SINGH v Minister for Immigration

[2015] FCCA 3465

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3465

Catchwords:
MIGRATION – Judicial review of Tribunal’s decision to cancel student visa.

Legislation:

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

Migration Act 1958 (Cth), s.116

Cases cited:
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405

Applicant: HARJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 411 of 2015

Judgment of: Judge Harland

Hearing date: 18 December 2015

Date of Last Submission: 18 December 2015

Delivered at: Melbourne

Delivered on: 18 December 2015

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondents: Ms Lucas

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 4 March 2015 is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 411 of 2015

HARJINDER 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 of the Tribunal's decision affirming the Delegate's decision to cancel his student visa on 4 March 2015. In that application he simply says his visa was cancelled for reasons beyond his control.  This does not disclose a judicial error by the Tribunal. His affidavit, filed at the same time, does provide a bit more of an explanation as to the complaint he makes.

3. That complaint is that either the Tribunal member was biased against him or prejudged his matter before listening to him.  The other complaint that can be inferred from that, is that he is not happy that the Tribunal member did not believe him.

4. The matter has been listed for a show cause hearing today. Show cause hearings are dealt with under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) and the rule is set out as follows:

   (1)     At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed--adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

5. The applicant is assisted in Court today by an interpreter.  The applicant did not have a copy of the Court book with him and says he had not seen the Minister's submissions before coming to Court today.  In those circumstances, I have delayed coming onto the bench so that the interpreter could read the submissions to the applicant.  When I came onto the bench, he said he had read the submissions and did not have any questions about them. 

6. I explained the process of the hearing today and I explained that this is not another hearing on its merits where I consider the evidence and could make a different decision to the Tribunal. Rather, it is a judicial review, somewhat like an appeal, where my task is to consider whether or not the Tribunal has made an error of law sufficient that it is a judicial error and that the matter should be remitted for the Tribunal to consider again.

7. As this is a show cause hearing and not a final hearing, all the applicant has to do is show that he has an arguable case.  That does not mean that he has to show that he has an argument that is so strong it is inevitable that he will succeed, but that there has to be some reasonable prospect of success and not an argument that is doomed to fail.

8. The solicitor for the Minister has filed written submissions setting out why, the Tribunal has not made an error and that the applicant has not raised an arguable case.  She points out correctly that it is the task for the Tribunal, and not the Court, to assess the applicant's credibility.  Findings about credibility are findings of fact, and that is the task for the Tribunal and not the Court.  This is made clear by Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405.

9. Looking at the Tribunal's decision, it is clear that the decision the Tribunal had to make was whether or not the Tribunal should affirm the decision of the Delegate to cancel his subclass 573 higher education sector visa under section 116 of the Migration Act 1958 (Cth). He refers to the reasons the Delegate cancelled the visa, and that was because the applicant had not maintained enrolment in a higher education course and therefore did not comply with condition 8516.

10. He noted that the applicant was represented by a migration agent at the hearing before him, then referred to the discretion under s.116 of the Migration Act.  The Tribunal member then sets out the background of the matter, including that the applicant had applied for the visa with the intention of studying a short English language course, followed by a Bachelor of Business degree in Tasmania.  The applicant was enrolled in that degree but his enrolment was cancelled when he moved to Melbourne.

11. The applicant had taken some of the English classes but had not started the bachelor degree.  The Tribunal found that he was not enrolled in a higher education course and that that was certainly the case when the Department issued the applicant with a notice of intention to cancel his visa.  The Tribunal member then referred to the fact that he had to consider whether or not to exercise the power to cancel the visa.  He then turned to consider the evidence that the applicant gave.

12. The applicant said he was attacked when living in Tasmania and that he did not feel safe there, and that was why he moved to Melbourne, where he had supports.  The Tribunal member then sets out some inconsistencies in the applicant's evidence and states that he put those inconsistencies to the applicant but was not satisfied with the responses.  He recorded that the applicant told him that he did not report the incident to police and that the applicant said he did not have anyone to support him.  The Tribunal expressed some concerns about the credibility of his evidence and was not satisfied that the applicant had been attacked. 

13. The applicant said he moved to Melbourne in July 2014.  The notice of intention to cancel his visa was sent to the applicant on 12 September 2014 and the Tribunal hearing took place on 9 February 2015, with the decision being issued on 10 February 2015.  The applicant said that he made many attempts to enrol in a bachelor course in Melbourne but that the University of Tasmania would not provide him with the release letter and so he had not been able to obtain enrolment.

14. The Tribunal member asked the applicant about these attempts and expressed concern that the applicant had at no stage contacted the education institutions or the Department of Immigration to seek assistance.  The applicant enrolled in a Diploma of Business in October 2014, which was after he received the notice of intention to consider cancellation of his visa.  A diploma is a vocational course and not a higher education course and therefore is not a course that would satisfy the conditions of his visa. 

15. The Tribunal member went on to consider the issue of hardship to the applicant but did not find that the factors the applicant raised were sufficient to give that weight, and considering the evidence, confirmed the Delegate's decision to cancel the visa.

16. In considering the Tribunal decision, it is apparent on its face, that the Tribunal member set out the evidence that the applicant gave in particular instances, then set out the inconsistencies that the Tribunal member found in that evidence and the responses that the applicant gave.  That does not indicate any bias by the Tribunal member, or prejudgment.  Rather, what it indicates is the Tribunal considering and weighing up the evidence and the applicant's credibility, which is what the task of the Tribunal is.

17. The applicant made some oral submissions today where he said that he had explained how the attack happened and why it was not safe for him to remain in Tasmania.  He said that the Tribunal member asked him about that again and that he explained the circumstances again.  The applicant says that everything he explained was true and correct and that he asked the Tribunal member to give him a chance and that he intends to study. He again asked this Court to give him a chance to prove that what he said was true and that he intends to study.

18. The solicitor for the Minister also made some oral submissions today and pointed out that the applicant has some difficulty with the fact that the Tribunal member did not believe him about the attack.  She said that the Tribunal's task is to test the evidence, to see whether or not it is consistent, and confirmed what I had said earlier - that the Court cannot look at the evidence again and decide whether or not the applicant was truthful. Issues of credibility are a matter for the Tribunal.

19. It is clear to me, having considered the material, that it is not just the matter of the attack and not being believed about the attack, but also the failure to enrol in a course that met the requirements of the visa over a period of quite some months. 

20. Having considered the material and the submissions, I find that the applicant has not made out an arguable case and I will therefore dismiss the application.

21. The solicitor for the Minister applies for costs in the sum of $2,500.  This is below the Federal Circuit Court scale for show cause hearings, which is set at $3,416.  I have explained to the applicant that usually the person who succeeds in the argument, when legally represented, is awarded costs.  It is often referred to as costs following the event.

22. The applicant asked that I do not make an order for costs because he will not be able to pay.  There are several authorities which make it clear that an inability to pay costs is not enough in itself a reason not to order   costs.  The circumstances in this case are not unusual for cases of this type and I consider it appropriate to order costs and I will therefore do so.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 23 December 2015