Sidhu v Minister for Immigration

[2017] FCCA 917

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 917

Catchwords:
MIGRATION – Review of decision of Administrative Appeals Tribunal – jurisdictional error – finding of fact by Tribunal that applicant had failed to satisfy essential criterion for grant of visa – finding of fact reasonably open to Tribunal – applicant seeks merits review – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5; 474; 476; 499

Cases cited:
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 467

Applicant: GURPREET SINGH SIDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 241 of 2016

Judgment of: Judge Brown

Hearing date: 2 May 2017

Date of Last Submission: 2 May 2017

Delivered at: Adelaide

Delivered on: 11 May 2017

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: Not Applicable

Counsel for the Respondents: Ms Scanlon

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 3 August 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 241 of 2016

GURPREET SINGH SIDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in these proceedings, Gurpreet Singh Sidhu, seeks an order to quash a decision of the Administrative Appeals Tribunal “the Tribunal” or “the AAT”, made on 12 July 2016.

2. In that decision, the Tribunal affirmed an earlier decision not to grant the applicant a student (temporary) (class TU) visa “the visa”  pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.

3. The applicant is a citizen of India.  He arrived in Australia in October of 2012 pursuant to a higher education sector student (class TU subclass 573) visa granted on 3 October 2012. 

4. The visa was granted on the basis that Mr Sidhu would undertake the following courses of study, in the higher education field:

   ·     A diploma of computing and information technology from October 2012 to June 2013 at Eynesbury College; and thereafter

   · A bachelor of information technology from July 2013 to July 2015, at the University of South Australia.

5. The applicant did not take up these studies in either 2012 or 2013.  In October 2013, the applicant enrolled in a course of study in the vocational education and training sector, indicating his intention to undertake a certificate course in production nursery and horticulture at the Imperial College of Trades based in Adelaide.

6. As a consequence of this change of study direction, Mr Sidhu applied for the visa relevant to these proceedings on 21 November 2014.  It can be characterised as a vocational education and training sector visa or a 572 visa.  It is a distinct visa to the higher education visa or 573 visa earlier granted to Mr Sidhu via the streamlined education visa process.

7. On 8 May 2015, a delegate of the Minister for Immigration & Border Protection declined to grant the visa in question.  Thereafter, on 14 May 2015, the applicant applied to the Tribunal for a review of this decision.  As indicated above, this application for review was dismissed, by the Tribunal, on 12 July 2016, with a written decision being issued on 11 August 2016.

The conditions applicable to the visa

1. Mr Sidhu’s original higher education sector visa was cancelled for a breach of condition 8516, which is contained in schedule 8 of the Migration Regulations 1994.  This condition stipulates that a visa holder must comply with the primary or secondary criteria of the visa in question.  In this case, the condition required enrolment in an approved course of tertiary or higher education.  As Mr Sidhu’s course of study in information technology had been cancelled, he had failed to comply with the primary criteria attaching to his original visa. 

2. The conditions applying to the 572 visa or vocational education sector visa are specified in clause 572.223(1)(a) of the Migration Regulations 1994.  The relevant portions of the provision reads as follows:

   “(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)The Minster is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)     The applicant’s circumstances; and

   (ii)     The applicant’s immigration history; and

   (iii)If the applicant is a minor – the intentions of apparent, legal guardian or spouse of the applicant; and

   (iv)    Any other relevant matter; and

   (b)     …”

3. On 3 November 2011, the then Minister for Immigration & Citizenship issued a Ministerial Direction, pursuant to section 499 of the Act, in respect of this regulation and other related ones. The Ministerial Direction remains in force.

4. Pursuant to section 499, the Minister is empowered to give written directions, to any person or body, having functions or powers under the Migration Act, as to how those functions and powers are to be respectively performed or exercised.  Both the AAT and the Minister’s delegate are such bodies.

5. The relevant direction was entitled Ministerial Direction No 53 – Assessing the genuine temporary entrant criterion for Student visa applications.  The directions pick up and elaborate upon the considerations outlined in clause 572.223(1)(a) and the relevant portions of them can be summarised as follows:

   ·The applicant’s circumstances in their home country, including–

   Øhas the applicant sound reasons for not undertaking the study in his/her home country;

   Øthe applicant’s economic situation;

   Øthe existence of any political or civil unrest in the applicant’s home country;

   ·The applicant’s potential circumstances in Australia, particularly –

   Øthe applicant’s ties within Australia, including the extent of any ties which represent a strong incentive to remain in Australia;

   ·The value of the course to the applicant’s future, particularly–

   Øis the course consistent with the applicant’s current level of education and will assist in obtaining employment in the home country;

   Ørelevance of the course to the student’s past or proposed future employment in the home country;

   Øremuneration prospects arising from the proposed course of study.

