Singh v Minister for Immigration
[2014] FCCA 1837
•18 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1837 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal – Student visa – visa cancellation – credibility findings – no appearance at hearing – whether grounds made out – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.116, 362B(1), 476, Part 5 Division 5 Migration Legislation Amendment Regulation 2013 (No.1) (Cth) |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 |
| Applicant: | JAGDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 47 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 July 2014 |
| Date of Last Submission: | 28 July 2014 |
| Delivered at: | Perth |
| Delivered on: | 18 August 2014 |
REPRESENTATION
| For the Applicant: | No appearance. |
| Counsel for the First Respondent: | Mr P J Corbould |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (made on 28 July 2014)
The application be dismissed.
The applicant pay the first respondent’s costs in the sum of $6646 by 28 August 2014.
Reasons for judgment will be published from Chambers at a later date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 47 of 2014
| JAGDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies to this Court for judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the Migration Review Tribunal[2] affirming a decision of a delegate[3] of the first respondent, the then Minister for Immigration & Citizenship, now the Minister for Immigration & Border Protection,[4] cancelling the applicant’s Class TU Subclass 573 student visa.[5]
[1] “Migration Act”.
[2] “Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 130-137.
[3] “Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 29-33.
[4] “Minister”.
[5] “Visa”.
When the matter was heard on 28 July 2014 the Court made the following orders:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs in the sum of $6646 by 28 August 2014.
3.Reasons for judgment will be published from Chambers at a later date.
These are the Reasons for Judgment referred to in order 3 above.
The background to the Visa cancellation
The background to the cancellation of the applicant’s Visa prior to the application to the Tribunal is as follows:
a)the applicant is a citizen of India;
b)on 14 July 2008 the applicant was granted the Visa;[6] and
c)on 16 November 2012 the then Department of Immigration and Citizenship,[7] gave notice of intention to consider cancellation of the applicant’s Visa pursuant to s.116 of the Migration Act 1958 (Cth).[8] The grounds for cancellation of the Visa were that that the applicant had not been studying a relevant course from 20 May 2011, and had therefore breached a condition of his Visa,[9] being Condition 8202 of Schedule 8 to the Migration Regulations1994 (Cth).[10]
[6] CB 28, 66 and 75.
[7] “the Department”, now the Department of Immigration and Border Protection.
[8] “Migration Act”.
[9]CB 1-3.
[10] “Migration Regulations”. Condition 8202 is contained in cl.8202 of Sch.8 to the Migration Regulations.
On 18 December 2012 the Delegate cancelled the applicant’s Visa. The Delegate determined that the applicant had not complied with Condition 8202 of Schedule 8 to the Migration Regulations and that his non-compliance was not due to exceptional circumstances beyond the applicant’s control.[11]
[11] CB 23-33.
The Tribunal proceedings
On 4 January 2013 the applicant applied to the Tribunal for review of the Delegate’s Decision.[12]
[12] CB 41-51.
On or about 31 August 2013 the applicant appointed Mr Michael Stewart of Multinational Group[13] as his representative and authorised recipient.[14]
[13] “Mr Stewart”.
[14] CB 87.
By letter dated 4 September 2013, the Tribunal invited the applicant to attend a hearing on 23 October 2013. The letter was sent to Mr Stewart as the authorised recipient of the applicant.[15]
[15] CB 89-91.
On 3 October 2013 Mr Stewart requested an additional 60 days to allow the applicant “to correctly and fully prepare for the hearing with appropriate documents to support his application”. The Tribunal refused the request to postpone the hearing.[16]
[16] CB 97 and 131 at para.6.
On 22 October 2013 the Tribunal received correspondence from Mr Stewart advising that the applicant would not be attending the hearing the following day for medical reasons. On 23 October 2013 Mr Stewart provided a medical certificate from Dr Donald Bott dated 22 October 2013 certifying that the applicant was “unable to work”.[17]
[17] CB 101-102 and 131 at para.8.
By letter dated 1 November 2013, the Tribunal invited the applicant to appear before the Tribunal at a hearing on 26 November 2013. The letter was sent to Mr Stewart as the applicant’s authorised recipient but was returned unclaimed to the Tribunal on 6 November 2013.[18]
[18] CB 104-107.
On 9 December 2013 Mr Stewart contacted the Tribunal and was advised that the applicant had not attended the hearing on 26 November 2013. Mr Stewart was advised that if the applicant wished to attend a hearing he should write to the Tribunal immediately making that request. No request from the applicant was received by the Tribunal.[19]
[19] CB 111 and 132 at para.11.
