Singh v Minister for Immigration & Anor
[2006] FMCA 1444
•26 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1444 |
| MIGRATION – Migration Review Tribunal decision – application for review of decision for refusal of student visa – whether applicant complied with condition of previous student visa – no jurisdictional error – application dismissed. |
| Applicant: | MANJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG3096 of 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 26 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondent: | Philips Fox |
ORDERS
The application be dismissed.
The applicant shall pay a contribution to the costs of the First Respondent fixed in the sum of $4000 within 90 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3096 of 2005
| MANJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(settled from the ex tempore reasons)
The Appplicant is a 30-year-old citizen of India. He first entered Australia in 2000 and commenced and completed successfully a diploma of IT course at the Sydney College of Business and Technology from January 2000 to December 2001. The Applicant made an Application on 13 January 2003 for a student (temporary)(class TU) visa which was refused by a delegate on
1 September 2004. The Applicant lodged an Application for review to the Migration Review Tribunal (“the Tribunal”) on 24 September 2004 and reasons for a decision to affirm the delegate’s decision were delivered on 30 September 2005. It is from that decision that the Applicant, by this Application filed 25 October 2005, seeks relief on the basis of jurisdictional error.
Principles
I have sought today to explain to the Applicant, who is unrepresented, the principles which must be applied to an Application of this nature in this court. I reminded him that it is not the role of this court to conduct a merits review of the decision of the Tribunal. The written submissions of the respondent properly and correctly in my view set out at paragraphs 13 and 14 of the submissions the legislative framework which applies in this matter. Simply put, the decision which was made by the Tribunal is a privative clause decision unless jurisdictional error can be detected, in which case the court ought and normally would return the matter for further determination according to law to the Tribunal.
The issue in this matter was in my view succinctly stated in the respondent’s submissions as:
“The Application hinged upon whether the Applicant substantially complied with condition 8202 of the Applicant’s previous student visa.”
I agree that was the issue for determination before the Tribunal.
The decision of the Tribunal is contained within the court book of documents. The Applicant confirmed to me that he had received that book; in fact it was in his possession on the bar table today.
The Applicant, who speaks English well and understands English well, said he had read it.
The history of the matter and the relevant findings of the Tribunal have again in my view properly been identified and accurately identified in paragraphs 6 to 12 of the written submissions and for succinctness I incorporate those submissions in these reasons as follows:-
“6. The Applicant attended a hearing on 29 June 2005. He gave evidence that he commenced a cookery course at the Graduate Institute of Further Education (“GIFE”) in March 2002. However, after a month of classes, GIFE had management issues. The Applicant said that his course was moved to Melbourne and he was not refunded the $3450 course fees that he paid (out of $10,000 for the year).
7.The Applicant said he stopped studying in April 2002 and started drinking. Between April 2002 and January 2003, when he made the student visa application, he did not study at all. He said that he was “misguided” by GIFE which did not tell him that it would inform him when classes recommenced.
8. The MRT found that the Applicant did not study between April 2002 until January 2003 when he applied for the student visa. The MRT also found that in this time, the Applicant did not take any positive action to pursue the matter with GIFE or seek advice from DIMA or some other source to resolve his difficulties.
9. The MRT noted that the Applicant successfully completed a Diploma of IT and Sydney Institute of Business and Technology but this was before the grant of his last visa in April 2002 and could not be taken into account.
10.The MRT considered the difficulties that the Applicant faced because of the management issue in GIFE. However, the MRT made a factual finding that the Applicant’s lack of action from May 2002 onwards indicated a substantial and continuing breach of condition 8202 with no attempt on his part to achieve compliance.
11.The MRT found that the Applicant failed to substantially comply with condition 8202 in his previous visa because:
11.1He was enrolled in a course of study in the second half of 2002 because he only paid for the first half year fees: CB 63.
11.2He did not attend any scheduled contact hours in 2002:CB 63.
11.3 He did not achieve an academic result at all in 2002: CB 63
12.The MRT concluded that the Applicant did not meet the visa criteria and affirmed the delegate’s decision to refuse the student visa.”
Application for review
The application for review filed by the unrepresented applicant provides as grounds for the application the following:
“The decision of the Migration Review Tribunal is null and void because of jurisdictional error and the Tribunal acted without jurisdiction in making the decision in failing to take into account relevant material, consideration, questions or issues.
Particulars: the Tribunal found that I did not substantially comply with my visa conditions when I did. The Tribunal should have taken into consideration that the college I was enrolled in took my fees and closed their Sydney operation and moved to Melbourne and wanted me to go to Melbourne which I could not as I was working part-time in Sydney and did not have friends in Melbourne. The institute further refused to refund me the money I had paid and I thus did not have sufficient funds to pursue the course with another institute. In the meantime I was so frustrated that I decided to change course and to do a diploma in e‑commerce. I paid some fees for this diploma to get an offer letter for the Department of Immigration. The Tribunal erred in law in acting without jurisdiction in making the decision in denying natural justice or procedural fairness to the applicant and misinterpreted the applicant’s answers.”
