SINGH v Minister for Immigration

[2017] FCCA 3011

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3011

Catchwords:
MIGRATION – Application for judicial review – cancellation of subclass 573 Higher Education Sector visa – no issue of principle – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.116(1)(b), div.5 pt.5

Migration Regulations 1994 (Cth), reg.1.40A, sch.2 cls.573.231, 573.223(1A), sch.8 cl.8516

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: TARANJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 415 of 2016

Judgment of: Judge Jones

Hearing date: 16 October 2017

Date of Last Submission: 16 October 2017

Delivered at: Melbourne

Delivered on: 6 December 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr Grant of Sparke Helmore Lawyers

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application for judicial review filed on 3 March 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 415 of 2016

TARANJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision concerns an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 8 February 2016 affirming a decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 14 January 2015 refusing to grant the Applicant a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (“the visa”). The Tribunal’s decision is at Court Book (“CB”) 82-88.

2. The material before the Court is the Court Book, the Applicant’s application for judicial review and supporting affidavit filed on

   
   

   3 March 2016, and the Minister’s Outline of Submissions filed on 13 September 2016.

Background

1. The Applicant is a citizen of India (CB 40) and was granted the visa on 2 July 2013 (CB 3) to undertake a Bachelor of Management at Academies Australasia Polytechnic (Federation University Australia) (CB 67). A condition that was attached to the grant of the visa was cl.8516 of sch.8 to the Migration Regulations 1994 (Cth) (“the Regulations”) (“condition 8516”), which required that the visa holder must continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa.

2. On 11 November 2014, the Applicant was issued a Notice of Intention to Consider Cancellation (“NOICC”) of the visa (CB 3-7). The NOICC indicated that there was evidence that the Applicant was no longer enrolled in a Bachelor’s degree or a Master’s degree course, or a course of study that was a principal course of a type specified for subclass 573 visas by the Minister in an instrument under reg.1.40A of the Regulations (CB 5). The NOICC stated that it appeared that the Applicant had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A) of sch.2 to the Regulations.

3. On 11 November 2014, the Applicant provided a response to the NOICC by email (CB 8-15). The Applicant stated that he had “made a mistake”, and requested that his visa not be cancelled (CB 8). The Applicant indicated that he had requested a release letter from Academies Australasia Polytechnic, and that they did not advise him that the release might affect his visa (CB 8). The Applicant also advised that he had applied for a Bachelor of Hospitality Management course, and would be able to provide a Certificate of Enrolment (“COE”) within a week (CB 8).

4. The Applicant wrote again to the Department of Immigration and Border Protection (“the Department”) on 17 November 2014, providing a written statement and COE for a Bachelor of Business course at the Holmes Institute (CB 19-24). In his written statement, the Applicant advised that had he failed his first semester of the Bachelor of Management course, and had applied for enrolment in a Certificate III in Commercial Cookery at the Australian Vocational Education & Training Academy (“AVETA”). The Applicant further stated that he had taken immediate steps to rectify his mistake by enrolling in another Bachelor’s degree upon becoming aware that vocational courses were not specified courses for the purposes of satisfying cl.573.231 or cl.573.223(1A) of sch.2 to the Regulations.

5. On 14 January 2015, a delegate of the Minister (“the Delegate”) cancelled the Applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Cth) (“the Act”) (CB 25-39).

6. On 29 January 2015, the Applicant applied to the Tribunal for merits review of the Delegate’s decision (CB 40-41).

7. On 6 January 2016, the Tribunal invited the Applicant to attend a scheduled hearing before it to give evidence and present arguments (CB 47-49). On 25 January 2016, the Applicant provided written submissions and other supporting documentation to the Tribunal (CB 50-74). The Applicant appeared at a hearing before the Tribunal on

   
   

   2 February 2016 (CB 75-77).

Tribunal Decision

1. In affirming the Delegate’s decision, the Tribunal considered that the Applicant had conceded that, after obtaining a release letter from Academies Australasia Polytechnic in January 2014, he did not hold a COE or current offer of enrolment for a Bachelor or Masters level course until he obtained an offer letter from the Holmes Institute dated 13 November 2014 (CB 62-64), and a subsequent COE for a Bachelor of Business created on 17 November 2014 (CB 23-24).

