Singh v Minister for Immigration
[2018] FCCA 1042
•19 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1042 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – refusal of a Student visa – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth) ss.476(1), 476(2)(a) |
| Cases cited: APZ15 & Anor v Minister for Immigration & Anor [2017] FCCA 1473 |
| Applicant: | NARINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 652 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 19 April 2018 |
| Date of Last Submission: | 19 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 19 April 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms E. Tattersall |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The applicant’s originating application filed 28 November 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 652 of 2017
| NARINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
By application filed in this Court on 28 November 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 31 October 2017. The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”), not to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) Visa (the “visa”). The applicant applied for that visa on 13 October 2015. The delegate’s decision was dated 24 November 2015.
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The applicant was self-represented before this Court. He did not have the assistance of a translator. Nor had one been requested. The Court concluded that the applicant was fluent in English and did not require the assistance of an interpreter.
The Court had before it a Court Book numbering 74 pages and two Department of Immigration screenshots provided by counsel for the Minister during the course of the hearing.
The first screenshot outlines the visas that have been granted to the applicant since his arrival in Australia. Relevantly, the applicant had a visa on 4 August 2017. He thus had a visa at the time of the Tribunal hearing.
The second screenshot shows that the visa referred to above (at paragraph 5) was a Bridging Visa B. That visa contained only one relevant visa condition − relating to work limitations. Relevantly, there were no limitations in relation to the applicant studying in Australia.
Factual Background
The Court has reviewed the factual material provided by the first respondent and adopts the facts as outlined at paragraphs 3 to 8 in written submissions dated 12 April 2018, as follows.
The applicant, a citizen of India, arrived in Australia on 8 June 2008. On 13 October 2015, the applicant applied for the visa the subject of these proceedings: CB 1-8.
On 14 October 2015, the Ministerial delegate requested that the applicant provide further information in relation to his application, including evidence that he met the Genuine Temporary Entrant criterion in cl 572.223 of the Migration Regulations 1994 (Cth) (“Regulations”): CB 24-32. The applicant responded to this request in part and provided further information on 19 September 2015 (CB 33- 44). He did not provide any submissions on whether he met the Genuine Temporary Entrant criterion.
On 24 November 2015, the delegate refused to grant the applicant the visa: CB 45-51. The delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia and therefore found that he did not meet cl 572.223 of the Regulations.
On 4 December 2015, the applicant applied to the Tribunal for review of the delegate’s decision: CB 105-106. A copy of the delegate’s decision was provided with the review application.
On 4 October 2017, the Tribunal invited the applicant to attend a hearing before it scheduled on 31 October 2017: CB 58-61. The hearing invitation requested that the applicant provide a copy of his current Certificate of Enrolment, documents that showed the applicant was currently enrolled in a course or had an offer of enrolment, documents that showed the applicant’s past studies in Australia, and an explanation of any study gaps in the applicant’s enrolment. The hearing invitation also attached a copy of Direction No. 53 “Assessing the genuine temporary entrant criterion for Student visa applications”.
On 10 October 2017, the applicant sent an email to the Tribunal from India requesting a postponement of the hearing for two weeks: CB 62. The tribunal refused this request for a postponement: CB 64. On 31 October 2017, the applicant attended a hearing before the Tribunal. He did not provide the Tribunal with any further evidence: CB 158-160.
These facts were not disputed.
As noted above, on 31 October 2017, the Tribunal affirmed the delegate’s decision under review (CB 72-74). The Court notes the Tribunal’s decision at paragraphs 6 – 11 as follows:
6.The issue before the delegate was whether the applicant met the criterion in cl.572.223. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.
7.With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain 'eligible higher degree students', 'eligible university exchange students', and 'eligible non-award students'. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.
8.At hearing the applicant told the Tribunal that he was not currently studying or enrolled in a registered course of study and did not hold an offer of enrolment, as required for the grant of a student visa. He said he had previously completed diploma courses in Hospitality Marketing and Business, the last of which was an Advanced Diploma in Business completed in 2015.
9.There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
10.Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian. ·
11.For these reasons, the decision under review must be affirmed.
The applicant filed an application for judicial review application in this Court on 28 November 2017. He seeks the following final orders:
a)an order that the decision of the Tribunal be quashed; and
b)a writ of mandamus directed to the Tribunal, requiring the Tribunal to determine the applicant’s application according to law.
