Singh v Minister for Immigration - [2012] FMCA 707

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 707

MIGRATION – Judicial review – student visa – whether exceptional circumstances – whether jurisdictional error.

Education Services for Overseas Students Act 2000 (Cth), ss.19, 20
National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007, standard 11
Migration Act 1958 (Cth), ss.116, 359, 359A, 474(1), 476(1) and (2)
Migration Regulations 1994 (Cth), reg.2.43(2)(b), Schedule 8, cl.8202(3)

Chen v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 142 FCR 257; [2005] FCA 229

Craig v South Australia (1995) 184 CLR 163

Hassan v Minister for Immigration & Citizenship [2012] FCA 816
Hatcher v Cohn & Ors (2004) 139 FCR 425; [2004] FCA 1548
Khant v Minister for Immigration & Citizenship [2009] FCA 1247
Kim v Minister for Immigration & Anor (2011) 254 FLR 19; [2011] FMCA 780
Maan v Minister for Immigration & Citizenship & Anor (2009) 179 FCR 581; [2009] FCAFC 150
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Patel v Minister for Immigration & Citizenship [2010] FCA 918

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
R v Kelly (Edward) [2000] 1QB 198

SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791
Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 918

Applicant:

SARABJEET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 344 of 2011

Judgment of:

Lucev FM

Hearing date:

14 August 2012

Date of Last Submission:

14 August 2012

Delivered at:

Perth

Delivered on:

24 August 2012

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Ms N Johnson

Solicitors for the First Respondent:

Sparke Helmore

For the Second Respondent:

Submitting appearance (save as to costs)

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 344 of 2011

SARABJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

By application filed on 21 November 2011 the applicant seeks judicial review by this Court under s.476 of the Migration Act1958 (Cth)[1] of a decision of the Migration Review Tribunal[2] dated 21 October 2011.[3] The Tribunal affirmed a decision of a delegate[4] of the Minister dated 28 February 2011 to cancel the applicant’s subclass 573 higher education sector visa.[5]
[1] “Migration Act”.
[2] “Tribunal”.
[3] “Tribunal Decision”.
[4] “Delegate’s Decision” and “Delegate” respectively.
[5] “Student Visa”.
The grounds of the application are that the Tribunal committed error in that it:
1.Did not accept that the breach of the student visa condition was due to exceptional circumstances beyond my control that included
(a)My family situation that had affected me both emotionally and psychologically resulting in losing interest…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 707
Decision Date

CaseChat Overview and Summary

The case of Singh v Minister for Immigration & Citizenship [2012] FMCA 707 is a judicial review of a decision of the Migration Review Tribunal (Tribunal) to affirm the decision of a delegate of the Minister for Immigration and Citizenship (delegate) to cancel the applicant's student visa. The sole ground of review is that the Tribunal did not accept that the applicant's breach of a visa condition was due to exceptional circumstances beyond his control. The applicant, an Indian national, had been certified by his education provider as not achieving satisfactory course progress and was issued with a notice of intention to cancel his visa under s.116(1)(b) and (3) of the Migration Act. The Tribunal found that the applicant had not complied with a visa condition, being cl.8202(3)(a) of Schedule 8 of the Migration Act, and that the non-compliance was not due to exceptional circumstances beyond his control. The Tribunal dismissed the applicant's claim that the cancellation of his visa was not fair because his family situation had affected him both emotionally and psychologically resulting in him losing interest in his studies, that his course provider had not properly informed him that his attendance was unsatisfactory or the impact on his student visa condition, that the course provider did not provide or use a standard of communication that he would have been informed in a timely manner, and that the course provider had not offered him any counselling or discussed his problems regarding his attendances. The Court found that the Tribunal's decision can only be set aside if jurisdictional error is shown in the Tribunal's decision. The Court held that the Tribunal properly understood and executed its merits review function and made findings of fact open to it on the evidence. The Court concluded that the application must be dismissed, and there will, therefore, be an order dismissing the application.

Orders