Singh v Minister for Immigration

[2017] FCCA 765

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 765

Catchwords:
MIGRATION – Student visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to take relevant considerations into account and failed to find that there were exceptional reasons justifying the grant of a visa to the applicant.

Legislation:

Migration Act 1958, s.474

Migration Regulations 1994, cls.572.227 and 572.227A of sch.2

Migration Legislation Amendment (2016 Measures No.1) Regulation 2016, reg.2, item 32 of sch.4 and item 2 of sch.5
‘Student Visa Assessment Levels’ IMMI 14/014 (legislative instrument F2014L00752)

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Mann v Minister for Immigration & Citizenship (2009) 179 FCR 581

Applicant: GURSEVAK SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 228 of 2016

Judgment of: Judge Cameron

Hearing date: 3 March 2017

Date of Last Submission: 3 March 2017

Delivered at: Adelaide

Delivered on: 3 March 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A. Cunynghame of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 228 of 2016

GURSEVAK SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia in, it seems, February 2015 as the holder of a subclass 600 visitor visa. On 21 May 2015 he applied to the Department of Immigration and Border Protection (“Department”) for a Student (Temporary) (Class TU) Vocational Education and Training Sector subclass 572 visa.  That application was refused by a delegate of the first respondent (“Minister”) on 29 June 2015.  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. The criteria for the grant of a subclass 572 visa were set out in pt.572 of sch.2 to the Migration Regulations 1994 (“Regulations”). One of the criteria which the applicant had to satisfy at the time a decision was made on his application was cl.572.227. At all material times, it relevantly provided:

   If:

   (a)  the application was made in Australia; and

   (b)  subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

   (c)  at the time of application, the applicant met the requirements of clause 572.211:

   (i)as the holder of a visa of one of the following classes or subclasses:

   …

   (T)     Subclass 600 (Visitor); …

   …

   the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.

2. Clause 572.227A provided that the highest assessment level did not include assessment level 1.  The assessment level applicable to the applicant was assessment level 3 which was the highest assessment level prescribed in connection with subclass 572 visas: ‘Student Visa Assessment Levels’ IMMI 14/014 (legislative instrument F2014L00752).

3. Together, cls.572.227 and 572.227A provided that an applicant for a subclass 572 visa who made the application in Australia and, like the applicant, was subject to an assessment level higher than assessment level 1 for their course of study, had to establish or demonstrate an exceptional reason for the grant of that visa.

4. Part 572 of sch.2 to the Regulations was repealed on 1 July 2016. However, the provisions repealing this visa subclass do not apply to visa applications made before 1 July 2016: reg.2, item 32 of sch.4 and item 2 of sch.5 to the Migration Legislation Amendment (2016 Measures No.1) Regulation 2016.

Background facts

Visa application

1. The applicant indicated in his visa application form that his proposed course of study in Australia was a Diploma of Business.  He indicated that he was a motor mechanic and that he wished to improve his business skills in order to open a workshop and a spare parts business in India.

2. On 26 May 2015 the Department wrote to the applicant in the following terms:

   As you are an Assessment Level 3 applicant, you are not able to be granted an initial student visa in Australia unless exceptional reasons exist for the grant of the visa. 

   Exceptional reasons may include but are not limited to:

   ·the grant of the visa would be of benefit to Australia

   …

   Please provide a statement explaining your exceptional reasons for the grant of an initial student visa in Australia and any supporting evidence

3. In his response of 22 June 2015 the applicant submitted that the grant of the visa would be of benefit to Australia because:

   a)there was a shortage of motor mechanics in Australia and he would provide these services to the Australian work force;

   b)he could train others to be mechanics;

   c)his tuition fees went into the Australian education system which, in turn, assisted the Australian economy.  Whilst working in Australia he would also be a taxpayer;

   d)he would do volunteer work in the field;

   e)he would work on establishing business ventures with Australians in, it seems, India; and

   f)his sister, who was an Australian citizen, required family support as she was about to have her second child and would, in due course, have to return to full-time work.  If he were granted the visa he would be able to help his sister.

