FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2017] FCA 996 Appeal from: Singh v Minister for Immigration and Anor [2017] FCCA 632 File number: VID 370 of 2017 Judge: PAGONE J Date of judgment: 22 August 2017 Date of publication of reasons: 25 August 2017 Legislation: Migration Act 1958 (Cth), s 116 Migration Regulations 1994 (Cth), cl 573.231; cl 573.223(1A) Date of hearing: 22 August 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: Ms N Bosnjak Solicitor for the Respondents: Clayton Utz ORDERS VID 370 of 2017 BETWEEN: BINDER SINGH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: PAGONE J DATE OF ORDER: 22 AUGUST 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PAGONE J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia delivered on 3 April 2017 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal dated 27 July 2015 which, in turn, affirmed a decision of a delegate of the Minister to cancel the appellant's Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under s 116 of the Migration Act 1958 (Cth) ("the Act"). 2 The appellant was not represented before the Federal Circuit Court or in the appeal in this Court. He was assisted by an interpreter in the appeal in this Court, but was able to make submissions clearly in English and engaged clearly in exchanges and discussions with the bench in English. The notice of appeal set out as grounds of appeal the following narrative: The applicant visa 573 subclass was CANCELLED by DIBP on the basis of e-COE is not there for bachelors; It has been long time applicant is trying to get E-coe for Bachelors through the agent he has lack of knowledge in getting. Applicant is having situation where he could not get the E-coe after his visa cancelled as he doesn't have study rights given by Immigration. However, Department has sent a letter to applicant regarding cancellation according to that letter applicant has lodged the review at Tribunal. Attending the tribunals or Federal circuit court are not helping him to get the study rights prove himself. Therefore, applicant went to federal circuit court for legitimate decision but honourable judge MCNAB has been misguided by solicitors of DIBP, federal circuit court application under the judicial Review has been made on 3rd April 2017, he is not known any information that Federal circuit court has been requesting the further amended affidavits to be submitted to the court, applicant has not known any of these information. However, applicant has attended the hearing with his claims. Due to the decision has judicial error in FCCA and Tribunal Decision applicant wished to lodge the review of FCCA decision at Federal Court for natural Justice. The applicant has not had any control of his situations which became very bad in Australia to provide reasons at tribunal. According to letter received by mail applicant has lodged the review application in time frame. New argument came to light which demonstrates the unsatisfactory evidence hasn't been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute? The Federal court derives its powers to accept to check the applicant argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the review application at ADMINISTRATIVE APPEAL TRIBUNAL if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection) Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn't even looked at applicant claims as there was big barrier "Judicial review has been made which has not been proved by applicant to study in Australia", but he has exceptional circumstance beyond his control. It is not easy to discern from this narrative the grounds on which the decision of the Federal Circuit Court is challenged by the appellant. A consideration of the reasons of the Federal Circuit Court, however, do not disclose appellable error. The appellant's oral submissions made at the hearing of the appeal accepted that he had made a mistake which he would like to rectify, but the Court is not able to undertake merits review and is restricted to a consideration of whether the decision of the Federal Circuit Court was reached by legal error. 3 The Minister cancelled the appellant's visa under s 116 of the Act which gives the Minister power to cancel a visa if satisfied that the holder had not complied with a condition of the visa. Section 116 relevantly provided: (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 (2) The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) if there exist prescribed circumstances in which a visa is not to be cancelled. (3) If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Condition 8156 attached to the appellant's visa provided that the holder must continue to be a person who would satisfy the primary or secondary criteria (as the case required) for the grant of the visa. The subclass of visa relevant to the appellant's circumstances was the 573 Higher Education Sector. Subclause 573.231 of schedule 2 to the Migration Regulations 1994 (Cth) provided as follows: If subclause 573.223(1A) does not apply: (a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and (b) the principal course is of a type that was specified for Sub-class 573 visas by the Minister in an instrument: (i) made under regulation 1.40A; and (ii) in force at the time the application was made. The definition of "eligible higher degree student" meant an applicant for a subclass 573 visa in relation to whom the applicant was enrolled in a principal course of study for the award of a bachelor's degree, or a master's degree by course work. Subclause 573.223(1A) provided that the applicant was required to give the Minister evidence of being an eligible higher degree student who had a confirmation of enrolment in each course of study for which the applicant was an eligible higher degree student. 