Singh v MIBP
[2015] FCCA 2451
•11 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2451 |
| Catchwords: MIGRATION – Review of Refugee Tribunal decisions – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migrations Regulations 1994 – Schedule 2; cl.572.223 |
| Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 |
| Applicant: | GURPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 130 of 2015 |
| Judgment of: | Judge Vasta |
| Hearing date: | 11 August 2015 |
| Date of Last Submission: | 11 August 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 11 August 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Guru |
| Counsel for the Respondent: | Mr B. McGlade |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Application filed 12 February 2015 be dismissed.
That the name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 130 of 2015
| GURPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
By application filed on 12 February 2015, the Applicant, Gurpreet Singh, seeks a review of a decision made by the then Migration Review Tribunal.
That decision was made on 9 January 2015, affirming the decision not to grant Mr Singh a student visa.
By way of background, the evidence before me shows that the Applicant arrived in Australia on 20 May 2009 as the holder of a student visa.
He has not departed the country since. On 20 March 2012, he applied for the student visa in issue in this matter before me. He was granted a bridging visa.
The application that he made on 20 March 2012 was refused by the Delegate on 10 August 2012; however, the Applicant reviewed that decision before the then Migration Review Tribunal, and on 3 February 2014, that Tribunal remitted the application to the Delegate for further consideration.
On 27 May 2014, the Delegate again refused the application.
The Applicant then took that decision to the Migration Review Tribunal for review and it is from that decision that he now seeks a review before me.
It would seem on the evidence that the decision by the then Migration Review Tribunal was based upon the interpretation of cl.572.223 of Schedule 2 of the Migration Regulations 1994 (Cth), which states, relevantly, that:
“(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stays a student because:
(a) the Minister 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 a parent, legal guardian or spouse of the applicant; and
(vi) any other relevant matter.”
The Tribunal, in its findings, said this at paragraph 13:
“The tribunal finds that the applicant does not intend to stay in Australia temporarily and is instead using a Student Visa system for the purpose of prolonging his stay. This is based on the following factors:
·The applicant entered Australia in May 2009 and has not departed Australia since this time, and this indicates that his long-term aim is to remain in Australia and that his connections to India are not strong as to warrant his return;”
·Although the Applicant has studied for the majority of his time in Australia, he has repeatedly enrolled in short-term, inexpensive and seemingly unrelated courses.
·This indicates to the Tribunal that the Applicant is studying for the sole purpose of remaining in Australia. Adding weight to this argument is the fact that the Applicant has not been studying since mid-2014 according to his own evidence and only re-enrolled in study one day prior to the hearing (as recorded on the certificate of enrolment submitted by the applicant after the hearing).
·The Applicant has a child in Australia and this provides a very strong incentive for him to remain in Australia in the long term.
·In making this finding, the Tribunal notes the Applicant’s evidence that he is going to obtain full-time care of the child and return with the child to India.
·However, as noted by the Tribunal during the hearing, the Applicant has not taken any steps to facilitate this alleged plan of action and the Tribunal finds it both unrealistic and without a set timeframe that the Applicant would successfully pursue such a course of action.
·The Tribunal instead finds that the Applicant plans to remain in Australia long-term, at least partly to pursue his relationship with his child, and this indicates that the Applicant is not in Australia temporarily as required by the genuine temporary entrant criteria.
As I say, those were the findings of the Tribunal which amount to the Tribunal saying that it was not satisfied. It is the satisfaction of the Tribunal that is paramount.
As can be seen, in giving their reasons, the Tribunal pointed to three aspects of the evidence by which it cumulatively came to the view that it was not satisfied as to the genuineness of the intention to stay in Australia temporarily.
Now, the matter before me has five grounds. They are:
“Ground 1: The Second Respondent has failed to properly interpret 572.223(1)(a) of the Migration Regulations 1994 which was an error of jurisdiction.
Ground 2: The Second Respondent failed to take relevant considerations into account which was an error of jurisdiction.
Ground 3: The Second Respondent took irrelevant considerations into account which was an error of jurisdiction.
Ground 4: The Second Respondent did not properly apply the law to the facts available and hence failed to properly exercise jurisdiction.
Ground 5: The Second Respondent asked itself the wrong question in determining the application for review which was an error of jurisdiction.”
I will look at ground two and three first, because those matters may be more easily dealt with. With regard to ground two, the Applicant says that:
“The Second Respondent did not take into account the consideration that a person on a Student (Temporary) (Class TU) visa would normally be of limited financial means, and would not have the luxury of travelling back and forth to their home country on a regular basis. As such, the Second Respondent did not take into account or ask the question whether the Applicant had the financial means to travel to India regularly, or what his reasons were for not travelling back to India during his stay in Australia.
