SINGH v Minister for Immigration

[2016] FCCA 1037

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1037

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student (Temporary) (Class TU) visa– whether the Tribunal exceeded its statutory powers – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, Sch.2, cls.572.222, 572.225, 572.223(5A404), 572.224(PAC4005), 572.235, 572.223(5A405)

Applicant: AMNINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3214 of 2014

Judgment of: Judge Street

Hearing date: 3 May 2016

Date of Last Submission: 3 May 2016

Delivered at: Sydney

Delivered on: 3 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms S He
DLA Piper

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the amount of $5750.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3214 of 2014

AMNINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) in respect of a decision of the Tribunal made on 29 October 2014 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. The applicant is a citizen of India. The applicant lodged the application for a student visa on 7 November 2013. The delegate found that the applicant did not meet the requirements of cls.572.222, 572.225, 572.223(5A404), 572.224(PAC4005), 572.235 and 572.223(5A405).

2. The applicant applied for review on 10 April 2014.  By letter dated 9 September 2014 the applicant was invited to attend a hearing on 8 October 2014 at which the applicant attended to give evidence and present arguments.  Prior to the hearing the applicant provided documents in relation to the courses the applicant had completed and evidence in relation to the courses in which he was currently enrolled.  The Tribunal raised with the applicant the issue of whether the applicant met the requirements of cl.572.223(1)(a).

3. The Tribunal outlined to the applicant that this involved determination of whether it was satisfied that on the evidence that the applicant generally was a genuine applicant for entry and stay as a student.  The Tribunal’s reasons identify raising with the applicant concerns in relation to whether or not the applicant was a genuine student, and the Tribunal found that the applicant was not a genuine entrant for entry and stay as a student and was of the view that the student program was only being used by the applicant to maintain ongoing residence.

4. It was in those circumstances the Tribunal found the applicant did not meet cl.572.223(1)(a).  Accordingly, the Tribunal found the applicant did not meet an essential requirement of cl.572.223.  It was in those circumstances that the Tribunal affirmed the decision of the delegate. 

5. On 4 February 2015, a Judge of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents have been filed by the applicant.

6. The application identifies the following grounds;

   1. Tribunal member surprised me with the decision made by her and I don’t feel she gave me fare decision as I didn’t get enough time to explain all my circumstances.

   2. She asked me so many questions and I was nervous and she asked me frequently – Didn’t ask me for extension of time.

7. At the commencement of the hearing, the Court explained to the applicant that the hearing was to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either and excess of statutory powers by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that if satisfied that the decision was affected by relevant legal error it would set aside the Tribunal’s decision, and that if the Court was not so satisfied it would dismiss the applicant’s application.

8. The Court explained that it would have identified the evidence, and then hear from the applicant, and hear from the solicitor for the first respondent and then hear from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing explained by the Court. 

9. The grounds of the application fail to identify any jurisdictional error by the Tribunal.  There is nothing on the material before the Court to support any assertion that there was a request for an extension of time by the applicant to put on further material made to the Tribunal.

10. On the material before the Court, the Tribunal complied with its procedural requirements set out in Division 5 of Part 5 of the Act, and I am satisfied that the applicant had a genuine hearing.   In relation to ground 1, it is apparent that the Tribunal raised with the applicant the dispositive issue, and there is nothing to suggest there was any request raised by the applicant for additional time to explain his circumstances.  The letter dated 9 September 2014 inviting the applicant to attend the hearing included relevantly the following;

    Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to the Tribunal should be in English or accompanied by a translation from a qualified translator.

    Additionally, please provide this information so that a decision can be made as quickly as possible:

    1. A copy of your current Certificate of-Enrolment (COE) as required for the grant of a student visa.

    2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

    3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.

    4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

    5. Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

    • evidence of fees of current or proposed course/s you have already paid, or still owe for past courses

    • evidence of funds from an acceptable source

    o if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application

    o if you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current

    • evidence of the regular income of any person who is providing funds to you (including yourself), and their relationship to you

    • evidence that you have genuine access to the funds that you declare while you hold a student visa, such as evidence of any money you have received or been given

    6. Evidence you meet the English language proficiency requirements (the requirements depend on your particular assessment level and visa subclass).

    7. Evidence you have successfully completed secondary schooling to the Year 12 level (or other educational qualifications as required for the visa you seek).

    8. Evidence of adequate arrangements for health insurance from an approved provider during the period of your intended stay in Australia. More-information about overseas student health cover is contained at Evidence of your current medical assessment by the Department's medical services provider to meet the health requirement for the visa.

11. That letter also invited the applicant to complete the response to hearing invitation, which the applicant did complete.  Further, as indicated above, the applicant provided further material to the Tribunal prior to the hearing.  Nothing in ground 1 identifies any jurisdictional error.  In relation to ground 2, it was entirely appropriate and orthodox for the Tribunal to ask the applicant questions.  The evaluation and determination of the applicant’s credit was a matter for the Tribunal.  The reference to the Tribunal not asking the applicant for an extension of time does not identify any jurisdictional error. 

12. There is nothing on the fact of the material before the Court or in the Tribunal’s reasons to support any requirement for the Tribunal to raise with the applicant an extension of time in relation to providing further material particularly when there was no request to do so by the applicant.  Nothing in ground 2 identifies any jurisdictional error. 

13. When invited to put submissions in support of the application the applicant indicated he had nothing to say.  The solicitor for the first respondent explained the reason why the two grounds in the application failed to identify any jurisdictional error, and in reply the applicant again said that he had nothing to say.

14. The application fails to identify any jurisdictional error. The application is dismissed.

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

Associate: 

Date:  11 May 2016