SINGH v Minister for Immigration

[2015] FCCA 2044

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2044

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Subclass 573 Higher Education Sector visa – bias – whether the Tribunal complied with s.359A of the Migration Act 1958 – whether the Tribunal failed to take into account relevant material – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 353, 359A, 476

Migration Regulations 1994, reg.1.40A

Minister for Immigration v Eshetu (1999) 197 CLR 611

Applicant: HARDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1273 of 2015

Judgment of: Judge Street

Hearing date: 29 July 2015

Date of Last Submission: 29 July 2015

Delivered at: Sydney

Delivered on: 29 July 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Mr L Dennis

Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1273 of 2015

HARDEEP 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 dated 15 April 2015 affirming a decision of the delegate to cancel the applicant’s Subclass 573 Higher Education Sector visa.

2. Orders were made on 11 June 2015 providing the applicant with an opportunity to amend the application, put on any further affidavit evidence and written submissions.  The applicant has filed an amended application which identifies the following grounds:

   l. The Migration Review Tribunal failed to be fair and just in dealing with the review application pursuant to section 353 of the Migration Act 1958.

   PARTICULARS

   a) The Tribunal indicated bias in dealing with the review application. The Migration Review Tribunal failed to give the applicant information pertaining to discretionary grounds in order for the applicant to be prepared for the scheduled hearing.

   b) The Tribunal was not fair or just in dealing with the applicant. The Tribunal failed to give a meaningful hearing to the applicant on 15 April 2015. That is, the Tribunal relied on the written materials presented rather than the verbal evidence given to the Migration Review Tribunal on 15 April 2015.

   2. The Migration Review Tribunal failed to have regard to relevant consideration thereby denying the applicant procedural fairness

   PARTICULARS

   a) The Migration Review Tribunal wrongly decided at paragraph 29 "The Tribunal is not satisfied that the applicant had made adequate effort to ensure his compliance with the visa condition". In doing so, the Tribunal failed to give proper regard to the info1mation given by the applicant during the hearing in relation to the attempts made by the applicant to obtain a Certificate of Enrolment at Group Colleges Australia and then subsequently when the Certificate of Enrolment was not issued a refund from Group Colleges Australia. This caused a substantial delay in the applicant's enrolment.

   3. The decision of the Migration Review Tribunal is contrary to natural justice.

   PARTICULARS

   a) The intention of the legislative provisions of the Migration Act 1958 relevant for the review of decision is to allow the person natural justice. The Migration Review Tribunal denied the applicant natural justice by failing to take into account the information given by the applicant during the hearing on 15 April 2015.

   4. The Tribunal failed to comply with section 359A of the Migration Act 1958.

   PARTICULARS

   a. Failure to give clear particulars of information required from the applicant prior to the scheduled hearing on 15 April 2015 in relation to discretionary grounds of visa cancellation.

3. The applicant was invited to put anything further he wished in relation to the submissions of the first respondent or in support of his application and indicated that he relied upon the four grounds in his amended application and had nothing further to add.

4. In relation to ground 1, the first respondent submitted that the bald allegation of a breach of s.353 did not identify any basis for concluding that there was some non‑compliance with the provisions of s.353. The first respondent further submitted that there was no specific procedure mandated that was to be observed by the Tribunal under s.353, consistent with the decision in Minister for Immigration v Eshetu (1999) 197 CLR 611 at [77], and that there was no substance in the allegation of a contravention of s.353.

5. In relation to the allegation of bias raised by ground 1, the first respondent relied upon the proposition that the allegation of bias has to be distinctly made and proved and that this is not a case where any bias had been proved. The first respondent submitted that the adverse determination was not itself a ground upon which bias could be made out. The first respondent further submitted that the assertion of a failure by the Tribunal to give the applicant information pertaining to the discretionary grounds in order for the applicant to be prepared for the hearing was contrary to the clear notice given to the applicant of the intention to cancel under s.116, which, relevantly, provided (CB 78):

   If the delegate decides there is a ground for cancellation, the delegate will consider whether there are any reasons not to cancel your visa.

6. The first respondent pointed out that in support of the applicant’s case, submissions were advanced at pages 82 to 85 of the Court Book that showed an appreciation of the discretionary considerations, as well as referring to the PRISM record at 125 and other material provided by the applicant up to page 162. 

7. The first respondent submitted that the third matter raised by ground 1 was whether the applicant in essence had a genuine hearing and that it is clear from the Tribunal decision that the applicant appeared before the Tribunal on 15 April 2015 to give evidence and present arguments and that it is clear from the Tribunal’s reasons that it took into account both the applicant’s written and oral evidence.

8. In relation to ground 2 and ground 3, the first respondent submitted that these grounds were, in substance, an impermissible challenge to the merits of the review by the Tribunal and failed to identify any jurisdictional error.  Further, the first respondent noted that the Tribunal had dealt with the attempts made by the applicant to obtain a certificate of enrolment at Group Colleges Australia and the subsequent refund at paras.16, 18, 20 and 22 and in that regard made adverse findings against the applicant in paras.23 and 28.

9. In relation to ground 4, the first respondent submitted that there were no particulars of any non‑compliance in relation to s.359A and no identification of specific information to enliven any obligation to provide clear particulars of information that the Tribunal considered would be the reason or part of a reason for affirming the decision that is under review. Further, the first respondent submitted that the information relied upon by the Tribunal was clearly information provided by the applicant and fell within the exception under s.359A(4)(b) and, accordingly, that there was no substance in relation to ground 4.

