Gill v Minister for Immigration

[2016] FCCA 1404

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1404

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the applicant held a valid visa at the time of application – whether the Tribunal erred in holding that the applicant did not meet the relevant criteria – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, Schedule 2, cl.572.211(2)

Applicant: AMRITPAL SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 464 of 2015

Judgment of: Judge Street

Hearing date: 26 May 2016

Date of Last Submission: 26 May 2016

Delivered at: Adelaide

Delivered on: 26 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms Stokes
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 464 of 2015

AMRITPAL SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 18 November 2015, 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 the visa on 17 January 2015.  The application was made on the correct form.  The applicant provided the necessary documents in support of the application, however, relevantly, the applicant held a Partner (Class UK) subclass 820 visa. That was a visa which did not meet the criteria in respect of which the visa the applicant applied for could be granted. 

3. On 13 January 2015, a delegate identified the requirements in relation to a Student Temporary (Class TU) visa and if it was necessary, under cl.572.211(2) that the applicant holds a visa identified in that provision. It was common ground that the applicant did not hold such a visa. At the time of the application, the only visa held by the applicant was the UK subclass 820 visa. The delegate noted that the UK subclass 820 visa is not a permitted prerequisite to apply for a student visa and that, accordingly, the applicant did not meet the requirements of cl.572.211(2).

4. Despite the delegate’s decision, the applicant then sought a review of that application on the 28^th of January 2015.  Consistent with its statutory obligations, the Tribunal sent a letter to the applicant on the 23^rd of October 2015 inviting the applicant to appear at a hearing on the 18^th of November 2015. 

5. The applicant appeared on that date to give her evidence and present arguments. The Tribunal identified that the UK subclass 820 partner visa was not a visa that met the requirements of cl.572.211(2). It was in those circumstances, where the applicant agreed that all he held was the UK subclass 820 visa, that the Tribunal concluded it did not satisfy the requirements of cl.572.211. Accordingly, the Tribunal affirmed the decision of the delegate not to grant the applicant a Student Temporary (Class TU) visa.

6. On 16 December 2015, the applicant commenced proceedings in this Court seeking a Constitutional writ on the following grounds:

   My case was refused by DIBP on 13/01/2015 & AAT on 18/11/2015 as they were not satisfied that I can study and lodge my student visa from Class UK, Subclass 820 Partner visa. They are saying that Class UK, Subclass 820 Partner visa is not a valid visa to lodge student visa. My claim is that if the application was not valid, it should not have been accepted by the department at first place. In addition, I was also granted bridging visa A with no imposed condition and it also mentioned that I could study. That left no doubt that my application was not valid. But DIBP have accepted my file as a valid file & later on refused my student visa. I am currently studying Diploma of Business from Australian Adelaide International College leading to Advanced Diploma in Business next year. I want Federal court to consider my case for completing my studies.

7. On 29 January 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.

8. At the commencement of the hearing, the Court explained to the applicant that the nature of the hearing was to determine whether or not the Tribunal’s decision was affected by a relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that, in summary, this meant the Court was trying to determine whether or not the decision of the Tribunal was lawfully made and whether or not the decision was made fairly.

9. The Court explained to the applicant that if satisfied that the decision was affected by a relevant legal error, the decision would be set aside.  The Court explained that, if not satisfied the decision was affected by a relevant legal error, the application would be dismissed.  The Court explained that it would first identify the evidence and then hear submissions from the applicant and then hear submissions from counsel for the first respondent and then submissions from the applicant in reply. The applicant confirmed that he understood the nature of hearing as explained by the Court.

10. From the bar table, the applicant maintained that he held a relevant visa, but did not develop any argument as to why there was any unfairness in the hearing of the Tribunal or in its determination or why there was any excess of statutory power by the Tribunal.  In relation to the ground identified in the application, the applicant’s assertion that the department should not have treated his application as valid is not correct. 

11. The Tribunal and the Department were correct to treat the application as valid, but a valid application does not mean that the applicant met the criteria.  The Tribunal was correct to hold that the applicant did not meet the criteria and no jurisdictional error is disclosed by the grounds in the application.  Nothing was said by the applicant from the bar table to identify any jurisdictional error.  The application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 June 2016