Singh, Balwinder v Minister for Immigration & Multicultural Affairs [1998] FCA 1562

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 816 of 1998

BETWEEN: BALWINDER SINGH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: SACKVILLE J.

DATE: 1 DECEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT The Proceedings The applicant seeks review of a decision of the Immigration Review Tribunal ("IRT"), made on 6 August 1998. The IRT affirmed a decision by a delegate of the Minister, made pursuant to s 116 of the Migration Act 1958 (Cth) ("Migration Act") to cancel the applicant's Class TU Student (Temporary) Subclass 560 visa ("the visa"). The delegate's decision was made on 27 July 1998. The applicant is an Indian citizen, aged 22. On 22 May 1998, he obtained the visa in India. The visa was expressed to be valid until 3 June 2000. It enabled him to complete a two year diploma course in Business Management at the Kent Business College in Sydney ("the College"). The course for which the applicant enrolled commenced on 8 June 1998. The visa included the following conditions (see Migration Regulations, Schedule 8): "8105 The holder must not engage in work in Australia (other than in relation to the holder's course of study or training) for more than 20 hours a week during any week when the institution at which the holder is studying is in session." 8202 The holder must satisfy course requirements." The applicant entered Australia on 1 July 1998. The College advised the Department in writing on 27 July 1998 that the applicant's enrolment had been cancelled. A handwritten note on the Department's file records advice from the College director that no staff at the College had ever seen the applicant and that he had made no contact with the College. The College also advised that there was no break in July. Within a few days of arriving in Australia, the applicant proceeded to Griffith, in New South Wales, apparently in order to see some friends. As he subsequently admitted to both the Departmental Compliance Officer and the IRT, while in Griffith he worked for Riverina Wines for two weeks prior to the cancellation of his visa. During one of those weeks he worked 17.5 hours; in the other he worked 29.5 hours. On 27 July 1998, the applicant went with some friends to Canberra. One of his friends was required to attend an interview at ACT Regional Office of Department of Immigration and Multicultural Affairs. According to the applicant, he went to Canberra "just for the ride". Be that as it may, the applicant was interviewed on that day by a Compliance Officer. The Compliance Officer notified the applicant in writing at the interview that his visa had been cancelled pursuant to s 116(1)(a) and (b) of the Migration Act. The grounds identified were that the applicant had failed to meet the College course requirements in consequence of which his enrolment had been cancelled and that he had worked in breach of the conditions attached to his visa. The applicant was immediately taken into custody. He has since remained in custody. On 29 July 1998, the applicant had a further interview with a Compliance Officer. However, on this occasion no decision was made relevant to the present proceedings. The applicant applied to the IRT for review of the cancellation decision (see Migration Act, s 346(1)(d); Migration Regulations, reg 4.09(d)). On 6 August 1998, the IRT affirmed the decision under review. The applicant now applies to the Court for review of the IRT's decision. He claims that the IRT's decision involved an error of law (Migration Act, s 476(1)(e)), in that it failed · to consider the financial and emotional hardship that the applicant would experience if his visa were cancelled; or · to weigh the circumstances bearing on the exercise of the discretion conferred on the Minister by s 116(1) of the Migration Act.