SINGH v Minister for Immigration

[2018] FCCA 823

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 823

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – student visa – where Applicant alleges bias on part of Tribunal – no bias towards the Applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.375A, 499

Migrations Regulations 1994 (Cth), Schedule 2 cls.572.223, 572.224

Cases cited:

BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198

Minister for Immigration and Multicultural Affairs v Jia [2001] 205 CLR 507

MZAFZ v  Minister for Immigration and Border Protection [2016] FCA 1081

Applicant: RANVEER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2152 of 2016

Judgment of: Judge Hartnett

Hearing date: 1 December 2017

Delivered at: Melbourne

Delivered on: 5 April 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Lucas

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent in the sum of $7328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2152 of 2016

RANVEER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed on 5 October 2016 wherein the Applicant seeks judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 8 September 2016 which affirmed a decision of a delegate of the First Respondent (‘the delegate’) to refuse to grant a student temporary (Class TU) (subclass 572) visa (‘the visa’) to the Applicant.

2. The grounds of application are as follows:-

   “1. Irrelevant jurisdiction consideration.

   2.  Bias decision made by Tribunal.

   3.  Equal opportunity was not considered at the time of decision by immigration officer as well as Tribunal officer.  Discrimination based on region.

   4.  Contradictory decisions were made.”

3. The Applicant relies upon his initiating application together with an affidavit affirmed by him on 5 October 2016.  No written submissions were filed by the Applicant. 

4. The First Respondent relies upon the response filed seeking dismissal of the application, together with an affidavit affirmed by Mr Kian Christopher Bone on 1 November 2017 and the First Respondent’s written submissions filed 24 November 2017.  There is also before the Court the evidence as contained in the Court Book.

Background

1. On 27 November 2014, the Applicant lodged an application for the visa on the basis of his enrolment in a diploma of information technology networking with St Stephen Institute of Technology.

2. On 13 January 2015, a delegate of the Minister refused to grant the Applicant the visa on the basis that the delegate was not satisfied that the Applicant was a genuine temporary entrant for stay in Australia in accordance with cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). This was the first delegate decision. The Applicant sought review from the Tribunal.

3. On 7 May 2015, the Tribunal remitted the application for reconsideration by a delegate of the Minister with a direction that the Applicant did meet cl.572.223(1)(a) of the Regulations. The review hearing had been determined by an oral decision given on 6 May 2015.

4. On 12 October 2015, a delegate of the Minister refused to grant the visa on the basis that the Applicant did not satisfy public interest criterion 4020 (‘PIC 4020’) and did not, therefore, meet cl.572.224 of the Regulations (‘the second delegate decision’). The delegate determined that the Applicant had given information that was false and misleading in a material particular, specifically the delegate found that the Applicant had provided information that he had access to funds from the Oriental Bank of Commerce. A letter from the Oriental Bank of Commerce dated 4 December 2014 and a deposit receipt for a fixed deposit account which showed a maturity date for the fixed deposit of 2 December 2015, was amongst information provided by the Applicant to the Department of Immigration and Border Protection (‘the Department’) in order to demonstrate the Applicant’s financial capacity. The Department referred these documents to the Australian High Commission’s case assurance section in New Delhi which investigated the matter with such investigation revealing that the funds were no longer available. On 31 July 2015, the Department invited the Applicant to make comment on this adverse information.

5. Following the second delegate’s finding that the Applicant had given information that was false or misleading in a material particular, the second delegate went on to consider PIC4020(1).  The second delegate concluded there were no compelling or compassionate circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen to provide a basis to waive the PIC 4020(1)(b) requirement.

6. On 30 October 2015, the Applicant applied to the Tribunal for review of the second delegate’s decision. 

7. On 8 April 2016, the Tribunal sent to the Applicant an invitation to provide information.  On 21 April 2016, the Tribunal received a request for an extension of time to provide the information. The Tribunal agreed to grant the extension of time, with the information from the Applicant to be received by the Tribunal by 6 May 2016. 

