SINGH v Minister for Immigration
[2011] FMCA 494
•6 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 494 |
| MIGRATION – Review of Migration Review Tribunal decision – visa – student visa – cancellation pursuant to s.116(1) of the Migration Act 1958 – condition permitting grant of visa no longer existed – criteria to be applied under s.116(1) – changes to the regulatory regime subsequent to grant of visa not relevant. |
| Migration Act 1958, ss.116, 348, 353, 357A, 362B, 368, 414, 415, 420, 430, 474 Migration Regulations 1994, regs.1.12, 1.15A, 2.43, cl.573.312 of sch.2 Migration Amendment Regulations 2009 (No.7) |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 |
| Applicant: | SUKHWINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 215 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 June 2011 |
| Date of Last Submission: | 23 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 215 of 2011
| SUKHWINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India who arrived in Australia on 14 October 2008 as the holder of a subclass 676 tourist visa. On 22 December 2008 he was granted, as a secondary applicant, a subclass 573 Student (Temporary) (Class TU) visa on the basis that he was a member of the family unit of the primary applicant, Ms Kulwinder Kaur, who was his then spouse. On 14 July 2010 a delegate of the first respondent (“Minister”) cancelled the applicant’s visa pursuant to s.116 of the Migration Act 1958 (“Act”). The delegate found that the applicant was no longer a member of Ms Kaur’s family unit and therefore a circumstance which permitted the grant of the visa no longer existed. The applicant subsequently sought review of that decision with the second respondent (“Tribunal”). He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Section 116 of the Act relevantly provides:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) any circumstances which permitted the grant of the visa no longer exist; …
…
(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.
The prescribed circumstances referred to in s.116(3) requiring mandatory cancellation are found in reg.2.43 of the Migration Regulations 1994 (“Regulations”). However, even if no prescribed circumstances exist, if the Minister is satisfied that there is a ground for cancellation under s.116(1) he or she may, on that basis, cancel the visa in question in the exercise of his or her discretion.
In determining a review the Tribunal has the same powers and discretions as the Minister: s.415 of the Act.
Application for review
In submissions received by the Tribunal on 30 September 2010 the applicant confirmed that his relationship with Ms Kaur had broken down. He submitted, however, that there was a number of “positive reasons” for the Tribunal to exercise its discretion not to cancel his visa, namely:
a)he had paid for and was enrolled in a “General English (ELICOS[1], Beginner to Advanced)” course at Global English College. That course was due to start on 18 October 2010;
b)he had also paid for and was booked to do an International English Language Testing System (“IELTS”) test on 11 December 2010. Upon successful completion of the test he would lodge an application for a student visa and embark on improving his English and undertake study for a Diploma of Business;
c)if his student visa remained cancelled he would be affected by public interest criterion 4013; that is, he would not be able to satisfy the criteria for the grant of a student visa for three years from the date of the cancellation;
d)he was a genuine student who would study conscientiously in Australia; and
e)he had incurred substantial costs related to his enrolment and IELTS test application.
[1] English Language Intensive Course for Overseas Students
At a Tribunal hearing on 29 October 2010 the applicant claimed that he came to Australia to visit his sister. He claimed that he married Ms Kaur in January 2008 and subsequently stayed in Australia as her spouse but they later divorced as she found another boyfriend. The applicant claimed that he had only applied to study after his student visa was cancelled because, prior to this, he had been dependent on his spouse. He said that he wanted to stay in Australia “and become someone so that he can support his family so that he can be all right [sic]”.
The Tribunal was satisfied that the applicant was granted a subclass 573 visa on the basis of his membership of his then-spouse’s family unit. However, the Tribunal found that the circumstances which permitted the grant of the visa no longer existed as the applicant had ceased to be Ms Kaur’s spouse and a member of her family unit. The Tribunal was therefore satisfied that grounds existed for the cancellation of the applicant’s visa under s.116(1)(a) of the Act.
Noting that reg.2.43 prescribed no circumstances in which it was mandatory that the applicant’s visa be cancelled, the Tribunal considered whether, in the exercise of its discretion, it would affirm the delegate’s decision. In considering how it would exercise that discretion the Tribunal noted, amongst others things, the following matters:
a)the applicant’s purpose in coming to Australia was to see his sister, a purpose which he had achieved. His purpose then changed to being the spouse of Ms Kaur, a relationship which no longer existed;
b)the applicant claimed that he now wished to study in Australia. However, he did not study after finishing school in India or when he came to Australia and it was only after his visa was cancelled that he applied to do a course and to sit the IELTS test. In the circumstances, the Tribunal was not satisfied that studying was of great importance to him;
c)the cancellation of his visa would not affect any subsequent application he might make for a student visa as public interest criterion 4013 did not apply in circumstances where a visa had been cancelled pursuant to s.116(1)(a);
d)if the Tribunal were to set aside the cancellation it would be reinstating a visa to which the applicant was no longer entitled; and
e)the Tribunal was not satisfied that the cancellation of the applicant’s visa would cause him any significant hardship.