… The Second Respondent did not take into account that the Migration Regulations 1994 only requires that the Applicant have sufficient funds to cover the travel cost of one return trip to the Applicant’s home country at the end of his or her stay, and not the financial capacity to afford multiple trips.”
Therefore, by failing to take that into account, there was a “jurisdictional error”.
With regard to this aspect, as I have said to the Applicant’s solicitor in the course of argument, I do not see that this in any way amounts to a jurisdictional error.
The merits of whether such a matter should have been taken into account are one thing. It may well be that there are many arguments that could have been mounted on this issue.
It was conceded that this was not something that the Applicant said to the Tribunal and, quite frankly, when I have a look at the evidence, there is nothing which suggests that this is a reason why the Applicant has not gone back to India; that is, because he is somewhat impecunious.
The problem, though, is a far more fundamental one.
As I said at the beginning of these reasons, the question here is whether the Minister is satisfied that the Applicant intends genuinely to stay in Australia. That is, whether, on the whole of the evidence, the Minister has that requisite degree of satisfaction.
What the Applicant is doing with such a ground is not looking at the aspect of the satisfaction of the Minister, but is instead looking at one aspect of the decision and trying to, in some way, impugn that aspect.
Even if the Applicant were successful in impugning that aspect, that does not mean that there has been a jurisdictional error. If that were to amount to a jurisdictional error, that would mean that a jurisdictional error equates to a merits review.
The aspect here that the Applicant complains of is clearly a merits review and a merits review is not open on a privative clause decision.
There is nothing in that ground that in any way shows to me that the failure to take into account that it may just be that the Applicant did not have enough funds, is enough to say that the satisfaction that was reached by the Tribunal could never have occurred if they were looking at the matter properly, and that is what must be shown for there to be illustrated to me a jurisdictional error.
Therefore ground two fails.
Ground Three:
“That the Second Respondent took irrelevant considerations into account which was an error of jurisdiction.”
The argument is that the irrelevant consideration was that the “Applicant’s connections to India are not as strong as he has not departed Australia since May 2009” and “that there is no correlation between a person’s ability to travel to their home country on a regular basis and their connection to that home country.”
The argument is that the Tribunal took into account “an irrelevant consideration which led to a jurisdictional error.”
The argument was further based on the Tribunal looking at the fact that the Applicant had enrolled in “short-term, inexpensive and seemingly unrelated courses.”
The argument is “that a person’s choice of courses is an irrelevant consideration as the fact that a person is studying means that they are abiding by their Student (Temporary) (Class TU) visa conditions.”
It was submitted that it was reasonable to conclude that a person on a student visa who enrolled or completed in multiple types of courses wants to increase or enhance their qualifications or skill.
The third aspect of this is that it was an irrelevant consideration that the Applicant had a child here.
It was submitted “that the Applicant as the father of an Australian born child has the right to pursue any legal avenue with regards to custodial or parental arrangements regarding that child.”
Again, in my view, this ground suffers from the same defect that the former ground suffers, and that is that again it is concentrating on factual matters that the Tribunal has looked at and is attempting to impugn those factual findings.
It again is not the question as to whether another conclusion on the facts could have, or even should have, been made.
What has to be shown is that those matters were so out of kilter with common sense, that if one looked at those matters properly, it could not have been open for a reasonable decision-maker to have come to that decision; that the decision maker was satisfied.
The matters with which the Applicant complains could never have had that character.
They are properly characterised as impermissible merit reviews and are not such that one could say that they were jurisdictional errors.
For those reasons, ground three also fails.
That leaves grounds one, four and five and, in many ways, these can be dealt with at the same time.
Ground one is that there was a failure to properly interpret cl.572.223(1)(a).
The argument is that, in regard to those matters that I read out in paragraph 13 of the decision, the Applicant says that such “conclusions were inferred from the interpretation of the term “intends genuinely to stay in Australia temporarily” in clause 572.223(1)(a)…” And the Applicant says that the Tribunal concluded that clause to mean “that a person intends to stay in Australia for a limited time, and will not, or does not, have any intention to stay in Australia long-term.”
Whilst I do not see that that submission is made out, it is quite obvious that what the Applicant is saying is that the proper way in which cl.572.223(1)(a) ought be considered is that the Tribunal must ask itself the question as to whether the Minister is satisfied that the Applicant intends to stay in Australia only during the time for which a subclass 572 visa applied for, will be valid.
