and to comply with those conditions.  When the applicant found that the IT courses he was undertaking were too difficult for him and he wanted to change courses, he had every opportunity to seek advice from a migration agent to ensure that he was complying with the conditions of his visa.  The applicant did not do so and instead abandoned the courses for which his visa was approved and enrolled in VET courses in breach of his visa conditions.  The applicant went on to complete a Diploma of Management VET course.”;

    c)found the Applicant’s failure to attend the Tribunal hearing raised the concern that the Applicant did not have a desire to successfully complete a higher education course in Australia; 

    d)accepted that the Applicant and his family members may experience disappointment with the Applicant’s visa cancellation before he was able to complete any registered courses in Australia and that because the Applicant’s visa had been cancelled, the Applicant may have to wait for some time to be granted another visa in Australia.  The Tribunal noted, however, that those difficulties were of the Applicant’s own making;

    e)In any event, the Tribunal found the Applicant’s lack of desire 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 the Applicant’s visa; and 

    f)considering the circumstances as a whole, concluded that the visa should be cancelled.

Consideration

Grounds 4 and 5

1. The Court finds that the allegation as set out in ground 4 is not an allegation that the Court can consider when reviewing the Tribunal’s decision to determine if jurisdictional error attends the decision.  It is an allegation against the Applicant’s education institution, rather than an issue raised with the Tribunal decision or an issue put to the delegate or Tribunal.

2. As to ground 5, the Applicant by that ground seeks merits review, and on the facts of this case that ground must fail. It is not the Court’s function in the hearing of a judicial review application to substitute its own decision for that of the Tribunal.[1] 

   [1] Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited and Anor (1996) 162 CLR 24, 40.

Grounds 1 and 2

1. In respect of ground 1, which alleges that the Tribunal “did not consider my circumstances fully”, the Court notes that this ground is unparticularised. The Court accepts the submission of the Minister that the Tribunal did not fail to consider a relevant consideration in exercising its discretion to cancel the visa. There are no matters specified in the Act and/or the Regulations that are required to be considered by the Tribunal, although, as is apparent, the Tribunal had regard to the guidelines contained in the Department’s Procedure Advice Manual PAM3 and to the few matters raised by the Applicant, including the reasons for changes to his study, which resulted in the breach of his visa conditions.

2. As to ground 2, this ground cannot succeed. The Tribunal complied with its obligation to afford the Applicant procedural fairness and did not act unreasonably in exercising its power under s.362B of the Act to make its decision to dismiss the application under s.362B(1A)(b) of the Act. Division 5 of Part 5 of the Act is taken to be “an exhaustive statement of the requirements of natural justice in relation to the matters it deals with”.[2] 

   [2] Migration Act 1958 (Cth) s.357A.

3. Section 360 of the Act requires the Tribunal to invite the Applicant to attend a hearing. The Tribunal did so in a way that complied with s.360A of the Act and reg.4.21 of the Regulations, as submitted by the Minister.

4. At the relevant time, s.362B(1A)(a) of the Act provided that the Tribunal may by written statement under s.368 make a decision on the review without any further action to allow or enable the Applicant to appear before the Tribunal if:-

   a)the Applicant is invited under s.360 of the Act to appear before the Tribunal; but

   b)does not appear before the Tribunal on the day on which or at the time and place at which the Applicant is scheduled to appear. 

5. The above requirements were met, and it was clearly open to the Tribunal to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.

6. The Applicant states that he contacted the Tribunal by telephone on 30 June 2017 to request an adjournment of the hearing and was told to put that request in writing.  The Applicant admits that he did not do so.  There is no evidence before the Court that the Applicant contacted the Tribunal on 30 June 2017 or at all prior to the hearing.  This was despite the Tribunal on 26 and 30 June 2017 sending the Applicant SMS hearing reminders. 

7. There is no evidence that the Applicant’s migration representative contacted the Tribunal to provide any explanation for the non-attendance of the Applicant, and the Applicant was represented at the time of the Tribunal hearing. 

8. The Court accepts the submission of the First Respondent that the Tribunal’s Decision to proceed to make a decision on the application was not arbitrary, capricious or without common sense.[3]   

   [3] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280.

Ground 3

1. As to ground 3, this ground also cannot succeed.  As identified by the Tribunal at paragraph 19 of the Decision Record, it was the Applicant’s responsibility to be aware of the conditions of his visa and to comply with those conditions.  The Tribunal made its decision on the same basis as the delegate; therefore, the Applicant had notice of the issues arising in relation to the review.

2. The oral submissions of the Applicant this day included that the course that he was required to undertake pursuant to the terms of his visa was too hard for him, and as a consequence he changed his course.  He claimed that nobody guided him, and had he known, he would have continued with his original course. This does not establish jurisdictional error in the Tribunal decision. The Applicant further submitted that he requested, of the Department, that he be given more time to obtain a degree certificate of enrolment, and that he knew he had made a mistake and he simply wished to fix it.  His request for more time was dealt with by the delegate (paragraph 13 above) and noted by the Tribunal in the Tribunal’s Decision Record. The Tribunal however made the only finding available to it on the evidence, that being, the Applicant had breached his visa conditions and was not satisfied, for the logical and ‘available on the evidence before it’ reasons given, that it should exercise its discretion not to cancel the visa.

1. The application will be dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 25 July 2018