SINGH v Minister for Immigration

[2017] FCCA 632

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 632

Catchwords:
MIGRATION – Breach of Student (Temporary class TWU) Higher Education Visa – applicant transferred from a Bachelor’s Degree to a Diploma in Hospitality – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.116

Applicant: BINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1834 of 2015

Judgment of: Judge McNab

Hearing date: 27 March 2017

Date of Last Submission: 27 March 2017

Delivered at: Melbourne

Delivered on: 3 April 2017

REPRESENTATION

The Applicant in person

Counsel for the Respondents: Ms Bosnjak

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 10 August 2015 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 1834 of 2015

BINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed 10 August 2015, the applicant applies for judicial review of a decision of the second respondent (“the Tribunal”). The Tribunal affirmed a decision of the Minister to cancel the applicant’s Student (Temporary class TEU) Higher Education Sector (subclass 573) visa. The applicant filed submissions prior to hearing, which I will refer to below. The Tribunal found that the delegate had correctly cancelled the applicant’s visa on the grounds that he had not satisfied the requirements of the visa that he be enrolled in a bachelor’s degree or masters degree by coursework in a course of study provided by an eligible education provider. The Tribunal did not exercise its discretion to waive the requirements of the visa and not cancel the applicant’s visa. In my view, there is no jurisdictional error disclosed in the Tribunal’s decision.

Background

1. The applicant was granted the visa on 31 May 2013. It was a condition for the grant of the visa that the applicant continue to satisfy the primary criteria of the visa – which at the relevant time required the applicant to be enrolled in a principal course of study provided by an eligible education provider for the award of:

   i)Bachelor’s degree; or

   ii)Masters degree by coursework.

2. At the time of the grant of the visa, the applicant had enrolled in a bachelor’s degree course in Information Technology at Latrobe University, which was an eligible provider. The Tribunal noted that a copy of the delegate’s decision record provided by the applicant to the Tribunal indicated the applicant was granted a visa on 31 May 2013 on the basis of enrolment in and to undertake studies of the higher education level in the higher education sector.[1]

   [1] Tribunal decision dated 27 July 2015 at [7].

3. The PRISMS records maintained by the Department of Education showed that after arriving in Australia on the subclass 573 Visa, the applicant was no longer enrolled in the higher education sector course.

4. The Tribunal noted that the applicant conceded that after he had come to Australia on 6 June 2013, on 16 September 2013, he cancelled his enrolment in the Bachelor of Information Technology from Latrobe University and enrolled in a diploma of hospitality, a vocational level course. It noted that on 12 December 2013 he had obtained an offer letter for a further higher education degree course for a Bachelor of Business at the Cambridge International College (“CICA”) but had not obtained a confirmation of enrolment for that course. The Tribunal also noted that he had obtained a further offer for a Bachelor of Business at CICA dated 30 October but had not obtained a certificate of enrolment.

5. On 9 January 2015, the delegate cancelled the visa pursuant to s.116(1)(b) of the Migration Act 1958 (Cth)(“the Act”).

6. On 20 July 2015, the applicant sent a supporting statement to the Tribunal which explained that the applicant had sought advice from Reliance Education Australia regarding his studies. He asserted that they had misguided him regarding the requirements for his visa.

7. The applicant attended a hearing on 21 July 2015 before the Tribunal and provided the following documents:

   a)an offer letter from CICA for a Bachelor of Business Management dated 12 December 2013;

   b)an unsigned written agreement between CICA and the applicant for a Bachelor of Business (Management), along with a copy signed by the applicant, though undated;

   c)a statement of attainment for Certificate IV in Commercial Cookery dated 28 October 2014 from South Pacific Institute; and

   d)a letter from the South Pacific Institute dated 28 October 2014, confirming the applicant enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality.

8. The Tribunal made its decision to affirm the delegate’s decision to cancel the visa by decision dated 27 July 2015.

Grounds of application

1. The applicant included the following grounds of review in his application (copied with errors amended):

   1.   I want only one chance as I know I am a genuine student. Please trust me because I don’t have any chance to do anything…  I have paid the college $4000 but have not been provided with the certificate of offer and the money has not been returned to me. I do not know what to do now.

   2.   Please give me one chance study because it is hard without study because I don’t want a gap in my studies.

2. The submissions filed by the applicant shortly prior to hearing were to the effect that:

   a)The applicant found the travel time to Latrobe University on public transport from Laverton took too long.

   b)That he was advised by a migration agent that he could cancel his enrolment at Latrobe University and enrol in a lower level of study.

   c)That he was advised by a lawyer (regarding visa requirements) and that he had been trying to enrol in a bachelor’s degree course.

3. It is apparent both from the grounds of review and from the submission filed by the applicant that there is no recognisable ground of review stated.

Consideration

1. In this case, there is no basis for a finding that the Tribunal did not correctly identify the provisions of the legislative scheme applying to the applicant. There was evidence before the Tribunal that the applicant had not complied with the condition of the visa. The applicant conceded during the hearing before the Tribunal that he did not gain a confirmation of enrolment for a Bachelor of Business (Management) on 12 December 2013. There was no evidence that the applicant complied with the visa requirements at the time of the decision of the delegate.

2. In relation to the exercise of discretion to cancel the visa, the Tribunal noted that where no prescribed circumstances exist pursuant to s.116(2) and s.116(3) of the Act, the Tribunal has a genuinely free discretion to cancel a visa pursuant to s.116, fettered only by the bounds of legal reasonableness. The Tribunal correctly stated that there are no matters specified in the Act and regulations that are required to be considered in relation to the exercise of the discretion to cancel a visa.[2]

   [2] Tribunal decision dated 27 July 2015 at [11].

3. The Tribunal had regard to matters including but not limited to matters identified in PAM3. The Tribunal considered the circumstances of the applicant, in particular that he did not wish to return to India without an education and with a study gap.[3]

   [3] Tribunal decision dated 27 July 2015 at [25].

4. The Tribunal concluded that it found the applicant’s evidence to be inconsistent in relation to his intention to study at a higher degree level and gave reasons for that finding referring to the information that had been provided to the Tribunal by the applicant.[4]

   [4] Tribunal decision dated 27 July 2015 at [28].

5. In relation to arguments that were put before this court and the Tribunal in relation to his reliance on migration agents, the Tribunal considered those matters and made specific reference to them. The Tribunal made reference to a letter that the applicant had sent to the delegate on 4 November 2014 where the applicant claimed that he was misled by his peers into changing his course:[5]  

   …Unfortunately, I was misled by my peer group about that course can be changed without any problem. As I had my interest for studying Certificate III in Commercial cookery and diploma of Hospitality leading to Bachelor of Business at Cambridge International College. I changed the course. My mistake is that I was not aware of regulation for SVP and Non SVP courses.

   [5] Tribunal decision dated 27 July 2015 at [12].

6. The Tribunal noted the applicant’s submissions regarding the time taken for him to travel to Latrobe University but found that it did not constitute a sufficient reason to change his level of study to a lower cost and lower work load level.[6]

   [6] Tribunal decision dated 27 July 2015 at [16] and [28].

7. In short, the Tribunal has considered the applicant’s submissions, made findings in relation to those and there is no apparent jurisdictional error in the approach taken by the Tribunal to the material that was before it.

8. In the circumstance I dismiss the application and order that the applicant pay the respondent’s costs fixed in the sum of $7,206.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 3 April 2017