SINGH v Minister for Immigration

[2013] FCCA 1718

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1718

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – whether Tribunal failed to consider evidence supplied by applicant – whether Tribunal decision irrational and illogical – whether Tribunal failed to consider integer of claim – where applicant claimed enrolment cancelled in breach of Education Services for Overseas Students Act 2000 (Cth) – whether Tribunal required to review education provider’s compliance with Act – whether court required to review education provider’s compliance with Act – whether Tribunal fell into jurisdictional error.

Legislation:
Migration Act 1958 (Cth), ss.116(1)(b) and 116(3)

Education Services for Overseas Students Act 2000 (Cth)

Hassan v Minister for Immigration and Citizenship [2012] FCA 816

Applicant: SIMRANJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 212 of 2013

Judgment of: Judge Raphael

Hearing date: 18 October 2013

Date of Last Submission: 18 October 2013

Delivered at: Sydney

Delivered on: 18 October 2013

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,750.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 212 of 2013

SIMRANJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application for review of a decision of the Migration Review Tribunal affirming a decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector Visa. The grounds upon which the visa was cancelled was that he failed to comply with condition 8202 of Schedule 8 to the Regulations.  The relevant provision of condition 8202 in this case reads as follows:

   “(1)The holder (…) must meet the requirements of subclauses (2) and (3).

   (2)    A holder meets the requirement of this subclause if:

   (a)  the holder is enrolled in a registered course; or

   (b)in the case of the holder of a Subclass 560 or 571 (school sector) visa, who is a secondary exchange student, the holder is enrolled in a full time course of study or training.”

2. The visa was cancelled pursuant to the powers given to the Minister under ss.116(1)(b) and 116(3) of the Migration Act 1958 (Cth).

   “[116](1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (b) its holder has not complied with a condition of the visa; or

   …

   (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.”

   Regulation 2.43, Grounds for Cancellation of a Visa, subsection (2), is also relevant:

   “ (2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

   (a) in the case of a visa other than a relevant visa--each of the circumstances comprising the grounds set out in:

   (i)      sub-subparagraphs (1)(a)(i)(A) and (B); and

   (ii)     paragraph (1)(aa); and

   (iii)     paragraph (1)(b); and

   (aa) in the case of a relevant visa--the circumstance comprising the grounds set out in subparagraph (1)(a)(ii).”

3. The reason for the cancellation of this applicant’s visa was that, for a period of time between 12 February 2012 and 7 June 2012, he was not enrolled in a course.  On 5 June 2012 the applicant was issued with a Notice of Intention to Consider Cancellation because on 12 February 2012 his then education provider, Unique International College, reported him on the PRISMS for non-commencement of studies.

4. The applicant accepts that he was not enrolled in a course from 13 February until he enrolled in a Diploma of Management with the Australian Vocational Learning Centre on 7 June 2012.  That was after he had been issued with the NOICC.  When the matter came to be considered by the delegate and then by the Tribunal this fact was not challenged and the debate between the decision makers and the applicant was whether or not the non-compliance was due to exceptional circumstances beyond his control.  The applicant told that towards the end of 2011 he had a number of issues.  He told that his mother was ill in India and that this caused him psychological disturbance.  This occurred in December but under questioning from the Tribunal, it was revealed, firstly, that the applicant had contacted his family in India and they had told him that his mother’s condition was not too serious and that he should not travel to India to see her.  It was also revealed that the applicant continued his enrolment until February 2012 and that he did not seek a deferral of his enrolment because of his condition nor did he report any problems to his college.  There is some confusion within the decision record as to whether the applicant became re-enrolled in the new course on 30 April 2012.  This is not really relevant because there did exist a lengthy period of time between 12 February 2012 and at least 30 April 2012 of two and a half months when he was not enrolled and, therefore, was in breach of condition 8202.

5. The applicant produced a medical report in support of his submission that his mental condition constituted exceptional circumstances.  Of that, the Tribunal said:

   “[46]The [report] from Priority Medical Centre states that the applicant came in due to stress and states that he was unable to concentrate on his studies due to “too much stress and family issues in India”.  This medical report appears to be based on the applicant self-reporting  rather than offering an independent examination of the applicant’s mental state or any basis for independent assessment.  That medical report does nothing to explain why, or whether, the applicant was unable to maintain enrolment.  The Tribunal also considers it significant that the medical certificate refers to the applicant being diagnosed with depression in India and states that he was unable to concentrate on his studies for the past three months (it is dated 10 March 2012).  It does not explain how despite such depression since early January 2012, the applicant was able to maintain enrolment until February 2012 and what change in his circumstances that affected his ability to maintain enrolment after February 2012.  For these reasons, the Tribunal considers the medical certificate from Priority Medical Centre to be unhelpful and gives it no weight as evidence that the applicant’s depression affected his ability to maintain enrolment in a registered course.”  [CB 108 – 109]

   The medical certificate itself can be found at [CB 20].

6. The applicant complained to the Tribunal that the education provider had breached its obligations under the Education Services for Overseas Students Act 2000 (Cth)[1] by failing to issue him with warning letters and offer counselling.  But the Tribunal, in its Findings and Reasons, concluded:

   “[51]The Tribunal does not consider that the obligations to issue warning letters and offer counselling apply in relation to non-enrolment.  In any case, the applicant claims he became aware of the cancellation of his enrolment by late February 2012 and sought to enrol in another course and had not explained what he would have done differently, had he received a notice of intention to report from the education provider before his CoE was cancelled.  [CB 109]

   The Tribunal concluded that it could not be satisfied that there were exceptional circumstances that enabled it to exercise its discretion not to cancel the applicant’s visa.

