Singh v Minister for Immigration
[2020] FCCA 2336
•24 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2336 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a student visa – discretionary cancellation – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.116, 347, 359A, 359AA, 424A, 424AA |
| Cases cited: Dranichnikov v Minister for Immigration [2003] HCA 26 NAVK v Minister for Immigration [2005] FCAFC 124 |
| Applicant: | SUKHMIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3378 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr Taylor |
ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with the rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3378 of 2019
| SUKHMIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 25 November 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Mr Singh’s Class TU Education Visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 10 August 2020 which I adopt.
The Mr Singh is a male citizen of India who was granted a Student visa on 9 January 2018.[1] This visa was subject to Condition 8202 in Schedule 8 to the Migration Regulations 1994 (Cth) (Migration Regulations) as required by clause 500.611(1)(a). Condition 8202(2)(a) required Mr Singh to be enrolled in a registered course.[2]
[1] Court Book (CB) 8
[2] CB 9
On 7 August 2019, the Department issued the applicant a Notice of intention to consider cancellation (NOICC) under s.116 of the Migration Act 1958 (Cth) (Migration Act).[3] The NOICC informed Mr Singh that it appeared he had not complied with condition 8202(2)(a). Provider Registration and International Student Management System (PRISMS) records indicated he had not been enrolled in a registered course of study since 28 June 2018.[4] Mr Singh was invited to provide a response within five working days.[5]
[3] CB 7-11
[4] CB 9
[5] CB 10
On 14 August 2019, Mr Singh responded to the NOICC.[6] Mr Singh stated he had been in Australia since 2014 and had arrived to study a Bachelor of Business Administration. After a year or so, Mr Singh changed his course to a Bachelor of Leadership and Management, which he successfully completed. The applicant stated he was currently enrolled in a Bachelor of Management at “Cambridge College” and had been back to India a total of three times.
[6] CB 12-15
By email sent on 20 August 2019, the Department wrote to Cambridge College and requested confirmation of the Mr Singh’s current enrolment status.[7] By email reply on the same day, Cambridge College notified the Department that Mr Singh’s enrolment in a Bachelor of Management (which had an end date of 18 May 2018) had been cancelled on 28 June 2018 due to non-payment of fees.[8]
[7] CB 16
[8] CB 17, 25
On 20 August 2019, a delegate of the Minister cancelled Mr Singh’s visa under s.116(1)(b) of the Migration Act.[9] The delegate found there was a ground for cancellation because Mr Singh had not been enrolled in a registered course since 28 June 2018. The delegate was satisfied the grounds for cancelling the visa outweighed the reasons for not cancelling the visa.[10]
[9] CB 18-29
[10] CB 20
The Tribunal
On 22 August 2019, Mr Singh applied for review of the delegate’s decision and uploaded a copy of the delegate’s decision record.[11]
[11] CB 30-31
On 25 October 2019, the Tribunal[12] invited Mr Singh to a hearing scheduled on 11 November 2019.
[12] CB 39-45
On the morning of 11 November 2019 (prior to the scheduled hearing), Mr Singh provided: submissions,[13] a letter of offer from “Nova Institute of Technology” (dated 8 November 2019),[14] and various medical documents relating to his mother[15] which were considered by the Tribunal.[16] At the hearing, Mr Singh confirmed the reason he was excluded from the Bachelor of Management was for non-payment of fees.[17]
[13] CB 51-52
[14] CB 53
[15] CB 63-108
[16] CB 116, [15]
[17] CB 117, [16]
The Tribunal’s decision
On 28 November 2019, the Tribunal affirmed the delegate’s decision.[18]
[18] CB 112-126
Based on the delegate’s decision and Mr Singh’s “affirmation” that he had not been enrolled in a registered course since 28 June 2018, the Tribunal[19] found Mr Singh had not complied with condition 8202(2).
[19] CB 115, [8]
Having found that the applicant had not complied with a condition of the visa and ground for cancellation were established in respect of s.116(1)(b), the Tribunal turned its mind to considering the factors relevant in exercising the discretionary power to cancel the visa.[20]
[20] CB 116, [10]
The Tribunal found Mr Singh had arrived in Australia to study a Bachelor of Business Management and there was no evidence Mr Singh had a “compelling” need to travel to or remain in Australia.[21] The Tribunal accepted cancellation of the visa would cause “some degree” of financial hardship in the form of lost tuition fees, or emotional hardship in the form of disappointment or embarrassment in not completing the course. The Tribunal gave this factor little weight.[22]
[21] CB 116, [11]
[22] CB 116, [13]
The Tribunal did not accept the reasons advanced by Mr Singh for non-payment of fees were beyond his control. For instance, Mr Singh had asserted he was suffering from depression but had produced no medical evidence in support and confirmed he had not taken any medication. The Tribunal found Mr Singh had provided no evidence to demonstrate he sought and was refused a deferral of the course or another opportunity to pay the fees.[23]
[23] CB 117, [16]
The Tribunal found the letter of offer from Nova Institute of Technology was not signed by Mr Singh but accepted he had sought to enrol in a course a few days prior to the Tribunal hearing.[24]
[24] CB 117, [16]
The Tribunal[25] found there was “no evidence” in relation to Mr Singh’s past and present behaviour towards the Department and gave it “no weight.”