10. In response to the first respondent’s oral submissions, the applicant indicated that he had nothing to say. 

11. I accept the first respondent’s submissions in relation to ground 1, and that there is no content in the allegation of a breach of s.353. I accept the first respondent’s submissions, that bias has not been distinctly alleged or clearly proved. I also accept the first respondent’s submissions that the adverse determination would not be grounds upon which a fair minded observer might reasonably apprehend that the tribunal might not bring an independent and impartial mind to determine the matter on its merits.

12. I accept the first respondent’s submission that the applicant was given information pertaining to the discretionary grounds in the notice of cancellation, and it is clear that the applicant engaged in that by the submissions in response, and that there is no substance in the assertion of any want of procedural fairness or non-compliance with the statutory obligations of the tribunal. 

13. I accept the first respondent’s submission that the applicant had a genuine hearing and that there is no substance in the assertion that the Tribunal relied only on written material.  Ground 1 is not made out. 

14. In relation to ground 2, I accept the first respondent’s submission that this is an impermissible challenge to the merits, and I accept the first respondent’s submission that it is clear that the Tribunal dealt with the issue concerning the Certificate of Enrolment at Group Colleges Australia and the refund obtained by the applicant.  I find that there is no substance in ground 2. 

15. I accept the first respondent’s submission in relation to ground 3, that this is an impermissible challenge to the merits.  The proposition that the Tribunal failed to take into account information given by the applicant at the hearing has no substance.  Ground 3 is not made out. 

16. In relation to ground 4, I accept the first respondent’s submission that the bold allegation of non-compliance with s.359A, without identification of any particular information, is not capable of making out a breach of s.359A.

17. Further, I accept the first respondent’s submission that it is clear from the reasons of the Tribunal in this case that the Tribunal relied upon information given for the purpose of the application for review by the applicant within s.359A(4)(b) and there is no substance in the assertion of a failure to comply with s.359A.

18. The Tribunal noted that the applicant was issued with a Notice of Intention to Consider Cancellation because the delegate considered the applicant did not comply with condition 8516 of his visa, as he ceased to be enrolled in a higher education sector course.  Tribunal noted that condition 8516 requires the applicant must continue to be a person who would satisfy the primary or secondary criteria as the case requires for the grant of a visa. 

19. There was a criterion for the grant of the subclass 573 visa that the applicant is enrolled in, or the subject of a current offer of enrolment, in a principal course of a kind specified for the subclass by the Minister in an instrument under reg.1.40A Migration Regulations 1994, that was in effect at the time of the visa application, consistent with cl.573.231. 

20. It was in these circumstances that the Tribunal considered whether the ground for cancellation existed, and relevantly found:

    9. When making the application for review, the applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a visa in subclass 573 Higher Education Sector on the basis of his enrolment in a higher education course. The primary decision record refers to PRISMS, which shows that the applicant’s enrolment in a higher education course ceased. The delegate found that the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, that is, a course of study that was the principal course required by cl. 573.231.

    10. The Tribunal finds that courses specified for Subclass 573 visas are, relevantly, higher education sector courses. The Tribunal finds that the applicant ceased to be a person who satisfied the primary criteria because he ceased to be enrolled in, or to be the subject of an offer of enrolment in, an eligible course. There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. As such, the Tribunal finds that the applicant breached condition 8516 of his visa.

    11. The Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

21. The Tribunal then considered whether the discretion should be exercised not to cancel the visa, and relevantly found:

    24. The Tribunal finds the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case.

    25. With respect to hardship, the applicant stated that his family is supporting his studies financially and had gone to enormous expense to do so. If his visa is cancelled and he has to return to India, it would cause financial and emotional hardship to the family. The applicant informed the Tribunal that if his visa is cancelled, it would be hard for him to face his parents. Both his parents have health concerns. He is the youngest one in his family and it would be hard for him to go back without getting any qualification in Australia. The Tribunal is prepared to accept that hardship could be caused to the applicant by the cancellation.

    26. Nothing adverse is known about the applicant’s past and present conduct towards the Department. There are no persons who would be affected by the consequential cancellations under s.140. There is nothing to suggest, and the applicant does not claim, that any international obligations would be breached as a result of the cancellation. Family violence is not an issue.

    27. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant breached condition 8516 of his visa. The Tribunal accepts the applicant’s evidence that he did not want to move to Canberra and failed subjects at the Federation University and found the course difficult. In the Tribunal’s view, none of the matters put forward by the applicant justify his decision to abandon higher education study and enrol in a vocational course. The Tribunal has formed the view that there are no extenuating or compassionate circumstances in this case.

    28. The Tribunal accepts that hardship would be caused to the applicant by the cancellation. No other person’s visa would be affected by the cancellation and it would not result in a breach of Australia’s international obligations. The Tribunal acknowledges that the applicant had taken steps to rectify the problem and has made arrangements to enrol in a higher education course at Holmes institute commencing in July 2015. In the Tribunal’s view, that is not sufficient.

    29. The Tribunal is concerned that the applicant attempted several courses since he entered Australia and on his own evidence, the only course he was able to complete was an English course. The Tribunal is not satisfied that the applicant had made adequate effort to ensure his compliance with the visa condition.

    30. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

22. I find there is no jurisdictional error of the kind alleged in the amended application.  The amended application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 5 August 2015