Sandhu v Minister for Immigration and Border Protection

[2014] FCA 548

FEDERAL COURT OF AUSTRALIA

Sandhu v Minister for Immigration and Border Protection [2014] FCA 548

Citation:	Sandhu v Minister for Immigration and Border Protection [2014] FCA 548
Appeal from:	Balraj v Minister for Immigration [2014] FCCA 501
Parties:	BALRAJ SANDHU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	ACD 22 of 2014
Judge:	FOSTER J
Date of judgment:	23 May 2014
Legislation:	Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), items 570.222, 571.222, 572.222, 572.235, 573.222, 574.222 and 575.222 in Sch 2 Federal Court Rules 2011, r 40.02(b)
Cases cited:	Balraj v Minister for Immigration [2014] FCCA 501 related Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 cited
Date of hearing:	23 May 2014
Place:	Canberra
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	32
Solicitor for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Ms J Cumming of Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 22 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BALRAJ SANDHU
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	23 MAY 2014
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.Leave be granted to the first respondent to file in Court the affidavit of Jan Kathryn Cumming affirmed on 22 May 2014 and to read and to rely upon the said affidavit on the question of costs.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of and incidental to the appeal assessed as a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 in the amount of $3,971.10.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 22 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BALRAJ SANDHU
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	23 MAY 2014
PLACE:	CANBERRA

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. This is an appeal from a decision of the Federal Circuit Court of Australia (Balraj v Minister for Immigration [2014] FCCA 501) by which that Court dismissed an application for judicial review of a decision of the Migration Review Tribunal (Tribunal).  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (Minister), who is the first respondent in the proceeding in this Court, to refuse to grant to the appellant a Student (Temporary) (Class TU) visa. 

2. The Federal Circuit Court held that the appellant had failed to demonstrate that the Tribunal had committed jurisdictional error in arriving at its decision. 

   BACKGROUND

3. On 15 March 2012, the appellant applied for a student visa.  He did so on Form 157A.  At the time when he made that application, the appellant was in possession of a Certificate of Enrolment (COE) for an Advanced Diploma of Management at an educational institution called Unique International College with a course start date of 2 April 2012 and a course end date of 24 February 2013. 

4. On 30 July 2012, a delegate of the Minister refused to grant a student visa to the appellant on the ground that Unique International College had cancelled his COE on 22 April 2012 because he had not commenced his studies at that institution. For that reason, the appellant had not provided evidence of a current COE to demonstrate that he was currently involved in a course of study as required by item 572.222 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). 

5. The delegate made specific reference to the Regulations which had not been satisfied. She also noted that the appellant did not satisfy the secondary criteria for the grant of any subclass of student visa within the Student (Temporary) (Class TU) classes of visa because he was not a member of a relevant family unit or a person who otherwise satisfied one or more of those Regulations which governed the grant of such a visa.

6. On 23 August 2012, the appellant applied to the Tribunal for review of the delegate’s decision. 

7. On 6 May 2013, the Tribunal remitted the appellant’s application for a student visa to the Minister with a direction that, as at 6 May 2013, the appellant met the requirements of item 572.222 in Sch 2 to the Regulations because the appellant had by then obtained a COE for a Diploma of Business at a different educational institution, on this occasion, JP International College, with a course start date of 4 February 2013 and an end date of 17 July 2013.

8. On 30 May 2013, a delegate of the Minister again refused the appellant’s application for a student visa. On this occasion, the basis of the refusal was that the appellant had not been enrolled in an appropriate course of study throughout the period between 14 June 2011 and 13 March 2013 and had therefore failed to comply with condition 8516 of his last student visa, being a condition which required that the applicant continue to satisfy the criteria for the grant of the visa throughout the relevant period. The delegate found that the appellant had not complied substantially with the conditions that applied to the last of his substantive visas as required by item 572.235 in Sch 2 to the Regulations.

9. The appellant had previously been granted a student visa valid to 15 March 2012 to study a Bachelor of Business (Tourism and Hospitality) at La Trobe University.  However, on 14 June 2011, La Trobe University had cancelled the appellant’s COE on the basis of non-commencement of studies.  The appellant’s next intended course of study was to have been with Unique International College with a start date of 2 April 2012.  Once again, the COE was cancelled due to non-commencement of studies.  These matters were drawn to the attention of the appellant by the Minister’s delegate prior to the delegate making his decision but the appellant offered no explanation for the gap in his enrolments. 

   THE RELEVANT TRIBUNAL DECISION

10. On 21 June 2013, the appellant applied to the Tribunal for review of the delegate’s decision made on 30 May 2013. 

11. On 7 August 2013, the Tribunal invited the appellant to attend a hearing and to present evidence and/or submissions in support of his application for review.  The Tribunal also invited the appellant to provide evidence of a current COE as required for the grant of a student visa.  The Tribunal indicated to the appellant that he should also address the question of his past studies in Australia and provide an explanation for the gaps in his enrolments. 

