Singh v Minister for Immigration and Multicultural Affairs

[2002] FCA 557

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2002] FCA 557

Migration Act 1958 (Cth) ss 359(1), 359A

Migration Legislation Amendment (Overseas Students) Act 2000 (Cth)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, referred to

RANJIT SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V858 OF 2001

MARSHALL J
MELBOURNE
2 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V858 OF 2001

BETWEEN:	RANJIT SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	2 MAY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

2.The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V858 OF 2001

BETWEEN:	RANJIT SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MARSHALL
DATE:	2 MAY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This proceeding is an application under Part 8 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Migration Review Tribunal (“the MRT”). By its decision, the MRT affirmed a decision of a delegate of the respondent to cancel the applicant’s student visa.

   Factual background

2. The applicant is a citizen of India. He entered Australia on 8 February 1999 as the holder of a student visa (officially known as a Student (Temporary) (Class TU) visa, subclass 560) (“the visa”). The visa was issued on 3 February 1999 and was due to expire on 15 March 2001.

3. On 13 February 2001, a delegate of the respondent cancelled the visa for reasons that the applicant had failed to meet the requirements of his course, had failed to be enrolled in a course and had breached work restriction requirements relevant to the visa.

4. The applicant applied to the MRT for review of the delegate’s decision. The MRT affirmed the decision under review on the sole basis that as at the date of cancellation of the visa, the applicant was not enrolled in a course of study.

5. The MRT referred to cl 4 of Sch 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth). That legislation provided a new condition 8202 in Sch 8 to the Migration Regulations.

6. Condition 8202 applied to all student visas in effect on and from 21 December 2000. Condition 8202(b) required that the applicant be “enrolled in a registered course”.

   Applicant’s submission

7. The applicant drew attention to the material he supplied to the MRT to the effect that whilst he was first enrolled in an information technology course, he later transferred to a banking and finance course in Semester 2, 1999.

8. It was contended that the banking and finance course was a two-year course and that therefore the applicant must still have been enrolled in the course at the end of 2000 and into 2001. It was contended that material from Chalmers Institute (“Chalmers”) which was before the MRT revealed that the course to which the applicant had transferred was of a two-year duration.

9. In light of the above, it was submitted that the MRT ignored relevant material before it and thereby committed a jurisdictional error of the kind referred to in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. It was submitted that the MRT breached s 359(1) of the Act by its failure to consider material provided to it in response to a request made under s 359A of the Act. It was contended that the MRT did not consider evidence submitted by the applicant about when he transferred from one course to another.

   Respondent’s submission

10. In response, counsel for the respondent noted that the material from Chalmers showed that the subjects leading to a Diploma of Business (Banking and Finance) were “normally studied over a two year period” (emphasis added). It was also noted that material before the MRT disclosed that the course consisted of eighteen subjects usually undertaken over four semesters, and that the applicant attempted eighteen subjects over three semesters. It was put that the applicant was able to finish his course during the currency of his visa but that he did not pass a number of the subjects attempted by him.

11. It was submitted that there was material from Chalmers which showed that as at December 2000, the applicant was not enrolled in a course at Chalmers. Further, there was no evidence of any other enrolment relied upon by the applicant. It was put that the response by the applicant to the s 359A request did not deal with whether the applicant was enrolled at the relevant time.

    Consideration

12. The only evidence before the MRT dealing with actual enrolment as distinct from possible continuing enrolment was that given by Chalmers to the MRT. I accept counsel for the respondent’s submission that information about the transfer of course provided by the applicant does not bear upon, the issue of enrolment as at the relevant time. Chalmers denied that the applicant was enrolled in a course with it at the material time. Accordingly, there was evidence before the MRT to justify its decision and no evidence to the contrary.

13. The timing of the applicant’s transfer to the business and finance course from the information technology course was not determinative of whether he was enrolled at the material time. As counsel for the respondent pointed out, the applicant attempted to complete his course in three semesters, albeit unsuccessfully.

14. The applicant has failed to show any judicially reviewable error in the decision of the MRT.

    Disposition

15. The application will be dismissed, with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             2 May 2002

Counsel for the Applicant:	Mr M W Gerkens
Solicitor for the Applicant:	Fernandez Canda Gerkens
Counsel for the Respondent:	Ms H Riley
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 May 2002
Date of Judgment:	2 May 2002