SINGH v Minister for Immigration

[2015] FCCA 3420

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3420

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student (Temporary) (Class TU) visa – Show Cause hearing – whether the Tribunal failed to take into account the applicant’s claims and evidence – bias – no arguable case made out – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 cl.572.222(1)(a), cl.572.223
Federal Circuit Court Rules 2001, r.44.12

Applicant: BALJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1818 of 2015

Judgment of: Judge Street

Hearing date: 18 December 2015

Date of Last Submission: 18 December 2015

Delivered at: Sydney

Delivered on: 18 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr A Markus
Australian Government Solicitors

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1818 of 2015

BALJIT 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 Act 1958 (Cth) in respect of a decision of the Tribunal made on 4 June 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. The applicant first arrived in Australia in November 2008. On 17 October 2014, the applicant lodged an application for a student visa in order to study the same courses as those listed in the current visa application. On 19 November 2014, the Department advised the applicant to comment on adverse information the Department had received regarding evidence provided by the applicant to satisfy the relevant financial criteria in that the evidence suggested the applicant did not have access to funds as he declared.

2. On 25 November 2014, the applicant withdrew his application, and on the same date lodged the current visa application.  The delegate found this to be suggestive of an intention to circumvent the Australian migration laws and obtain temporary residency in Australia.  The delegate considered this was relevant.  In conjunction with other aspects of the applicant’s individual circumstances, the delegate was not satisfied the applicant genuinely intended to stay in Australia temporarily.  It is apparent from the delegate’s reasons, that the delegate took into account an irrelevant matter relating to a third party in the course of the delegate’s reasons.

3. By a letter dated 7 May 2015, the applicant was invited to attend a hearing before the Tribunal on 4 June 2015. The applicant attended that hearing on 4 June to give evidence and present arguments. On 6 August 2015, the Registrar of the Court fixed the matter for hearing today for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001.  The Registrar also provided an opportunity for the applicant to file an amended application, further affidavit evidence and submissions.  No such documents were filed. 

4. At the commencement of the hearing today, the Court explained to the applicant the nature of the show cause hearing, pursuant to r.44.12, and the applicant confirmed that he understood the nature of the hearing. The grounds of the application are as follows:

   DIBP made error in making a decision:

   1. I entered Australia as holder of 572 visa as primary applicant. I completed all my studies successfully. I never disobeyed my visa conditions or any Australian laws during my stay in Australia. I studied variety of courses to get expertise in business skills.  My ultimate goal was to become successful entrepreneur. In the beginning I was mislead by unqualified migration agents for choosing wrong courses which did not cater my career goal but still I completed those courses to comply with my visa conditions. I applied for student visa extension to study my Diploma of building and construction course. I completed 70 % of course but case officer did not consider my genuine intentions of study.

   2. I explained my career path clearly stating that I wish to run my own building and construction business after completing this course but case officer did not understood my career path and refused my visa application.

   3. I applied for review of application to Migration Review tribunal but MRT and DIBP look like biased from Indian students. MRT made an error by not considering my arguments.

   4. I presented results of my Diploma in Building and construction which stated that I have completed 8 modules of Diploma out of 12, 1 just needed few months to complete my studies and then I was obliged to go back to my home country to start up my business but neither DIBP nor MRT gave weightage to this fact.

   5. MRT affirmed the decision just following the DIBP arguments. MRT did not give fresh look to my case, as they are obliged to do so.

   6. It would ne injustice if I am not allowed to complete just 25% of my left over studies. MRT should have looked positively to my investment in to my studies.

   7. I pray for justice so that l can complete my study before leaving Australia.

5. The grounds have a heading which has a reference to error by the delegate.  An error by the delegate does not give rise to any jurisdictional error by the Tribunal.  In relation to ground 1 of the application, whether the applicant was soundly advised in relation to the courses that the applicant choose to pursue is not a matter that gives rise to any jurisdictional error.  Nothing said in ground 1 of the application identifies any arguable jurisdictional error.

6. In relation to ground 2, the reference to the case officer appears to be a reference to the delegate and for the reasons given any error by the delegate does not establish jurisdictional error by the Tribunal. Insofar as ground 2 might be read as a reference to the Tribunal not understanding the applicant’s application, that is contrary to what is a detailed identification by the Tribunal of the applicant’s background and the conduct of the hearing, as well as the identification by the Tribunal of the issue raised in relation to cl.572.222(1)(a) which required the Minister to be satisfied the applicant intends generally to stay in Australia temporarily. The Tribunal made an adverse finding in that regard and found the applicant did not meet the genuine temporary entrance criteria. It was in those circumstances the Tribunal found that the requirements of cl.572.223 were not met, and affirmed the decision of the delegate. Nothing said in ground 2 identifies any arguable jurisdictional error by the Tribunal.

7. In relation to ground 3, there is an assertion that both the Tribunal and the delegate were biased.  An allegation of bias must be clearly alleged and properly proved.  There is no conduct identified that could support any arguable case of bias.  The adverse findings by the Tribunal are not a basis upon which bias can be made out.  The adverse findings by the Tribunal in the present case are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring and independent and impartial mind to the determination of the matter on its merits.  The assertion of error in considering the applicant’s arguments appears to be a challenge to the merits which were a matter for the Tribunal to determine.  Ground 3 fails to make out any arguable jurisdictional error.

8. In relation to ground 4, it was a matter for the Tribunal to determine what weight to give the applicant’s evidence.  Ground 4 fails to identify any arguable jurisdictional error.  In relation to ground 5, I am satisfied that the applicant had a genuine hearing and that the Tribunal conducted a review in accordance with the statutory regime.  Ground 5 fails to identify any arguable jurisdictional error.  Grounds 6 and 7 are again an impermissible appeal to the merits of the matter and do not identify any arguable jurisdictional error.

9. I am satisfied that the application fails to identify any arguable case of jurisdictional error. I am satisfied that this is an appropriate matter in which the Court should exercise its powers, pursuant to r.44.12 of the Federal Circuit Court Rules2001. The application is dismissed, pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 18 December 2015