   [1] ESOS Act

7. On 6 February 2013 the applicant filed an Application for review of that decision in this court.  There were seven grounds of application.  The first was:

   “1.The member of the Migration Review Tribunal did not consider the corroborative evidences which I provided.”

8. This is not a correct statement.  The Tribunal did consider the corroborative evidence supplied by the applicant, namely, the two medical certificates.  The first one was from a dentist.  That can hardly be said to have caused him not to enrol.  The second one was from the doctor, which was considered by the Tribunal and it gave its reasons for not giving any weight to it.  For this court to interfere in that decision would be to provide the applicant with merits relief that is not permissible in this court.

9. The second ground of application was:

   “2.The decision of the Migration Review Tribunal is arbitrary, capricious, irrational and illogical.  The member’s thoughts are based on her own imagination.”

   No particulars of this ground have been provided.  Nothing the applicant said to me today came anywhere near making out this allegation.  It is not sustainable.

10. The third ground of application was:

    “3.The member’s belief that Dr Maria Jelinek is not qualified to assess what I have stress is subjective.  Dr Maria Jelinek is a registered medical practitioner and is capable to give medical assessment.  The member’s objection that Dr Jelinek’s report “does not indicate how the diagnosis was made or on which basis the conclusion was reached” is completely baseless.  Dr Jelinek has the capacity to make his medical judgment and his report.  The Tribunal rejected this report and did not give much weight.  The Tribunal has failed to understand that the impact of depression can exist prior to and after the consultation with the medical specialists.”

    This is, again, an argument on the merits of the Tribunal’s decision not to give any weight to the doctor’s report and, again, is not a matter that this court can undertake.  That ground is also rejected.

11. The fourth ground is:

    “4.The Migration Review Tribunal has failed to provide me natural justice by failing to make any independent findings.”

    Again, the applicant has provided no particulars of this ground and without them, the court cannot make any findings in his favour.

12. The fifth ground is:

    “5.The member has also failed to consider that I could not enrol in the course because most of the terms of the colleges started in the month of February and when the positions became available I got enrolled in the course on 30.4.2012.

    The Tribunal did in fact take this matter into consideration although it did not believe that it would have assisted the applicant.  It would not be exceptional circumstances that the applicant was unable to enrol for the reasons that college terms had already started.  There is no merit in this ground.

13. Ground 6 is in the following form:

    “6.The idea of Tribunal member that I should have enrolled first and then got deferment is pointless.  If I had the mental strength to get enrolled and then obtain deferment I could then have rather continued studies.”

    This is, again, argumentative on the merits of the Tribunal’s decision and for the reasons previously given, is not sustainable.

14. Ground 7 is in the following form:

    “7.In Para 51 the Tribunal member has explained that there is no need to determine if the education provider with whom I was enrolled breached the ESOS Act.  The Tribunal member is of the view that my so called breach was not due to the invalid cancellation of visa.  I would like to state that my problem started only due to invalid cancellation of my enrolment.  Had the college given me proper notices I would have recovered my position and could have maintained my enrolment.  The Tribunal member does not want to see the connection between the two facts.  I got into more depression because my enrolment was cancelled without any valid reason.  The Tribunal member has failed to consider this point.”

    The Minister, in the helpful written submissions spoken to by Ms Burnett reminds the court that the only task for the Tribunal to determine in respect of condition 8202(2)(a) was whether the applicant was enrolled in a registered course (and not whether the applicant’s enrolment was cancelled in accordance with the requirements imposed by the ESOS Act).  The Minister rightly points out that the uncontroverted evidence before the Tribunal was that the applicant had not maintained enrolment.  It should also be noted that in any event the proceedings before the Tribunal do not entail a review of the education provider’s cancellation of an applicant’s enrolment, neither do the proceedings before the court; Hassan v Minister for Immigration and Citizenship [2012] FCA 816 where at [41 to 42] Cowdroy J on appeal from this court said:

    “[41]In Maan v Minister for Immigration[2009] FCAFC 150; (2009) 179 FCR 581, the Full Court of the Federal Court of Australia found at [44] that the fact of certification by the education institution that a student was not making satisfactory progress itself constitutes a breach of visa conditions.

    [42]In Kumar v Minister for Immigration and Citizenship[2011] FMCA 741, Jarrett FM stated at [28]–[29]:

    “28. Responsibility for certification clearly rests with the education provider. The only task for a decision maker (the Minister or a tribunal) is to determine that a certificate, on its face, is of a kind that engages condition 8202(3). The existence of the facts which underlie the certificate do not need to be determined by the tribunal. Were it to be otherwise, the certification process would become irrelevant and ineffective. The inquiry by the minister for the purposes of s 116(1) or 116(3) and reg 2.43(2) would become a broad ranging and perhaps cumbersome examination of the visa holder’s attendances and insofar as condition 8202(3)(a) is concerned, satisfactory academic performance. It is apparent that the Legislature has intended to leave judgments about those matters to education providers.

    29. The applicant argues that the above authorities, and in particular Mo, stand for the proposition that the tribunal is not required to go beyond the education provider’s certificate, but may do so if the facts before it warrant such a course. To the extent that the submission suggests that there is a discretion vested in the tribunal to examine the validity of an education provider’s certificate in any given case, I think the proposition is not sustainable on the authorities.”

15. It follows, from the above, that I am unable to provide the applicant with the review he seeks.  I dismiss the application.  The applicant must pay the first respondent’s costs assessed in the sum of $5,750.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  24 October 2013