SINGH v Minister for Immigration

[2015] FCCA 2068

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2068

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Class TU visa – whether applicant had been enrolled in a registered course – whether significant delay by applicant in enrolling in another course was consistent with genuine study – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(b), 476

Applicant: ARUNBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1110 of 2015

Judgment of: Judge Street

Hearing date: 31 July 2015

Date of Last Submission: 31 July 2015

Delivered at: Sydney

Delivered on: 31 July 2015

REPRESENTATION

The Applicant appeared in person:

Solicitors for the Respondents:

Mr S Speirs

Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $6825

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1110 of 2015

ARUNBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 19 March 2015 affirming a decision not to grant the applicant a class TU visa. The grounds of the application are as follows:

   1. The Tribunal did not give weight to relevant material

   a. The Tribunal failed to give appropriate weight to the relevant material in taking into consideration the compelling and/or compassionate circumstances in exercising its discretion

   2. The Tribunal took into consideration irrelevant facts that resulted in the asking of the wrong question

   a. The Migration Review Tribunal was not fair and reasonable in reaching a decision due to non-consideration and ignorance of issues that was central to the decision. This support the issues mentioned above.

   3. The Second Respondent erred in the identification and/or application of the operative law and regulations applicable to the review of the applicant's application and thereby proceeded having asked itself the wrong question, failed to take into account relevant considerations, took into account irrelevant considerations, and constructively failed to exercise its jurisdiction.

   Particulars

   a. The Tribunal did not undertake its review in accordance with the applicable and operative law

   b. The Tribunal took into account irrelevant considerations under Policy Advice Manual 3 (PAM3); and

   c. In the premises, did not undertake its review according to law and thereby constructively failed to exercise its jurisdiction.

2. In addition to the grounds identified, the applicant provided submissions that also sought to advance that the finding of a breach of the condition was not correct and that the Tribunal erred in finding a breach of the condition. 

3. This was a case in which the delegate cancelled the visa on the basis that the applicant had not enrolled in a registered course since 1 November 2013 as required by condition 8202(2) of the visa.  The applicant appeared before the Tribunal on 17 February 2015 to give evidence and present arguments and was assisted by an interpreter as well as represented by his migration agent.

4. On the evidence before the Tribunal, it was clear that the applicant had withdrawn from the accounting course on 1 November 2013.  The applicant provided a statutory declaration to the Tribunal in which he said:

   Around August 2013 I began my second semester at Charles Sturt University and had to undertake more accounting subjects.  I could not successfully pass my accounting subjects when I failed my second semester.  It was at this point in time that I realised that I could not continue.  I had no interest in accounting and I was not able to change my course.  I began to make my own enquiries with various institutions such as TAFE, King’s Own Institute and others but the response was the same.  I would have to go through and agent to be able to enrol in one of their programs.

5. Before the Tribunal, the applicant confirmed that he withdrew from the course on 1 November 2013 and that his enrolment was cancelled on that day.  It was in these circumstances that the Tribunal found:

   10. Given this evidence, the Tribunal finds that the applicant has not been enrolled in a course of a type specified for Subclass 573 since 1 November 2013, and that he has therefore been in breach of Condition 8202(2)(a) since that date. Accordingly, the applicant has not complied with Condition 8202. The Tribunal is therefore satisfied is therefore satisfied that the ground for cancellation in s.116(1)(b) exists.

6. The Tribunal then turned to the issue of discretion under s.116(1)(b) as to whether the visa should be cancelled and took into account the PAM3, albeit acknowledging that those guidelines were not binding on it, as referred to in para.11. The headings in the reasons of the Tribunal are consistent with application of considerations of the kind identified in the guidelines.

7. In para.13 the Tribunal noted that the applicant said that his agent in India who arranged the visa had not asked him about what course he wished to study in Australia and had enrolled him in an accounting course even though he had no interest in studying that subject.  The Tribunal noted at the hearing the applicant confirmed that before he came to Australia, he was aware of the nature of the course in which he had been enrolled. 

8. The Tribunal also noted that although the applicant asserts he was seeking alternative enrolments from the time of his withdrawal on 1 November 2013, it was not until 28 June 2014 that he enrolled in another course of study, which was after the notice of intention to consider cancellation dated 23 June 2014 was issued.  The Tribunal relevantly found:

   21. The applicant is not currently enrolled in any course of study. If he were genuinely interested in studying in Australia, the Tribunal would expect him to have a current enrolment. He has given the Tribunal details of his current Bridging visa, and there is nothing in the conditions attached to that visa which prevent him from studying. At the very least, the Tribunal would have expected the applicant to have obtained an offer of enrolment in an appropriate course of study.

