Singh v Minister for Immigration

[2017] FCCA 880

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 880

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth):cl. 572.223

Applicant: BHUPINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 905 of 2016

Judgment of: Judge Vasta

Hearing date: 24 April 2017

Date of Last Submission: 24 April 2017

Delivered at: Brisbane

Delivered on: 24 April 2017

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application filed 30 September 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs of and incidental to this proceeding fixed in the sum of $5,800.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 905 of 2016

BHUPINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 30 September 2016, the Applicant, Bhupinder Singh, is asking this Court to review a decision of the Administrative Appeals Tribunal.  That Tribunal itself affirmed a decision of the delegate of the Minister for Immigration and Border Protection not to grant the Applicant, Mr Singh, a further student visa. 

2. In short compass, the Applicant arrived in this country in 2009 to study.  Since he has been in this country, he has successfully completed a certificate IV in frontline management, a diploma of management, an advanced diploma of management, a diploma of business, a certificate IV in hospitality, which was changed to a certificate IV in commercial cookery, and a diploma of hospitality. 

3. Whilst those may have been completed in the years 2009 to 2014, they are all very low-level courses and have not really advanced the Applicant in any meaningful way. 

4. The Tribunal also had information that the Applicant has had 10 previous confirmations of enrolment cancelled for reasons including non-payment of fees, deferment and non-commencement of studies. 

5. The Applicant has also changed courses and education-providers and has deferred on two occasions, stating that his parents were ill.  There were no fees paid in relation to his latest course, which was an advanced diploma of leadership and management. 

6. The Applicant told the Tribunal that he wanted to open three stores in India that he would call “Oz Express Burgers” and that he wanted to enrol in the advanced diploma of leadership and management to help him further his dream of opening these franchise stores in India. 

7. The Tribunal had to look at whether or not the Applicant met the criterion in cl.572.223, which 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.”

8. The fact is that the Applicant has, at the time that the Tribunal was looking at the matter, been in Australia for well over seven years and had not really advanced at all in his studies.  This contention that he wanted to open a chain store called Oz Express Burgers seems to be very much fanciful.

9. The Tribunal found that the Applicant was not genuine person and that he did not truly want to “stay in Australia temporarily”. Not surprisingly,  it decided to affirm the decision. 

10. The Applicant lodged this application, which had four grounds.  I will get to those grounds very shortly. 

11. On 19 December he appeared before me, where I, through the interpreter, explained what needed to occur.  I explained to him my role and that this was not a matter where I could decide on the merits whether he should have a visa or not. 

12. But I told him I had to look at whether the Tribunal had undertaken its functions in a matter according to law, whether or not I agreed with their final decision or not.  I then explained to him the reason that I needed to have written submissions, and he said to me, through the interpreter, that he understood exactly what needed to happen. 

13. The written submissions were not filed, and he has given me the excuse today that his lawyer told him that he did not need to file them and he could just simply turn up and plead his case.  There is no lawyer that has ever been on the record in relation to this matter, and no lawyer has turned up today. Therefore I have to look at face value as to what the grounds of this application are. 

14. Ground one is as follows:

    “1. The Second Respondent failed to properly interpret clause 572.223(1)(a) of the Migration Regulations 1994 which was an error of jurisdiction;”

15. I have had a look at the decision made by the Tribunal.  I cannot find any error in their interpretation of that particular clause.  The Tribunal had to be satisfied that this person was a genuine entrant into Australia for the purpose of study and then someone who would use the benefits of the study and return home. That was the interpretation, and that was a proper interpretation.  There is therefore no merit in ground one. 

16. Ground two is as follows:

    “2. The Second Respondent failed to take relevant considerations into account which was an error of jurisdiction;

17. Again the Applicant has not expanded upon that, but I can see no matters that the Tribunal had to mandatorily consider that they did not consider.  Therefore there is no merit in this ground. 

18. Ground 3 states:

    “3. The Second Respondent took irrelevant considerations into account which was an error of jurisdiction;”

19. Again this ground was not further expanded upon, and I have had a look at the decision. There is no matter where the tribunal was prohibited from considering yet still considered in their reasons.  Therefore there is no merit in this ground. 

20. Lastly Ground four is expressed as follows:

    “4. The Second Respondent failed to provide the Applicant with procedural fairness and natural justice by failing to recognise the requirement for an interpreter which led to a jurisdictional error. 

21. With regard to this ground the Tribunal has, it does not appear, spoken to any interpreter.  However, it would seem that this is a person who has been dealing with English as the language in which he has studied for the last seven years and has completed the courses that he was meant to complete and he wanted to complete in English.

22. He has asked for an interpreter here, and I have allowed him to have one.  However, he has not told me how the lack of an interpreter has in any way, shape or form been a downfall. 

23. I will quote from the submissions of the Respondent in this matter, because I do agree with these submissions.  They are that:

    “32. The Tribunal was required to comply with its procedural fairness obligations under Division 5 of Part 5 of the Act, which by virtue of s375A of the Act, is taken to be an exhaustive statement of the requirements of natural justice. The Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review in accordance with s 360 of the Act.  There was no interpreter present at that hearing and the first respondent has taken this ground to constitute an allegation that in those circumstances, the invitation under s 360 was not ‘real and meaningful’. 

    33. The Tribunal will have failed to comply s 360 of the Act if the applicant was ‘effectively precluded’ from taking part in the hearing because he could not speak English and an interpreter was not provided.  However, the first respondent submits that this is not the case in this matter and the evidence before the Court does not permit such an interference being drawn.”

24. The Applicant expressly stated to the Tribunal that he did not need an interpreter, and again the Tribunal’s invitation to attend the hearing said “Please advise us at least seven days before the hearing if you require an interpreter”. 

25. He responded to that hearing invitation and again expressly stated that he did not require an interpreter.  There was no evidence that the Applicant made any request for an interpreter during the hearing, and there is no evidence before me that there was any form of unfairness or lack of natural justice during that Tribunal hearing. 

26. The Tribunal decision does show that the Applicant answered the questions that were asked of him by the Tribunal.  There is no difficulty that is recorded by the Tribunal in their reasons. 

27. Realistically, the Applicant has now been in Australia for eight years studying courses in English and he wants to continue to study further in English. It would seem to me that there is no merit in that particular ground.  Therefore ground 4 must also fail.

28. I dismiss the application. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 24 May 2017