Saini v Minister for Immigration

[2018] FCCA 2782

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAINI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2782

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of student visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration v SZRKT [2013] FCA 317
Minister for Immigration v SZVFW [2018] HCA 30

SZBEL v Minister for Immigration [2006] HCA 63

Waterford v Commonwealth (1987) 163 CLR 54

First Applicant: GURWINDER SINGH SAINI

Second Applicant: SATINDER KAUR SAINI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3593 of 2017

Judgment of: Judge Driver

Hearing date: 26 September 2018

Delivered at: Sydney, by videolink to Perth

Delivered on: 26 September 2018

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Mr C O'Sullivan of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3593 of 2017

GURWINDER SINGH SAINI

First Applicant

JATINDER KAUR SAINI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first applicant, Mr Saini, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 October 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants temporary student visas. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 19 September this year. 

3. The applicants are citizens of India. On 7 August 2009, Mr Saini arrived in Australia as the holder of a student visa.[1]  On 16 October 2015 he, as the primary applicant, lodged an application for the student visa.  The second applicant, Mrs Saini, applied as a dependant applicant, and did not advance any separate claim for the visa.[2]

   [1] Relevant Documents (RD) 97

   [2] RD 1 to 8

4. On 20 October 2015, the Minister’s Department wrote to Mr Saini requesting further documents and information, including a statement from Mr Saini addressing the genuine temporary entrant criterion.[3]  On 4 November 2015, Mr Saini responded to the Minister’s Department’s request, addressing the genuine temporary entrant criterion.[4]  Mr Saini also provided a Certificate of Enrolment No. 772A1351, which relevantly stated that the course end date was 7 April 2017.[5]

   [3] RD 12

   [4] RD 31 to 33

   [5] RD 34 to 35

5. On 19 November 2015 the delegate refused the application on the basis that Mr Saini did not satisfy the genuine temporary entrant criterion.[6]  On 5 December 2015, the applicants sought review of the delegate’s decision by the Tribunal, attaching the Confirmation of Enrolment No. 772A1351.[7]

   [6] RD 90 to 101

   [7] (RD 102 to 105

6. By letter dated 4 October 2017, the applicants were invited to attend a hearing before the Tribunal.[8] Relevantly, that letter stated:

   …Additionally, please provide this information so that a decision can be made as quickly as possible:

   1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

   2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa…

   [8] RD 111 to 113

7. On 31 October 2017 the applicants attended the hearing before the Tribunal.[9]  On the same day, the Tribunal affirmed the decision under review.[10]

   [9] RD 162 to 164

   [10] RD 167 to 169

Tribunal decision

1. The Tribunal set out the background of the matter, including the basis for the delegate’s decision and the criteria for the grant of a student visa.[11]  The Tribunal noted that although the issue before the delegate was whether Mr Saini met the genuine temporary entrant criterion, the issue before the Tribunal was whether Mr Saini met the enrolment requirement for the grant of the visa[12] (the enrolment requirement).[13]

   [11] RD 168 at [1]-[5]

   [12] See clause 572.223 of the Migration Regulations 1994 (Cth)

   [13] RD 168 at [6]

2. The Tribunal noted that with limited exceptions, one of the criteria for the grant of the student visa was that Mr Saini must be enrolled in, or be the subject of a current offer of enrolment in, an approved course of study. The Tribunal found that there was no evidence before it to suggest that Mr Saini met any of the exceptions.[14]

   [14] RD 168 at [7]

3. The Tribunal referred to the various certificate and academic transcripts thought to have been provided by Mr Saini in support of his review application. Relevantly, this included reference to a Certificate III in Wall and Floor Tiling.[15]

   [15] RD 168 at [8]

4. The Tribunal noted Mr Saini’s evidence at the hearing that he had no current enrolment and did not hold a current offer of enrolment. The Tribunal also noted Mr Saini’s evidence that he failed to obtain an offer of enrolment for a Bachelor of Business course from two universities. Further, the Tribunal noted that Mr Saini understood that he was required to be enrolled in, or have an offer of enrolment in, a course of study for the grant of a student visa.[16]

