Singh v Minister for Immigration
[2017] FCCA 1901
•14 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1901 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Tribunal failed to consider relevant considerations – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), s.499 |
| Cases cited: Craig v South Australia [1995] HCA 85 |
| Applicant: | BALJINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 535 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 4 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 14 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughan |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the First Respondent: | Mr Cunynghame |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the Administrative Appeals Tribunal quashing the decision of the Administrative Appeals Tribunal made 25 February 2016 (oral decision) with written reasons dated 26 February 2016 (in AAT case number 1500125).
A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 18 December 2014 according to law.
The First Respondent pay the costs of the Applicant fixed in the sum of $7206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 535 of 2016
| BALJINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By amended application filed 11 November 2016 the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Migration and Refugee Division) (‘the Tribunal’) made 25 February 2016 (oral decision), written reasons for which were given on 26 February 2016. By that decision the Tribunal affirmed a decision of the delegate of the First Respondent (‘the Delegate’) to refuse to grant to the Applicant a Student (Temporary) (Class TU) subclass 572 visa.
The grounds of application are as follows:-
“1. The Tribunal erred in the exercise of its jurisdiction to review the primary decision of a delegate of the First Respondent by failing [to] have regard to matters which were, in the circumstances, mandatory considerations.
Particulars
(a) By reason of a Direction given by the former Minister pursuant to s 499 of the Act (Direction No. 53 - Assessing the genuine temporary entry criterion for Student visa applications) the Tribunal was required “to have regard to” certain matters, including the applicant's circumstances, his immigration history and any other relevant matter.
(b) The Tribunal did not have regard to these matters as required because it overlooked or ignored:
(i) The certification by Dr Thayavalappil-Kyparath, an Australian medical practitioner, that as at 25 March 2014, that the Applicant “is diagnosed with Depression”;
(ii) The contents of the Applicant's written statement provided to the Tribunal on the day of the hearing as to the reasons for his change of educational course.
2. The Tribunal constructively failed to exercise the jurisdiction conferred upon it to review the primary decision of a delegate of the First Respondent by failing to conduct a review of the primary decision or conducting its review of the primary decision unreasonably.”
The Applicant relies upon his amended application; an affidavit affirmed by Ms Catherine Farrell on 11 November 2016 which annexes a copy of the transcript of the Tribunal hearing on 25 January 2016; and written submissions filed on 11 November 2016.
The First Respondent seeks dismissal of the application and costs. The First Respondent relies upon written submissions filed on 12 January 2017.
There is before the Court in evidence the documents and material as contained in the Court Book filed 8 August 2016.
History
The background of the Applicant is accurately set out in the submissions filed on behalf of the Applicant and is set out hereafter:-
“2. The Applicant was born on 26 December 1990 in Tut Kalan, Punjab, India. He is an Indian national.
3. On 8 September 2013 the Applicant arrived in Australia. At that time he held a Student (Temporary) (Class TU) subclass 573 visa, on the basis of his enrolment to undertake an English Language Intensive Course for Overseas Students (‘ELICOS course’) and a Masters of Business Management. However he did not complete the ELICOS course and did not commence the Masters degree. He had difficulties in Australia, including with the ELICOS course, and became depressed.
4. On 25 March 2014 the Applicant attended Dr Anoop Thayavalappil-Kyparath at Medical One, a medical clinic in Sunshine. In a document written that day (which the Applicant later provided to the Department of Immigration and Border Protection (‘the Department’)) Dr Thayavalappil-Kyparath certified:-
“This is to certify that Mr Baljinder Singh attended the clinic today. Mr Baljinder Singh is diagnosed with Depression. Mr Baljinder Singh came as a student to Australia and (sic) currently studying English language course with Victoria University with intent of doing Master of Business Management. He recently been feeling low mood, no motivation, poor appetite and sleep for last couple of months. He misses his parents the most as he is been living out of India for first time and feels isolated and lonely. Mr Baljinder Singh has been commenced on medication for his symptoms of Depression.
I request the concerned authorities to grant a visit visa to his father Mr Mukhtair Singh, so he can visit Baljinder here in Australia and spend few months till he recover (sic) from his Depression.”
(errors in original).
The Court notes that following this attendance the Applicant consulted with his doctor in India by telephone from March 2014 to October 2014 and took medication for depression as described by that doctor.
