Singh v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FedCFamC2G 1164

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1164

File number(s): MLG 1023 of 2019
Judgment of: JUDGE CORBETT
Date of judgment: 18 November 2024
Catchwords: MIGRATION - Student (Temporary) (Class TU) (subclass 573) visa – application for judicial review – withdrawal from course enrolments – breach of visa conditions – no jurisdictional error - application for judicial review dismissed.
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)

Migration Act 1958 (Cth) ss 116(1)(fa)(i), 116(10(fa)(ii), 359AA

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2

Migration Regulations 1995 (Cth) rr 2.43, 2.43 (1C), 2.43 (1D)
Cases cited:

Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230

BNB17 v Minister for Immigration and Border Protection [2020] FCA 304

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784

LPDT v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2023] FCAFC 64

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors. (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1

SZOYU v Minister for Immigration and Citizenship [2012] FCA 936

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law
Number of paragraphs: 91
Date of last submission/s: 17 October 2024
Date of hearing: 23 September 2024, 17 October 2024
Place: Melbourne
Solicitor for the applicant The applicant appeared in person
Solicitor for the respondents Ms Stone, Australian Government Solicitor

ORDERS

MLG 1023 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ARSHDEEP SINGH

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CORBETT

DATE OF ORDER:

18 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.

2.The name of the second respondent be amended to Administrative Review Tribunal.

3.The application for judicial review filed 8 April 2019 be dismissed.

4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $6,000.00

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules…

Continue reading Singh v Minister for Immigration, Citizenship and Multicultu...

Sign in free to access the full text

Details
AGLC
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1164
Case
[2024] FedCFamC2G 1164
Decision Date

CaseChat Overview and Summary

The case of Singh v Minister for Immigration, Citizenship and Multicultural Affairs involved the Indian citizen applicant, who had been granted a Student (Temporary) (Class TU) (subclass 573) visa to study a Bachelor of Business (Information Systems Management) degree. The dispute centred around the applicant's failure to commence studies for the degree and instead enrolling in various certificate and diploma courses, many of which were cancelled for non-commencement, unsatisfactory attendance, or non-payment of fees. The Minister's delegate considered cancelling the visa on the basis that the applicant did not appear to be a genuine student. The applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision, which was subsequently affirmed by the AAT. The applicant then sought judicial review of the AAT's decision.

The legal issues before the court were whether the AAT had made a jurisdictional error in affirming the delegate's decision to cancel the visa. The applicant argued that the AAT had failed to consider his personal circumstances, hardship, and his intentions to be a genuine student. The applicant also claimed there were errors in translation and a denial of procedural fairness. The court had to determine if the AAT's decision contained any jurisdictional error.

The court found that the AAT had not made a jurisdictional error. The court noted that the decision to cancel a visa under the Migration Act has two elements: power and discretion. The power to cancel the visa exists under ss 116(1)(fa)(i) and (ii) of the Act, which requires the decision-maker to be satisfied that the grounds for cancellation exist. Once satisfied that the grounds for cancellation exist, the decision-maker has the discretion to cancel the visa. The court examined the AAT's decision and found no jurisdictional error, as the AAT had considered the prescribed matters and the applicant's submissions. The court also noted that it was not the function of the court to undertake a rehearing of the merits of the review. The applicant was unable to identify any clear error or factual mistake in the findings of the AAT. The court concluded that none of the grounds for review amounted to jurisdictional error by the AAT.

