Singh v Minister for Immigration

[2018] FCCA 243

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 243

Catchwords:
MIGRATION – Administrative Appeals Tribunal – student (temporary) (class TU) higher education sector (subclass 573) visa – applicant not enrolled when merits review heard – breach of conditions 8202 and 8516 – no error by Tribunal.

Legislation:

Migration Act 1958, ss.116, 359AA

Migration Regulations 1994, Sch.8, conditions 8202, 8516

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163
Kirk v Industrial Relations Commission (2010) 239 CLR 531
Liu v Minister for Immigration and Border Protection [2016] FCCA 2364

Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170
Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: GURPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 280 of 2016

Judgment of: His Honour Judge Wilson

Hearing date: 30 January 2018

Date of Last Submission: 30 January 2018

Delivered at: Perth

Delivered on: 30 January 2018

REPRESENTATION

Counsel for the Applicant: Mr J Raftos

Solicitors for the Applicant: Mr S Shakur, solicitor

Counsel for the First Respondent: Mr J Edwards

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No Appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application filed 29 June 2016, amended 4 December 2017 and further amended ore tenus this day is dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328, insofar as those costs are not provided for by the costs order previously made on 16 November 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 280 of 2016

GURPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 7 September 2015, a delegate of the Minister (“the delegate”) decided that the applicant’s student (temporary) (class TU) higher education sector (subclass 573) visa should be cancelled.  On 22 June 2016, the Administrative Appeals Tribunal (“the Tribunal”) affirmed the delegate’s decision.  On 29 June 2016, the applicant applied to this court seeking judicial review of the Tribunal’s decision.  He filed an amended application on 4 December 2017.  Today, on the hearing of this application for judicial review, counsel for the applicant applied for leave to further amend his application to this court.

2. After debate, counsel for the Minister submitting that the proposed amendment orchestrated no practical disadvantage to the Minister, I granted leave for the applicant to further amend by reconfiguring the existing grounds and adding a new ground.  In a manner that I found surprising, the applicant’s counsel did not produce a document that recorded the precise terms of the amendment for which leave was sought.  That is not a practice I encourage, still less one I condone.

3. Lest this case goes further, it will be important for whomever considers my reasons to know the precise terms of the amendment, so I have reproduced them hereunder –

   Further amended grounds of application

   1.The second respondent, in making its decision (or purported decision) of 22 June 2016 to affirm the decision of the delegate of the first respondent to affirm the decision of the delegate of the first respondent to cancel the applicant’s subclass 573 higher education sector visa under section 116 of the Migration Act 1958 (“the Act”) committed jurisdictional error in that it illogically and unreasonably –

   (a)misconstrued condition 8202(2)(a), in that the condition required the applicant to have been enrolled in a bachelor degree course and not a “registered course” at the time of the decision; and

   (b)failed to generally consider a material fact of the application, namely, the applicant was not enrolled in a “registered course”.

   2.The applicant was also not given notice, prior to the hearing, that it was alleged he had breached condition 8516.

4. In my view, it is highly undesirable to make amendments on the run of the sort urged by the applicant this morning.  However, in the interests of both parties in having this case heard and determined – as both asked me to do – I proceeded to deal with the further amended application in the manner sought by both the applicant and the Minister.

Synopsis

1. For the reasons that follow, in my judgment the Tribunal did not fall into jurisdictional error on the grounds alleged.  Its decision was open.  This proceeding must be dismissed.  The applicant must pay the Minister’s costs.

Short factual examination

1. The applicant, an Indian citizen, came to Australia in October 2013 to study for bachelor of business qualifications on a subclass 573 higher education sector visa. After commencing a diploma of business, in six months he withdrew from that course of study and enrolled in a course that was to lead to qualifications in commercial cookery. The applicant’s enrolment in the bachelor of business course was cancelled on 20 June 2014. The Department of Immigration and Border Protection (“the Department”) attempted, unsuccessfully as it happened, to contact the applicant. On 7 September 2015, the Minister’s delegate cancelled the applicant’s visa pursuant to s.116 of the Migration Act 1958 (“the Act”).  The delegate considered that the applicant had failed to comply with the condition of his visa that he was enrolled in a registered course. 

