SINGH v Minister for Immigration

[2016] FCCA 909

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 909

Catchwords:
MIGRATION – Judicial review – show cause hearing – student visa cancelled.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(a), 362(2)(b)

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: SANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1436 of 2015

Judgment of: Judge Harland

Hearing date: 31 March 2016

Date of Last Submission: 31 March 2016

Delivered at: Melbourne

Delivered on: 31 March 2016

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr Day appearing for DLA Piper

ORDERS

1. The application filed on 25 June 2015 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1436 of 2015

SANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The applicant filed an application for judicial review on 25 June 2015. The application does not set out any grounds which identify a jurisdictional error by the Tribunal. Rather, they invite the Court to engage in a merits review, which this Court does not have the power to do. On 28 October 2015, Registrar Allaway listed this matter for a show cause hearing before me today, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12 deals with show cause hearing. At a show cause hearing a court may, if it is not satisfied that the application has raised an arguable case for relief, dismiss the application.

3. If the Court is satisfied that the application does raise an arguable case for relief, it may adjourn the proceedings and list the matter for a final hearing.  I explained the nature of a show cause hearing to the applicant and the limitations of the role of this Court.  The applicant has the assistance of an interpreter and confirmed that he had received and read the written submissions of the respondent.  I asked the applicant to identify what mistakes he says the Tribunal made.  The applicant says that his agent attempted to give evidence at the end of the hearing and was not allowed to speak.

4. This is dealt with at paragraph 34 of the Tribunal’s decision where the Tribunal member recorded that the applicant’s representative attempted to give evidence, claiming that the applicant had forgotten to tell the Tribunal. The Tribunal did not allow the applicant’s representative to give that evidence, and there were no further submissions made from the representative or statements received after the hearing. In response to that oral submission, Mr Day for the Minister submits that pursuant to section 362(2)(b) of the Migration Act 1958 (Cth), the Tribunal is not obliged to obtain evidence from a person at the applicant’s request, and that it is beyond the scope of the role of a representative to give evidence.

5. The role of the representative is to advise the applicant and to make submissions.  It was open to the applicant’s representative to ask for the matter to be adjourned briefly so that he could speak to his client in the absence of the tribunal member before the hearing resuming.  And it was also open to the applicant’s representative to seek to file further written submissions after the hearing.  There was no suggestion that the applicant’s representative took either of those options.  In those circumstances, that does not establish any jurisdictional error on the part of the Tribunal.

6. The applicant also complains that other students in his situation were granted a visa but he was not.  As I explained to him during the course of the hearing, the situation of other students, which is unknown, is not relevant.  The only issue for the Tribunal to determine is the applicant’s own application for a visa and his own circumstances, not those of others.  The same applies to the Court.  The respondent has filed written submissions which summarise the background of the issues before the Tribunal, and I do not propose to repeat those in any great detail.

7. The applicant came to Australia on a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (“573 visa”).  The student 573 visa is a streamlined process where applicants are able to obtain that visa more easily than student visas in the 572 class.  There are higher educational requirements for a 573 visa which requires a student to be studying at a bachelor level rather than a certificate or diploma level.  The applicant did not complete the course that he enrolled to do and did not complete the English language course.  The applicant says that the course was too hard and he sought to change to a 572 visa and his application to change to that visa was refused.

8. The issue before the Tribunal was whether or not to affirm the delegate’s decision to cancel the applicant’s 573 visa pursuant to section 116(1)(a) of the Migration Act1958 (Cth). Under that provision the Tribunal has to consider whether or not the circumstances which caused the Minister to grant the visa no longer exist. If the Minister or the Tribunal are satisfied that the circumstances, either in whole or in part, no longer exist, there is still a discretion as to whether or not the visa should be cancelled.

9. The Tribunal sets out the applicant’s evidence at some length and also makes some damning credibility findings against the applicant.  Again, I do not propose to set out or summarise the findings of the Tribunal in any detail, but it is clear that the applicant did not satisfy the requirements of his visa.  The Tribunal also found that the applicant had sought to mislead the Tribunal in not informing the Tribunal that his enrolment in the course had been cancelled for disciplinary reasons, which turned out to be plagiarism. 

10. It is clear on his own evidence that the applicant had not complied with the visa conditions, and the Tribunal was entitled to make the findings it did on the evidence before it.  There is nothing in the decision that I can see that suggests any jurisdictional error on its part.  The Tribunal then considered the discretionary factors as to whether or not to cancel the visa and addressed these issues at paragraphs 46 to 49.  Again, it is clear that the Tribunal considered the issues that the applicant raised, which included the money that his parents had spent on his courses and living expenses, and the hardship that the applicant claimed he would suffer.

11. The Tribunal also acknowledged that the cancellation of the visa would mean that the applicant would return to India without having any qualifications from Australia but, considering the circumstances of the case, was not satisfied that it should exercise the discretion to not cancel the visa.  During the course of the hearing the applicant asked for an adjournment, saying he had not had an opportunity to obtain a lawyer because of his finances and wanted an opportunity to do so.  It is a reality that many litigants appear in this Court without legal representation, and certainly it can be difficult for people in that position to present their case.

12. However, the applicant has been aware of the hearing date today since 28 October 2015.  There has been ample time for him to obtain legal representation.  So in those circumstances I refuse to grant the adjournment, and for the reasons I have given above I dismiss the applicant’s application for judicial review. 

13. The respondent seeks costs in the sum of $3,416, which is the amount set out in the Federal Circuit Court Rules for show cause hearings.  The applicant submits that he does not have the funds and says he could pay in instalments.  I am satisfied that it is appropriate to make a costs order in the Minister’s favour in this case, and it will be open to the applicant to speak with the department with respect to any arrangements with respect to the costs orders.  So I will order that the applicant pay the costs of the first respondent in the sum of $3,416. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  21 April 2016