Dhillon v Minister for Immigration

[2016] FCCA 3307

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHILLON v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3307

Catchwords:
MIGRATION – Review of decision of Administrative Appeals Tribunal – jurisdictional error – finding of fact by Tribunal that applicant had failed to satisfy essential criterion for grant of visa – finding of fact reasonably open to Tribunal – applicant seeks merits review – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65; 368D; 474; 476(1); 476(2)

Migration Regulations 1994 (Cth), r.572.211

Cases cited:
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Applicant: KULWINDER SINGH DHILLON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 181 of 2016

Judgment of: Judge Brown

Hearing date: 9 December 2016

Date of Last Submission: 9 December 2016

Delivered at: Adelaide

Delivered on: 22 December 2016

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Milutinovic

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 14 June 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 181 of 2016

KULWINDER SINGH DHILLON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATION APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in these proceedings is Kulwinder Singh Dhillon “the applicant”.  He seeks orders to quash a decision of the Administrative Appeals Tribunal “the Tribunal” delivered on 19 May 2016. 

2. In this decision, the Tribunal affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection “the Minister” not to grant the applicant a student (temporary) (class TU) vocational education and training sector (subclass 572) visa “the visa” pursuant to section 65 of the Migration Act 1958 (Cth) “the Act”.

3. In general terms, section 65 authorises the Minster to grant a visa, if satisfied that applicable criteria, specified in the Act or regulations made under it, have been satisfied by the relevant applicant concerned.

4. The applicant is a citizen of India.  He applied for the visa, in Australia, on 14 January 2016.  He had previously completed a diploma of business course, at the New England College of Technology, which was granted on 18 August 2015.  Prior to commencing this course, the applicant was a holder of a student visa.  However, this visa ceased to be in effect on 30 August 2015. 

5. At the time of his visa application, the applicant wished to undertake a diploma of leadership and management, offered by the Australian Industrial Systems Institute, commencing on 14 January 2016.  In response to the question “do you currently hold a student visa”, in his application for the relevant visa, the applicant has ticked the box indicated no. 

6. The relevant criteria, applicable to the visa in question, are set out in clause 572.211 in schedule 2 of the Migration Regulations 1994 “the Regulations”).  One of the criteria, necessary to be satisfied at the time of decision, is that the applicant concerned held a substantive visa, at the time of application, or had a visa, which ceased within 28 days of the application. 

The decision

1. On 21 January 2016, a delegate of the Minister declined to grant Mr Dhillon the visa for which he had applied on the basis that he had not satisfied the specified criteria for the visa in question. 

2. As a consequence of this decision, on 10 February 2016 the applicant applied to the Tribunal for a review of the delegate’s decision.  The review hearing took place on 19 May 2016.  The applicant was invited to attend the hearing to present argument and give evidence. 

3. The applicant attended this hearing by telephone.  At its conclusion, the Tribunal delivered an oral decision, in which it affirmed the decision under review. 

4. Thereafter, pursuant to the provisions of section 368D of the Act, the Tribunal provided a written statement of its decision, which has been provided to both the court and the applicant. 

5. In this statement, the Tribunal summarised the applicant’s evidence of the applicant and the Tribunal’s response to it in the following manner:

   “The applicant appeared before the Tribunal via telephone conferencing on 19 May 2016 to give evidence and present arguments. In his evidence he confirmed that he previously held a Student visa subclass 573 that ceased on 30 August 2015. He further confirmed that the current visa application was lodged on 14 January 2016, being more than 28 days after his substantive visa ceased. I explained to the applicant that there is no discretion to exercise to find that the applicant otherwise satisfied the criterion in cl.572.211.”[1]

   [1]  See casebook at page 80 [6]

6. In the decision, the Tribunal further summarised the provisions contained in clause 572.211 of the Regulations, particularly that it was a requirement for the grant of a temporary (class TU) student visa that the applicant for such visa either held a substantive visa at the time of application or had held such a visa within 28 days of having made application. A student visa subclass 573 is such a substantive visa.

7. In the circumstances of this case, the Tribunal found that the applicant did not hold a substantive visa, at the time of his application. It further found that his last substantive visa had ceased to be in effect on 30 August 2015, which was outside the twenty eight day period. As a consequence, the Tribunal found that the applicant did not satisfy the requirements of clause 572.211 of schedule 2 to the Regulations.

