Singh v Minister for Immigration
[2020] FCCA 1301
•27 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1301 |
| Catchwords: MIGRATION – Extension of Time Application – Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa – visa cancellation – decision of Administrative Appeals Tribunal – whether Tribunal properly considered evidence and visa criteria – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), pt.3 div.1 sch.1 Migration Act 1958 (Cth), ss.116, 351, 477 Migration Regulations 1994 (Cth) reg.1.40A, cls.573.223(1A), 573.231 |
| Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; 101 ALR 211; 101 ALD 211 |
| Applicant: | HARNEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 880 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 13 February 2019 |
| Date of Last Submission: | 13 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 27 May 2020 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the First Respondent: | Clayton Utz |
| Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 880 of 2016
| HARNEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 29 April 2016 (Substantive Application), the Applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 25 September 2015 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate (Delegate) of the then Minister for Immigration and Border Protection (Minister), to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa (Visa).
In the Substantive Application, the Applicant seeks an extension of time (Extension of Time Application) pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to pursue the Substantive Application.
Background
The factual background to this matter is set out at [3.1] to [3.13] of the Minister’s written submissions, dated 22 November 2016 (Minister’s Submissions). With some minor alteration, those submissions provide as follows.
The Applicant is a citizen of India and was granted the Visa on 27 May 2013[1]. A condition for the grant of the Visa was that the Applicant must continue to satisfy the primary criteria for the Visa, being item 8516 of sch.8 of the Migration Regulations 1994 (Cth) (Condition 8516).
[1] Court Book (CB) 50.
On 31 October 2014, the Minister’s Department (Department) sent an email to the Applicant that provided a Notice of Intention to Consider Cancellation (NOICC) of the Visa pursuant to s.116 of the Act[2]. The NOICC indicated that it appeared the Applicant was no longer enrolled in a course of study that is a principal course of study for the type of Visa the Applicant held and that, therefore, he was in breach of Condition 8516[3]. The NOICC invited the Applicant to comment and give reasons as to why his Visa should not be cancelled.
[2] CB 4-8.
[3] CB 6.
On 14 November 2014, Around the World Educational & Immigration Consultants (First Representative) emailed the Department and provided a response to the NOICC[4].
[4] CB 17-23.
On 26 November 2014, the First Representative emailed the Department, repeating the submissions from the 14 November 2014 email, and including further submissions in response to the NOICC[5].
[5] CB 24-30.
On 3 December 2014, the Applicant himself (not the First Representative) emailed the Department providing further submissions in response to the NOICC[6].
[6] CB 31-35.
On 14 January 2015, the Delegate cancelled the Visa pursuant to s.116(1)(b) of the Act (Delegate’s Decision)[7].
[7] CB 50-61.
On 20 January 2015, the Applicant applied to the Tribunal for review of the Delegate’s Decision[8]. The Applicant indicated that he would be represented by Parrish Patience Immigration Lawyers (Second Representative)[9].
[8] CB 68-86.
[9] CB 75.
A number of supporting documents were provided to the Tribunal prior to the scheduled hearing. On 17 September 2015, the Applicant appeared at the Tribunal and was assisted by a Punjabi interpreter[10]. The Second Representative appeared by telephone[11].
[10] CB 209-212.
[11] CB 209.
On 25 September 2015, the Tribunal affirmed the Delegate’s Decision to cancel the Visa[12].
[12] CB 213-227.
Tribunal’s Decision
The Tribunal’s Decision appears at Court Book pages 220-227. The Minister’s Submissions at [3.12] accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
The Tribunal first set out the relevant background[13] and outlined the relevant law[14]. The Tribunal then considered whether grounds for cancellation existed[15]. The Tribunal detailed the Applicant’s evidence given at the hearing about what he had come to study and why he had enrolled in courses. The Tribunal noted that the Applicant said he understood that it appeared he was not enrolled in a requisite course between March 2014 and November 2014.
[13] CB 220, at [1]-[3].
[14] CB 220, at [5]-[6].
[15] CB 220, at [7]-[14].
The Tribunal found that the Applicant did not hold a Confirmation of Enrolment or letter of offer from March 2014 until 14 November 2014 in a Bachelor or Masters course, nor a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under reg.1.40A of the Migration Regulations 1994 (Cth) (Regulations)[16]. The Tribunal found that the Applicant consequently ceased to satisfy cl.573.223(1A) or cl.573.231 to sch.2 to the Regulations, and had consequently breached Condition 8516 of his Visa[17].
[16] CB 221, at [15].
[17] CB 221, at [16].
The Tribunal was therefore satisfied that, pursuant to s.116(1)(b) of the Act, the ground for cancellation of the Visa existed[18]. The Tribunal correctly identified that the ground for cancellation does not require mandatory cancellation under s.116(3) of the Act.
