Singh v Minister for Immigration
[2018] FCCA 1215
•16 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1215 |
| Catchwords: MIGRATION – Student visa – condition of visa that applicant be enrolled in course of study – applicant arrives in Australia in 2006 to study – repeated grants of visa – applicant not so enrolled since 2014 – applicant given notice to respond to contention that he is not enrolled in course of study – fails to respond – concedes not enrolled in course of study – show cause hearing – relevant principles – necessity to show arguable case – residual discretion to allow application to proceed – no arguable case shown – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.116, 129, 360, 501 Migration Regulations 1999 (Cth), condition 8202 |
| Cases cited: CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 Chhuon v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 565 MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | GURPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 385 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 15 May 2018 |
| Date of Last Submission: | 15 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms Nyabally |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
The applicant pay the costs of the first respondent fixed at $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 385 of 2017
| GURPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 27 February 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 February 2017. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made on 10 May 2016 to cancel his Student (Subclass 572) visa.
The applicant is a male Indian national aged 34 years who travelled to Australia in November 2006 for the purposes of study.
The delegate’s decision to cancel the Student visa was grounded upon the fact that the applicant had not been enrolled in a registered course of study since 2014.
Background
On 22 July 2014, the applicant was granted a Student (Subclass 572) visa, which visa was subject to condition 8202 of the Migration Regulations 1999 (Cth). Relevantly, para 8202(2)(a) of the condition required that the visa holder be enrolled in a registered course of study.
On 18 April 2016, a delegate of the Department of Immigration and Border Protection issued a notice of intention to consider cancellation of the applicant’s visa pursuant to s 116 of the Migration Act 1958 (Cth). The notice stated as the ground for consideration of possible cancellation of the visa that the applicant had not complied with a condition of his visa in that he was not enrolled in a registered course.
The applicant was given an opportunity to comment and give reasons why his visa should not be cancelled. The Department was given an extension of time within which to respond but ultimately did not do so.
On 10 May 2016, the delegate cancelled the applicant’s visa pursuant to s 116(1) of the Act, being satisfied that a ground for cancellation existed under para 116(1)(b) by reason that the applicant was not enrolled in a registered course of study and that this ground outweighed the reasons for not doing so.
Tribunal proceedings
On 11 May 2016, the applicant applied to the Tribunal for a merits review of the delegate’s decision.
The applicant was invited to appear before the Tribunal so as to give evidence or present arguments on the issues arising in relation to the delegate’s decision: s 360(1).
The applicant attended a hearing on 18 November 2016, having provided the Tribunal with a letter from Australian Study Link Institute offering enrolment in a Diploma of Marketing and Communication.
On 8 February 2017, the Tribunal affirmed the delegate’s decision.
Before the Tribunal, the applicant confirmed that he was not enrolled in a registered course of study and had not been so enrolled since 2014. He told the Tribunal that he had studied hairdressing and completed that course. The Tribunal had regard to a PRISMS record which stated that the applicant had cancelled enrolments in four courses of study in the period June 2014 to August 2016. Those records also indicated that, putting aside other cancellations, the last course which the applicant had completed was a Diploma of Hairdressing Salon Management in April 2014. Before me, the applicant suggested that the courses had not been cancelled but that he had failed to attend classes in those courses in which he was enrolled.
The Tribunal noted that the applicant’s mother remained in India, that he had no contact with his father and had no partner or children.
When asked to comment on the significance of his not having enrolled in a course of study for two years, the applicant was essentially non-responsive, stating that he had been homesick and had done “nothing special” in 2015 since completing his last course of study.
The applicant confirmed that there were no international obligations that needed to be considered respecting the possible cancellation of his visa and, when asked whether there were any compelling or compassionate circumstances which he would have the Tribunal consider in relation to the cancellation of his visa, replied “No.”
The Tribunal found that the applicant had not complied with condition 8202(2) constituted by the failure to be enrolled in a course of study from 2014. It proceeded to consider whether it should exercise its discretion to cancel the visa.
The Tribunal recognised that there was limited information before it in the circumstance that the applicant had provided little in the way of evidence or submissions and, while accepting that there would be some hardship to the applicant and his mother, considered his breach of the condition to be significant. It did not accept that there was an adequate explanation for the breach and concluded that the grounds for cancellation of the visa outweighed those in favour of not doing so. The Tribunal affirmed the delegate’s decision to cancel the visa.
