Singh v Minister for Immigration
[2018] FCCA 1311
•6 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1311 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause hearing – no particulars – ground 1 took issue with delegate’s decision – court not concerned with delegate’s decision – ground 2 sought to re-agitate a factual matter – akin to merits review – court not permitted to undertake merits review – ground 3 complained about the conduct of the tribunal – lacked merit – ground 4 made no grammatical sense – devoid of merit – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 |
| Applicant: | GURPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 453 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 6 March 2018 |
| Date of Last Submission: | 6 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
This proceeding is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $3,982.69.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 453 of 2017
| GURPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
By order made by a registrar of this court on 30 August 2017 this proceeding was ordered to go forward under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules.
The registrar also ordered the applicant to file any amended application by 4 October 2017 with written submissions, also to be filed that day. The applicant did not file either.
The applicant applied for a student (temporary) (class TU) (subclass 572) visa on 14 March 2015. The minister’s delegate refused to grant the applicant the visa that the applicant sought. The applicant applied for a merits review to the Administrative Appeals Tribunal. The tribunal affirmed the delegate’s decision at 2:49pm on 7 February 2017 later providing written reasons on 23 March 2017, those reasons running for 37 paragraphs.
In this court
The applicant relied on four grounds of application. It is necessary to set them out verbatim. They were as follows –
1.Delegated member didnot review on the documentation provided on the 15 th April 2015 wherein I provided 8 documents to support my view and i included statement of purpose to support my claims for the extension of the Student visa for the subclass 572.
2.I hold genuine intention to complete studies and establish my own business in my home country upon my return.
3.My study in management was closely related to my past study and my future profile ; but it was discarded by the Review Tribunal and it refused my review appeal orally without considering my present evidence.
4.I seek review into relevance between my past study, future plans and my research into my future proposed study plan as all was based on surfing about current trends in Indian industry.
(errors in original)
Among the reasons why the tribunal affirmed the delegate’s decision not to grant the applicant the visa he sought were –
a)the subject visa application was the applicant’s fourth visa application (paragraph 16);[1]
b)the applicant arrived in Australia as a 19 year old holder of a student visa offshore, granted on 6 July 2009;
c)since arriving in Australia the applicant enrolled in a number of courses many of which had been cancelled including (but not exhaustively) a certificate III in auto-mechanical technology, a diploma of management, a certificate IV in automotive technology, a diploma of management, a diploma of business and an advanced diploma of business (paragraph 17);[2]
d)the applicant’s history of enrolments was in short, inexpensive courses at vocational educational and training sector level (paragraph 18);[3]
e)in many instances the applicant had repeated units in courses he had previously undertaken (paragraph 20);[4]
f)the tribunal was of the view that in relation to the diploma of project management the applicant enrolled in it to maintain residence in Australia rather than a desire to study a course having a particular academic pathway (paragraph 23);[5]
g)the tribunal was not satisfied the applicant had provided any satisfactory explanation of the way a project management course was relevant to the applicant’s academic or employment background (paragraph 24);[6]
h)since completing the automotive course in 2013, the tribunal did not accept that the courses the applicant studied were related to added value to the applicant’s future in the automotive industry (paragraph 26);[7]
i)the applicant had no answer to why he did not finish his studies in India (paragraph 28);[8] and
j)the tribunal considered the applicant had an incentive to remain in Australia including ongoing employment, residence with the applicant’s brother and the relative economic circumstances in India (paragraph 32).[9]
[1] Court book filed on 12 September 2017 at 157
[2] Ibid
[3] Ibid
[4] Ibid
[5] Ibid at 157-58
[6] Ibid at 158
[7] Ibid
[8] Ibid
[9] Ibid
The tribunal considered that it was not satisfied the applicant was a genuine student who intended to stay temporarily in Australia and therefore, the applicant did not meet cl.572.223(1) of the Migration Regulations.
Against that backdrop, the applicant sought an order for the issue of constitutional writs.
Synopsis
In my view, it is appropriate to make an order dismissing the proceeding.
The show cause procedure
Under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules, a judge in my shoes is empowered to make an order dismissing the proceeding in whole if the judge is not persuaded that the applicant has raised an arguable case for the relief he seeks. Several key authorities bear upon the point, including Spencer v Commonwealth of Australia[10] and AMF15 v Minister for Immigration and Border Protection.[11] In both cases the courts held that the power to summarily dismiss a proceeding should not be exercised lightly. In Spencer the High Court held that a proceeding need not be “hopeless” or “bound to fail” for it to have no reasonable prospects of success. But even if I took the view that no arguable case is raised in a particular proceeding that is not the end of the matter because, as was held by Gilmour J in Siddique v Minister for Immigration and Border Protection,[12] the power in r.44.12 of the Federal Circuit Court Rules has two components to it. The first is the lack of satisfaction that an applicant has raised an arguable case for the relief claimed in the proceeding. Even if the court reaches the conclusion that no arguable case is raised by the applicant, the court must go on to consider whether in the exercise of a residual discretion, the court should or should not dismiss the proceeding. In assessing the exercise of the residual discretion, the merits of the application for judicial review are critical. Accordingly, it became necessary for me to examine the merits of the case in the overall. As Gilmour J held in Siddique, in very many cases the answer to the first question of whether the applicant has raised an arguable case will lead to the second question. In SZTTW v Minister for Immigration and Border Protection[13] Beach J held to like effect that two questions are involved in any consideration of a show cause hearing under r.44.12.
