Singh v Minister For Immigration and Anor (No.2)
[2017] FCCA 660
•24 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 660 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a higher education sector visa – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.116 |
| Cases cited: Singh v Minister for Immigration & Anor [2017] FCCA 250 |
| Applicant: | SARBJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 512 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 24 March 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Tattersall of Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 512 of 2015
| SARBJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 5 November 2015, seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 October 2015. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant, Mr Singh’s, subclass 573 higher education sector visa.
Background facts concerning cancellation of the visa and the decision of the Tribunal on review are set out in the Minster’s outline of submissions filed on 2 February 2017.
Mr Singh, a citizen of India, was granted the visa on 27 February 2014. The visa was subject to condition 8516 which required Mr Singh to continue to satisfy the criteria for the grant of the visa[1].
[1] Court Book (CB) 1-4
On 24 November 2014, the Minister’s Department (Department) issued Mr Singh with a Notice of Intention to Consider Cancellation (NOICC) of the visa on the basis of an apparent breach of condition 8516[2].
[2] CB 12-18
The NOICC noted that PRISMS records indicated Mr Singh was no longer enrolled in a bachelors degree or masters degree course and that he was no longer enrolled in a course of study that was a principal course of study of a type specified by the Minister for subclass 573 visas[3].
[3] CB 15
On 28 November 2014, Mr Singh's representative provided a response to the NOICC[4], including a written submission by Mr Singh advising that he suffered depression following the break up of a long standing relationship and approached his university to cancel his higher education course. Mr Singh then decided to pursue "the field of culinary science", obtained enrolment at Kingston International College and submitted evidence of an offer of enrolment in a Bachelor of Business (Major in Management) dated 26 November 2014.
[4] CB 20-56
On 27 January 2015, the delegate decided to cancel the visa under s.116(1)(b) of the Migration Act 1958 (Migration Act)[5].
[5] CB 58-70
On 29 January 2015, Mr Singh lodged an application for review to the Tribunal[6]. Mr Singh appointed a migration agent to represent him and provided a copy of the delegate's decision with the review application[7].
[6] CB 71-72
[7] CB 49
Tribunal decision
7 On 26 October 2015, following a hearing on 21 October 2015, the Tribunal affirmed the decision of the delegate to cancel Mr Singh’s visa[8].
[8] CB 138 and 146-151
The Tribunal found that Mr Singh had breached condition 8516 when he ceased to be enrolled, or be the subject of an offer of enrolment, in a higher education course[9]. Accordingly, the Tribunal was satisfied that the ground for cancellation in s.116(1)(b) of the Migration Act existed[10].
[9] CB 148[15]
[10] CB 148[16]
In considering whether the discretion to cancel Mr Singh’s visa should be exercised, the Tribunal had regard to the relevant factors contained in the PAM3 "General visa cancellation powers" document and Mr Singh’s evidence to the Department and the Tribunal. It made the following relevant findings:
a)Mr Singh should have been familiar with the requirements of the visa conditions if he had a genuine intention to comply with them and it was not satisfied he had made an adequate effort to ensure he complied with same[11];
b)Mr Singh’s change from business to hospitality courses caused the Tribunal concern as to whether he ever had a genuine intention of pursing the course for which the visa was granted and it did not accept that he had a genuine intention of pursing higher education study in Australia[12];
c)Mr Singh’s breach of condition 8516 was significant because he had not engaged in higher education study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. Although the Tribunal accepted that Mr Singh wished to pursue a different course it did not accept that it justified Mr Singh’s decision to abandon higher education study[13].
d)It was prepared to accept that hardship may be caused by the cancellation because Mr Singh would not be able to pursue study in Australia, however, the vocational courses already completed by Mr Singh might be of some assistance to him[14].
[11] CB 150[32]
[12] CB 150[36]
[13] CB 150[38]
[14] CB 151[39]
Ultimately, the Tribunal considered Mr Singh’s circumstances as a whole but considered that the visa should be cancelled[15].
[15] CB 151[41]
The present proceedings
The present proceedings, as I have noted, began with the judicial review application filed on 5 November 2015. The application is supported by a short affidavit filed with it, which I accepted, subject to relevance.
Procedural orders were made by a registrar on 9 December 2015. Those orders provided for a hearing on 26 August 2016, but that has been deferred, it appears, several times. Most recently, Mr Singh filed an Application in a Case, seeking an adjournment, on 10 February 2017. That application was successful[16]. Mr Singh was given the opportunity, by orders made at that time, to file additional material. He has not taken up that opportunity.
[16] see Singh v Minister for Immigration & Anor [2017] FCCA 250
I explained to Mr Singh this morning the limitations on this Court’s jurisdiction. He seeks a fresh look at his circumstances. He explained to me that he is a genuine student, who found his initial studies too difficult, and he also encountered some personal problems. He also encountered a difficulty with his agent, once he became aware of the intention to cancel his visa.
Mr Singh has, it appears, diligently been pursuing vocational studies in cookery for at least the last two years. He has completed a certificate III and a certificate IV in those studies. He wishes to undertake a diploma before returning to India. That diploma will take a further 18 months. Mr Singh explained all of this to me in his oral submissions. He was, however, not able to point to any legal problem in either the decision of the Tribunal or the process followed by the Tribunal.
Mr Singh’s judicial review application is, on its face, defective, in that it does not point to any asserted jurisdictional error. He has had the opportunity to amend it, but he has not taken up that opportunity. In discussion with Mr Singh today and on my own reading of the material in the court book, which I received as evidence, no error is apparent to me.
Before the Tribunal, Mr Singh did not dispute that he was in breach of condition 8516. He nevertheless sought the Tribunal’s exercise of its discretion not to cancel his visa. The Tribunal considered all of the matters raised by Mr Singh but was not persuaded that they warranted a favourable exercise of discretion. I see no error in the Tribunal’s approach. The conclusions reached by the Tribunal were open to it. There is no suggestion of any breach in the Tribunal’s procedural code.
I conclude that the decision of the Tribunal is free from any jurisdictional error. The decision is therefore a privative clause decision, and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $5,800. That is significantly below the amount prescribed under the Court scale and Rules. Mr Singh claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order. I explained to Mr Singh the consequences of the making of a costs order.
I will order that applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 5 April 2017
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