Ghotra v Minister for Immigration

[2017] FCCA 3256

FEDERAL CIRCUIT COURT OF AUSTRALIA

GHOTRA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3256

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – s 375A certificate – where material not disclosed to applicant – denial of procedural fairness – jurisdictional error identified – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.375A, 476.

Migration Regulations 1994 (Cth), Sch.2, cls 573.223, 573.227.

Cases cited:

Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

Applicant: DILPREET SINGH GHOTRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2140 of 2016

Judgment of: Judge Street

Hearing date: 20 December 2017

Date of Last Submission: 20 December 2017

Delivered at: Sydney

Delivered on: 20 December 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. A writ in the nature of certiorari is issued calling up the record of the Administrative Appeals Tribunal and quashing the decision dated 18 July 2016.

2. A writ in the nature of mandamus is issued requiring the Administrative Appeals Tribunal to determine the review application before it according to law.

3. The first respondent pay the applicant’s filing fees if paid and any legal costs incurred in the conduct of the case as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2140 of 2016

DILPREET SINGH GHOTRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 July 2016 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of India and applied for a Student (Temporary) (Class TU) (subclass 572) visa on 2 April 2015. At the time of lodgement, the applicant was the holder of a Visitor (subclass 600) visa. Where the applicant is the holder of a Visitor visa when making an application for a Class TU visa in Australia, the applicant must establish exceptional reasons for the grant of the visa. The delegate found that the applicant did not meet the prescribed criteria for the grant of the visa and refused to grant the visa.

The Tribunal’s decision

1. The applicant applied for review on 12 January 2015.

Section 375A certificate

1. A certificate was issued under s 375A dated 2 June 2016 in respect of an email that provided certain information. The document the subject of the certificate referred to the applicant and his lawyer, alleging that:

   “Tomorrow they r going to provide a offer letter to membe[r] again from college to prove that he is a genuine student but all this is fraud. He is doing this because Tribunal member told that if he is studying they will give him visa but he is not.”

2. The information also provided:

   “…as he did not enrol in degree at all now he is again getting offer letter from wentworth college to prove that he is studying since last 4 months they r trying to use fake documents to get visa.”

Consideration

1. The Tribunal identified that the issues in the present case were whether there were established exceptional reasons for the grant of the visa. “Exceptional reasons” is not a defined expression and has its ordinary meaning. The Tribunal expressly referred to guidelines of instances where exceptional reasons may be established. Those guidelines are not definitive.

2. The Tribunal identified the applicant appearing before the Tribunal on 13 November 2015 and again on 15 July 2016 to give evidence and present arguments. The Tribunal referred to the applicant having had an offer of enrolment in a Diploma of Business at Apex College, however, that he now has an offer of enrolment from Academics Australasia Institute for a Certificate IV in Business; Diploma of Management and Advanced Diploma of Management.

3. The Tribunal noted that it put to the applicant he needed to establish exceptional reasons for the grant of the visa. However, the applicant stated he would like to study business because this would help him in the future. The Tribunal referred to the applicant’s representative having submitted a certificate of enrolment in respect of proposed courses of study for streamlined courses and that the Tribunal should have regard to these in its assessment. The Tribunal noted that on 24 December 2015 the representative submitted an offer of enrolment in a Bachelor of Business from Wentworth Institute dated 23 December 2015. On 12 May 2016, the applicant resubmitted the December offer of enrolment.

4. The Tribunal noted that at the second hearing it raised with the applicant that cl 573.223(1A) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) requires him to be an eligible higher degree or non-award student at the time of application and the time of decision.

5. The Tribunal noted that at the time of application the applicant was only enrolled in a Diploma of Management at the Australian Vocational Learning Centre. The applicant stated he was currently enrolled in and studying towards a Diploma of Leadership and Management at the Academies Australasia which was due to be completed in September 2016. The applicant indicated he is also enrolled in an Advanced Diploma of Leadership and Management with the same eligible education provider, which was due to commence in September 2016. The Tribunal referred to the evidence being supported by the PRISMS records before the Tribunal.

6. The Tribunal observed that the applicant was not, however, an eligible vocational education and training student because he was not enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector provided by an eligible education provider.

7. The Tribunal found that it was not satisfied the applicant, at the time of the application, was an eligible vocational education and training student or an eligible higher education student. The Tribunal noted that the applicant therefore must give the Minister evidence in accordance with the requirements of Schedule 5A to the Regulations for the highest assessment level for the applicant. It was in these circumstances that the Tribunal observed that the applicant is subject to assessment level 3 in relation to subclasses 572 and 573 and accordingly the applicant must establish exceptional reasons for the grant of a visa.

8. The Tribunal referred to the applicant being asked whether there are any exceptional reasons for the grant of the visa and the applicant stated he wanted to do a business course because this would assist him in the future. The Tribunal noted the applicant reiterated these explanations at the second hearing.

9. The Tribunal identified having considered the claims presented by the applicant. In the present case the Tribunal did not accept that exceptional circumstances in the grant of a visa had been established. Accordingly, the Tribunal was not satisfied the applicant has established exceptional reasons for the grant of the visa and therefore found the applicant did not satisfy the criteria under clause 572.227 or clause 573.227 and affirmed the decision under review.

Proceedings before this Court

1. The first respondent, consistent with its duties as a model litigant, drew the Court’s attention to the existence of the certificate and put into evidence the document the subject of the certificate. It was submitted that the certificate on its face was valid and the identity of the informant as being masked in the copy of the document produced to the Court. That was a proper course for the first respondent to take.

2. The first respondent has argued that the Tribunal did not act on the information the subject of the certificate in the present case and that therefore the applicant was not denied procedural fairness in the conduct of the review.

3. The first respondent has argued that this is not a case where there were adverse findings made by the Tribunal in relation to the applicant’s credibility or genuineness.

4. This Court is bound by the decision in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 and MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1. Whilst I accept that it is arguable that the Tribunal did not have regard to the document the subject of the certificate, the material in the present case cannot be said not to be credible, relevant and significant. In these circumstances, with material or the substance of the material not being disclosed to the applicant, where that material is credible, relevant and significant, the applicant has been denied procedural fairness in the conduct of the review.

5. I do not accept the submission that the Court can infer that the documents were not acted upon in relation to the consideration in respect of exceptional circumstances. It is the process of the review, which the decisions in MZAFZ and Singh identify as being the basis upon which a jurisdictional error arises where information that is credible, relevant, and significant is not disclosed in the course of the review.

6. There is no suggestion in the present case that the information was disclosed to the applicant in the course of the review. Accordingly, the Court finds that the non-disclosure of the information the subject of the certificate that can be said to be credible, relevant, and significant gives rise to a jurisdictional error in the present case.

Conclusion

1. Accordingly, writs must issue.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 January 2018