At paragraph 16 of the respondent’s written submissions the general statements of the Applicant in his self-prepared application were distilled to three basic arguments, namely:-
(a)the MRT incorrectly found that the Applicant did not comply with the visa conditions when he did;
(b)the MRT did not take into consideration GIFE took his fees, refused to refund his fees and closed their Sydney operation;
(c)the MRT misinterpreted the Applicant’s answers.
Applicant’s submissions
Although by order of Registrar Hodge made 30 November 2005 the Applicant was invited, in fact directed, to file written legal submissions and list of authorities 14 days before the hearing, he did not do so.
I gave him an opportunity today from the bar table to make any further submissions that he wished me to consider. In particular, I invited him to answer any of the written submissions filed on behalf of the respondent which he again acknowledged he had received and read.
It is fair to say in my view that the only submission that he was making to me today was consistent with the view he took of the unfairness of the decision for the reasons he set out in his application for review to this court. He says that it is quite unfair that he should have his visa cancelled because of his failure to complete substantially, as found by the Tribunal, the course with GIFE in the second half of 2002 because of the actions of that Institute.
Although it was not incumbent upon me to do so, I reminded the Applicant that one of the criticisms of the learned member was the Applicant’s failure to properly take action when the Institution closed apparently its doors in Sydney to either at that stage inform the Department or take steps to re-enrol in another course in Sydney.
I also, in exchanges with the Applicant, sought to explain to him the very strict conditions which apply to these types of visas and that in circumstances where the Tribunal found that he had not substantially complied with condition 8202, the Tribunal had no discretion with such finding, other than to affirm the decision of the delegate.
I was left unfortunately with the very strong impression that the Applicant did not understand the legal context in which his visa was granted and the way in which the decision-making process had taken place.
The submissions of the Respondent, as one would expect in a case with a degree of simplicity about it, were both in my view succinct and correct. Again, for the purposes of clarity and to assist the Applicant in understanding this decision which will be published and delivered to him, I incorporate paragraphs 17 to 21 of the respondent’s submissions as follows:-
“17.The Respondent submits that the Applicant’s claims do not disclose the reviewable error.
18.In relation to the first ground, the Applicant seeks to challenge the factual findings that the MRT made. It is trite law that the decision maker’s fact findings cannot be challenged on judicial review so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-292 per Kirby J.
19.The Respondent submits that it was clearly open to the MRT to find that the Applicant did not substantially comply with condition 8202 when it was clear that the Applicant did not comply with condition 8202 at all. The Applicant was not enrolled in a course, did not attend any classes when he was enrolled, and did not undertake any assessment to demonstrate satisfactory results.
20.In the second ground, the Applicant claims that the MRT did not take into account how the school treated the Applicant. It is clear from the MRT decision that the MRT accepted this evidence and used the evidence to weigh whether the Applicant substantially complied with condition 8202. The MRT concluded that this information could not mitigate the fact that the Applicant had not complied with condition 8202 at all in the second half of 2002. At [32] the MRT specifically stated:
[32] While the difficulties in the management of the Institute may have been a circumstance which gave rise to the breach and may have allowed for a consideration that compliance had substantially occurred, in the Tribunal’s view this is not the case.
21.Finally the Applicant contends that his evidence was misinterpreted; although he does not content that there was a difficulty with an interpreter. In the hearing request form at CB 49, the Applicant did not request an interpreter. At this time and during the hearing the Applicant was represented by a migration agent (CB 53). In the absence of any evidence that there was an interpreter or that the Applicant could not communicate with the MRT this ground cannot succeed.
It follows from the views that I have expressed in this matter that regrettably for this Applicant, he cannot and has not demonstrated any jurisdictional error by the Tribunal. It often appears to me that many students who come to Australia regard the strict compliance provisions of condition 8202 as unfair. It was open to the Tribunal as the determiner of fact to be satisfied whether there had been substantial compliance by the applicant. That provided a degree of discretion to the Tribunal. However, there is nothing in the Tribunal’s careful yet succinct reasons which would suggest to me that the findings made by the Tribunal were other than open to it on the evidence.
The order of this court will be that the Application be dismissed. It is not appropriate in my view that the mere fact that the Applicant may be impecunious that that should relieve him of his obligation to pay costs. When a person brings another party to a court as opposed to a Tribunal it’s common knowledge and it should be known that costs usually follow the event. That’s the practice of this court. It’s a practice I propose to follow here. I propose to order that the Applicant pay a contribution to the costs of the First Respondent fixed in the sum of $4,000 within 90 days.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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