By emails to Mr Stewart and the applicant dated 16 December 2013, the Tribunal invited the applicant to contact the Tribunal to request that a further hearing be listed, failing which the Tribunal would complete the review on the information currently available without affording a further opportunity to the applicant to appear before the Tribunal.[20]
[20] CB 112-113.
On 17 December 2013 Mr Stewart emailed the Tribunal to acknowledge that the hearing on 26 November 2013 was “a failed attendance” and requested the Tribunal to arrange another hearing for the applicant.[21]
[21] CB 116.
By letter dated 19 December 2013, the Tribunal invited the applicant to appear before the Tribunal at a hearing on 22 January 2014 and requested that any additional documents or information be provided to the Tribunal by 15 January 2014.[22]
[22] CB 118-120.
On 22 January 2014 the Tribunal received an email from Mr Stewart attaching an unsigned statement of the applicant and two other attachments,[23] the first being the front cover of a major crash investigation and vehicle crash report by the Western Australian Police pertaining to a crash on 11 June 2011,[24] and the second being an invoice from Andrew Monisse, a Barrister, dated 29 January 2012.[25] Neither the applicant nor Mr Stewart attended the scheduled Tribunal hearing on 22 January 2014. The Tribunal proceeded to determine the matter under s.362B(1) of the Migration Act.[26]
[23] CB 122-126.
[24] “WA Police Report”.
[25] “Barrister’s Invoice”.
[26] CB 127-133 at paras.17-20. Section 362B(1) of the Migration Act provides as follows:
Tribunal Decision
The Tribunal Decision sets out the procedural history, the Tribunal expressing its concern at the conduct of the applicant and the applicant’s representative, and ultimately noting that it was not prepared to exercise its discretion favourably to the applicant a third time to allow the matter to be adjourned, and proceeded to determine the matter under s.362B(1) of the Migration Act.[27]
[27] CB 131-133 at paras.4-20.
The Tribunal correctly identified the issue at the outset, namely whether the applicant had breached Condition 8202 of Schedule 8 to the Migration Regulations, and whether in those circumstances the Tribunal might exercise a discretion under s.116(1) of the Migration Act to cancel the Visa.[28] In so doing the Tribunal noted that the former reg.2.43(2)(b)(ii) of the Migration Regulations requiring that non-compliance with a visa condition that was not due to exceptional circumstances beyond a visa-holders control required the cancellation of a visa was not applicable to the applicant.[29]
[28] CB 133-134 at paras.21-24.
[29] CB 133-134 at para.23.
The Tribunal turned, correctly, to the first issue of whether the applicant complied with Condition 8202 of Schedule 8 to the Migration Regulations which, in its application to the applicant, required that he be enrolled in a registered course.[30] The Tribunal found that there was no evidence that the applicant was enrolled in a registered course between 20 May 2011 and the Delegate’s Decision to cancel the Visa on 18 December 2012, and therefore found that the applicant had not held an enrolment in a registered course for a period in excess of 18 months, and that that constituted non-compliance with Condition 8202 of the applicant’s Visa.[31]
[30] CB 134 at para.25.
[31] CB 134 at paras.26-28.
The Tribunal then turned to consider whether the Tribunal ought to exercise its discretion to cancel the Visa.[32]
[32] CB 134 at para.29.
The Tribunal noted that there were no matters specified in the Migration Act or Migration Regulations required to be considered in relation to the exercise of its discretion, but that there were relevant government policy guidelines contained in the Department’s Procedures Advice Manual, as follows:
· the purpose of the visa holder’s travel to and stay in Australia
· if cancellation is being considered because of a breach of visa condition – the reason for, and extent of, the breach. As a general rule, a visa should not be cancelled where the breach of visa condition occurred in circumstances beyond the visa holder’s control
· the degree of hardship that may be caused to the visa holder and any family members
· the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)
· the visa holder’s past and present behaviour towards the department (for example, whether they have been truthful in statements or applications made to the department or have previously complied with visa conditions)
· whether there are persons in Australia whose visa would, or may, be cancelled under s140
· whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, such as:
-if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children
-whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where the person faces persecution, arbitrary deprivation of life, the death penalty, torture, cruel, inhuman or degrading treatment or punishment – for more information, see Australia’s international obligations.
· the impact of cancellation on any victims of family violence, if family violence is a factor
· any other relevant matters raised by visa holder.[33]
[33] CB 134-135 at para.30.
