SINGH v Minister for Immigration

[2018] FCCA 526

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 526

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Non-protection visa (Pt 5 -reviewable) decisions – Applications – grounds for judicial review – no ground made out.

Legislation:

Migration Regulations1994, cl.572.223(1)(a)

Applicant: RAVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 317 of 2017

Judgment of: Judge Jarrett

Hearing date: 2 February 2018

Date of Last Submission: 2 February 2018

Delivered at: Brisbane

Delivered on: 2 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Clayton Utz   

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 10 April, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 317 of 2017

RAVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application which is plainly an abuse of process. The applicant has applied to this Court for judicial review of a decision of the Administrative Appeals Tribunal that was made on 13 March, 2017. The Tribunal’s decision affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) vocational education and training sector subclass 572 visa.

2. To succeed in his visa application, the applicant needed to establish at the time of the decision on his visa application a number of matters, as one might expect.  The delegate, however, was not satisfied that the applicant intended to genuinely stay temporarily in Australia.  The delegate needed to be satisfied of that by reason of cl.572.223(1)(a) of Schedule 2 of the Migration Regulations 1994.  For the reasons the delegate gave, he determined that matter against the applicant and expressed that he could not be so satisfied. 

3. The Tribunal also was not satisfied that the applicant was a genuine applicant for entry and stay as a student because it was not satisfied that the applicant genuinely intended to stay in Australia temporarily. 

4. By this application, the applicant seeks to challenge the decision of the Tribunal.  His application filed on 10 April, 2017 has what might be seen as four grounds of review, two which are said to be “Procedural impropriety: Bias” and two which are said to be “Jurisdictional Error”. 

5. In terms of the bias claims the applicant says that the decision-maker did not take into account or did not consider various matters including his past conduct which included his attendance at his courses over a period of time, the fees that he had paid and his immigration history.  It did not take into account, the applicant says, his academic performance and his successful pursuit of education and qualifications at a vocational level.  He says that the Tribunal did not consider his relevant employment in the managerial sector.  All of those things, he said, pointed towards the conclusion that he was a genuine student in Australia, he only intended to stay in Australia temporarily until he had completed his study and he then wished to return to India where he would establish a business.

6. The Tribunal’s reasons for decision demonstrate that it took all of the matters about which the applicant complains into account, save perhaps for the question of the fees that had been paid by the applicant for his study.  But all of the other matters had been taken into account by the Tribunal and indeed most of them accepted by the Tribunal.  The Tribunal commented on his excellent attendance record and the like.  But for other reasons expressed in the Tribunal’s decision, it reached the conclusion that he was not a genuine entrant for the purposes of the visa criteria.  The Tribunal was particularly concerned with what the Tribunal considered to be the disjointed nature of the streams that the applicant had chosen to study whilst he was in Australia.  There were some other matters.  They are set out usefully in the first respondent’s written submissions.

7. The applicant has not filed any evidence which would permit this Court to reach a conclusion that the way in which the Tribunal conducted its hearing might give rise to an apprehension of bias on the part of the Tribunal.  The tests for concluding that a decision-maker has demonstrated apprehended bias are well-known, and I need not repeat them.  What is apparent from the authorities is that it is rarely, if ever, the case that a court can reach a conclusion about apprehended bias, or actual bias, from the reasons for decision alone.  Ordinarily extraneous matters to the reasons for decision are necessary so that the Court can identify the particular circumstances from which it is said the relevant apprehension springs.  There is none of that here. 

8. Indeed, in the course of his oral submissions, the applicant indicated that he simply wanted more time so as to complete his study here in Australia.  He said that the current course of study in which he is engaged will finish at the end of April. 

9. Despite my efforts to have him identify error in the Tribunal’s decision, it became apparent from his oral submissions that the applicant’s contention is simply that he disagrees with the Tribunal’s decision generally.  On one occasion he was given to say that there not much wrong with the Tribunal’s decision at all.

10. The remaining two grounds characterised in the application for review as “jurisdictional error” add nothing to the debate.  The application for review suggests that the Tribunal made a jurisdictional error:

    …in considering social and economic ties to country of origin, India, applicant has strong incentive to return to India because his child and wife lives permanently in India.  The applicant maintained that he had close personal ties with his family in India, he had returned to India on five occasions since his initial arrival in 2011.  The applicant also submits that on each occasion he had remained home for a month.

11. The Tribunal carefully considered the applicant’s ties to India.  It took into account the applicant’s submissions that because of the ties that he had to India, the Tribunal might be comforted and could easily conclude that he had no incentive to remain in Australia and that he intended to return to India when his study was complete.  However, the Tribunal concluded that notwithstanding those matters, it could not be satisfied of the relevant visa criteria.  Indeed, the Tribunal suggested that it was notwithstanding those ties that he had to India that the applicant probably sought to remain in Australia.  In that respect, the Tribunal thought it of some significance that the applicant intended to have his wife and child join him in Australia from India.

12. When I commenced these reasons I described this application as an abuse of process.  In my view, it is, because the applicant does not attempt to demonstrate that the Tribunal’s decision is affected by jurisdictional error, but rather he simply seeks more time to remain in Australia.  In those circumstances, the application is plainly an abuse of process.

13. That aside, having regard to the Tribunal’s decision set out in its reasons, it is clear that the Tribunal’s decision is unaffected by jurisdictional error.  The Tribunal has plainly considered each of the matters raised for consideration by the applicant: it has considered carefully the relevant visa criteria and the relevant Ministerial Direction to which it was bound to have regard.  There is nothing in the Tribunal’s reasoning that suggests that it misapplied the law or misunderstood any of the facts that had been presented to it.  The merits of the applicant’s application is a matter entirely for the Tribunal and whether one agrees with the merits of the Tribunal’s decision or not, it is unaffected by jurisdictional error. 

14. In those circumstances it is a privative clause decision and this Court has no jurisdiction to interfere with it.  The application will be dismissed with costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 February, 2018.

Date: 2 February 2018