SINGH v Minister for Immigration

[2015] FCCA 2689

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2689

Catchwords:
MIGRATION – Whether decision of Tribunal affirming Delegate’s decision to cancel student visa under s.116 of Migration Act 1958 affected by jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 116(1)(b), 127

Migration Regulations 1994 (Cth), cl.572.611 of Sch.2, cl.8202 of Sch.8, cl.8202(2), cl.8202(2)(a) of Sch.8

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: GURJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1441 of 2014

Judgment of: Judge Jones

Hearing date: 26 August 2015

Date of Last Submission: 26 August 2015

Delivered at: Melbourne

Delivered on: 5 October 2015

REPRESENTATION

Solicitors for the Applicant: Self Represented

Counsel for the Respondents: Mr McCredden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of first respondent be amended to read the Administrative Appeals Tribunal.

2. The application filed on 21 July 2014 be dismissed.

3. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1441 of 2014

GURJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the (then) Migration Review Tribunal (“Tribunal”) dated 28 June 2014, affirming a decision of the delegate of the first respondent to cancel the applicant’s Student (Temporary) (Class TU) visa (“visa”).

Background

1. The applicant is a citizen of India and was first granted a student visa on 2 April 2009 (CB 20). On 10 April 2011, the applicant applied for a further student visa (CB 1-7). In his application, the applicant nominated a migration agent, Tejinder Kalra to receive communications about his application on his behalf (CB 3 to 4).

2. In June 2011, the applicant was granted a further visa (CB 35 to 39), which was valid until 20 April 2013. The visa was subject to various conditions, including, relevantly, a condition that the applicant remain enrolled in a registered course and achieve satisfactory course progress and satisfactory course attendance (CB 38). This condition is one of the conditions prescribed by cl.572.611 of Sch.2 and cl.8202 of Sch.8 of the Migration Regulations 1994 (Cth) (“the Regulations”).

3. By email dated 30 January 2013, an officer of the first respondent informed the applicant as follows (CB 42):

   “As our records show you are not currently enrolled in an approved course of study, nor have you been for some time you are in danger of having your student visa cancelled.

   Please contact me by 7 Feb 2013 or cancellation processes will be started.”

4. The applicant’s substantive response is conveyed by correspondence forwarded by email on 7 February 2013 (CB 52 to 58) in which he states:

   a)his father had suffered financial stress and was unable to support him;

   b)he experienced depression and thoughts of self- harm;

   c)he could not afford a doctor;

   d)he was brought medication from India by a friend (a copy of photographs of unspecified medication foils were attached to the correspondence);

   e)his parents sold a property and he is now financially supported; and

   f)he is doing well now and intends to re-enrol in the new course of study. 

5. By later email that day, the case officer requested the following information: his last day of study, why he did not contact the Department, whether he has enrolled or when he will enrol in an approved course of study (CB 59). The applicant responded by email stating that he did not remember his last day of study as he was depressed, that he has sent his application to the College for enrolment and “will definitely let you know when I get my coe” (CB 59).

6. On 11 February 2013, the case officer, as delegate of the first respondent, served on the applicant pursuant to s.116 of the Migration Act 1958 (Cth) (“the Act”), a “notice of intention to consider cancellation” (NOICC) of his visa (CB 62 to 81). The NOICC, stated:

   a)the Minister was considering whether to cancel his visa pursuant to s.116(1)(b) of the Act, because he appeared not to have complied with the condition of that visa;

   b)the relevant condition was that set out in cl.8202(2)(a) of Sch.8 of the Regulations; namely, that the holder of the visa be enrolled in a registered course; and

   c)information held by the Department indicated the applicant was not currently enrolled, and had not been enrolled in a registered course after 6 March 2012.

7. The applicant was informed that (CB 64):

   “On 11/2/2013 the Angad Australian Institute of Technology Pty Ltd notified us you did not commence studies. Further checks on our records indicate you are not currently enrolled in a registered course. Therefore, it appears you do not meet the requirements of condition 8202(2)(a).

   You finished studying on 6/03/2012, so that is nearly one year where you have held a student visa and did not abide by your visa conditions.”

8. On 19 February 2013, the Delegate cancelled the applicant’s visa (CB 108 to 111). In the decision record, the delegate stated:

   “The student is not currently enrolled as of 19/2/2013 and finished studying on 6/3/2012. Client responded on 7/2/13 to email saying he was depressed and would reenrol but no enrolment recorded and no response to a NOICC issued 11/2/2013.”

9. The applicant was notified of the cancellation of his visa on 19 February 2013, in accordance with s.127 of the Act.

10. On 22 February 2013, the applicant applied on his own behalf to the Tribunal for review of the Delegate’s decision (CB 112 to 132). He specified that communication should be sent to his postal address at 4/41 Dover Street, Flemington in the State of Victoria and email address, [email protected] (CB 119).

11. By correspondence dated 25 February 2013, the Tribunal acknowledged receipt of the applicant’s application for review, informing him that he should tell the Tribunal immediately if he changed his contact details or if his personal circumstances changed (CB 133).