[18] CB 221, at [17].
The Tribunal then went on to consider whether the discretionary power to cancel the Applicant’s Visa should be exercised. In doing so, the Tribunal had regard to the evidence and submissions of the Applicant and his Second Representative, and matters identified in the Minister’s Department’s Procedures Advice Manual ‘General visa cancellation powers’[19].
[19] CB 222-226.
The Tribunal expressed concern that the evidence indicated that the Applicant was not a genuine student and did not genuinely intend to study at the higher degree level. The Tribunal found that even if the Applicant was not enrolled in the type of course he originally believed it to be, and that his marks from Deakin supported his claim that he failed his subjects in his first trimester, it remained that he had been granted credits for six months and he did not explore any other options or engage with any support services. At [37]-[38], the Tribunal stated:
37. The applicant has not explained why he chose to take the advice of his migration officer at that time, and the enrolments officer at his current educational institutes that he still satisfies the requirements of the student visa and was not in breach given his evidence that he understood at the time of visa grant that he must be enrolled in a bachelor's degree provided by an eligible education institution. I do not accept that, because he used an agent in India, and because he thought agents were for the benefit of students, and because the agent here told him he could transfer after one trimester, that he would uncritically accept that advice, which went against his previous understanding, when he could have confirmed the true situation by speaking with Immigration or Deakin. I find it of further concern that he was sent a letter by Deakin stating that his enrolment was cancelled and that they would report him to Immigration which he chose to ignore, and I do not accept that he would have believed he was not liable for cancellation as he was enrolled in vocational level courses. I find that the applicant chose to move to vocational education level courses, being cheaper and easier than his previous courses. This is despite him seeking a visa to come to Australia for the purpose of studying at the higher degree level and being aware at time of visa grant of the conditions on his visa which he subsequently breached. I further find that the applicant only sought an offer letter or CoE for a higher degree course after the NOICC was issued, which I consider leads me to have no faith that he genuinely wished to study at the higher degree level after leaving Deakin, and I consider that this indicates that he sought this NOICC in an attempt to rectify his visa breach and therefore remain in Australia, rather than any genuine intention to study at the higher degree level after leaving Deakin. I have considered the updated CoE but again I have no confidence that he has sought this because he genuinely intends to study this course, but to rectify his visa situation and therefore remain in Australia. On the basis of all of the above, I find that the applicant is not a genuine student and does not genuinely intend to study at the higher degree level. I give this factor significant weight, because this is, ultimately, the purpose for which he was granted the 573 subclass visa, which he now seeks to have reinstated. Given my findings I have no confidence and do not accept on the evidence before me that, if the visa were reinstated, that the applicant would study at the higher degree level, despite holding the amended CoE, and I give this significant weight in considering whether the visa should be cancelled.
38. I have had regard to the applicant’s completion of his English for Academic purposes and his certificate III, but given my concerns above, I give these little weight. I have had regard to the letter from Aveta, the letter from his cricket club, his sister's financial support statement and supporting evidence but I give these little weight given my concerns above. I have had regard to the applicant's claims that if he has to return to India he will not be able to find a good job, and not be able to support his family. I do not accept that he will not be able to find any job on the evidence before me, he has substantial qualifications. I consider that he has considerable skills and training which would allow him to find work on return, and, do not accept therefore that he or his family would have financial difficulties or that he or his family would be shamed by his return. I give this factor little weight. I have considered whether the cancellation would lead to the applicant being detained and potentially spending a considerable period in detention, but on his evidence he would return to India and therefore would not be detained. I give this some weight. I have considered the applicant's claimed purpose for travel and stay in Australia. I am prepared to accept that he travelled here with the intention to study at the higher degree level, but as above, I do not accept that he had that intention on leaving Deakin, which I consider a significant problem given that, as I discussed with him, he is seeking to have a higher degree course visa reinstated. I have considered the circumstances in which the ground for cancellation arose, the degree of hardship that may be caused to him, his past and present conduct towards the Department, and whether any international agreement would be breached as a result of the cancellation. I have had regard to the evidence and submissions addressing these factors, but I give them little weight when considered against my findings above.
The Tribunal considered the circumstances as a whole, and concluded that the Visa should be cancelled[20].
[20] CB 226, at [39].
Extension of Time Application
As indicated above, the Applicant seeks an extension of time in order to commence the Substantive Application. In the Substantive Application, the Applicant indicated that he needed an extension of time and set out the “grounds” of why he considered it to be in the interests of the administration of justice for the extension to be granted[21]. Those grounds are as follows:
I had been passing from very hard time after the cancellation of my visa. My parents spent lot of money on my studies and they wish me to return to India with complete qualification to start my career. So I went in depression. I was not having work rights. So I stayed home for most of the time which aggravated my depression. I got medical advise from the doctor but recovery was bit slow. I was not having sufficient savings with me to pay the fee for the Federal Court to lodge an application. Now I could arrange the money to lodge the application. These facts delayed my application for the reasons beyond my control. So requesting for extension of time.
