Singh v Minister for Immigration & Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application under s 476(1) of the Migration Act 1958 ("the Act") for review by this Court of a decision of the Migration Review Tribunal ("the Tribunal") made on 11 January 2001, affirming a decision of the respondent, by his delegate, to refuse the grant of a Student (Temporary) (Class TU) visa, subclass 560. The applicant sought an adjournment today, upon the basis that he could not afford representation by counsel. This application was successfully opposed by the respondent. 2 The applicant, Daljit Singh, was born on 9 January 1974. He is a citizen of the Republic of India. Mr Singh entered Australia on 26 July 1998. At the time of his arrival, he held a Student (Temporary) (Class TU) visa, subclass 560 that was valid to 23 July 2000. One of the conditions of the visa was noted on his passport as "8202 meet course requirements". 3 Mr Singh was enrolled at Chalmers Institute from 27 July 1998 until 23 June 2000. A document headed "Change in Student Circumstances" issued by Chalmers Institute on 19 January 2000 indicated that he had failed to meet course requirements and to attend during Semester 2, 1999. On 13 July 2000, Chalmers Institute sent the respondent's Department a "Certificate of Attendance" that stated that Mr Singh's attendance was "Unsatisfactory (Less than 80% Attendance)". Meanwhile, on 11 July 2000, he enrolled at the Australian School of Business Administration, Technology and Research. 4 On 19 July 2000, Mr Singh lodged an application for a new visa that included a letter claiming personal reasons and sickness for "a couple of months" to account for his poor attendance. Subsequently, Chalmers Institute issued a second "Change in Circumstances" document that notified a failure to meet course requirements and non-attendance for Semester 2, 1999 and Semester 1, 2000. (The document also carried the notation "Cancellation of Enrolment" and "Enrolment Complete".) The respondent's delegate refused to grant him a visa. By a decision record dated 1 September 2000, the delegate said: The applicant lodged an application for Student Temporary (Class TU) Visa Subclass 560 Visa on 19/07/2000. After considering the application, insufficient information was given. So as to satisfy me that the applicant met criteria 560.213 of the Regulations, on 19/07/2000, the applicant was invited to submit the following documents within 35 days of the date of the letter: At the time of application lodgement, the client was requested to provide further documentation in the form of Medical & X-ray results, evidence that he had paid for the overseas student health cover, evidence of funds with an accompanying letter of sponsorship/evidence of sponsors funds, and also a statement explaining the reasons for his poor attendance results during the duration of his last visa, together with any documentation that could support such claims. To date no Medical or X-ray results have been received for this application, whilst evidence of payment for the overseas student health cover and evidence of funds has been provided, both satisfactorily. A letter from the client with regard to his poor attendance record stated that he had 'some personal reasons I couldn't attend' and that he 'fell sick for a couple of months'. There was no supporting documentation provided to support these claims. After considering the application I have decided that the applicant has failed to comply substantially with condition 8202 (the holder must satisfy course requirements). To comply with course requirements the applicant is expected to have a satisfactory attendance record of 80%. The applicants' attendance records do not reflect an attendance of this level. I am not satisfied, therefore, that the applicant meets Regulation 560.213. As the applicant does not satisfy Part 560 paragraph 560.213 of the Regulations he does not satisfy all the requirements for the grant of a Visa Subclass 560. I have, therefore, not assessed the applicant against the other requirements for this Visa. 5 On 26 September 2000, an application for review was lodged with the Tribunal. On 19 October 2000, the Tribunal wrote to Chalmers Institute stating: Visa condition 8202 in schedule 8 of the Migration regulations at the time that the previous student visa was granted provides that: "8202 The holder must satisfy course requirements". You will note that the criterion does not specifically relate to attendance or course results but overall performance. There is no reference in the regulations as they read at the time of the grant requiring 80% attendance. Please advise whether or not you now considers that the student has satisfied course requirements for the period from 16 July 1998 to 23 July 2000 for that period during which he was enrolled at Chalmers Institute. You are requested to use the term 'does/does not satisfy course requirements.' On 23 October 2000, a submission and supporting documents were lodged on Mr Singh's behalf with the Tribunal. 6 In a statutory declaration dated 10 October 2000, which accompanied the submission, Mr Singh stated: During the holidays, I met a girl at a New Year's party … . By the beginning of the second Semester in College, we were already in a steady relationship, although we were not living together. During a telephone conversation with my parents in India, who are religious and quite traditional Sikh people, I mentioned my new girlfriend, since our relationship by that stage was quite serious. They asked me if she was an Indian girl … . I told my parents that she was Pakistani. This very much displeased them … . … I was caught between the people dear to me - my girlfriend on the one hand and my parents on the other. I didn't know what to do. I was constantly in a bad mood and even started drinking more often than I should have. Sometimes I simply was in no mood to go to college - I experienced such apathy that I didn't even bother going, despite the fact that I knew that attendance was recorded and I needed to have sufficient attendance to pass. Still, I couldn't do anything about it - I was so distracted with my own problems. Meanwhile, our fights became very frequent. We were fighting over every little thing. My parents were putting even more pressure on me. I was in a horrible emotional state. We broke up with my girlfriend about 3 weeks before my end-of-year exams in College. I became so depressed that I sat at home for nearly a month, drinking heavily and sleeping. I did not even go to the exams. Eventually I recovered over the holidays and went to College in the beginning of the 2nd year … . By that time, my spirits were slightly lifted because a friend … from my town in India arrived to study in Australia. Conditions at college did not, however, improve. Mr Singh continued: The hostile atmosphere in College, as well as the worsening academic progress only worsened my depression and I relapsed to sitting at home for days, drinking and doing nothing. I attended College quite irregularly and this only made my progress worse. This account was corroborated by a friend. 7 On 23 October 2000 the Chalmers Institute informed the Tribunal that "[f]rom 27th July, 1998 until 23rd June, 2000 Daljit has not satisfied course requirements." The Tribunal subsequently wrote to the applicant by letter dated 17 November 2000, drawing his attention to the Chalmers Institute's reply, condition 8202, and policy guidelines about the interpretation of the condition, and requesting information or evidence concerning Mr Singh's claimed depression. 8 On 7 December 2000, the Tribunal received a further submission and statutory declaration from Mr Singh's cousin which also corroborated his explanation for performing badly at Chalmers Institute. A hearing was held by the Tribunal on 22 December 2000.