Singh v Minister for Immigration

[2020] FCCA 2075

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2075

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa – Whether the Tribunal erred as the applicant was a genuine student was undertaking studies – Whether the Tribunal acted unreasonably in light of the applicant’s study history – Whether jurisdictional error is made out – No jurisdictional error made out – The application is dismissed.

Legislation:

Migration Act 1958 (Cth), s. 48, 116(1)(b), 477(2)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Citizenship v Li (2013) ALR 225

Applicant: KARANVEER SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1701 of 2019

Judgment of: Judge Humphreys

Hearing date: 29 July 2020

Date of Last Submission: 29 July 2020

Delivered at: Parramatta

Delivered on: 6 August 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms Wong, Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1701 of 2019

KARANVEER SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India. On 5 December 2014, the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa.

2. On 19 January 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his visa, on the basis that he had not complied with condition 8516 of the visa, as he was no longer enrolled in a higher education course as required.

3. On 8 February 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”), cancelled the applicant’s visa under s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”), on the basis that he had failed to comply with condition 8516 and that the grounds for cancelling the visa outweighed those in favour of not cancelling the visa.

4. On 16 February 2017, the applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”).

5. The applicant attended a hearing at the Tribunal on 18 April 2019 and provided written submissions, together with a letter from the Institute of Business and Technology, indicating that he was completing a Diploma of Business.

6. In a decision dated 27 May 2019, the Tribunal affirmed delegate’s decision to cancel the applicant’s visa.

7. The applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeals Tribunal’s Decision

1. After setting out the relevant background, the Tribunal found that the grounds for the cancellation of the applicant’s visa existed. In the applicant’s case, his visa was subject to condition 8516. That condition required the applicant to maintain enrolment in a higher education course of study. As the applicant was no longer enrolled in a higher education degree or course, as specified for Subclass 573 visas by the Minister, grounds for cancellation existed. The Tribunal noted that the applicant was reported to the Department of Immigration and Border Protection (“the Department”) for cessation of his studies in a Bachelor of Business course, on 16 June 2015 by his education provider.

2. Since that time, the applicant had enrolled in a number of courses but had not completed them. The Tribunal noted however, that at the time of the hearing before the Tribunal, the applicant was currently enrolled in a Diploma of Business. The applicant commenced this course on 15 October 2018 and he has successfully completed two semesters of study. This was a Vocational and Employment Training (“VET”) course only and did not satisfy the requirements of condition 8516.

3. As the Tribunal was satisfied that a ground for cancellation existed, the Tribunal then proceeded to consider the relevant discretionary grounds, including the matters raised by the applicant and those set out in the Department’s Procedures Advice Manual (PAM 3) ‘general visa cancellation powers’, to determine whether or not the applicant’s visa should be cancelled.

4. The Tribunal noted that the applicant had not completed any higher education course during his four and a half years since arriving in Australia, with a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa. The Tribunal was not satisfied that there was a degree of hardship that may be caused to the applicant or his family members, should his visa be cancelled.

5. The Tribunal was not satisfied with the applicant’s explanation as to why he had failed to maintain his enrolment in a higher education course, during the period of his residence in Australia. The Tribunal noted claims by the applicant that he suffered anxiety and stress, as a result of a motor vehicle accident early 2015. The Tribunal did not consider this to be sufficient to explain the applicant’s failure to complete his courses.

6. At paragraph 49 of its decision, the Tribunal considered the past and present behaviour of the applicant towards the Department. There was no material before the Tribunal either in favour of or against, cancelling the applicant’s visa on this ground.

7. At paragraphs 50 and 51 of its decision, the Tribunal noted that there was no material before the Department which would indicate that the cancellation of the applicant’s visa would result in the automatic consequential cancellation of the visa of any other person. There was no material before the Tribunal which would indicate that the cancellation of the applicant’s visa would result in the breach of any of Australia’s international obligations.

8. At paragraph 52 of its decision, the Tribunal noted that the applicant would become an unlawful noncitizen if his visa was cancelled and could be liable for detention if he does not voluntarily depart Australia. The applicant would also be subject to s 48 of the Act bar, which would limit his options in applying for further visas in Australia. The Tribunal considered that this neither weighed in favour of nor against, cancelling the applicant’s visa.

9. At paragraph 53 of its decision, the Tribunal concluded that the applicant’s breach of condition 8516 of his visa was substantial. The Tribunal considered the period that the applicant had failed to remain involved in a higher education sector level course to be significant. Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled.

