Sardar v Minister for Immigration

[2018] FCCA 586

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARDAR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 586

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal took into account irrelevant considerations – no jurisdictional error identified – application dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3, 5, Schedule 1

Migration Act 1958 (Cth), ss.359A, 359AA, 476

Migration Regulations 1994 (Cth), cl.572.21, 572.212, 572.227, 573.223, 820.221

Applicant: MD ABDUL GAFUR SARDAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2967 of 2017

Judgment of: Judge Street

Hearing date: 12 March 2018

Date of Last Submission: 12 March 2018

Delivered at: Sydney

Delivered on: 12 March 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr M Glavac
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2967 of 2017

MD ABDUL GAFUR SARDAR

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 Act1958 (Cth) (“the Act”) in respect of a decision that the Administrative Appeals Tribunal (“the Tribunal”) made on 30 August 2017 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of Bangladesh who arrived in Australia on 26 October 2015 holding a Business Visitor visa issued on 22 September 2017. On 22 January 2016, the applicant lodged the application for a Student visa.

3. On 18 May 2016, the delegate refused the grant of the student visa and identified that the applicant did not hold a relevant substantive visa at the time of application and did not meet the requirement of “exceptional reasons” for the grant of a student visa.

The Tribunal’s decision

1. Rather than applying offshore, on 8 June 2016, the applicant applied for review. On 19 April 2017, the Tribunal wrote to the applicant inviting the applicant to appear before the Tribunal on 24 May 2017. The applicant appeared on that date to give evidence and present arguments together with his registered migration agent. The Tribunal also received from the applicant, post-hearing submissions dated 31 May 2017 which referred to a new confirmation of enrolment (“CoE”) in an Advanced Diploma of Leadership and Management course at the Institute of Business and Management Australia.

2. On 30 August 2017, the Tribunal delivered reasons affirming the decision of the delegate. The reasons identified the background to the application for review and set out the relevant law both in relation to the requirement of holding a streamlined visa and in relation to the meaning of exceptional reasons. The Tribunal summarised what occurred before the delegate, as well as referring to what occurred before the Tribunal and in particular, that the applicant advised that he was at that time not studying. 

3. The Tribunal referred to the further submissions received on 31 May 2017. The Tribunal referred to raising with the applicant at the hearing that at the time of his application on 22 January 2016 he was not enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector.

4. The Tribunal found that an applicant subject to the relevant provisions cannot access the streamlined genuine student criterion by changing course and/or course provider after the time of application. The Tribunal was not satisfied that the relevant provisions of cl 572.21, 572.212 or 573.223(1A) of Schedule 2 the Migration Regulations 1994 (“the Regulations”) are ameliorating provisions or call for the exercise of discretion consistent with cl 820.221(2)(d)(ii) of Schedule 2 of the Regulations.

5. The Tribunal found that as the applicant was not enrolled in a principal course of study for the award of an advanced diploma at the vocational education and training sector at the time of application he did not meet the definition of an eligible vocational education training student for a subclass 572 visa and the streamlined visa provisions were found not to apply.

6. Accordingly, the Tribunal identified that the applicant must meet the requirements of cl 572.227 of Schedule 2 to the Regulations and in that regard, the Tribunal turned to consider whether there were exceptional reasons for the grant of a visa. The Tribunal took into account that the applicant may benefit professionally from qualifications in Business and with enhanced English skills but found that was not in itself exceptional.

7. The Tribunal found that the applicant had not demonstrated that he could not apply offshore for the visa and then return to complete the proposed studies. The Tribunal accepted that that would impose additional expense however, the Tribunal found this would be a normal circumstance for any other individual in the situation of the applicant and was not considered to be an exceptional reason. The Tribunal took into account the applicant’s enrolment in an Advanced Diploma and found the inadequacy of the applicant’s initial advice in his original application were not exceptional reasons.

8. The Tribunal also took into account the applicant’s evidence and letters of reference submitted by the applicant from his former employment and accepted that the applicant worked in the industry and accepted that if the applicant completes further business qualifications, he has been offered potential employment and that this could lead to economic opportunities.

9. After considering all the evidence before it, the Tribunal was not satisfied that the reasons advanced by the applicant, either individually or cumulatively, established that there are exceptional reasons for the grant of the visa. The Tribunal accordingly found that the criteria under cl 572.227 of Schedule 2 of the Regulations has not been met and affirmed the decision under review.

Before this Court

1. The proceedings in this Court were commenced on 25 September 2017.  On 23 October 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision is affected by relevant legal error.

2. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

3. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

4. The grounds in the application are as follows:

   1. The whole of the decision of the Administrative Appeals Tribunal given on 30 August 2017 at Sydney be set aside, as well as reinstatement of the case is sought due to the following reasons.

   2. In the Administrative Appeals Tribunal's decision record dated 30 August 2017, the Second Respondent dismissed my matter, it failed to take into consideration some important procedural errors made by the First Respondent (Administrative Decisions (Judicial Review) Act (1977) s 5(1)(b)).

   3. The First and Second Respondent had failed to consider this case in accordance with Natural Justice and procedural fairness (Administrative Decisions (Judicial Review) Act (1977) s 5(1 )(a)).

   4. The First and Second Respondent took irrelevant considerations into account in their decision(s) and exercise of power (Administrative Decisions (Judicial Review) Act (1977) s 5(2)(a)).

   5. The First and Second Respondent failed to take relevant considerations into account in their decision(s) and exercise of power (Administrative Decisions (Judicial Review) Act (1977) s 5(2)(b)).

   6. The First and Second Respondent exercised of a discretionary power in accordance with a rule or policy without regard to the merits of this case (Administrative Decisions (Judicial Review) Act (1977) s 5(2)(f)).

