Singh v Minister for Immigration

[2016] FCCA 624

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 624

Catchwords:
MIGRATION – Visa – student visa – discretion to cancel visa – weight to be accorded to evidence – duty of Tribunal to make inquires.

Legislation:

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

Migration Regulations 1994 (Cth), sch. 2, cls.573.111, 573.223, 573.223(1A) & 573.231

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309

Applicant: BHAGWAN SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 163 of 2015

Judgment of: Judge Heffernan

Hearing date: 19 February 2016

Date of Last Submission: 19 February 2016

Delivered at: Adelaide

Delivered on: 4 April 2016

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The application filed 7 May 2015 is dismissed.

2. The name of the second respondent is amended to ‘The Administrative Appeals Tribunal’.

3. The applicant is to pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 163 of 2015

BHAGWAN SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) seeking review of a decision of the Migration Review Tribunal (as it then was), (‘the Tribunal’) dated 9 April 2015. In that decision, the Tribunal affirmed an earlier decision of a delegate of the Minister cancelling the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (‘the visa’).

2. The applicant is a citizen of India and has been in Australia since September 2013.  The applicant is self-represented before this Court and had the assistance of an interpreter in the Punjabi and English languages.

3. The grounds of the application to this Court are lengthy and in narrative form.  I will not repeat them verbatim here.  In essence, the applicant makes two complaints:

   a)The Tribunal fell into jurisdictional error in not placing sufficient weight on documents the applicant provided to it relating to his motor vehicle accident and subsequent hospitalisation; and

   b)The Tribunal fell into jurisdictional error in not placing sufficient weight on his “situation”, from which it can be inferred he means his personal circumstances since arriving in Australia.  Those personal circumstances include the fact of his motor vehicle accident, the impact of the injuries he sustained as a result of the accident, the role those matters played in his withdrawal from higher education studies and the subsequent decision to change the direction of his studies and apply for a Class TU 572 Vocational Education and Training Sector visa.

Background

1. As I have noted, the applicant arrived in Australia in September 2013.  He has, since arrival, ceased to be enrolled in a higher education course.  He has only completed one semester of study, which concluded in February 2014.  After completing that semester, he did not complete any further study for a period of approximately 12 months.[1]  His stated intention is to undertake no further study at the higher educational level.  His desire is to undertake vocational study, but at the time of the Tribunal hearing, he was not enrolled in a vocational course.  The applicant claimed to have experienced depression and stress following the motor vehicle accident in November 2013.

   [1]     Court Book (‘CB’) p 51.

2. The applicant was prescribed medication for a period of eight months following the accident.[2]  He claimed that his concentration was affected to the extent that he was not able to focus on his studies.  This led him to decide to change his studies from a higher education course to a vocational course.  He applied unsuccessfully for a Class 572 visa.  On the applicant’s evidence, he completed his one successful semester of study after the accident had occurred.  His evidence to the Tribunal was that his condition improved to the point where he ceased medication for pain relief and depression in July 2014.  The applicant had enrolled in a Bachelor of Mechanical Engineering course at the University of South Australia.  The course was scheduled to take place between July 2014 and July 2017, however he withdrew from that course.[3]

   [2]     CB p 51.

   [3]     CB p 52.

Legislative framework

1. As the holder of a subclass 573 visa, the applicant was required to comply with the conditions associated with it.  One of the relevant conditions was condition 8516.  This required him to be a person who would continue to satisfy the primary or secondary criteria (as relevant to his circumstances) for the grant of the visa.  It was an alleged failure to comply with this condition that caused the Department to put the applicant on notice that it was considering cancellation of his visa. 

2. The primary criteria for the grant of the visa at the time of the decision are set out in cl.573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). In particular, cl.573.223(1A) provides:

   “If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a)the applicant gives the Minister evidence that the applicant has;

   (i)     a level of English language proficiency that satisfies the applicant’s eligible education provider; and

   (ii)     educational qualifications required by the eligible education provider; and

   (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)     the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)     any other relevant matter; and …”

3. The definition of ‘eligible higher degree student’ is contained in cl.573.111 of the Regulations:

   “eligible higher degree student means an applicant for a subclass 573 visa in relation to whom the following apply:

   (a)the applicant is enrolled in a principal course of study for the award of:

   (i)a bachelor’s degree; or

   (ii)a masters degree of coursework;

   (b)the principal course of study is provided by an eligible education provider;

   (c)if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i)the applicant is also enrolled in that course; and

   (ii)that course is provided by the eligible education provider or an educational business partner of the eligible education provider.”

