Singh v Minister for Immigration

[2015] FCCA 2844

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2844

Catchwords:
MIGRATION – Student visa – cancellation – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal did not give due consideration to certain matters of fact when exercising its discretion to cancel the applicant’s visa.

Legislation:

Migration Act 1958, ss.116, 474

Migration Regulations 1994, reg.1.40A, cls.573.111, 573.223, 573.231 of sch.2, item 8516 of sch.8
Tribunals Amalgamation Act 2015, item 15AG of sch.9
Instrument number IMMI 12/037 “Specification of Types of Courses for Student Visas”, select legislative instrument F2012L00670
Instrument number IMMI 10/069 “Specification of Types of Courses for Student Visas”, select legislative instrument F2010L03059

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: DEEPINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 93 of 2015

Judgment of: Judge Cameron

Hearing date: 22 September 2015

Date of Last Submission: 22 September 2015

Delivered at: Adelaide

Delivered on: 22 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C. Stokes of Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,825.00.

3. The Administrative Appeals Tribunal replace the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 93 of 2015

DEEPINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who was granted a Student (Temporary) (Class TU) subclass 573 (Higher Education Sector) visa on 21 August 2013. On 30 September 2014 a delegate of the first respondent (“Minister”) cancelled the applicant’s visa pursuant to s.116 of the Migration Act 1958 (“Act”) on the basis that he had failed to satisfy one of the conditions of his visa. The applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. Amongst other conditions, the applicant’s visa was subject to condition 8516 which is found in sch.8 to the Migration Regulations 1994 (“Regulations”). It provides:

   The 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.

2. The consequences of breaching condition 8516 are set out in s.116 of the Act which relevantly provides that the Minister may cancel a visa if he is satisfied that its holder has not complied with one of its conditions.

3. The relevant primary criteria which the applicant had to satisfy at the time he was granted his visa, and which he had to continue to satisfy, were cls.573.223(1A) or 573.231 of sch.2 to the Regulations. At the time the applicant was granted his visa those clauses relevantly provided:

   573.223

   ...

   (1A)If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   ...

   (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)     the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)     any other relevant matter; ...

   ...

   573.231

   If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (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.

4. An eligible higher degree student is defined in cl.573.111 as:

   ... an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a)the applicant is enrolled in a principal course of study for the award of:

   (i)a bachelor’s degree; or

   (ii)     a masters degree by coursework;

   (b)the principal course of study is provided by an eligible education provider;

   (c)if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i)the applicant is also enrolled in that course; and

   (ii)that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

5. Although the evidence does not indicate when the applicant made his visa application it is to be presumed that the relevant instrument made under reg.1.40A was IMMI 12/037 (legislative instrument F2012L00670), made by the Minister on 21 March 2012. However, it should also be noted that the instrument which IMMI 12/037 replaced, IMMI 10/069 (legislative instrument F2010L03059) made on 17 November 2010, was relevantly in the same terms so no matter of distinction between the two instruments arises. Both made it clear that at all relevant times the types of courses which met the requirements of a subclass 573 visa were higher education diplomas, higher education certificates and degrees. At all relevant times, courses which met the requirements of subclass 572 (Vocational Education and Training Sector) visas included certificates I, II, III and IV and other vocational qualifications.

Background facts

1. As already noted, the applicant was granted a subclass 573 visa on 21 August 2013.  The delegate and the Tribunal’s descriptions of the courses in which the applicant enrolled do not entirely coincide, and the printout from the Department of Education’s Provider Registration and International Student Management System (“PRISMS”) reproduced at page 29 of the Court Book, which was exhibit A, is incapable of full decryption without further information.  Nevertheless, it is sufficiently clear that the applicant initially enrolled in a diploma course and in a degree course, both of which were concerned with engineering.  It is also clear that by 10 July 2014 he was no longer enrolled in those courses.

2. The evidence in relation to the applicant’s subsequent academic history is really no clearer, although it is apparent that his interest moved to business and management studies and that he enrolled in courses of that nature. The first of these was a Certificate IV in Business Administration, which the PRISMS printout appears to record he enrolled in on 30 June 2014.