   7. Hence, the First and Second Respondent failed to determine this case in accordance with the Law, Rules and Regulations.

   8. Therefore, the First and Second Respondent denied procedural fairness and natural justice by not considering my circumstances and proper application of the relevant law, Rules and Regulations.

   9. I hold out that I have good prospects of success in this appeal matter as there is a notion that the first and Second Respondents had not opportune me procedural fairness and natural justice in dismissing my appeal in the Tribunal.

   10. For the reasons outline above, I seek the whole of the decision of the Administrative Appeals Tribunal given on 30 August 2017 at Sydney be set aside, as well as reinstatement of the case.

5. From the bar table, the applicant maintained that he had only 10 months to go in his course and that he had employment opportunities at the end of that course and wished an opportunity complete the course.  The Court explained to the applicant that it had no power to grant relief on compassionate grounds and that the Court had no discretionary power to grant relief. The Court explained that it could not revisit the merits to determine whether there were exceptional circumstances and explained again that the Court’s powers were limited to considering whether the Tribunal had complied with its statutory obligations had complied with the requirements of procedural fairness. The applicant maintained that he wished the opportunity to complete his course. The submissions of the applicant from the bar table in substance invite this Court to engage in a merits review. As explained to the applicant, this Court has no power to review the merits.

6. Notwithstanding that the applicant presents as a highly intelligent and educated person who has obviously made a constructive contribution to the community so far whilst in Australia, this Court does not have power to make a fresh finding about exceptional reasons. Nothing said by the applicant from the bar table identified any jurisdictional error. 

The misconstrued application of the grounds to the Administrative Decisions (Judicial Review) Act 1977 (Cth)

1. In relation to the grounds in the application, the grounds appear to have been drafted by someone who thought that the Administrative Decisions (Judicial Review) Act1977 (Cth) (“the ADJR Act”) had application to the decision of the Tribunal. That Act does not have application to such a decision. See the definition of “decision” in s 3, s 5 and Schedule 1 Item (db) of the ADJR Act.

2. Nonetheless, I accept that the substance of the grounds in ground 2, 3, 8 and 9 are that the Tribunal allegedly failed to afford the applicant natural justice and procedural fairness.

3. I accept the characterisation that ground 4 is a submission that the Tribunal failed to take into account a relevant consideration.

4. I also accept the characterisation of grounds 5 and 7 to the effect that either the Tribunal misinterpreted the Procedures Advice Manual (“PAM3”) guidelines or that the Tribunal did not consider the evidence provided by the applicant demonstrating his intention to return to Bangladesh.

5. I accept that ground 6 allegedly raises an error by the Tribunal in failing to take into account the merits of the application. 

Ground 1

1. Ground 1 is, on its face a preamble and does not identify any alleged jurisdictional error.

Grounds 2, 3, 8 and 9

1. I accept the first respondent’s submissions that grounds 2, 3, 8 and 9 are unparticularised assertions incapable of establishing any relevant legal error. The failure to particularise a ground of review is a sufficient basis for it to be dismissed. 

2. I accept that the applicant was on notice of the issues to be determined before the Tribunal as a result of the delegate’s decision and that the delegate’s decision had put the applicant on notice that he did not meet the streamlined processing arrangements because he did not provide a CoE with an education provider participating in the streamlined visa processing at the time the application was lodged and had not established exceptional reasons for the grant of a student visa.

3. The Tribunal identified that the applicant conceded at the time of the application he was not enrolled in a principal course of study and it was open to the Tribunal to take with the applicant the PRISM records which were put to the applicant. On the face of the material before the court, the Tribunal complied with s 359AA of the Act in relation to the PRISM records insofar as they could be said to be information enlivening an obligation under s 359A of the Act. 

4. Further, on the face of the material before the Court, the Tribunal complied with its statutory obligations by inviting the applicant to attend a hearing and on the face of the material before the Court, the applicant had a real and meaningful hearing.

5. Further, on the face of the material before the court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. The Tribunal provided logical and rational reasons for the adverse decision as summarised above. No jurisdictional error is made out by grounds 2, 3, 8 and 9.

Ground 4

1. In relation to ground 4, this ground also fails to establish any jurisdictional error for want of adequate particularisation. There was no irrelevant consideration identified that the Tribunal considered and the ground really reflects disagreement with the adverse finding. No jurisdictional error is made out by ground 4.

Grounds 5 and 7

1. Grounds 5 and 7 in substance invite this Court to engage in impermissible merits review.  This Court does not have power to revisit the merits. It is apparent on the face of the Tribunal’s reasons that the Tribunal considered the applicant’s oral evidence and documentary evidence including the applicant’s submissions provided at the Tribunal post‑hearing.

2. The Tribunal’s reasoning was not based on whether the applicant was a genuine student and to that extent, grounds 5 and 7 are misconceived. The Tribunal found that the applicant had failed to make out exceptional reasons. On the material before the Court, that was an adverse finding that was open to the Tribunal for the reasons given by the Tribunal as summarised above. No jurisdictional error is made out by grounds 5 and 7. 

Ground 6

1. In relation to ground 6 this in substance, reflects a disagreement with the adverse decision by the Tribunal as to whether there were exceptional reasons. On the face of the material before the Court, the Tribunal did take into account the merits of the applicant’s case and the applicant’s evidence and documents. The adverse finding as to exceptional reasons was open to the Tribunal for the reasons summarised above. No jurisdictional error is made out by ground 6. 

Ground 10

1. Ground 10 does not of itself identify any jurisdictional error and is rather a prayer for relief.  No jurisdictional error is made out by ground 10.

2. As the application fails to make out any jurisdictional errors, the application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 March 2018