12. On 30 October 2013, the Tribunal held a hearing and received evidence from the appellant.  The appellant told the Tribunal that he was not currently enrolled in any educational course and did not have a current COE.

13. On 31 October 2013, the Tribunal affirmed the delegate’s decision to refuse to grant a student visa to the appellant.  The Tribunal found that it was a requirement for the grant of a student visa that an applicant give the Minister and the Tribunal a COE relating to the applicant which establishes that the applicant is, in truth, undertaking a course of study at an institution which is not a suspended educational provider and that the appellant had not provided evidence of such a current COE.  At [21] of its Decision Record, the Tribunal noted that it had requested the appellant to provide a COE by the date of the hearing in order to show that he is currently enrolled in an acceptable course.

14. Notwithstanding that the appellant was invited to provide evidence that he had a current COE as required for the grant of a student visa, he failed to produce such a document to the Tribunal. The Tribunal considered that the appellant had had sufficient time to obtain a current COE and to provide it to the Tribunal. The Tribunal ultimately concluded that the appellant did not meet the requirements of items 570.222, 571.222, 572.222, 573.222, 574.222 or 575.222 of Sch 2 to the Regulations at the time of its decision. It was therefore unnecessary for the Tribunal to consider whether the appellant had substantially complied with the conditions of his previous substantive visa as required by item 572.235 in Sch 2 to the Regulations.

    THE PROCEEDING IN THE FEDERAL CIRCUIT COURT

15. On 5 December 2013, the appellant applied to the Federal Circuit Court for Constitutional writ relief in respect of the Tribunal’s decision.  The grounds relied upon by the appellant in the Circuit Court were specified in his Application in the following terms:

    1.The Second Respondent [referring to the Tribunal] committed jurisdiction [sic] error failing to comply with mandatory provision of the Act.

    2.The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived [sic] in accordance with the provisions of the Migration Act.

16. On 14 March 2014, a judge of the Circuit Court dismissed the appellant’s application with costs.

17. After giving an account of the history of the appellant’s relevant applications for a student visa and referring to the decision of the Tribunal, the Circuit Judge commenced his consideration of the application before him at [10] of his Reasons for Judgment.

18. At [11], the Circuit Judge set out the grounds of review relied upon by the appellant in the proceeding before him.  At [12], the Circuit Judge noted that, in the absence of particulars, the grounds of review convey little meaning.  He went on to record that the appellant had filed a short affidavit which had been admitted into evidence and that there was a Court Book furnished by the Minister which was in the usual format.  He also noted that both parties had made oral submissions and that a Written Submission had been filed by the Minister.  At [15]–[18], the Circuit Judge held that no sensible ground of review had been articulated or advanced by the appellant in argument before him.  He said:

    Mr Balraj recognised that he is confronted by a significant difficulty in this case.  That is, that at the time of the Tribunal decision he was not enrolled in an acceptable course of study with an approved provider.  In fact, it does not appear that he was enrolled at all.  He had had experience of that issue as his case had previously been remitted by the Tribunal to the Department on the basis that, while at the time of the first delegate’s decision, Mr Balraj had not been enrolled, he had become enrolled subsequently and before the first Tribunal decision.  The problem, however, recurred when the case returned to the Tribunal.  It seems, from what Mr Balraj told me from the bar table today, that he was reluctant to spend the money on paying for an enrolment when he could not be certain of the outcome of his visa application. 

    However, the insuperable difficulty he faced before the second Tribunal was that both at the time of application and at the time of decision he needed to be enrolled in a course of study.  He had been enrolled in various courses between the time he first applied for the visa and the time of the second Tribunal decision.  Mr Balraj did not seek additional time in order to become enrolled.  It follows that there is no issue of the Tribunal acting unreasonably. 

    The second ground advanced by Mr Balraj, while on its face asserting the Tribunal lacked jurisdiction, could only logically mean the Tribunal acted in excess of its jurisdiction. 

    There is nothing to support the proposition, either that the Tribunal failed to comply with any mandatory provision of the Migration Act, or that the Tribunal otherwise acted in excess of its jurisdiction under that Act. The Tribunal plainly understood the applicable criteria and applied those criteria. Mr Balraj was unable to satisfy the immediately material criterion of enrolment in a course of study. It was, therefore, inevitable that he would be unsuccessful before the Tribunal. The point was considered succinctly by Foster J of the Federal Court in Singh v Minister for Immigration ([2013] FCA 669 at [27]). The circumstances are dealt with in the Minister’s submissions. I agree with and adopt those submissions.