Procedural History
The application was filed in this Court on 27 February 2017.
By a response dated 9 March 2017, the Minister opposed the grant of relief on the basis that the application failed to establish any jurisdictional error in the Tribunal’s decision.
On 30 August 2016, orders were made, by consent, that the proceeding be listed for a show cause hearing. Those orders provided for the applicant to file any amended application, evidence and submissions.
The applicant has not taken the opportunity to file any amended application, evidence or submissions in relation to this hearing.
Show cause hearing
Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) regulates the conduct of a show cause hearing and confers a broad discretion on the Court to dismiss, adjourn or make final orders in an application, depending on whether it is satisfied that the application has raised an arguable claim for the relief sought. Even where the Court is not satisfied that the application has raised an arguable claim for relief, the Court retains a residual discretion to not order that the proceeding be dismissed: Siddique v Minister for Immigration and Border Protection (2014) 144 ALD 328, [19]; SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [40].
In Siddique at [19], Gilmour J stated that:
The power in r 44.12(1)(a) has two components: lack of satisfaction that an applicant has raised an arguable case for the relief claimed, and a residual discretion whether or not to dismiss the application.
For those reasons, his Honour concluded at [20] that it would be wrong to proceed on the basis that the application should be dismissed merely because the Court was not satisfied that the application had raised an arguable case for relief. The exercise of the power conferred by r 44.12(1)(a) further requires the Court to consider whether the discretion conferred by this rule should be exercised.
To recognise that the power conferred by the rule has two components does not deny that the merits of the application for judicial review are critical to the first inquiry (arguable case) and remain significant in relation to the second (discretion). For this reason, it is permissible for the Court to consider both components together: Siddique, [24].
In CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344, Mortimer J held at [4] that the consideration of the merits of the application was important to the determination of an application for reinstatement because of the interests of the administration of justice stating:
. . . [it is] important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful. (Emphasis added)
I respectfully adopt that reasoning as informing a show cause hearing.
Mortimer J held at [5] that exercise of the discretion in favour of an order for reinstatement does not require the Court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review. Rather, on an application for reinstatement, the threshold for consideration of the merits of the application was whether the grounds for judicial review were shown to be ‘arguable’: at [6] citing MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 at [62].
Earlier, in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [18], McHugh J stated that, while the threshold for obtaining an order nisi was a low one, nevertheless Courts should not be burdened with cases where it is clear that they do not enjoy any prospect of success. His Honour dismissed that application at [19] on the basis that the applicant had no arguable claim for relief.
Consideration
As the applicant was self-represented, I have examined the Tribunal’s reasons and the materials comprised in the Court Book. The application contains a single ground of review for which the applicant has provided seven particulars. The ground of review is that:
That decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued section 116 Migration Act 1958 (the Act).
I address each of those particulars as a separate ground of review.
Ground 1 – prescribed circumstances
Ground 1 states:
The Tribunal failed to consider section 116(2) of the Migration Act 1958 where it provides the “Minister is not to cancel a visa under subsection (1) . . . if there exist prescribed circumstances in which a visa is not to be cancelled.”
This ground rested on an assumption that there were circumstances prescribed by the Act or Regulations in which a Student visa was not to be cancelled. I accept the submission of the Minister that there are no such prescribed circumstances. Ground 1 is without merit.
Ground 2 – notice of dispositive issues
Ground 2 states:
The Tribunal failed to put the Applicant on notice of the issues dispositive to its decision.
It may be accepted that the Tribunal was obliged to afford the applicant procedural fairness; however, it is necessary to identify at some level of specificity the nature of the inquiry to be conducted and the issues that are to be considered. The scope of the obligation to accord procedural fairness is not at large. For example, where the applicant is in possession of the delegate’s decision, there will be no requirement to notify a person of information which is in that decision: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [25]-[40] (per curiam).
The dispositive issue before the delegate and the Tribunal was whether the applicant had breached condition 8202. This issue was examined in detail in the delegate’s decision and that applicant had those reasons. The applicant was squarely on notice of the dispositive issue in the application. The Tribunal traversed the issue with the applicant in some detail: Reasons, [18]-[22].
Ground 2 is not an arguable basis for showing jurisdictional error.
Ground 3 – particulars of information
Ground 3 states:
The Tribunal failed to afford the applicant procedural fairness as adequate particulars of the information upon which the decision not to revoke the cancellation was based were not provided to the applicant for his comment applying Noeung v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1304; (2002) 125 FCR 503.
