Chani v Minister for Immigration

[2015] FCCA 3144

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHANI v MINISTER FOR IMMIGRATION [2015] FCCA 3144

Catchwords:

MIGRATION – Review of Migration Review Tribunal decision – Visa – student visa – application dismissed – applicant to pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth), ss.57, 424A, 424AA

Migration Regulations 1994 (Cth), cl.573.223

Applicant: RAJDEEP SINGH CHANI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: BRG 439 of 2015

Judgment of: Judge Vasta

Hearing date: 3 November 2015

Date of Last Submission: 3 November 2015

Delivered at: Brisbane

Delivered on: 3 November 2015

REPRESENTATION

Solicitors for the Applicant: Sharma Lawyers

Counsel for the Respondent: Mr McGlade

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application filed on 22 May 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental of the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 439 of 2015

RAJDEEP SINGH CHANI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. By application filed in this court on 22 May 2015, the Applicant, Rajdeep Singh Chani, seeks judicial review of a decision of the delegate of the Minister for Immigration and Border Protection, refusing the Applicant a student visa. 

2. The matter does have a history. What occurred is that the Applicant had made an application in India for the visa.  What then happens, because it is an application for a visa made offshore, a person from the High Commission in India in New Delhi, interviews the person, makes whatever investigations are needed, and then gives, as it were, a small report to the person who is going to be the decision maker, who then himself (or herself) conducts a hearing.

3. That had occurred earlier this year and in January 2015, the delegate had refused the application.  The Applicant applied to this Court, seeking judicial review of that decision.  The Minister conceded the point and the matter was remitted back to the delegate to be dealt with properly.  The decision of 14 April 2015, was in fact a decision of the Court, even though it was a consent order; therefore another interview occurred on 11 May 2015. 

4. That further interview was conducted by someone at the High Commission.  Those notes were then provided to a second delegate, and that delegate was to then make a decision.  After those investigations by the first interviewer, his referral notes were provided to the delegate. The delegate, on 21 May 2015, made a decision to refuse the Applicant’s visa application which lead to today’s hearing.

5. What the decision maker, the delegate, needed to look at was cl.573.223 of the Migration Regulations 1994 (Cth), which reads:

   “(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; and

   (b) the applicant meets the requirements of subclause (1A) or(2).”

6. So what needed to be done here was for the delegate to satisfy himself whether the Applicant was, in fact, a genuine Applicant.  So the satisfaction of the Minister was the main matter that had to be decided. 

Ground One

1. What is complained of in this application is, as far as Ground One is concerned:

   “1. The delegate of the Respondent failed to comply with his obligations under s.57 of the Migration Act 1958 (Cth) in that he failed to invite the applicant to comment on adverse information received from a Departmental Officer from the Australian Consulate New Delhi.”

2. This ground has its origins in the interview that occurred on 11 May 2015.  After the interview was conducted, obviously, a transcript of that interview is made and the answers are able to be seen. What was of interest, in that interview, was that the Applicant said that he had 1.5 million rupees in a term deposit that would be used to, as it were, bankroll him in Australia.

3. Also of interest was information that the father was able to support the Applicant because of his work with a particular company and that he owned that company. 

4. The investigations made by the interviewer, revealed (at pages 58 and 59 of the court book) generally, with regard to the bank, that the money was 1.67 million rupees and it had been taken out of the term deposit and dispersed into a savings account. Also revealed, with regard to the father’s work, was that an internet search did not provide any information that corroborated that such a business existed and that the father was, in fact, the proprietor.

5. The Applicant says that such information ought to have been put to the Applicant when making the decision. What a delegate needs to do as far as s.57 of the Migration Act 1958 (Cth) is concerned, is to determine whether there is relevant information that would be the reason, or part of the reason, for refusing to grant the visa. If that information is specifically about the Applicant (and is not just about a class of person to which the Applicant is a member), and such information was not given by the Applicant for the purpose of the application, then the Minister must give particulars of the relevant information to the Applicant. This is to be done in the way the Minister considers appropriate in the circumstances. The Minister must ensure that the Applicant understands why it is relevant to consideration of the Applicant. The Minister must then invite the Applicant to comment on it.

6. Therefore in determining this point, it is necessary to see what were the reasons for the delegate refusing to issue the visa. It is a simple matter of then determining whether those reasons include a matter for which the delegate should have acted under s57.

7. In effect, the Applicant here says that the delegate should have said words to the effect, “Well, we’ve got information that the money is not 1.5 million rupees, it is 1.67million rupees, and it has been disbursed into an ordinary savings account.  What do you say to that?”, and it should have been put, “We’ve done a Google search, and the information is that there’s no such company and no evidence that your father controls it.  What do you say to that?” 

8. Now, whilst that may be the contention, the problem is that such questioning would have had to have taken place only if it was the reason or part of the reason for refusing to grant the visa.

9. When one has a look at the reasons of the Tribunal, it is clear that the Tribunal has said  this:

   “I have taken into consideration the documentation provided in support of your application and the information you provided in a telephone interview with a Departmental Officer at the Australian High Commission New Delhi on 11 May 2015.”

10. There is no mention, in those reasons, of any of those results of any of that investigation. In the absence of those matters even being mentioned, it cannot be thought that either of those matters were matters upon which one could say were the reason or part of the reason for the decision.  In fact, the Tribunal is actually very, very clear as to what the reasons were for the refusal of the visa, and it had nothing to do with either of those matters.