Having regard to all the evidence before it, the Tribunal was satisfied that the reasons for cancelling the applicant’s visa outweighed the reasons for not cancelling his visa. The Tribunal therefore affirmed the decision of the delegate to cancel the applicant’s subclass 573 visa.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1.The Migration Review Tribunal made jurisdictional error by misapprehending my claim and failing to conduct a review of the delegate’s decision in accordance with the particular social group that I claimed to belong to and failing to address all integers of my claim.
2.The Migrational [sic] Review Tribunal made jurisdictional error by breaching s.414, 420 and 430 (I) (D) because of its failure to recognise the established facts in reviewing the delegate’s decision and dismissing the application.
3.The Migration Review Tribunal erred in law by adopting the reasoning of the Department of Immigration and Citizenship and misunderstood its task and essence of my matter. Therefore asked me the wrong questions.
4.The Migration Review Tribunal erred by denying me procedural fairness and natural justice in the handing down of the decision, and in doing so failed to exercise its jurisdiction under the Migration Act 1958.
Ground 1
The first ground of the amended application alleges that the Tribunal misapprehended the applicant’s claim and failed to deal with central elements of it. The particular social group was particularised as “innocent … people who have had subclass 573 visa cancelled” but any other integers of the applicant’s claim purportedly not addressed by the Tribunal were not identified.
The allegation, in the form in which it is made, appears to have been drawn in the context of an application for a protection visa, particularly where it refers to membership of a particular social group. Membership of a particular social group may be an element of a claim for the grant of a protection visa but is not a criterion for the grant of a temporary student visa. As the relief which the applicant sought from the Tribunal was the reversal of a decision to cancel a temporary student visa, not the grant of a protection visa, it is unsurprising that he never claimed to the Tribunal that he should have been allowed to keep his visa on the basis that he was a member of a particular social group. As the applicant did not raise with the Tribunal his claimed membership of a particular social group and, in any event, it is not a basis on which a temporary student visa may be granted or maintained, this element of the first allegation is misconceived and discloses no error on the Tribunal’s part.
The second part of the allegation is that the Tribunal failed to deal with all the integers of the applicant’s claim. Again, that is an allegation which is more at home in the protection rather than the student visa context, although it is not impossible for it to have relevance to these proceedings. Nevertheless, on the facts it is not made out. The claim which the applicant made to the Tribunal recognised that a necessary factual precondition of his entitlement to a temporary student visa had disappeared when he and his former wife separated or divorced but, even so, he submitted that other issues indicated that, in the exercise of the Tribunal’s discretion, he should be allowed to keep that visa. The matters which the applicant advanced turned on his intention to study in Australia, the steps he had taken to prepare himself for study and to demonstrate his capacity to study in the English language, his desire to “become someone” so he could support his family and be “all right” and his concern that if his visa was cancelled public interest criterion 4013 would operate such that he would not be able to satisfy the criteria for the grant of another student visa for three years from the date of that cancellation. However, and contrary to the applicant’s allegation, the Tribunal did consider these and other issues when determining whether to exercise its discretion in the applicant’s favour. For this reason, the second element of the first allegation does not support a finding that the Tribunal erred.
Ground 2
The second ground of the amended application also appears to be drawn from the protection visa context as the provisions of the Act to which it refers are not concerned with the Tribunal but instead with the Refugee Review Tribunal. However, although s.414, to which the applicant refers, has a Tribunal equivalent in s.348, s.420 has an equivalent in s.353 and s.430(1)(d) has an equivalent in s.368(1)(d), these statutory provisions are of secondary significance because this ground of the amended application is based on an allegation that the Tribunal failed to recognise what the applicant described as “established facts”.
By reference to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 the applicant submitted that the Tribunal might have erred if it failed to make a finding on a substantial, clearly articulated argument based upon established facts. However, he did not particularise the argument or facts in question and, as noted in [15] above, the Tribunal did deal with the evidence which the applicant gave and the arguments which he advanced. Further, to the extent that the applicant alleges that some established fact was not “recognised”, s.368(1)(d) does not require the Tribunal when articulating its reasons for decision to set out every fact or aspect of the evidence which is before it, only that evidence on which findings on material questions of fact were based. It did this. For these reasons, the second ground of the amended application is not made out.
Ground 3
The third ground of the amended application alleges that the Tribunal erred because it adopted the department’s reasons, misunderstood its task and the essence of his matter and asked him the wrong questions. The applicant particularised this allegation by stating that the regulations relevant to his application changed between the date when his visa was granted and the date of the Tribunal’s decision. He also submitted that both the delegate and the Tribunal assumed that because of a breakdown in his relationship with his former wife he had “by some means unknown to me ceased to be the spouse of my wife and thus ceased to have the right to hold Higher Education Sector visa”. In this regard, he further submitted that the Tribunal had misread or misapplied reg.1.15A of the Regulations.