8. On 19 August 2016, the Tribunal wrote to the Applicant inviting the Applicant to attend a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in his case. That hearing date was 8 September 2016.  The hearing invitation noted that an interpreter would be provided for the assistance of the Applicant who could speak both the English and Punjabi languages. 

9. On 8 September 2016, the Applicant sent an email to the Tribunal seeking an adjournment of the hearing on the basis that he was of “bad condition of health”. The Applicant provided a medical certificate dated 8 September 2016 from the Sana Medical Centre, Dr Khalid Nawab in Shepparton. The medical certificate certified that the Applicant:-

   “has a medical condition and will be unfit for work/school from 08/09/2016 to 08/09/2016 inclusive.”

10. The Tribunal noted to the Applicant that the request for an adjournment was made at a very late stage, and that the medical certificate provided did not outline in detail the nature and history of the Applicant’s medical condition nor his diagnosis, and did not state any reasons as to why he would be medically unfit to attend a Tribunal hearing to respond to questions and present arguments.  Therefore, the Applicant’s request to postpone the hearing was declined.  The Tribunal however noted that the Applicant’s address was registered in Shepparton and offered him the opportunity of appearing at the Tribunal hearing by telephone. 

11. The Applicant did attend the Tribunal hearing by telephone and gave evidence and presented arguments in support of his application.  At the conclusion of the hearing, the Tribunal made an oral decision affirming the decision under review but for a different reason to that provided by the second delegate when refusing to grant the Applicant the visa.  The Tribunal provided a written Decision Record on 3 November 2016. 

The Tribunal hearing and findings

1. The Tribunal acknowledged that before it was an application for review of a decision made by a delegate of the Minister on 12 October 2015 to refuse to grant the visa Applicant a student temporary (Class TU) (subclass 572) visa under the Act. The Tribunal set out in paragraph 8 of its Statement of Decision and Reasons (‘the Decision Record’) that at the hearing it made clear to the Applicant that the delegate had decided he did not meet PIC 4020, but that the Tribunal was not confined to that criterion. Instead, the Tribunal made clear to the Applicant that the issues on review in his case involved a consideration of the genuine temporary entrant criterion in cl.572.223(1)(a) of the Regulations, that being a separate and distinct mandatory criterion for the visa.

2. The Tribunal set out cl.572.223(1)(a) of the Regulations in paragraph 10 of the Decision Record. That clause is as follows:-

   “572.223 

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

   (iv)  any other relevant matter; and

   …”

3. The Tribunal also noted that, in considering whether the Applicant satisfied the criterion as set out in cl.572.223(1)(a) of the Regulations, the Tribunal was required to have regard to Direction Number 53 assessing the genuine temporary entrant criterion for student visa applications made under s.499 of the Act. The Tribunal noted that the direction required it to have regard to a number of specified factors in relation to:-

   a)the Applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to the Applicant’s future;

   b)the Applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   c)if the Applicant is a minor the intentions of a parent, legal guardian or spouse of the Applicant;  and

   d)any other relevant information provided by the Applicant or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the Applicant. 

4. The Tribunal noted that Direction Number 53 indicated that the factors specified should not be used as a checklist, but rather were intended to guide decision-makers to weigh up the Applicant’s circumstances as a whole in reaching a finding about whether the Applicant satisfied the genuine temporary entrant criterion. 

5. The Tribunal at the hearing gave to the Applicant a summary of the mandatory criterion required to be satisfied by the Regulations to establish that the Applicant was a genuine Applicant for entry and stay as a student. The Tribunal informed the Applicant that a major issue on review was whether he was a genuine Applicant for entry and stay as a student because he intended genuinely to stay in Australia temporarily having regard to his circumstances and immigration history, the considerations laid out in Direction Number 53 as relevant to him, and any other relevant matter.

6. The Tribunal further informed the Applicant that the visa criterion had as its focus an examination of the intentions of the Applicant: whether they were for stay as a student, whether they were genuine, and whether they were for a temporary stay in Australia. 

7. The Court is satisfied that the Tribunal also made it very clear to the Applicant that the issues on review by the Tribunal differed to those considered by the delegate. 