The applicant detailed three grounds of review as follows:
1. I Narinder Singh, Passport Number Jl527366, Date of Birth 22/02/1985, declare that I made an application for Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa on 13 Oct 2015. I received a notice of refusal for my student visa application on 24 Nov 2015 which states that I did not satisfy the provision of the Migration regulation 1994 (the regulations).
2. I genuinely intended to study and provided information accordingly to the Department of Immigration and Border Protection. I was never given another opportunity by the Department or no contact was made with me personally prior to making decision at any point to justify my point regarding genuineness of my student visa application. Furthermore, I was waiting on the visa grant so I can start study however, Tribunal affirmed the decision not to grant me the visa.
3. I believe that the tribunal fell into jurisdictional error by acting unreasonably while considering my application for review. Therefore, I am now seeking intervention from the Honourable Federal Circuit Court as I believe that there was a jurisdiction error in the decision. I believe that relevant factors and information provided by me was not considered carefully. I request Federal Circuit Court review and consider my case so to provide me justice.
No written submissions were provided by the applicant. This is despite an order by a Registrar of this Court dated 15 December 2017 which allowed him to do so.
The applicant did not have a hard copy of the Minister’s written submissions or the Court Book but advised the Court that he had had an opportunity to review both the Court Book and the Minister’s written submissions. When the applicant was referred to the Minister’s written submissions, counsel for the Minister assisted the Court and the applicant by ensuring that the applicant had reference to all relevant page numbers and evidence and was given appropriate time for review and analysis. The Court is satisfied that the applicant was provided sufficient time and assistance to properly assess the evidence and arguments relevant to this hearing.
To be successful today, the applicant must demonstrate to this Court that the Tribunal’s decision was affected by jurisdictional error.
The Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. For migration decisions, they most commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question (see Craig v State of South Australia (1995) 39 ALD 193 (Craig) at [198]).
b)Where the decision maker ignores relevant material (see Craig at [198]).
c)Where the decision maker relies on irrelevant material (see Craig at [198]).
d)Where the decision maker fails to follow mandatory procedures (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208]).
e)Where the decision maker fails to consider the entirely of an applicant’s claims (or “integers” of the claims) as made (see Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22]).
f)Where the decision maker shows actual or apprehended bias (see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17]).
g)Where the decision is illogical, irrational or unreasonable (see Minister for Immigration v SZMDS (2010) 240 CLR 61 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44]).
The applicant was asked to speak to these categories and, in effect, outline what, in his opinion, he felt the Tribunal did that was wrong. The applicant did so, as discussed below.
Synopsis
For the reasons that follow, this application for judicial review fails and is, accordingly, dismissed. The Court cannot find any jurisdictional error on the part of the Tribunal.
Decision
The applicant seeks an order in this Court for the issue of constitutional writs. In order for those writs to be issued, the applicant must demonstrate that the Tribunal fell into jurisdictional error in at least one of the ways outlined above at paragraph 21. In the Court’s opinion, the applicant has failed to show that the Tribunal fell into jurisdictional error.
On one level, what the applicant is asking the Court to undertake is a merits review in the hope that the Court will ultimately come to a different conclusion than that reached by the Tribunal. In effect, the applicant would like the Court to review the evidence that was before the Tribunal and ultimately give him the student visa that he seeks. The Court cannot undertake a review of that sort: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
On another level, it is arguable that what the applicant is asking the Court to do is review the decision of the delegate for error. To the extent that the applicant does seek review of the delegate’s decision, the Court does not have jurisdiction to review that decision – by virtue of s.476(2)(a) of the Act − as it is a primary decision: APZ15 & Anor v Minister for Immigration & Anor [2017] FCCA 1473 at [29].
In relation to jurisdictional error, the respondents argued at paragraphs 16 to 19 that no jurisdictional error occurred:
16.Ground 1 merely recounts the background to the matter and is not a competent legal ground of review.
17.Ground two contends that the applicant is a genuine student, that the Department never gave him an opportunity to justify the genuineness of his student visa application, and that he was waiting to be granted the visa to commence study. To the extent that the applicant seeks review of the delegate’s decision, the Federal Circuit Court does not have jurisdiction to review that decision by virtue of s 476(2)(a) of the Act, as it is a “primary decision”. However, contrary to this assertion the delegate did provide the applicant with an opportunity to provide further information to it (CB 24-32), which the applicant did (CB 33-44).
