Singh v Minister for Immigration

[2017] FCCA 1294

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1294

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – cancellation of student temporary (Class TU) (Subclass573) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(b), 116(3).

Migration Regulations 1994 (Cth), r.1.40A, condition 8516, cls. 573.223(1A), 573.231.

Cases cited:

SZFDE v Minister for Immigration and Citizenship and Anor (2007) 232 CLR 189.
SZLHP v Minister for Immigration and Citizenship and Anor [2008] FCAFC 152.

Applicant: JASBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 110 of 2016

Judgment of: Judge Hartnett

Hearing date: 2 May 2017

Delivered at: Melbourne

Delivered on: 2 May 2017

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Helsdon

Solicitors for the First Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 110 of 2016

JASBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed on 20 January 2016 wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 23 December 2015, in which the Tribunal affirmed a decision of a delegate of the First Respondent to cancel the Applicant’s Student Temporary (Class TU) (subclass 573) Higher Education Sector visa (‘the visa’).

2. The single ground of the application is that:-

   "my student visa should be reinstated". 

   Attached to the application are submissions made by the Applicant which I shall set out here in full, they being as follows:-

   “Grounds for reinstatement of student visa

   Dear Sir/Madam,

   This is in reference to my application for review of the Department's decision to cancel my student visa.  Please consider my following submission:

   1.I was granted student visa S/C 573 on 20/02/2013.  I was enrolled in a Diploma of Information Technology followed by a Bachelor Degree in Information Technology at La Trobe University.

   2.The main reasons for choosing to study in Australia was that I wanted to gain qualifications from Australia that would lead to my active participation and contribution to my own business in future.  Australian education system is regarded highly in my home country India.

   3.When I arrived in Australia, I shared an accommodation with a friend in Oakleigh which was at the other side.  It took me weeks to find out how to reach college using public transport.

   4.Then I came across a pamphlet being distributed by CECA who were education and migration consultants. The pamphlet mentioned the CECA can help in changing education provider. I met Mr Rahul Singh,
   at CECA, persuaded me to vary my enrolment to the course to a Diploma in hospitality, as according to their advice, there were better career opportunities in a Diploma and hospitality course at Australian college, followed by enrolment in a degree course.  Mr Rahul assured me that he will arrange enrolment a degree as well.  Mr Rahul showed on the computer screen about new regulations effective 17/06/2014 which enable a student to change course.  I was totally brain-washed and it all happened so fast before I even realised the repercussions.  Due to their false assertions and wrong advice, I ended up taking the course of Diploma not knowing that I am breaching my student visa conditions.  As they were registered education agents, it was reasonable for me to rely on their advice, unknowingly trusted them.  Additionally, Mr Rahul of CECA has many more victims like me and he's under investigation by the authorities for his misconduct.  I have also made a complaint against CECA with office of MARA.

   5.However, when I realised that I had been misguided and wrongly advised, I immediately enrolled in the course of bachelor of business at Stott's Colleges, Melbourne.  Please find attached COE for each of this course.

   Request for remit Department's decision to cancel the visa

   I have always complied with other visa condition as well such as:

   ·I have always maintained my health insurance.

   ·I have always complied with the work conditions of maximum of 40 hours per fortnight.

   ·I have always reported change of contact details to the education provider.

   ·I have always maintained my enrolment and ensured that my course progresses well.

   In the event of having to leave Australia without completing the studies, my parents and I will have to face severe financial hardships.

   $14,000 to La Trobe (no fee was refunded), $7500 to Australian College of Trade and $7000 to Stott's Colleges.  In addition to this, I had spent $49,500 on living expenses since March 2013 until present.

   I would lose all the money spent so far and would have to leave without any education for which I came to Australia.  My father is a farmer and has a lot of hopes and me and my future.  He will be totally devastated to learn about my fate of not being able to complete my education.  I had a lot of hopes on Australia's education system and study was my primary goal.  I wish to achieve this goal to fulfil my and my parent's dreams.

   I assure you that I am committed to my obligations to comply with my student visa conditions, and ensure that I will always be compliant to this obligation in future.

   You are therefore requested to kindly not take any adverse action against me or cancel my visa as I have taken necessary steps to comply my student visa conditions and ensure that I will always be compliant to this obligation in future.

   If you require any further information or documents, kindly let us know and I will endeavour to provide them to you at the earliest.

   Sincerely,

   Jasbir Singh”

3. The Applicant has filed no amended application and has filed no written submissions, the latter of which was required pursuant to the orders of Registrar Buljan on 22 June 2016.

4. The First Respondent seeks dismissal of the application and a costs order.  The First Respondent relies on written submissions filed on 16 August 2016.  There is also before the Court the evidence as contained in the Court Book.

