SINGH v Minister for Immigration

[2017] FCCA 1198

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1198

Catchwords:
MIGRATION – Student visa – show cause procedure – no jurisdictional error by Tribunal.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.357A, Div.5 of Pt.5

Migration Regulations 1994 (Cth), cls.572.222, 572.223 of Sch.2

Cases cited:

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Spencer v Commonwealth of Australia (2010) 241 CLR 118

First Applicant: KULJEET SINGH

Second Applicant: NAVDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 186 of 2016

Judgment of: Judge Wilson

Hearing date: 1 May 2017

Date of Last Submission: 1 May 2017

Delivered at: Melbourne

Delivered on: 1 May 2017

REPRESENTATION

First Applicant in person

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed 26 November 2015 is dismissed.

2. The applicants pay the costs of the first respondent fixed in the sum of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 186 of 2016

KULJEET SINGH

First Applicant

NAVDEEP KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

Introduction

1. These are my reasons for judgment in this matter. Pursuant to orders made by a Registrar of this court on 21 June 2016, this case was ordered to proceed under the show cause procedure pursuant to r.44.12 of the Federal Circuit Court Rules2001 (Cth) (“the rules”).

2. On a show cause hearing, the court is empowered to dismiss the entire proceeding if satisfied that the applicant has not raised an arguable case. Such a conclusion is not to be lightly reached as the High Court said in Spencer v Commonwealth of Australia[1] and as did the

   
   

   Full Court of the Federal Court of Australia in AMF15 v Minister for Immigration and Border Protection.[2] On 7 October 2016 the applicants were required to file written submissions. They did not do so.

   
   

   The Minister filed written submissions[3] in accordance with the time ordered, that is to say prior to 14 October 2016.

   [1] (2010) 241 CLR 118.

   [2] [2016] FCAFC 68.

   [3] Outline of the first respondent’s submissions filed 13 October 2016.

Synopsis

1. For the reasons that follow, in my judgment the applicants have not raised an arguable case in this application for judicial review.

   
   

   The applicants have not shown an arguable basis for contending that the Administrative Appeals Tribunal (“the Tribunal”) fell into jurisdictional error. The applicant said today that he did not contend that there was any error by the Tribunal.

Short factual narration

1. On 3 February 2016 the applicants commenced this proceeding.

   
   

   In it, they sought judicial review of a decision made by the Tribunal on

   
   

   29 October 2015, pursuant to which the Tribunal affirmed the decision made by the Minister’s delegate on 27 November 2014. In essence,

   
   

   the delegate decided to refuse to grant the first applicant’s

   
   

   Student (Temporary) (Class TU) visa, for which he applied on

   
   

   13 June 2014. The second applicant is the first applicant’s spouse.

   
   

   In these reasons, I refer to the first applicant as the applicant, unless it is necessary to refer differently to his wife.

2. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Sch.2 of the
   Migrations Regulations 1994 (Cth) (“the regulations”). Specifically, the delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily, having regard to his lack of academic progress, his study history, his circumstances and his immigration history.

3. The applicant applied to the Tribunal for a merits review. The Tribunal invited the applicant to appear before it and to present arguments on

   
   

   29 October 2015. The Tribunal sought further evidence from the applicant, including –

   a)a copy of his then-current certificate of enrolment;

   b)evidence that he was currently enrolled, or had an offer of enrolment in a course;

   c)evidence of past studies in Australia; and

   d)an explanation for any gaps in his enrolment.

4. The applicant’s then-representative sent to the Tribunal the applicant’s submissions, along with further documentation. In essence,

   
   

   the applicant asserted he was a genuine student and that study gaps were explained on the basis that medical conditions beyond his control affected his wife. The applicant and his wife duly appeared before the Tribunal on 29 October 2015. An interpreter skilled in the Punjabi and English language assisted. The Tribunal affirmed the decision of the delegate. It found that it was not satisfied that the applicant –

   a)intended to genuinely stay in Australia temporarily, with the consequence that he did not meet cl.572.223(1)(a) of Sch.2 of the regulations; or

   b)held a current certificate of enrolment, with the consequence that he did not meet cl.572.222 of the regulations.