[10] (2010) 241 CLR 118
[11] [2016] FCAFC 68
[12] [2014] FCA 1352
[13] [2014] FCA 837
Let me now turn to the four grounds of review.
First, at an overview level, none of the four grounds had been particularised. Several cases that bind me have held that an applicant’s failure to provide particulars of his grounds is a sufficient basis for dismissing the application for judicial review. From the decision in WZATH v Minister for Immigration and Border Protection,[14] Siopis J was taken to have concluded that in respect of a ground of review expressed in such generality that it could not be taken to be a meaningful ground of review then the proceeding was amenable to being dismissed on that basis alone. Logan J stated in BHK15 v Minister for Immigration and Border Protection[15] that the applicant’s first ground of review in this case was expressed at such a level of generality as not to be meaningful in the absence of particularisation. Logan J took a similar view in a slightly later decision in AQN15 v Minister for Immigration and Border Protection[16] where his Honour held that no error was committed by the primary judge in that case dismissing the proceeding by reason of the generality of and the absence in particularisation of the grounds of review. In WZAVW v Minister for Immigration and Border Protection[17] Gilmour J held that an unparticularised assertion of jurisdictional error is vague when it does not specify the nature of the jurisdictional error allegedly committed and a failure to particularise a ground of review is a sufficient basis for the proceeding to be dismissed.
[14] [2014] FCA 969
[15] [2016] FCA 569
[16] [2016] FCA 571
[17] [2016] FCA 760
In this case all grounds of review were unparticularised. Consistent with the decisions in WZATH, BHK15, AQN15 and WZAVW, those unparticularised assertions of the existence of jurisdictional error in this case give no insight at all into the nature of the error the tribunal is alleged to have made. This proceeding is amenable to dismissal on that basis alone. I dismiss the proceeding on that basis as well on the other bases to which I now turn.
There are other reasons why this proceeding should be dismissed, more substantive in nature than the vagueness of the grounds of review. Let me take them one at a time.
In the first ground of review the applicant complained that the “delegated member” (who I took the applicant to mean the delegate) did not review certain documentation provided on 15 April 2015. It need scarcely be pointed out that judicial review in relation to the tribunal’s decision is not concerned with any aspect of the delegate’s decision. The decision in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs[18] made that plain. Ground 1 was therefore devoid of merit.
[18] (2004) 139 FCR 344
The second ground seemed to me to be a reagitation of a factual matter that was determined adversely to the applicant. The tribunal found that the applicant was not a genuine temporary entrant who intended to stay temporarily in Australia. Ground 2 was akin to a merits review. When engaged in the task of judicial review, I am forbidden from undertaking a merits review, as was held in such cases as Australian Broadcasting Corporation v Bond,[19] Attorney-General (NSW) v Quin,[20] Chan v Minister for Immigration and Ethnic Affairs[21] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[22] Ground 2 was not a proper ground of review and was devoid of merit.
[19] (1990) 170 CLR 321
[20] (1990) 170 CLR 1
[21] (1989) 169 CLR 379
[22] (1996) 185 CLR 259
Under ground 3 the applicant sought to agitate a matter of mixed submission of fact with a complaint about the conduct of the tribunal. To the extent that the applicant asserted that the tribunal did not consider his “present evidence”, it was impossible to tell what the applicant meant by that phrase. It seemed to me that the tribunal did, in fact, consider the applicant’s contentions as well as the applicant’s study history. I do not accept that ground 3 had merit.
Ground 4 made no grammatical sense. When the applicant said he sought review into his previous study, his future plans and his proposed study plan, that material was fairly considered by the tribunal, albeit that the upshot was not in the applicant’s favour. The applicant did not say in what way the tribunal fell into error of the type canvassed in Craig v State of South Australia[23] or in Kirk v Industrial Court (NSW).[24] Ground 4 was devoid of merit.
[23] (1995) 184 CLR 163
[24] (2010) 239 CLR 531
Today I asked the applicant to tell me in his own words what he said the tribunal did wrong in this case. He said he did not want to tell me the tribunal did anything wrong. I took that to mean that he did not contend that the tribunal did anything wrong. Ms Koya, on behalf of the minister, told me Mr Singh effectively conceded that the tribunal did nothing wrong and that the show cause should be upheld. I agree.
Conclusion
In my view none of the grounds of review had merit.
In this case the applicant has not raised an arguable case for the orders commanding the issue of constitutional writs. It is appropriate to summarily dismiss this proceeding under r.44.12 on that basis. It is also appropriate to summarily dismiss this proceeding under r.44.12 in the exercise of the residual discretion I possess of the sort canvassed in Siddique and in SZTTW.
I dismiss this proceeding and order the applicant to pay the minister’s costs in the fixed amount of $3,982.69.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 23 May 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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