5. On the hearing this day, the Applicant was given an opportunity to make oral submissions to the Court.  He was assisted by an interpreter who was fluent in the Punjabi and English languages. He made no useful, in the sense of relevant, submissions. The Applicant did not point to any error in the Tribunal decision or its exercise of its discretion.

Background

1. The Applicant, a citizen of India, was granted the visa on 20 February 2013 to undertake a Foundation Studies program; Diploma of Information Technology (‘Diploma of IT’), and a Bachelor of Information Technology (‘Bachelor of IT’) at La Trobe University.  A condition attached to the grant of the visa was condition 8516 which requires that the visa holder must continue to be a person who would satisfy the primary or secondary criteria for the grant of a subclass 573 visa.

2. On 31 October 2014, the Applicant was issued with a Notice of Intention to Consider Cancellation (‘NOICC’) of his visa.  The NOICC indicated that there was evidence that the Applicant was no longer enrolled in a course of study that was a principle course of a type specified for subclass 573 visas by the Minister in an instrument under Regulation 1.40A of the Migration Regulations 1994 (Cth) (‘the Regulations’). It appeared that the Applicant had not continued to be a person who would satisfy either sub-cls.573.231 or 573.223(1A) of Schedule 2 to the Regulations.

3. On 6 November 2014, the Applicant's migration agent provided a response to the NOICC by email.  In a written statement, the Applicant indicated he was fully aware that he had to abide by the conditions of the visa, but did not realise he was unable to change from a Bachelor's degree level course to a Diploma level course.  The Applicant advised he had changed his course of study in October 2013 and was currently enrolled in a Certificate III and Certificate IV in commercial cookery and a Diploma of Hospitality.

4. By decision of 23 January 2015, a delegate of the First Respondent cancelled the Applicant's visa under s.116(1)(b) of the Act.

5. The delegate was satisfied on the basis of information from the Provider Registration and International Student Management Systems (‘PRISMS’) database (which indicated the Applicant was not enrolled in a Bachelor's degree or Master's degree), that the Applicant no longer held enrolment in a principle course of study specified for subclass 573 visas, and therefore he did not continue to satisfy cls.573.231 or 573.223(1A) of the Regulations. The delegate was also satisfied that it had considered all of the relevant factors and that the reasons to cancel the visa outweighed the reasons not to cancel the visa.

6. On 29 January 2015, the Applicant applied to the Tribunal for a review of the delegate's decision.

7. On 29 February 2015, the Applicant wrote to the Tribunal and advised that although he had tried, he failed most of the subjects whilst enrolled at La Trobe University, and as a result of being given "misguidance" from CECA migration agents, he enrolled in a Diploma of Hospitality.  The Applicant also provided the Tribunal with a copy of his completed Certificate III in commercial cookery, an academic transcript in relation to his study at La Trobe University, and a copy of a letter confirming the Applicant’s enrolment in a Bachelor of Business course (dated 5 November 2014) at Stott's College said in the letter to be commencing on 13 November 2015. The Applicant had, before November 2014, being November 2013, ceased to be enrolled in a bachelor’s degrees or master’s degree course.

8. On 15 October 2015, the Tribunal invited the Applicant to attend a scheduled hearing before it to give evidence and present arguments.  On 9 November 2015, the Applicant's newly appointed migration agent provided written submissions and other supporting documentation to the Tribunal.

9. The Applicant appeared before the Tribunal on 23 December 2015.  He was represented in relation to the review by his registered migration agent.  He was assisted by an interpreter in the English and Punjabi languages.

10. By email dated 24 December 2015, the Tribunal notified the Applicant of its decision dated 23 December 2015 to affirm the decision of the delegate.

The Tribunal

1. In affirming the decision, the Tribunal said in paragraphs 13 and 14 of its Statement of Decision and Reasons (‘the Decision Record’) the following:-

   “13. The evidence before the Tribunal showed that in November 2013, the applicant ceased to be enrolled in a bachelor's degree or master's degree by coursework, and that he was not enrolled in a bachelor's degree course until the November 2014. The evidence shows he was not enrolled (nor the subject of a current offer of enrolment) in a course of study that was a principle course of a type specified for Subclass 573 visas by the Minister in an instrument made under r.1.40A.

   14. The requirement in condition 8516 is for a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. Given, the applicant was not enrolled in a bachelor's degree or master's degree by coursework he ceased to be an eligible higher degree student. The Applicant was not enrolled (or the subject of a current offer) in a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under Regulation 1.40A, Accordingly, he did not continue to satisfy subclauses 573.231 or 573.223(1A) and he thus failed to comply with condition 8516.”