19. In an endeavour to tease out the specified grounds of review, the Circuit Judge went on to address other matters under the headings “Non-compliance with the Migration Act” and “No jurisdiction”.

20. Under the first of those headings, the Circuit Judge concluded that the Tribunal had complied with its obligations under the Migration Act 1958 (Cth) (Migration Act) and Regulations. At [21] of his Reasons, he noted that both the Minister and the Tribunal were required to refuse to grant a visa to the appellant because his inability to satisfy the relevant mandatory requirements set out in the Regulations was fatal to his Application. At [22], the Circuit Judge noted that, at all times from 30 July 2012, the appellant was on notice that his visa had been refused because he did not hold a valid COE and had only succeeded in the previous Tribunal proceeding because he had subsequently obtained such a document.

21. Under the second of the headings to which I have referred at [19] above, the Circuit Judge fleshed out in more detail the reasons why the appellant’s generally expressed challenge to jurisdiction ought not succeed.

22. In the end, the Circuit Judge came to the view that the appellant’s case was without merit and dismissed his application with costs. 

    THE PROCEEDING IN THIS COURT

23. On 1 April 2014, the appellant filed a Notice of Appeal in this Court.  The grounds of appeal relied upon in that document were specified in the following terms:

    1.The Tribunal had no jurisdiction to make the said decision because of the Tribunal acted unreasonably [sic].

    2.The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the MRT.

    Ground 1 – The Tribunal Acted Unreasonably

24. In respect of ground 1, the Minister submitted that, if that ground is to be construed as raising unreasonableness in the Wednesbury sense, such an argument was not put to the Circuit Judge and ought not to be allowed on appeal in this Court.  The Minister submitted that there is no explanation as to why unreasonableness in this sense was not raised below and, in any event, the ground has no reasonable prospect of success.

25. The Tribunal had affirmed the delegate’s decision because it took the view that the appellant did not satisfy the relevant mandatory criteria which he was required to satisfy according to the Regulations in order to qualify for a student visa. The essence of the Tribunal’s decision was that it was bound to affirm the delegate’s decision because, in all the circumstances, the delegate was not authorised under the Migration Act and Regulations to grant any student visa to the appellant.

26. In my judgment, the Tribunal was clearly correct in coming to that view.  For that reason there is no room for a Wednesbury unreasonableness argument in respect of the Tribunal’s decision.  I therefore conclude that, even if I were to allow this argument to be raised at this late stage, it would not succeed.  Therefore, I propose to refuse leave to the appellant to raise Wednesbury unreasonableness as a new ground of challenge to the Tribunal’s decision for the first time in this Court.

    Ground 2 – Legal and Factual Errors

27. If a party wishes to rely upon legal and factual errors in a decision made by a decision maker as a ground of judicial review, it is incumbent upon that party to identify with particularity which particular matters in the decision are said to constitute either legal errors or factual errors.  To specify a ground in the terms in which the appellant has expressed ground 2 in the present proceeding does not actually raise any ground of appeal in the absence of some particularisation of the errors said to have been made.  Apparently, the appellant wishes to contend that somehow the Circuit Judge failed to consider some unspecified legal and factual errors allegedly contained in the decision of the Tribunal.

28. Not only has the ground not been properly articulated and particularised, but nothing put to me this morning goes anywhere near establishing that the Circuit Judge did that which, by ground 2, the appellant asserts that he did. It is quite clear that the Circuit Judge did his very best to look at all of the grounds raised by the appellant before him and even went further in an effort to ensure that appropriate consideration was given to the Tribunal’s reasons and findings. Not only did he look at both grounds of review actually relied upon by the appellant in the Circuit Court but he also looked at the other matters to which I have referred at [19]–[22] above in his Reasons for Judgment. If, in truth, the appellant is seeking merits review of the Tribunal’s decision, that could not be done in the Circuit Court nor can it be done here by way of appeal from that Court.

29. I reject ground 2. 

30. For the above reasons, the appellant’s appeal must be dismissed with costs. 

31. The Minister applied for a lump sum costs order in the sum of $3,971.10 pursuant to r 40.02(b) of the Federal Court Rules 2011.  In support of that application, the Minister sought leave to file in Court and to read the affidavit of Jan Kathryn Cumming affirmed on 22 May 2014.  I will grant leave for that affidavit to be read and relied upon.  In the circumstances, it is appropriate that I make the lump sum order sought by the Minister.  The amount sought is reasonable and a lump sum award now will save the parties considerable time and money because it will avoid the need for a taxation of the Minister’s costs. 

32. There will be orders accordingly.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:       27 May 2014