SINGH v Minister for Immigration

[2018] FCCA 786

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 786

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

Legislation:

Migration Act 1958 (Cth), ss.116(1)(b), 116(3), 353B, 357A(3)

Cases cited:

Craig v South Australia (1995) 184 CLR 163

Applicant: MAHABIR SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 873 of 2017

Judgment of: Judge Jarrett

Hearing date: 23 March 2018

Date of Last Submission: 23 March 2018

Delivered at: Brisbane

Delivered on: 23 March 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 4 September 2017 be 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

BRG 873 of 2017

MAHABIR 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 25 August, 2016.  On 11 March, 2016 his enrolment, then current, in the Masters of Business Administration at the Southern Cross University was cancelled.  That triggered the giving to him by the first respondent’s Department a notice of intention to consider cancellation of his visa.  It required him to respond to the notice which set out that, as far as the first respondent was concerned, an occasion for the cancelling of his visa had arisen and consideration was to be given to cancelling it.

2. In particular, it was said that the first respondent thought there was evidence to suggest that the applicant had breached condition 8516, set out in schedule 8 to the Migration Regulations 1994 (Cth). That condition was attached to his student visa and it was said that he breached that condition because he no longer satisfied the primary or secondary criteria necessary to be satisfied by him for the grant of the visa in the first place as prescribed by subclauses 573.223(1A) or clause 573.231 (both set out in schedule 2 to the Regulations).

3. The applicant responded to the notice of intention to cancel.  On 30 December, 2016 he provided to the first respondent’s delegate a statement and some material that supported his response.  He said that he had completed an English proficiency course and after he had completed that he had changed his studies to a Certificate IV in Commercial Cookery rather than his intended Graduate Diploma of Business and Masters of Business Administration.  He said that he was not aware that a condition of his student visa required him to be enrolled in a Masters level degree course at all times. 

4. He said that on 6 December, 2016 – so some many months after his enrolment in the Masters of Business Administration had ceased – he was offered a position in a Masters of Business Administration course at a different institution called the Holmes Institute and he had enrolled in the next available intake, which was due to commence in March, 2017. 

5. The applicant also pointed out that it was his first time away from his parents; he was in a new country and environment, and he felt lost.  He said he was stressed because his brother had been ill with alcoholism and, sadly, he had passed away in July of 2016.  He also pointed out that the cancellation of his student visa may affect his mother’s health, and it would bring to him hardship for a number of different reasons.

6. On 3 January last year, a delegate of the Minister cancelled the applicant’s student visa. The cancellation was carried out under s.116(1)(b) of the Migration Act 1958 (Cth). The delegate found that the applicant had not met the schedule 2 criteria between 11 March, 2016 when his enrolment in the MBA at Southern Cross University was cancelled and when he was enrolled in his MBA at Holmes College.

7. In respect of that finding, there is a question about whether the delegate’s precise finding about that matter was correct, but, in any event, it does not matter because this application is in respect of a subsequent decision of the Administrative Appeals Tribunal and this Court does not have jurisdiction to review a primary decision made under the Migration Act which, in my view, the delegate’s decision clearly was.

8. Needless to say, the delegate’s decision was the subject of a review application by the applicant to the Administrative Appeals Tribunal.  The applicant was invited to attend a hearing before the Tribunal because it could not make a decision on his application favourable to him just on the papers alone.  He attended a hearing and was accompanied by a migration agent. 

9. The Tribunal, in its reasons for decision, noted that the applicant had failed to continue to meet the relevant criteria.  The first question considered by the Tribunal in its reasons was whether a ground for cancellation existed, and, for the purposes of these reasons, the Tribunal’s conclusion that such a ground did exist was correct.  Its finding in that regard is unassailable.

10. The Tribunal then went on to consider the discretion that arises once the occasion for consideration of cancellation is made out. The Tribunal correctly noted that s.116(3) of the Migration Act did not require the visa to be cancelled. There was no mandatory cancellation in this case. There was a discretion to be exercised. The Tribunal informed itself of the matters that it considered relevant to the exercise of the discretion set out in the Department’s Procedure Advice Manual, and the Tribunal made some findings of fact which assisted it to exercise the relevant discretion. For example, it found that the applicant did not re-enrol in a higher education course, such as an MBA, until after he received the Department’s letter on 12 December, 2016.

11. That finding was technically correct, as the first respondent pointed out.  He did not re-enrol in a higher degree course until after he received the Department’s letter, but he was the subject of an offer of enrolment from the Holmes Institute that was made to him on 6 December.  But for reasons I will come to shortly, to the extent that it might be said that the Tribunal has made an error of fact because it had overlooked that offer of enrolment – and I do not think it has – but if it has, the error is immaterial.

12. The Tribunal’s reasons demonstrate that it was concerned about the applicant’s ability to undertake higher level study and complete it in Australia.  There is a discussion in the Tribunal’s reasons, in some detail, about the applicant’s academic performance and his progress through the education system according to or with the use of his visa.  The chronology set out in the Tribunal’s reasons is accurate and there are no apparent errors in the facts upon which the Tribunal has based its construction of that chronology.  The Tribunal found that the applicant lacked a desire and the ability to successfully complete higher education courses in Australia.

