Singh v Minister for Immigration & Border Protection

[2015] FCCA 1858

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1858

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth) s.116
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

Cases Cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: GURPARTAP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1181 of 2015

Judgment of: Judge Emmett

Hearing date: 4 June 2015

Date of Last Submission: 4 June 2015

Delivered at: Sydney

Delivered on: 4 June 2015

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr Karwan Eskerie
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1181 of 2015

GURPARTAP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 29 April 2015, the applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal (“the MRT”), dated 24 March 2015 and handed down on 25 March 2015.

2. On 26 May 2015, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT.

3. I also explained to the applicant that the grounds of his application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. Further, in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, I explained the application may be dismissed pursuant to the Rules of this Court.

4. I also explained to the applicant the cost consequences that may flow to him if he was unsuccessful and provided him with a copy of the relevant costs schedule.

5. The applicant confirmed he wished to continue with his application for judicial review of the MRT’s decision.

6. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 1 June 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 1 June 2015.

7. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services.

8. The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant.

9. Rule 44.12 of the Rules provides as follows:

   “(1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

1. Relevantly, r.44.13 provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

2. The applicant was unrepresented before the Court this morning.

3. The applicant confirmed that he had not filed any further documents, either in accordance with my directions or otherwise. The applicant also confirmed that he had no other documents to provide to the Court this morning.

4. The applicant confirmed that he relied on the grounds identified in his application for judicial review, filed on 29 April 2015, as follows:

   “1. I am not agree with the tribunal decision.

   2. I have completed all requirement when ask from the immigration.

   3. MRT didn’t pay attention on genuine problem

   4. Due to change of my college, my enrolment has been cancelled.

   5. I try to enrol to another SUP college but I didn’t get positive response from the beginning I try to be a genuine student, but immigration was not agree with me.”

5. The applicant stated that he had nothing further to say in support of those grounds.

6. The first respondent, in written submissions, summarised the background of the applicants’ claims and the MRT’s decision, as follows:

   “Background

   1. The applicant is a citizen of India. He entered Australia on 11 June 2014, holding a Higher Education Sector (Subclass 573) visa (Court Book “CB” 109: [2]). On 11 November 2014, the applicant was issued with a Notice of Intention to Consider Cancellation (“NOICC”) because a delegate of the Minister considered that the applicant ceased to be enrolled in a higher education sector course and therefore did not comply with condition 8516 of his visa (CB 109: [3]). The applicant responded to the NOICC by emails dated 19 November 2014 and 26 November 2014 (CB 44 & 45).

   2. On 20 January 2015, the delegate cancelled the applicant’s visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (“Act”) (CB 61). 

   3. The applicant applied to the Migration Review Tribunal (“Tribunal”) for review of the delegate’s decision, and appeared before the Tribunal on 24 March 2015 to give evidence and present arguments (CB 109: [5]). On 24 March 2015, the Tribunal affirmed the delegate’s decision (CB 108).

   Tribunal proceedings

   4. The Tribunal noted that under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that, relevantly, the ground for cancellation in s 116(b) exists – that is, if the visa holder has not complied with a condition of the visa (CB 109: [7]). The Tribunal was satisfied that the ground for cancellation in s 116(b) existed, on the basis that the applicant was in breach of condition 8516 of his visa (CB 110: [11]). The Tribunal’s reasons for this finding are set out at [8]-[11] of its decision. In brief:

   a. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa;

   b. It was a primary criterion of the applicant’s visa that he was enrolled in, or the subject of a current offer of enrolment in, a principal course of a kind prescribed for that visa;

   c. The evidence showed that the applicant was granted the visa on the basis of his enrolment in a Diploma of Business and a Bachelor of Business at Queensland University of Technology;

   d. The applicant’s enrolment in the aforementioned course was cancelled on 27 March 2014 due to non-commencement of studies and he was not enrolled in another eligible course;

   e. The applicant thus ceased to be a person who satisfied the primary criteria for the grant of the visa, as he ceased to be enrolled in, or to be the subject of an offer of enrolment in, an eligible course; and

   f. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. 

   5. The Tribunal went on to consider whether the discretion to cancel the applicant’s visa should be exercised. It noted that the Act and the Migration Regulations 1994 (Cth) do not specify any matters that are required to be considered in relation to the exercise of the discretion to cancel a visa. However, the Tribunal confirmed that in considering whether to exercise the discretion, it had regard to the relevant circumstances, including but not limited to matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ (CB 110: [13]).

   6. The Tribunal considered the circumstances of the applicant, including (a) his explanation for the breach, (b) his subsequent enrolment in a course of study that did not qualify for a Subclass 573 visa, (c) his evidence as to his future intentions and unsuccessful application for a Vocational Education and Training Sector (Subclass 572) visa, (d) whether there were any extenuating or compassionate circumstances, (e) whether the circumstances leading to the breach were beyond the applicant’s control, (f) his past and present conduct, (g) the impact on third parties and (h) whether any hardship would be caused by the cancellation (CB 110-112: [13]-[24]). The Tribunal expressed significant concerns about the applicant’s evidence and considering the circumstances as a whole, concluded that the visa should be cancelled. In so doing, it summarised the position as follows:

   “…The Tribunal found that the applicant breached condition 8516 of his visa and considers the breach to be significant as the applicant is not engaging in higher education study and is not fulfilling the purpose for which his visa was granted. The Tribunal places weight on the fact that the applicant has made no effort to re-enrol in higher education study and does not presently have an offer of enrolment, or a CoE, for a higher education course, so that he would continue to be in reach of condition 8516 if his visa was reinstated. The Tribunal is prepared to accept that some hardship would be caused by the cancellation. The cancellation will not affect any other person’s visa and will not result in a breach of Australia’s international obligations.”  (CB 112: [25])”

7. The applicant’s complaints appear more to be a disagreement with the findings and conclusions of the MRT and in particular the exercise of its discretion. Such complaints invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

8. I accept the submission by the first respondent that the applicant has not suggested that the ground for cancellation at s.116(b) of the Migration Act 1958 (Cth) did not exist, nor that the MRT’s findings were unreasonable in a legal sense. I note that the applicant does not dispute any of the findings in the MRT’s decision, except the ultimate conclusion that the discretion should not be exercised to cancel the applicant’s visa.

9. The MRT’s decision record commences by referring to the relevant law and considers whether the ground for cancellation existed. Having been satisfied that it did, the MRT went on in some detail to consider the exercise of its discretion as to whether or not the visa should be cancelled. For the reasons referred to by the MRT in the summary above, those findings and conclusions would appear to be open to the MRT on the evidence and material before it and for the reasons it gave.

10. While I make no final decision as to whether or not the MRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the MRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The MRT referred to the relevant law in affirming the decision under review.

11. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

12. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 29 April 2015, should be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 6 July 2015