Badwal v Minister for Immigration

[2017] FCCA 1932

FEDERAL CIRCUIT COURT OF AUSTRALIA

BADWAL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1932

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.476
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13
Migration Regulations 1994 (Cth), cl.572.223

Cases cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682
Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95

Applicant: NAVJOT SINGH BADWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1620 of 2017

Judgment of: Judge Emmett

Hearing date: 10 August 2017

Date of Last Submission: 10 August 2017

Delivered at: Sydney

Delivered on: 10 August 2017

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents: Ms Jennifer Strugnell
Minter Ellison

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1620 of 2017

NAVJOT SINGH BADWAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 25 May 2017, the applicant filed an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of a decision of the Administrative Appeals Tribunal dated 12 May 2017 (“the Tribunal”).

2. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought.

3. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

4. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

5. The applicant was unrepresented before the Court this morning and did not require the assistance of an interpreter. 

6. The applicant confirmed that he had attended a directions hearing before this Court on 15 June 2017. On that occasion, the applicant had been given leave to file and serve an amended application, any further evidence by way of affidavit and submissions in support of his application. 

7. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in the English language.

8. The applicant confirmed that he had not filed any further material in relation to that substantive application, although he did file an affidavit on 31 July 2017 in relation to an adjournment application made by him which was refused. The applicant confirmed that there was nothing in the material attached to that affidavit sworn by him on 25 July 2017 that was relevant to the issues before the Court this morning. 

9. At the commencement of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal and that it is not for the Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. 

10. I also explained to the applicant that unless this Court was satisfied that the decision was affected by a mistake that went to the Tribunal’s jurisdiction this Court had no power to interfere with that decision. I also said that generally or rarely would disagreement with the findings and conclusions of the Tribunal by itself establish a mistake that went to the Tribunal’s jurisdiction. 

11. The applicant confirmed that he continued to rely on the grounds of his substantive application which are as follows:

    “1. The Migration Review Tribunal made a jurisdictional error in denying the            Applicant's application for a Student (Temporary) (Class TU) visa in failing to consider all the facts and the law related to the Applicant's application particularly:

    Particulars:

    (a) The applicant applied to the Department of Immigration for the Visa on 11 May 2016. The delegate decided to refuse the grant of the visa on 21 July 2016.

    (b) The Migration Review Tribunal did not consider that the applicant does not meet an essential requirement of cl. 572.223. with the exception of Subclass 582, the other subclasses within Class TU all contain an identical requirement. For reasons given above, the Tribunal finds that the Applicant does not meet requirements of these subclasses.

    ● In the current matter a submission made by the applicant on 2 May 2017 records that an offer letter Based on this evidence for the Tribunal finds the applicants have given, or caused to be given,         information that was applicant has indicated that he would like to        further study.”

12. I asked the applicant to take a moment to reread those grounds and then invited him to say whatever he wished in support of the grounds. The applicant had nothing to say in support of the grounds. I asked the applicant what he meant by the grounds and what was he saying was the mistake that was made by the Tribunal. The applicant reiterated that he wished to stay and study. 

13. The applicant confirmed to me that his complaint was really that he disagreed with the outcome of the Tribunal. Plainly, such a complaint does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal, thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

14. The factual background of this matter is that the applicant arrived in Australia on 2 March 2014 as the holder of a Student (Temporary) (Class TU) student visa.  On 11 May 2016, the applicant made a further application for a student visa. 

15. On 21 July 2016, a delegate of the first respondent (“the Delegate”) refused to grant the applicant a Subclass 572 Visa because the applicant did not satisfy the requirements of cl.572.223 of schedule 2 to the Migration Regulations (“the Regulations”).

16. On 2 August 2016, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

17. On 5 April 2017, the Tribunal wrote to the applicant, inviting him to appear before it on 1 May 2017.  The letter also invited the applicant to provide further information, including a copy of a current certificate of enrolment, past studies in Australia, copies of all attendance certificates, academic transcripts and certificates of completion; as well as, documents evidencing any work related to past or intended studies in Australia, and an explanation of any gaps in the applicant’s enrolments and any documentary evidence relevant to that explanation. 

18. The letter then stated that the Tribunal would assess whether the applicant intended genuinely to stay in Australia temporarily. The letter referred to the Direction from the Minister known as Direction No.53 and attached a copy to the letter. The letter invited the applicant to provide a written statement addressing the issue of whether he is a genuine temporary entrant by reference to that Direction.

19. In response, the applicant’s migration agent provided a copy of an offer letter from The Wales Institute to the applicant, dated 2 May 2017. 

