SINGH v Minister for Immigration

[2016] FCCA 910

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 910

Catchwords:
MIGRATION – Judicial review – show cause hearing – student visa – exceptional circumstances.

Legislation:

Federal Circuit Court Rule 2001 (Cth), r.44.12
Migration Regulations 1994 (Cth), cl.572.227

Kim v Minister for Immigration & Another [2008] FMCA 1577

Applicant: GURDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1988 of 2015

Judgment of: Judge Harland

Hearing date: 14 April 2016

Date of Last Submission: 14 April 2016

Delivered at: Melbourne

Delivered on: 14 April 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Cunynghame

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed 1 September 2015 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1988 of 2015

GURDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application which was listed today for a show cause hearing.  Show cause hearings are dealt with at r.44.12 of the Federal Circuit Court Rule 2001 (Cth).  At a show cause hearing the applicant is limited to the relief sought and the grounds set out in his application for judicial review.  The applicant had brief written submissions which he wished to rely on which he had not filed in accordance with the directions, but the Minister’s lawyers did not object to that course, and I have read those submissions, and they are marked as exhibit A.

3. Rule 44.12 sets out that the court may list the matter for a final hearing if the court is satisfied that the applicant has raised an arguable case for relief.  If there is no arguable case for relief claimed, then the court should dismiss the application.  It is an interlocutory application, and, therefore, the applicant would need leave to appeal if unsuccessful.  The applicant appears today without a lawyer and with the assistance of an interpreter.  Whilst he is able to speak some English, he has also had the benefit of the interpreter’s assistance with technical matters.

4. I stood the matter down to enable the interpreter to go through the written submissions with the applicant and the written submissions of the respondent.  The applicant had indicated that he had received and read those submissions but didn’t understand everything, and, therefore, I gave him that opportunity.  I also explained to him the limited nature of the proceedings before this court.  Unsurprisingly, it is apparent from the applicant’s submissions that he still does not understand that distinction, but it is a very technical area of law and very difficult for people who are not legally trained to navigate through the system.

5. In this case the issue is a limited one. By that I do not mean that it is not an important one for the applicant, but it is a circumstance where the applicant needs to show that he is able to comply with cl.572.227 of Migration Regulations 1994 (Cth) to show that he is able to establish exceptional circumstances for the granting of the visa. That is a very high bar. That clause applies to applicants who apply for a student visa when they are already in Australia.

6. The applicant had come to Australia on a visitor’s visa to see his brother, and whilst here he decided to apply for a student visa.  He had been studying automotives in India and wished to study further in that field in Australia to improve his qualifications and employment prospects in India.  He says he was misled by his migration agent and if he had been advised that it was better to apply for a student visa offshore he would have done so.  The requirements when applying for a student visa offshore are not as stringent as the requirements when a person is onshore.

7. It is clear from paragraph 20 of the Tribunal decision that the Tribunal was aware of the applicant’s circumstances and the complaints he made about his migration agent.  It is also clear that the Tribunal was aware of the applicant’s circumstances in that he had paid a significant sum of money to the migration agent and had run out of funds.  The Tribunal was also aware of the applicant’s complaint that it was not his fault that he was unaware of the criterion for the visa, given that he had sought advice from his migration agent and had been misled.

8. The Tribunal found that all of those factors did not amount to exceptional circumstances, and, as I indicated before, it is a very high bar to get over to establish exceptional circumstances.  The nature of the requirements to establish exceptional circumstances was referred to in the decision itself referring to the case of Kim v Minister for Immigration & Another [2008] FMCA 1577, and it refers and extracts parts of that decision at paragraphs 11 and 12 of its decision, I will not repeat them here.

9. The applicant’s application sets out the following grounds: 1) He has a genuine intention to study; 2) He was unable to show exceptional circumstances for the grant of his visa 3) He had a genuine reason to study and to return home to his home country with the skills that he had attained in Australia.  As pointed out to him at the hearing and as the Minister’s written submissions make clear, none of those grounds raise a jurisdictional error on the part of the Tribunal but, rather, seek to have this court determine or re-determine his application on its merits.

10. The court does not have the jurisdiction to do that.  The applicant made further oral submissions in reply which repeated those issues and where he also said he has been able to secure a job working in the automotive industry but is unable to take up that job because of his visa restrictions.  He again said that it was not his fault that he had spent a lot of money trying to do the right thing.  He also said that he was aware of a friend who was in the same situation as him and was able to get the student visa.

11. As I indicated to him during the course of his submissions, I cannot take into account the fact that someone else he knows has been granted a visa.  The circumstances of that individual are unknown, and, in any event, the only relevant issue before me is whether or not the Tribunal has properly applied the requirements of the visa against the applicant’s circumstances.  On the material before it the Tribunal was entitled to reach the conclusion that it did that the applicant did not establish exceptional circumstances for his visa to be granted.

12. I have no doubt that the applicant feels that this is a harsh outcome. There is no discretion of the court to grant that visa.  The most the court could do would be to remit it to the Tribunal, but the result would be the same, and it would be improper for the court to remit it in the circumstances where there is clearly no jurisdictional error.  So in those circumstances I have no choice except to dismiss the application.

13. The first respondent seeks costs in the sum of $3416, which is in accordance with the Federal Circuit Court scale of costs in migration matters for show cause hearings.  The respondent seeks that that amount be reduced based on his inability to pay.  In response to that the Minister’s representative indicated that it is open to the applicant to discuss the issue directly with the department, to enter into arrangements for the payment of the costs and to negotiate that figure.  As I have indicated, it is usual in these cases for a costs order to be made and I will make this order.

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

Associate: 

Date:  21 April 2016