   [16] RD 168 to 169 at [9]

5. The Tribunal found that as Mr Saini did not meet the enrolment requirement, he was not eligible for the grant of a student visa. The Tribunal also found that there was no evidence before it to suggest that Mr Saini met the requirement for the grant of a visa in other subclasses. For those reasons, the Tribunal affirmed the decision under review.[17]

   [17] RD 169 at [10]-[14]

The present proceedings

1. These proceedings began with a show cause application filed on 21 November 2017.  The applicants continued to rely upon that application.  The grounds in it are reproduced at [15] of the Minister’s submissions:

   1.      Identifying a wrong issue:

   The issue before the tribunal was that whether the applicant meets the Genuine Temporary Entrants (GTE) 572.233 requirements but the tribunal did not consider this which means that I lose the grounds on which I have to contest the decision of Department of Immigration and Border Protection (DIBP).

   2. Relying on materials the decision-maker should not have looked at:

   At the tribunal hearing, I had provided all of my education documents in an orderly manner. But instead of looking at documents which I had provided to the member, she had relying upon the papers submitted to her in which it states that I had completed Certificate III in Wall and Floor Tiling, the course which actually I had never studied.

   3. Ignoring materials the decision-maker was required to look at:

   I am even doing part-time job as an Office Manager which is related to my college education which I get in March 2016 while I was studying the Advance Diploma of Leadership & Management which helps me getting the Australian workplace experience, the statement from my employer of which was submitted with the tribunal. Furthermore, I always finished every course on time and without any break with 100% success rate.

   4.      Reaching a decision that is unreasonable in the legal sense:

   Though knowing this that despite being tried hard to get enrolled in two different universities to get Confirmation of Enrolment (CoE), I fail because of not holding any substantive visa (other than bridging visa).

   (errors in original)

2. The application is supported by a short affidavit filed with it which I received.

3. I also have before me the book of relevant documents filed on 18 January 2018. 

4. Only the Minister filed written submissions in advance of today’s show cause hearing.  Mr Saini had been legally represented in these proceedings but his solicitor withdrew from the record in accordance with the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) shortly before today’s hearing. Mr Saini represented himself by video link from Perth.

5. I invited oral submissions from Mr Saini.  He explained to me the difficult position he finds himself in.  He held a student visa at the time he applied for the diploma course which he successfully completed prior to the Tribunal decision.  He wanted a further student visa for a bachelor’s degree which logically followed from it. 

6. While the Minister’s delegate was concerned whether Mr Saini was a genuine temporary student, by the time the matter reached the Tribunal for decision, the issue had changed.  Mr Saini’s former student visa had expired and he was unable to obtain a further enrolment to undertake his desired Bachelor’s degree without it.  At the same time, in order to get a further student visa Mr Saini was required to meet a time of decision criterion that he was enrolled in a relevant course of study at that time.  This left Mr Saini in something of a catch-22 situation.  As I said to him, he appears to me to be a genuine person and he has a clear plan to complete his studies in Australia and presumably depart.  He only seeks a student visa in order to clear his immigration record and to enable him to undertake his Bachelor’s degree.

7. It is open to the Minister to make a more favourable decision to that made by the Tribunal.  Any consideration the Minister is willing to give to Mr Saini’s plight, however, is beyond the scope of this proceeding.  In short, Mr Saini was unable to satisfy the relevant time of decision criterion and the Tribunal was entitled, and probably obliged, to reach the decision it did.

8. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.

Ground 1

1. The issues arising from this ground are:

   a)did the Tribunal identify a wrong issue?; and

   b)were the applicants on notice as to the dispositive issue of the enrolment requirement?