4. In circumstances where subcl.573.223(1A) does not apply, cl.573.231 provides as follows:

   “(a)the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principle course; and

   (b)the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i)made under regulation 1.40A; and

   (ii)in force at the time the application was made.”

5. The Minister has a discretion to cancel a visa if satisfied that the holder of the visa has not complied with a condition of the visa.[4] Factors relevant to the exercise of that discretion are not set out in the Act. The discretion is at large but of course must be exercised lawfully.

   [4] Section 116(1)(b) of the Migration Act.

Tribunal Decision

1. The applicant attended at a Tribunal hearing on 8 April 2015.  He gave evidence and presented documents to the Tribunal.

2. There was no dispute in this matter that the applicant was not enrolled in a higher education course.[5] For this reason he was in breach of condition 8516 and this had the effect of engaging s.116(1)(b) of the Act. The discretion to cancel the visa was enlivened. The Tribunal considered the exercise of that discretion. It took into account a number of relevant considerations which included:

   a)The study history of the applicant, including the fact that he had completed only one semester of study since his arrival in Australia, and the fact that he had withdrawn from a Bachelor Degree from the University of South Australia;

   b)His motor vehicle accident, and the impact this had on his health and capacity to study;

   c)His stated preference for undertaking future study in the vocational sector and the failure of his application for a subclass 572 visa;

   d)The embarrassment to the applicant and his family in India that would inevitably flow from his failure to obtain educational qualifications in Australia; and

   e)That the applicant appeared to be genuinely remorseful about his breach of condition 8516.

   [5]     CB p 50.

3. The Tribunal found that even accepting the applicant had been involved in a motor vehicle accident, on his own evidence, it was not satisfied that he could not have continued in his planned higher education studies.[6]  It placed weight on the fact that he had actually managed to complete a semester of his studies after the motor vehicle accident, and the fact that a period of approximately one year had elapsed without him engaging in study at any level.  As a consequence, the Tribunal found that the applicant had not been fulfilling the purpose of his travel to, and stay, in Australia.[7]  For that reason, it found there was no good reason not to exercise the discretion to cancel the visa and it affirmed the decision of the delegate.

   [6]     CB p 51.

   [7]     CB p 53.

Applicant’s submissions

1. The applicant made brief oral submissions before me.  They focused on the grounds identified in his application with the added submission that the Tribunal had fallen into error because it had failed to make an enquiry into a matter of which it was not satisfied. 

2. The applicant submitted that when he appeared before the Tribunal, he had given it a copy of a card indicating the police incident report number with respect to his accident.  The applicant is critical of the fact that the Tribunal placed little weight on that card and a hospital discharge sheet that he provided from the Royal Adelaide Hospital.

3. In his oral submission, the applicant in effect, took issue with the factual findings made by the Tribunal about his capacity to have engaged in study during the course of 2014, if he had chosen to do so.  He told the Court that before the accident, he was studying well and after the accident he had pain in his head which prevented him from doing any study.  He told the Court that it was a doctor who suggested to him that he should possibly transfer to the vocational sector.  He acknowledged that he had told the Tribunal these things but said that it did not pay enough attention to the fact that he was experiencing a difficult time in his life during 2014, and that this led to him making a bad decision.  He submitted that if the Tribunal had obtained further information from the South Australia Police, they may have looked differently at his circumstances, and he submitted that anyone can make a wrong decision.  He submitted that he just wanted to be allowed to complete his studies.

4. The overall effect of the applicant’s oral submissions was consistent with the grounds he raised in his written application.  His complaint is that the Tribunal did not place sufficient weight on the fact of his accident in 2013 and the effect that that had on his life throughout the course of 2014.  Had the Tribunal accorded those matters more weight, then it would have been more readily prepared to understand and excuse the fact that he had ceased to be enrolled in a higher educational course.  In other words, he complains that the exercise of the Tribunal’s discretion was in this manner affected by error.

First respondent’s submissions

1. The first respondent submits that there was a clear ground to cancel the visa because of the fact that the applicant was, by his own admission, in breach of condition 8516.  It submitted that for this reason, the question for this Court was to consider the exercise of the discretion by the Tribunal to affirm the decision of the delegate.

