FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2018] FCA 423 Appeal from: Singh v Minister for Immigration & Anor [2017] FCCA 2179 File number: NSD 1688 of 2017 Judge: BURLEY J Date of judgment: 29 March 2018 Catchwords: MIGRATION – Tribunal affirmed delegate's decision to cancel the appellant's Higher Education Sector (subclass 573) visa– Tribunal complied with its obligations of procedural fairness – no jurisdictional error identified– appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth) ss 116(1), 476 Migration Regulations 1994 (Cth) Sch 8 Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 Date of hearing: 5 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS NSD 1688 of 2017 BETWEEN: HARMINJIT SINGH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BURLEY J DATE OF ORDER: 29 March 2018 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant to pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BURLEY J: 1. INTRODUCTION 1 Harminjit Singh is a citizen of the Republic of India who obtained a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa (Visa) on 24 April 2014. On 14 July 2015 he was notified that a delegate (delegate) of the Minister of Immigration and Border Protection (Minister) had decided to cancel the Visa on the basis that since 25 July 2014 Mr Singh had not been enrolled in a course of study. Mr Singh applied to the Administrative Appeals Tribunal (Tribunal) for a review of the delegate's decision and on 5 February 2016 the Tribunal conducted a hearing of his application, at which Mr Singh gave evidence and presented arguments in support of his application. On 9 February 2016 the Tribunal decided to affirm the decision of the delegate. 2 Mr Singh then applied to the Federal Circuit Court of Australia (FCCA) within that Court's jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (Act) seeking orders that the decision of the Tribunal be quashed. On 8 September 2017 a judge of that Court determined that Mr Singh's application should be dismissed with costs. 3 Mr Singh then filed a Notice of Appeal from the decision of the FCCA seeking orders that the decision of the FCCA be set aside, relying on the following grounds: 1. [The] Hon. Judge Street failed [to] hold that [the] Administrative Appeals Tribunal made jurisdictional error of law when it took into account irrelevant consideration and misconduct the facts. 2. Applicant provided the confirmation of enrolment but Tribunal did consider, and they did remit his visa to department. 3. His father was sick in India so he couldn't study they overlooked. 4. His ceo has been not updated so this breach by college. 5. Applicant claim[s] he compl[ies] with [h]is student visa and completed his previous study. 4 Mr Singh appeared at the hearing of the appeal and made submissions with the assistance of an interpreter. The Minister was represented by Mr Greg Johnson, of counsel. 2. BACKGROUND 5 The Tribunal records in its decision that the reason given by the delegate for cancelling Mr Singh's visa is that as the holder of a student visa, he had breached condition 8202(2) of Schedule 8 to the Migration Regulations 1994 (Cth) (regulations) and that by reason of such breach the Visa may be cancelled pursuant to s 116(1) of the Act. 6 Condition 8202 provides: Schedule 8 8202 (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) must meet the requirements of subclauses (2) and (3). (2) A holder meets the requirements of this subclause if: (a) the holder is enrolled in a registered course; or (b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student – the holder is enrolled in a full time course of study or training. (3) A holder meets the requirements of this subclause if neither of the following applies: (a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for (i) section 19 of the Education Services for Overseas Students Act 2000; and (ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007; (b) the education provider has certified the holder for a registered course undertaken by the holder, as not achieving satisfactory course attendance for: (i) section 19 of the Education Services for Overseas Students Act 2000; and (ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (4) In the case of the holder of a Subclass 560 visa who is an AusAID students or the holder of a Subclass 576(AusAID or Defence sector) visa – the holder is enrolled in a full-time course of study or training. 7 Section 116(1) provides: Power to cancel (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or (aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or (b) its holder has not complied with a condition of the visa; or (c) another person required to comply with a condition of the visa has not complied with that condition; or (d) if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or (e) the presence of its holder in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals; or (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or (fa) in the case of a student visa: (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; or (g) a prescribed ground for cancelling a visa applies to the holder. 