“5. On 27 April 2014 the Applicant's enrolment in the Master's course was cancelled.”
The Court adds that in May 2014 the Applicant’s father came to Australia on a tourist visa and remained with the Applicant for two and a half months.
“6. On 5 May 2014 the Technical Institute of Victoria provided letters of offer of enrolment to the Applicant for a Certificate III in Commercial Cookery course to commence in July 2014 and subsequent Certificate IV in Commercial Cookery and a Diploma of Hospitality courses. He subsequently enrolled in these courses.
7. On 7 November 2014 the Department sent the Applicant a notice of intention to cancel his subclass 573 visa.”
The Court notes this visa was in fact cancelled on 15 January 2015.
“8. On 11 November 2014 the Applicant applied for a Subclass 572 visa.
9. On 13 November 2014 the Department requested that the Applicant provide further information in support of the application for a subclass 572 visa.
10. On 9 December 2014 the Applicant submitted further documents to the Department in response to the request of 13 November 2014, including two letters he wrote setting out the reasons for his change of course and the letter of Dr Thayavalappil-Kyparath of 25 March 2014.
11. On 18 December 2014 a delegate of the First Respondent refused the subclass 572 student visa application. The delegate stated that he was not satisfied that the Applicant was a genuine applicant for temporary entry and stay as a student, as required by clause 572.223(l)(a) of Schedule 2 of the Migration Regulations 1994 (Cth).
12. On 5 January 2015 the Applicant applied to the Migration Review Tribunal (as it was at that time) for review of the delegate's decision.
13. On 4 February 2016 the Tribunal sent the Applicant an invitation to attend a hearing of the review on 25 February 2016.”
The Court notes the invitation to attend a hearing also invited the Applicant to provide information, including a written statement addressing whether the Applicant was a “Genuine Temporary Entrant” by reference to Ministerial Direction No.53 which was enclosed with the hearing invitation letter.
“14. On 23 February 2016 the Applicant (through his newly appointed migration agent) requested a two week extension of the time for the hearing. The Tribunal refused this request.”
The Court notes it was already over 12 months since the delegate’s decision.
“15. The Tribunal (constituted by Member Antonio Dronjic), conducted a hearing on 25 February 2016 for less than an hour. At the hearing the Applicant was represented by his migration agent and gave evidence with the assistance of an interpreter. In addition shortly after the commencement of the hearing, the Applicant provided the Tribunal with a written statement and attachments, including a current letter of offer of enrolment from the Brighton Institute of Technology and certificates from a psychologist who had assessed him via telephone as having depression.
16. The Applicant's written statement provided further information about the Applicant's change of course, including that:-
a) The applicant has always loved cooking and India was not a good place to study this; there were not even government courses available to do so when he was there;
b) He always had the ambition to do this professionally but did not get the chance earlier;
c) By doing this course he will obtain practical knowledge and fundamentals involved from this study;
d) Food culture is growing everywhere including India, with shows like Masterchef;
e) His passion for cooking, as well as the demand in India, pointed him in the right direction to start a hospitality course;
f) This relates to his management qualification as he already has skills to start and manage his own, or enhance someone else's business;
g) He is from Jalandhar which is a metropolitan city full of five star hotels; after obtaining qualifications from Australia, he will have a lot of scope for work.
17. At the conclusion of the hearing the Tribunal member announced that he had decided to affirm the decision made by the Department, not to grant the Applicant a subclass 572 student visa.”
Tribunal Decision
The Tribunal correctly set out the matters required to be considered by it in the Statement of Decision and Reasons (‘the Decision Record’) of 26 February 2016 at paragraphs 16 to 20 as follows:-
“16. Having regard to the applicant's current proposed course of study, the relevant subclass in this case is Subclass 572.
17. The issue in the present case is whether the applicant meets the time of decision criterion in c1.572.223. Clause 572.223(1)(a) relevantly states:
(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
(b)…
18. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
• the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
• 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;
• if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
• 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.
19. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
20. Having regard to the applicant's stay of more than 53 weeks in Australia, the number of courses he commenced and cancelled, educational achievements, considerable gaps in his enrolment and studies is pointing clearly to the factors in the Minister's Direction No.53.”
