SINGH v Minister for Immigration

[2017] FCCA 2140

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2140

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – cancellation of Student (Subclass 573) visa – whether the Tribunal failed to recognise a relevant error – whether the Tribunal did not follow the statutory framework – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 476

Migration Regulations 1994 (Cth), Schedule 8, condition 8202

Applicant: KIRANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 735 of 2017

Judgment of: Judge Street

Hearing date: 5 September 2017

Date of Last Submission: 5 September 2017

Delivered at: Sydney

Delivered on: 5 September 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 735 of 2017

KIRANDEEP 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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 February 2017 affirming a decision of the delegate to cancel the applicant’s Class TU visa. The applicant is a citizen of India and on 14 March 2014 was granted a Student (Subclass 573) visa, which was subject to condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) (“the Regulations”), which required the applicant to be enrolled in a registered course.

2. On 7 April 2016, the applicant was issued with a Notice of Intention to Consider Cancellation on the basis that he had not been enrolled in a registered course since 28 February 2015, in breach of condition 8202. On 26 April 2016, a delegate determined that the visa should be cancelled under s.116(1) of the Act.

The Tribunal’s decision

1. On 2 May 2016, the applicant applied for review to the Tribunal and provided the Tribunal with a copy of the delegate’s decision in support of the application for review. The applicant’s migration representative provided two sets of submissions to the Tribunal, prior to a hearing that took place on 7 February 2017, at which the applicant attended to give evidence and present arguments. Both sets of submissions were referred to in the reasons of the Tribunal. The Tribunal noted that neither the applicant nor the migration agent appeared to dispute that there were grounds for cancellation.

2. The Tribunal noted the applicant enrolled in a number of courses at Stott’s College in April 2016 but was satisfied the applicant’s present intention in residing in Australia was not for the purpose of study. The Tribunal accepted the applicant would prefer not to return to India without Australian qualifications. The Tribunal expressly took into account the applicant’s stress and depression but found that he was able to reside in Canberra. The Tribunal found on the evidence before the Tribunal that the applicant was not enrolled in a registered course as identified in the Notice of Intention to Consider Cancellation and found that the applicant had not complied with condition 8202(2) of the of Schedule 8 to the Regulations.

3. The Tribunal made reference to the applicant’s visa being for the purpose of studying in Australia. The Tribunal expressly referred to taking into account the medical evidence provided to the Tribunal. The Tribunal noted that the applicant was still able to reside in Canberra with his cousin and travel from Melbourne approximately every two months to visit his friend and was sufficiently motivated to make an attempt to obtain the COEs from Stott’s College, which he received immediately prior to his student visa being cancelled. The Tribunal found that it was around this time that the applicant may have stopped seeking medical assistance and that he said at the hearing he could not afford the same and also pay his migration agent and school fees.

4. The Tribunal expressed the view that the applicant may benefit by returning to his home country, at least temporarily, in order to ensure his mental state has been remedied. In that regard, the Tribunal noted that the psychologist report said that the applicant was generally happy in India, although some problems did exist. After considering the circumstance as a whole, the Tribunal concluded that the visa should be cancelled, and affirmed the decision under review.

Proceedings before this Court

Grounds in the application

1. The grounds in the application are as follows:

   1. AAT refused and did not follow the procedures properly.

   2. Affidavit explains more in depth. (Attached)

2. On 21 April 2017, a Judge of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Nature of the hearing

1. 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 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. 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.

2. The Court explained it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Submissions from the bar table

1. From the bar table, the applicant maintained that he had started his course in Canberra and had not been successful and was supposed to repeat and then received a notification of termination of his course. The applicant referred to then suffering from stress. To the applicant’s considerable credit, he acknowledged that he breached the condition and did not dispute being in breach. The applicant, however, indicated that he wanted to study and that he acknowledged he understood the purpose of the grant of the visa.

2. This Court explained that it does not have power to make fresh findings of fact and that it was confined to considering whether or not the findings were rational, logical, and reasonable and whether the Tribunal complied with its statutory obligations and whether the Tribunal complied with its obligations of procedural fairness.

Consideration

1. The applicant’s submissions, in substance, were an invitation to this Court to engage in impermissible merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1

1. In relation to Ground 1 in the application, on the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. The generalised assertion in Ground 1 fails to identify any jurisdictional error.

2. Ground 2 refers to the applicant’s affidavit, and the affidavit summarises what the applicant contends in relation to his study. The applicant asserts in that affidavit that his explanation was not taken into consideration by the Tribunal. The Tribunal’s reasons reflect taking into account the applicant’s submissions and considering the applicant’s circumstances in determining whether or not the visa should be cancelled. The affidavit identified a concern as to whether the Tribunal recognised what he believed were mistakes by the University of Canberra and the Department in cancelling his visa. The disagreement by the applicant with the Tribunal’s reasoning does not identify any relevant legal error by the Tribunal in its findings.

3. The adverse findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. The Tribunal expressly referred to and took into account the applicant’s assertions of stress and depression. No jurisdictional error is made out by the contents of the applicant’s affidavit.

Conclusion

1. As the application fails to identify any jurisdictional error, the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 September 2017