   …

   25. In relation to the timing of approaches to other educational institutions, at the hearing, the applicant said that, at the time he was studying at Charles Sturt University, he was living with a group of friends in Sydney. However, that the group split up around that time and the applicant moved to Muswellbrook where he stayed with relatives for a period. Having gone to that town he made inquiries at the local TAFE about studying there only to find that they only offered trade courses. He returned to Sydney in late January 2014 and then approached Granville TAFE. He was told that no courses were available until the May intake at the earliest and that he needed to use the services of an agent. He said he did not approach the agent in Australia until May 2014. He told the Tribunal that he did not think he needed to seek an agent until that time because that was when the next intake was.

   26. The applicant’s evidence makes it clear that he was aware, at the time he withdrew from his degree course, that he needed to be enrolled in another degree course relevant to SVP arrangements. In these circumstances, the Tribunal does not accept that the applicant would have expected to be able to undertake such a course in Muswellbrook at the local TAFE. Moreover, it does not believe his delay until May 2014 to approach a migration agent with a view to obtaining alternative enrolments to be consistent with a genuine desire to study.

   27. Even if the Tribunal were to accept the applicant’s statement that the agent he approached in May 2014 had assured him his enrolments in June 2014 were such that he would not need to apply for another visa, the fact remains that he would have been made aware, by the decision under review, that these enrolments were not satisfactory. However, he remains in breach of condition 8202. More than 15 months have now elapsed since he was first in breach of that condition. The Tribunal regards this as a significant breach.

   …

   31. The applicant claims that all of his difficulties arise because he has been misled by 2 previous migration agents. The Tribunal accepts that service provided by those agents may have fallen short of the standard one would expect from such agents. However, the evidence before the Tribunal satisfies it that the applicant was aware that he had secured a visa to come to Australia on the basis that he would study a course in which he had no real interest. The Tribunal is also satisfied that the applicant has not sought diligently to rectify the situation in which he found himself. He said that he had thought he could change courses 6 months after commencing the course. However, there is nothing to suggest that he attempted to find alternative courses of study around August 2013 or at any time before he discontinued his studies at Charles Sturt University.

   32. In submissions to the Department, the applicant said that his failures in the degree course caused him to be depressed and that led him to discontinue the course. At the hearing, however, he told the Tribunal that he had not sought any medical intervention for such a condition. The Tribunal does not accept, in these circumstances, that the applicant was adversely affected by depression to the extent that it prevented him from acting rationally in relation to his situation. It does not accept that the applicant’s failure to be enrolled in a course of a kind specified for Subclass 573 arises because of any mental condition.

9. It was in these circumstances the Tribunal concluded that the visa should be cancelled.

10. I accept the first respondent’s submissions that ground 1 is an unparticularised assertion that is incapable of identifying any jurisdictional error.  Further, I accept the first respondent’s submission that it is a matter for the Tribunal to determine what weight to give the material before the Tribunal.  Thirdly, I accept the first respondent’s submission that the Tribunal applied the correct test under s.116(1) in relation to the unfettered discretion in considering whether to cancel the visa and that there is no error of the kind identified in ground 1.

11. In relation to ground 2, I accept the first respondent’s submission that the alleged irrelevant considerations are not identified and fail to make out any jurisdictional error.  I accept the first respondent’s submission that there is no substance in relation to ground 2 and that it is clear that the applicant had a genuine hearing and that the Tribunal properly considered the issues raised by the applicant in respect of the discretion.  There is no substance in the assertion that the Tribunal asked itself the wrong question in relation to s.116 and the exercise of the unfettered discretion.

12. In relation to ground 3, I accept the first respondent’s submission that the unparticularised assertions again fail to identify any jurisdictional error and that to the extent relevant, it is clear that the Tribunal correctly identified a statutory discretion and conducted the review in accordance with the statutory regime and that there is no substance in the assertion that the Tribunal constructively failed to exercise its jurisdiction. 

13. I accept the first respondent’s submission that there is no substance in the assertion that the Tribunal did not undertake the review consistent with the statutory regime.  I accept the first respondent’s submission that it is clear that the Tribunal took into account the PAM3, both from the express reference and the headings referred to in the Tribunal’s reasons.  There is no substance in the alleged assertion of PAM3 being an irrelevant consideration.  For the reasons given, there was no failure by the Tribunal to conduct the review according to law or any constructive failure to exercise its jurisdiction. 

14. In relation to the assertion raised in the supplementary ground identified in the applicant’s submission, exhibit B, that there was no breach of condition 8202, this was a finding of fact which was clearly open to the Tribunal to make on the material before the Tribunal.  There is no substance in the assertion that the Tribunal erred in finding a breach of condition 8202.  Further, there is no substance in the proposition the Tribunal took into account irrelevant considerations in determining a breach of condition 8202.  A finding of the breach of condition was clearly open to the Tribunal on the material before the Tribunal.  No jurisdictional error has been made out.  The application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:5 August 2015