Singh v Minister for Immigration

[2015] FCCA 2599

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2599

Catchwords:
MIGRATION – Review of Refugee Tribunal decision – no jurisdictional error found – application dismissed – costs.

Legislation: 
Migration Act 1958 (Cth); ss.116, 573

Applicant: PARMINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 284 of 2015

Judgment of: Judge Vasta

Hearing date: 31 August 2015

Date of Last Submission: 31 August 2015

Delivered at: Brisbane

Delivered on: 31 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Travers

Solicitors for the Applicant: Chand Lawyers

Counsel for the Respondents: Mr McGlade

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the Application filed 31 March 2015 be dismissed.

2. That the Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $6,820.00.

3. That the name of the Second Respondent be changed to the “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 284 of 2015

PARMINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed on 31 March 2015 the Applicant, Parminder Singh sought to review a decision of the then Migration Review Tribunal, which has now been subsumed by the Administrative Appeals Tribunal. 

2. That follows a decision by the delegate for the Minister to revoke a s.573 visa that had been issued to the Applicant in November of 2013.

3. That visa in effect was given to the applicant so that he could come to Australia and study a Bachelor’s Degree at the James Cook University.

4. Before he could do that he had to successfully complete courses at the Cairns TAFE. 

5. Those courses were to ensure that the Applicant was able to study at the university level. 

6. Those courses with TAFE were approved because TAFE is an SVP provider. 

7. What occurred is that the Applicant arrived in Australia in December of 2013. 

8. It seems relatively soon after that he, without having attended the TAFE course, cancelled that course for the reason that he wished not to study in Cairns but to study in Brisbane.

9. He gave evidence to the Tribunal that he decided to put his matter in the hands of a migration agent who, it was conceded by the time of the conclusion of the hearing before the Migration Review Tribunal, was acting fraudulently.  In actuality there were two migration agents that the Applicant used that were said to have acted fraudulently. 

10. The Applicant conceded that he was in breach of the visa, and he was in breach of the visa as soon as he had cancelled his enrolment at the TAFE. 

11. It seems that the Notice of Intention to cancel the visa was served upon the Applicant in September of 2014. 

12. The visa was cancelled and he is currently on a bridging visa, which does not allow him to study.

13. The Tribunal was looking at s.116 of the Migration Act 1958 (Cth), which is phrased this way:

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

    (a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists…”

14. It was obvious that the basis for the Minister making the decision to cancel the visa was certainly made out as soon as the enrolment was cancelled. 

15. The operative word in this section is the word “may”. 

16. That connotes that, notwithstanding that the condition has been breached, the decision to cancel the visa is at discretion of the Minister. Therefore, the Migration Review Tribunal have a discretion to not cancel the visa, notwithstanding that the conditions had been breached, or that a particular fact or circumstance is no longer the case.

17. The Applicant comes to this Court saying that there is a jurisdictional error in that, in the exercise of the discretion to affirm the decision and therefore cancel the visa, the Tribunal had come to a conclusion that was simply not open to it on the evidence. 

18. That is, a decision that no reasonable decision-maker could have made on the evidence; or simply stated, that the decision was not open. 

19. Whilst the decision itself of the Tribunal is a good starting point, I accept the submission of the Respondent that it is not a question of justifying the decision of that Tribunal. 

20. That is because this is a privative clause decision. 

21. Therefore what this Court must do in ensuring that there has been no jurisdictional error is to look at the evidence that was before the Tribunal and come to its own conclusion as to whether or not such a decision was open.

22. It is not to the point that this Court agrees or disagrees with that decision. 

23. It may be in looking at the evidence that a Court, in the position that I am, may totally disagree, even vehemently disagree, with the decision that was made.  But that does not mean that this Court has then the power to substitute its own decision. 

24. It is only if I am satisfied that such a decision was not open on the evidence that I can find that there is a jurisdictional error. 

25. What it is that has been put to me on behalf of the Applicant, is that in coming to Australia, it was his desire always to study in Brisbane and not in Cairns. 

26. Upon coming to Cairns, it was then that he decided that he was going to Brisbane. 

27. He put the matter into the hands of two migration agents who did end up acting fraudulently.  He left it to them to tell him what it is that he should be doing. 