2. Accordingly, the Tribunal found that the Applicant did not continue to satisfy either cl.573.231 or cl.573.233(1A) of sch.2 to the Regulations, and therefore did not continue to be a person who would satisfy the criteria for the grant of the visa (CB 83-84 at [8]). The Tribunal found that the Applicant was in breach of condition 8516, and therefore was a ground to cancel the visa pursuant to s.116(1)(b) of the Act (CB 83-84 at [5]-[9]).

3. The Tribunal then proceeded to consider whether it should exercise its discretion to cancel the visa. The Tribunal noted that there were no specified matters that it was required to consider in the exercise of its discretion to cancel the Applicant’s visa, however, had regard to the “General visa cancellation powers” in the Department’s Procedures Advice Manual 3 (“PAM3”) in considering whether to exercise its discretion (CB 84 at [10]). The Tribunal:

   a)considered the Applicant’s evidence that he had an interest in the cookery field, and that his father had “good property” and could help the Applicant start a business or make an investment (CB 85 at [13]). The Tribunal indicated that it had some doubts about the Applicant’s claims, but that it was prepared to accept that the Applicant’s intention on coming to Australia was to study (CB 85 at [13], [19]);

   b)said that it was prepared to accept that the Applicant had otherwise complied with the conditions of the visa (CB 85 at [14]). The Tribunal acknowledged that there was also no indication that the Applicant had not been compliant with the Department (CB 86 at [17]);

   c)considered the circumstances relating to the breach and whether these were beyond the Applicant’s control. The Tribunal determined that there was not a lack of resources or assistance available to the Applicant to rectify the breach and, as such, the breach was not beyond the Applicant’s control (CB 85 at [16]). The Tribunal noted that the Academies Australasia Polytechnic release letter was a clear indication that the Applicant should take steps to consult the Department, but that the Applicant chose not to. The Tribunal considered this to be a significant breach for a lengthy period and, as such, gave significant weight to this circumstance in favour of cancelling the visa (CB 85 at [16]);

   d)did not accept that the Applicant’s lack of qualifications would necessarily lead to hardship for him or his family. The Tribunal considered that the Applicant had undertaken work experience in Australia which may be applicable in India, and that the Applicant’s father made good money through his businesses (CB 86 at [18]);

   e)noted its concerns that the evidence before it indicated that the Applicant did not genuinely intend to study at a higher degree level (CB 87 at [22]). The Tribunal found that the Applicant only sought higher enrolment after he was told by the Department that he needed to be enrolled in a Bachelor’s course to maintain his eligibility for the visa (CB 87 at [22]). The Tribunal accepted that the Applicant may wish to study cookery at a vocational level, but it did not accept that the Applicant’s conduct or evidence indicated that he had a genuine intention to study at the higher education level (CB 87 at [22]-[23]). The Tribunal found that the Applicant had been focused on what he believed should have been done to maintain his eligibility for the visa (CB 87 at [22]); and

   f)in considering the Applicant’s circumstances as a whole and the factors set out in the PAM3, the Tribunal concluded that the Applicant’s visa should be cancelled (CB 87 at [24]).

Judicial Review

1. On 3 March 2016, the Applicant lodged his application in the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision (CB 89-98).

2. The application for judicial review stipulated the following grounds of review:

   1.  I never applied for 572 visa as [mentioned] in the [cancellation] letter by DIBP.

   2.  I [received] my visa cancellation Notificatio[n] while I was holding a Bach[e]lor COE to [maintain] my visa conditions.