4. On 29 July 2015 the delegate refused the applicant’s visa application because he was not satisfied that the applicant had established exceptional reasons for the grant of the visa as required by cl.572.227.

Tribunal proceedings

1. The applicant applied to the Tribunal for a review of the delegate’s decision and provided various documents in support of his application including, relevantly, confirmations of enrolment in Certificate III and Certificate IV in Commercial Cookery and a Diploma and Advanced Diploma in Hospitality.  He also provided evidence that he had been working in an Indian restaurant as a cook since 1 January 2016.

2. The applicant appeared before the Tribunal on 23 June 2016 and made the following claims:

   a)had always been interested in cooking as a hobby and had become more interested in the hospitality industry;

   b)he was midway through the Certificates III and IV in Commercial Cookery and proposed to undertake an Advanced Diploma of Hospitality;

   c)he did not apply for the student visa offshore because he had been advised by the Department that he could make the application while in Australia;

   d)when the Department advised him that he could apply for the visa in Australia, it had said nothing about “exceptional reasons”.  He had relied on the Department’s advice in making his application and had done the “right thing”; and

   e)he had been misled by the Department and this constituted an exceptional reason for the grant of the visa.

3. In considering whether there were exceptional reasons justifying the grant of the visa, the Tribunal noted that under departmental guidelines “exceptional reasons” could include but was not limited to situations where:

   a)there was a benefit to Australia;

   b)the applicant was a dependent of a departing temporary resident and had been studying in Australia for at least one year and wished to complete his or her current course or undertake further study;

   c)the applicant held a student visa in Australia and was granted a specified temporary visa and now wished to undertake further study;  or

   d)the applicant previously held a student visa and now held a visa granted under s.351 of the Act.

4. The Tribunal noted that the departmental guidelines were not binding on it but accepted that they were a relevant consideration when determining what constituted exceptional reasons in individual circumstances.  It found that the only circumstances set out in the guidelines which might be applicable to the applicant in the present case was whether there was a benefit to Australia in granting the visa.  However, in considering this aspect of the guidelines, the Tribunal noted that the more detailed policy guidance under “benefit to Australia” stated:

   Under policy, exceptional reasons require an applicant to establish that visa grant would improve bilateral relations or provide significant economic benefits to Australia.

5. On the evidence before it, the Tribunal found that it was not satisfied that the applicant had established that granting him a subclass 572 visa would improve bilateral relations or provide a significant economic benefit to Australia.  In this regard, the submissions which the applicant had made to the delegate about how his presence would benefit Australia economically were not, in the Tribunal’s view, exceptional reasons as they had been speculative when made and had diminished relevance given the applicant’s subsequent course of study.

6. Neither was the Tribunal satisfied that the Department had misled the applicant such that that constituted an exceptional reason to grant him a visa.  The Tribunal noted in this regard that the information provided by the Department had been correct and that the applicant was required to take responsibility for his own visa application and seek independent advice if required.  Further, the applicant had had ample time to provide evidence and submissions regarding this asserted failure but had failed to do so.  The Tribunal found that the applicant’s lack of awareness of the provisions of cl.572.227 had not been due to anything done, or not done, by the Department.

7. As for the applicant’s claim that he was in the middle of his courses and would have wasted his time and money if his application was refused, the Tribunal noted that it had no evidence before it of what the applicant had paid or that he would not be able to defer his courses or have his money refunded.

8. Overall, the Tribunal found that the applicant’s submissions regarding exceptional reasons were speculative and unsupported by any convincing, objective evidence.  Consequently, the Tribunal found that the applicant did not satisfy cl.572.227 for the grant of the visa.

Proceedings in this Court

1. In his application commencing these proceedings the applicant alleged:

   In paragraph 18 of decision, The member rightly mentioned the PAM3.