2. To the extent that the applicant complains about the failure to accord sufficient weight to the police and hospital records, and his personal circumstances, the first respondent says that these questions were exclusively within the province of the Tribunal.  As to the failure to obtain further records from South Australia Police, the first respondent submits that there is no general duty to undertake enquiries of that nature.  It submits that any further information the police could have provided would not have affected the outcome in this case because the Tribunal accepted that the applicant had been involved in the accident and sustained the injuries that he complained of.  It submitted that this was not a case in which the Tribunal had failed to take into account relevant considerations because it clearly addressed the personal circumstances described by the applicant.[8]  It took into account his depression and the reasons for his breach of the condition.

   [8]     CB pp 50-51.

3. The first respondent submits that the applicant has not demonstrated any jurisdictional error on the part of the Tribunal.

Consideration

1. The applicant did not dispute that he had ceased to be enrolled in a higher education course. Regrettably for the applicant, this placed him in breach of condition 8156 of his visa. Because he was in breach, s.116(1)(b) of the Act was engaged and the Minister had a discretion to cancel the visa. The Tribunal was entitled to have regard to the Procedures Advice Manual PAM 3 as to general visa cancellation powers and appears to have given consideration to all relevant matters in determining to exercise its discretion adversely to the applicant.

2. It is well established that the weight to be given to an item or body of evidence is a function of the fact finding process and as such entirely a matter for the Tribunal. [9]  This Court cannot substitute its own view of the facts for that of the Tribunal.  For this reason, Mr Singh’s contention in both grounds one and two cannot succeed.

   [9]     Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24.

3. It was up to the Tribunal to decide if it accepted any of the evidence or materials provided to it by the applicant, and if it did, the weight to be attached to it.  It placed little weight on the card containing the police incident number and the hospital discharge sheet.[10]  Mr Singh is dissatisfied with that outcome, but that does not mean the Tribunal has fallen into error.  To the contrary, it was entitled to make that finding.  However, even if it had been in error to place little weight on those documents, as the first respondent rightly points out, this could not have had any effect on the outcome of the proceedings.  The Tribunal accepted that the accident occurred and that Mr Singh had sustained injuries.  Those documents did not take the matter any further.  Accordingly, I dismiss ground one.

   [10] CB p 50 at [10].

4. Furthermore, there was nothing irrational or illogical in the finding it made to the effect that the accident and its sequelae could not satisfactorily explain his failure to engage in further study after February 2014.  It accepted that the accident occurred and that Mr Singh had been injured, but rejected that it affected him to such an extent that he could not concentrate on his studies.  This finding was clearly open to it.  Having made that finding as to his personal circumstances and his study history, it was within the discretion of the Tribunal to affirm the decision of delegate.  Again, it was for the Tribunal to determine the weight to accord the “situation” or personal circumstances of the applicant.  The second ground does not establish a basis for a finding of jurisdictional error and I dismiss it.

5. As for the claim that developed in the course of Mr Singh’s oral submission that the Tribunal had erred in failing to make an enquiry into a matter of which it was not satisfied, namely, requesting further information from police as to his accident, I do not consider this to have been a failure amounting to jurisdictional error.  The Tribunal accepted the evidence of the applicant about the fact of the accident.  The failure to obtain this material could not be said to have amounted to a failure to conduct a review as it was required to do.  As submitted by the first respondent, there is no general duty on the Tribunal to investigate or make any enquiry beyond material provided to it by the applicant.  This question was addressed by the High Court, albeit in the context of the duties of the Refugee Review Tribunal:

   “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.  If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. …”[11] (emphasis added, footnote deleted)

   [11]    Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25].

6. Bennett J, of the Federal Court, has held:

   “The Tribunal has no general duty proactively to gather opinions, assessments and evaluations in weighing material that an applicant has chosen to put before it.  The Tribunal is under no obligation to inquire or to seek information not presently available or not put before it by an applicant.”[12]

   [12]    SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [32].

7. Two observations can be made in light of the above.  Firstly, any information contained in the police incident report relating to the accident, could not be said to have been a “critical fact” in the context of this review.  There was no dispute as to the accident or the fact that the applicant was injured in it.

8. Secondly, it is not apparent from the decision record of the Tribunal that the applicant made a request to it to obtain further material from the South Australian Police.  He was not in any way deprived of a fair hearing by a failure to allow him to properly present his case.  He was not deprived of a fair hearing by a failure on the part of the Tribunal to accede to a reasonable request made by him relating to a critical fact.  I have treated this aspect of the applicant’s submissions as a particular of ground one of his application.  This argument has no merit.

9. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 4 April 2016