SINGH v Minister for Immigration

[2017] FCCA 909

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 909

Catchwords:
MIGRATION – Application for judicial review – higher education sector student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Applicant: RAJWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1646 of 2015

Judgment of: Judge Riethmuller

Hearing date: 10 April 2017

Date of Last Submission: 10 April 2017

Delivered at: Melbourne

Delivered on: 10 April 2017

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr Petrie

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1646 of 2015

RAJWINDER 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 decision made by the Migration Review Tribunal (as it was then called) on 18 June 2015. 

2. On 30 December 2013, the applicant was granted a subclass 573 Higher Education Sector student visa, on the basis that he was an eligible higher degree student and had enrolled in the following four courses:

   a)English for Academic Purposes at the Union Institute of Language;

   b)A Certificate IV in Business, with TAFE Queensland North;

   c)A Diploma of Business with TAFE Queensland North; and

   d)A Bachelor of Business Management Degree at James Cook University.

3. The applicant arrived in Cairns on 16 January 2014.  The course arrangement was such that he was to undertake the English for Academic Purposes, Certificate IV in Business, and Diploma of Business courses before he commenced his Bachelor of Business.  They were a group of courses which, together, enabled him to enrol in a higher course, being the bachelor’s degree course, and access to what is colloquially known as the “fast track visa process” for student visas. 

4. The applicant withdrew from his enrolment in the English course on 9 April 2014.  As a result, on 28 April the Certificate IV course and diploma course were cancelled and, subsequently, his enrolment in the bachelor’s degree was cancelled.  He then travelled from Cairns to Melbourne on 16 March 2014, and subsequently enrolled instead in a Certificate III and Certificate IV course in Commercial Cookery at Australian Careers Education Pty Ltd on 9 May 2015.

5. Not surprisingly, the Department issued a Notice of Intention to cancel his visa, because he was no longer enrolled as a higher degree student, and that was the key circumstance that his visa was based upon.  They issued the notice on 26 September 2014.  On 2 October 2014, he wrote to the Department expressing his desire to move to Melbourne and pursue cookery at a certificate level, rather than studies of a Bachelor of Business at University.  He said: 

   … I want to study Certificate III in Commercial Cookery and Certificate IV in Commercial Cookery in Australian Careers Education in Melbourne.  I have discussed my situation with my parents and they recognise my underlying passion for cookery and believe in my conviction to be an entrepreneur in hospitality sector.  My father is an entrepreneur and has always inspired me to pursue my passion.

   My parents have high expectation from me and want me to study so that I can have bright a promising future for myself.  I come from a very humble background who have instilled the importance of education within me.  When I received my notification of 572 visa refusal, I was very upset and dismayed with this outcome.  I immediately contacted the provider under which my SVP visa was granted, however, since my enrolment was cancelled, I requested my provider to re-enrol me.  However, my request for re-enrolment was not met.  I don’t want my visa to be cancelled, I have applied for admission with Universal Institute of Technology for Letter of offer in English for Academic Purposes.  I have received the letter of offer and my course starts from 06-10-2014, I received this offer on 18-09-2014 which was before receiving the intention to cancellation of my 573 visa.  I am awaiting my letter of offer from Kent Institute for Bachelor of Business (Management).  I have taken necessary steps to secure my current visa as it is important to me that I complete my intended course.

6. On 14 November 2014, the delegate cancelled his visa and he applied to the Tribunal for a review on 21 November 2014.

7. On 23 February 2015, the applicant lodged written submissions with the Tribunal, which largely repeated what his submissions were to the Department, however added his reasons for leaving Cairns, saying: 

   … When I arrived in Cairns, my friends, who was supposed to pick me up from the Airport did not come.  I try calling many times, but he did not pick up my phone.  I start crying and then there was an Indian taxi driver approached me. I explained him everything, he took me to his house.  For next two weeks, I was switching houses from one place to another.

   After two weeks, after all this happening I realized that Australia has very different lifestyle, culture and social life.  So far, I have studied/ work locally around my hometown and lived with the family for the whole time.  It was a culture shock for me, I was finding it hard to make friends, concentrate on studies and feel home sick.  Additionally, I did not like the weather and it was too hot for me.

   There were still three months before I can start going to school.  I was feeling isolated and was becoming more and more introverted.  There were no friends and I was living with the strangers.  I was living with Aussie people and unable to communicate well with them.  I used to spend most of my time inside my room.  My family used to ring me regularly and try to boost my morale during that difficult time.  Two months passed and things were not improving. 

   On 28 February 2014 at around 7:00pm , I was walking down the Sheridan Street, Cairns and I was stopped by three African decent people.  They try to bash me and steal my money and phone.  I was so scared, however somehow I gather my strength and pushed them away and I run.  They try to follow me but I outrun them. I have told the whole incident to my housemates.  I wanted to report the incident to the police, but my house mates told me that this is a regular occurring here and going to Police will not help you much.  I was more scared.  I was young, naïve and new to this country.  I was so frighten that I was not able to sleep for couple of days.