The applicant’s ground cited Noeung v Minister for Immigration and Multicultural and Indigenous Affairs, as supporting a conclusion that he had an arguable claim for judicial review. Noeung involved a visa cancellation under s 129 which concerns the cancellation of visas by a person who was outside Australia. Allsop CJ considered circumstances in which a notice had been hand delivered to a person in Phnom Phen. The notice was held to be defective for want of the time allowed to the applicant to respond: (2002) 125 FCR, [25]. Relief was also granted on other bases which are not here relevant: 125 FCR, [38]-[39].
The reasoning in Noeung is important to a consideration whether, objectively, a notice achieved sufficient or substantial compliance with the requirements of the Act. The Chief Justice stated at [71]:
. . . there must, it seems to me, be sufficient compliance with the requirements of the section that, objectively assessed, the notice informs the erstwhile visa holder of the substance of the matters identified in the section and provides the intended statutory opportunity to consider the content of the notice so as to enable her or him to provide a meaningful response. A departure from such substantial compliance will, it seems to me, invalidate the notice, because, in such a circumstance, the opportunity to respond has been impaired, as a matter of substance. Whilst the assessment of the adequacy of the notice is to be objective, due account must be taken of the context in which the particular notice is sent to the recipient. What is a clear notification of relevant matters to one person may not be to another, if one has regard to the context of the parties giving and receiving the notices in question. (Citations omitted)
I consider those principles instructive in relation to Ground 3.
The notice given in the present case was neither insufficient nor substantially inadequate. Further, I do not consider that the applicant was placed at any practical disadvantage or that he might have responded in a fuller manner in any event: cf Chhuon v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 565, [24] (Mansfield J). The applicant requested and was given additional time to respond, but still did not do so.
Ground 3 is without merit.
Ground 4 and 6 – misconstruction of paras 166(1)(b) and (fa)
Ground 4 states:
The Tribunal misconstrued section 116(1)(b) and 116(1)(fa) in finding ground of cancellation exists under the said section.
Ground 6 states:
The Tribunal erred in not applying the facts when considering grounds of cancellation in section 116(1)(b) of the Act.
These grounds misconceive the reasons of the Tribunal. The applicant’s visa was not cancelled on the basis that the applicant was not, or was not likely to be, a genuine student.
The applicant’s visa was cancelled by reason that he was not enrolled in a registered course of study. The applicant accepted that this was so.
Equally, to the extent that the applicant relied upon the offer of enrolment from Australian Study Link Institute, this could not cure a breach of condition 8202 once that breach had been found. In Singh v Minister for Immigration and Border Protection [2016] FCA 679, at [37], Buchanan J held that once a breach of such condition had been found, the discretion to cancel a visa was engaged and was not removed by a finding that the breach was not ongoing. In the present case, the breach was ongoing at the time of the Tribunal hearing.
Insofar as these grounds may be understood as seeking a merits review of the Tribunal decision that is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. Insofar as the applicant expressed to me a desire to continue to study, I accept the Minister’s submission that the applicant should be seen as seeking impermissibly a merits review by this Court of the Tribunal decision.
These grounds raise no arguable case of jurisdictional error.
Ground 5 – failure to refer to s 116(1)(g) and (1A)
Ground 5 states:
The Tribunal completely disregarded or failed to refer to section 116 (g) and (1A) which prescribes matters which the Minister may have regard in determining whether he or she is satisfied that cancelling a visa applies to the holder.
For the same reasons as are given in relation to Ground 1, this ground is misconceived. There are no circumstances prescribed by the Act or Regulations in which a Student visa is not to be cancelled.
I reject Ground 5 as failing to demonstrate an arguable basis for relief.
Ground 7 – mandatory criteria
Ground 7 states:
The Tribunal failed to have regard to all the mandatory criteria before cancellation of the visa applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140.
Lafu was an appeal concerning the cancellation of a visa pursuant to s 501 by reason of the applicant’s criminal record.
In the present, case there was no question of the applicant being required to satisfy a character test of the kind posed by sub-s 501(6).
I reject Ground 7 as containing no arguable case for relief.
Conclusion
I consider that the application fails to raise an arguable case for judicial review and that no reason is shown why an order should be made in the exercise of discretion not to dismiss the application.
It follows that the application will be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 16 May 2018
14
4