The Tribunal then took into account the evidence before it, including:
a)correspondence sent by the applicant to the Department in response to the notice of intention to consider cancellation of the Visa in which Mr Singh referred to “his hope, excitement and determination to attain higher education upon his arrival in Australia in 2008”, and his subsequent progress, which was summarised by the Tribunal as being “only” the completion of a five month graphic arts course in 2010;[34]
b)the applicant’s involvement in a serious motor vehicle collision in June 2011, as a consequence of which it appeared that he had been charged and convicted of a serious criminal offence in relation to the collision;[35]
c)the applicant’s stated intention in December 2012 in correspondence to the Department to commence a course on the next available date, and his request that his Visa not be cancelled so he could pursue his studies, in relation to which the Tribunal noted that there was no evidence of an enrolment in the subsequent course ever having been provided to the Department or the Tribunal;[36]
d)further information concerning the circumstances of the motor vehicle collision and prosecution, and the applicant’s intentions to enrol in various courses and obtain a skilled qualification, and the effect of the motor vehicle accident, court appearances and legal fees, and the applicant’s shame and depression in regard to the motor vehicle accident and its effects;[37] and
e)the single page extracts from the WA Police Report and Barrister’s Invoice, which the Tribunal assumed had been provided to corroborate the applicant’s evidence of the collision and prosecution in 2011.[38]
[34] CB 135 at para.31.
[35] CB 135 at para.32
[36] CB 135 at para.33.
[37] CB 135-136 at paras.34-36.
[38] CB 136 at para.37.
The Tribunal then turned to the exercise of its discretion and observed that:
a)it was not satisfied that the applicant’s purpose in travelling to and remaining in Australia was consistent with his holding of the Visa, because:
i)it inferred from the fact that the applicant had only completed a short course in graphic arts in 2010, and nothing else since his arrival in Australia, that he had been “occupied in pursuits other than study for the majority of his time in Australia”, and that was the case before the motor vehicle collision and its subsequent effects;[39]
ii)rejected the applicant’s submissions that his study history supported his contention that he was genuinely engaged in study whilst in Australia;[40] and
iii)the motor vehicle collision, whilst “highly traumatic” and having the potential to divert the applicant from study for a period, did not explain why the applicant had not enrolled in a registered course subsequently or why no evidence of an enrolment had been provided to the Tribunal;[41]
b)whilst recognising that the motor vehicle collision and consequential prosecution and financial hardship were to be taken into account, the Tribunal was concerned by the fact that the applicant’s unsatisfactory study record pre-dated the motor vehicle collision, and had continued on after the events of June 2011 in relation to the motor vehicle collision, and that the applicant had failed to take up multiple opportunities offered to participate in a hearing where he could have discussed those concerns with the Tribunal, and thus whilst the Tribunal accepted that the events in relation to the motor vehicle collision would have been “traumatic and distracting” did not consider that they satisfactorily or adequately explained the entirety of the circumstances of the breach of the Visa condition;[42] and
c)the circumstances surrounding the applicant’s serious criminal offence did not explain or constitute compelling or compassionate reasons as to why the Visa ought not be cancelled, particularly in light of the otherwise unsatisfactory progress in any event to which the Tribunal had otherwise referred.[43]
[39] CB 136 at para.39.
[40] CB 136 at para.41.
[41] CB 136 at para.40.
[42] CB 136 at paras.43-44.
[43] CB 137 at paras.45-46.
The Tribunal also took into account:
d)the degree of hardship that may be caused to the applicant and any family members and the applicant’s depression and shame that had arisen from the motor vehicle collision;[44]
e)whether there were persons in Australia whose visas would or may be cancelled under s.140 of the Migration Act, but determined that there was no evidence suggesting that that would be the case, and it was therefore not a material consideration in considering whether or not to cancel the applicant’s Visa;[45] and
f)that there were no relevant international agreement obligations or issues associated with family violence material to the decision.[46]
[44] CB 137 at para.47.
[45] CB 137 at para.48.
[46] CB 137 at para.49.
Taking all of the above matters into account and considering the circumstances known to the Tribunal “as a whole” the Tribunal concluded that the Visa should be cancelled, and in so doing found that the Tribunal’s concern, and finding concerning, the applicant’s purpose for being in Australia not being consistent with him holding the Visa outweighed the evidence put forward in relation to the applicant’s claims as to the circumstances of the breach of Condition 8202 of Schedule 8 to the Migration Regulations. The Tribunal observed that the failure of the applicant to attend the Tribunal hearing meant that he had not been able to “explore … further” the circumstances of the breach of Condition 8202 of Schedule 8 to the Migration Regulations. The Tribunal was not satisfied that it should not cancel the Visa.[47]
[47] CB 137 at para.50.