The Applicant says that the Tribunal failed to take into account the intention of the legislation when they interpreted cl.572.223(1)(a).
The argument of the Applicant really revolves around the interpretation of a decision of Judge Manousaridis in Khanna & Ors v Minister for Immigration and Anor [2015] FCCA 1971.
That was a decision handed down by His Honour on 20 July 2015 in Sydney. In that matter, the Applicant, who was a national of India, entered Australia on a student visa in August of 2009. That visa was valid until 25 October 2011.
On 13 November 2011 the Applicant applied for a further visa under subclass 573, but that was refused.
A Tribunal had affirmed that decision, and the matter had gone on review to be heard by His Honour.
It seems that there were a number of courses that the Applicant there had been enrolled in, but for a number of reasons many of those courses were never completed.
The Applicant had been enrolled in a bachelor degree in business, but it was submitted that she cancelled that enrolment because she was not sure that she would be granted a visa and did not want to waste money if she had not.
What is noted in the judgment of Judge Manousaridis is that – and this at paragraph 9:
The Tribunal’s reasons record the following:
“Later in the hearing the Tribunal asked the applicant what her future intentions were, and the applicant said she would like to stay and make a future and settle [sic] in Australia if given the chance”.
In paragraph 10 His Honour noted:
“In response to the Tribunal informing the applicant that on the face of it the applicant’s movements in and out of Australia indicated that her long-term intention was to stay in Australia, the applicant said that “Australia is safe and she would like to settle in Australia in the long term if given the chance”.”
The Tribunal in that case was not satisfied that the Applicant had a genuine intention of staying in Australia temporarily.
The Tribunal said its finding was based on several factors, including:
“ a) the applicant’s evidence that she wishes to settle in Australia in the long term if given the opportunity,
b) the applicant’s immigration history which indicated the applicant spent a limited amount of time outside Australia since her arrival,
c) the applicant’s not having a current confirmation of enrolment for a course of study in Australia, and
d) the limited and unconvincing evidence regarding the value of further study in Australia towards the applicant’s long-term future.”
The argument before His Honour was that the Tribunal misplaced reliance on the Applicant’s intention to stay permanently in Australia if given the opportunity. That is because of what I have earlier remarked at paragraph 13(a) of His Honour’s reasons.
His Honour has, in his reasons, said that what needed to be taken into account in relation to this matter is that the Applicant’s intention to settle in Australia did have a qualifier. That is, she would like to live in Australia if it were an opportunity that she was able to avail herself of, that is, if she was qualified to do so or if she was allowed to do so.
The way in which His Honour dealt with the matter can be seen in his reasons, and I do not plan to go through all of his reasons.
However, it seems to me that what His Honour was saying was that reliance upon what it is that she said to the Tribunal really was not capable of the inference to which the Tribunal seemed to make.
His Honour spoke of the possibility of a person to have an intention to stay in Australia which was an intention that was not inconsistent with the intention that is spoken about in cl.572.223.
His Honour considered that the Tribunal’s reliance upon what it was that she said, without also relying upon the rider that she had made to that intention, was really a matter that the Tribunal ought not to have done.
Now, it has been suggested to me, in this particular matter, by the Minister, that this present case before me is distinguishable from the matter of Khanna (Supra).
I understand that submission for these reasons – that here in this case there was a definite intention mentioned by the Applicant in Khanna (Supra) that is not present in the present case.
His Honour, I should say, in Khanna (Supra) ended up saying this at paragraph 33:
“In my opinion, the Tribunal determined the applicant’s case on the assumption that the applicant’s wish to settle in Australia in the long term, if given the opportunity, implied the applicant did not have an intention to genuinely stay in Australia temporarily. That is apparent from the Tribunal’s relying on the applicant’s evidence that she wishes to settle in Australia in the long term if given the opportunity. That, in turn, led the Tribunal to make a jurisdictional error. The jurisdictional error is that the Tribunal did not in truth undertake the inquiry cl.573.223 required it to undertake, namely, to consider whether the applicant intended to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.”
Whilst the Minister says that this matter can be distinguished, the Applicant says that it cannot be distinguished and, unless I were to say that this decision was wrong, that the fact that the Tribunal has not asked itself the question that His Honour says the Tribunal should ask in paragraph 33 of his decision, would amount to a jurisdictional error.
In my view, one has to go back to the words of the clause; that is “… the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily…”.
To my mind, one has to look at what is it that the Minister has to be satisfied about.
In the explanatory statement which was issued by the Minister for Immigration and Citizenship at the time of the enactment of these clauses the following appears at page 8:
“The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, and then return home, following the completion of the primary applicant’s studies.”
