SHEOKAND v Minister for Immigration
[2017] FCCA 362
•1 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHEOKAND v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 362 |
| Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal – affirmation of delegate’s decision to refuse to grant student visa – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss. 476, 499 |
| Cases cited: Minister for Immigration & Citizenship v Khadgi & Anor [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26 Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 |
| Applicant: | VAIBHAV SHEOKAND |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 116 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 March 2017 |
| Date of Last Submission: | 1 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 1 March 2017 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr E Solana |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $5800 by 1 April 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 116 of 2016
| VAIBHAV SHEOKAND |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered orally and revised)
Introduction
This is an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively) to affirm a decision by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration & Border Protection (“Minister”), to refuse the applicant a Student (Temporary) (Class TU) visa (“Student Visa”).
Background
The background to the refusal of the Student Visa is as follows:
a)the applicant arrived in Australia as the holder of a Student (Temporary) (Class TU) visa (“Previous Student Visa”) on 21 April 2013: Court Book (“CB”) 37;
b)on 28 July 2015, the applicant lodged an application for the Student Visa: CB 1-9;
c)on 4 September 2015, the Delegate’s Decision was to refuse to grant the Student Visa on the basis that the Delegate was not satisfied the applicant genuinely intended to stay in Australia temporarily and therefore did not satisfy cl.572.223(1)(a) of Sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 34-41;
d)on 24 September 2015, the applicant applied to the AAT for review of the Delegate’s Decision: CB 42-43. A copy of the Delegate’s Decision record was submitted in support of that application: CB 43; and
e)on 15 February 2016, the AAT Decision affirmed the Delegate’s Decision: CB 102-108.
AAT Decision
In the AAT Decision, the AAT:
a)expressly stated that it was required to have regard to the factors specified in Ministerial Direction No 53, being a direction entitled “Assessing the genuine temporary entrant criterion for Student Visa applications” (“Direction 53”) given under s.499 of the Migration Act: CB 104 at [12], and in reaching a decision with respect to cl.572.223(1)(a) of Sch.2 to the Migration Regulations, had regard to Direction 53, which sets out a number of “factors,” relevant to cl.573.223(1)(a)(i)-(iv) of Sch.2 to the Migration Regulations, which the AAT “must” have regard to, and which by operation of s.499(2A) of the Migration Act the AAT was required to comply with: CB 104-105 at [12]-[15] and CB 107 at [37];
b)considered the applicant’s evidence in relation to each factor in Direction 53;
c)found that the applicant had been in breach of the conditions of the Previous Student Visa for approximately two years: CB 106 at [31], that he was a poor student, and that his proposed course was of limited value to his future business objectives: CB 107 at [38];
d)accepted that the applicant had family and friends in India, but did not consider that their presence in India served to incentivise the applicant to cease his residence in Australia: CB 107 at [35];
e)was not satisfied, considering the evidence before it cumulatively, that the applicant intended to genuinely stay in Australia temporarily: CB 108 at [41]; and
f)affirmed the Delegate’s Decision not to grant the applicant the Student Visa because it was not satisfied that the applicant met the criterion in cl.572.223(1)(a) of Sch.2 to the Migration Regulations: CB 108 at [41].
Judicial Review Application
On 14 March 2016 the applicant filed the Judicial Review Application. Notwithstanding the orders made by a Registrar of the Court on 27 April 2016 the applicant did not file an amended application or any written submissions.
The Judicial Review Application raises two grounds of review:
1. I am not satisfied with the decision of AAT and Department of Immigration & Border Protection.
2. I have attached my claim in a separate copy.
An annexure to the Judicial Review Application recounts the background of the matter and requests the Court to “exercise its powers and to reverse the decision of Migration Review Tribunal”.
Consideration
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In the Court’s view no jurisdictional error arises in relation to the AAT Decision because:
a)ground 1 is no more than an unparticularised assertion of dissatisfaction with the AAT Decision, and cannot constitute jurisdictional error: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited);
b)this Court has no jurisdiction to review the Delegate’s Decision by virtue of s.476(2)(a) of the Migration Act; and, in any event, the AAT Decision operates to cure any defects and irregularities in the Delegate’s Decision: Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294;
c)the applicant’s grounds of review constitute no more than a plea for impermissible merits review based on the applicant’s lack of satisfaction with the AAT Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;
d)in reaching the finding that the applicant did not meet c1.572.223(1)(a) of Sch.2 to the Migration Regulations the AAT took into account the applicant’s evidence that he did not know that he had been in breach of various conditions of his Previous Student Visa: CB 105-106 at [23];
e)the AAT Decision demonstrates that it considered the applicant’s evidence and engaged in an “active intellectual process” and gave “genuine” consideration to the factors set out in Direction 53, which it expressly stated that it had regard to, and in relation to which it made findings on the factors that had practical relevance to the applicant’s circumstances and evidence: Minister for Immigration & Citizenship v Khadgi & Anor [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26; Singh v Minister for Immigration & Border Protection [2016] FCA 74; and
f)the finding that the applicant did not meet the genuine temporary entrant criterion was reasonably open to the AAT, and was not a finding which no rational or logical decision-maker could reach on the same evidence: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130] per Crennan and Bell JJ.
Conclusion and orders
The Court has concluded that no jurisdictional error arises in respect of the AAT Decision. It follows that there will be orders:
a)dismissing the Judicial Review Application; and
b)for the applicant to pay the Minister’s costs in the sum of $5800 by 1 April 2017.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 1 March 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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