Singh v Minister for Immigration
[2015] FCCA 2814
•23 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2814 |
| Catchwords: MIGRATION – Application for a Student (Temporary) (Class TU) visa – review of decision of Refugee Review Tribunal – whether the Tribunal considered all material before it – applicant failed to satisfy the criteria for a subclass 573 visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116(1)(b), 360, 362B(1A), 379A Migration Regulations 1994 (Cth), reg.1.04A, cl.573.111, cl.573.223, cl.573.231, 573.611(a) of sch.2, cl.8516 of sch.8 |
| Applicant: | AMRITPAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 577 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 9 October 2015 |
| Date of Last Submission: | 9 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2015 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Ms N. Blake, Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 577 of 2015
| AMRITPAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant was granted a Student (Temporary) (Class TU) visa in January 2013. That class of visa has a number of subclasses. The particular subclass for which the applicant qualified was 573, Higher Education Sector visa. The criteria for the grant of that visa were contained in subclass 573 in sch.2 to the Migration Regulations 1994 (Cth).
There were, relevantly, two ways in which the applicant could satisfy the criteria for the grant of the visa: first, by being an “eligible higher degree student” or, by satisfying either sub-cl.573.223(2) or cl.573.231. In order to be an “eligible higher degree student” an applicant must be enrolled in a principal course of study to the award of, relevantly, a bachelor’s degree: cl.573.111.
Clause 573.231 requires that:
(a)the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b)the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i)made under regulation 1.40A; and
(ii)in force at the time the application was made.
The types of courses that were specified by the Minister under regulation 1.40A included, amongst other things, a bachelor degree.
In summary, the applicant could meet the criteria for the grant of the visa by being enrolled in a principal course of study to the award of a bachelor’s degree (and thus be an eligible higher degree student) or by being enrolled in or be the subject of a current offer of enrolment in a course such as a bachelor degree (and so meeting the criteria in sub-cl.573.223(2) or cl.573.231).
A condition of the visa was that the visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa: see sub-cl.573.611(a) in sch.2 and cl.8516 in sch.8 to the Regulations.
The Minister has power to cancel a visa if he or she is satisfied that the visa holder has not complied with a condition of the visa: s.116(1)(b) Migration Act1958 (Cth).
Delegate’s decision
On 5 September 2014 a delegate of the Minister wrote to the applicant indicating that she was considering cancelling his visa. The notice included the following:
…
According to the Provider Registration and International Student Management Systems (PRISMS), it appears that you are no longer enrolled in a bachelor’s degree or masters degree course and you are not enrolled in 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 regulation 1.40A.
Based on this information, it appears that you have not continued to be a person who would satisfy either subclauses 573.231 or 573.223(1A). As such, it appears that you have not continued to be a person who would satisfy the primary criteria for the grant of the visa and have not complied with condition 8516.
…
Mr Singh responded to this on 10 September 2014. He wrote that he had started studying on the Gold Coast but when he started feeling homesick he received advice that he should go back to India. On that basis, the applicant requested cancellation of his certificate of enrolment from his education provider. However, he went to Sydney to meet some friends and began to feel better there. For that reason, he enrolled in a Diploma of Management so that he could later apply for a bachelor’s degree in Management and so further his career. He also applied for a subclass 572 visa and commenced his studies. However the subclass 572 visa was refused. He explained that if he returned to India his family would lose trust in him and would not support his studies in the future. He accepted that he had made mistakes under the influence of misguidance but that he would not make any further mistakes.
The delegate wrote to the applicant’s education provider asking about his attendance in his Diploma of Management course and his progress in that course. The education provider responded on 24 November 2014 explaining that the applicant had failed to maintain satisfactory attendance and that he had been reported on 22 November 2014. The provider noted that the applicant had passed only one unit out of eight units so far and he failed to take support when asked to do so in respect of the failed units in the October term break. On 4 October he was sent an unsatisfactory course progress warning. As a result, his enrolment was cancelled.
In the meantime, on 18 November 2014 the same delegate sent the applicant a further notice of intention to consider cancellation. The relevant terms of that notice were those set out at [8] above.
On 24 November 2014 the applicant responded to the notice. He referred to his earlier letter and added that he was looking forward to enrolling in a bachelor’s degree in the field of Business Management. He explained that he had experienced many hardships in his childhood days, that his father and had passed away when he was just eight years old and that he, his brother and mother were supported by his grandfather.
On 28 November 2014 the delegate made a decision to cancel the applicant’s visa. The delegate found that the applicant’s enrolment in English Language Programs for International Students had been cancelled on 16 April 2014 and that his enrolment in a Bachelor of Information Technology was cancelled on 7 November 2014. In those circumstances she found that the applicant had breached condition 8516 because he did not meet sub-cl.573.223(1A) or cl.573.231. She then considered the exercise of the power to cancel and, on the basis that the reasons for cancelling the visa outweighed the reasons for not cancelling, decided to cancel the visa.