5. The Tribunal identified that the relevant subclass in this case was 572. In its reasons for decision at paragraph 10 the Tribunal recited that
   at the hearing on 29 October 2015 the Tribunal informed the applicant that –

   a)the applicant was to supply a current certificate of enrolment;

   b)it was a mandatory criterion for all subclasses of the Class TU visa, except 580, that the applicant provide to the Tribunal a certificate of enrolment that related to undertaking a course of study, save for circumstances irrelevant to this application;

   c)clause 572.222 requirements were mandatory;

   d)prior to the hearing, the Tribunal had requested the applicant to provide a copy of the relevant certificate of enrolment; and

   e)it was a mandatory requirement that any certificate of enrolment had to be current and a cancelled certificate was not sufficient.

6. The Tribunal also recorded in its reasons for decision that the applicant did not at the hearing have a current certificate of enrolment
   and therefore he was not able to provide one to the Tribunal.
   The Tribunal recorded that the applicant told the Tribunal that he last studied in May or June 2014. The Tribunal found that the applicant did not have and had not been supplied with a current certificate of enrolment for a course of study and that he therefore did not meet cl.572.222 of Sch.2 of the regulations. The Tribunal found that the second applicant did not have a current certificate of enrolment and also was unable to meet the criterion of cl.572.222 of Sch.2 of the regulations.

7. The Tribunal went on to consider whether the applicant satisfied the criterion of being a “genuine applicant for entry and stay as a student” in cl.572.223(1)(a) of the regulations. The Tribunal referred to Ministerial Direction 53 that required the Tribunal to specifically consider the four matters to which the Tribunal referred in paragraph 18 of its reasons for decision. The Tribunal mentioned that the factors in Ministerial Direction 53 were not a checklist but rather were a guide for decision-makers when weighing up the applicant’s circumstances as a whole and when reaching a finding about whether the applicant satisfied the criterion of being a genuine temporary entrant.

8. Ultimately, the Tribunal found that the applicant did not meet cl.572.223(1)(a) of the regulations because the Tribunal was not satisfied the applicants intended, genuinely, to stay in Australia temporarily. That was recorded in paragraph 38 of its reasons for decision. In reaching that finding, the Tribunal made a collection of factual findings recorded between paragraphs 23 to 36 of its reasons for decision. Those factual findings may be distilled as follows –

   a)since 2009, when the applicant arrived in Australia, the applicant held student visas or associated bridging visas, none of which prevented him from studying;

   b)the applicant completed about two years of study only and had not studied since May 2014, about 16 months prior to the Tribunal hearing in October 2015;

   c)the applicant’s bridging visa, from June 2014, carried a “no work condition”;

   d)the applicant had no clear idea of a course he should study;

   e)the applicant expressed his interest in undertaking a course of study at a level below that of his existing qualifications and as a result the Tribunal was not satisfied that the applicant’s proposed course of study held any substantial value;

   f)

   the applicant was unable to explain why he had not used the

   
   

   16 months since June 2014 to make inquiries about courses that might hold value to his future;

   g)the applicant was unable to respond to the proposition that he did not have any real study plan;

   h)the applicant was unable to account for about 40 months, since June 2009, during which he was not prevented from studying but during which he was not, in fact, studying; and

   i)the two applicants had no incentive to return to India.

9. The Tribunal said that the fact that the applicant had not studied since mid-2014 and that since 2009, significant periods of time elapsed during which he had not studied, told that the applicant’s proposed stay in Australia was not to study. The Tribunal recorded that neither applicant had a current certificate of enrolment nor could either afford to obtain one. It said that indicated an inability to remain enrolled so as to complete courses. The Tribunal affirmed the delegate’s decision not to grant the visa to the applicant.

Grounds of application for judicial review

1. The applicant relied on three grounds of review, namely –

   1. The Administrative Appeals Tribunal (Tribunal) did not correctly interpret cl. 572.223 of Schedule 2 to the Migration Regulations 1994.

   2.  The Tribunal in its assessment of the genuine temporary entrant criterion as required by cl. 572.223 took into account irrelevant considerations and did not consider relevant considerations.

   3.  Failure of the Tribunal to properly interpret and assess cl. 572.223 resulted in a denial of an opportunity to be heard and the breach of principles of natural justice.[4]

   [4] Application filed 3 February 2016 at p.4.

2. Those grounds of review were not supported with particulars or written submissions of the way the applicant asserted cl.572.223 of the regulations was allegedly incorrectly interpreted. Nor was the so-called denial of procedural fairness allegation developed in any way. Be that as it may, let me consider them each separately.