2. Being dissatisfied with the delegate’s decision, the applicant applied for a merits review in the Tribunal.  He appeared before the Tribunal on 11 May 2016, represented by his migration agent.  The Tribunal decided to affirm the delegate’s decision to cancel the applicant’s visa. It reasoned as follows –

   a)condition 8202 required the applicant to be enrolled in a registered course;

   b)the applicant’s enrolment in the bachelor of business course ceased on 20 June 2014;

   c)the applicant provided documentation showing that he was enrolled in courses of study between 30 June 2014 and 19 June 2014 and between 27 July 2015 to 31 January 2016;

   d)the applicant provided documentation showing that he commenced another course of study on 8 February 2016 and a management course to commence on 15 August 2016;

   e)a 10 day gap in the applicant’s enrolment existed between the cancellation of his enrolment in the bachelor of business course (20 June 2014) and his enrolment in the cookery course (30 June 2014);

   f)the length of the enrolment gap can be considered as a discretionary matter in whether to cancel the visa, and even a 10 day gap in enrolment is a breach of condition 8202, as was held in Liu v Minister for Immigration and Multicultural and Indigenous Affairs;[1] 

   [1] [2003] FCA 1170

   g)for a period, the applicant was not enrolled in a registered course and, for that period, the applicant did not comply with condition 8202(2); 

   h)in assessing whether to exercise its discretion to cancel the visa, the Act and Migration Regulations 1994 (“the Regulations”) did not specify any matters that had to be taken account, yet the Department’s Procedure Advice Manual, PAM3, provided certain guidelines;

   i)when the applicant arrived in Australia, his visa was a higher education visa subclass 573 and the courses in which the applicant enrolled after six months of his arrival in Australia were not vocational or education and training courses that did not meet the requirements for a subclass 573 visa;

   j)the applicant was subject to condition 8516 that required him to be studying one or more courses leading to a higher degree and since the cancellation of his diploma of business he had not met that requirement;

   k)the applicant did not meet condition 8505 that required him to continue to live at the address specified in the grant of the visa;

   l)the applicant did not meet condition 8533 that required him to notify his education provider of any change of his address within seven days of the change of address;

   m)the applicant breached conditions 8516, 8505 and 8533 that attached to his visa;

   n)the applicant said his migration agent told the applicant that the applicant could change courses;

   o)the applicant sought assessment and treatment from a psychologist, who diagnosed the applicant as suffering from stress, an adjustment disorder and depressed mood;

   p)a general practitioner reported that the applicant had commenced a mood stabiliser as the applicant suffered anxiety and stress; and

   q)any such medical circumstances did not explain the breach of condition 8516.

In this court

1. The applicant applied to this court by application filed 29 June 2016.  His grounds of application in their unamended form were barely comprehensible.  On 20 July 2016, a registrar of this court granted the applicant leave to file an amended application by 28 September 2016.  The applicant failed to comply with that order.  However, by consent on 16 November 2017, a judge of this court mandated (hence the wording in paragraph 2(a) of those orders “the applicant shall file”) the filing of any amended application by 8 December 2017.  On 4 December 2017, the applicant filed the amended application on which he relied until today.  Pursuant to paragraph 2(b) of the orders made on 16 November 2017, by which the applicant was required to file and serve any further affidavits on which he intended to rely, the applicant swore a detailed factual affidavit on 4 December 2017 to which he exhibited 12 exhibits. 