18.Ground three contends that the Tribunal acted unreasonably in considering his review application. There is nothing in the Tribunal’s decision that shows that it acted unreasonably or was illogical. The Tribunal relied upon the applicant’s own evidence that he was not currently studying or enrolled in a registered course of study and did not hold an offer of enrolment. In these circumstances, the Tribunal made the only decision that was open to it. The balance of this ground seeks impermissible merits review.
19.The first respondent submits that there is no jurisdictional error demonstrated by the grounds of review or otherwise apparent in the Tribunal’s decision. Accordingly, the application should be dismissed with costs.
The applicant was asked today to explain to the Court what he believes the Tribunal did wrong. He seemed to suggest that the Tribunal did not grant him a two week adjournment and, as a result of that, he was treated unfairly. He also explained that he had not enrolled in any courses and had not applied for a further course of study because, at the time, he did not have a valid student visa and honestly believed that, as a result, he could not study in Australia.
Although it was not specifically raised by the applicant, the Court does note the length of time it took the Tribunal to make a decision in relation to his visa application – almost two years. Obviously, quite a lot occurred during that period. This was undoubtedly very frustrating for the applicant, as it would be for any applicant wanting to get on with his or her life.
The Court notes that the Tribunal’s objectives are set out in s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as follows:
2. In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
…
(b) is fair, just, economical, informal and quick;
The Tribunal did not act “quickly” here. While this seems on its face to be quite unacceptable, it is clear on the authorities that the objective to act “quickly” is, legally, only aspirational. There is no legal authority that imposes a timeframe within which to have a matter heard and decided by the Tribunal: Minister for Immigration v Eshetu (1999) 197 CLR 611; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. While the delay here was undoubtedly frustrating, there is nothing in relation to that issue that goes to a jurisdictional error.
Turning to the applicant’s grounds of review, the applicant has argued that the Tribunal treated him unfairly because it refused to grant him an adjournment. The Court has referenced the letter that was sent to the applicant in relation to his request for an adjournment (CB 64) and has assessed the explanation that was provided to the applicant for the Tribunal’s refusal. On the evidence before the Tribunal and in the circumstances, that explanation was reasonable. The decision to refuse an adjournment was open to the Tribunal.
Further, it cannot be said on the evidence that the reasons advanced by the Tribunal lacked an evident and intelligible justification or that the approach taken was in any way unfair, unreasonable or biased. Nor can it be said that the decision was based on irrelevant considerations or evidences a failure to take into account relevant information. Nor can it be said at a broad level that the reasons provided by the Tribunal are illogical or irrational. Nor can it be said that the Tribunal ignored relevant material. Rather, the decision to affirm the delegate’s decision was sound and open on the evidence before the Tribunal. In effect, once it was clear to the Tribunal that there was no evidence before it that the applicant was enrolled in a course of study (as that term is defined legislatively), that was, in effect, the end of the analysis available to the Tribunal. The Tribunal had no discretion and was left in a position where it had no choice but to deny the applicant the visa he sought.
As explained above, the applicant explained to this Court that the reason he could not provide information as to a course of study was because he believed that he could not enrol in further courses without a valid student visa. The Court had reference to the Department of Immigration screenshots outlined above. Those screenshots show clearly that the applicant had a relevant and valid bridging visa and that that bridging visa at the time of the Tribunal hearing allowed him to enrol in a further course of study. Clearly the applicant was confused. It is also clear that his understanding of his visa obligations was wrong. Unfortunately, the fact that he was mistaken does not go to jurisdictional error and therefore does not help the applicant before this Court.
Having reviewed the evidence before it, while the Court does have considerable sympathy for the applicant in relation to his confusion as to what he could and could not do, the Court agrees with the primary contention made by the Minister that no jurisdictional error can be found in this case. The applicant was entitled to study in Australia. He held a visa that allowed him to do so. If he was not aware of this fact, that is his fault and his alone. The documents sent to the applicant by the Tribunal make it quite clear that he would be asked present evidence in relation to his current studies. He presented no evidence to the Tribunal in that regard. Nor did he seek clarification about what this meant.
Overall, the Tribunal’s analysis showed that on the evidence that it had before it, the applicant was not a student for migration purposes as he was not, as at the date of the hearing, enrolled in a course of study.
The Court is satisfied that the applicant was given every opportunity to present evidence that would dispute that finding. He did not do so. Overall, the Tribunal considered the facts of the case, the legislation it was required to examine and of all evidence provided by the applicant.
No jurisdictional error can be found here.
The applicant’s application for judicial review is dismissed.
The applicant is ordered to pay the first respondent’s costs fixed in the sum of $5,600.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 30 April 2018
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