Ground 1 

1. Despite there being no substantive basis asserted, in relation to ground 1 the Minister’s written submissions helpfully distilled the matters that the Tribunal was required to consider when applying cl.572.223(1)(a) of Sch.2 to the regulations. The iteration of cl.572.223 of the regulations applicable to the visa application in this case was the iteration that commenced on 24 March 2012. The Tribunal recorded its terms in paragraph 17 of the reasons for decision. That was the correct version applicable to the visa application made on 13 June 2014, as was the visa application in this case. In other words, the Tribunal applied the correct version of cl.572.223 of Sch.2 to the regulations. Similarly, the Tribunal identified the relevant direction,

   
   

   being Ministerial Direction 53, and the Tribunal correctly summarised its operation between paragraphs 17 to 19 of the Tribunal’s reasons for decision.

2. The Tribunal correctly considered the whole of the applicant’s evidence when assessing whether cl.572.223 of the regulations and

   
   

   Ministerial Direction 53 had been met. In doing that the Tribunal considered relevant matters and did not take into account irrelevant matters. Contrary to the applicants’ contentions, in relation to ground 1 the Tribunal asked itself the correct question and did not misinterpret the legislation or subordinate legislation when undertaking its statutory task. In view of the fact that the applicant gave no elaboration to his real grievance, in respect of ground 1 it was not possible to tell whether the applicant was, in truth, complaining that the Tribunal had somehow erroneously considered cl.572.222 of the regulations, rather than cl.572.223. Anticipating that the applicant may have been complaining about cl.572.222 of the regulations, the Minister’s solicitors prepared submissions to the effect that the Tribunal correctly found that cl.572.222 of the regulations was not satisfied with the consequence that the Tribunal’s interpretation of that clause revealed no error of law.

3. It is important to keep in mind that the applicant himself conceded that neither the applicant nor his wife held a current certificate of enrolment when the Tribunal made its decision. The Tribunal had ample basis for concluding as it did. In my view, no error was made in interpreting cls.572.222 or 572.223 of the regulations. As a result, ground 1 was not arguable.

Ground 2

1. As with ground 1 the applicant did not provide particulars for his contention that the Tribunal took into account irrelevant considerations. He did not say what those allegedly irrelevant considerations were.

   
   

   A decision-maker will fall into error in taking into account an irrelevant consideration if the decision-maker was obliged not to take a particular matter into account by the terms of the relevant legislation. As long ago as 1986 the High Court said as much in Minister for Aboriginal Affairs v Peko-WallsendLtd.[5] In this case the matters to be taken into account when assessing whether the applicant was a genuine applicant for entry and stay as a student were set out in cl.572.223(1)(a) of the regulations. It seemed to me that the Tribunal did, in fact, do as the law required it to do by giving active, intellectual consideration to the matters set out in that clause. It did so at paragraphs 22 to 28, 29 to 32 and 33 to 36. The Tribunal did, as cases such as Minister for Immigration and Citizenship v Khadgi,[6] said it was required to do. I detected no error under this ground. In other words, I reject the contention that the Tribunal took into account irrelevant considerations.

   [5] (1986) 162 CLR 24.

   [6] (2010) 190 FCR 248.

Ground 3

1. The applicant did not say in what way he was denied procedural fairness beyond the general and unspecific contentions that he was not given an opportunity to be heard. But it seemed that he was, in fact, given such an opportunity and was, in fact, heard. The applicant was heard on 29 October 2015. Prior to that hearing, the applicant availed himself of the invitation extended to him to provide submissions and documents. It could scarcely be said that the applicant was unaware that the Tribunal was particularly interested in whether the applicant had a current certificate of enrolment, as the fact of his having one bore directly on the issue of whether the applicant was able to meet the criteria for the relevant visa.

2. The Tribunal’s letter to the applicant dated 8 October 2015 pointed out to him the importance of his producing a current certificate of enrolment if he had one. He did not have one, as he admitted. Indeed, he admitted as much to me today. It must be recalled that s.357A of the Migration Act1958 (Cth) (“the Act”) stipulates that Div.5 of Pt.5 of the Act is an exhaustive statement of the natural justice requirements.

   
   

   In my view the applicant was unable to point to any way that Div.5 of the Act was contravened. I detected none.

3. It seemed to me that ground 3 was not arguable. Today, the applicant said –

   If you give me one more chance I will not fail to comply.

4. That is not a ground of review nor does it demonstrate jurisdictional error.

Conclusion

1. In my judgment the applicant did not have an arguable case that the Tribunal fell into jurisdictional error under any of the three grounds of his application filed in this court on 3 February 2016.

2. I dismiss this proceeding and I order the applicants to pay the Minister’s costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Associate: 

Date:  5 June 2017