20. The applicant attended a hearing before the Tribunal on 1 May 2017. The Tribunal noted that the applicant had applied to the Department of Immigration and Border Protection (“the Department”) for the visa on 11 May 2016 and that that application had been refused by the Delegate on 21 July 2016. The Tribunal referred to the various subclasses to the visa for which the applicant had applied, and noted that the subclass that can be granted depended on the type of course in which the applicant was enrolled or had an offer of enrolment. 

21. The Tribunal noted that the Delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of the Regulations because he was not a genuine applicant for entry and stay as a student. Clause 572.223 of the Regulations states as follows:

    “(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i) the applicant’s circumstances; and

    (ii) the applicant’s immigration history; and

    (iii) if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv) any other relevant matter; …”

22. The applicant was represented by a registered migration agent in relation to the Tribunal’s review.

23. Having regard to the applicant’s current proposed course of study, the Tribunal identified the relevant subclass as 572. In considering whether the applicant satisfied the criteria referred to in cl.572 of the Regulations, the Tribunal had regard to Direction No.53 and identified the factors that the Tribunal was required to consider. The Tribunal noted that the factors specified should not be used as a check list but were intended to be a guide to decision-makers to weigh up an applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfied the genuine temporary entrant criteria.

24. The Tribunal then discussed the applicant’s academic history with him and asked whether he was an enrolled student. The Tribunal noted the applicant’s response that he was not, but that he had an offer of enrolment. The Tribunal noted that the applicant said that his poor academic progress was due to sickness and death in the family and that he had not maintained his study because he went to support an ill family relative. 

25. The Tribunal noted that the Tribunal’s decision record and the Delegate’s decision disclosed that the applicant had not completed any course since his arrival in 2014 and that, at the same time, he had been in breach of conditions 8202 and 8516.

26. While the Tribunal’s decision record refers to condition 8101 rather than condition 8202, I accept the reference to 8101 to be a typographical error (see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 per Marshall J at [29]; Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 per Marshall J at [48]). It is clear from the Delegate’s decision that the critical conditions that the applicant was found not to have met were conditions 8202 and 8516. The circumstances that the Tribunal had regard to were those consistent with condition 8202. Moreover, nowhere in any of the documents is there any reference to a condition 8101. In making this finding I have regard to the caution a Court should exercise in “filling the gaps” (see Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95; [2000] FCA 1830 per Finkelstein J at [48]).

27. The Tribunal noted that there were significant gaps in the applicant’s attendance regime, including one of 16 months without any evidence of a formal request for deferral for medical reasons. The Tribunal also noted at the same time the applicant had not departed Australia. The Tribunal then referred to the letter of offer that the applicant had provided to it, being a Certificate IV in Human Resources, in which the applicant was enrolled to study in May 2016. 

28. Based on the applicant’s conduct and the evidence and material before it, the Tribunal found that the applicant was using the student visa program to maintain ongoing residence in Australia rather than study. The Tribunal noted that it had had regard to the applicant’s circumstances, his immigration history and was not satisfied that the applicant intended genuinely to stay in Australia temporarily. In those circumstances, the Tribunal concluded that the applicant did not meet cl.572.223(1)(a) of the Regulations, that being an essential requirement of cl.572.223 of the Regulations.

29. The Tribunal also considered the other subclasses within the visa class and found they all contained the same requirement except for subclass 580 which was a subclass in respect of which there was no material to suggest that the applicant met the prescribed criteria.

30. Having found that the applicant did not meet the criteria for the grant of the student visa, the Tribunal affirmed the decision under review. The Tribunal’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave.

31. The Tribunal referred to Direction No.53 and identified the relevant factors. The Tribunal’s reasons sufficiently make reference to matters capable of satisfying the Court that the Tribunal considered those factors and complied with Direction No.53.

32. During the course of giving these Reasons, I asked the applicant again what he meant by Ground 1 Particular (b) and the applicant said that the mistake that the Tribunal made was to refer to the other subclasses at all.

33. However, there was no error in the Tribunal referring to the other subclasses, even if it was not required to do so.

34. To the extent that the grounds are capable of suggesting a complaint that the Tribunal did not consider the letter of offer received by the applicant on 2 May 2017, reasons of the Tribunal make clear that it was aware of that letter of offer and identified with specificity the study in respect of which that offer was made. 

35. The Tribunal found that it was not sufficient by itself to overcome the Tribunal’s findings in relation to the significant gaps in the applicant’s attendance regime, which it found to be in breach of Conditions 8202 and 8516 of his visa. The Tribunal’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave.

36. Whilst I make no final conclusion as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal it is capable of establishing jurisdictional error and none is apparent on the face of the Tribunal’s decision record.  The Tribunal referred to the relevant law in affirming a decision under review. 

37. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under rule 44.12(1) of the Rules, and on the basis that the application does not raise an arguable case, the proceeding before this Court commenced by way of application, filed on 25 May 2017, should be dismissed pursuant to rule 44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  16 August 2017