SINGH v Minister for Immigration

[2016] FCCA 426

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 426

Catchwords:
MIGRATION – Judicial review of cancellation of his student visa.

Applicant: JASWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 976 of 2015

Judgment of: Judge Harland

Hearing date: 12 February 2016

Date of Last Submission: 12 February 2016

Delivered at: Melbourne

Delivered on: 12 February 2016

REPRESENTATION

Counsel for the Applicant: Appeared in person

Counsel for the Respondents: Mr Hornsby

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 5 May 2015 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 976 of 2015

JASWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS 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 matter was listed today for final hearing. The application for judicial review was filed by the applicant on 5 May 2015.  The applicant does not disclose a proper ground for review in his application.  What he does is attach to his affidavit what he titles ‘Grounds of Application’ which is a little over two pages long.  I have read that document.  What that document does is raise a merits argument.  It is clear that he disagrees with the decision that the Tribunal made and is not happy with the outcome.

3. The applicant out the history of what occurred to him which is also reflected in the decision of the Tribunal.  He arrived in Australia to study a Bachelor of Business Administration course at the University of Southern Queensland.  He says that he found living in Queensland more difficult than he thought because he did not have any family there and it was the first time he was living away from his family. He decided to move to Melbourne because he had a cousin living here.  He says that at that stage he was completing the ELIOS course which is the English language course.

4. He says that he contacted an education agent in Brisbane who told him he could change courses and that there was not a restriction on that.  He says that he was interested in studying hospitality and he paid a fee to the agent and the agent arranged to enrol him in a certificate in commercial cookery and that he moved to Melbourne in July 2014.  The applicant was granted a student visa which was subclass 573.  That is a higher education visa and has a more streamlined application process than the subclass 572 which is a vocational student visa.

5. The subclass 572 visas have a more stringent application process and applicants are required to provide more evidence and documents in order to be granted that visa.  The applicant received a notice of intention to cancel his visa in November 2014.  The reasons for the intention to cancel were non-compliance with the applicant’s visa because enrolling in a vocational course, which commercial cookery is, did not comply with his visa requirements which required him to be enrolled in a higher education course, for example, a bachelor degree.

6. The applicant says that when he received that notice, he took steps to enrol in a higher education course and enrolled in a Bachelor Degree in Business Accounting.  The applicant says that he has compelling reasons for the breach of his visa conditions. He says that he was misled by his agent and submits that the Tribunal failed to consider the fact that he had enrolled in the Bachelor of Business Administration degree.  The first respondent relies on written submissions which also set out the background to the matter.

7. It is clear from the decision of the Tribunal member, and particularly at paragraphs 13 and following, that the Tribunal did consider the reasons the applicant put forward as to why he changed to a vocational course and the fact that he has now enrolled in a bachelor’s course.  It is clear from the Tribunal’s decision that the Tribunal member was not satisfied about the applicant’s reasons.  The Tribunal member expressed concern that the applicant had never commenced his bachelor degree in Queensland and expressed some concerns about the evidence that he gave about his intentions to find an appropriate course.

8. The Tribunal member notes that the applicant did not enrol in a compliant course until after he had received the notice of intention to consider cancellation.  The Tribunal member also observed that the applicant had not been enrolled in a higher education course or had not had an offer of acceptance to a higher education course for a period of five months which the Tribunal member considered was a significant breach of his visa condition.  The Tribunal member then went on to consider whether or not there would be hardship caused to the applicant or his family if his visa was cancelled. It was acknowledged that the applicant’s family had paid his fees for him but the Tribunal member not find that there was otherwise going to be hardship caused to him or his family.

9. The Tribunal member also noted, in the applicant’s favour, that there was no evidence that he had not been truthful or had not complied with any other condition of his visa.  The Tribunal member acknowledged that the applicant was saying that once he  had realised he had done the wrong thing, he went and obtained an offer, and he was asking for another chance.  The Tribunal member responded that he was concerned based on the applicant’s past conduct, that he did not really intend to study at a higher degree level.

10. The Tribunal member said that, in considering all of the circumstances, any extenuating or compassionate circumstances did not outweigh the grounds for cancelling the visa.  Those are matters that are entirely within the Tribunal member’s discretion and are not matters that this court could interfere with as that would cause this Court to fall into an error by considering the merits of the case.  Having considered the material before me and the Tribunal decision, I cannot find any jurisdictional error.

11. I am satisfied that a fair reading of the Tribunal decision shows that the Tribunal member carefully considered the matters that the applicant put forward to it.  The first respondent seeks an order for costs in the sum of $5,800.  That is less than the amount allowed in the scale for final hearings which is $6,825.  The applicant opposes the order for costs stating that he does not have any work rights in Australia and relies on the support of his family.  He says he is not able to pay such a large amount.

12. The representative for the respondent says that the Minister will often enter into payment plans with applicants if they approach the Department to do so.  It is the usual course in cases of this type that the successful litigant is entitled to an order for costs.  The fact of a litigant not being in a financial position to pay the costs is not a sufficient reason for not making that order.  I do not find that there are circumstances in this case to depart from the usual order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 2 March 2016