Singh v Minister for Immigration

[2017] FCCA 280

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 280

Catchwords:
MIGRATION – Judicial review – decision of former Migration Review Tribunal – student visa – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Pt.5, Div.5, ss.65(1), 357A, 476

Migration Regulations 1994 (Cth), Sch.2, cll.572.211(3)(c), 573.211(3)(c)
Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2

Gill v Federal Circuit Court of Australia [2015] FCA 269
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Applicant: GURWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 101 of 2015

Judgment of: Judge Antoni Lucev

Hearing dates: 15 March 2016 and 21 February 2017

Date of Last Submission: 21 February 2017

Delivered at: Perth

Delivered on: 21 February 2017

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr D Carroll, later, Mr D Ireland

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

2. That the name of the second respondent be changed to “Administrative Appeals Tribunal” pursuant to the Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.

3. That the applicant pay the first respondent’s costs in the sum of $7206 by 21 March 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 101 of 2015

GURWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore and revised)

Introduction

1. This is a judicial review application (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”). The applicant seeks to have the Court judicially review a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 12 February 2015. The Tribunal Decision is at Court Book (“CB”) 120-123. The Tribunal Decision was to affirm the Delegate’s Decision made on 8 August 2014 not to grant the applicant a Student (Temporary) (Class TU) visa (“Student Visa”): CB 123 at [18].

Procedural history

1. The procedural history of the matter is as follows:

   a)the applicant applied for the Student Visa on 28 July 2014 to undertake study in Australia. The relevant subclass of Student Visa for the applicant was subclass 572: Migration Regulations 1994 (Cth), Sch.2 (“Migration Regulations”);

   b)the Delegate’s Decision was to refuse the Student Visa on the basis that the applicant did not satisfy the requirements of cl.572.211(3)(c) of Sch.2 to the Migration Regulations 1994;

   c)on 25 August 2014 the applicant applied to the Tribunal for review of the Delegate’s Decision;

   d)on 9 December 2014 the Tribunal wrote to the applicant and invited him to attend a hearing, by teleconference, on 12 February 2015 to give evidence and present arguments relating to the issues;

   e)the applicant appeared before the Tribunal, by teleconference, on 12 February 2015 to give evidence and present arguments;

   f)the applicant told the Tribunal that he held a bridging visa when he lodged the Student Visa application on 28 July 2014;

   g)the Tribunal asked the applicant when he was granted his current bridging visa. The applicant said it was sometime in 2012, which the Tribunal observed was consistent with the Department’s movement records which indicated that the applicant had held various bridging visas since 20 March 2012;

   h)at the Tribunal hearing the Tribunal explained that, regardless of the reason for the applicant not lodging his Student Visa application within 28 days after his last substantive visa ceased to be in effect, the Tribunal does not have any discretion, as if the Student Visa application was lodged out of time, the applicant does not satisfy cl.573.211(3)(c) (which should have been a reference to cl.572.211) of Sch.2 to the Migration Regulations 1994 and that the Tribunal must affirm the Delegate’s Decision;

   i)the Tribunal Decision was given at the conclusion of its review hearing on 12 February 2015, and a written statement of the Tribunal’s reasons (being the Tribunal Decision) were provide later that same day;

   j)on 19 March 2015 the applicant lodged the Judicial Review Application;

   k)on 24 June 2015 a Registrar of this Court ordered that the applicant file and serve any amended Judicial Review Application, and any affidavits upon which the applicant intended to rely at the hearing of the Judicial Review Application, on or before 19 August 2015, and that the applicant file and serve an outline of submissions not less than 42 days before the final hearing, which was then listed for 2.15pm on 17 November 2015;

   l)on 16 November 2015 lawyers filed a Notice of Address for Service and commenced to act upon the applicant’s behalf;

   m)when the matter came before the Court on 17 November 2015 it was adjourned to a date to be fixed, which was fixed as 15 March 2016;

   n)the applicant’s lawyers filed a Notice of Intention to Withdraw as Lawyer and Notice of Withdrawal of Lawyer on 15 and 16 February 2016 respectively; and

   o)on 15 March 2016, the hearing date was further adjourned to a date to be fixed, being ultimately today.

Grounds for Judicial Review Application

1. The grounds for the Judicial Review Application are as follows:

   1.1.  Initially, I held a partner-dependent student visa with my first wife. Even though I wanted to pursue my studies here, I was unable to do so due to a number of family-related problems. After her application for the Temporary Graduate Visa in 2012, the both of us were granted bridging visas. However, we got divorced in December 2012, when our bridging visas were still active. Since my wife was the primary applicant for the Temporary Graduate Visa, she was the sole recipient of all communication between us and the Department of Immigration and Border Protection. After the divorce, however, my ex-wife severed all contact with me. I attempted to get in touch with her repeatedly in order to ascertain the status of my bridging visa but she did not reply to a single email nor did she answer my numerous phone calls. This is primarily the reason behind my late application for an independent student visa. Due to the lack of contact with my ex-wife, I was also unaware of the expiry of my partner-dependent student visa. Furthermore, I was also ignorant of the fact that I had to information [inform] the Department of Immigration and Border Protection about the change in the circumstances.

   2.Additionally, I was deeply impacted by the divorce. I was severely depressed for an extremely long period of time, during which I was unable to maintain my health. It took a considerable amount of time for me to move past the divorce and recover mentally and physically, which is why I was unable to apply for another substantive visa within the time limit.

