FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1711

MIGRATION – Subclass 573 Student Visa – Migration Review Tribunal – failure to satisfy condition 8202 – failure to be enrolled in a registered course – whether Minister has discretion in cancelling visa – appeal dismissed

Migration Act 1958 (Cth) s 116(3)

Migration Regulations 1994 (Cth) reg 2.43, Sch 8

Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 applied

Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 applied

PREETINDER SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & MIGRATION REVIEW TRIBUNAL

NSD 1604 OF 2005

CONTI J

24 NOVEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant is to pay the respondents’ costs fixed at $2,500.00.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Background to the appeal and the decision of the Migration Review Tribunal

1                     This is an appeal from the judgment of Barnes FM delivered on 18 August 2005, which concluded that the reasons for decision of the Migration Review Tribunal (‘the Tribunal’) handed down on 17 September 2003 were free from jurisdictional error.  The Tribunal’s decision in turn affirmed an earlier decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Delegate’) on 28 April 2003 to cancel the appellant’s Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa (‘the visa’).

2                     The appellant is a national of India who first entered Australia on 7 January 1999 as the holder of a Subclass 560 (Student) visa.  That visa ceased on 1 January 2001 and on the 3 January 2001, the appellant was granted a bridging visa.  During the currency of the Subclass 560 (Student) visa, the appellant was enrolled in a Diploma of Information Technology at the Canberra Institute of Technology, however in a letter dated 27 July 1999 addressed to the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’), that education provider indicated that the appellant had not attended his Semester 2 classes.  According to the Tribunal’s reasons for decision, the Department was aware by 2 January 2001 that during that time the appellant had attended courses at three other education providers.  Nevertheless a further Subclass 560 (Student) visa was granted to the appellant on 17 March 2001.  Upon the latter visa’s expiry on 5 March 2002, the appellant was granted a Subclass 572 (Vocational Education and Training Sector) visa, during the currency of which visa the appellant was enrolled at Ultimo TAFE.  Upon expiry of that visa on 30 July 2002 the appellant applied for a Subclass 573 (Higher Education) visa, that being the visa the cancellation thereof formed the basis for the present litigation.  That further visa was granted on 25 September 2002, by which time the appellant had enrolled in a Bachelor of Information Technology degree at the University of Ballarat (Sydney Campus). 

3                     The appellant gave evidence to the Tribunal that he did not attend the examinations held at the end of the first semester of his course at the University of Ballarat and that he had therefore failed the course.  The evidence revealed that sometime after December 2002 the appellant had moved from Sydney to Canberra.  The appellant told the Tribunal that he had moved as a result of having become the victim of two physical assaults in Sydney within a short space of time.  As a result of moving to Canberra, the appellant did not attend the second semester of his course at the Sydney campus of the University of Ballarat.  The appellant contended that he intended to enrol at the University of Canberra but due to a back injury had been unable to.  The appellant did not inform the University of Ballarat of his intention to enrol in a course at the University of Canberra and had not been enrolled in any course in the first half of 2003. 

4                     The visa was cancelled by the Delegate on 28 April 2003 following an interview held with the appellant.  The stated reason for the Delegate’s cancellation of the visa was the appellant’s failure to satisfy condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’).  Specifically, the Delegate purported to cancel the visa for the appellant’s failure to be currently enrolled in a registered course (condition 8202(2)(a)) and for his failure to obtain an academic result in his course that his education provider had certified to be at least satisfactory (condition 8202(3)(b)).  In the Notice of Intention to Consider Cancelling a visa sent to the appellant by the Department on 23 April 2003 prior to his interview, there was no mention made of the failure of the appellant to satisfy the part of condition 8202 concerning enrolment in a registered course.  In its reasons for decision, the Tribunal observed that oral notice of that ground for cancellation was given to the appellant, and that he was therefore able to respond to the adverse information relied upon.

5                     Owing to the absence on the appellant’s file of any confirmation that the University of Ballarat had certified that the appellant’s academic results were unsatisfactory, the Tribunal was not willing to affirm the Delegate’s decision based on failure of the appellant to comply with condition 8202(3)(b).  The Tribunal instead affirmed the Delegate’s decision on the basis that the appellant had failed to comply with condition 8202(2)(a) because he was not enrolled in a registered course at the relevant time of cancellation.  Although the Tribunal accepted the appellant’s claims to have suffered a serious back injury, it did not accept that the same would have prevented him from travelling to Canberra to effect enrolment with the University of Canberra, or at the very least, contacting the University to inform it of the reason for his delay.  As a result of the appellant’s failure to comply with condition 8202, the Tribunal found that it was compelled by s 116(3) of the Migration Act 1958 (Cth) (‘the Act’) to cancel his visa.

6                     Section 116 of the Act is relevantly in the following terms:

‘(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(b) its holder has not complied with a condition of the visa; or

…

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.’