   I consult with my family and friends in Melbourne, they all advised me to move to Melbourne as I was not coping well with the Cairns, so far.  I decided to move to Melbourne and continue my studies there.  In March 2014, I applied for release from my current education providers TAFEQN and JCU on basis of my current situation, which was refused.  I appealed to Dean, however, that was refused as well.

   Meanwhile, I did some online research and consult with my friends in Melbourne, who were already studying in Melbourne, to find the avenues to move to Melbourne.  From my friends, I found out that there is an option available that is if I change my study and corresponding study level then I will be able to apply for another student visa subclass 572.  The only another course, I was planning to do was Cookery, as I am keen interest in Hospitality Industry and love cooking. 

8. On 2 March 2015, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of his registered migration agent, and a Punjabi interpreter.  The Tribunal affirmed the decision of the delegate to cancel the visa.  The Tribunal’s decision was made on 18 June 2015.

9. The Tribunal had the opportunity to hear evidence directly from the applicant.  The Tribunal made adverse credibility findings with respect to the applicant, saying:

   17.  … The tribunal found the applicant to be a far from impressive witness.  Indeed the tribunal considers he contrived evidence and was attempting to be misleading or be evasive at various points in giving his evidence.  The tribunal does not accept that the applicant was assaulted as he claimed or was without accommodation in the circumstances he describes.  The tribunal does not accept that the applicant had any intention of studying at James Cook University at the degree level (including for the reasons set out below).

10. The Tribunal went on to say:   

    24.  The tribunal asked the applicant at hearing whether he thought about contacting the Department concerning the refusal by JCU to provide him with a release letter.  The applicant said he did not.  The tribunal asked the applicant whether there as any evidence he attempted to apply for business courses in Melbourne.  In response the applicant said that his friends told him that it might be hard to study a Bachelor of Business course.  The tribunal queried why the applicant might have not undertaken a Certificate IV and Diploma in Business before commencing the business degree.  The applicant said that he had “no knowledge” and had to save costs.  He could have done it but had no knowledge about it.  The tribunal queried whether it should consider that the applicant never intended to pursue business courses in Australia noting that he had enrolled in cookery.  The applicant said that he was “a very new person here” without much knowledge.  His parents asked him to go into business.  When he came to Melbourne he was interested in cooking.  Nobody advised him to go into business.  He wanted to undertake hospitality and his family supported him.  The tribunal noted that the applicant had provided no description of any efforts he made to see if he could pursue business courses in Melbourne.  The tribunal asked the applicant what efforts he made.  In response the applicant said that although he wanted to do it but his friends advised him it was too hard.  He was interested in cookery. 

    25.   As is set out above the evidence before the tribunal is contradictory.  On the one hand, the applicant claims it was simply too hard for him to even commence studying business whether it be Cairns or Melbourne.  He made that decision he claims, because of his friend’s advice.  On the other hand, after the hearing he provided evidence that he might have obtained an offer for a Bachelor of Business degree at Cambridge International College.  Such an offer is referred to in the letter from the Manager of International Student Support Services at James Cook University when seeking a letter of release in April 2014.  The tribunal considers the inconsistencies in the applicant’s evidence are unresolved and significantly undermine his credibility. 

11. The Tribunal made clear to the applicant their concerns about his conduct and evidence, saying: 

    28.  The tribunal queried at hearing what confidence it should have that the applicant could pursue a business degree if he considered it was too hard for him previously.  He said that his friends, who are doing the course now, told him that marketing, finance and accounting will be too hard; he needs a higher IELTS score.  They advised him to do cooking, hospitality management “anything like that”.  Now he wishes to pursue a Bachelor of Business and marketing and wants to be successful.  The tribunal indicated that the applicant’s explanations didn’t appear convincing simply on the basis that he has now decided he could undertake a business degree when in the past he decided he could not, based on his friend’s advice.  The applicant said that previously he listened to his friends but now he was determined and will not listen to them.  He got a bit depressed they said he would fail and he never wanted to fail.  He decided to work day and night and will pass.

12. The Tribunal’s findings, with respect to the applicant’s credit, are set out at paragraph 29:   

    29.  The tribunal considers that the applicant’s history of enrolments in circumstances since arrival in 2014 is reflective of a person who had no genuine intention of completing a degree course in Australia.  Nor is the tribunal satisfied that the applicant now has such an intention.  The applicant’s evidence had unresolved inconsistences, which, in the tribunal’s view were designed to be misleading and replete with vague assertions without substance.  The tribunal does not accept the applicant’s claims regarding the advice of others or of education or migration agents.  Rather, it appears the applicant has made calculated decisions regarding his enrolments in the attempt to remain in Australia for reasons unconnected with academic or vocational success.  The circumstances in which the ground of cancellation arose suggest the applicant is attempting to manipulate the student visa program and is not genuine in his stated aims regarding academic success.  Those factors weigh heavily towards cancellation of the visa.

