SINGH v Minister for Immigration

[2017] FCCA 1921

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1921

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

Legislation:

Migration Act 1958 (Cth), s.116

Migration Regulations 1994

Applicant: BIKRAMJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 903 of 2016

Judgment of: Judge Riethmuller

Hearing date: 17 July 2017

Date of Last Submission: 17 July 2017

Delivered at: Melbourne

Delivered on: 17 July 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 903 of 2016

BIKRAMJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 April 2016 affirming a decision of the delegate of the first respondent to cancel the applicant’s Subclass 573 Higher Education sector visa. 

2. The applicant had been granted a fast-track visa under subclass 573 on 2 May 2014 on the basis that he intended to undertake a Bachelor of Information Technology at Griffith University in Queensland.

3. The course was structured in such a way that he was to firstly do a diploma with TAFE Queensland in Information Technology, and then proceed with his bachelor’s degree, receiving credit towards the bachelor’s degree as a result of undertaking the diploma.  The applicant was to commence his studies on 18 June 2014.  The applicant did not commence the course that he enrolled in, nor the course that was the basis for the grant of the visa.

4. On 17 November 2014, the Department sent a Notice of Intention to Consider Cancellation, which advised the applicant that, whilst he was enrolled in a course of study, he was not enrolled in a course of study before and for the purposes of the principal courses of study.  In short, the applicant had ceased to be enrolled in the course that he had come for, and therefore was not complying with the visa conditions or, at the very least, his circumstances had changed significantly.

5. On 20 November, the applicant responded to the Notice.  The Tribunal summarised his responses as follows:

   12.  The applicant provided a submission to the Department.  In that submission he explained that he had come to Australia to complete his Diploma in Software Development leading to a Bachelor of Information Technology at Griffith University.  He was alone in Brisbane and felt very upset as no one was there to help him out, he could not find accommodation and the university would not assist him with accommodation, so he shared a house with English people.  He tried to make contact with his university friends but to no avail.  He was homesick.  He spoke with the university to discuss his genuine problems.  Finally he called his friends in Melbourne and they told him to come to Melbourne.  He went to his University and talked to them regarding his migration to Melbourne and they said they could not do anything, just cancel his enrolment and after that you are allowed to go anywhere.  The university did not give him proper guidance or counselling.  They cancelled his confirmation of enrolment (CoE) and he moved to Melbourne.  At that time he was not aware that if he had cancellation and no enrolment in an SVP provider no one would consider him for enrolment.  He applied for ATMC, Polytechnic Australia but they refused his enrolment.  An education agent misguided the applicant and he enrolled in a certificate III, IV and Diploma of hospitality.  The agent did not tell him he could not start with lower study but his intention was genuine to study at higher level as well so he got another CoE of Bachelor of Business.  On 17 November he got an email that he could not study at the lower level.  He consulted a migration agent and came to know that he should start his course with a Diploma leading to a degree so he arranged this.  His parents have spent a lot of money on him…

6. The applicant provided copies of enrolment certificates for a Bachelor of Business with Holmes Institute Pty Ltd and a Diploma of Business with Sher-E-Punjab Pty Ltd and an Advanced Diploma of Business with Sunshine College of Management Pty Ltd.  Whilst the Holmes Institute is now an eligible provider under the relevant parts of the class 573 visa provisions, it was not so eligible back in 2014, and, when it became eligible in mid-2015, it was only with respect to applications made after that date.  Thus, in the applicant’s case, the Holmes Institute cannot be an eligible provider with respect to this particular visa.

7. On 22 March 2016, the applicant appeared before the Tribunal. The applicant gave evidence and presented his arguments and had the assistance of a migration agent and a Punjabi interpreter. The Tribunal affirmed the decision for the delegate to cancel the visa on 6 April 2016. The applicant then lodged an application for judicial review in May.

The Tribunal’s Findings.