Grounds of Judicial Review

1. Two grounds are set out in an application filed with the Court, on 8 July 2019. They are as follows verbatim:

   Ground One:

   Decision from AAT should be overturned and I should be given a student visa as I am a genuine student and doing my studies.

   Ground Two:

   I am studying in VET sector as I want to make my basics more strong before going for Higher Education Sector.

The Applicant’s Submissions

1. Due to health restrictions, the hearing was conducted by telephone. The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an interpreter and the Court was satisfied that the applicant’s English language skills were such that he was able to participate in a meaningful way in the hearing.

2. Despite Court orders, no written submissions were filed by the applicant to support the grounds of judicial review. At the commencement of the hearing, the Court confirmed with the applicant that he had a copy of the Court book and the first respondent’s written submissions.

3. After explaining the manner in which the hearing would be conducted, the applicant was asked if he wished to make any oral submissions. The applicant candidly told the Court that he was unable to point to any legal error in the Tribunal decision. The applicant conceded that he was at fault and should have taken action when he was unable to continue with his studies. The applicant noted that he has now completed further study and would like to go on to complete his Bachelor’s Degree, if given a chance and more time.

4. Following the first respondents oral submissions, the applicant was again asked if he wished to say anything in response. The applicant stated he did not.

The First Respondent’s Submissions

1. Ground one contends that the Tribunal erred in its decision as the applicant was a genuine student and was undertaking studies. This ground is misconceived, as the issue before the Tribunal was not whether or not the applicant was a genuine student. The Tribunal in fact acknowledged that the applicant was studying a VET course and had successfully completed two semesters. However, the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa and it was a condition of that visa, that he maintain enrolment in a higher education course. The applicant was not enrolled in a higher education course for over four and a half years.

2. The Tribunal did not act unreasonably, in the light of the applicant’s study history, in finding that it did not have confidence the applicant would progress to an appropriate course. It was open to the Tribunal to conclude that the applicant had breached condition 8516 and that his visa should be cancelled. The Tribunal clearly set out its findings in relation to the materials before it. The Tribunal provided an evident and intelligible justification for the exercise of its discretion. If anything, this ground simply expresses disagreement with the findings of the Tribunal.

3. Ground two states that the applicant is studying a VET course for the purpose of establishing himself, so as to progress to a higher education course. However, the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa for the express purpose that he be enrolled in study in a higher education course. The Tribunal correctly found that the purpose of the visa was not to allow the applicant to enrol in a VET course, so he could then be ready to take on a higher education course. It was open to the Tribunal to conclude that the applicant had breached his visa condition. Again, this ground at its highest, simply expresses disagreement with the findings of the Tribunal. No jurisdictional error is revealed in each of the grounds.

4. In brief oral submissions, the legal representative for the first respondent told the Court that the issues raised by the applicant in his oral submissions, being the reasons why he ceased studying at university and that he was in an accident, were all considered by the Tribunal at paragraphs 42 and 44 of its decision. The matters raised, only went to the merits of the decision and not jurisdictional error.

Consideration

1. The Court pointed out to the applicant, at the commencement of the hearing, that it was conducting judicial review not merits review. The Court cannot undertake merits review (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54]).

2. Ground one does nothing more than express disagreement with the outcome of the Tribunal’s hearing. There is nothing unreasonable, illogical or irrational in the reasoning of the Tribunal, such that the decision lacks “an evident and intelligible justification” (see Minister for Immigration and Citizenship v Li (2013) ALR 22 at [76]). The Tribunal correctly identified the relevant statutory provisions and concluded that the applicant was in breach of the conditions of his visa, in that he was not enrolled in an approved higher education course of study. The Tribunal properly went on to consider all relevant discretionary issues that may have led it to decide not to cancel the visa. The Tribunal concluded that these matters did not outweigh the breach. This was a decision that was within the legitimate decisional freedom of the Tribunal.

3. Ground two also does not reveal any jurisdictional error and only goes to the merits of the Tribunal’s decision. The applicant was granted a visa to study in the Higher Educational Sector not at VET level. Given the period of time the applicant had been in Australia, some four and a half years without completing a course of study, there is nothing illogical, irrational or unreasonable in the conclusion reached by the Tribunal.

4. No jurisdictional error is established by either grounds of review.

5. As the applicant was unrepresented, the Court perused the Tribunal’s decision and satisfied itself that there was no jurisdictional error present, which has not been articulated by the applicant.

Conclusion

1. Accordingly, the application is dismissed

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 6 August 2020

CORRECTONS

Paragraph 26 removed pursuant to Slip Rule 16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth)