SINGH v Minister for Immigration
[2016] FCCA 2929
•19 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2929 |
| Catchwords: MIGRATION – Student Temporary (Class TU) visa – Ministerial Direction 53 – whether applicant genuinely studying – no error by Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), cl.572.223 of Sch.2, Sch.5A |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Ghimire v Minister for Immigration and Border Protection [2014] FCA 899 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | RANDHIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2534 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 19 October 2016 |
| Date of Last Submission: | 19 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2016 |
REPRESENTATION
| Applicant in person |
| Solicitors for the First Respondent: | Ms J. Kowalewska of Australian Government Solicitor |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
The application filed on 15 December 2014 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,200.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2534 of 2014
| RANDHIR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
The single issue in this case was whether the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), correctly applied Ministerial Direction 53 in the context of the applicant’s Student (Temporary) (Class TU) visa when affirming the decision of the Minister’s delegate made 28 November 2014.[1]
The delegate, and later the Tribunal, concluded that the applicant did not satisfy the requirements of cl.572.223(2)(c) of Sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because the applicant did not supply sufficient information to satisfy Sch.5A criteria.
[1] Court Book filed 29 May 2015 at pp.276-283.
Synopsis
For the reasons that follow, in my judgment the Tribunal made no jurisdictional error. This application for judicial review must be dismissed.
Short factual narration
The Tribunal’s reasons comprehensively set out the relevant factual history of this application and no complaint was made before me that the Tribunal’s reasons were anything but accurate.
The applicant was required to demonstrate that he satisfied the elements of cl.572.223(1)(a) of Sch.2 of the Regulations.
That regulation was in the following terms as at the date of the applicant’s application, 26 November 2013 –
(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 the parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter.[2]
[2] First Respondent’s Contentions of Fact and Law filed 5 July 2016, p.2 at [8].
That regulation was operative on and after 5 November 2011, as was common cause.
It was also common cause that cl.572.223 of Sch.2 of the Regulations was to be applied in conformity with Ministerial Direction 53 – ‘Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications’. The applicant asserted that the Tribunal did not properly construe or apply Ministerial Direction 53.
The Tribunal paraphrased the more important elements of
Ministerial Direction 53. Specifically, the Tribunal extracted in four bullet points the factors that fell for its consideration.[3] In paragraph 10 of its reasons, the Tribunal indicated that the factors it mentioned were not a checklist, but rather they were intended as a guide to decision-makers to assist decision-makers weighing up an applicant’s circumstances as a whole when reaching a finding about whether a particular applicant satisfied the criteria of a genuine temporary entrant.
[3] Court Book filed 29 May 2015, p.278 at [9].
Justice Gilmore made pronouncements to that effect in Ghimire v Minister for Immigration and Border Protection.[4]
[4] [2014] FCA 899 at [3].
The Tribunal engaged in an assessment of -
a)the applicant’s circumstances in his home country, his potential circumstances in Australia and the value of the course to the applicant’s future;
b)the applicant’s immigration history;
c)whether the applicant was a minor; and
d)all other relevant information.
Accordingly, the Tribunal did, in fact, give a meaningful consideration to Ministerial Direction 53 elements. In the course of its consideration of the matters covered by Ministerial Direction 53, the Tribunal asked the applicant why he decided to undertake hospitality as a course when he first came to Australia. The applicant gave an answer to that question. The Tribunal explained to the applicant that it seemed that the applicant had undertaken a series of short inexpensive courses over a period of almost five years while in Australia, that those courses were low-level compared to his educational qualification of his bachelor degree in India and that the Tribunal was entitled to give that consideration weight when considering whether the applicant was using the visa to maintain ongoing residency. The Tribunal explained to the applicant that it was not convinced of the value of his proposed advanced diploma of management to his future.
Turning to the specific elements of Ministerial Direction 53,
the Tribunal did, in fact, have regard to the applicant’s circumstances, his immigration history and other matters. Without limiting the generality of that, the Tribunal -
a)indicated that it was not satisfied that the applicant had adequately explained why he was unable to pursue the course of study he was undertaking in India;
b)considered that the applicant had been in Australia for more than five years and had only undertaken relatively inexpensive courses and inferior courses to those corresponding to his bachelor qualification obtained in India; and
c)found that the applicant had not adequately explained his past or current study choices and how they interacted with his plans over future time.
The Tribunal indicated that the applicant had been ambiguous about the nature of his work in Australia. The Tribunal gave little weight to the applicant’s offer to give an undertaking that he would finish his studies in five months and then return to India. The Tribunal otherwise rejected the applicant’s assertion that he was a genuine temporary entrant.
In paragraph 36 of its reasons the Tribunal found that it was not satisfied that the applicant genuinely intended to stay in Australia on a temporary basis.
In paragraph 37 of its reasons the Tribunal found that in view of the applicant’s circumstances, his immigration history and other matters relevant to Ministerial Direction 53, the applicant did not meet the requirements of cl.572.223(1)(a) of Sch.2 of the Regulations with the consequence that the Tribunal affirmed the decision of the delegate to refuse to grant the applicant the visa that he sought.
Let me now turn to the applicant’s two grounds of review.
Ground 1
The applicant asserted that the Tribunal misconstrued
Ministerial Direction 53. I disagree. The review extracted above revealed that the Tribunal gave an earnest, proper and correct consideration to Ministerial Direction 53. Having regard to the information provided to the Tribunal, it seems to me that the Tribunal correctly concluded that the applicant did not satisfy the criteria of cl.572.223(1)(a) of Sch.2 of the Regulations.
Before me today, the applicant offered to produce evidence that he said would persuade me that he satisfied the relevant criteria. That offer wholly missed the point. This was the hearing of the applicant’s judicial review of the Tribunal’s determination. It was not a merits review.
Ground 1 failed.
Ground 2
No material difference existed in ground 2 as compared to ground 1. Under ground 2, the applicant asserted that the Tribunal erred on the basis that it asked itself the wrong question by misconstruing the requirements of Ministerial Direction 53. In my view, this contention is wrong. As mentioned above, the Tribunal did, in fact, properly construe Ministerial Direction 53 to the facts of this case. When properly analysed the applicant was, in reality, complaining that the Tribunal determined this application adversely to him. He wanted me to undertake a review of the merits in this proceeding. In reality,
the applicant wanted to re-agitate the merits of his case as presented to the delegate and to the Tribunal. That is not the function of judicial review, as has been pointed out by authority at the highest level,
such as Abebe v Commonwealth of Australia[5] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[6] In my view, there is neither substance nor merit in ground 2.
[5] (1999) 197 CLR 510.
[6] (1996) 185 CLR 259.
Conclusion
Both grounds of review failed. No jurisdictional error was demonstrated in accordance with decisions such as Craig v State of South Australia[7] or Minister for Immigration and Multicultural Affairs v Yusuf.[8] That is to say, the Tribunal did not identify a wrong issue,
nor did it ask itself a wrong question, nor did it ignore relevant material, nor did it rely on irrelevant material nor did it make erroneous findings or reach a mistake in conclusion. As a footnote, in answer to a question put to him by the representative of the Minister today,
the applicant told me that to this day he has still not completed the diploma he set out to study.
[7] (1995) 184 CLR 163.
[8] (2001) 206 CLR 323.
In my judgment, this application is dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 14 November 2016
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