   3.I had applied for an independent student visa so that I could pursue my studies and avail [myself] of the excellent educational facilities in Australia. I wish to affirm that my reasons are genuine.

2. Notwithstanding the Registrar’s orders of 24 June 2015 the applicant has not filed any affidavit material or any submissions in these proceedings. Thus, even if the reasons for his failing to reapply for a Student Visa were genuine and could be considered by the Court (which they cannot: see [11] below), there would be no evidence to sustain a factual finding in the applicant’s favour.

Tribunal Decision

1. The Tribunal considered the claims and evidence presented to it by Mr Singh and relevantly found as follows:

   CONSIDERATION OF CLAIMS AND EVIDENCE

   12. The issue in the present case is whether the applicant satisfies cl.572.211. That criterion requires that if the visa application is made in Australia, the applicant holds a specified substantive visa at that time, or alternatively, if not such a visa holder:

   • the last substantive visa held was of a specified type, which relevantly includes a student visa: cl.572.211(3)(b); and

   • the visa application was made within 28 days after the day when that last substantive visa ceased to be in effect; or if that last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation - the later of the day when that last substantive visa ceased to be in effect and the day when the applicant is taken to have been notified of the Tribunal's decision: cl.572.211(3)(c); and

   • the applicant satisfies Schedule 3 criterion 3005: cl.572.211(3)(d).

   13. In this case, the visa application was made in Australia, and the evidence before the Tribunal is that the applicant did not hold a substantive visa of a type specified in the criteria. As such, the applicant must meet the requirements of subclause (3) set out above.

   Was the last substantive visa of the specified type?

   14. The last substantive visa held by the applicant was a student visa which meets the requirements of cl.573.211(3)(b).

   Was the visa application made within 28 days of the last substantive visa ceasing?

   15. On the basis of information contained in the Department's decision, the Tribunal finds that the applicant's last substantive visa ceased to be in effect on 21 March 2012. On the evidence before the Tribunal, the current visa application was made on 28 July 2014.

   16. On the basis of the above, the Tribunal finds that the application was not made within 28 days after the last substantive visa ceased to be in effect. Accordingly, the applicant does not satisfy cl.573.211(3)(c), and therefore, does not meet the requirements of cl.573.211 of Schedule 2 to the Regulations.

   17. For applicants in Australia who do not hold a substantive visa at the time of visa application, the other subclasses within the Class TU visa class have a requirement that is the same as cl.573.211(3). For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of those subclasses.

   DECISION

   18. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   CB 122-123 at [12]-[18].

2. It is plain that in [14], [16] and [17] of the Tribunal Decision the Tribunal has inadvertently referred to cl.573.211 instead of cl.572.211 of Schedule 2 to the Migration Regulations 1994.

Consideration

1. The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

2. The criteria for the grant of a Student Visa under subclass 572 of the Migration Regulations 1994, for a Student Visa application made in Australia, as the applicant’s was, requires the applicant to be the holder of a substantive visa or to have made the Student Visa application within 28 days of the last substantive visa ceasing.

3. In this case the Tribunal correctly set out the facts, about which there is essentially no dispute. It identified the relevant legislative provisions, in particular, cl.572.211(3) of Schedule 2 to the Migration Regulations 1994 (albeit that it is incorrectly referred at points to cl.573.211(3)). The Tribunal applied the law to the facts to make a finding which was open to it, namely that the applicant did not make his Student Visa application within 28 days after the last substantive visa that he held had ceased to be in effect, and that he therefore did not meet the requirements of cl.572.211(3)(c) of Schedule 2 to the Migration Regulations 1994.

4. There was no denial of natural justice. For the purposes of Part 5, Division 5 (and, in particular, s.357A) of the Migration Act 1958 the Tribunal hearing gave the applicant the opportunity to be heard, and to deal with the relevant issue which the applicant was questioned about (that is whether the applicant made the Student Visa application within 28 days after the last substantive visa had ceased to be in effect), which issue had been identified in the Delegate’s Decision.

5. It cannot be said that the Tribunal identified a wrong issue, asked the wrong question, ignored relevant material or relied on irrelevant material. The reasons for the applicant not filing his Student Visa application within time are irrelevant to whether or not he meets the time criteria. The Tribunal was correct in finding it had no discretion to take into account the reasons why the applicant was delayed in lodging his Student Visa application: Gill v Federal Circuit Court of Australia [2015] FCA 269 at [10]-[11] and [14] per Barker J. In order to grant the Student Visa the Tribunal had to be satisfied that the relevant criteria, those under cl.572.211(3) of Schedule 2 to the Migration Regulations 1994 particularly, had been met, and if they were not met, the Tribunal could not be so satisfied, and could not therefore grant the applicant the Student Visa: Migration Act 1958, s.65(1). In this case those criteria were not met, and there was no legal or factual error, let alone jurisdictional error, in the Tribunal Decision affirming the Delegate’s Decision not to grant the applicant the Student Visa. In the circumstances, the Tribunal’s exercise of power was not affected by any excess of, or failure to exercise, the authority or powers given to it under the Migration Act 1958 and Migration Regulations 1994. There was, therefore, no jurisdictional error in the Tribunal Decision.

6. The Court having concluded that there is no jurisdictional error in the Tribunal Decision, it follows that there will be an order dismissing the Judicial Review Application.

7. There will also be an order that the name of the second respondent be amended to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.

8. The Court will hear the parties as to costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  21 February 2017