2. First, it is well-established that the Tribunal can exercise all the powers and discretions that are conferred by the Migration Act 1958 (Cth) (Migration Act) on the delegate. The Tribunal is not confined to whatever may have been the issues that the delegate considered, and it is for the Tribunal to identify the issues that arise on the material before it.[18]

   [18] SZBEL v Minister for Immigration [2006] HCA 63 at [35]

3. The Tribunal was correct to find that the enrolment requirement is a mandatory requirement for the grant of the student visa. On the available evidence, Mr Saini appeared to have met the time of the application criteria in clauses 572.211 and 572.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). However, in relation to time of decision criteria, it is clear from the terms of clauses 572.111 (in particular, the definition of eligible vocational education and training student) 572.222, 572.223(1A) and 572.231 of Schedule 2 to the Regulations, Mr Saini must be enrolled in a course of study for the grant of the student visa. In the circumstances, having found that Mr Saini did not satisfy the enrolment requirement, the Tribunal was required to affirm the decision under review.

4. Secondly, the applicants were on notice of the dispositive issue before the Tribunal.

5. The Tribunal’s letter dated 4 October 2017, referred to at [6] above, makes it clear that a current Confirmation of Enrolment was a requirement for the grant of a student visa, or that Mr Saini was enrolled in, or held a current offer of enrolment in, a registered course of study.[19]

   [19] RD 112

6. Further, the decision record plainly demonstrates that the Tribunal discussed the enrolment requirement with Mr Saini, and that he understood that to be eligible for the grant of the student visa he was required to be enrolled or hold an offer of enrolment.[20]  In those circumstances, the applicants were not denied procedural fairness as they were on notice of the dispositive issue of the enrolment requirement.

   [20] RD 168 at [9]

Ground 2

1. The Tribunal made an error of fact, being the reference to a Certificate III in Wall and Floor Tiling which Mr Saini had not in fact provided to the Tribunal.  This had no material effect or relevance to its assessment of the dispositive issue and therefore does not ground any jurisdictional error.

2. It is a well-established principle that a wrong finding of fact, without more, is an error within jurisdiction.[21]  It is not a jurisdictional error if the decision-maker makes a “mere” error of fact when considering a piece of evidence.[22]

   [21] Waterford v Commonwealth (1987) 163 CLR 54 at 77

   [22] Minister for Immigration v SZRKT [2013] FCA 317 at [25]

3. This is not a case where the Tribunal relied upon incorrect evidence, or overlooked a piece of evidence that was fundamental to the applicants’ case. The dispositive issue before the Tribunal was whether Mr Saini met the enrolment requirement. The Tribunal’s erroneous reference to a qualification that was never provided to it had no material effect on its assessment of this issue.

Ground 3

1. Ground 3 is misconceived, as the evidence to which the applicants refer was irrelevant to the Tribunal’s assessment of the dispositive issue.

2. Further, it is not the case that the Tribunal did not identify this evidence. The Tribunal notes that Mr Saini provided the Tribunal with a statement from his employer and a summary of his education and employment history.[23]  However, the Tribunal had already identified that the relevant issue arising before it was whether Mr Saini was enrolled at the time of the decision.[24]

   [23] RD 168 at [8]

   [24] RD 168 at [6]

3. In those circumstances, the Tribunal correctly found that there was “no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study”.[25]  The evidence identified in this ground had no bearing on that finding.

   [25] RD 168 at [10]

Ground 4

1. The Tribunal’s decision was not legally unreasonable.

2. A conclusion of unreasonableness may be reached where, for instance, there is no “evident and intelligible justification” for the decision.[26]  Such a conclusion will not be lightly reached.[27]  

   [26] Minister for Immigration v Li (2013) 249 CLR 332 at 364 [68], 375 [105]

   [27] Minister for Immigration v SZVFW [2018] HCA 30 at [135], per Edelman J

3. On the evidence before the Tribunal, Mr Saini failed to meet the enrolment requirement.  It follows that it was open to the Tribunal to find that the applicants were not entitled to the student visa.  Indeed, the decision reached by the Tribunal was the only reasonable decision available to it in the circumstances.

4. I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules.

5. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 28 September 2018