Gundarania v Minister for Immigration
[2017] FCCA 2121
•4 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUNDARANIA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2121 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Kaur & Ors v Minister for Immigration & Anor [2015] FCCA 2620 SCAA v Minister for Immigration [2002] FCA 668 VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration [2002] FCAFC 286 |
| Applicant: | VISHAL PREMJIBHAI GUNDARANIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1092 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1092 of 2017
| VISHAL PREMJIBHAI GUNDARANIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Gundarania, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 23 March 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Gundarania a temporary student visa.
Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 21 August 2017.
Mr Gundarania is a male citizen of India who arrived in Australia on a visitor visa on 11 February 2016.[1] On 13 April 2016, he lodged an application for a student (Temporary) (Class TU) (subclass 570) visa.[2] In support of his application, his representative provided the Minister’s Department with a submission about his eligibility for the visa[3] and extensive supporting documentation including: Mr Gundarania’s confirmation of enrolment (COE); copies of his passport; education documents; IELTS test scores, confirmation of health cover; supporting statements; and documents for his “sponsor”.[4]
[1] Court Book (CB) 14
[2] CB 3-24
[3] CB 1-2
[4] CB 28-78
On 20 April 2016, the Minister’s Department wrote to Mr Gundarania requesting further information.[5] Specifically, it informed him that since he was assessed as being a Level 3 applicant, he would not be granted a student visa unless “exceptional reasons” existed for the grant of the visa and requested a statement addressing this requirement.[6] On 9 May 2016, Mr Gundarania’s representative sent the Minister’s Department further submissions which were similar to the initial submissions made with the visa application, but which also sought to address the “exceptional reasons” requirement.[7]
[5] CB 82-87
[6] CB 86
[7] CB 88-91
On 17 May 2016, the delegate refused to grant Mr Gundarania a student visa as the delegate was not satisfied that there were “exceptional reasons” for the grant of the visa, as required by clause 570.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[8] The delegate also found Mr Gundarania did not meet the criteria for any of the other subclasses of student visas.[9]
[8] CB 96-102
[9] CB 99
The Tribunal proceedings and decision
On 31 May 2016, Mr Gundarania lodged an online application for review with the Tribunal.[10] He provided a copy of the delegate’s decision record with that application.[11]
[10] CB 103-104
[11] CB 104
On 16 February 2017, Mr Gundarania was invited to attend a hearing before the Tribunal scheduled for 22 March 2017.[12] He responded to the hearing invitation on 1 March 2017[13] and attended the hearing on 22 March 2017 with his representative.[14] At the hearing, the applicant provided a copy of his Certificate of Achievement and letter of attendance from Crown Institute of Business and Technology.[15]
[12] CB 110-111
[13] CB 116-117
[14] CB 11-121; CB 140 at [4]
[15] CB 122-123
On 23 March 2017, the Tribunal made a decision affirming the delegate’s decision to refuse Mr Gundarania a student (Subclass 570) visa on the basis that Mr Gundarania had not established that there were “exceptional reasons” for the grant of the visa, as was required by clause 570.227 of Schedule 2 to the Regulations.[16]
[16] CB 139-143
The Tribunal identified[17] that since Mr Gundarania held a visitor visa at the time of his application for a student visa, he was required to satisfy clause 570.227 of the Regulations. Further, based on his applicable assessment level, he was required to establish “exceptional reasons” for the grant of the visa. The Tribunal also correctly identified that this was a time of decision criterion and a question of fact for the decision maker.[18] In considering whether there was anything exceptional or unique about Mr Gundarania’s circumstances, the Tribunal had regard to the matters outlined in the PAM 3 Guidelines.[19] The Tribunal identified[20] that whilst these Guidelines were not binding on it, they were a relevant matter for it to consider when determining whether exceptional circumstances existed.
[17] CB 141, [14]-[15]
[18] CB 141-142 at [17]
[19] CB 142 at [19]
[20] CB 142 at [18]
The Tribunal did not accept that Mr Gundarania’s desire to learn English constituted an exceptional reason and expressed concerns about the genuineness of this desire, as he had ceased his study and made no investigations and sought no advice as to whether he could undertake study while awaiting the outcome of his review application. The Tribunal also did not accept that because Mr Gundarania had received advice from an agent that he could apply for the visa onshore and he enrolled in a course, that this of itself was an exceptional reason.[21]
[21] CB 142 at [21]
In considering the benefit that Mr Gundarania identified to Australia in his being granted the visa, namely payment of fees and being a good student, the Tribunal did not accept that these benefits were exceptional and found that they were the normal characteristics expected of any genuine application for a student visa.[22] The Tribunal found Mr Gundarania had not demonstrated he could not apply offshore for the visa and return to undertake his proposed studies and although it accepted that this process carried additional expense, it did not consider this to be an exceptional reason.[23]
[22] CB 142 at [22]
[23] CB 142 at [23]
The Tribunal was also not persuaded that the opportunity for Mr Gundarania to speak positively about his experiences as a student would have a significant impact upon bilateral relations between India and Australia, such that it could be regarded as an exceptional reason for the grant of the visa.[24]
[24] CB at [24]
Having considered Mr Gundarania’s evidence singularly and cumulatively, the Tribunal found that he had not established circumstances that reached the level such that they could be considered “exceptional”.[25]
[25] CB 142-143 at [25]
Accordingly, the Tribunal found that Mr Gundarania did not satisfy clause 570.227 and affirmed the decision under review.[26]
[26] CB 143 at [26]-[27]
The present proceedings
These proceedings began with a show cause application, filed on 10 April 2017. Mr Gundarania continues to rely upon that application. In the application, Mr Gundarania asserts that the Tribunal did not review the facts of his case, and that there was unfair discrimination against him because of his nationality. Those grounds are repeated in a short affidavit filed with the application, which I received as a submission.