Although the outcome of the Tribunal’s review was the affirmation of the delegate’s decision, the Tribunal’s decision record discloses that it nevertheless performed its own consideration of the evidence, submissions and issues raised by the applicant. The Tribunal’s decision indicates that it conducted a bona fide review and did not simply go through the motions of a review. Nor did the Tribunal misunderstand its task or the essence of the review application which the applicant brought to it. As observed earlier in relation to the first ground of the amended application, the Tribunal considered the claims which the applicant made, together with his evidence and arguments. It understood the case which the applicant was making and considered his claims, evidence and arguments by reference to the appropriate statutory provision of the Act, s.116, in a way which does not disclose error.
As to the allegation that the Tribunal asked the applicant the wrong questions, it is for an applicant to make his or her case by putting evidence and arguments before the Tribunal. The Tribunal is not required to ask any particular question of an applicant. To the extent that the applicant alleges that the Tribunal’s questions indicate that it misunderstood its task and the essence of his matter, for the reasons already given, I am not of the view that it did.
As to the change in regulations, to the extent that the amended application refers to a change in reg.2.43, any such change is of no relevance to this application as the Tribunal did not base its decision on there having been a prescribed condition which required the cancellation of his visa pursuant to s.116(3). Its decision not to set aside the cancellation of his visa was based on an exercise of discretion pursuant to s.116(1).
However, to the extent that the applicant refers in his particulars to a change in the regulations relevant to the criteria for the grant of the visa, even a material change of this sort would not have been relevant to the Tribunal’s consideration. This is because s.116(1), the provision on which the Tribunal based its decision, refers to circumstances which permitted the grant of the visa no longer existing. That section is concerned with only two things: the conditions which permitted the grant of the visa at the time it was granted and whether the circumstances which satisfied those conditions still existed at the time of decision. Section 116(1) is unconcerned with whether there has been any subsequent change to the regulatory regime.
In relation to the grant of the applicant’s visa, the Tribunal correctly and relevantly referred to the secondary criterion for such a grant, that the applicant be a member of the family unit of the primary visa holder, his former wife: see cl.573.312(4) of sch.2 to the Regulations. It also correctly referred to reg.1.12 which, relevantly, provided that a spouse of an applicant for a Student (Temporary (Class TU)) visa was thereby a member of the latter’s family unit. The Tribunal was required to consider those provisions in the form in which they existed at the time the applicant’s visa was granted, i.e. 22 December 2008, not at the time when it made its decision, although on this occasion those regulations did not relevantly change in that time. Consequently, this aspect of the allegation does not demonstrate error on the Tribunal’s part.
The amended application further particularised this ground by reference to reg.1.15A which specifies matters which may be taken into account when considering whether a couple are in a spousal relationship. The applicant is correct when he says that reg.1.15A changed between the grant and the cancellation of his visa; the version of reg.1.15A in force when his visa was granted on 22 December 2008 was repealed by Migration Amendment Regulations 2009 (No.7) and replaced with a new version of the regulation with effect on 1 July 2009. However, as observed earlier, the question which s.116(1) posed was whether the applicant would, at the time of the Tribunal’s decision, still satisfy the criteria which applied when the visa was granted. In considering that question, the Tribunal was required to apply the Regulations as they stood on 22 December 2008 to determine whether the applicant still satisfied the definition of “spouse” and thus the relevant criterion for the grant of his former temporary student visa. It is apparent from the Tribunal’s reasons that this is what it did and it was correct to do so. It would have erred if it had applied the version of reg.1.15A which was in force at the time of its decision.
Ground 4
The particulars of the allegation that the applicant was denied procedural fairness state that he received his invitation to attend the Tribunal’s hearing only two days before the hearing was listed but the Tribunal refused his request for additional time in order to arrange legal representation. His particulars state that he was denied an opportunity to fully present his case because he needed more than two days to prepare it.
The Tribunal was satisfied that the applicant had been advised of the hearing in accordance with the Act and the applicant has not disputed this. In its decision, the Tribunal also referred to the fact that the applicant had lodged his application for review on 21 July 2010 and that it had, that day, informed him that if he wished to provide material or written arguments to it he should do so as soon as possible. In fact, the Tribunal’s letter was dated 22 July 2010 but this error is so slight, and probably a typographical error given that the Tribunal had cited the correct date in para.22 of its reasons, as to be insignificant and, in my view, it had no material effect on the Tribunal’s exercise of its discretion. The Tribunal also pointed to the s.357A notice it had sent the applicant on 14 September 2010. In light of these facts, it concluded that the applicant had had sufficient time prior to the hearing to seek legal advice.
Although the Tribunal was empowered by s.362B to delay its hearing, it was not obliged to grant the applicant’s request for such a delay. Its decision whether or not to grant the request was a discretionary one and it explained in its reasons for decision why it decided not to grant the delay sought. In light of those reasons, I am not satisfied that it has been demonstrated that the Tribunal’s exercise of discretion miscarried.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 6 July 2011
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