12. On 21 May 2014, the Tribunal invited the applicant to a hearing on 18 June 2014. The letter was sent by post to the postal address indicated on the applicant’s application for review (CB 148 to 154). In that invitation, the Tribunal identified the following issue which was likely to arise for consideration during the hearing; that being that he did not comply with his visa condition 8202, and that the non-compliance was not due to exceptional circumstances beyond his control (CB 148). He was invited to provide to the Tribunal any documents he considered relevant, including specified documents, at least seven days prior to the scheduled hearing. The correspondence informed the applicant that if he was unable to attend the hearing he should advise the Tribunal as soon as possible, but that the Tribunal will only change the date if it was satisfied that he had a very good reason for being granted an adjournment. He was informed that if an adjournment was not granted and he failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it (CB 149).

13. There is a case note dated 18 June 2014, which records (CB 156):

    “Applicant has contacted the Tribunal to request a progress update… .

    I informed applicant that his case was scheduled for a hearing today.

    Applicant stated he was not aware of the hearing. I relayed the address to which applicant informed he had moved.

    I asked applicant if he had notified the tribunal. Applicant stated yes.

    I informed applicant that there was no record of a request to update contact details. Applicant was vague stating he had called the Tribunal a few months prior (There are no case notes to confirm this call).

    I have emailed a courtesy copy of the hearing invitation alongside a change of contact details form for him to complete and return.”

14. Ultimately, the applicant attended the Tribunal hearing that day. He was permitted to provide any further documentary information he wished the Tribunal to consider by 27 June 2014 (CB 159). By facsimile received by the Tribunal on 26 June 2014, the applicant provided evidence of his past academic studies in Australia and a statutory declaration in which he declared that a “Mr Harry” arranged his admission to the Angad Institute, that he was surprised when he received a letter from the Department stating they had cancelled his visa, even though he had paid fees and had been going to the College. He asserted that Mr Harry purported to be a migration agent, but discovered later that his claim to be a migration agent was a forgery (CB 161 to 173).

Statutory scheme

1. Section 116 of the Act relevantly provides:

   116 Power to cancel

   (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   ………………………………………………

   (b) its holder has not complied with a condition of the visa; or

2. Pursuant to cl.572.611 of Sch.2 of the Regulations, the condition set out in cl.8202 was a condition of the applicant’s visa. Clause 8202 of Sch.8 of the Regulations relevantly provides:

   (1)The holder (other than the holder of a Subclass 560 (Student) visa who is a Foreign Affairs student or the holder of a Subclass 576 (Foreign Affairs or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2)     A holder meets the requirements of this subclause if:

   (a)     the holder is enrolled in a registered course; or

   ……………………………………….

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i)     section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)     standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

   (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i)     section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)     standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

Tribunal decision

1. The Tribunal summarised the applicant’s evidence as follows:

   a)he arrived in Australia on 10 April 2009 as the holder of a subclass 572 visa;

   b)he completed an ELICOS course and completed two certificate level courses at the Victorian Institute of Culinary Arts and Technology (CB 176 [3]):

   i)Certificate III in Hospitality (15 January 2011); and

   ii)Certificate IV in Hospitality (16 July 2011);

   c)he was not enrolled in a registered course at the date the NOICC was issued (CB 176 [5]) ;

   d)after completing the Certificate IV in Hospitality he met Mr Harry, who arranged for his admission to the Angad Institute. He paid Mr Harry the college fees for a confirmation of enrolment, but he never gave it to him. He was surprised when his visa was cancelled, because he believed he had paid the fees and had been going to College. When he saw Mr Harry about the cancellation, he told him not to be concerned as he would apply for review of the decision to the Tribunal. He paid Mr Harry for his services, but later found out that he is a “forged migration agent” and that he had “misguided him all the way.” (CB 176 to 177 [7]);

   e)he has experienced great hardship since the date of the cancellation of his visa as he cannot work, study or travel. His father is suffering from diabetes. He wants to become a chef here in Australia and not return to India.

2. It is apparent from the Decision Record that when the applicant gave evidence that he was not enrolled in a registered course when the NOICC was issued, the Tribunal informed the applicant that his failure to maintain enrolment constituted a breach of visa condition 8202 and that it must consider whether to exercise its discretion to cancel the visa. The applicant was informed that the Tribunal would consider guidelines issued by the Department in the Procedures Advice Manual (PAM3) and outlined to the applicant relevant aspects of the guidelines, inviting the applicant to raise any matters he wished (CB 176 [6]).

3. The Tribunal found that, on the evidence before it, the applicant was not enrolled in a registered course from 6 March 2012 to 11 February 2013 and, accordingly, the applicant had not complied with condition 8202(2) of his visa.

4. Having found that the applicant had not complied with the condition of the visa, the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal stated that it considered the applicant’s evidence in relation to this question, as well as the policy guidelines contained in the PAM3. It set out the matters which it considered were relevant considerations, these being (CB 178 [15]):

   a)the purpose of the visa holder’s travel to and stay in Australia;

   b)if cancellation is being considered because of a breach of the visa condition – the reason for, and extent of, the breach; and

   c)any other relevant matters raised by the visa holder.