2. As to the applicant’s affidavit sworn 4 December 2017, the hearing before me was in the nature of judicial review.  It was not a merits review.  A judge in my shoes is forbidden from undertaking a review of the factual merits of the Tribunal’s decision as was held by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[2]  The material in the applicant’s affidavit sworn 4 December 2017 was factual.  It purported to address events that predated the Tribunal’s decision.  It contained material that had no relevance to judicial review.  None of the material in the applicant’s affidavit sworn 4 December 2017 bore upon whether the Tribunal –

   a)identified a wrong issue;

   b)asked itself a wrong question;

   c)ignored a relevant consideration;

   d)relied on irrelevant considerations; or

   e)made an erroneous finding or reached a mistaken conclusion.

   [2] (1996) 185 CLR 259 (at 272)

3. Those five issues have traditionally been the hallmark of the existence of jurisdictional error as the High Court of Australia held in Craig v South Australia,[3] although, as the High Court held in Kirk v Industrial Relations Commission,[4] they do not prescribe a rigid taxonomy because illustrations of judicial error made by found elsewhere. 

   [3] (1995) 184 CLR 163

   [4] (2010) 239 CLR 531

4. In the circumstances, I declined to rely on the affidavit the applicant swore on 4 December 2017.  It was otiose for the purposes of judicial review. 

The applicant’s further amended grounds of review

1. The applicant relied on two grounds of review.  I have recorded them above. 

Ground 1(a)

1. Under the first ground, the applicant contended that the Tribunal committed jurisdictional error in that it illogically and unreasonably misconstrued condition 8202(2)(a) became the condition required the applicant to have been enrolled in a bachelor degree course and not a “registered course” at the time of the decision. 

2. Also under the first ground, the applicant contended that the Tribunal committed jurisdictional error in that it illogically and unreasonably failed to genuinely consider a material fact of the application, namely, the date the applicant was not enrolled in a “registered course”.

3. It is necessary to take each in turn. 

4. However, as both parts of ground 1 relied on the premise that the Tribunal acted illogically and unreasonably, it is necessary to say something about the state of the law on the subject of legal unreasonableness and legal illogicality.  First, the Tribunal’s finding must be based on an evident and intelligible justification.  The High Court held to that effect in Minister for Immigration and Citizenship v Li.[5]  Next, unreasonableness is to be inferred where the decision is arbitrary, capricious, without common sense or it is plainly unjust.  The High Court in Li held to that effect.  The applicant carried the onus of showing the existence of jurisdictional error, as was held in Maroun v Minister for Immigration and Citizenship.[6]  Next, as was held in Minister for Immigration and Citizenship v SZMDS,[7] in some circumstances minds may differ on the outcome yet the fact of there being two possible results and a tribunal chooses one does not render that tribunal’s decision illogical or unreasonable in and of itself.

   [5] (2013) 249 CLR 332

   [6] (2009) 112 ALD 424

   [7] (2010) 240 CLR 611

5. Here, the applicant complained that the relevant condition required the applicant to be enrolled in a registered course, yet the Tribunal found that the condition was breached by reason of the applicant not being enrolled in a bachelor degree, as opposed to a registered course. 

6. The Tribunal posed the correct test for its consideration, namely, whether the applicant complied with condition 8202(2)(a) by being a visa holder who was enrolled in a registered course.  In expressing the test in those terms, the Tribunal did not exhibit one of the classic indicia for the existence of jurisdictional error in asking itself the wrong question.  Here, the Tribunal asked itself the correct question, as was apparent from paragraph 6 of its reasons.  Having asked itself the correct question, the Tribunal answered the question, as it happened adversely to the applicant, in paragraph 10 when the Tribunal said that “on the evidence before [it], the applicant was not enrolled in a registered course”.  That conclusion was rational, logical and open on the evidence before the Tribunal. 

7. Embedded in ground 1 is what appeared to be the applicant’s contention that there was no evidence before the Tribunal to the effect that −

   a)the bachelor degree course was a registered course; or

   b)the cookery courses in which the applicant enrolled from July 2014 were not registered courses.

