SINGH v Minister for Immigration

[2018] FCCA 1233

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1233

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – credibility findings by Tribunal – whether Tribunal acted erroneously – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.116

Cases cited:

Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581

Applicant: BHUPINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1029 of 2017

Judgment of: Judge Jarrett

Hearing date: 6 April 2018

Date of Last Submission: 6 April 2018

Delivered at: Brisbane

Delivered on: 6 April 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed 16 October 2017 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 1029 of 2017

BHUPINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was granted a student visa on 4 October, 2013.  He was enrolled in the Certificate IV in Business and a Diploma of Business at a TAFE college and in a Bachelor of Business degree at the Queensland University of Technology.  He was unsuccessful in completing the Certificate IV and the diploma in 2014 and his enrolment in the bachelor degree was cancelled as well.  He then enrolled in a Certificate IV in Business Administration with an organisation called Skills Institute Australia.  He completed that in mid-2015.  In August of 2015 he enrolled in a Diploma of Business with Skills Institute Australia. 

2. However, on or about 11 September, 2015 the institute issued a warning letter to the applicant about his unsatisfactory course attendance during the completion of his Diploma of Business Course.  A second warning letter was apparently issued on 9 October, 2015 and in November, 2015 the Institute wrote to him advising of its intention to report him to the Department of Immigration for unsatisfactory course attendance. 

3. On 4 December, 2015 the institute certified that the applicant was not achieving satisfactory course attendance in relation to his Diploma of Business Course.  The consequence of all of that is that the certification from the institute given on 4 December, 2015 engaged visa condition 8202 that was attached to his student visa.  The applicant was obliged to continue to meet condition 8202 whilst he held his student visa.

4. Consequent upon the Institute certifying the applicant as not achieving satisfactory course attendance, the first respondent’s department took up with the applicant via letter and notified him of the first respondent’s intention to consider the cancellation of his student visa.  He was invited to respond. 

5. On 16 December, 2015 the applicant provided a statement and some other documents to the first respondent’s department in response to its letter.  His case was then, and it seems to me it continues to be, that he had regularly attended his classes at the Institute and he was mystified as to why the Institute had certified his non-attendance.  He claimed then and continues to claim now that he never received any correspondence from the Institute in relation to his attendance or lack thereof and he had only been rarely absent from his classes.

6. His case then was, and is now, that the Institute cancelled his enrolment because he was involved in what he described to me as some criminal case which was really a traffic matter arising out of him driving in Queensland using an Indian driver’s licence. 

7. On 24 December, 2015 the applicant provided some more material to the first respondent’s department, including a confirmation of enrolment in a Diploma of Leadership and Management that was to commence in February, 2016 and an enrolment in a Bachelor of Business commencing in March of 2017. There were some other documents provided as well. Notwithstanding those submissions and the provision of those documents on 6 January, 2016 a delegate of the first respondent cancelled the applicant’s visa, relying upon the power to do so set out in s.116 of the Migration Act 1958 (Cth).

8. The applicant sought review of that decision by the Administrative Appeals Tribunal.  The Tribunal determined on 21 September, 2017 to affirm the delegate’s decision. 

9. The present proceedings are an application to review the decision of the Tribunal.  The Tribunal’s decision to affirm the decision under review was made primarily because the Tribunal determined first, that an occasion for cancellation of the visa had arisen – in the Tribunal’s view there was no doubt that condition 8202 had not been complied with – and second, as a matter of discretion, the visa should be cancelled. 

10. The applicant’s application for review to this Court and his submissions to me today tend to take issue with both of those matters.  It is as well to record now the grounds of review that the applicant specifies in his application for judicial review.  They are 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 provider, 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. 

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.

12. That has been the subject of discussion in some authorities, but, as I recollect, the gravamen of those authorities is that the determination of the education provider to issue the relevant certification is not open to challenge in this Court. 

13. As to the exercise of discretion, the Tribunal determined that it did not accept the applicant as a witness of truth.  The Tribunal recorded the applicant’s claims made in the documents that had been provided to the department in response to the department’s notice of intention to consider cancelling his visa, as well as the material given by the applicant to the Tribunal.  The Tribunal concluded that the arguments and factual contentions raised by the applicant were not just inconsistent, but significantly so, such that the Tribunal was very concerned about the applicant’s credit. 

14. The Tribunal found that the applicant did not have the desire or the ability to undertake a higher education course in Australia successfully. The Tribunal referred to the evidence from which it drew that inference and made that finding.  The finding was plainly open on the evidence, particularly that which indicated that the applicant had failed two courses and had a poor record of attendance.  The Tribunal discounted the applicant’s evidence that he had the will and the ability to successfully undertake a higher education course in Australia because it was not satisfied that he was a witness of truth. 

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. 

[Recorded: not transcribed]

1. Costs in these types of proceedings follow the event.  That means that the unsuccessful party generally pays the successful party’s costs of the proceedings, unless there are special circumstances that mean that that general rule should not apply.  Here there are no special circumstances.  The applicant says that he cannot afford to pay that amount of money, and that might well be true, but impecuniosity is not generally seen as an exception to the rule that costs should follow the event.

   Accordingly the application for review should be dismissed with costs fixed in the sum of $5,600.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 April, 2018.

Date: 17 May 2018