Singh v Minister for Immigration
[2018] FCCA 2064
•3 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2064 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa applied for onshore – necessity for “exceptional reasons” to be established – application for judicial review of decision of Administrative Appeals Tribunal which did not find that exceptional reasons had been shown for the grant of the Student visa – applicant fails to establish jurisdictional error affecting the decision of the Administrative Appeals Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 37 Kim v Minister for Immigration [2008] FMCA 1577 Kim v Minister for Immigration [2009] FCA 161 NABW v Minister for Immigration and Multicultural Affairs [2002] FCA 464 Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 |
| Applicant: | AWALJOT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1191 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 11 July 2017 |
| Date of Last Submission: | 7 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr T. Galvin |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 13 May 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1191 of 2016
| AWALJOT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of India aged 23 years, having been born on 6 February 1995.
By Application filed in this Court on 13 May 2016 he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 19 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 21 May 2015 refusing to grant to him a Student (Class TU) Vocational Education and Training (Subclass 572) visa (Student visa).
Background
The Applicant arrived in Australia on 29 July 2014 as the holder of a Training and Research (Class GC) (Subclass 402) visa, which was due to cease on 12 March 2015. On 10 March 2015 the Applicant was granted a Visitor (Class FA) (Subclass 600) visa (Visitor visa) which was due to cease on 2 April 2015, on which date he lodged his Student visa application, the subject of this proceeding.
In his Student visa application the Applicant indicated that he was applying while in Australia and that his intended course of study was that of a Diploma of Management at the Australian Vocational Learning Centre commencing on 13 April 2015 and to conclude on 10 April 2016, but that he had not yet enrolled.
The Applicant also indicated in his Student visa application form that he was in an Assessment Level 2-3 and the form advised him that at either of those levels, because he was applying for a Student visa in Australia, he would be required to provide exceptional reasons for being granted the Student visa in Australia.
By letter dated 8 April 2015 the Department of the Minister informed the Applicant that he was an “Assessment Level 3 Applicant”, and that as such he was not able to be granted the Student visa unless exceptional reasons existed for the granting of that visa. The letter went on to invite the Applicant to provide a statement explaining his exceptional reasons for the grant of the Student visa. By email of 3 May 2015 (Applicant’s email) the Applicant responded and stated that his aim in coming to Australia “was to learn the tools of the trade and set-up a medium sized welding and metal fabrication company which would offer Australian standard and metal fabrication services to businesses in India”.
Applicable Legislation
I note, although it did not appear to be in dispute, that Legislative Instrument IMMI 14/014 – Student Visa Assessment Levels dated 13 June 2014 had relevantly specified that Student visa applications made after 1 July 2014 by a holder of an Indian passport were subject to the highest level of assessment, being Assessment Level 3.
As at the date of decision the Applicant was required to relevantly satisfy cl.572.227 of Sch.2 to the Migration Regulations 1994 (Cth):
572.227
If:
(a) the application was made in Australia; and
....
(c) at the time of application, the applicant met the requirements of clause 572.211:
(i) as the holder of a visa of one of the following classes or subclasses:
….
(T) Subclass 600 (Visitor);
….
the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.
(emphasis added)
Decision of the Delegate
By her Decision Record of 21 May 2015 the Delegate refused to grant to the Applicant a Student visa because she was not satisfied that he had established exceptional reasons for the grant of a Student visa onshore and therefore did not meet cl.572.227.
Decision of the Tribunal
The Applicant applied through the agency of Parish Patience Immigration Lawyers to the Tribunal for merits review of the Delegate’s decision on 10 June 2015.
By email dated 17 April 2016 the Applicant’s new registered migration agent forwarded to the Tribunal a submission dated 15 November 2015 and certain documents, including a Confirmation of Enrolment dated 13 April 2016 in a Diploma of Leadership and Management at Academies Australasia Institute.
On 18 April 2016 the Applicant appeared before the Tribunal to give evidence and present arguments accompanied by his registered migration agent.
In the result the Tribunal was not satisfied that the Applicant had established exceptional reasons for the grant of a Student visa and accordingly affirmed the decision of the Delegate.
At [4] of its Decision Record the Tribunal summarised the claims as made in the submissions attached to the Applicant’s email. At [5] – [6] it recorded the submission dated 15 November 2015 and documents attached to the registered migration agent’s email of 17 April 2016 and at [8] and [10] summarised the submissions made at the Tribunal hearing by and on behalf of the Applicant with respect to exceptional reasons.
At [12] of its Decision Record the Tribunal identified that the issue in the case was whether or not the Applicant had established exceptional reasons for the grant of a Student visa. At [12] – [20] it went on to consider relevant legal cases on the meaning of “exceptional reasons” and the claims of the Applicant in this regard. In particular the Tribunal had regard to the decision of Buchanan J in the Federal Court of Australia in Kim v Minister for Immigration [2009] FCA 161 who had supported the reasoning of Smith FM below in Kim v Minister for Immigration [2008] FMCA 1577 at [7], where the following was said:
[7] The word ‘exceptional’ has dictionary meanings: “of the nature of or forming an exception; out of the ordinary course, unusual, special” (OED). It is commonly used in legislation when giving a decision-maker a power to identify circumstances or reasons justifying the lifting of a statutory rule, where it is intended that the rule will normally apply. On some occasions, the considerations which are intended to identify an exceptional case are expressly or implicitly shown in the framing of the power, but in others the relevant considerations are left undefined. In the latter situation, the decision-maker may appear to be given a very broad discretion to identify and weigh the considerations upon which he or she will decide whether to dispense with the normal rule.
Ultimately at [19] – [20] of its Decision Record the Tribunal recorded that it could not find that the Applicant had established exceptional circumstances or exceptional reasons for the grant of the Student visa. The Tribunal found that the Applicant's evidence that:
a)he had previously studied in Australia;
b)he was currently enrolled and would continue to study in Australia;
c)there may be some financial benefit to Australia;
d)he would like to establish his own business in India and had no plans to remain in Australia permanently;
e)it would be a waste of time and money to return to India to apply for a Student visa;
f)it would be less likely he would be granted a Student visa offshore now because things have become stricter; and
g)he was a genuine student;
did not establish exceptional reasons.
I note that in my view the use by the Tribunal in [19] – [20] of the term “exceptional circumstances” is of no moment because that expression is synonymous with “exceptional reasons”: see the discussion by French J (as he then was) in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 535-536 [18].
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon in the Application filed in this Court are as follows:
1.I came to Australia on occupational training visa class 402.
2.I successfully completed my training and got my Australian Qualification.
3.Later on, after completing training I decided to stay in Australia and wanted to do studies further.
4.But, then I was misguided by someone, that I should apply tourist visa to grant stay instead of student visa.
5.After granting my tourist visa, I again applied for student visa which was rejected as coe was not provided to Immigration by lawyer or me.
6.And, case officer asked me for specific reasons for student visa and I provided but they did not satisfied with those reasons.
7.I was hoping to get class 573 visa but haven’t got a chance.
8.I have obeyed all rules and regulations since I arrived and will follow further too.
9.I would like to request Court to grant me student visa so I can continue my passion of studies.
Consideration
Unfortunately for the Applicant none of his Grounds meaningfully assert any form of jurisdictional error in connection with the decision of the Tribunal.
Ground 4 asserts that in connection with his application for the Visitor visa he “was misguided by someone” and at [3] of his Written Submissions dated 4 August 2017 (Applicant’s Written Submissions) he amplified this Ground by stating:
3.I was new to Australia and was not aware of the visa system. I was new to Australia and I was not aware of the visa class and process. I was provided incorrect advice by my friend name "Kuldip Singh (Sunny)" who told me to apply for visitor visa first in order to apply for the Student visa. As I was unware and had no knowledge I relied on that advice and applied for the visitor visa which was later granted.
Nevertheless, the Applicant does not appear to claim that he was “misguided” or “provided incorrect advice” in connection with his Student visa application nor does he claim, and there is no evidence to the effect, that the Tribunal’s jurisdiction remains constructively unexercised as a result of third party fraud: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at 206-207 [52] – [53].
Nothing else in the Applicant’s Written Submissions has any tendency to establish that the decision of the Tribunal was affected by jurisdictional error.
I note that I have examined the Decision Record of the Tribunal for myself and in my view the decision of the Tribunal was reasonably open to it on the material before it and for the reasons which it gave and it was not affected by jurisdictional error.
Two Final Matters
Adjournment Application at Hearing
At the hearing, the Applicant asked for an adjournment so that he could retain a solicitor because he had not been financially capable of retaining a solicitor previously. Mr Galvin, who appeared for the Minister, opposed any adjournment. I refused any adjournment because I considered that the Applicant had been afforded ample time to retain a solicitor. He had appeared in person at the first directions hearing on 10 June 2016 when procedural orders were made to get the matter ready for hearing and the final hearing date was set down for 11 July 2017. The majority of applicants in migration cases run their applications at the final hearing without the benefit of a lawyer. The adjournment application was made late and only foreshadowed to Mr Galvin just before the matter was called for hearing and there was no notice to the Court of any intention to apply for an adjournment. Further, there was nothing before the Court which provided any certainty that a lawyer would in fact be retained and how long it would take for the Applicant to retain a lawyer. Finally, if the adjournment had been granted I would have had to adjourn the final hearing for over a year or alternatively displace a presently listed matter. In the circumstances I did not consider it to be in the interests of justice to grant the adjournment application.
Nevertheless, so as to afford the Applicant the opportunity to engage a lawyer and to have that lawyer put on written submissions on his behalf, I ordered at the conclusion of the hearing that if the Applicant wished to file a Written Outline of Legal Submissions he do so by 4 August 2017. In the event, the Applicant filed his Applicant’s Written Submissions on that date.
Precedent Decisions of the Tribunal
For completeness I note that at the hearing the Applicant appeared to complain that he knew two or three persons of Indian ethnicity who entered Australia on a Tourist visa and who had been granted Student visa’s without having to show “exceptional reasons” or “exceptional circumstances” and that accordingly the Tribunal ought not to have required him to establish such circumstances. In response I pointed out to the Applicant that the Tribunal does not operate under any system of precedent.
In Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 37, the Tribunal refused to grant the applicant a Protection visa, although the applicant’s sister had been granted a Protection visa by a differently constituted Tribunal some ten months earlier. The Full Federal Court rejected an argument that the Tribunal had improperly failed to adopt an approach consistent with the facts found by that Tribunal which had heard the applicant’s sister’s application. At 41 [15] the Full Court comprised of Burchett, Goldberg and Finkelstein JJ said:
[15] There is no merit in the submission that the tribunal was obliged to adopt an approach to fact finding on the objective aspects of the circumstances of the appellant's case consistent with the fact finding of the tribunal which determined the appellant's sister's application in December 1998. Although consistency may be an important element of good administrative decision-making each case must be considered in the context of its individual circumstances.
In Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353 Moore J at 359 [21] said:
[21] There is nothing in the Act to suggest that the Tribunal is bound in some way by conclusions reached in previous decisions. Indeed the Act, and in particular s 420, requires that the Tribunal must act in accordance with the merits of the case. As the Full Court explained in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 the nature of the Tribunal's task in reviewing a decision requires a consideration of all available evidence. In performing that task, the Tribunal cannot, in principle, be constrained by what it had decided in earlier cases.
In NABW v Minister for Immigration and Multicultural Affairs [2002] FCA 464 at [13] Sackville J said (omitting citations):
[13] So far as the applicant's complaint relating to the RRT's failure to refer to its earlier decisions is concerned, the general principle is that the RRT is not bound to refer to such decisions merely because they raise similar issues to those presented by the particular application for review. The question for determination by the RRT is whether it is satisfied on the materials before it that the applicant has a well-founded fear of persecution if returned to his or her country of nationality... The RRT is not bound by conclusions reached in previous decisions and is entitled to disregard those decisions if it considers them to be irrelevant...
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 6 August 2018
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