8. At the hearing, the Applicant gave evidence that he first came to Australia on a student visa in 2007 and had lived in Australia for around nine years. Prior to arriving in Australia, the Applicant had completed a bachelor in computer science from India in 2006.  Following his arrival in Australia, the Applicant’s evidence was that he had completed VET sector courses in the following areas:-

   a)Certificate III in Automotive Mechanical Technology, 2009;

   b)Diploma of Management, 2010;

   c)Diploma of Automotive Management, 2012; and

   d)Diploma of Business, 2014.

9. The Applicant claimed after the conclusion of his study in November 2014, he proposed to study a diploma of information technology networking.  He had completed three units before his confirmation of enrolment (‘COE’) was cancelled when his visa was refused in January 2015.  He has not studied since March 2015. 

10. The Applicant conceded that the bridging visa he had held since January 2015 did not prevent him from studying, but that he had not sought to continue his studies at an alternative provider. 

11. The Tribunal suggested to the Applicant that all of his study in Australia was at a level below the bachelor in computer science awarded to him in India, before he arrived in Australia.  The Applicant responded in the following manner, as set out in paragraphs 19 to 24 of the Decision Record:-

    “19.  The applicant went on to tell the tribunal that he had first tried to obtain permanent residence in Australia in 2012. He explained that there was nothing for him in India and his future lies in Australia.  He said he had lived in Australia for 9 years and was no longer familiar with India.  He said he had a brother in the UK, and parents and two brothers in India.  He said he had no future in India, and no property or money there, and that his parents would not support him there.  He said he had not returned to India since 2012 but would like to visit his family on holidays. 

    20. He explained that in 2012 he was not issued his educational qualification on time, and suggested that this had frustrated his plan to obtain permanent residence at that time. 

    21.    The applicant gave clear evidence as to his current plan to obtain permanent residence.  He explained that he had a sponsor, SEEKA Australia Pty Ltd, who was willing to sponsor him for “RSMS” which he agreed was the regional sponsored migration scheme and agreed it provided permanent residence. He explained he had achieved an overall IELTS score of 6, but wished to achieve a score of 6 in each of the four test components.

    22.    He explained that he wished to live in Australia into the future and work for his sponsor as a mechanic for its farm equipment.  He could not meaningful (sic) explain how the diploma of information technology networking, which he still proposed to study, contributed to his ambition of being a mechanic permanent resident, working for his Australian sponsor. 

    23.    At length, he conceded that he only proposed to study the diploma of information technology networking so as to provide further lawful stay in Australia to give him time to pursue his ambition of obtaining permanent residence through the RSMS program.  Given this, the Tribunal found that the value of the course now proposed to any future intended to be outside Australia was negligible as it was proposed to allow him more time in Australia to pursue permanent residence and, in any event, is at a level below the applicant’s bachelor in computer science. 

    24.    The Tribunal suggested to him that in his own evidence he had given a clear enunciation of what his intentions were and had made clear that he wished to live in Australia permanently.  He repeated that he wants to live in Australia.”

12. The Tribunal placed significant weight on the Applicant’s clear evidence that he was attempting to obtain permanent residence in Australia and had done so since 2012.  The Tribunal observed that in considering the matters set out in Direction Number 53, it placed greatest weight on the Applicant’s direct evidence as to his intentions to remain in Australia.  However, it also noted it could infer from other evidence provided that the Applicant did not intend to live in Australia temporarily, including the fact that the Applicant had lived in Australia for nine years; had lost familiarity with India; and the fact he now proposed to study a VET sector course of study in information technology which had no appreciable value to his intention to live in Australia into the future as a farm mechanic.

13. The Tribunal made no finding as to whether the Applicant met PIC 4020 for the purposes of cl.572.224 of the Regulations.

14. The Tribunal affirmed the decision not to grant the Applicant the visa. 

Consideration

Ground One

1. The Applicant has not particularised what matters he claims the Tribunal failed to take into account, nor what were the irrelevant matters taken into account by the Tribunal. The Court is satisfied that the Tribunal considered each of the claims made by the Applicant and made clear to the Applicant the issues on review in his particular case. It took into account the matters relevant to the issues on review. This ground must fail.