In light of the above, the court dismissed the application for judicial review, affirming the AAT's decision to cancel the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 17 October 2024, marked exhibit “R1”. References to “SCB” pages are references to the Supplementary Court Book that was tendered and admitted as evidence, marked exhibit “R2”.BACKGROUND The applicant is an Indian citizen (CB 40). The applicant was granted the visa on 24 November 2014 (CB 47) to study a course package which would result in the completion of a Bachelor of Business (Information Systems Management) degree (CB 24). The applicant arrived in Australia on 2 December 2014 (CB 55). The applicant did not commence studies for the Bachelor of Business degree and instead enrolled in various certificate and diploma courses which were subsequently cancelled for either non-commencement, unsatisfactory attendance, or non-payment of fees. Between 28 September 2015 and 25 March 2016, the applicant completed a Certificate IV in Accounting at Wentworth Institute of Higher Education (CB 54). However, that was the only course completed by the applicant since his date of arrival in 2014. The applicant continued to enrol in certificate and diploma courses throughout 2015, 2016 and 2017, none of which he completed (CB 24-5) (SCB 6-11). On 6 April 2017, a delegate of the Minister gave the applicant a notice of intention to consider cancellation of the visa under s 116(1)(fa)(i) of the Migration Act 1958 (Cth) (Act) on the basis that the applicant did not appear to be a genuine student (SCB 6–11). On 26 April 2017, a migration agent appointed by the applicant emailed the delegate and indicated that they were authorised to act for the applicant and that the applicant would provide an explanation and documents to the delegate by 6 May 2017 (CB 39–44). Neither the applicant nor the migration agent provided an explanation or any documents to the delegate by 6 May 2017. On 9 May 2017, the visa was cancelled by the delegate (CB 45–58). At the time of cancellation, the applicant was approved for enrolments in a Certificate III in Painting and Decorating and a Diploma of Building and Construction (Management) to commence on 15 June 2018 at Western Institute of Technology, neither of which were courses upon which the visa was granted. On 16 May 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 59 – 60). On 18 December 2018, the Tribunal sent an invitation to the applicant to attend a hearing to give evidence and present arguments. The hearing was scheduled for 7 March 2019 at Melbourne (CB 64–6). On 28 February 2019, the applicant provided a Genuine Temporary Entrant (GTE) statement and medical records to the Tribunal (CB 67–81). The GTE statement explained that the applicant had not completed the courses in which he had been enrolled due to a number of health and drug related issues, together with financial problems that meant he could not maintain consistent enrolment in the various courses of study in which he had enrolled. The applicant explained that he had enrolled in the Certificate III in Painting and Decorating to change his circumstances, however, the cancellation of the visa led to the cancellation of his enrolment in that course (CB 71). The applicant maintained that he was a genuine student with the true and genuine intention to achieve a world-class qualification from Australia so that he can obtain a better and settled professional career (CB 74).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 7 March 2019, the applicant appeared in person at a hearing before the Tribunal in Melbourne. He was assisted by an interpreter fluent in the English and Punjabi languages (CB 82-3).TRIBUNAL DECISION On 15 March 2019, the Tribunal delivered written reasons for the decision whereby the Tribunal affirmed the decision of the delegate to cancel the visa (Decision). The Decision was ten pages in length comprising 67 paragraphs and attached an extract from r 2.43 of the Migration Regulations 1994 (Cth) (Regulations). The Tribunal identified that under ss 116(1)(fa)(i) and (ii) of the Act, the Minister had discretion to cancel a student visa if (CB 89 [6]-[7]):(i)its holder is not, or is likely not to be, a genuine student; or(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa. The Tribunal then considered whether the applicant was a genuine student under s 116(1)(fa)(i) of the Act and applied the “genuine student” test referred to by Conti J in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 at [32]. The Tribunal also referred to the prescribed matters that may be considered by a decision maker and which are referred to in rr 2.43(1C) and (1D) of the Regulations (CB 89 [8]-[9]). The Tribunal then referred to the delegate’s decision and the facts considered by the delegate in deciding to cancel the visa, including a period of “non-study” of over eight months between the applicant’s enrolment on 26 July 2016 in a Diploma of Leadership and Management and his subsequent enrolment in the Certificate III in Painting and Decorating (CB 90 [13]). Pursuant to s 359AA of the Act, the Tribunal put the applicant’s PRISM records to him and invited comment. The applicant responded that his only completed qualification since his arrival in Australia in December 2014 was a Certificate IV in Accounting which he completed on 25 March 2016. The applicant also stated that he did not actually commence any of his other courses except for a Certificate IV in Business Administration which he began on 9 February 2015. He told the Tribunal that he studied that course for six weeks prior to cancelling his enrolment. He thereafter commenced study for his Certificate III in Painting and Decorating which he studied for six weeks prior to the cancellation of his visa. The applicant confirmed that he did not commence his enrolments in his Diploma of Business, Bachelor of Business, Diploma of Accounting or his Diploma of Leadership and Management. He could not commence his Diploma of Building and Construction in 2018 because by that time, the visa was cancelled (CB 91 [21]). The applicant’s explanation for not completing the bachelor’s degree for which he had been granted the visa was that he had become involved in using drugs and could not complete the business and accounting enrolments (CB 91 [23]). The applicant confirmed that he had an eight-month study gap between enrolment in his last two courses. He also confirmed that he had not studied at the tertiary level commensurate with the visa (CB 92 [27]). The Tribunal also considered the applicant’s GTE statement (CB 92 [30]).

Ratio Decidendi

Legal Principle Established

The applicant repeated many of the submissions made previously about the Tribunal’s failure to consider his personal circumstances and hardship and to fully understand his intentions. In particular, that he was a genuine student.CONSIDERATION In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [18] (Djokovic), the Full Court of the Federal Court of Australia explained that the decision to cancel a visa under s 116 of the Act has two elements: power and discretion. Firstly, in this case, the power to cancel the visa is to be found in ss 116(1)(fa)(i) and (ii) of the Act, which require the decision-maker to be satisfied the grounds for cancellation exist. Relevantly, under s 116(1)(fa)(i) of the Act, the Tribunal is to be satisfied that the holder, is not, or is likely not to be, a genuine student. Secondly, as to discretion, once satisfied that the grounds for cancellation exist, the decision-maker has the discretion whether or not to cancel the visa. The jurisdictional precondition and the discretion are separate considerations and must be determined and then exercised on a legally reasonable basis (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [39]-[40] and Djokovic at [29]). The applicant in this proceeding has sought to challenge the findings of the Tribunal on numerous grounds, both as to the jurisdictional pre-condition and the exercise of discretion. The applicant has added to the equation a denial of procedural fairness, errors in translation and a failure to consider integers of and the entirety of his claim to be a genuine student. The applicant was given several opportunities to explain the matters he considered to be the mistakes made by the Tribunal and had the opportunity to reflect on his application and seek assistance between the first and second hearings (see MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [77] (MZAIB) and DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [9]). The applicant was unable to identify any clear error or factual mistake in the findings of the Tribunal. At best the applicant made general criticisms of a failure to consider all of the facts specific to his case and asserted general errors in translation. In essence, he asked this Court to undertake a rehearing of the merits of the review, which is not the function of this Court (see Wu Shan Liang at 272 [31] and Djokovic at [17]). The Court has also scrutinised the application for judicial review, the Decision and the information submitted to the Tribunal, to identify any jurisdictional error, noting the Court’s obligations as outlined in MZAIB at [58], [77], [100] and [112]-[114], and no error is found. Each of the grounds of review that can be distilled from the application for review and the applicant’s submissions to the Court are identified and addressed below. For the reasons expressed, none of those grounds amount to jurisdictional error by the Tribunal.Interpretation Errors