1. The Tribunal traversed the relevant facts and circumstances relating to the grant of the visa, paragraphs [7] to [9] of their decision saying:

   7.  In this case the delegate stated that the applicant was no longer an eligible higher degree student, as defined in cl.573.111, and therefore did not satisfy cl.573.223(1A).  The delegate stated that whilst the applicant was enrolled in a principal course of study for the award of a bachelor’s degree by coursework that is provided by an eligible education provider, the visa holder was not enrolled in another course of study before and for the purposes of the principal course of study.  At the relevant time Holmes Institute was not an eligible education provider – although it became one in instrument 15/096 dated 15 June 2015, for visa applications made on or after 1 July 2015, and has remained so in subsequent instruments to date.  It appears therefore that the applicant no longer met the definition of eligible higher degree student when he cancelled his enrolment in the Bachelor of IT and enrolled in the Bachelor course at Holmes, a Bachelor course provided by a provider that was not an eligible education provider.

   8.  To the Tribunal the applicant provided a copy of the delegate’s decision, and a submission dated 14 March 2016.  The submission argues that the applicant met cl.573.231 and therefore there was no breach.  In my view, this misunderstands the basis for the cancellation decision, as I explained to the applicant at the hearing.  His visa was granted on the basis that he met cl.573.223(1A), because, inter alia, he met the definition of an eligible higher degree student by being enrolled in a Bachelor course provided by a provider that was an eligible education provider.  Once he had his bachelor enrolment cancelled at Griffith, and failed to be enrolled in a bachelor course provided by a provider that was an eligible education provider, he no longer met the definition of an eligible higher degree student.  This is material because the applicant, in being assessed under cl/573.223(1A) and the SVP provisions, had to meet lower evidentiary requirements than he would have done if he had been required to meet cl.573.231.  I therefore reject the argument in the submission as it misunderstands the basis for the cancellation and the material change in circumstances.

   9.  On the information before the Tribunal it appears that the applicant ceased to be an eligible higher degree student when he cancelled his enrolment in his Bachelor of IT, and therefore did not meet the requirements of cl.573.223(1A).  This is significant because cl.573.223(1A) is designed to allow students to enter Australia under the Streamlined Visa Program (SVP) with less evidentiary requirements than otherwise.  Having considered the circumstances I find that the applicant no longer being an eligible higher degree student when he cancelled his enrolment in his Bachelor of IT, and therefore not meeting the requirements of cl.573.223(1A,) is a material change in circumstances which, in the case of the applicant, permitted the grant of the visa and now no longer exist. 

2. Having found that a ground for cancellation existed under s.116 of the Migration Act 1958 (“the Act”), the Tribunal went on to consider whether the power to cancel the visa should be exercised. 

3. The Tribunal considered the applicant’s compliance with visa conditions (at paragraph [15]), the degree of hardship that may be caused to him (paragraph [16]), circumstances in which the ground for cancellation arose (paragraph [17]), and the applicant’s work and study history (paragraph [18]), together with his future plans (paragraph [19]).  Importantly, the Tribunal noted:

   18. I asked the applicant what study or work he had done in India. He said he had done IT study and worked for 2-3 years in a software shop, and had wanted to explore his knowledge of IT here. He had a diploma of civil engineering and 3 years as a software advisor. I asked, if he had experience in that field, why did he change to cookery/hospitality? He said he did not get admission to IT courses in Melbourne as they needed 6 in each band and then he moved to cookery. I asked if he had completed any of his studies in Melbourne. He said he was studying but then he got the notice and it was cancelled. He said then he was fed up and he just got the Diploma of Business and Bachelor of Business enrolments. He said after his visa was cancelled he went to immigration to ask for study rights, and when these were denied he just waited for his hearing.

   19. He said his plan was to complete his studies, he wants to get higher education, that's his plan. I asked what he wanted higher education for. He said he wanted to get higher education for his better future. I asked him to be more specific and he said he wanted to get higher education as Australian higher education is very famous. I asked if he could be more specific about his future plans. He said that he could explore his business in India. I asked what attracted him to a Bachelor of Business. He said there was a big scope in India for business, he wants to explore his business in India, he wants to start a business in marketing or in management, and he can explore marketing in mobile phones. I asked how his hospitality courses fitted into this plan. He said his main focus was the Bachelor of Business, once he completed this he would have a lot of options on that plan.

