SINGH v Minister for Immigration

[2016] FCCA 1278

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1278

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – whether the Tribunal failed to take relevant considerations into account – whether the Tribunal’s decision was unreasonable – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(a), 476

Applicant: JAGTAR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 334 of 2015

Judgment of: Judge Street

Hearing date: 25 May 2016

Date of Last Submission: 25 May 2016

Delivered at: Sydney

Delivered on: 25 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms Stokes
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 334 of 2015

JAGTAR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 17 August 2015 affirming a decision of the delegate to cancel the applicant’s subclass 457 temporary work skilled visa. The applicant is a citizen of India who married the primary visa applicant in January 2009. In December, at Christmas time, in 2014 that relationship broke down and the Tribunal found that there were grounds for cancellation under s.116(1)(a)of the Migration Act in respect of the visa granted to the applicant.

2. The Tribunal then went on to consider its discretion as to whether to cancel the visa and in particular, any hardship that may be caused to the applicant by cancellation of the visa.  The Tribunal identified that the applicant had raised an issue of taking out a loan in order to obtain his sponsorship.  The Tribunal also referred to moneys the applicant said were owing in India.  The applicant provided documentation in relation to that loan, which the Tribunal noted appeared to refer to some other person to whom a credit limit had apparently been sanctioned. 

3. The Tribunal expressly identified the applicant’s concerns expressed in respect of his daughter who remains with his parents in India.  The Tribunal also identified that the applicant’s former wife has not assisted him in providing for his daughter.  The Tribunal identified the applicant’s concern about difficulty in caring for his daughter if he had to return to India.  The Tribunal identified that there were no international obligations that would be breached as a result of the cancellation and the Tribunal also noted that the main effect of a cancellation appears to be in relation to a loan taken out by the applicant in relation to his study in Australia and in relation to the sponsorship.

4. The Tribunal said that while it accepted the applicant may owe money as a result of his time in Australia, the Tribunal is also mindful that the period of the visa is a temporary one of limited duration and that the circumstance of the applicant being granted the visa had now ceased.  The Tribunal then said they considered all the factors, including the hardship to the applicant, and considering the circumstances individually and collectively, the Tribunal concluded that the visa should be cancelled.

5. The Tribunal expressly found that any hardship suffered does not outweigh the other factors.  On 9 October 2015 a registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

6. The application identifies the following ground:

   In decision, Member concluded decision that “The Tribunal accepts that some hardship will be caused to the applicant by the cancellation of the visa however it is in the context of a temporary visa, only allowing a temporary stay in Australia. The applicant's daughter has remained in India and, although he has expressed hardship if he has to return to look after her, I note that his parents are currently taking care of her. There are no international obligations breached as a result of the cancellation. The main effect appears to be in relation to a loan taken out by the applicant in relation to study in Australia and in relation to the sponsorship. Whilst I accept that the applicant may owe money as a result of his time in Australia I am also mindful that the period of the visa is a temporary one of limited duration and the circumstance of the applicant being granted the visa has now ceased. Balancing all the factors, including the hardship to the applicant, and considering the circumstances individually and collectively, the Tribunal concludes that the visa should be cancelled. Any hardship suffered does not outweigh the other factors.” The very basic and important factor which Member failed to put weight and consider in decision is that My daughter is in India with my parents but I am supporting her. When my visa is cancelled hardship will also be faced by my daughter whom I am supporting and my parents as well. This clearly shows that member failed to consider this and made error in decision.

7. At the commencement of the hearing the Court explained to the applicant that the matter was fixed for hearing and that the nature of the hearing was one in which the Court will decide whether or not the Tribunal’s decision was affected by relevant legal error.

8. The Court explained that the relevant legal error had to be either a denial of procedural fairness to the applicant or an excess of the statutory powers by the Tribunal.  The Court identified that if it was satisfied the Tribunal’s decision was affected by relevant legal error it would set aside the decision of the Tribunal.  The Court explained that if not satisfied that the Tribunal’s decision was affected by a relevant legal error it would set aside the application. The Court indicated it would identify the evidence and then hear submissions from the applicant and then submissions from counsel for the first respondent and then submissions from the applicant in reply. The applicant indicated that he understood the nature of the hearing as explained by the Court. 

9. I accept the submissions of the first respondent that the grounds of the application are in substance an impermissible invitation to review the merits of the matter.  I accept the first respondent’s submission that the adverse finding by the Tribunal in relation to the discretionary consideration as to whether the visa should be cancelled was open on the material before the Tribunal and cannot be said to be unreasonable.  I accept the first respondent’s submission that the adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification.

10. The applicant sought to explain the circumstances of the breakdown of the relationship, in which he said his wife had cheated on him and the hardship that he said his daughter would suffer if he was not able to continue working in Australia so that he could send money back to his daughter and his parents in India.  Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal.  This Court does not have power to make fresh findings of fact in relation to the merits of the application.  The application fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 May 2016