   ·The applicant’s immigration history

   ·Any other matter relevant to the applicant’s intention to stay in Australia on a temporary basis

6. The Ministerial direction, includes the direction that relevant decision makers should not use the various factors specified as a check list.  Rather, they are intended to guide decision makers to weigh up the relevant applicant’s circumstances as a whole, particularly in reaching a decision whether the applicant concerned satisfies the genuine temporary entrant criterion.

The evidence of the applicant

1. In support of his 572 visa application, Mr Sidhu wrote a brief submission, to the Minister’s delegate, as to why he had elected to enrol in a vocational course in horticulture, particularly why this qualification would be of assistance to him, on his return to India.[1] 

   [1]  See casebook at page 24

2. In this submission, the applicant indicated that his family owned and operated a farm in India and therefore qualifications relating to the use of fertilisers and pesticides, from a developed country, such as Australia, would be of great assistance to him and his family in improving their farming methods in India.  In addition, Mr Sidhu indicated that he believed such study would improve his English language skills.

Procedural history to date

1. The Delegate of the Minister provided Mr Sidhu with written reasons in support of her decision not to grant the relevant visa on 8 May 2015.  These reasons referred extensively to the contents of Ministerial Direction No 53.  In addition, the Delegate wrote as follows:

   “As set out in Ministerial Direction Number 53, I have weighed Mr Gurpreet Singh Sidhu’s circumstances, immigration history and whether there are any other relevant matters as this assessment of his genuine intention to temporarily stay as a student in Australia.  On balance, I am not satisfied that Mr Sidhu is a genuine applicant for entry and stay as a student, as I am not satisfied that he intends to genuinely stay in Australia temporarily having considered his circumstances, immigration history and other relevant matters.  Accordingly, I am not satisfied that Mr Sidhu meets the requirements of Regulation 572.223(1)(a)….”[2]

   [2]  Ibid at page 46

2. As a consequence of this decision the applicant commenced review proceedings before the AAT.  On 21 June 2016, Mr Singh and his representative were invited to give evidence and present arguments, before the AAT, in respect of the issues arising from the Delegates’ decision.  In this context, he was provided with a copy of Ministerial Direction No 53 and was asked to provide a written statement addressed to the issue of whether he was a genuine temporary entrant by reference to its terms.[3]

   [3]  Ibid at pages 54 - 61

The hearing before the AAT

1. The Tribunal accepted that Mr Sidhu wished to transition from a 573 visa to a 572 visa for legitimate reasons, based on his family’s farming interests in India.  It accepted that the horticulture course undertaken by the applicant in Australia wold have value to his family’s business in India.[4]  The Tribunal also noted Mr Sidhu’s evidence that he intended to seek work, in Australia, when he had completed his course in 2017.

   [4]  Ibid at 92 [9]

2. However, the Tribunal considered that this evidence, germane to issues relating to the applicant’s circumstances in India, was overshadowed by other aspects of the applicant’s oral evidence, provided by him, to it, during the hearing.  This evidence was that the applicant had married an Australian citizen on 24 November 2015. 

3. The applicant’s wife obtained her Australian citizenship, late in 2016, after obtaining permanent residence through the skilled visa program utilising the occupation of chef.  Thereafter, Mr Sidhu had returned to India and lodged an offshore partner visa application from that country.

4. In this context, the Tribunal put to Mr Sidhu that it was improbable that he would wish to move back to live in India, away from his wife, whose intention was to remain living in Australia.  It was also suggested to him that it was difficult to foresee a time in which the couple might conceivably live together outside of Australia, in all the circumstances currently prevailing.

5. I have not been provided with a transcript of the applicant’s evidence to the Tribunal in respect of these issues and so have not been provided with the exact nature of Mr Sidhu’s answers to these suggestions regarding his intentions in respect of where he would live with his wife, given the nature of her citizenship.  The Tribunal record indicates that the discussion between it and the applicant, in this regard, was detailed and covered Mr Sidhu’s intentions and plans for the future.

6. In the context of these discussions, the Tribunal found as follows:

   “The tribunal considers that the dramatic change in the applicant’s circumstances, in his marriage to an Australian citizen around 7 months ago and his offshore partner visa application, and his wish to live with his Australian wife in Australia in the future, outweigh the other directions indicated by Direction 53 and the tribunal places the greatest weight on the applicant’s expressed desire to live in Australia with his Australian wife, and the partner visa he has applied for to facilitate that intention.