[25] CB 117, [17]
The Tribunal found there was no evidence of consequential cancellations under s.140 of the Migration Act[26] and any legal consequences as a result of the cancellation were intended by the Parliament. The Tribunal gave them “little weight.” The Tribunal found there was also no evidence as to any international obligations or whether Mr Singh had strong family, business or other ties to Australia and gave these factors no weight.[27]
[26] CB 117, [18]
[27] CB 118, [20]-[21]
Considering the circumstances, the Tribunal concluded the visa should be cancelled[28] and it affirmed the decision under review.[29]
[28] CB 118, [23]
[29] CB 118, [24]
The current proceedings
These proceedings began with a show cause application filed on 19 December 2019. There are two grounds in that application:
1. The Tribunal failed to exercise its jurisdiction:
The applicant was effected by the family issue which caused Post Traumatic Stress Disorder (PTSD). The Tribunal failed to engage in an active intellectual process of the applicant situation.
The Tribunal did not issue any written invitation under section 424A of the Act .
2. The Tribunal had not jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act
(errors in original)
The application is supported by a short affidavit filed with it which I received. Mr Singh’s assertion of financial, psychological and emotional difficulties I received as a submission. I have before me as evidence the court book filed on 6 March 2020. I invited oral submissions from Mr Singh this afternoon. He reiterated the issues that he had raised with the Tribunal. Those focused on his family problems, particularly the health of this mother and father. He also referred to his brother’s inability to assist. Mr Singh referred to his own depression and his wish for another chance to prove himself.
These matters all go to the merits of the Tribunal decision. There is no doubt that Mr Singh failed to meet a condition on his visa that he maintain enrolment in an approved course of study. The more substantial question was how the Tribunal should exercise its discretion to cancel or not cancel his visa. In my view, the adverse conclusions reached by the Tribunal on that issue were open to it on the material before it.
Nothing was overlooked and the Tribunal followed the procedures required under the Migration Act. As I have already noted Mr Singh’s submissions both in chief and in reply do not rise above a dispute over the merits of the Tribunal’s analysis. I otherwise agree with and adopt the Minister’s submissions concerning Mr Singh’s grounds of review.
Ground 1
Ground 1 asserts Mr Singh was affected by the “family issue” which caused PTSD and the Tribunal failed to engage in an “active intellectual process” in relation to the Mr Singh’s situation.
The Tribunal accepted Mr Singh’s parents had some issues in relation to their health[30] but rejected Mr Singh’s assertion that he was suffering from depression due to the lack of medical evidence provided in support.[31] Mr Singh did not claim he was suffering from PTSD, nor did such a claim arise on the material before the Tribunal.[32] Accordingly, the Tribunal was not required to engage with a claim that was not before it.
[30] CB 116, [15]
[31] CB 117, [16]
[32] C.f., Dranichnikov v Minister for Immigration [2003] HCA 26; NAVK v Minister for Immigration [2005] FCAFC 124
The second particular to ground one asserts a breach of ss.424A/424AA of the Migration Act. Such a reference is misguided and should be to ss.359A/359AA as this was a Part 5 reviewable decision. Regardless, no such breach occurred. The Tribunal’s obligations under s.359A were not enlivened.
The Tribunal relied on information contained in PRISMS records (which were contained in the delegate’s decision) and Mr Singh’s oral evidence at the hearing in finding that he had not been enrolled in a registered course since 28 June 2018. As Mr Singh had provided a copy of the delegate’s decision to the Tribunal, the exception in s.359A(4)(b) applied to that “information”. The fact that he himself confirmed he had not been enrolled in a registered course since 28 June 2018 also meant that the exception in s.359A(4)(ba) of the Migration Act applied. Ground 1 does not raise an arguable case of jurisdictional error.
Ground 2
Ground 2 simply states the Tribunal had no jurisdiction because its “reasonable satisfaction” was not arrived at in accordance with the Migration Act. This is not a proper ground of judicial review. If an application is properly made under s.347 of the Migration Act for review of a Part 5-reviewable decision, the Tribunal must review the decision.[33] There is nothing to suggest the Tribunal lacked jurisdiction and this ground must also fail. Ground 2 does not raise an arguable case of jurisdictional error.
[33] s.348 Migration Act
I conclude that Mr Singh has failed to demonstrate that the decision is affected by jurisdictional error. I will therefore order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court’s scale. Mr Singh doubted his capacity to pay and reiterated his wish for another opportunity for merits review.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 August 2020
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