   3.  I was a genuine student and I had maintain[ed] my visa condition 8156.

   4.  I strongly [believe] the [ground] for cancellatio[n] in section 116(1)(B) does not exist.

   5.  I Applied for my offer on 10/11/2014 before I receive NOICC. It shows that I had intention for studying.

   6. Applicant does meet [subclause] 573.223(1A) and meet GTE requirements in regards to student visa.

   7.  AAT has erred in their dec[i]sion, as given on 8/02/2016 as my matter was not dealt in accordance.  

3. At the hearing, I explained the nature of the judicial review process and the function of the Court in judicial review to the Applicant. I explained that the Court could not consider the merits of the Applicant’s application for the visa. I further explained that the Court’s function was to decide whether the Tribunal had made a jurisdictional error, or, as I referred to it, a “serious legal mistake”.

4. Having explained the role of the Court in judicial review to the Applicant, I asked the Applicant to explain to the Court why he believed the Tribunal’s decision was wrong. The Applicant gave the following two reasons:

   a)firstly, the Applicant said that the Tribunal’s finding that he did not have an intention to study at the higher education level was wrong. The Applicant asserted that he told the Tribunal he was not aware of the conditions of the visa, but that as soon as he was aware he enrolled in the Bachelor of Business at the Holmes Institute, and did this before he was notified his visa was cancelled. The Applicant said that he gave answers to all questions the Tribunal member asked him, but that the Tribunal member did not believe him; and

   b)secondly, the Applicant said that the Tribunal wrongly assumed that if he returned to India, his father would support him.

Applicant’s Intention to Study at the Higher Education Level

1. The Applicant conceded that, as he was not enrolled in a higher education course for a period of time, he had not met a condition of his visa, and hence there was a ground for cancellation of the visa under s.116(1)(b) of the Act. However, the Applicant said that he believed that the Tribunal was wrong in then proceeding to decide to cancel his visa.

2. At the hearing, the Minister submitted that the grounds contained in the Applicant’s application for judicial review merely indicate his disagreement with the Tribunal’s decision to cancel the Applicant’s visa and, at their highest, amount to an impermissible request for the Court to engage in merits review. I concur with this submission by the Minister.

3. I am satisfied that the Tribunal’s finding regarding the existence of a ground of cancellation under s.116(1)(b) of the Act was open to it on the available material and for the reasons it gave (CB 83-84 at [5]-[9]), namely, on the basis of both the Department’s and the Applicant’s own evidence that the Applicant was not enrolled in a Bachelor’s or Master’s degree course from 21 January 2014 until at least 13 November 2014. The Tribunal then proceeded to exercise its discretion to cancel the visa.

4. In my opinion, the Tribunal’s reasoning was logical and open to it. The Tribunal weighed various considerations, including the relevant factors specified in the PAM3 and then, considering all of the circumstances, concluded that the Applicant’s visa should be cancelled.

5. The Tribunal specifically considered the question of the Applicant’s intention to study, but found that the Applicant was not a genuine student for study at the higher education level (CB 87 at [20]-[23]). The Tribunal set out the Applicant’s evidence about his enrolment in the Bachelor of Business as follows (CB 86-87 at [20]):

   20.    … I noted that I was not sure that his responses convinced me of the reason why he needed to do a bachelor of business. He responded that it was because he didn't have any other option, if he didn't do this he would have to go back to India. He said that he was a good student and could do much better and there was not anything bad about doing the bachelor of management. I noted that I was concerned that he was saying he would do bachelor study only as a way of maintaining eligibility, but did not have the intention to study at this level as what he had outlined was a study and career path only at the vocational level.

6. The Tribunal set out its reasoning and findings about the question as to whether it was satisfied the Applicant was a genuine student for study at the higher education level as follows (CB 87 at [22]-[23]):

