Singh v Minister for Immigration - [2015] FCCA 928

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 928

Catchwords:
MIGRATION – Migration Review Tribunal – student visa – unsatisfactory course attendance – no jurisdictional error.

Legislation:
Education Services for Overseas Students Act 2000, ss.19, 20
Migration Act 1958, s.351
Migration Regulations 1994, condition 8202 of Sch.8

Cases cited:
Singh v the Minister for Immigration & Anor [2015] FCCA 121

Applicant:

SARBJIT SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 664 of 2014

Judgment of:

Judge Riley

Hearing date:

20 March 2015

Date of last submission:

20 March 2015

Delivered at:

Melbourne

Delivered on:

20 March 2015

REPRESENTATION

Counsel for the applicant:

The applicant appeared in person

Solicitors for the applicant:

The applicant was not represented

Advocate for the first respondent:

Christopher McDermott

Solicitors for the first respondent:

Australian Government Solicitor

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Australian Government Solicitor

ORDERS

The application filed on 9 April 2014 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $3,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 644 of 2014

SARBJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for review of a decision of the Migration Review Tribunal. The applicant appeared before this court without the benefit of a legal representative.
The applicant applied for a student visa, which he obtained, and enrolled in a college to study printing and graphics. After a time, the applicant wished to change out of that course and do hairdressing. For that purpose, he needed to go to a different college. He asked the first college to be permitted to withdraw. However, the first college did not give him a release letter. The applicant said a migration agent advised him to just enrol in another college and said that, in that event, the first college would have to cancel the enrolment.
Apparently, the applicant did enrol in the second college to do hairdressing. However, but the first college did not provide him with a release letter. The consequence was that the applicant did not attend classes in the first college. The first college issued a certificate under

s.19 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) to the effect that the applicant did not have satisfactory course attendance. The applicant was also sent a notice under s.20 of the ESOS Act.
The consequence was that the applicant’s visa was cancelled. However, the Migration Review Tribunal revoked that cancellation because there was a technical defect in the s.20 notice. The defect was that condition 8202 of Sch.8 of the Migration Regulations 1994 (“the Regulations”) had not been prescribed as a condition for the purposes of s.20 of the ESOS Act.
The effect of the tribunal’s decision was that the cancellation of the applicant’s existing student visa was found to have been ineffective and his student visa remained on foot. Nevertheless, the certificate under s.19 of the ESOS Act continued to have effect. That certificate indicated that the applicant had not complied with the attendance requirements that were stipulated under condition 8202 of sch. 8 of the Regulations.
The applicant then applied for another student visa. That application was refused by a delegate of the first respondent on the basis that the applicant had not complied with a condition to which his previous visa was subject. That condition was condition 8202 of Sch.8 of the Regulations.
The applicant then applied to the tribunal for review of the delegate’s decision. The tribunal invited the applicant to a hearing which appears to have been conducted fairly. There is certainly no challenge to it.
The tribunal deferred making a decision, at the applicant’s request, to enable the applicant to provide some further documents. They were subsequently provided. One of them was a document headed Enrolment Withdrawal Form. This appeared to be a letter from the first college regarding withdrawal from that college. However, the tribunal found that it had not been properly completed. It did not indicate that the applicant had, in fact, withdrawn from the first college.
The tribunal was satisfied that the first college had certified that the applicant had not achieved satisfactory course attendance for the purposes of s.19 of the ESOS Act. The tribunal concluded, on that basis, that the applicant did not meet the requirements for the student visa and affirmed the delegate’s decision.
The applicant then applied for review in this court. The application sets out the grounds of review as follows:
1)S.477, Judicial review can be lodged in 28 days after tribunal review has been finalised
2)I am not happy with tribunal decision, applying for judicial review for legitimate decision
3)I do have exceptional circumstances beyond the student visa gaps
4)I have felt this is unfair and not legitimate to me as I have lost the future in Australia as well as time and money.
5)I hope Federal circuit court has got Jurisdiction in this matter.
6)Or else Apex court might have Jurisdiction in my matter.
The applicant did not file written submissions. In court today, he explained the background to the matter. He said that the tribunal just focused on one issue which was that he did not have the release letter from the first college. He explained the matters that have been set out previously in these reasons. When he was told about the nature of jurisdictional error, the applicant was unable to point to anything that indicated that the tribunal had made a jurisdictional error in this case.
It seems to me that the tribunal did consider everything that the applicant had put before it, and did afford the applicant procedural fairness. I am unable to detect any jurisdictional error in the tribunal’s handling of the matter.
The basic situation is that there was a certificate under s.19 of the ESOS Act before the tribunal. The tribunal accepted that it met the requirements of s.19.
The fact that the previous cancellation of the applicant’s student visa had been technically flawed did not overcome the problem that the applicant still had not complied with the conditions to which his previous visa was subject. I note the decision of this court in Singh v the Minister for Immigration & Anor [2015] FCCA 121, particularly at paragraphs 12 to 15. For substantially the same reasons, the decision in this case must be upheld.
There is a procedure for dealing with education providers that do not conduct themselves appropriately. When that was raised with the applicant today, he said that the first college had ceased to operate because it had so many problems. That may be so, but it is difficult to see how the court can assist the applicant in this case. In addition to the Overseas Student Ombudsman and the complaints procedure under the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students, there is also the prospect of ministerial discretion under s.351 of the Migration Act 1958.
On the applicant’s case, he did nothing wrong, and the college simply did not provide him with the appropriate letter. If that is true, it is possible that the Minister would exercise his discretion favourably to the applicant. However, on the material before me, I can see no basis on which it could be said that the tribunal has made a jurisdictional error such that the court would have power to remit the matter to the Tribunal for re-hearing.
In the circumstances, the application must be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 15 April 2015