7                     Section 116(3) is to be read together with reg 2.43 of the Regulations, which at the time that the visa was cancelled, provided relevantly as follows:

‘(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

…

(b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied:

…

(ii) that the Minister is satisfied that:

(A)  the visa holder has not complied with condition 8202; and

(B)   the non-compliance was not due to exceptional circumstances beyond the visa holder’s control…’

The Federal Magistrate’s judgment

8                     The appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision on 14 October 2003.  The sole ground pressed by the applicant, who was unrepresented, was:

‘The Tribunal’s satisfaction that the applicant breached the visa condition is based on the fact that was not applicable to the applicant’

In support of that ground, the appellant provided several particulars which urged the Court to give him ‘the benefit of the doubt’, since he had not worked in excess of the number of hours prescribed for his visa and because he had paid a high amount of education costs to date.  The appellant reiterated that he had not been able to enrol because of his physical illness. 

9                     After considering the arguments made by the appellant and the relevant legislative provisions, which I have essayed above, Barnes FM concluded that what the appellant sought was in effect merits review of the Tribunal’s decision to cancel his visa.  Her Honour observed that the matters raised by the appellant were irrelevant since they either concerned factual findings within the exclusive preserve of the Tribunal, or were otherwise irrelevant to the Tribunal’s conclusion that the appellant had failed to satisfy condition 8202(2)(a) by virtue of the fact that he was not enrolled in a registered course at the relevant time.

10                  Her Honour next considered whether in spite of the use of the expression ‘must’ in s 116(3) of the Act, the Minister was able to take into account the personal reasons provided by a visa holder for not being enrolled in a registered course at the relevant time.  In concluding otherwise, her Honour applied the recent decision of the Federal Court in Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 (per Ryan, Jacobson and Spender JJ) in which their Honours found at [66] that:

‘Section 116(3) does not permit the Minister to exercise any discretion at all.  If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa.  In our opinion, the words of the section are clear.  The subsection is mandatory.  No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist.  The Minister must cancel the visa.  Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.’

11                  Her Honour concluded that because the Tribunal had made a clear finding that condition 8202 had not been complied with, reg 2.43(2) and s 116(3) applied and therefore the Tribunal’s decision to cancel the visa became mandatory and completely impervious to any exercise of discretion by the Minister or the Tribunal to the contrary. 

12                  The final matter dealt with by her Honour concerned the effect that any breach of the relevant statutory provisions by the Delegate might have had on the Tribunal’s jurisdiction to review the Delegate’s decision to cancel the appellant’s visa.  As I recorded above, the Tribunal expressed concerns that the Notice of Intention to Consider Cancelling a visa sent to the appellant did not refer to one of the grounds ultimately utilised by the Delegate to justify the cancellation of the appellant’s visa.  Barnes FM found that it was not necessary for her to determine whether the Delegate complied with the procedural requirements contained in ss 119, 120 and 121 of the Act (which respectively deal with the provision of notice of proposed cancellation, the information that must be given to the visa holder and invitations to provide comment on adverse material), because even if the Delegate’s decision was invalid for failure to follow correct procedure, the Tribunal had the power to conduct full merits review, as provided by the Act.  Her Honour referred to Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 where Finn, Mansfield and Gyles JJ held at [27]-[28] that the Migration Review Tribunal was not only entitled to, but obliged to, review an ‘MRT-reviewable decision’ in circumstances where it was uncertain whether the delegate had adhered to ss 119-121 of the Act in the making of his or her decision.  

The appeal to this Court

13                  The appellant filed a notice of appeal on 7 September 2005 in the following terms (read literally):

‘1. The Single Judge of the Federal Magistrate Court in his Honors judgment delivered on the 26 August 2005 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

2. I am not satisfied with the federal Magistrates decision of my judicial review application.

3. Recent High Court judgment: Plaintiff S157/2003 v Commonwealth of Australia…

4. Recent Federal Court of Australia judgment: SGDB v Minister for Immigration & Multicultural & Indigenous Affairs…

5. I refer High decision SAAP v MIMIA…

6. I refer SZFKL v MIMIA…’

14                  I observe that the appellant’s notice of appeal is in precisely the same form as other notices of appeal that are commonly filed in migration litigation in this Court.  None of the postulated grounds provide a basis for the setting aside of the Federal Magistrate’s judgment; indeed, none of the grounds bear any resemblance to the issues litigated before her Honour. 

15                  During today’s hearing, the appellant provided limited oral submissions concerning his reason for being unable to enrol into the University of Canberra at the beginning of academic year 2003.  That reason was the appellant’s back injury.  The appellant was unable to point to any error in her Honour’s reasons for judgment.

16                  For the reasons that were given by Barnes FM, to which I need add nothing further, I dismiss the appeal and order the appellant to pay the respondents’ costs, fixed at $2,500.00.

Associate:

Dated:              25 November 2005