4 On 31 May 2013 the appellant was granted a visa on the basis of his enrolment at Latrobe University in a Diploma and Bachelor of Information Technology. The visa included a condition 8516 requirement that he maintain his eligibility for the grant of the visa. On 31 October 2014 the delegate of the Minister issued a notice of intention to consider cancellation of the visa under s 116 of the Act on the basis that the appellant appeared to have breached condition 8156 by not maintaining his enrolment in satisfaction of clause 573.231 or clause 573.223(1A) of the Migration Regulations 1994 (Cth). In other words, that according to the Provider Registration and Information Student Management System the appellant was no longer enrolled in a bachelor's degree or a master's degree by course work and was not enrolled in a course of study specified for a subclass 573 visa by the Minister in an instrument made under regulation 1.40A. The appellant provided his response to the notice on 4 November 2014 but the delegate cancelled the visa on 9 January 2015 providing notification of that decision on the same day. 5 The appellant applied to the Tribunal on 13 January 2015 for review of the delegate's decision. He appeared before the Tribunal on 21 July 2015 to give evidence but on 27 July 2015 the Tribunal affirmed the delegate's decision to cancel the appellant's visa and notified him of its decision on 31 July 2015. 6 On 10 August 2015 the appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. That application was heard on 23 March 2017 and on 3 April 2017 the primary judge handed down his decision dismissing the appellant's application. The grounds for judicial review before the Federal Circuit Court identified no error by the Tribunal. The grounds were described by his Honour at [10]-[12] of his reasons as follows: Grounds of application 10. The applicant included the following grounds of review in his application (copied with errors amended): 1. I want only one chance as I know I am a genuine student. Please trust me because I don't have any chance to do anything... I have paid the college $4000 but have not been provided with the certificate of offer and the money has not been returned to me. I do not know what to do now. 2. Please give me one chance study because it is hard without study because I don't want a gap in my studies. 11. The submissions filed by the applicant shortly prior to hearing were to the effect that: a. The applicant found the travel time to Latrobe University on public transport from Laverton took too long. b. That he was advised by a migration agent that he could cancel his enrolment at Latrobe University and enrol in a lower level of study. c. That he was advised by a lawyer (regarding visa requirements) and that he had been trying to enrol in a bachelor's degree course. 12. It is apparent both from the grounds of review and from the submission filed by the applicant that there is no recognisable ground of review stated. His Honour went on to consider whether there was any error in the Tribunal's exercise of the discretion in s 116 of the Act and concluded that there was no jurisdictional error. 7 His Honour's consideration and reasons for that conclusion were set out in paragraphs [13]-[19] of his reasons for decision: 13. In this case, there is no basis for a finding that the Tribunal did not correctly identify the provisions of the legislative scheme applying to the applicant. There was evidence before the Tribunal that the applicant had not complied with the condition of the visa. The applicant conceded during the hearing before the Tribunal that he did not gain a confirmation of enrolment for a Bachelor of Business (Management) on 12 December 2013. There was no evidence that the applicant complied with the visa requirements at the time of the decision of the delegate. 14. In relation to the exercise of discretion to cancel the visa, the Tribunal noted that where no prescribed circumstances exist pursuant to s.116(2) and s.116(3) of the Act, the Tribunal has a genuinely free discretion to cancel a visa pursuant to s.116, fettered only by the bounds of legal reasonableness. The Tribunal correctly stated that there are no matters specified in the Act and regulations that are required to be considered in relation to the exercise of the discretion to cancel a visa. 15. The Tribunal had regard to matters including but not limited to matters identified in PAM3. The Tribunal considered the circumstances of the applicant, in particular that he did not wish to return to India without an education and with a study gap. 16. The Tribunal concluded that it found the applicant's evidence to be inconsistent in relation to his intention to study at a higher degree level and gave reasons for that finding referring to the information that had been provided to the Tribunal by the applicant. 17. In relation to arguments that were put before this court and the Tribunal in relation to his reliance on migration agents, the Tribunal considered those matters and made specific reference to them. The Tribunal made reference to a letter that the applicant had sent to the delegate on 4 November 2014 where the applicant claimed that he was misled by his peers into changing his course: ...Unfortunately, I was misled by my peer group about that course can be changed without any problem. As I had my interest for studying Certificate III in Commercial cookery and diploma of Hospitality leading to Bachelor of Business at Cambridge International College. I changed the course. My mistake is that I was not aware of regulation for SVP and Non SVP courses. 18. The Tribunal noted the applicant's submissions regarding the time taken for him to travel to Latrobe University but found that it did not constitute a sufficient reason to change his level of study to a lower cost and lower work load level. 19. In short, the Tribunal has considered the applicant's submissions, made findings in relation to those and there is no apparent jurisdictional error in the approach taken by the Tribunal to the material that was before it. (Footnotes omitted). There is no error identified in the notice of appeal to this Court in his Honour's reasons and conclusion. The oral submissions that were made at the hearing seek merits review, but again reveal no error in the reasons or conclusion of his Honour, the primary judge. 8 Accordingly, the appeal will be dismissed with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 25 August 2017