5. The Tribunal noted that the applicant travelled to Australia to study. With respect to the second consideration the Tribunal stated (CB 178 [15]):

   “The Tribunal considers that the applicant’s breach of condition 8202 was significant in that he failed to maintain his enrolment in a registered course for a period of almost 12 months. He was granted a Subclass 572 visa on 17 June 2011 which was valid until 20 April 2013 and for 12 months of the duration of his visa he was not enrolled in a course of study from 6 March 2012 to 11 February 2013.”

6. With respect to the evidence given by the applicant as to why the visa should not be cancelled, the Tribunal stated (CB 178  [15]):

   “The Tribunal accepts the applicant’s evidence that he sought the advice of and paid for the services of a person who held himself out as a migration agent. The Tribunal does not however accept the applicant’s evidence that he was attending College and believed he was enrolled for a period of almost 12 months and that therefore he was surprised to receive the notice of intention to consider cancellation (NOICC) from the Department. The Tribunal notes that in his response to the Department’s invitation to him to respond to the NOICC and provide reasons why his non-compliance was due to exceptional circumstances beyond his control, he sent an email to the Department stating that he was depressed and would re-enrol but he did not do so.”

7. The Tribunal found that the applicant’s period of non-enrolment and the consequent extent of the breach of a condition of his visa outweighed the circumstances the applicant gave for his non-enrolment. The Tribunal decided to exercise its discretion to cancel the visa (CB 178 [16] to [17]).

Judicial review

1. In his application for judicial review filed on 17 July 2014, the applicant stated in his grounds of application:

   1.I was in depressed coz [sic] of my Family and Personal Problems

   2.My migration agent didnt [sic] proceed my Documents to Immigration in certain time.

   3.I paid to my migration Agent For his all services But he didn’t processed my Documents and didn’t tell me the proper way to do the things.

2. In the proceedings, as the applicant was self- represented, I explained to him the nature of judicial review and the difference of such a review with the merits review conducted by the Tribunal.  I explained that the function of the Court was to examine the Tribunal’s decision and decide whether it was affected by what I described as “serious legal mistake”; that is, jurisdictional error.  I noted his grounds of application for judicial review and asked him to tell me in his words, why he says that the Tribunal decision in affirming the Delegate’s decision to cancel his visa was “a serious legal mistake.” The applicant responded that he had given the Tribunal all his documents and then the Tribunal had given him five days to give it more documents about his depression or academic studies. He said he provided all the documents to the Tribunal, but, nevertheless, the Tribunal said it was not enough. He said he could not provide any more documents than those he had provided.

3. I take the applicant to be complaining that the Tribunal exercised its discretion to cancel his visa unreasonably. This is because he did not dispute that at the relevant time he was not enrolled in a registered course of study and, consequently, did not comply with a visa condition in cl.8202 of Sch.8 of the Regulations.

4. The applicant most certainly provided further documentation to the Tribunal after the hearing, however, this was evidence regarding his past studies and not evidence that he was currently enrolled in a course of study. In these circumstances, the Tribunal was bound to find that the applicant had not complied with the relevant visa condition 8202.

5. The first respondent submits that the applicant’s grounds for judicial review focus on the merits of the Tribunal’s decision and are not amenable to judicial review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

6. The first matter that the applicant raises was that he was depressed because of his family circumstances. In its Decision Record, the Tribunal identified the applicant’s response to the NOICC, in which he said he was depressed and would re-enrol (CB 176 [4]). The Tribunal also identified the applicant’s evidence regarding his personal circumstances (see above [18(e)]). Having identified this evidence, the Tribunal proceeded to consider it (see above [23]). In making its ultimate finding in exercising its discretion, the Tribunal specifically stated that it weighed the applicant’s evidence regarding his personal circumstances against the applicant’s period of non-compliance with the visa condition. The reasoning of the Tribunal was logical. It was for the Tribunal to weigh the evidence before it. I note that the applicant attached to an email sent to an officer of the first respondent copies of photographs of foils of unspecified medication (CB 56 to 58). At no point did the applicant provide expert medical evidence from a treating medical practitioner regarding his medical condition. There is nothing arbitrary about the manner in which it went about considering the evidence and balancing the considerations in deciding how to exercise its discretion under the Act.

7. The second and third grounds specified by the applicant, relate to his experiences with the migration agent. Once again the Tribunal first identified his evidence in relation to that issue (see above [18(d)]). The Tribunal then specifically addressed this evidence, stating that it accepted the applicant’s evidence that he sought the advice of and paid for the services of a person who held himself out as a migration agent. What the Tribunal did not accept, however, was his evidence that he was attending College and believed he was enrolled for a period of almost 12 months, and that, therefore, he was surprised when he received the NOICC. Once again, the Tribunal’s disbelief of the applicant’s evidence that he believed he was enrolled was a perfectly reasonable conclusion to arrive at and it was not unreasonable in a legal sense.

Conclusion

1. In these circumstances, I find that the decision of the Tribunal does not give rise to jurisdictional error.

1. Accordingly, I will dismiss the application for judicial review filed on 17 July 2014 with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  5 October 2015