   On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.  Accordingly, the applicant does not cl. 572.223(1)(a)…”[5]

   [5]  Ibid at page 92 – 93 [15] – [16]

The review application to this court

1. Mr Sidhu has prepared his application and supporting affidavit for the proceedings in this court.  The two documents are in the same terms.  They each centre on issues to do with Mr Sidhu’s desire to pursue qualifications in horticulture and the likely benefits of these qualifications to him when he returns to India.  He refutes any suggestion that he is not a genuine student and should not be regarded as such because he transferred from an information technology course to one involving horticulture.

2. The difficulty with this material is that it does not allude specifically to the provisions of Regulation 572.223(1)(a) or the related Ministerial Direction.  As such, Mr Sidhu has not raised any issue of error regarding the finding of the Tribunal that it was not satisfied he was intending to remain in Australia only temporarily in connection with his studies.  This being one of the essential prerequisites of the visa in question.

3. In particular, Mr Sidhu has made no reference to the issue of his comparatively recent marriage to an Australian citizen and the Tribunal’s finding of fact that it was improbable that, in the context of their marriage, either Mr Sidhu or his wife, would wish to live apart from one another outside of Australia. 

4. Necessarily, this issue is one of a different kind, distinct in nature from the validity of Mr Sidhu’s desire to study horticulture or the veracity of his overall interest in the subject.  The current case turns on findings relating to the authenticity or otherwise of Mr Sidhu’s intention to return to India, at the completion of his studies and whether, as a consequence, his intention to remain in Australia can be categorised as a temporary one or otherwise.  This intention being an essential prerequisite for the granting of the visa in question.

The legal principles applicable

1. The legal principles applying to applications of this type are complex.  I will do my best to explain them.  In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did. 

2. Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

3. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Administrative Appeals Tribunal.  Part VIII of the Act deals with judicial review.  Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

4. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the Administrative Appeals Tribunal by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

5. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions.  A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[6] 

   [6]  See Migration Act at section 5

6. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

7. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision.  As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act. 

8. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[7]

   [7]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

9. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[8]

   [8]  See Craig v South Australia (1995) 184 CLR 163

10. As previously indicated, jurisdictional error is a complex concept.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction. 

11. In Minister for Immigration & Citizenship v Li[9] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker.  As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.

    [9]  Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]

Conclusions

1. The Minister submits that, in substance, the applicant seeks an impermissible merits review of his claim that he is a genuine student and does not identify any arguable jurisdictional error in the Tribunal's decision.[10]  I agree. 

   [10]  See Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

2. The Tribunal reached the conclusion that the applicant was not likely to be a genuine student, in the sense envisaged by clause 572.223(1)(a), because of the evidence provided to it, by the applicant himself, regarding his marriage to an Australian citizen and his likely preference to live with his wife in this country. As a consequence, the Tribunal found that the applicant did not hold a genuine intention to stay in Australia temporarily.

3. In my view, such a finding of fact was clearly open to the Tribunal on the evidence available to it and is not one which can be categorised as being irrational, illogical or unreasonable.  It is the prerogative of the Tribunal “to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”[11]

   [11]  See Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 467 at [27]

4. In this particular case, the Tribunal considered and did not reject many aspects of the applicant’s case.  It did not make any specific adverse finding regarding his election to change to a vocational course after earlier applying for a higher education visa, in respect of studies he did not take up.

5. The Tribunal also accepted the applicant’s evidence regarding his family’s situation in India, particularly in regards to the likely benefits which would accrue to it, if he obtained Australian qualifications in horticulture.  However, in the Tribunal’s deliberations, the matter of the applicant’s marriage was characterised by it as overshadowing such considerations and, as such, came to be the seminal factor leading to its decision.

1. In my view, the Tribunal was entitled to give more weight to this issue than to other of the considerations arising under Ministerial Direction Number 53 in exercising the jurisdiction conferred upon pursuant to the Act. 

2. I accept that the applicant is upset and aggrieved by the decision of first the delegate and then the Tribunal.  However, in my view, he does not identify any jurisdictional error in the Tribunal’s decision.  Rather, he expresses dissatisfaction with the finding and requests this court to substitute its own decision through a process of merits review. 

3. This is not open to the court, which can only quash a decision if legal error is apparent.  In my view, the applicant has not delineated any such legal error.  In my view, the findings of the Tribunal were open to it on the evidence available to it, which included the evidence of the applicant himself. 

4. There being no discernible legal error, the application must be dismissed.  The first respondent seeks costs in the sum of $4,500.00.  In this case, I accept that costs should follow the result. 

5. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding forty-eighty (48) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     11 May 2017