   20. I noted that I had concerns that he may not be a genuine student or a genuine student for study at the higher education level, because he had not started his studies in Brisbane before cancelling his enrolment, and had changed courses three times. He said that he had tried to get into IT in Melbourne, but was unable to. He had applied for study rights to the Department three times, not for work or travel rights, just study rights. I noted he had changed study paths three times, which caused me concern. He said he had wanted to do IT, but he had to get six in English to do it, that was why he did not get admission. He said then with hospitality he was looking for more opportunities, his main motivation was the bachelor of business. I asked why he had not just done the bachelor of business then. He said he had had to do a Diploma, they were asking for six each band. I noted that the only courses he had actually studied in Australia were at a much lower level than those he had proposed to study, and this concerned me that he had no genuine intention to study at the higher education level. He said he was thinking to get more experience, the certificate III and IV, he was looking for more motivation. I asked if the difficulty in studying at the higher education level was, as he was suggesting, a lack of English ability, why did he not enrol in an English course and a bachelor. He said no one gave him an opportunity like this. I noted that I remained concerned that he had, or had ever had an intention to study at the higher education level. He reiterated that due to IELTS he could not get a Bachelor enrolment straight away.

4. The Tribunal ultimately made findings as follows:

   25.  I have considered the applicant’s circumstances, the submissions and the documents provided.  On the evidence before me the applicant has been compliant with visa conditions, he has been compliant in his dealings with the department, and I give these factors some weight in his favour.  I accept that he may suffer some hardship if the visa remains cancelled, but on the evidence he has provided I do not accept that there would be significant emotional, financial or other hardship and I give this only little weight in his favour.  I find that there is little chance, on his evidence, of the applicant becoming unlawful or being detained for any significant period, and whilst his ability to apply for visas may be curtailed he is not prevented from making certain applicants, and that on his evidence no international obligations would be breached if the visa remains cancelled, and give these factors no weight.  I have considered the circumstances in which the cancellation occurred.  I find the applicant’s explanation of why he cancelled his enrolments at Griffith and left Brisbane wholly unconvincing.  I find it significant that he had not even started his Diploma before cancelling his enrolment.  I do not accept on his evidence that the reasons he claims for leaving Brisbane, or the process he went through in deciding what to do, are plausible, and I find that the evidence supports a conclusion that he has come to Australia with no intention of studying his courses in Brisbane, or of studying at the higher degree level.  Whilst he engaged in actions, including enrolling in the Bachelor of Business at Holmes, and seeking study rights on his bridging visa, I find that these actions have been at attempt to provide the appearance of a genuine intention to study at the higher education level.  His explanations of the course changes he has made are indicative.  I do not accept his explanations that he could not enrol in a Bachelor or IT courses because he needed better English – he could have enrolled in precursor English courses, and I do not accept that he was not made aware, or could have found out that this was possible if he had genuinely intended to study IT or a bachelor in Melbourne.  I find his change of course particularly telling given that he had a work and study history in India in IT, yet appeared to abandon this immediately on travel to Australia.  I also found his evidence on why he chose hospitality and business to change over the course of the hearing.  For all of these reasons I find that the circumstances which gave rise to the cancellation, and the purpose of the visa holder’s travel to and stay in Australia indicate that he is not a genuine student for study at the higher education level, that he had and has no intention to study at the higher education level, and I give these factors significant weight.

Grounds for Review

Ground One

1. The applicant sets out five grounds for judicial review.  The first ground is drawn as follows:

   1. The AAT Migration and Refugee Division erred in not giving consideration to the evidence that the Applicant being myself complied with the requirements of the 573 Visa.  Accordingly MRT failed to give consideration to the evidence as a matter of law.

