Singh v Minister for Immigration and Multicultural and Indigenous Affairs

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…'