On 22 January 2014 the Tribunal affirmed the Delegate’s Decision to cancel the applicant’s visa.[48]
[48] CB 137 at para.51.
Application for judicial review
On 17 February 2014 the applicant applied to this Court for judicial review of the Tribunal Decision. The applicant seeks the following orders:
a)an order that the Tribunal Decision be quashed; and
b)that the Tribunal Decision be reviewed, and either another hearing before the Tribunal be convened or the Tribunal Decision be quashed and the Visa reinstated.
The application does not set out any grounds of application, but refers to the applicant’s attached affidavit.[49] The Applicant’s Affidavit filed 17 February 2014 sets out the following two grounds stating that the Tribunal Decision is:
· 2. …unfair and unjust and makes reference to my motor vehicle accident and I believe some of these comments are derogatory and a blemish against my true character.
· 3. …unfair and unjust in that it did not take into account the actual events, consequences and subsequent aftermath of my accident which resulted in my non attendance at the study college and hence the subsequent cancellation if (sic) my student visa.
[49] “Applicant’s Affidavit”.
On 19 March 2014 a Registrar of this Court ordered that the applicant file and serve, on or before 4 June 2014, an amended application giving particulars of the grounds of review and any further affidavit upon which the applicant intended to rely at the hearing listed on 28 July 2014. The applicant has not filed and served any amended application or any further affidavits.
The Court is aware that telephone contact was made with the presiding Judge’s chambers by a person from the applicant’s migration agent’s office indicating that the applicant was unlikely to appear at the hearing on 28 July 2014 for medical reasons, and that that person was advised that any medical certificate ought to be filed annexed to an affidavit. No affidavit annexing a medical certificate was filed thereafter, and no medical certificate was otherwise provided to the Court in any form. The matter was raised with Counsel for the Minister at the hearing, who, in the absence of any application for an adjournment by the applicant, sought that the Court determine the matter on the merits. There being no appearance by the applicant, nor any proper application for an adjournment on any grounds, let alone medical grounds, and no affidavit evidence or other written material which might be of assistance in considering whether the matter ought to be adjourned, the Court determined that the matter ought to proceed, and that in the circumstances, the Court would deal with the merits of the judicial review application.
Consideration
This Court will only have jurisdiction in relation to the Tribunal Decision if the Tribunal Decision is affected by jurisdictional error.[50]
[50] Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
The contentions in the Applicant’s Affidavit do no more than seek to have the Court impermissibly engage in a review of the merits of the Tribunal Decision. Those contentions do not assert nor establish jurisdictional error by the Tribunal.[51]
[51] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.
The evaluation of the evidence and the making of any adverse findings in relation to the applicant’s evidence and credibility was a matter for the Tribunal.[52]
[52] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.10 per Gray, Tamberlin and Lander JJ; Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J.
The Tribunal properly took into account:
a)Departmental policy guidelines: and
b)the statements and information provided by the applicant, including the circumstances and consequences of the applicant’s motor vehicle accident which he claims resulted in his non-attendance at college and the subsequent cancellation of his Visa. The Tribunal did not accept that these events explained why the applicant had not enrolled in a registered course at the date of Visa cancellation.[53] The Tribunal made no comment which could be characterised as “derogatory” of the applicant.
[53] CB 136 at para.40.
The Tribunal’s findings were open to it on the evidence, and its reasons for decision were not unreasonable, illogical or irrational in that the same decision was open to be made on the materials before the Tribunal by a Tribunal differently constituted.[54]
[54] Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611 at 649-650 per Crennan and Bell JJ; [2010] HCA 16 at para.135 per Crennan and Bell JJ.
The Tribunal correctly interpreted the applicable legislation, and took into account the repeal of reg.2.43(2)(b)(ii) of the Migration Regulations effected by the Migration Legislation Amendment Regulation 2013 (No 1).
The Tribunal also fulfilled its statutory obligations to the applicant under Division 5 of Part 5 of the Migration Act in the conduct of the review. It gave more than reasonable opportunity to the applicant to appear before the Tribunal to give evidence and present arguments. It was open to the Tribunal to exercise its power under s.362B(1) of the Migration Act to proceed to make a decision after the applicant failed to appear.
No jurisdictional error in the Tribunal Decision has been demonstrated. The application should be dismissed with costs.
Conclusion
It was for the above reasons that the Court ordered on 28 July 2014 that the application be dismissed and that the applicant pay the first respondent’s costs in the sum of $6646 by 28 August 2014.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 18 August 2014
(1) If the applicant:
(a) is invited under section 360 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
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