8 The Tribunal summarised Mr Singh's claims as follows: 8. In the decision record provided by the applicant, it is noted that on 11 June 2015, the Department sent to the applicant a notice of intention to consider cancellation on the basis that information available in the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 25 July 2014. In response to the notice, in an email on 15 June 2015, the applicant stated that: a. There have been financial problems in the family. His father was not well so he left Australia but prior to leaving Australia, he contacted the College in relation to taking holidays because he had to go to see his father. The College refused to give him leave so he requested a new confirmation of enrolment in order to continue his studies but the College refused until he cleared the fees. b. He was unable to clear the fees because he had financial problems. He applied to another institution and he successfully obtained a new confirmation of enrolment. He then left Australia to see his father. c. On return to Australia, he did not have enough funds and his family was not able to support him to pay his college fees. The college reported him to the Department. About two weeks ago, he contacted his family in relation to his fees and a medical certificate. He will start his studies and become a genuine student in Australia. d. He provided the above reasons on 21 October 2014 but he did not receive any decision regarding his visa at that time. He was waiting for a decision to tie made so that he could start his studies and become a genuine student. 9. In the course of the hearing, the Tribunal discussed with the applicant that it would appear that he had not enrolled in a registered course of study since 25 July 2014 which suggests that he was in breach of condition 8202(2). The applicant referred to a document which he had provided prior to the commencement of the hearing, namely a Confirmation of Enrolment for a Bachelor of Business course commencing on 11 November 2013 until 28 October 2016 (folio 45), at Group Colleges Australia (GCA). The applicant gave evidence that his enrolment in that course was cancelled by the education provider for non-attendance and non-payment. He stated that his father in India was unwell. He referred to the medical certificate provided in relation to his father's illness (folio 43), and stated that he did not have access to funds and consequently he was unable to pay his tuition fees. He said he attended college for about 2-3 months from the commencement of the course, namely November 2013 until around February 2014. 9 The Tribunal then noted that the Mr Singh accepted that since 25 July 2014 he had not been enrolled in a registered course of study. It also noted that Mr Singh had applied for a subclass 457 visa which had been refused by the Department of Immigration and Border Protection on 9 January 2015. The Tribunal found that the making of this application suggested that Mr Singh wanted to work in Australia full-time rather than study, contrary to the requirements of the Visa ([13]). The Tribunal found that since 25 July 2014 Mr Singh has not been enrolled in a registered course of study and that accordingly he has not complied with condition 8202(2) of his Visa. 10 The Tribunal then turned to consider the exercise of its discretion to decline to cancel the visa pursuant to s 116(1) of the Act. It concluded that the combined effect of the lack of enrolment in a course, as well as his stated lack of attendance, and the circumstance of his having applied for the 457 visa indicates that Mr Singh's interest in being in Australia is to work, rather than study, and accordingly is contrary to the objectives of the student visa that he was granted; [17], [18]. It accepted that Mr Singh's father had been unwell, but rejected that this accounted for his failure to comply with the terms of his Visa. It noted that he had only attended classes for about 3 months, until February 2014. It found Mr Singh's explanations for his failure to attend, and for applying for the 457 visa to be unpersuasive ([20]). Ultimately, it was not satisfied that illness suffered by Mr Singh's father contributed to his inability to pay his tuition fees or to his limited attendance at classes. It was not satisfied that those factors caused Mr Singh's lack of enrolment in a course, as required. Nor was the Tribunal satisfied that he would suffer any degree of hardship that would warrant a favourable exercise of its discretion ([23]). 11 In his appeal to the FCCA Mr Singh relied on 2 grounds namely that the Tribunal committed jurisdictional error first by failing to comply with s 359 of the Act and secondly by failing to comply with Schedule 5 criteria (FCCA [12]). The learned primary judge rejected both, but as neither ground is advanced in the current appeal, it is not necessary to consider them further. 3. THE PRESENT APPEAL 3.1 An adjournment application 12 At the commencement of the hearing Mr Singh applied for an adjournment. He submitted that he had spoken to a lawyer, Mr Aman Deep Singh, who was a family friend, on 2 March 2018 and that Mr Aman Singh had said that he would be away but that upon his return he would represent him at Court. Initially Mr Singh said that he was not sure when the lawyer would return to Australia, but upon questioning he submitted that he would be able to appear from the end of March or the beginning of April. 13 Mr Johnson opposed the adjournment on behalf of the Minister. He submitted that directions were made concerning the conduct of the hearing in October 2017, that no written submissions have been filed by the appellant and that it appears from the form and content of the grounds of appeal that no legally qualified person has prepared or assisted in preparing them. He submitted that the grounds of appeal have little prospect of success and that the hearing ought to proceed. 14 I took the view that the adjournment should be refused. Mr Singh initiated the appeal in this Court on 27 September 2017 and has been aware of the approaching hearing since then. He was subject to directions to file any written submissions 10 business days in advance of the hearing but failed to do so. Mr Singh offered no explanation as to why he had not taken steps within an appropriate time to ensure that he is legally represented and Mr Aman Deep Singh appears to have made no attempt to file an appearance on behalf of Mr Singh. I was not satisfied that Mr Singh had advanced sufficient basis for the adjournment. Accordingly, the hearing proceeded. 