Ground Two

1. The second ground of the application alleges bias on the part of the immigration officers and Tribunal.  The Applicant also alleges he was discriminated against on the basis of his “region”.  He deposes, in the affidavit on which he relies affirmed 5 October 2016, that “They are making unconscious biased decision and they are not properly listening to their customers”. Further that, “The immigration case officer are becoming more and more judgemental they are not taking each case differently and making bias decisions as they I am from the that region where lot of applications were made on bogus documents. Even the arguments they had put while refusing my application can easily be contradicted.” (errors in original).

2. To the extent that the Applicant’s complaint relates to the conduct of the delegates or departmental officers, the Court has no jurisdiction. 

3. To demonstrate actual bias, an Applicant must establish the Tribunal member had a pre-existing state of mind which disabled him from undertaking or rendered him unwilling to undertake any proper evaluation of the relevant materials before him which were relevant to the decision to be made.[1]   Further, an allegation of bias is a serious allegation which must be firmly and distinctly made and clearly proven.[2]  The Applicant puts before the Court no evidence at all to substantiate his claim that the Tribunal was biased or that there was any apprehended bias.  There was no discrimination against the Applicant.  There was a clear, transparent consideration of the relevant issues with the correct application of the law.  This ground must fail.

   [1] Minister for Immigration and Multicultural Affairs v Jia [2001] 205 CLR 507, 35 and 72

   [2] Ibid.

Ground Three

1. Ground 3 of the Applicant’s application alleges that “contradictory” decisions were made. There is no particularisation of this ground. It is true that there were differences between the basis upon which the second delegate determined the Applicant’s matter and the Tribunal determined his matter. The Tribunal was, however, entitled to affirm the delegate’s decision on a different basis to the delegate, so long as the Tribunal made clear to the Applicant the matters it considered relevant and in issue in the review.  The Tribunal did so, as referred to above.  This ground must fail.

2. There is no jurisdictional error attending the Tribunal decision. The Tribunal was not required to consider whether the Applicant met PIC 4020 as it had determined to refuse the Applicant’s application on the basis that he did not meet cl.572.223(1)(a) of the Regulations. If the Applicant makes complaint in this regard, he cannot succeed.

Affidavit of Mr Bone and submissions on s.375A of the Act certificate

1. Additional to the above consideration, the Minister noted to the Court that the Department had issued a certificate pursuant to s.375A of the Act. That certificate is an exhibit to the affidavit of Mr Bone affirmed 1 November 2017. Whilst this issue was not raised by the Applicant, the Minister considered it appropriate to be brought to the Court’s attention.

2. The Minister conceded that the certificate in this case was not validly issued pursuant to s.375A of the Act. The certificate did not disclose any basis that would be contrary to the public interest.[3] 

   [3] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081, 36.

1. The Minister also acknowledged that a copy of the certificate was not provided by the Tribunal to the Applicant for comment, nor was the certificate referred to in the Tribunal’s reason for decision. 

2. The Minister submitted that it was open for the Court to find that the non-disclosure of the certificate in this case resulted in no practical injustice to the Applicant, and for the Court to conclude that there had been no failure to afford the Applicant procedural fairness.  This was because, as submitted by the First Respondent, the material covered by the certificate, namely, folios 89 to 92 of file number BCC2014/3228660, could have in no way been relevant to the review and did not, by inference or otherwise, form part of the Tribunal’s reasoning in the review. 

3. The Court accepts that the material covered by the certificates was of no relevance to the issues under review. The documents did not contain any material prejudicial to the Applicant’s interests.  The Tribunal did not act on the material. In any event, the Court would exercise its discretion to refuse relief because knowledge of the existence of the certificate could not have made any difference to the outcome of the review, in circumstances where the documents covered by the certificate did not mean that the Applicant lost any opportunity to present his case.[4] 

   [4] BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198, 32 and 33.

4. As the application shall be dismissed, costs shall follow that event. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 5 April 2018