Sharma v Minister for Immigration

[2018] FCCA 4016

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 4016

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal (AAT) – alleges that the AAT fell into jurisdictional error as the decision was arbitrary, illogical or irrational – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Sch.2, cls.572.223, 573.223(2)(a), Sch.5A cl.5A404

Applicant: SANDEEP SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2845 of 2016

Judgment of: Judge Nicholls

Hearing date: 10 December 2018

Date of Last Submission: 10 December 2018

Delivered at: Sydney

Delivered on: 10 December 2018

REPRESENTATION

Applicant: In person

Legal Representative for the First Respondent: Ms M. Perotti

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application made on 18 October 2016 be dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2845 of 2016

SANDEEP SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore; Revised from Transcript

1. This is an application made on 18 October 2016, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 26 September 2016, affirmed the decision of the Minister’s delegate to refuse a Student (Temporary) visa to Mr Sharma, the applicant in these proceedings.

2. The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister into evidence (the Court Book – “CB” – “RE1”).

Background

1. From that evidence, the following background emerges. The applicant is a citizen of India. He applied for a student visa on 29 September 2012. The application was refused by the Minister’s delegate. At this time, there were a number of visa subclasses for which the applicant could have applied.

2. In the circumstances that were before the delegate, the delegate considered the applicant’s application, having regard to the requirements of visa subclass 572. 

3. The delegate refused the application on the basis that the applicant did not meet the English language proficiency requirements as set out in cl.5A404 of the Migration Regulations 1994 (Cth) (“the Regulations”), as required by cl.572.223 of Schedule 2 to the Regulations.

4. The applicant then applied to the Tribunal for review of that decision, on 1 October 2015. He appeared at a hearing before the Tribunal on 4 May 2016. It appears that the Tribunal was reconstituted, and a different member was constituted to conduct the review. The applicant was invited, ultimately, to attend another hearing before the Tribunal member who made the decision that is currently before the Court. This hearing was conducted on 22 September 2016. The applicant gave evidence on that occasion to the Tribunal.

5. The Minister has filed written submissions in these proceedings. The Minister has set out a summary of the Tribunal’s analysis and its decision. (See at [4] to [11] of the Minister’s written submissions). Having regard to the evidence before the Court, the submissions are an accurate, and fair, summary of the Tribunal’s reasoning and its findings. For the sake of convenience today, I adopt them for the purposes of this judgment. 

6. The grounds of the application to the Court are in the following terms:

   “(1) The decision of the Tribunal is arbitrary, illogical or irrational
   (2) The Tribunal found the applicant claim that is a genuine student.” 

[Errors in the Original]

1. Despite opportunity given to the applicant on previous occasions by orders made by a Registrar of the Court, nothing further has been filed by the applicant by way of evidence (affidavit), or submission, or any amended application. 

Before the Court

1. Before the Court today, the applicant appeared in person. He acted on his own behalf. The Minister was represented by a solicitor. The applicant made reference before the Court to certain academic qualifications that he said he has achieved, or obtained. It was clear that these were all qualifications that post-dated the Tribunal’s decision. As I explained to the applicant, the issue before the Court today was whether there is any legal mistake (jurisdictional error) in the decision of the Tribunal, and that documents created after the date of the Tribunal’s decision could not assist in revealing legal error on the part of the Tribunal.

2. It was clear that the applicant had little or no understanding of the grounds of the application to the Court.  He explained, and I accept what the applicant has said, that this was prepared by, as he said, “lawyers, solicitors”, who had previously assisted him. He was not able to provide any submissions relevant to those grounds.

Consideration

1. The core of the Tribunal’s reasoning is set out at [20] to [25] of its decision record.  In essence, the Tribunal considered, and on the evidence, properly, that the applicant’s application was to be considered with reference to subclass 573. The Tribunal explained this at [16] of its decision record.  It then noted, at [17], that the requirements of subclass 573 had various aspects, or requirements, depending on whether or not the applicant was an eligible higher degree student, or whether a number of other factors were part of the applicant’s history. 

2. In any event, and ultimately, the Tribunal summarised, at [19], that the requirements that the applicant was required to meet were, as it said, broadly speaking, English language ability, financial capacity and other prescribed matters. 