(Without alteration)
[21] Section 477(2)(a) of the Act.
The Applicant has not satisfied the requirements of s.477(1) of the Act as he lodged his Substantive Application outside of the prescribed 35 day time limit.
Section 477(2) of the Act provides that the Court may order that the 35 day period be extended if the conditions in ss.477(2)(a) and (b) are satisfied. Section 477(2) of the Act provides:
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The Minister, in its role as a model litigant, noted that the matters the Court will most often consider in relation to s.477(2) of the Act are[22]:
a)Whether the Applicant has provided an acceptable explanation for the delay.
b)Whether the Minister would suffer prejudice.
c)The merits of the judicial review application.
[22] Transcript T6: L41-P7: L9; SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281, at [15].
The Court will now consider these in turn.
Consideration
Explanation for the delay
The Substantive Application was filed in this Court on 29 April 2016. The application should have been made within the 35 day period as prescribed by s.477(1) of the Act. The Applicant is therefore some six months out of time.
In the Extension of Time Application, the Applicant explained the reason for the delay in commencing the Substantive Application was that he was suffering from depression. There is no evidence to support this assertion. No evidence from a medical practitioner or a psychologist, or at the very least, evidence on affidavit has been provided by the Applicant to support this claim.
Without evidence before it, the Court is not satisfied that the Applicant’s explanation that he had suffered depression at some point after the cancellation of the Visa is acceptable.
The Applicant also stated that a reason for the delay in commencing the Substantive Application was that he lacked the financial means to file the material in the Court. Again, no financial evidence has been provided by the Applicant to support this claim. It was open to the Applicant to contact the Court to discuss if there were any options available to him, notwithstanding his alleged financial incapacity.
The Court is not satisfied that the Applicant’s explanation of lacking financial means to commence the Substantive Application is acceptable, let alone sufficient to mitigate the extent of the delay.
Finally, at the hearing before this Court, the Applicant advanced a further reason for the delay in commencing the Substantive Application. The Applicant stated that he was misguided by his migration agent[23]. It was unclear whether the Applicant was suggesting he had been misguided in the course of the review by the migration agent (noting there were two), or whether he was suggesting that the Second Representative did not tell him about the time limit to lodge a review. In relation to the former, this will be addressed below. In relation to the latter, given there is no evidence before the Court, the Court is not prepared to accept the Applicant’s submission. At no time previously did the Applicant suggest that the Second Representative failed to tell him of the time limit to file an application.
[23] Transcript T4: L39-45.
Although not specifically raised by the Applicant, the Minister, in its role as a model litigant, noted that the Applicant had also applied to the Minister for ministerial intervention pursuant to s.351 of the Act on 20 October 2015, being nearly a month after the Tribunal’s Decision[24]. On 19 April 2016, the Department responded to that request, indicating that it would not intervene[25]. There is clear authority that the Applicant applying for ministerial intervention under s.351 of the Act is not an acceptable explanation for the failure to commence an application for judicial review in time: Vu v Minister for Immigration and Citizenship (2008) 101 ALR 211; [2008] FCAFC 59, at 220 [29].
[24] CB 228-230.
[25] CB 232.
In this case, no adequate explanation for the delay has been proffered, nor evidence to support any explanation provided to the Court. All the above explanations weigh against the granting of an extension.
Prejudice
The Minister concedes that there is minimal prejudice to the Minister. The Minister did put forward that there is, nevertheless, prejudice to the desirability of the proceedings being resolved and extensions of time not being sought in this way[26]. The Court is prepared to find that this weighs in favour of an extension being granted.
[26] Transcript T7: L42-46.
Merits
The merits of the Substantive Application carry the most weight in determining whether an extension should be granted. When considering the merits of the Substantive Application, the Court has done so at a reasonably impressionistic level: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; (2015) 242 FCR 585, at [62]-[63].
The Applicant was unrepresented before this Court and without the assistance of an interpreter. The Court notes that the Applicant advised the Court in his Substantive Application that he does not require an interpreter. The Court is satisfied that the Applicant was able to effectively participate in the proceedings.
The Substantive Application contains one ground as follows:
Judicial error in AAT Review and DIBP decision for failure to consider me a genuine student. I arrived in Australia as international student and got enrolled with education provider to continue my studies. As the level of studies in degree course was too hard for me, so I changed my studies in Diploma Course. The department did not consider my genuine intention to study diploma course followed by a degree course.