13. Ultimately, the Tribunal concluded: 

    31.  The tribunal is not satisfied that the applicant ever intended to complete the degree level course in Australia.  As such the tribunal does not consider that the cancellation of the student visa would deny the applicant a real opportunity to achieve a degree in Australia.  Accordingly there is little hardship to be suffered by the applicant in not been awarded the degree in Australia.  Nor does the tribunal accept that the applicant would pursue studies in hospitality for the purpose of a future career.  Rather, his previous enrolments in such courses appear much more likely to be for the purpose of prolonging his stay in Australia without having to maintain enrolment in a higher education sector course.

    The Tribunal ultimately had regard to all of the surrounding circumstances and concluded that it was appropriate that the visa should be cancelled.

14. The applicant then lodged an application for judicial review in this Court.  He set out, where the form sought his grounds, the following: 

    I am writing regarding above matter and wish to make submission outlining my current situation and circumstances that I am genuine student and want to study Bachelor of Business of Management and return to India for brighter future.  I have completed year 2012 in commerce studies in India and then I decided to come to Australia to further study.  I applied in the following courses:

    1. English for Academic at Union Institute of Languages (“UIL”)

    2.  Certificate IV in Business at (TAFEQN)

    3.  Diploma of Business at TAFEQN

    4.  Bachelor of Business from James Cook Uni.

    But Melbourne is my first choice.  I want to come in Melbourne.  At that moment, Melbourne Colleges are full and colleges are not issuing offer letters anymore at this stage.  So that’s why West Highlander Immigration Consultancy Services, Chandigarh office (“WHICS”) agent told me you go Cairn in Queensland and stay 2-3 month there, after that you go Melbourne if you want.  My visa was granted 30 December 2013 and I arrived in Cairns on 16 January 2014.  I faced many problems.  My friend who was supposed to pick me from the Airport did not come.  I try calling many times, but he did not pick up my phone.  There was a taxi driver approached me.  I explained everything.  He took me to his house for next two weeks and after that moved (shifted) me to another place.  After that I realized Australia has very difficult lifestyle, culture and social life.  In additionaly, my couision brother who is Permanent resident here, he telled me and say me come in Melbourne, I come Melbourne and I want to do study here.  Some people say me study is very hard (Marketing).  I discussed with my parents and brother and I changed my course and I took COE of Certificate III in Commercial Cookery and Certificat IV in commercial Cookery.  After that I have applied 572 visa but it was cancelled.  At that moment, Australian Government Department of Immigration send me a notice to maintain my Subclass 573.  I had applied after letter to many colleges and universities.  They were not giving me offer letter after that department cancelled my 573 student visa on 14 November 2014.  After that, I launched Migrate Review Tribunal.  After 6 months result come, but my MRT was refused.  I was shocked and crying.

    But I want to study in Melbourne, such as in (Bachelor of Business Management).  So now I have launch FRT, because FRT’s officer try to understand my situation and feelings.  Because I am sincere, honesty and punctual person.  I want to get high information and knowledge.  The main reason is I want to be successful in my life.  I request you to consider my situation and overturn the FRT’s decision that give me permission to study here.  I will be highly indebted for your understanding in this matter.

15. When the matter came before the Court on 9 December 2015, the applicant and the respondent were both directed to file written submissions, however the applicant failed to file any written submissions. 

16. Before me, the applicant sought to tender further documents showing that he had offers of enrolment, however these documents were not provided to the Tribunal member by him or his agent.  It is not appropriate to consider additional evidence that was not before the Tribunal.  In any event, they would have made no difference, in my view, as there was already evidence before the Tribunal that he had offers of enrolment in alternative courses. 

17. The core difficulty that the applicant faced was that he came to Australia on the basis that he wished to study a bachelor’s degree course at a university, immediately cancelled his enrolments and then attempted to take up a certificate-level course in cooking.  As a result of this, it is not surprising that the delegate and Tribunal were not persuaded that he was a genuine student.

18. The applicant was asked to articulate why the Tribunal had made an error of law or an error in its process, and was unable to do so, other than to make one complaint, namely that the Tribunal had failed to give him an adjournment.  There is nothing in the Tribunal reasons to indicate that an adjournment was sought, nor required by the applicant or his migration agent.  The relevant material was before the Tribunal.  The additional material that the applicant seeks to rely upon now would not have made a difference to the Tribunal decision.

19. In the absence of any evidence of an adjournment application being made to the Tribunal, and in the circumstances of this case, there being nothing to indicate to a Tribunal member that an adjournment would be warranted or appropriate, I am not persuaded that this shows any judicially reviewable error on the part of the Tribunal member. 

20. The applicant also raised complaints about the conduct of his migration agent and whether or not he had received appropriate advice from his agent.  If his agent did not act appropriately, it is open to him to sue his migration agent for negligence.  I note that migration agents have insurance, which is compulsory under the relevant regulations for migration agents.  There is nothing to stop the applicant from suing his agent, should the agent have been the cause of his difficulties with respect to the visa application, or if the advice that the agent gave him was negligent and caused a loss.  Such an action can be pursued either within or Australia or from India.

21. In these circumstances, where the applicant has not raised any matters that would indicate judicially reviewable error on the part of the Tribunal, I refuse the applicant’s application. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 5 May 2017