Singh v Minister for Home Affairs

[2018] FCCA 3472

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3472

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359, 359A, 360

Migration Regulations 1994 (Cth)

Applicant: JAGJIT SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 88 of 2018

Judgment of: Judge Driver

Hearing date: 28 November 2018

Delivered at: Sydney

Delivered on: 28 November 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Saunders of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 88 of 2018

JAGJIT SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 December 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Singh a temporary business entry visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 21 November 2018.

3. Mr Singh is a male citizen of India.  He arrived in Australia in July 2014 as the holder of a subclass 402 occupational trainee visa.  This visa expired on 12 March 2015.

4. Mr Singh applied for a Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa on 17 April 2016.[1] The criteria for the grant of a subclass 457 visa are set out in Schedule 2 of the Migration Regulations 1994 (Cth), which include that the applicant satisfy subclause 457.211 at the time of application:

   [1] CB 1 - 15

   457.211

   If the applicant is in Australia at the time of application:

   (a)the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or

   (b)if the applicant does not hold a substantive visa at the time of application:

   (i)     the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and

   (ii)     the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.

5. Relevantly, criterion 3004 requires as follows:

   If the applicant:

   (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

   the Minister is satisfied that:

   (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and…

6. At the time of application, Mr Singh did not hold a substantive visa.  As such, the Minister invited Mr Singh to provide additional information on 6 May 2016[2] and again on 5 July 2016.[3]  However, Mr Singh did not provide any information or evidence in relation to Schedule 3.

   [2] CB 19 - 27

   [3] CB 55 - 60

7. On 21 October 2016, the delegate refused the grant of the visa.[4]  In the absence of any information or evidence from Mr Singh, the delegate was unable to establish the factors that caused Mr Singh to become a person without a substantive visa and the reasons why these factors were beyond his control.  As a result, the delegate was not satisfied that Mr Singh met criterion 3004 or clause 457.211.

   [4] CB 70 - 73

8. On 11 November 2016, Mr Singh applied to the Tribunal for review of the delegate's decision.[5]

   [5] CB 74 - 84

9. Mr Singh appeared before the Tribunal on 12 December 2017 to give evidence and present arguments.[6]  The Tribunal also received evidence from Mr Singh’s employer, Mr Bhullar.

   [6] CB 97 - 103

10. On 18 December 2017, the Tribunal affirmed the decision under review.[7]

    [7] CB 107 - 113

The decision of the Tribunal

1. The Tribunal noted that Mr Singh did not hold a substantive visa at the time of making the visa application.[8]  The question before the Tribunal was therefore whether Mr Singh satisfied the relevant Schedule 3 criteria, 3004.

   [8] [11]

2. The Tribunal asked Mr Singh whether there were any factors beyond his control which resulted in him not having a substantive visa at the time of application.[9]  Mr Singh submitted that he married in Australia and was hoping to get a spouse visa but that relationship broke down.[10]

   [9] [20]

   [10] [21]

3. The Tribunal asked Mr Singh whether there was any reason why he could not return to India and apply for a subclass 457 visa offshore.[11]  Mr Singh said that the sponsoring company wanted to employ him but he could not work on his bridging visa.[12]

   [11] [24]

   [12] [25]

4. The Tribunal asked Mr Bhuller if he had anything to say about Mr Singh not having a substantive visa.  Mr Bhuller thought the issue was whether Mr Singh had the skills and had nothing to say regarding Mr Singh not having a substantive visa.[13]

   [13] [26]-[27]

5. The Tribunal considered the various arguments put forward by Mr Singh, but was not satisfied that the breakdown of Mr Singh’s relationship was a factor beyond his control as he was party to that relationship.  The Tribunal noted that he did not provide details of the reason for the breakup, only that due to it breaking down was he no longer sponsored.  The Tribunal was not satisfied that, in the absence of any other detail, a relationship breaking down or having an employer wanting to sponsor him were factors beyond his control or compelling reasons.[14]

   [14] [31]

6. The Tribunal found that there was no information before it to indicate he could not return to India to apply for a subclass 457 visa.[15]  The Tribunal was not satisfied that Mr Singh was not the holder of a substantive visa because of factors beyond his control and was therefore not satisfied that Mr Singh met criterion 3004.[16]

   [15] [32]

   [16] [33]

7. Based on these findings, the Tribunal found that Mr Singh did not satisfy criterion 3004 for the purposes of clause 457.211.[17]  As a result, the Tribunal found that Mr Singh did not satisfy the applicable criteria for the grant of a Subclass 457 visa.[18]

   [17] [35]

   [18] [36]

The present proceedings

1. These proceedings began with a show cause application filed on 11 January 2018.  Mr Singh continues to rely upon that application. 

2. There are nine handwritten grounds in that application:

   1.I came to Australia on occupational training visa class 402.

   2.I successfully completed my training got my Australian qualification.

   3.I fell in love with a girl and we got married but our relation did not last long and I got divorced.

   4.I could not concentrate on my visa.

   5.After that I got in touch with Bhullar group and applied for 457.

   6.I was refused as I had to leave Australia to apply visa but I did not.

   7.As I had some circumstances which were beyond my control.

   8.First I was not even told by my lawyer that I had to leave to apply a new visa and I was not even aware of that thing.

   9.So I would like to request to give me a chance so that I can save my life from ruining because of someone else fault.

3. The application is supported by an affidavit filed with it which I received as a submission.  I have before me as evidence the court book filed on 26 February 2018.

4. I invited oral submissions from Mr Singh this morning.  He was concerned that he was not advised at the time he applied for the visa of the need to apply from outside Australia in order to avoid the impact of criterion 3004.  However, he also said that he does not wish to return to India and this may explain his continuing pursuit of the visa. 

5. I asked Mr Singh what he thought was wrong with the Tribunal decision.  He was not able to point to anything. 

6. In his submissions in reply, Mr Singh indicated that he may decide to leave Australia in about two months and sought the opportunity to remain for that period.  That is a matter for consideration of the Minister and his Department. 

7. Mr Singh is, however, unable to point to any arguable case of jurisdictional error by the Tribunal. 

8. The grounds in the application are dealt with in the Minister’s submissions.  I agree with those submissions. 

9. The grounds of the application contain a series of facts, and do not identify a jurisdictional error.  The grounds seek to explain why Mr Singh did not hold a substantive visa.

10. Insofar as Grounds 3 and 7 identify Mr Singh’s claimed factors beyond his control which resulted in him not having a substantive visa at the time of application, these were identified by the Tribunal at [21]-[30] and considered by it at [31]-[33].  These grounds are an attempt to cavil with the merits of the Tribunal’s decision.

11. The Tribunal complied with its statutory obligations as set out in Part 5, Division 5 of the Migration Act 1958 (Cth) (Migration Act):

    a)there was no information relied upon by the Tribunal which enlivened its obligations under s.359A of the Migration Act. The Tribunal’s reliance on information (specifically, the date which Mr Singh’s last substantive visa ceased) came from Mr Singh’s own evidence and from delegate's decision which was submitted by the applicants. As such, this information would come within the exception in s.359(4)(b) of the Migration Act as this was information that Mr Singh presented to the Tribunal; and

    b)Mr Singh attended a hearing as required under s.360 of the Migration Act, and was clearly on notice of the dispositive issues in the review, from the delegate's decision and from the Tribunal’s discussion with the applicants at the hearing.

Conclusion

1. I conclude that Mr Singh is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  Mr Singh inquired about the time for payment of costs, but he did not oppose the making of a costs order.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         29 November 2018