Further, my hardship to continue studies in degree course were not appreciated. I wish to complete my degree course but decided to finish diploma followed by degree course. I meet with the guidelines of genuine student as issued by the Minister for Immigration.
(Without alteration)
The sole ground does not articulate clearly what the Applicant is alleging. The Applicant was provided an opportunity to file an amended application with proper particulars of the grounds of the Substantive Application by Orders of a Registrar of this Court, dated 28 September 2016. Despite this, no further material was filed and the sole ground of review remains unparticularised.
The Applicant’s main complaints here appear to be that:
a)The Tribunal did not consider that the Applicant held a genuine intention to study an approved course in the future; and
b)The Tribunal did not consider the “hardship” suffered by the Applicant.
As to the Applicant’s statement that the Tribunal did not consider his genuine intention to study in the future, the Tribunal did consider this. The Tribunal referred to it at [36]-[38] of the Tribunal’s Decision. The Tribunal expressly found that it did not consider the Applicant to be a genuine student and that it placed no weight on the Applicant’s evidence that if the Visa was re-instated, the Applicant would study at a higher degree level.
Given the Tribunal expressly considered the Applicant’s genuine intention to study, the Applicant is simply disagreeing with the Tribunal’s finding that he was not a genuine student. Disagreement does not amount to jurisdictional error. The Court has no jurisdiction to review the merits of a decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Further, the fact that the Tribunal placed no weight on the Applicant’s future intention to study was a matter for the Tribunal and was open to it in light of the concerns it had.
This first part of the Applicant’s ground of review, accordingly, has insufficient merit.
As to the second point, which eludes to the fact the Tribunal did not consider the evidence of the Applicant about his “hardship”, at the hearing before this Court, the Applicant indicated that he was aware “that was [his] fault” and that he made a mistake by not continuing to be enrolled in an approved course[27]. Before the Tribunal, the Applicant said that he was aware which course he had to enrol in to continue to satisfy the condition of the Visa[28]. The Applicant admitted before the Tribunal that he was aware of the condition that required him to be enrolled in a higher education sector course at all relevant times[29], and yet, failed to remain enrolled at all relevant times[30]. Before this Court, the Applicant did not advance any argument regarding “hardship” suffered by him in not continuing his enrolled courses, save for that he had chosen the wrong course.
[27] Transcript T4: L43-45.
[28] CB 220, at [7].
[29] CB 220, at [6]-[7].
[30] CB 221, at [13].
To the extent this submission refers to hardship the Applicant would face in not continuing in a higher degree course (and the Visa therefore being cancelled), the Tribunal specifically asked the Applicant about hardship[31] and considered this in making its final conclusion[32].
[31] CB 224, at [28].
[32] CB 226, at [38].
The second part of the Applicant’s ground of review, accordingly, is without merit.
The Court notes that the Applicant had two migration agents. At the hearing before this Court, the Applicant eluded to another ground for review as:
[…] misguidance from the agent, and I wasn’t aware of what to do, and then they just cancelled my visa, and I said that was my fault. I should be aware which course I would have to do […][33]
[33] Transcript T4: L43-45.
These comments about the Applicant’s migration agent were not supported by any evidence. The Tribunal expressly referred to these same concerns, or rather, that the Applicant claimed he had been guided by a migration agent[34]. The Applicant claims that he was “misguided”, this does not rise to an allegation of fraud. Further, the Applicant (before the Tribunal and before this Court) took responsibility for his “mistake” in not remaining enrolled in a higher degree course at all relevant times. He did not attribute his mistake to his migration agents at any time. The evidence before the Tribunal, which it referred to repeatedly, was that the Applicant conceded that he was aware that he was required to be enrolled in a higher degree course. Therefore, the extent to which there was any “misguidance” is reneged by the Applicant’s own evidence.
[34] CB 247, at [24].
The ground of review arising from the Applicant’s oral submissions is weak and no jurisdictional error arises.
The Minister provided submissions that addressed why there was no error of law or denial of procedural fairness in the Tribunal’s Decision. The Court agrees with those submissions. The Tribunal properly and reasonably applied the legislative criterion and afforded the Applicant the procedural fairness obligations contained in div.3 of pt.5 of the Act.
The Court is satisfied that there is no arguable case that the Tribunal denied the Applicant procedural fairness or acted unreasonably in conducting the review in the manner that it did.
Conclusion
Due to the lack of valid explanation and lack of merit in the Substantive Application, the Court is not satisfied that it is in the interest of the administration of justice to extend time under s.477(2) of the Act.
The Extension of Time Application is refused.
The Minister seeks costs in the sum of $7,467, which is the scale costs allowed in pt.3, div.1 of sch.1 to the Federal Circuit Court Rules 2001 (Cth). An Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $7,467.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge C.E. Kirton QC
Associate:
Date: 27 May 2020
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