11. Therefore, in my view, the ground that is complained of, cannot be sustained.

Ground Two

1. With regard to Ground Two, the Applicant has said

   “2. The delegate of the Respondent took into account irrelevant considerations. 

2. The particulars were that the delegate had spoken of the Applicant being unemployed.  The paragraph in the judgment reads full this way:

   “I have given regard to your circumstances in your home country.  You are unmarried with no dependent relatives.  You completed a Senior Secondary Certificate in March 2014.  I note that you are currently unemployed, and that you stated during the interview that you have never been employed.  I also note that you have not acknowledged any job offer upon your return to your home country.  I am therefore not satisfied that you have been able to demonstrate personal or economic ties that would serve as a significant incentive for you to return to your home country.”

3. It is the part of that passage (underlined) that talked about noting that the Applicant had never been employed and that he has no job offer upon his return to the home country that is one of the particulars given for this ground. 

4. The Applicant says that the delegate of the Respondent took into account irrelevant material that the Applicant did not have a job offer. The Applicant says that it would not be possible for a person to obtain a job offer that far ahead, when the proposed study was to complete in 2018. The Applicant submits that it is not reasonable to expect an 11 grade student to have been employed. Therefore, it is submitted that, these considerations were irrelevant.

5. I agree with the Respondent’s submission that this complaint is misconceived for a number of reasons. 

6. The delegate was obliged by both the criteria in cl.573.223 and the Ministerial direction to take the matters into account which were “what were the ties that the Applicant has to India and to Australia”. Therefore in doing what he was obliged to do, one can hardly say that the delegate has looked at an irrelevant consideration.

7. I do agree also with the Respondent when he submitted to me that an irrelevant consideration which, if it were considered, may infect a decision with jurisdictional error is a consideration that the decision maker was strictly prohibited or forbidden from taking into account.

8. Therefore if such a matter was taken into account and it was forbidden or prohibited, it was an “irrelevant matter” and would therefore taint the decision with jurisdictional error. 

9. This is not the case in this matter because the Tribunal was obliged to look at such circumstances. I do not see that this was an irrelevant consideration.

10. The second matter complained of is that it was an irrelevant consideration to take into account that the Applicant had not provided any evidence of personal ties to Australia that would serve as an incentive for the Applicant to remain at the completion of his proposed course. 

11. Such a ground has its origins from another part of the judgment where the delegate says:

    “I have also considered your potential circumstances in Australia.  I note that you have not provided any evidence of strong personal ties to Australia that would serve as an incentive for you to remain at the completion of your proposed English for Academic Purposes course and Bachelor of Business (Management and Finance) in Australia.  I acknowledge your statement of purposes and responses provided at interview in support of your application…”

12. It would seem to me, in reading the reasons of the delegate in context, that when the delegate spoke about that matter of the strong personal ties to Australia, he was, on one hand, contrasting the Applicant’s lack of ties to India but then also, on the other hand, saying that there was a lack of ties to Australia.  To my mind, in the way in which the delegate spoke of these things, it was a matter that was actually in the Applicant’s favour. 

13. Notwithstanding that, for the same reasons I spoke of before, it was incumbent upon the delegate to conduct such an inquiry and reasoning to ensure that he had looked at the matters that he has to both under the clause itself and the ministerial direction.  Again, for the same reasons I have spoken of, I do not see that it is a matter that was irrelevant. It certainly was not an irrelevant consideration, as that term has been used, that would be an error capable of infecting the decision with jurisdictional error. 

14. So as far as I can see from Ground Two, there are no irrelevant matters that were taken into consideration that ought not to have been taken into consideration, and that ground fails.

Ground Three

1. Ground Three, the asserted ground of jurisdictional error, was that:

   “3. The delegate of the Respondent ignored relevant material.”

2. Again, just as “irrelevant” material is material that was considered by the delegate despite there being a prohibition about considering, “relevant” material must therefore be material upon which the decision-maker must have regard. 

3. For this ground to be successful, the Applicant must demonstrate that there was a mandatory consideration that was not taken. 

4. What the Applicant has argued is that, firstly, what was not considered were statements in the father’s affidavit at paragraph 2:

   “2. That said our Son Rajdeep Singh Chani is now going for Higher Education at Australia.”

5. Secondly, that the delegate ignored the information in the Applicant’s confirmation of enrolment that the Applicant’s study was to be completed in 2018 is submitted by the Applicant.

6. And then, thirdly, was that the delegate ignored what was in the Applicant’s statement of purpose for studying in Australia.

7. It is trite to say that not everything that is considered has to be listed seriatim for a decision-maker who has said:

   “I have taken into consideration all the documentation and all the material”

8. As was said during argument, unless the contrary is shown, if the issue was in the documentation and material, the Delegate has taken it into account.  These three matters, that have been the subject of this ground, had to have been taken into account at some point. 

9. This ground is really an impermissible merits review. What the Applicant is realistically saying is that, even though the decision-maker has said what he has said, I, the applicant, say that these three things are far more relevant than the decision-maker must seem to think.  Therefore, because I think that they are of greater value than what the decision-maker has said, the decision maker must be in error. That is a submission that may have some traction if this were a merits review.  But it is not a merits review; the question is whether there has been jurisdictional error. 

10. On my view of what is in the decision of the delegate, I cannot see that these matters were not fairly considered by the delegate; nor is there any mandatory aspect to them.  For those reasons, ground three fails.

11. I dismiss the Applicant’s application and order the Applicant to pay the Respondent’s costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  25 November 2015