Singh v Minister for Immigration

[2016] FCCA 1970

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1970

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: LOVEPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1903 of 2014

Judgment of: Judge Riethmuller

Hearing date: 14 July 2016

Date of Last Submission: 14 July 2016

Delivered at: Melbourne

Delivered on: 14 July 2016

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

2. The application be dismissed.

3. There be no orders as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1903 of 2014

LOVEPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore & Revised)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (as it was then called) dismissing an application seeking a class 857 visa.  The applicant was in Australia on a class 572 student visa issued on 24 April 2012.  This visa was issued to enable him to undertake a Certificate IV in Business and a Diploma in Management.  On 26 June 2012, he applied for a class 857 visa relying upon his circumstances and employer nomination. 

2. The reason that he chose to apply for this particular category of visa at that time was as a result of advice that he says he received from an outreach officer from the Department of Immigration at an information seminar organised by the Department and held on 18 June 2012.  The Applicant says that he had significant conversations with the officer in order to identify the appropriate course given his particular circumstances and that he followed the officer’s advice.

3. Some degree of corroboration appears in a letter from an officer of the Swan Hill Rural City Council confirming at the very least the meeting took place and that there were discussions.  In that letter which appears at page 143 of the court book, the officer of the council says:

   In my role as Regional Certifying Body for the Swan Hill Rural City Council, I organised an information seminar with the Department of Immigration and Citizenship in Swan Hill, on 18 June 2012. Attending this meeting was an Outreach Officer from DIAC. At this meeting, Mr Lovepreet Singh was present and spent some time discussing his situation to this Outreach Officer.

   Mr Singh left the information session satisfied that his current status allowed him to apply for an onshore Regional Sponsored Migration Scheme visa. It was not until after his nomination was approved and Mr Singh submitted his visa application that Mr Singh discovered he needed to apply for an offshore RSMS visa, due to his study timeframe.

   It is with this knowledge I support Mr Singh right to have his visa application accessed while onshore. My understanding is this application is currently on the MRT (1307145) waiting list. If you have any further question regarding this statement, please give me a call on 5036 2442.  

4. That letter was addressed to the Department of Immigration and before the Tribunal.  It transpires that the Applicant was not eligible for a clause 857 visa as he did not have a Diploma completed as a consequence of his current student visa and he had therefore no eligibility for that visa type. 

5. This was drawn to his attention in a letter dated 21 March 2013 from the Department following his visa application on 26 June 2012.  The Applicant sought advice and discovered that the category of visa he ought to have applied for in his circumstances and which he says he would have been entitled to, was a visa that was available if one applied offshore being a class 119 visa.  The Applicant had written to the Department advising of the circumstances that led to him making the wrong visa application.

6. The Tribunal turned their mind to the circumstances in their decision saying:

   15. The applicant also explained how he relied on impressions he had gained from the Regional Certifying Body in Swan Hill that he would satisfy the criteria for an onshore application for a subclass 857 (Class BW) visa, instead of for the offshore subclass 119 (Class AN) visa. He essentially claims that he made the subclass 857 visa application in error, and should have made the offshore application.

   16. The tribunal finds that, whether relying on inaccurate or incomplete information or otherwise, the applicant intended to make the subclass 857 visa application, which remains a valid visa application, and the tribunal has no power or discretion to consider the application as anything other than an application for a Class BW visa. That was the “particular class” of visa applied for within the meaning of s.45. The tribunal finds that no valid application was made for a Class AN visa and by 2.47(3) neither the Minister, nor the tribunal exercising his powers, can consider an application which is not valid.

7. In this case, the documents that were lodged were sufficient, on the face of them, for the Tribunal to conclude that the visa class applied for was in fact an 867 visa (see court book page 106 which contains a photocopy of the form where the visa class applied for is clear on the face of the form).  In this regard, the Tribunal was correct to conclude that that was the visa applied for.

8. There is no dispute in the matter before me that the Applicant was not in fact entitled to a class 857 visa.  Since these events have taken place, the rules for class 119 visas had altered which meant that the Applicant was no longer likely to achieve a class 119 visa even if he applied offshore.  He says from the bar table, and I have no reason to doubt, that had he been aware he needed to apply offshore he would have made arrangements to do that.  He had been working and had employer nomination and therefore is likely to have had the resources to ensure that he could have applied offshore.

9. He appears to have an arguable case that his present difficulties were caused by inappropriate or negligent advice by an officer of the Minister at the date of the outreach information seminar, which advice he relied upon to his detriment and, as a consequence, suffered a significant loss.  The difficulty with respect to these circumstances in visa applications is that an application for a visa is not a contract or other normal civil transaction whereby one party can be estopped as a result of their conduct from relying upon clauses or legal rights. 

10. The law is clear that the operation of a statute cannot be estopped even by the conduct of those administering it such as the officers of the Department.  In these circumstances, even if the Applicant had received wrong or negligent advice, the operation of the statute itself cannot be estopped and therefore the Applicant is not able to succeed in his application before the tribunal.  On the material placed before me, the case does present one of potential injustice to the Applicant because of the way the circumstances have unfolded. 

11. It seems that at present the only potential remedy for this would be an application for ministerial intervention which no doubt the Applicant will have to consider.  Whether or not the Applicant has any other form of cause of action is not a matter for me to determine, nor appropriate for me to make comment upon.  In the unusual circumstances of the case, I nonetheless have no option but to dismiss the application by the Applicant. 

    [Further argument ensued].

12. In this matter, the Minister seeks costs on the basis that costs would ordinarily follow the event.  Now, I accept that costs ought to ordinarily follow the event in applications of this type.  This particular application, however, has the most unusual circumstances and on the material before me, the grievance of the Applicant has come about as a result of relying upon advice given by an officer of the Minister. 

13. In the circumstances of the case, it seems to me that this is a factor of such significance that it is appropriate to exercise the cost discretion to make no order as to costs in this particular case.  In the circumstances, I therefore make no order as to costs in this application. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 1 August 2016