3.2 The submissions 15 Mr Singh filed no written submissions but made brief oral submissions in support of his appeal. He submitted that his father was very sick and that he had been obliged to return to India. When he did so, he had a certificate of enrolment in his course, but he could not pay the education provider the fees that they required. He had responded to the letter from the Department explaining that he was still waiting for finance so that he could commence the course, but while he was waiting his Visa was cancelled. 16 During the course of the hearing, Mr Singh's attention was drawn to grounds 2 and 5 of his appeal and he was asked to explain what they meant. Regrettably, he was unable to give any explanation. Neither appears to be relevant to any factual or legal matters considered either by the primary judge or the Tribunal. 17 The Minister submits, in summary, that the grounds of appeal advanced are of no merit. None was raised before the primary judge, and so leave to appeal is required. However, the merits of the grounds are insufficient to warrant the grant of leave. 3.3 Consideration 18 I commence my consideration of the grounds of appeal by making the observation that the jurisdiction of the Federal Circuit Court is limited to considering only whether the Tribunal's decision to refuse to grant the appellant's visa was lawfully made under the Act, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1127 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). A jurisdictional error may be established where the Tribunal, for example, has misunderstood the criteria under the Act or Regulations which it applied in deciding to refuse a visa or has failed to give the visa applicant a fair opportunity to be heard and to respond to adverse material. In turn, this Court is required on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) to consider whether there is error in the decision of the Court below. As such, it is also beyond this Court's jurisdiction to consider whether or not it is satisfied on the material before it that the appellant meets the criteria for a Visa or to request the Department to grant the Visa sought. 19 As none of the present grounds of appeal were advanced below, leave is required: In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588, at [46] and [48], the Full Court said: … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. … The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 20 Ground 1 of the appeal is that the primary judge failed to hold that the Tribunal fell into jurisdictional error when it took into account irrelevant considerations and misconstrued the facts. No details for the alleged irrelevant considerations or misconstruction of facts are provided. Based on my reading of the decision of the Tribunal, in the context of the documents relied upon by Mr Singh in support of his application, I can detect no irrelevant considerations taken into account or any failure correctly to construe the facts. This ground of appeal has insufficient prospects of appeal to warrant the grant of leave to rely upon it. 21 Ground 2 is that Mr Singh provided the "confirmation of enrolment but Tribunal did consider, and they did remit his visa to Department". This ground is not coherent, and Mr Singh was unable, during the course of the hearing to explain it. Although allowances for infelicity of expressions are appropriately made for self-represented litigants, it is not possible to discern any intelligible basis for jurisdictional error from this ground. Leave must be refused. 22 Ground 3 is that Mr Singh's father was sick in India so he could not study. I assume that in this ground Mr Singh contends that the Tribunal (and FCCA) failed to make a finding that the reason why Mr Singh did not remain enrolled in the course was because of his father's illness. However, this claim was considered by the Tribunal, and rejected. The ground amounts to an attempt to review the merits of the Tribunal decision. As I have noted in [18], this is not an available basis for judicial review and must be rejected. 23 In ground 4 the appellant states 'his "ceo [which I take to be confirmation of enrolment] has not been updated so this breach by college." This would appear to be a complaint that the Tribunal failed to take account of the fact that the confirmation had not been kept up to date by his education provider. However, as [97] of the Tribunal's reasons (quoted at [8] above) indicates, the undisputed fact is that since 25 July 2014 Mr Singh has not been enrolled in a registered course of study. It was that fact that resulted in his failure to satisfy condition 8202(2). The Tribunal's reasons for refusing to exercise its discretion in favour of Mr Singh are set out in [10] above. The conduct of the college was not considered material to that exercise. This ground (at its highest) appears to seek a re-exercise by the Court of the Tribunal's discretion. However, no jurisdictional error has been identified. Leave to rely on ground 4 has insufficient basis for the grant of leave. 24 Ground 5 consists of claims by Mr Singh that he complied with his student visa conditions and had completed his previous study. These claims are referable to the merits of the appeal and are contrary to the findings of the Tribunal. They give rise to no question of jurisdictional error on the part of the Tribunal. Leave to rely on this ground is refused. 4. DISPOSITION 25 The appeal is dismissed. Mr Singh must pay the first respondent's costs of the appeal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate: Dated: 29 March 2018