Singh v Minister for Immigration

[2015] FCCA 1131

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1131

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – jurisdictional error not present – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), ss.116(1)(b), 360

Applicant: HARPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 153 of 2014

Judgment of: Judge Simpson

Hearing date: 30 January 2015

Date of Last Submission: 30 January 2015

Delivered at: Adelaide

Delivered on: 30 January 2015 (ex tempore)

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr d'Assumpcao for the Australian Government Solicitors

ORDERS

1. The application for review filed 6 May 2015 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant do pay the First Respondent’s costs fixed in the amount of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 153 of 2014

HARPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. The Applicant has applied for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 3 April 2014.  The Tribunal affirmed a decision of the Delegate of the Minister to cancel the Applicant’s Student (Temporary) Class TU (Subclass 572) visa that I will refer to in these reasons as “the visa”. 

2. The background to the matter is that on 9 July 2013, the Applicant lodged an application for a visa which was granted to him on 1 August 2013.

3. A condition applicable to the visa was that the Applicant comply with the requirements of condition 8105 which dealt with work limitation.  It required that the Applicant not engage in any work in Australia before his course of study commenced, and once commenced, that he not engage in work for more than 40 hours a fortnight. 

4. On 1 November 2013, an officer of the Department interviewed the Applicant in relation to compliance with his visa conditions and subsequently issued him with a Notice of Intention to Consider Cancellation of his visa.  This was done as a result of the Department receiving information which alleged that the Applicant had worked more than 40 hours per fortnight for the period 2 July 2013 to 14 October 2013 as a taxi driver while his course was in progress, and that that was in breach of condition 8105. 

5. The Delegate cancelled the Applicant’s visa pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (“the Act”) on 7 November 2013. The Delegate’s reasons for decision that are referred to on page 10 of the Green Book said this:

   “At an interview on 1 November 2013, Mr Singh stated that he was aware of his work limitations and was able to explain them.  He also admitted that he was working in excess of 40 hours a fortnight.  When interviewed on 7 November 2013, Mr Singh disputed the grounds for cancellation, indicating that someone else may have used the PIN.”

6. The Applicant then applied for review by the Migration Review Tribunal on 12 November 2013. 

7. On 15 January 2014, the Tribunal invited the Applicant to provide further information which, after the Applicant sought and was granted an extension of time, was provided on 24 February 2014. 

8. Pursuant to s.360 of the Act, the Tribunal invited the Applicant to appear before it to give evidence and present arguments. On 7 March 2014, the Applicant appeared before the Tribunal at the scheduled hearing with the assistance of an interpreter.

9. On 3 April 2014, the Tribunal affirmed the decision under review.  The Tribunal found that the Applicant was enrolled in a course of study from 19 August 2013 and that the Applicant worked the following hours per fortnight:

   ·From 19 August 2013 to 1 September 2013 for 148 hours;

   ·From 2 September 2013 to 15 September 2013 for 150 hours; and

   ·From 16 September 2013 to 29 September 2013 for 167 hours.

10. The Tribunal referred to the conflicting evidence given by the Applicant to the Department that I referred to earlier in these reasons.

11. The Tribunal considered the evidence provided by the Applicant, including a letter from the Applicant’s employer, and a Statutory Declaration from Mr Sukhwinder Singh Mahal, stating that he was the person wrongfully using the Applicant’s PIN, four to five times per week.  The Tribunal found that these documents were unreliable and gave them little weight.  Further, the Tribunal considered the log report provided by the Applicant, which showed the Applicant’s PIN being used primarily in vehicle 800 on five to six days per week.

12. The Tribunal found it implausible that Mr Mahal could have obtained the Applicant’s PIN and used it to drive the same vehicle as the Applicant on the days that the Applicant alleged he was not working, and that such arrangement would have required co-ordination. The Tribunal gave considerable weight to the driver’s log records and the concession given by the Applicant in his interview on 1 November 2013, which I referred to a little earlier. The Tribunal found that the Applicant had fabricated his claim that someone else used his PIN to conceal the number of hours he had been working. Accordingly, the Tribunal concluded that the Applicant had not complied with condition 8105 of the visa.

13. The Tribunal then went on to consider whether to exercise its discretion to cancel the visa.  In considering its discretion in this respect, the Tribunal found that the extent of the breach, that is, that the Applicant worked significantly more than the maximum hours prescribed by the condition, and the Applicant’s attempt to deny the breach, outweighed the factors raised by the Applicant, being his fear of unemployment in India, and desire to remain in Australia.

14. Having considered all that evidence and the policy guideline contained in the Department’s Procedures Advice Manual, the Tribunal found no reason why the visa should not be cancelled and concluded that the decision under review must be affirmed. 

15. I have heard submissions on behalf of the Applicant, with the assistance of an interpreter, and I have explained to the Applicant the difficult concept of jurisdictional error.  None of the submissions put by the Applicant lead to a conclusion that there was a jurisdictional error.

16. The Applicant’s grounds of review were as follows, (and I read this as it is in the document):

    “First ground:  My visa was rejected on the behalf of login PIN that I have used in taxi, but at the end I have found that some is using my PIN.  My PIN was stolen.  The guy who have stolen my PIN and he was using without my consideration being caught by me and the help of my owner, he admits and gave me statutory declaration.  I gave all proof to my MRT officer, but she gave a decision against me which is quite shocked and unfair to me.”

    “Second ground:  Immigration said to me, “If you bring that person who used PIN, we will consider that decision, but it is too hard to investigate in such a short period of time.”

    Neither of these grounds establishes a jurisdictional error on the part of the Tribunal.  They are dressed up applications for merits review.  This Court does not have jurisdiction to undertake its own assessment of the factual merits of the Tribunal’s decision.

17. The jurisdiction of the Court, as I explained to the Applicant, is limited to a consideration only of the legality of the decision by the Tribunal to affirm the Delegate’s decision, and that is a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error. 

18. The Tribunal conducted a full review of the merits of the Applicant’s case and made critical findings against the Applicant.  These findings were open to it to make. 

19. The Applicant has not shown to the Court any error in this regard and on that basis, the application must fail.

20. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  6 May 2015