   22.    I have had regard to the applicant's evidence and the documents provided. I hold concerns that the evidence indicates the applicant does not genuinely intend to study at the higher degree level. [H]e left his Bachelor of Management and enrolled only in a certificate III. He expressed a desire to study an advanced diploma, but only when I pointed out that this was not sufficient to be granted or hold a 573 visa did he say that he wished to study a bachelor. I have had regard to the letter of offer and CoE provided from Holmes in November 2014, but I find that the applicant only sought this enrolment after he was told by an officer of the Department that he needed to be enrolled in a bachelor course to maintain eligibility, and I do not accept that this indicates that the applicant genuinely wishes, or intends to study this course, or any other at the bachelor or masters level. I accept that he may wish to study cookery at the vocational level and follow this as a vocation, but I do not accept that anything in his conduct or evidence indicates a genuine intention at this point to study at the higher education level. I find he has been focused on what he believes he should do or should have done to maintain eligibility with his visa requirements. Whilst this is important, the applicant did not demonstrate that his thinking at the time he ceased enrolment in his Bachelor of management at Polytechnic or at any time after that was focused on a genuine intention or desire to study at the higher education level. I have considered his past actions but also his claimed desire to now study to the Bachelor level. I do not find his claims in relation to this persuasive. When I consider the applicant's behaviour, and his claimed desire to re-start, which I do not accept on the evidence before me, I find that the applicant is not a genuine student at the higher education level. I have no confidence that, were the visa to be reinstated, he would in fact study at the higher education level, and I give this significant weight in considering whether the visa should remain cancelled.

   23.    I have had regard to his evidence about his change of career, his desire to pursue cookery, and his reasoning behind seeking to enrol at the higher education level. It may be that the applicant does genuinely wish to study cookery and pursue this as a career, but if so, as above, I do not accept that this is a reason for reinstating his higher education visa. I have had regard to the other factors above, amongst others to his purpose in travel here, his claims that there would be some hardship to him and lack of opportunity if the visa remained cancelled and he returned to India. He has not claimed to be unable to return, and he indicated that he would apply again for a student visa to come to Australia. I accept that there would be some hardship to the applicant but he has not established that such hardships would be significant and I give this little weight. I have considered the documents provided but these do not assist in furthering a claim that the visa not be cancelled, and as far as relevant have been discussed above.

7. I am satisfied the Tribunal’s reasoning as set out above was not illogical or arbitrary, and was open to it on the evidence before it. The Tribunal’s exercise of its discretion was not thereby affected by jurisdictional error.

Support by the Applicant’s Father in India

1. At the hearing, I asked the Applicant to point out where, in its decision, the Tribunal said that his father would support him if he returned to India. The Applicant was unable to point to a relevant extract. Counsel for the Minister noted that the only finding by the Tribunal on this point was located at CB 87 at [18], where the Tribunal, in considering any hardship to the Applicant flowing from a cancellation of the visa, said as follows (CB 87 at [18]):

   18.    … I do not accept that the applicant's lack of qualifications necessarily leads to hardship for him or his family, he has work experience in Australia which he may be able to apply, in India, and gave evidence that his father owned two convenience stores and agricultural land and makes good money. I give this some weight.

2. This extract says, at most, that the Tribunal gave “some weight” to the Applicant’s evidence about his father’s financial circumstances. In my opinion, no jurisdictional error arises with respect to the weight the Tribunal gave to this factor which arose from the Applicant’s own evidence at the Tribunal hearing.

Conclusion

1. Having regard to the Tribunal’s decision record as a whole, I am satisfied that the Tribunal applied the relevant legislative and regulatory framework to the Applicant’s claimed circumstances, but was satisfied overall that the Applicant’s visa should be cancelled (CB 87 at [24]).

2. Furthermore, the Tribunal complied with its obligations in div.5 pt.5 of the Act. The Tribunal invited the Applicant to appear before it at a hearing on 2 February 2016 to give evidence and present arguments in relation to the issues arising for consideration, which the Applicant did. I am satisfied that the Applicant was on notice of the determinative issues on the review by the Delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32]-[37]). As a consequence, I am satisfied that the Applicant was afforded an opportunity to give evidence, make submissions and was afforded procedural fairness by the Tribunal.

3. For these reasons, I find the Applicant’s grounds of judicial review are not made out, and that there is no jurisdictional error otherwise apparent in the Tribunal’s decision.

1. For the reasons set out in this judgment, I make orders dismissing the Applicant’s application for judicial review filed on 3 March 2016. The Minister has sought costs in the fixed amount of $5,800. I shall make this order for costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 5 December 2017