SINGH v Minister for Immigration - [2015] FCCA 3486

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3486

Catchwords:
MIGRATION – Migration Review Tribunal – visa – student visa – visa cancellation.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12 & 44.13(1)

Migration Act 1958 (Cth), s.116

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Tran v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

Applicant:

GURPREET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 110 of 2015

Judgment of:

Judge Heffernan

Hearing date:

16 December 2015

Date of Last Submission:

16 December 2015

Delivered at:

Adelaide

Delivered on:

16 December 2015

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondents:

Ms J Noble for Sparke Helmore Lawyers

ORDERS

The application is dismissed.
The applicant do pay the first respondent’s costs fixed in the sum of THREE THOUSAND, FOUR HUNDRED AND SIXTEEN DOLLARS ($3,416).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 110 of 2015

GURPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

This is an application brought under s.476 of the Migration Act 1958 (Cth) (‘the Act’) for the issue of a constitutional writ to quash a decision of the Migration Review Tribunal (‘the Tribunal’) dated 25 February 2015. The Tribunal affirmed the decision of a delegate of the minister dated 4 August 2014 cancelling the applicant’s higher education sector visa subclass 573 under s.116 of the Act.
The matter comes before me today as a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). The applicant appears unrepresented and has made submissions with the assistance of an interpreter of Punjabi and English. The applicant advances a single ground in his application. That ground is expressed in a narrative form, and I summarise it for the purposes of this hearing as follows:
(1)The applicant complains that the Tribunal erred in finding that his breach of condition 8516 of his visa did not occur in exceptional circumstances that were beyond his control.
(2)The Tribunal erred in failing to give sufficient weight to his mental status, the fact that his claimed depression was beyond his control, and the fact that he had unsuccessfully supplied for a subclass 572 visa.
I summarised the application in the above terms, and the applicant agreed that this was an accurate summary of his ground.
During the course of his oral submission, the applicant claimed that he was not aware of the conditions of his visa and that he had been badly advised to the effect that his actions would not amount to a breach of a condition. These matters were not raised before the Tribunal. To the contrary, I note, as submitted by counsel for the first respondent, that the Tribunal found that the applicant conceded he was aware of the conditions of the visa, and that he had not taken professional advice before breaching a condition of his visa.
I find that I am not able to take account of this explanation because it was not a matter raised by the Tribunal. If I was to take it into account, I would, in effect, be conducting a merits review. However, those explanations advanced this morning by the applicant would not, in my view, be capable of establishing a judicial error on the part of the Tribunal.
For the purpose of a show cause hearing, I am confined by r.44.13(1) of the Rules to considering the relief sought and the grounds mentioned in his application. There has been no application made by the applicant to amend his application. As I explained to the applicant, the purpose of this hearing is to give him an opportunity to satisfy the Court, if he is able to do so, that he has an arguable case that the decision of the Tribunal has been affected by jurisdictional error. I explained to the applicant at the commencement of these proceedings what was meant by the term jurisdictional error. I remind myself that an arguable case means simply that, and that the applicant is not required to finally satisfy the Court that the relief he seeks should be granted. The chronology of this matter is as follows. In May 2014, the applicant entered Australia as the holder of a Higher Education Sector visa. On 13 June 2014, the applicant applied for a subclass 572 Vocational Education and Training Sector visa. On 5 September 2014, a Notice of Intention to Consider Cancellation was sent to the applicant. The applicant did not respond to that Notice.
On 16 September 2014, a delegate of the Minister cancelled the application’s visa under s.116 of the Act. The applicant made an application to the Migration Review Tribunal on 23 September 2014. On 25 February 2015, the Tribunal affirmed the delegate’s decision. It is the decision of the Tribunal that the applicant seeks to review. On 27 March 2015, the applicant brought his application for judicial review in this Court.
I have heard submissions in this matter this morning. The applicant submitted to me that he had been badly advised about his rights to act in a way contrary to his visa conditions. He submitted that his only intention was to move from Queensland to South Australia and that he had insufficient time to enrol in a higher education course. His said that his own intention was simply to complete his term of study here and then return to India. He says that he has struggled here financially and that to return to India now would be disastrous for him. He relies on the ground identified in his application.
The first respondent submits that the applicant has not identified any ground of judicial review in his application and that the application should be dismissed.
With respect to the specific complaints made by the applicant in his application, the first respondent submits to the contrary that the Tribunal considered his mental health and what the applicant submits were his extenuating personal circumstances. The first respondent submits that the discretion conferred by the Act is not confined.
The first respondent submits that the discretion given to the Tribunal by the Act is not restricted in any way and that the matters it was required to take into account were restricted only by factors which might possibly be implied by the subject matter, the scope and the purpose of the Migration Act. The first respondent submits that the Tribunal was not required to take into account extenuating or compassionate circumstances but that it did so nonetheless. It was submitted by the first respondent that the weight to be given to the material before it was entirely a matter for the Tribunal.
The applicant does not dispute that he was in breach of condition 8516 of his visa. Put simply, he says that, for the reasons he gave to the Tribunal and identified in the grounds of his application, his breach should have been excused.
I have considered the ground advanced by the applicant, the decision record of the Migration Review Tribunal, and the submissions made by both the applicant and the first respondent. I am not satisfied the applicant has established that he has an arguable case that he is entitled to the relief that he seeks. In effect, the applicant seeks to have this court engage in an impermissible merits review. The question of the weight to be given to the factors identified by the applicant as the extenuating personal circumstances that called for compassion was entirely a matter for the Tribunal.
I have had regard to the decision of the High Court in the Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 and the authority cited by the first respondent in its Outline of Submissions, Tran v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297. Both of those authorities support this proposition.
Taking the applicant’s ground for review at its broadest, there is no arguable case that the Tribunal has failed to have regard to a relevant matter or relied on any irrelevant matter in making the decision that it did. There is no arguable case that the decision was irrational, unreasonable or illogical.
Accordingly, I dismiss the application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate:

Date: 23 December 2015