The Tribunal then set out its finding on the evidence before it relevantly as follows:-
“22. I am not satisfied on the evidence before me that the applicant had a genuine interest in achieving a successful education outcome since arriving in Australia. I considered the applicant's claims that he was suffering from depression and was unable to adjust to life and study in Australia and the evidence provided in support of these claims. It appears that Medical reports from India are based on assessment during the telephone conversation between the applicant and medical practitioner from India. For that reason in (sic) give these reports limited weight. The report of 25 March 2014 was obtained from an Australian medical practitioner and it is stated that the applicant was given medication for his 'symptoms of depression'. No further and updated medical reports were provided from Australian medical practitioners. Despite being enrolled into Higher Education Sector, he did not even attempt any subjects or classes in this level of study.
23. I have considered the applicant's academic qualifications obtained in India and I am not satisfied that undertaking a Diploma in Hospitality course is related or relevant to the applicant's previously completed education. According to his own evidence, the reason for enrolling into Certificate III in Commercial Cookery was because it was a 'lower level course' that was recommended to him by his friends.
24. Based on the evidence before me I find that there are considerable gaps in the applicant's enrolments and studies in Australia. In the past, according to the decision record submitted by the applicant at the hearing, the DIBP cancelled his visa because he breached a condition imposed on his subclass 573 visa.
25. I have also had regard to the period of time the applicant has spent in Australia. Since arriving in Australia in September 2013 he did not travel back to India.
26. My concern is that he is applying for a student visa to circumvent the migration program and to maintain ongoing residence in Australia. Remaining in Australia is a legitimate aspiration for many international students after completing their studies in Australia. The appropriate way in which to explore such an option is through seeking a different visa to remain in Australia temporarily or permanently. The continued use of the student visa when it rises (sic) reasonable questions regarding the genuine student criterion is not.
27. On the basis of the above, and having considered the applicant's circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet c1.572.223(1)(a).”
Consideration
Ground 1
An administrative Tribunal commits jurisdictional error when it fails to take into consideration matters which it is bound to consider.[1] The combination of s.499 of the Migration Act 1958 (Cth) (‘the Act’) and Direction No.53 require the Tribunal to “have regard to” [2] those considerations set out in Ministerial Direction No. 53 and which are relevant to the decision.
[1] Craig v South Australia [1995] HCA 85; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, 39-40.
[2] SZMGW v Minister for Immigration [2009] FMCA 88, 53-59
The weight to be given to any one factor or group of factors is a matter for the Tribunal, and will vary from case to case.
The Applicant argued the Tribunal misapprehended the evidence before it as to the Applicant’s depression and as to his reasons for changing his course, thereby constituting “a jurisdictional error by a failure to consider relevant material”. The Applicant referred to the Tribunal’s finding that there were “considerable gaps in the [Applicant’s] enrolment and studies” and the Tribunal’s related and subsequent analysis of the Applicant’s claims to have suffered depression, which omitted any reference to the actual diagnosis that the Applicant suffered depression, as made by Dr Thayavalappil-Kyparath, which the Applicant claimed caused such “gaps” in his “enrolment and studies”.
The Applicant argued that it should be inferred that the Tribunal overlooked this diagnosis. As a consequence the Tribunal did not accept the Applicant’s claimed depression as the reason for the length of time he had remained in Australia without educational achievements and for the significant gap in his study.
Additionally the Applicant argued the Tribunal referred only to a brief part of the Applicant’s oral evidence about his reason for enrolling in a Diploma of Hospitality course. It did not refer at all to any of the matters set out in his written statement. Again, the Applicant argued that it should be inferred that the Tribunal overlooked those relevant matters.
As submitted by the Applicant, the Tribunal limited its consideration of the Applicant’s change of course by reference to the statement that it was “not satisfied that that undertaking a Diploma in Hospitality course is related or relevant to the applicant’s previously completed education”. That is not the issue that Direction No. 53 requires the Tribunal “to have regard to”. Further, Direction No. 53 requires decision makers to “allow for reasonable changes to career or study pathways”, which the Tribunal did not mention. The Tribunal’s consideration of the Applicant’s claims and material was lacking in any necessary particularity and it is not evident that relevant material was considered by the Tribunal. That failure to consider relevant material was a jurisdictional error.
Ground 2
The Tribunal ignored the relevant matters of the diagnosis of depression and the evidence in the Applicant’s written statement as to his reasons for the Applicant’s change of course. These were important matters and in unreasonably dealing with the case in this manner, there was a failure “to complete the exercise of jurisdiction embarked upon”.[3]
[3] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 14 August 2017
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