SINGH v Minister for Immigration

[2017] FCCA 2179

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2179

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Tribunal affirmed delegate’s decision to cancel the applicant’s Higher Education Sector (Subclass 573) visa – no contravention of s.359 – the Tribunal complied with its obligations of procedural fairness – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(b), 359A, 476

Migration Regulations 1994, 8202 of Schedule 8

Applicant: HARMINJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 400 of 2016

Judgment of: Judge Street

Hearing date: 8 September 2017

Date of Last Submission: 8 September 2017

Delivered at: Sydney

Delivered on: 8 September 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr G Johnson of counsel

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 400 of 2016

HARMINJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 February 2016 affirming a decision of the delegate to cancel the applicant’s Higher Education Sector (Subclass 573) visa.

2. The applicant is a citizen of India. On 11 June 2015, the applicant was sent a notice of intention to consider cancellation of his subclass 573 visa. The notice was sent on the basis the Department believed the applicant had breached a condition of his visa, condition 8202 of Schedule 8 to the Migration Regulations 1994 (“the Regulations”), giving rise to a ground for cancellation pursuant to s.116(1)(b) of the Migration Act. In addition, condition 8202 required the visa holder to be enrolled in a registered course.

3. The applicant was advised in the notice of the potential breach that based on available evidence in the Provider Register and International Student Management System (PRISMS), it appears that the applicant has not been enrolled in a registered course for study since 25 July 2014. It was on that basis it was suggested that the applicant was in breach of the requirements of condition 8202(2)(a).

4. The applicant provided a response to the notice and explained that he had to leave Australia to visit his father. The applicant also made reference to needing to pay for a new certificate of enrolment. Nothing in the applicant’s response suggested that he was not in breach of the condition.

5. On 14 July 2015, the delegate cancelled the applicant’s visa pursuant to s.116(1) of the Migration Act for the reason of the applicant’s failure to comply with condition 8202(2)(a).

The Tribunal’s decision

1. The applicant applied for review on 20 July 2015. The applicant was invited to attend a rescheduled hearing at the request of the applicant and this took place on 5 February 2016. The applicant appeared on that date to give evidence and present arguments. 

2. On 9 February 2016, the Tribunal affirmed the decision of the delegate. The Tribunal identified the applicant’s background in the application for review. The Tribunal set out the requirements of condition 8202 of Schedule 8 to the Regulations and the information from the PRISMS records that the applicant had not been enrolled in a registered course of study since 25 July 2014.

3. The Tribunal made reference to the applicant’s response in respect of alleged family problems and in relation to having to go and see his father who was allegedly unwell.  The Tribunal noted during the course of the hearing that it discussed with the applicant that it would appear that he not enrolled in a registered course of study since 25 July 2014. The Tribunal referred to the applicant’s evidence about an enrolment that was cancelled by an education provider.

4. The Tribunal referred to the medical certificate provided by the applicant relating to his father and explored with the applicant the seriousness of his father’s illness as well as the period referred to in the certificate which was prior to when the applicant was not enrolled in a course.

5. The Tribunal found since 25 July 2014 the applicant has not been enrolled in a registered course of study and accordingly found the applicant did not comply with condition 8202(2) of Schedule 8 to the Regulations.

6. The Tribunal considered whether in the circumstances the visa should be cancelled. The Tribunal referred to the purpose for which the visa was granted, being for the applicant to study, and that it was expected he would do so. Having considered the evidence as a whole, which included the reference to the applicant’s father’s illness, the Tribunal was satisfied that there are no factors that would lead to the favourable exercise of discretion in the matter. The Tribunal concluded that the visa should be cancelled and affirmed the decision under review.

Before this Court

1. The grounds of the application for review are as follows:

   1. The Tribunal committed jurisdictional error by failing to comply with s.359 of the Migration Act 1958.

   2. The Tribunal committed jurisdictional error by failing to comply with Schedule 5 criteria based on following

   Particulars

   1. The applicant’s sole purpose of entering Australia was to complete his overseas studies and gain Australian qualifications.

   2. He started studying genuinely.

   3. His father, who was bearing all his costs pertaining to the studies fell sick.

   4. The applicant was devastated and he was unable to concentrate on his studies.

   5. His family was unable to pay his college fees.

   6. Applicant was threatened by his course provider

   7. Applicant even tried to enrolled in another course and restart his studies.

2. On 14 April 2016, a Registrar with the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

4. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. 

5. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.

Applicant’s submissions from the bar table

1. From the bar table, the applicant explained that he did not have a lawyer attend and that his father had been unwell and that he had had to go overseas and that he was asserting he was a genuine student and wanted to continue his studies. Nothing said by the applicant from the bar table identified any jurisdictional error. 

Consideration

Ground 1

1. In relation to ground 1, there is no substance in the contention that the Tribunal failed to comply with s.359 of the Migration Act. On the face of the material before the Court, the applicant was invited to attend a hearing before the Tribunal and had a real and meaningful hearing. No contravention of s.359 of the Migration Act is made out.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.  On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. Accordingly, no error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, it was a matter for the Tribunal to determine whether the circumstances warranted the cancellation of the visa. The finding that the applicant was in breach of the condition was not the subject of serious contest. The Tribunal was entitled to take into account the purpose for which the visa was granted, and it is apparent the Tribunal took into account the applicant’s claims and evidence in determining whether or not the visa should be cancelled.

2. Ground 2 is in substance, a disagreement with the adverse findings by the Tribunal. For the reasons already given, the adverse findings were open to the Tribunal and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 2. Accordingly, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 October 2017