28. It turns out that there was an enrolment made at Spencer College.  Spencer College is not an SVP provider, and it was that enrolment that was supposed to, in effect, take the place of the TAFE course. 

29. It also turned out that there was supposedly an enrolment with the Skills Institute Australia, which also was a course that was meant to, in some way, be a substitute for the TAFE course. 

30. As it turned out, the Applicant had never attended the Spencer College course, and the Skills Institute course was a fraudulent one, and again the Applicant had never attended that.

31. What the Tribunal ended up concluding was that the Applicant did not intend to study when he came here.

32. At Paragraph 27, the Tribunal in the last sentence of that paragraph said this:

    “…Against this background, the Tribunal is of the opinion that the applicant never genuinely intended to study at the University level.”

33. I do not have to be satisfied that this is a correct assumption to make. 

34. What I have to be satisfied is that the decision that the Tribunal made to exercise its discretion against the Applicant and make the decision affirming the decision of the delegate was a decision that was open.

35. In my mind, these matters are of significance. 

36. There was no attempt to start the course at Cairns TAFE upon arrival in Australia. 

37. The fact is that the Applicant knew that the course at the Cairns TAFE was a prerequisite to being able to be accepted by James Cook University to do the bachelor’s course.  Such a course by Cairns TAFE, being an SVP provider, was something that was necessary. 

38. Notwithstanding that the Applicant says that he put this decision in the hands of an agent, it is a troubling state of affairs that this was done by putting the matter in the hands of an agent rather than at least starting the course with TAFE and talking to TAFE about what transfers could be done.

39. It seems that there was very little, if not no, contact at all with Cairns TAFE. 

40. The fact that one would straight away, as soon as one comes here, cancel such an enrolment knowing that such action puts one immediately in breach of the visa is, in my view, very telling.

41. The fact is that, if that cancellation occurred around the May period, then between January and May there was no attendance at any course of study. 

42. The Notice of Intention to cancel the visa was issued in September. 

43. It seems in September there was actually some remedial action taken. 

44. The conclusion that the Tribunal came to, that there was an inference that if the notice had not issued there would have been no attempt to do any form of study, seems to be an obvious inference and one that I would think is open. 

45. What is also of concern is that, notwithstanding that there has been a concession that the Skills Institute certificate was a fraudulent certificate, what is recorded at paragraph 22, which reads as following:

    “At the hearing, the Tribunal discussed the applicant’s claim to have studied at the Skills Institute in accordance with the provisions of s.359AA of the Act.  It drew his attention to the fact there is no record in PRISMS that the applicant was ever enrolled in such a course.  At the time, the applicant did not seek more time to respond to this information, merely asserting that he had been enrolled in that course.”

46. That course certificate was also the subject of submissions to the delegate and forms part of the record book, and the fact that it is a fraudulent document, notwithstanding the fact that the Applicant sought to rely upon it, to show that he had been at least doing something during that time, is also very concerning. 

47. If it is that a situation exists that a person came to this country, got to Cairns TAFE, found that they did not like Cairns, wanted to come to Brisbane, did stop the enrolment, and did enrol in a course that was something similar that they hoped would at least give them some form of credit in a pre-requisite course that would have to be completed before enrolment in the James Cook University course, then one could have a totally different view of the situation.  If that had been the case then, notwithstanding that there had been a breach, an exercise in the discretion may result, in a case such as that, in there not being a cancellation of the visa. 

48. It seems that, this was the sort of scenario that the Applicant sought to try and convince the Tribunal about. 

49. However, when it turned out that the basis of this scenario (that he had enrolled in other courses) turned out to be fraudulent, and that he had not told the Tribunal of it when it was first raised does, in my view, raise a serious question of credit.

50. In my view, when one has a look at the whole of the circumstances, I cannot say that the conclusion made by the Second Respondent, Migration Review Tribunal, was not open on that evidence.

51. In that case, I cannot find that there is any jurisdictional error.

52. The only course open to me is to then dismiss the application with costs on the scale which is $6,825.00.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  22 September 2015.