13. Ultimately, the Tribunal made this finding: 

    In any event, the Tribunal finds that the applicant’s lack of desire and ability to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

14. Accordingly, the Tribunal affirmed the decision under review and the delegate’s decision cancelling his student visa was affirmed. 

15. The applicant has applied to this Court for judicial review of the Administrative Appeals Tribunal’s decision.  The jurisdiction that this Court exercises on such applications is limited.  The Court can only interfere with the Tribunal’s decision if it is satisfied that the Tribunal has fallen into jurisdictional error.  That requires the court to find that there has been an error in the nature of that described by the High Court of Australia in Craig v South Australia (1995) 184 CLR 163 and in the cases that follow. It is not enough to simply demonstrate legal or factual error; the error must go to jurisdiction and there can sometimes be difficulty in identifying whether a legal or a factual error goes to jurisdiction.

16. Here the applicant identifies two grounds that he says demonstrates that the Tribunal fell into jurisdictional error. 

17. The first is that he says that the Tribunal failed to act according to substantial justice and the merits of the case and was in breach of s.353B of the Migration Act. Alternatively he says that the Tribunal failed to act in a way that was fair and just and was in breach of s.357A(3) of the Act. Secondly, he says that the Tribunal’s reasoning is unfairly biased and based on unsound reasoning. He says the Tribunal placed significant weight on the fact “that I became aware of my brother’s alcoholism after the alleged breach. Further, the Tribunal member placed significant weight on my ‘poor academic progress’ concluding that I do not have the ability to successfully undertake higher education courses in Australia. The Tribunal failed to acknowledge that I was going through a difficult time and, despite this, I managed to re-establish myself and complete a Certificate IV in Commercial Cookery.”

18. The complaint set out in the first ground of review about ss.353B and 357A(3) of the Act is not made out on the material before me. The Tribunal’s decision is clear and transparent. Its reasoning process is exposed and there is nothing in that reasoning process which would suggest that the Tribunal has not taken into account something which is relevant, nor that it has taken into account something which is not relevant.

19. Insofar as the applicant suggests that there is a lack of fairness or justice in the way in which the Tribunal has acted or that it has failed to accord him substantial justice according to the merits of his case, his argument is nothing more, in my view, than emphatic disagreement with the Tribunal’s decision.  That of itself does not establish jurisdictional error. 

20. As to the second ground, allegations of bias need to be plainly asserted and clearly proved.  The applicant filed an affidavit with his application.  He expands on his allegations of bias, but his allegations of bias are not made out.  Again, having regard to the terms of his affidavit, his complaint really is one of emphatic disagreement with the Tribunal’s decision and approach.  There is nothing in the material that I have which would suggest that the Tribunal had prejudged the applicant’s case.  There is nothing that I have read that suggests that the Tribunal did not properly discharge its statutory duty.  The applicant was given, on the material before me, all of the appropriate opportunities to put whatever it was that he wished to put before the Tribunal. 

21. In those circumstances, his grounds of review cannot be made out.  In his written submissions the first respondent raised another matter which arises out of what I described earlier as perhaps some factual error.  It arose in this way.  The Tribunal made a finding, as I have indicated, that the applicant had not re-enrolled in a higher education course until after he received a letter from the first respondent’s department on 12 December.  He had, in fact, received an offer of enrolment on 6 December, 2016. 

22. An offer of enrolment is not an enrolment in fact, and so to the extent that the Tribunal said that he was not enrolled in any relevant course, the Tribunal was correct.  During the course of argument and prompted by the fulsome written submissions delivered by the first respondent, I explored whether the fact that he was the subject of an offer of enrolment from the Holmes Institute for an MBA ought to have been a feature of the Tribunal’s reasons when it considered exercising the relevant discretion.  The Tribunal did not refer to it, although it was apparent from the material that was before the Tribunal that the applicant had received the offer of enrolment. 

23. But for the reasons expressed by the first respondent in his written submissions and expanded upon orally today, I am satisfied that the Tribunal has made no error in not referring to that matter.  That is so because it was something which, having regard to the finding made by the Tribunal in paragraph 26 of its reasons for decisions, would not have made a difference to the outcome in the proceedings.  The Tribunal’s determination in paragraph 26 about the applicant’s lack of desire and ability to successfully undertake higher education courses in Australia was, according to the Tribunal’s reasons, the determinative issue and one which was not likely to have been affected by an offer of re-enrolment in a higher degree course, in any event.  That must be so given that the Tribunal did not consider it significant that the applicant had in fact enrolled in a relevant course albeit after the notice of intention to cancel his visa was received by him. 

24. In those circumstances, the application must be dismissed.

    [RECORDED: NOT TRANSCRIBED]

25. The first respondent seeks an order for costs.  The usual rule is that costs follow the event unless there are special circumstances which demonstrate that the application of the usual rule would be inappropriate.  Here, the applicant says that he cannot afford to pay the amount claimed by the first respondent for costs.  Impecuniosity is generally never seen as an answer to an order for costs, and in those circumstances there is no occasion not to apply the usual rule.  The application must be dismissed and costs should follow the event.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 23 March, 2018.

Date: 17 May 2018