I have before me as evidence the court book filed on 20 May 2017.
I invited oral submissions from Mr Gundarania this morning. He told me initially that he did not understand the process on which he is engaged. He took advice from a migration agent before seeking the student visa. He was apparently led to believe that his application was likely to succeed. Mr Gundarania paid for the assistance of the agent. He has succeeded in undertaking an ELICOS course, but that appears to have been the extent of his studies in this country.
There is no substance to the assertion that the Tribunal failed to review the facts of Mr Gundarania’s case. That is apparent from a simple reading of the Tribunal decision.
There is also no substance in the assertion that Mr Gundarania was discriminated against on the basis of his nationality, which is Indian. The visa criteria required that a visitor applying onshore demonstrate exceptional circumstances. The criteria are applied regardless of nationality, save for the matter discussed at [26] below.
Mr Gundarania was unable to raise anything today that would suggest any argument of jurisdictional error by the Tribunal. Neither is any such argument apparent to me from my own reading of the material. No error is apparent in the Tribunal’s approach or findings. In particular, the Tribunal identified[27] the correct test to be applied when assessing whether Mr Gundarania had established “exceptional circumstances” and its conclusion that such circumstances had not been established was a finding of fact open to the Tribunal on the evidence before it.[28]
[27] CB 141-142 at [17]-[19]
[28] Liu v Minister for Immigration & Anor [2014] FCCA 936; Kaur & Ors v Minister for Immigration & Anor [2015] FCCA 2620; and Ram & Anor v Minister for Immigration & Anor [2015] FCCA 2972
The Minister asserts that the application does not properly invoke the jurisdiction of the Court, because neither a writ of mandamus nor an injunction is sought in the application. Mr Gundarania seeks merely a writ of certiorari. While that submission is, in my opinion, technically correct, I would have permitted an oral amendment to the application by Mr Gundarania today, had I seen that as an obstacle to resolution of the matter. However, quite apart from the technical defect in the application, it simply fails to raise an arguable case of jurisdictional error.
I otherwise agree with the Minister’s submissions in relation to the grounds in the application.
Ground 1
In Ground 1 Mr Gundarania complains that the Tribunal “did not review facts of case”. The Tribunal plainly considered the entirety of his claims but was not satisfied that they established “exceptional reasons”. These were findings of fact open to the Tribunal on the evidence before it. Accordingly, this “ground” goes no further than an impermissible attempt to review the merits of the Tribunal’s decision.[29]
[29] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 272
Ground 2
Ground 2 asserts Mr Gundarania was unfairly discriminated against due to his nationality. He has, however, again failed to provide particulars to make this complaint meaningful. It is not apparent from the Tribunal decision that Mr Gundarania’s nationality formed a basis for the Tribunal to affirm the delegate’s decision. Insofar as this “ground” is an allegation of bias, Mr Gundarania has made no attempt to substantiate an allegation of actual or apprehended bias, which is a serious allegation that must be firmly and distinctly made and clearly proven.[30] No inference of bias or pre-judgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons.[31] Accordingly, if this is an allegation of bias, it cannot presently succeed.
[30] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531
[31] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
Relevantly, at the time of Mr Gundarania’s student visa application clause 570.227 of the Regulations outlined that he was required to establish “exceptional reasons” for the grant of a subclass 570 visa if:
a)the application was made in Australia; and
b)the applicant is subject to the highest assessment level for the relevant course of study; and
c)at the time of application the applicant met the requirements of clause 570.211 (including as the holder of a visitor visa: clause 570.227(c)(i)(NC));
The applicable assessment level for a subclass 570 visa for the applicant was assessment Level 3. Mr Gundarania’s assessment level was determined by his Indian nationality.[32] Insofar as he is alleging it was discriminatory for him to have been required to establish exceptional reasons because of his Indian nationality, this ground is without merit and must fail. The Tribunal was simply applying the statutory test for the grant of a subclass 570 visa and was confined in its consideration of his circumstances by the criterion in clause 570.227.
[32] regulation 1.41
I find that Mr Gundarania has failed to demonstrate an arguable case of jurisdictional error.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs, in accordance with the Court scale as it applied when the application was filed. Mr Gundarania indicated that he planned to seek legal advice, and sought time to pay. I will not require payment of the costs within any particular time.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 6 September 2017
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