8. Accordingly, the Tribunal affirmed the decision not to grant Mr Dhillon the visa in question. 

The proceedings in this court

1. On 14 June 2016, the applicant commenced proceedings in this court seeking that the Tribunal’s decision be quashed.  The applicant has prepared his own grounds of application.  After summarising the basis of the decision, the grounds of the application are as follows:

   “Department law is flawed so is the judgment.  I did not have any visa refused or cancelled nor I have lived any day illegal.  I have always been lawful in Australia.  It is unfair that we can apply for visa within 28 days of expiry of last substantive visa.  If applicant can be accepted after visa expiry then number of days should not be mattered.”

2. The application came in for its first directions hearing, before the court, on 15 July 2016.  On this occasion, the case was listed for hearing on 9 December 2016.  In addition, the applicant was directed to file any further material, on which he sought to rely, no later than 26 August 2016, with an outline of submissions to be filed 14 days prior to the hearing.  The applicant did not take advantage of the first direction and has failed to comply with the second direction, in respect of the filing of written submissions.

The hearing

1. Mr Dhillon appeared on his own behalf before the court.  He reiterated his view that there was a jurisdictional error, in the Tribunal’s finding, because it was fundamentally unfair to him that he had not been granted the visa, as he had never committed an unlawful act in Australia and had entered the country pursuant to a valid visa and successfully completed a course of study. 

2. During his oral submissions, he indicated that it was a matter of central importance to his future that he be able to complete his studies in Australia.  I have no reason to doubt the sincerity of these statements.

3. I accept that it is the applicant’s position that the decision in question is so unreasonable that no reasonable person could have reached it and therefore the Tribunal has not exercised the jurisdiction conferred upon it. 

The legal principles applicable

1. The legal principles applying to applications of this type are complex.  I will do my best to explain them.  In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did. 

2. Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

3. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Administrative Appeals Tribunal.  Part VIII of the Act deals with judicial review.  Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

4. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the Administrative Appeals Tribunal by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

5. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions.  A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[2] 

   [2]  See Migration Act at section 5

6. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

7. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision.  As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act. 

8. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[3]

   [3]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

9. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[4]

   [4]  See Craig v South Australia (1995) 184 CLR 163

10. As previously indicated, jurisdictional error is a complex concept.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction. 

11. In Minister for Immigration & Citizenship v Li[5] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one.

    [5]  Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]

Conclusions

1. In my view, the applicant’s submissions that the Tribunal has misapplied the law to his case, in some way, cannot be sustained. In my view, the Tribunal correctly concluded that the provisions of clause 572.211 of the Regulations applied to the applicant’s case and therefore he had failed to meet an essential requirement for the grant of the relevant visa.

2. In addition, in my view, there is no evidence that the Tribunal behaved in a procedurally unfair way towards the applicant.  He was given an opportunity to appear before it and present evidence and arguments.  It is of particular moment that he does not challenge the central evidentiary finding, which was that his previous student visa had expired on 30 August 2015, which was outside the 28 day period stipulated. 

3. In all these circumstances, I do not consider that the decision can be characterised as an unreasonable one.  In particular, the findings of fact on which it was founded were clearly open to the Tribunal.  Indeed, if the Tribunal had reached a contrary factual decision, that finding would be open to be characterised as illogical, irrational and unreasonable. 

4. As Gleeson CJ pointed out in Re Minster for Immigration & Multicultural Affairs: Ex parte Applicant S20/2002:

   “…to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it.”[6]

   [6]  Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 61 [5]

5. I accept that the applicant is upset and aggrieved by the decision of first the delegate and then the Tribunal.  However, in my view, he does not identify any jurisdictional error in the Tribunal’s decision.  Rather, he expresses dissatisfaction with the finding and requests this court to substitute its own decision through a process of merits review. 

6. This is not open to the court, which can only quash a decision if legal error is apparent.  In my view, the applicant has not delineated any such legal error.  In my view, the findings of the Tribunal were open to it on the evidence available to it, which included the evidence of the applicant himself. 

7. As such, there are no grounds for me to consider that the Tribunal’s factual conclusions can be considered to be irrational or illogical.  In my view, they were clearly open to it on the evidence available. 

8. There being no discernible legal error, the application must be dismissed.  The first respondent seeks costs in the sum of $5,800.00.  In this case, I accept that costs should follow the result. 

9. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thiryt-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     22 December 2016