This is what, in my view, the Minister has to be satisfied of; that the Applicant genuinely intends to come to Australia, study and to return home.
The student visa program is one that is beneficial to Australia in that it is asking students from all over the world to come to our country on a temporary basis, take advantage of our education institutions and facilities and, using that education, to return back to their country, where they can utilise what it is that Australia has been able to teach them for the benefit of their own communities and for their country in general.
In the same way, by doing this, they, the students, benefit and the country from which they come also benefits.
Australia benefits economically by having these students here.
It also enriches our culture and ensures that our educational facilities maintain a standard that is world-class so as to be able not only to attract our own citizens to study but to attract persons from overseas. As I said in the course of argument, this is a win-win situation for everyone involved.
But it only survives upon the student visa regime not being, to use the vernacular, rorted. This is what, to my mind, cl.572.223 is talking about when it uses the word “genuinely”; that is, that the person is using the student visa program in the genuine spirit with which it has been set up.
It is for the Minister to be satisfied, having regard to all the evidence, the circumstances of the Applicant, their immigration history and all other relevant matters, that there is a genuine intention to stay in Australia temporarily in the spirit with which this regime is operated.
For this reason, even though I find that there are significant differences in the facts of the matter of Khanna (Supra) and the present matter that would be able to allow me to distinguish the matter of Khanna from the present case, that I am also of the view that the matter of Khanna was decided per incuriam.
The question that the Tribunal had to ask itself is not confined to – “Did the Applicant intend to return to her home country at the end of the period for which the subclass 573 visa would be valid”?
The question the Tribunal had to ask itself is – “Am I satisfied that the applicant intends to come to Australia to study and then to return home?”
It is a question that, in my view, ought not be narrowed any further than that.
To my mind, what was done in Khanna (Supra) was to focus upon what His Honour spoke of in paragraph 13(a) as being the Applicant’s evidence that she wishes to settle in Australia in the long term if given the opportunity.
His Honour was of the view that the Tribunal was, in effect, asking itself the wrong question.
To my mind, even if the Tribunal did ask itself the wrong question, that did not amount to a jurisdictional error.
A jurisdictional error could only have occurred if His Honour took the next step and said that:-
“having regard to the Tribunal not being able to rely upon what it was that the Applicant had said, the Tribunal should have looked then at whether:
·the immigration history, (which indicated she spent a limited time outside of Australia since her arrival)
·her not having current confirmation of enrolment for a course of study in Australia and
· the limited and unconvincing evidence regarding the value of further study in Australia towards the Applicant’s long-term future
was sufficient that a reasonable decision-maker could have come to the conclusion that was reached”.
In other words, was it open on the evidence, as His Honour then took the evidence, for the conclusion that the Applicant did not genuinely intend to stay in Australia temporarily.
If His Honour was of the view that, on the evidence, such a conclusion was not open, then he would find that that was a jurisdictional error.
By focusing upon this one aspect and concluding that the Tribunal was therefore wrong, did not, to my mind, amount to a jurisdictional error.
I can distinguish the matter of Khanna (Supra) from this particular case simply on the facts. The Applicant in Khanna (Supra) had said that she did have an intention to stay in Australia if she were allowed, which was not a consideration in the present case. Such a conclusion would be sufficient for me to dispose of the point. However, whilst I can distinguish Khanna (supra), I acknowledge that some may see my doing that as an attempt to try and duck the issue.
It is my view that, even if I could not distinguish the case of Khanna (Supra) from my present one, that I would not follow Khanna (Supra) in any event, because I do not believe that it was decided correctly.
That then brings me to the submissions made in the present case.
The submissions in this case were that Khanna (Supra) is correct and, in effect, because the Tribunal in this case had not asked itself the pertinent question raised in Khanna (Supra), that therefore there is a jurisdictional error.
To my mind, because I have found that Khanna (Supra) is not a correct statement of the law, I need not consider that.
What I can say is this – that on my view of the evidence, when one looks at everything that the Tribunal has done, it has asked itself the proper question.
This is because when I look at the way in which the Tribunal phrased the first sentence in paragraph 13, it said,
“The Tribunal finds that the applicant does not intend to stay in Australia temporarily and is instead using a Student Visa system for the purpose of prolonging his stay…”
That is a correct question that the Tribunal must ask itself.
It conforms to, not only cl.572.223, but to that which is contained in the explanatory statement.
I therefore find that grounds one, four and five also fail.
I therefore dismiss the application in this matter.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 22 September 2015
4
1
3