SINGH v Minister for Immigration

[2016] FCCA 806

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 806

Catchwords:
MIGRATION – Judicial review of refusal of a student visa – applicant seeks merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
Craig v the State of South Australia [1995] HCA 58
Ibrahim v MIAC [2009] FCA 1328
Minister for Aboriginal Affairs & Anor v Peko‑Wallsend Ltd & Anor (1996) 162 CLR 24

Applicant: DAVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1550 of 2015

Judgment of: Judge McGuire

Hearing date: 18 April 2016

Date of Last Submission: 18 April 2016

Delivered at: Melbourne

Delivered on: 25 May 2016

REPRESENTATION

Counsel for the Applicant: Self Represented

Counsel for the First Respondent: Ms Mitchell

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the application for judicial review be dismissed.

2. That the applicant pay the first respondent's costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1550 of 2015

DAVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION 

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In an application of 7 July 2015 the applicant seeks judicial review of a decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) dated 3 June 2015 affirming a decision of the Minister's delegate not to grant the applicant a Student (Temporary) (Class TU) visa ("the visa").

2. By Orders and Directions of 25 November 2015 the Registrar listed the application for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules (2001) (Cth).

3. The applicant appears in person and did not require the assistance of an interpreter.

4. The application sets out grounds as follows:

   1.  Genuine Expectional [sic] Reasons given for student visa.

   2.  My immigration agent did not provide any exceptional reasons to my case officer, and he said he did.

   3.  Came on a tourist visa to Australia due to an immigration error which counted in the refusal of granting me a student visa.

5. The applicant did not provide written submissions particularising his grounds of complaint pursuant to the Registrar's Orders and Directions.  His oral submissions were brief and of limited assistance to his application.

6. The applicant is from India.  He applied for the visa on 30 June 2014.

7. On 2 July 2014 the Department requested further information from the applicant via his designated representative and specifically of the applicant's exceptional reasons to justify the grant of the visa.

8. By email of 31 July 2014, the applicant's representative requested a one‑week extension to provide the information.  That request was declined and no further information was provided.  The Minister's delegate refused the application on 5 August 2014.

9. On 25 August 2014 the applicant applied to the Tribunal for a review of the delegate's decision.

10. By email to the applicant's representative of 19 January 2015 the Tribunal invited the applicant to attend the hearing set for 2 March 2015.  The applicant did not respond to that invitation and did not attend at the hearing.

11. By email of 7 March 2015, the applicant's representative informed the Tribunal that both he and the applicant were overseas and had not been able to attend the hearing and requested an extension.  The Tribunal responded by inviting the applicant to attend a further hearing on 9 April 2015.

12. The applicant attended the further hearing without his representative.  At the hearing the applicant provided the Tribunal with further documents.

13. On 3 June 2015 the Tribunal affirmed the delegate's decision on the basis that the applicant did not meet the requirements of cl 572.227 of Schedule 2 to the Migration Regulations 1994 requiring the applicant, who was making application for the visa whilst holding a subclass 485 visa and subject to the highest assessment level for the relevant course of study, to establish exceptional reasons for the grant of the visa. The Tribunal noted then that the applicant was required to satisfy cl 572.227 and the exceptional reasons criterion. That clause provides:

    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 :

    … (NB)  Tourist (Class TR);

    …or

    (ii) as the holder of a special purpose visa;  or

    (iii) as the holder of a visa of one of the following subclasses:

    …(BA)  Subclass 485 (Skilled - Graduate);

    …or

    (iv) the applicant establishes exceptional reasons for the grant of a subclass 572 visa.

14. The Tribunal found that the applicant was a holder of a subclass 485 visa.

15. In its reasons at [9] – [11] the Tribunal correctly set out the relevant law as to "exceptional reasons".

16. At [13] – [17] the Tribunal considered the exceptional reasons asserted by the applicant.

17. At [19] the Tribunal found that it was not satisfied that this applicant had established exceptional reasons for the grant of the visa and that he did not, therefore, meet the criteria of cl 572.227.

18. Finally, at [20] the Tribunal noted that there was no evidence that the applicant met the criteria for any other visa subclasses and the delegate's decision was affirmed.

Application to this Court

1. The applicant in an affidavit in support of his application repeats the assertions in his application but adds that his immigration agent did not forward any document to the case officer.

2. On any reading of the application and the short supporting affidavit the application does not set out a proper ground of judicial review and a reading of the Tribunal's reasons does not disclose any jurisdictional error.  It is clear that the Tribunal, by its reasons, understood the nature of its task under the Act.

3. A reading of the Tribunal's reasons makes it clear that its determination was one open to the Tribunal on the material before it.  The application and affidavit within this context can only be read that the applicant cavils with the merits of the Tribunal's decision and it is not the role of this Court to provide yet another review for the applicant on the merits of his application; see Minister for Aboriginal Affairs & Anor v Peko‑Wallsend Ltd & Anor.[1]  

   [1] Minister for Aboriginal Affairs & Anor v Peko‑Wallsend Ltd & Anor (1996) 162 CLR 24 at 40

4. The remainder of the applicant's application references alleged negligence on the part of his representative in providing material in support of his application.  In this respect, however, the applicant's short oral submissions make it clear that his complaint in respect of his representative was at the stage of the delegate's determination.  Notably, the applicant appeared in person without his representative before the Tribunal.

5. A close reading of paragraph 3 of the applicant's grounds of application could suggest an argument that the Tribunal took into account an irrelevant consideration.

6. The High Court in Craig v the State of South Australia,[2] assists as to where a tribunal could fall into error as follows:

   If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

   [2] Craig v the State of South Australia [1995] HCA 58 at 179

7. It is well accepted that any such error that is immaterial to the decision‑maker's conclusion is an error only within jurisdiction.[3]

   [3] Ibrahim v MIAC [2009] FCA 1328 at [14]

8. Put simply, the applicant provides no evidence that there was any irrelevant consideration by this Tribunal.  He asserts that he was the holder of a subclass 485 visa as at the date of the application to the Tribunal.  The Tribunal's reasons note him holding such a visa.

9. Finally, in respect of ground 1 of the application which states "genuine expectional [sic] reasons given for the student visa", it is well established that the determination of exceptional circumstances are a matter of fact for the Tribunal in its determination of the merits of the application.  This applicant does not point to or particularise any alleged "exceptional reason" which he claims to be relevant and that the Tribunal failed to consider.

Conclusion

1. Accordingly, the applicant makes out no jurisdictional error in the Tribunal's process or determination.  The application will be dismissed with an order for costs.

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

Date: 25 May 2016