8. If those were in fact his submissions the applicant did not develop them.  It fell to him to show the existence of jurisdictional error.  I was in no positon to make a finding of fact on the hearing of an application for judicial review that one course or another was, or was not, a registered course for the purposes of condition 8202(2)(a).  The Tribunal made that finding.  If the applicant had wanted to argue that condition 8202(2)(a) did not apply to the cookery course in which he enrolled, or if the applicant had wanted to argue that the bachelor qualification in which he was first enrolled was not a “registered course”, he had the opportunity to do so before the Tribunal.  He had a migration agent assisting him.  He seemed not to have done so. 

9. I was not persuaded that ground 1(a) was made out.  In my view, it failed.

Ground 1(b)

1. The applicant argued under this ground that the Tribunal illogically and unreasonably failed to genuinely consider the date the applicant was not enrolled in a registered course. 

2. On first principles, the application to the Tribunal was a merits review.  The applicant argued his case afresh before a new person, the Tribunal member.  The applicant needed to persuade the Tribunal in the same way as he needed to persuade the delegate that he satisfied the criteria for the grant of the visa and was therefore entitled to the grant of the visa. 

3. The Tribunal posed the question for its consideration in paragraph 5 by stating that the issue was whether the applicant, as the holder of a student visa, “has breached” condition 8202 of Schedule 8 to the Regulations. To its reasons the Tribunal appended an extract from condition 8202(2) from Schedule 8 to the Regulations. The relevant sub-part of condition 8202(2) was in the present tense. In paragraph 6 of its reasons, the Tribunal stated that condition 8202 “requires, among other things, Mr Singh to be enrolled in a registered course”. In paragraph 10 of its reasons, the Tribunal stated that the applicant “was not enrolled in a registered course for a period of time and did not comply with condition 8202(2) for that period”. Finally, in paragraph 11 of its reasons, the Tribunal stated that, “having found that Mr Singh has not complied with a condition of the visa, the tribunal must consider whether to exercise its discretion to cancel the visa”.

4. Those references revealed that the Tribunal was assessing the applicant’s state of compliance as at the date of the hearing before the Tribunal.  In addition, in paragraph 10 the Tribunal made an observation about the applicant’s state of compliance at a particular period in time. 

5. I do not agree that the Tribunal failed to consider the date when the applicant was or was not enrolled in a registered course. 

6. Ground 1(b) had no merit.

Ground 2

1. In his written submission, Mr Edwards argued that the procedural fairness concept did not require the Tribunal to give notice to the applicant prior to the hearing that an issue in this review was whether he was in breach of condition 8516. As paragraph 19 of the Tribunal’s reasons recorded, the Tribunal put to the applicant whether he was in breach of condition 8516. The Tribunal gave him time to comment on the point. Section 359AA of the Act permitted the Tribunal to raise such a matter orally at the hearing. I do not agree that advance prior notice of the point had to be given. In any event, after the hearing, the applicant provided a written submission. He had an opportunity in that document to say whatever he wanted to say about condition 8516.

2. In my view, ground 2 was without merit. 

Discretion

1. Mr Raftos urged me to take the view that the Tribunal should have concluded that a 10 day gap in enrolment was very short and that the Tribunal should have exercised its discretion to not cancel the applicant’s visa.  I reject the submission for several reasons, namely −

   a)for a time the applicant was not enrolled, that much being an uncontroverted fact;

   b)there is no learning that binds me that has held that 10 days or any other number of days is or is not sufficient to cause the Tribunal’s discretion to be exercised in a particular manner;

   c)so long as the discretion conferred on a decision-maker is exercised properly, no basis exists to interfere in the exercise of that discretion; and

   d)there was nothing to suggest that the discretion miscarried in this case.

2. The point was devoid of merit.

Conclusion

1. All grounds of the further amended application failed.  I dismiss this application for judicial review and order the applicant to pay the Minister’s costs fixed in the sum of $7,328.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson

Associate:  

Date:       6 February 2018