Tribunal’s decision
The applicant applied to the Tribunal for review of the delegate’s decision. In his application he gave an email address for the purposes of correspondence. On 13 January 2015 the Tribunal sent an invitation to the applicant at the email address provided, to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The applicant did not appear at that hearing and the Tribunal decided to proceed to make a decision without taking any further steps to enable him to do so. The Tribunal made its decision on 2 February 2015.
The Tribunal found that the applicant ceased to be a person who satisfied the primary criteria for a subclass 573 visa because, when enrolment in the bachelor’s degree course was cancelled on 7 November 2014, he ceased to be enrolled in or be the subject of an offer of enrolment in, an eligible course and he was not an eligible higher degree student. For that reason the Tribunal found that the ground of cancellation in s.116(1)(b) existed. It then turned to consider the exercise of that power.
In this respect the Tribunal found that the applicant was not fulfilling the purpose of his travel to and stay in Australia because he had not engaged in higher education study here. It also considered the circumstances in which the breach occurred as well as the reasons and extent of the breach being the matters referred to by the applicant in his responses to the notices of intention to cancel.
The Tribunal found that the applicant had never had a genuine desire to leave Australia and that he used a planned departure as a reason to seek to withdraw from his initial course because he preferred to do a different one. It was not convinced that the applicant’s claimed depression and homesickness prevented him from maintaining enrolment in a higher education course but allowed him to engage in study at the diploma level.
The Tribunal found that, if the applicant had any intention of engaging in higher education study, he could have done so in Sydney rather than enrolling in a diploma course. Further, it did not accept that the applicant was a victim of bad advice and misguidance but rather that he had made a conscious decision to transfer to a diploma course, and in any event the responsibility for complying with his visa conditions lay on him as a visa holder.
The Tribunal concluded that the breach did not occur in circumstances beyond the applicant’s control and found that there were no compassionate or extenuating circumstances in the case. The Tribunal was not satisfied that any hardship would be caused by the cancellation. Furthermore the Tribunal was not aware of any adverse conduct of the applicant towards the Department or that another person’s visa may be subject to any consequential cancellations under s.140. The applicant did not claim any relevant international obligations would be breached or make any claim of family violence.
Having considered all of the circumstances of the case, the Tribunal concluded that the visa should be cancelled and so affirmed the decision of the delegate.
Grounds of application
The applicant now applies for judicial review of the Tribunal’s decision. In order to succeed, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error.
The grounds in the application are:
1.The delegate of the Minister for Immigration cancelled my Subclass 573 Higher Education Sector visa under s.116(1) of the Migration Act 1958 (the Act).
2.I enrolled into 572 course while on a 573 visa, I got Diploma of Management and my coe for Bachelor of IT was cancelled. I will enrol in a Bachelor course after completion of my diploma.
3.I will provide the coe of AQF Bachelor Level to the case officer which will make my course a diploma leading to a degree and will be a 573 compliant. I will start my bachelor degree after the completion of my diploma of Management.
These “grounds” are really only statements of fact or intention and have no bearing on the legality of the Tribunal’s decision. Indeed, these statements make plain that the applicant does not contest that his enrolment in a bachelor’s degree was cancelled. As I have mentioned above, it was a criterion for the grant of the subclass 573 visa that the applicant be enrolled in a particular type of course. The only course in which the applicant was enrolled which enabled him to satisfy that criterion was the Bachelor of Information Technology course. Thus, as only the primary criteria for the grant of the visa were relevant, when the applicant’s enrolment in that course was cancelled he did not “continue to be a person who would satisfy the primary… criteria… for the grant of the visa.” For that reason, the Tribunal was correct to conclude that the applicant had breached a condition of his visa and that the power to cancel that visa was thus enlivened.
Consideration
Once the power to cancel the applicant’s visa was enlivened the Tribunal was required to consider all of the relevant circumstances and weigh them in order to determine whether or not to exercise that power. It did precisely that and I can see no error in the way that it went about that process.
I can also see no other error in the Tribunal decision. The applicant was properly invited to attend a hearing under s.360 of the Act by way of letters sent to the email address notified to it by the applicant in his application form: subs-ss.379A(5)(b) and (d). When the applicant failed to appear, before the Tribunal on the day on which he was scheduled to appear it was entitled to make a decision on the review without taking any further action to allow or unable the applicant to appear before it: s.362B(1A). There is nothing to suggest that its decision to do so was in any way unreasonable.
Finally, the Tribunal appeared to have available to it the applicant’s education provider’s response to the delegate’s request, and, on one view, the information in that response was adverse to the applicant. However, there is nothing to suggest that the Tribunal formed the view at any stage of the review that the information in that respondent would be the reason or part of the reason for its decision: see s.359A(1).
There is no jurisdictional error affecting the Tribunal’s decision. The application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 23 October 2015
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