3. While other matters may have been discussed at the hearing, what emerges as the core of the Tribunal’s reasoning is essentially as follows. The applicant was required to attain a level of language ability which could have been demonstrated by achieving an overall band level 6 score in any IELTS examination. 

4. As the Tribunal noted, and as the applicant confirmed before the Court today, he did undertake such an IELTS test on 21 May 2016, but he achieved an overall band score of 5, which is clearly not 6.  I have regard here to what is in evidence at CB 120 to CB 121, where the results of that examination are reproduced. 

5. The Tribunal also had regard to the fact that, even though the applicant had provided a Diploma of Hospitality Management, the Diploma was completed more than two years prior to the date of application for the visa, and therefore, for that reason also, could not satisfy the relevant requirements of cl.573.223(2)(a) of the relevant criteria for the grant of the visa.

6. Importantly, the Tribunal also had regard to the circumstances that were considered by the delegate, that is, in relation to a subclass 572 visa. It noted that even if the Tribunal had considered that the applicant’s circumstances should have been considered under that subclass, the applicant would have failed to meet the requirement, as the overall band score required in an IELTS exam, where the applicant did not undertake an ELICOS course, is at least 5.5. Again, the applicant would not have satisfied that requirement.

7. The first ground of the application to the Court is a bare assertion that the Tribunal’s decision is arbitrary, illogical or irrational.  No particulars whatsoever are provided in the application. The applicant was unable to provide any particulars, because as he said, the lawyers wrote this for him “without explanation”. 

8. It is clear, in the circumstances, that this is a formulaic attempt, at best, to express grievance with the Tribunal’s decision, absent any particularity, absent any explanation, let alone any explanation relevant to the actual reasoning and decision of the Tribunal. The ground, at its highest, can only be understood as being a request for impermissible merits review. It lacks merit. In any event, the Tribunal’s findings, which informed its decision, were all reasonably open to it, and probative of, the evidence, or, depending on the perspective, the lack of evidence, that is, the inability to meet the requisite requirements.

9. The Tribunal gave cogent, and intelligible, reasons for its decision to affirm the delegate’s decision. On the evidence that is before the Court, it is clear that there is a logical connection between the evidence before the Tribunal, and the reasons which explained its findings, and its conclusion. It is quite plain that the applicant, and perhaps his lawyers, would have preferred the Tribunal to come to a different conclusion, but that preference does not make the Tribunal’s decision unreasonable, illogical, or arbitrary.

10. I should also add that, in the circumstances, the Tribunal’s conclusion, it must be said, was the only available conclusion open to it on the evidence. The criteria, as set out in the Regulations, are clear as to the relevant language, and educational requirements. To put it in its bluntest terms, the Tribunal really had no option other than to find the way that it did. This does not make its decision arbitrary. It cannot be said to have acted arbitrarily if it follows the law. I note that the lawyers who assisted the applicant really did not assist him in any competent fashion.

11. It is also important to note, for the sake of completeness, that the Tribunal noted at [26] of its decision record, that the applicant had been given ample, and reasonable, notice of the requirements of the visa, and a reasonable time following the first hearing before the Tribunal to provide the necessary evidence.

12. While he provided some evidence, it was not evidence that was capable of meeting the relevant regulatory criteria for the grant of the visa.  As the Minister submits, the Tribunal’s decision not to offer the applicant yet further time was not legally unreasonable, noting that, in any event, there is nothing before the Court to show that any application, or any request in that regard, was made to the Tribunal.

13. The second ground of the application is meaningless.  If what is really meant is that it was not open to the Tribunal to find that the applicant was not a genuine student, then that misunderstands the context within which the Tribunal was required to frame its consideration within the terms of the relevant criteria. 

14. In short, the applicant did not meet the English language requirement to the level that he was required to meet it. He therefore failed to meet the relevant definition that the Tribunal was required to consider and apply.  Again, as the Minister submits, the application to the Court seeks impermissible merits review. 

Conclusion

1. As I said to the applicant, I considered the material before the Court, but I cannot see that the Tribunal fell into jurisdictional error. For the applicant’s benefit, that means that it made any legal mistake. For that reason, the application to the Court is to be dismissed. I will make the appropriate orders.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  29 July 2019