   Under Departmental guidelines (PAM3) ‘exceptional reason’ may include but are not limited to situations where:

   -There is a benefit to Australia

   -The applicant is a dependent of a departing temporary resident and has been studying in Australia for at least one year and wishes to complete her or his current course or undertake further studies

   -The applicant held a student visa in Australia and was granted a specified temporary visa and now wishes to undertake further study.

   Further in Paragraph 21, Member stated that “The Tribunal has had regard to the Departmental policy on this provision, the only one of which may be applicable to the applicant is the first, that is, a benefit to Australia.  The more detailed policy guidance under ‘benefit to Australia’ states.”

   Policy clearly stated that it is not limited to the situation which are mentioned in PAM3 but member misinterpreted the policy or in any case failed to consider this.  Member narrowed his decision to only one situation which might be applicable as per him.  This is jurisdictional error in decision.  Member did not consider all the situation and looked into one situation “benefit to Australia”.  It clearly shows error in the decision.

   Secondly, In paragraph 23 its stated that “The Tribunal does not consider there was any relevant error or omission by the department such that would constitute “exceptional reasons” justifying a grant of the visa”.  There was clear omission by Department as they did not tell me that if my onshore application will only be granted in exceptional circumstances. I would have gone offshore and apply otherwise.  The fact that Department gave a right advice as mentioned by member is wrong.

Evidence at hearing

1. The applicant gave oral evidence at the hearing of this application.  He said that before he made the visa application the subject of this proceeding, he attended an office of the Department.  At that time, he held a visitor’s visa.  The applicant said that after discussing the visitor’s visa he held at that time and such conditions as relevantly applied to it, he was told that he could apply for a subclass 572 visa while he was in Australia.  In cross-examination, the applicant said that he was not told by the Department that he would be granted a subclass 572 visa were he to apply for one. 

Consideration

1. The allegations made by the applicant are quite lengthy but, in substance, raise only two matters which have been neatly encapsulated by the Minister in para.24 of his written submissions as follows. 

   1.the Tribunal correctly had regard to the guidelines at [18], but at [21] of its decision stated that the only applicable provision was “benefit to Australia” and erred in narrowing its decision to this consideration and not the applicant’s whole situation; and

   2.the Tribunal erred in finding at [23] that there was not error or omission on the part of the department that would constitute “exceptional reasons”.

2. At the outset, I note that the meaning of “exceptional” has been considered and explained in cases such as Mann v Minister for Immigration & Citizenship (2009) 179 FCR 581.

3. Turning first to PAM3 and the guidance set out there as summarised by the Tribunal.  Consideration of the matters mentioned there make it clear that only one of them, the one considered by the Tribunal, had any potential relevance to the applicant’s review.  The Tribunal did not err by not considering the other three other than, I infer, to reject their relevance.  The only other matter which the Tribunal ought to have considered, given the way in which the review was conducted by the applicant, was whether the Department had misled him and, if so, whether that amounted to exceptional reasons for the grant of the visa he sought. 

4. Contrary to the assertion made in the application, the Tribunal did consider the applicant’s allegations concerning his interaction with the Department before he lodged his student visa application.  It concluded that the Department had done nothing wrong and that, therefore, there was no exceptional reason for the granting of the visa. 

5. In his evidence at the hearing of this application, the applicant did not relevantly go further than his essential complaint, being that the Department did not, but should have, told him that an onshore subclass 572 visa application would not be granted absent exceptional reasons for such a ground.  The Tribunal did not err in concluding that the Department had no such duty.  The applicant’s evidence at the hearing of this application did not successfully cast doubt on the bases for the Tribunal’s conclusion on that point.  In the absence of a duty to provide advice as contended by the applicant, a failure to provide it can hardly amount to exceptional reasons for the grant of a visa. 

6. Consequently, not only did the Tribunal not err by failing to consider the question posed by the applicant, its consideration of the point was correct. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 20 April 2017