3. The applicant applied for a subclass 572 student visa on 30 May 2014 but that application was refused on the basis that he was not a genuine applicant for entry and stay as a student.  The applicant applied again for a subclass 572 visa on 16 September 2014, but at the time of the Tribunal’s decision that application remained undetermined.

4. As a result of the applicant ceasing his higher education sector courses, on 19 September 2014 the Minister’s department (“Department) sent to him a Notice of Intention to Consider Cancellation (“NOICC”) of his subclass 573 visa.  In her decision to cancel the applicant’s visa, the delegate noted that he had not responded to the NOICC.  She found that as the applicant was no longer enrolled in a higher education sector course, he no longer met the requirements of cl.573.223(1A) or cl.573.231 and had breached condition 8516.

5. The applicant applied to the Tribunal for a review of the delegate’s decision.  At a Tribunal hearing on 23 February 2015 he claimed that:

   a)he had found his engineering course difficult and had thought he would do better in a business course.  His education provider had not offered higher education sector courses in business administration so he had changed to another education provider and had also changed his course and type of study;

   b)he had not sought professional advice or assistance from the Department before making his decision.  Although he had read on the Department’s website that he was only permitted to change courses within the higher education sector, all his friends had been downgrading from subclass 573 to subclass 572 visas; and

   c)if he returned to India without finishing his studies his family would be disappointed.

The Tribunal’s decision and reasons

1. Based on the Department’s records and on the applicant’s evidence that he was no longer enrolled in a higher education course, the Tribunal was satisfied that the applicant no longer met the requirements of cls.573.223(1A) or 573.231 and had therefore breached condition 8516.  The Tribunal went on to consider whether to exercise its discretion to cancel the visa and concluded that it should.  In that regard, the Tribunal considered the applicant’s circumstances and was not satisfied that there were extenuating or compassionate circumstances or that the breach of condition 8516 had occurred in circumstances beyond the applicant’s control, noting that his primary responsibility had been to ensure that he met the terms and conditions of his visa. 

Proceedings in this Court

1. In his application commencing these proceedings the applicant alleged:

   I hereby request the honourable judge of the court to review my case which has been cancelled by DIBP and MRT.  They have not given due consideration to the fact that I had been unable to pursue higher education study because it was too hard for me but I did not stop studying I wished to start with easy courses and then pick up the pace with time as the study method, teaching methods all are very different from India and it was too much for me to take in.  If I don’t get study rights, my future will be spoiled and I would cause disgrace to the family.  I thereby request the court to accept my application for further hearing and provide justice to my case as I have all the required documents & have many points to submit in front the Honourable Judge to prove my claims.

2. In his application, the applicant did not suggest that he met the study criteria of his subclass 573 visa.  His application did not invite the Court to identify error in that aspect of the Tribunal’s decision.  That was appropriate as it is not apparent that the Tribunal did err in that respect.

3. What the applicant complained of was the Tribunal’s exercise of its discretion to cancel his visa.  He raised four matters, namely, that he found his original study too hard, that he continued to study, that if he lost his visa his future would be spoiled and that he might be a disgrace to his family.  All of those matters were considered at some part of paras.30, 31 and 32 of the Tribunal’s decision.

4. The allegation which the applicant made in his application was that the Tribunal did not give due consideration to the various matters which he raised.  That was really an invitation to the Court to review the merits of the applicant’s application to the Tribunal in that it suggested that if the Tribunal had considered the matter differently, then there might have been a different result in the review.  As indicated earlier in these reasons, the Court does not have jurisdiction to reconsider the application for a visa and may only set the Tribunal’s decision aside if there has been jurisdictional error.

5. It is apparent that the Tribunal did consider the matters which the applicant raised.  By doing that, and noting that the way in which it did so has not been identified to have been erroneous, the Tribunal discharged the relevant obligation imposed upon it.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  26 October 2015