SINGH v Minister for Immigration

[2015] FCCA 766

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 766

Catchwords:
MIGRATION – Migration Review Tribunal – Subclass 573 Higher Education Sector visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, ss.476, 116(1)(b)

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: GURSHER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 525 of 2015

Judgment of: Judge Street

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

The Applicant appeared in Person

Solicitors for the Respondent: Ms S. Lloyd
Minter Ellison

ORDERS

1. Proceedings be summarily dismissed.

2. Applicants pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 525 of 2015

GURSHER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ in the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision that the Tribunal made on 11 February 2015 affirming a decision of the delegate to cancel the applicant’s Subclass 573 Higher Education Sector visa.  The grounds in the application are as follows:

   1. The MRT Member made administrative error

2. The application identifies, in respect of the first Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding,

3. The Court identified to the applicant it was concerned that the application failed to identify any arguable jurisdictional error.  The applicant indicated that he had not had sufficient time, because he had just moved from Melbourne, and that he wished to obtain a lawyer.  The Court indicated that it would not grant an adjournment unless it was satisfied there was some utility in doing so because there was an arguable jurisdictional error. 

4. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

5. There is no utility in granting an adjournment if the proceedings are clearly doomed to failure, as it will only add to the cost of the parties and utilise limited Court time.  For the reasons given in this decision, I am clearly satisfied that the proceedings are doomed to failure. 

6. The Tribunal identified that the applicant sought a review of the delegate’s decision made on 28 October 2014 to cancel the applicant’s Subclass 573 Higher Education Sector visa. 

7. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not continue to be an eligible higher degree student and so failed to comply with condition 8516, which was a condition imposed on the visa. The Tribunal noted that the applicant appeared before the Tribunal on 9 February 2015 to give evidence and present arguments and was assisted with an interpreter and was represented by a Migration Agent. Relevantly, the Tribunal identified the issue to be considered in para.6 and relevantly found as follows:

   6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires the holder to continue to be a person who would satisfy the primary and secondary criteria, as the case requires, for the grant of the visa.

   8. As was set out in the delegate’s decision, a copy of which was provided by the applicant to the tribunal, the applicant had been granted a subclass 573 visa on the basis that he met the requirements of subclause 573.223(1A) or 573.231. In summary those subclauses required the applicant to be at the time of application 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.

   9. The applicant acknowledges that he was granted a subclass 573 visas the purposes of undertaking a Master of Information Technology/ Master of Business Administration course but did not commence that course and subsequently arranged for his confirmation of enrolment to be cancelled. He also gave evidence that he obtained a refund in respect of the master degree course.

   10. The applicant does not contend that he enrolled in any further higher education course in which he was an eligible higher degree student. The tribunal finds that subsequent to cancelling his enrolment in the above master degree course the applicant was no longer an eligible higher degree student and accordingly no longer continued to be a person who satisfied the primary criteria for the grant of the visa.

   11. For these reasons, 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.

   12. At hearing the applicant lodged a written submission, dated 31 October 2014 which has been taken into account and which is referred to in the discussion below.

   13. The applicant gave evidence at hearing that he arrived in Australia on 21 February 2014 as the holder of a higher education subclass 573 visa. He acknowledged the visa had been granted with Condition 8516 attached to it. His evidence is that he did not finish an ELICOS course (English language) which was a pre-requisite for commencing the Master of Information Technology/Master of Business Administration degree.

   18. The tribunal queried whether he did that only after receiving the Notice of intention to consider cancellation, sent on 10 October 2014. The applicant indicated he understood, up until a certain point, that he would be granted a subclass 572 visa. The tribunal queried whether the applicant was undertaking a ‘managed risk’ in doing so. The applicant responded that he was very confused and his agent advised that his subclass 573 would be safe. He had asked for an extension of his CoE so that he could go back on his 573 visa but he did not obtain that extension.

   24. The tribunal notes that at various points in the hearing the applicant was not specific in giving evidence. The tribunal attempted to clarify as best it could the applicant’s evidence but was restricted in the number of times it could reasonably interrupt the applicant to seek clarification.

8. The Tribunal also turned to the issue of discretion and relevantly found:

   32. The applicant breached Condition 8516 which required him to continue to meet the conditions on which the visa was granted, which in the circumstances of this application concerned the requirement to remain an eligible higher education student. The tribunal considers the reasons for the applicant’s change of course and the circumstances in which he did so weigh significantly in favour of cancelling the visa. For the reasons set out above the tribunal places little weight on the claimed reliance on his agent’s advice. He sought to reenrol in a higher education course only after receiving the Notice of intention to consider cancellation. He had already by that point received a refund in respect of the master degree studies fees. In the context that the tribunal does accept that the applicant intended genuinely to complete the master degree course the cancellation of his visa is of little consequence in regard to his parents’ expectations. In the circumstances in which the ground of cancellation arose the tribunal concludes that the reasons for cancelling the visas significantly outweigh the reasons for not doing so.

9. The application clearly fails to identify any arguable jurisdictional error.  The findings of the Tribunal are clearly open and it cannot be said that the findings lack an evident and intelligible justification.  I am satisfied that the applicant had a genuine hearing and that the proceedings are clearly doomed to failure.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  I summarily dismiss the proceedings.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 March 2015