2. In this case, it seems clear that the applicant did not, in fact, comply with the conditions of his 573 visa, in that he cancelled his enrolment after arriving, and therefore had a period where he was no longer enrolled at Griffith University nor any other institute that would meet the criteria for the particular type of visa. To the extent that the applicant argues that enrolment in other institutions which are not within the fast-track category evidence compliance, it does not appear to me that this is a correct interpretation of the Migration Regulations 1994.

Ground Two

1. The second ground that the applicant set out is as follows:

   2. The AAT erred in not giving due weight to the fact that the Applicant was entitled to undertake 9 COEs before commencing the principal course (under Sub-regulation 1.40A(1) of the Migration Regulations) at the time the visa was cancelled, and that the Applicant was undertaking a Diploma of Business at South Pacific College and was enrolled with Holmes College for a Bachelor of Business clearly evidencing that the Applicant was a genuine student.

2. The difficulty with this ground is that the colleges referred to are not eligible colleges for the purpose of the visa that the applicant had received.  Whilst Holmes Institute or Holmes College has now become an eligible provider, it is only with respect to applications made after mid-2015, which does not cover the applicant’s circumstances.

Ground Three

1. The third ground is as follows:

   3.  The ATT erred in giving excessive weight to the fact that the Applicant had changed courses a couple of times, to unreasonably determine at law that the Applicant was not a genuine student.

2. This is ultimately a matter for weight for the Tribunal to determine whether or not to exercise the discretion to cancel the visa. I have considered whether or not this ground is, in substance, a ground that the Tribunal acted so unreasonably that their decision should be set aside. However, in the circumstances of this case, it is difficult to conclude that the Tribunal’s decision was unreasonable. Indeed, on the facts and circumstances before the Tribunal, it seems to me to be likely that any other Tribunal member that heard the matter would have come to the same decision.

Ground Four

1. The fourth ground that the applicant relies upon is as follows:

   4.  The Minister for Immigration and Border Protection and the AAT failed or neglected to inquire into the Applicant’s academic results which they were compelled to do before determining the legitimacy of the Applicant’s claim to be a genuine student and as such erred at law.

2. In this case, the academic results of the applicant undertaking his diploma courses are not an issue.  The central question is whether or not the applicant was studying an appropriate course for the category of visa, and the fact that he had changed courses so many times that led to the cancellation of his visa.  It is not a situation where the Tribunal concluded that the applicant was incapable of doing the lower level courses that he was, in fact, studying.  However, it seems clear, even on his own evidence, that the applicant was not capable of undertaking the courses at a higher level, which were the basis of the visa grant.

Ground Five

1. The fifth ground that the applicant relies upon is follows:

   5.  Further, the ATT erred in not giving full consideration and due weight to much of the evidence before the tribunal that clearly showed that the Applicant was committed to studying in Australia and achieving higher education through a Bachelor degree.  Accordingly the AAT failed to give consideration to the evidence as a matter of law.

2. Again, this ground appears to be a complaint about the outcome of the decision and whether or not the Tribunal reached a reasonable conclusion.  On the material before it, it seems to me that the decision was well within the reasonable exercise of the Tribunal’s discretion.  With respect to the claims that the applicant makes that the Tribunal had not considered relevant factors, it seems that the circumstances of this applicant were considered by the Tribunal and no significant facts or circumstances had been raised that the Tribunal did not consider in their decision.

1. Finally, I note that, in this case, the applicant has successfully made a complaint to the Migration Agents Authority, a copy of which is Exhibit ‘1’. This complaint was upheld, although no significant sanctions were imposed upon the agent who had given him the wrong advice. This does not preclude the applicant from bringing proceedings against the agent in contract or tort in the appropriate Courts for such proceedings.  In Victoria, that is likely to be the Victorian Civil and Administrative Tribunal. These are not bases on which I can conclude that the Tribunal’s decision in this case with respect to the operation of the Regulations is in error or has in some way failed to comply with the law.

2. In all of the circumstances, I therefore dismiss the application of the applicant.

   [Further argument ensued]

3. In this matter, the applicant has been unsuccessful. The Minister seeks costs at a fee less than scale. It seems to me that this is reasonable, and, as the Minister has been successful, the Minister should receive its costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  14 August 2017