SINGH v Minister for Immigration

[2017] FCCA 2977

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2977

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Visitor (Class FA) (Subclass 600) visa – where Applicant made the application for visa more than 28 days after the relevant day – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.357A, 359A

Migration Regulations 1994 (Cth), cl.600.223, 600.25, criteria 3001, 3004, 3005

Cases cited:

SZFDE v MIAC [2007] HCA 35.

Applicant: GURWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 439 of 2017

Judgment of: Judge Hartnett

Hearing date: 9 November 2017

Delivered at: Melbourne

Delivered on: 9 November 2017

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First  Respondent: Mr Murano

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 438 of 2017

GURWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed by the Applicant on 6 March 2017 wherein the Applicant applies for judicial review of a decision of the Second Respondent (‘the Tribunal’) made on 16 February 2017.  The Tribunal affirmed a decision of the First Respondent by his delegate not to grant to the Applicant a visitor (Class FA) (Subclass 600) visa (‘the visa’).

2. This is a show cause hearing.  The grounds of application are 12 in number.  The Applicant is self-represented.

3. Grounds 1 to 9 of the application essentially set out the Applicant’s visa history in Australia.  In particular, grounds 8 and 9 allege that the Applicant’s migration agent did not give proper advice and acted carelessly.  No evidence is before the Court in respect of this allegation and nor would these grounds establish jurisdictional error as no fraud was committed on the delegate or the Tribunal in the sense described in the decision of SZFDE v MIAC [2007] HCA 35.

4. Ground 10 asserts that the Tribunal failed to consider the criteria for the grant of the visa.  This may be construed as a submission that the Tribunal erred in how it applied the law.  By ground 11, the Applicant submits that the Tribunal failed to put him on notice of “issues dispositive” to the Tribunal’s decision.

5. By ground 12, the Applicant submits that he was denied procedural fairness.

6. The response to the application is that the First Respondent opposes the application for an order to show cause on the grounds that the Tribunal decision dated 16 February 2017 is not affected by jurisdictional error.  The First Respondent seeks the application be dismissed and the Applicant pay the First Respondent’s costs.

7. The Court has before it the evidence as contained in the Court Book filed on 13 September 2017 and the First Respondent’s written submissions.  No written submissions were filed by the Applicant but he was given an opportunity at the hearing this day to make oral submissions.

Background

1. The Applicant is a citizen of India.  On 7 October 2016, he applied for the visa with the assistance of Handa Immigration Specialists, registered migration agents.

2. On 11 October 2016, the Applicant was notified of the delegate’s decision to refuse to grant the visa. The delegate was not satisfied that the Applicant met cl.600.223(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) because he did not satisfy the Schedule 3 criteria to the Regulations (‘criterion 3001’). The Applicant did not satisfy criterion 3001 as he applied for the visa more than 28 days after 12 March 2016, being the date on which the last substantive visa he held ceased.

3. On 25 October 2016, the Applicant applied to the Tribunal for review of the delegate’s decision. Before the Tribunal, the Applicant continued to be represented by his migration agent. A copy of the delegate’s decision was attached to the application to the Tribunal.

4. On 14 February 2017, the Tribunal received written submissions dated 13 February 2017 and various documents in support of the visa application.  The written submissions were accurately summarised in the First Respondent’s written submissions as follows:-

   a)under cl.600.25 of the Regulations, the Tribunal was required to consider whether exceptional circumstances exist for the grant of the visa;

   b)as the Applicant was unable to satisfy the “Schedule 3 criteria”, the Tribunal was required to consider any “compelling reasons” for not applying the criteria;  and

   c)the Tribunal was required to consider whether the Applicant had “complied substantially” with the conditions of the last substantive visa he held, and that the Applicant intends to stay in Australia temporarily.

5. On 15 February 2017, the Applicant appeared before the Tribunal to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The Applicant was represented in relation to the review by his registered migration agent.

6. The Tribunal correctly set out the issue in the case before it, which was whether the Applicant satisfied cl.600.223 of the Regulations. The Tribunal only considered whether the Applicant satisfied criterion 3001, and not criteria 3003, 3004 or 3005 of Schedule 3. There is no error in the Tribunal’s approach because, if the Applicant could not satisfy criterion 3001, then the Applicant’s ability to satisfy criteria 3003, 3004 or 3005 of Schedule 3 would not have resulted in him being granted the visa.

7. Criterion 3001 requires that the visa application be validly made within 28 days after the “relevant day”. In the Applicant’s circumstances, the relevant day was the last day on which the Applicant held a substantive visa.

8. Based on the Applicant’s own evidence and the Department of Immigration and Border Protection record, the Tribunal noted in paragraph 10 of the Statement of Decision and Reasons (‘the Decision Record’) that the Applicant last entered Australia on 20 February 2015 as the holder of a Student (Subclass 572) visa that was granted on 12 November 2013 and which ceased on 12 March 2016.  The Tribunal was therefore satisfied that, at the time he applied for the Subclass 600 visitor visa on 7 October 2016, the Applicant did not hold a substantive visa.  Further, on the material before the Tribunal, the last such visa the Applicant held was not a Subclass 403 or 426 visa.

9. The Tribunal correctly found that, as the visa application was not made within 28 days of the relevant day, the Applicant did not satisfy criterion 3001. For that reason, the Applicant did not satisfy cl. 600.223(2)(b) and, it followed, did not meet cl.600.223 as a whole. On the evidence before it, this was the only finding open to the Tribunal.

10. The Tribunal was also correct to find that any purported compelling circumstances raised by the Applicant did not bear on whether he was able to satisfy cl.600.223 of Schedule 2 of the Regulations as there was no provision in the Regulations allowing the requirements of cl.600.223 or criterion 3001 to be waived.

Consideration

1. No error of law is made out.

2. The Applicant was very clearly on notice of the issues dispositive to the Tribunal’s decision.  The delegate’s Decision Record dated 11 October 2016, a copy of which was provided by the Applicant to the Tribunal, demonstrated that the Applicant was notified that his visa application was refused for the same reasons as those on which the Tribunal relied to affirm the decision, namely, that:-

   a)his last substantive visa ceased more than 28 days before he lodged his visa application on 7 October 2016;  and

   b)accordingly, he did not satisfy cl.600.223(2)(b) of Schedule 2 or criterion 3001.

3. In respect of the ground alleging a denial of procedural fairness, Division 5 of Part 5 of the Migration Act 1958 (‘Cth’) (‘the Act’) provides a statutory regime of natural justice. Section 357A of the Act states that Division 5 of Part 5 is “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.

4. There was no breach of procedural fairness. The Tribunal complied with s.359A of the Act as the evidence relied upon by the Tribunal, to the extent it consisted of anything other than gaps in the Applicant’s evidence, was evidence the Applicant gave during the process that led to the decision under review.

5. The Tribunal complied with its obligation to invite the Applicant to attend a hearing and the Applicant did so attend the hearing on the appointed date with his representative.

6. The application must be dismissed and costs will follow the event

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 1 December 2017