   The Tribunal noted in paragraph 15 of the Decision Record that as that ground of cancellation did not require mandatory cancellation under s.116(3) of the Act, the Tribunal was required to consider whether the power to cancel the visa should be exercised. The Tribunal then moved to a consideration of the exercise of its discretion.

2. The Tribunal said in paragraph 16 of the Decision Record:-

   “There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the Applicant's visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department's Procedures Advice Manual PAM3 ‘General visa cancellation powers’.”

3. In making its findings, the Tribunal also took into account all the written materials and submissions made to the Tribunal and the Department.

4. The Tribunal was satisfied that the Applicant travelled to Australia with the intention to study. It gave that factor some weight in the Applicant’s favour.  The Tribunal took into account that the Applicant was in breach of condition 8516 for a significant period of time from November 2013 until November 2014.  Overall, it considered the extent of the breach was a significant factor pointing to cancellation of the visa.  The Tribunal noted that it had no evidence before it that the Applicant had not complied with other visa conditions.  In response to the Applicant's claims that he had been wrongly advised by his migration agent, and had complained about the agent's conduct to the Migration Agents Registration Authority which took no action due to an insufficiency of evidence, the Tribunal said at paragraph 23 of the Decision Record:-

   “The Tribunal is prepared to accept that the agent did not advise the Applicant properly about the consequences for his visa by transferring to Vocational Education and Training (VET) level courses and ceasing enrolment in the Bachelor of IT.  However, the Tribunal is concerned about the Applicant's acquiescence in this course of conduct as it demonstrates that he does not have a genuine intention to study at the higher education level.  The Applicant told the Tribunal that he does not have an interest in hospitality and that he did not wish to undertake the bachelor of business which he had later enrolled in.  Rather, he stated that if his visa was reinstated, he would enrol in a bachelor of IT.  Given the Applicant's evidence at hearing, the Tribunal has given no weight to the claims set out in response to the NOICC including that the Applicant had a strong interest in cookery and hospitality.”

5. Further at paragraph 26 of the Decision Record the Tribunal said:-

   “Whilst he may not have been properly advised by his agent, the Applicant told the Tribunal that he did not contact the Department before changing courses.  The Applicant told the Tribunal that he was new to the country and wasn't aware of his visa conditions.  However, the Tribunal considers that he had an obligation to be aware of his visa conditions and had been granted a subclass 573 Higher Education Sector visa which is for the purposes of studying at that level.  It does not consider his claims in this regard to constitute extenuating circumstances beyond his control.”

6. Further at paragraph 27 of the Decision Record the Tribunal said:-

   “Whilst the Applicant enrolled in a bachelor's degree in business at ACOT, this was only after he had received the NOICC and in a course he was not interested in doing, and the Tribunal gives this enrolment no weight.”

7. The Tribunal considered the Applicant's claim that he would suffer some degree of hardship as a consequence of the cancellation of his visa, but did not accept that any financial, psychological or emotional hardship he may suffer outweighed the reasons to cancel the visa.

8. The Tribunal stated that it was not satisfied on the evidence before it that the Applicant, who was from a very large country with many higher education courses, would not be able to pursue future studies in India or elsewhere if he wished although the Tribunal accepted he may be financially constrained in being able to pay fees given the level of his father's debt for his education, and due to his father's reluctance to support him in his future studies.

9. Considering the Applicant's circumstances as a whole, the Tribunal concluded that the visa should be cancelled.

Consideration

1. The Tribunal applied the relevant legislative and regulatory framework applicable to the Applicant's matter, and considered the Applicant's claimed circumstances but was satisfied that the student visa should be cancelled.

2. The Tribunal complied with its obligations as set out in Division 5 Part 5 of the Act and there is no evidence before the Court to suggest that the Applicant was denied procedural fairness.  The Applicant was on notice of the determinative issues on review by the delegate's decision.  The Applicant was represented before the Tribunal by a different migration agent, and he was given an opportunity by the Tribunal to give evidence and present arguments in relation to the issues arising for consideration, which he did.

3. The Applicant’s complaints made about his former migration agent were considered by the Tribunal and are referred to in the Decision Record as noted in paragraph 19 above.  Those complaints do not include any suggestion that the migration agent's conduct was such that there was a fraud on the Tribunal.[1] 

   [1] SZFDE v Minister for Immigration and Citizenship and Anor (2007) 232 CLR 189, 51; SZLHP v Minister for Immigration and Citizenship and Anor [2008] FCAFC 152, 51.

4. The Applicant's grounds of review are not made out.  No jurisdictional error attends the decision of the Tribunal and the application must be dismissed with costs following that event.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 16 June 2017