Singh v Minister for Immigration

[2015] FCCA 2380

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2380

Catchwords:
MIGRATION – Application seeking judicial review of decision of Migration Review Tribunal – application for student visa – evidence of proficiency in English – is Applicant genuine student – denial of procedural fairness – applicant denied adjournment in order to provide IELTS result – was adjournment unreasonably withheld – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5; 353; 363; 474; 476

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
MZXHY v Minister for Immigration & Citizenship [2007] FCA 622
Abebe v Commonwealth (1999) 197 CL 510
Kruger v Commonwealth (1997) 190 CLR 1
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Applicant: GURBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 391 of 2014

Judgment of: Judge Brown

Hearing date: 27 August 2015

Date of Last Submission: 27 August 2015

Delivered at: Adelaide

Delivered on: 2 September 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Stokes

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application for judicial review filed on 15 October 2014 is dismissed.

3. The applicant is to pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 391 of 2014

GURBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Gurbir Singh “the applicant” seeks judicial review of a decision of what was formally known as the Migration Review Tribunal and which is now the Administrative Appeals Tribunal “the Tribunal” made on 22 September 2014 not to grant him a student (temporary) (class TU) visa pursuant to the provisions of the Migration Act 1958 (Cth).

2. The applicant is a citizen of India, who arrived in Australia in February 2009, as the holder of a student visa.  He applied for a further student visa on 11 September 2013.  In his application form, he indicated that he had not completed an English language proficiency test within the preceding twenty-four months and proposed undertaking a diploma of marketing course, at a private education provider in Adelaide, from September 2013 onwards. 

3. On 19 September 2013, an officer within the Department of Immigration & Citizenship, as the Department for Immigration & Border Protection was then known, requested the applicant to supply further information in respect of his visa application. 

4. In particular, he was requested to provide evidence of his English language proficiency, through the provision of a satisfactory result in one of a number of prescribed English language tests.  He was advised that this test must not have been taken more than two years before the visa application was made otherwise it would not be acceptable to the Department. 

5. On 28 October 2013, a delegate of the Minister for Immigration & Border Protection refused the visa application on the basis that the applicant had not complied with the requirements of clause 572.223(2)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) in that he had not provided evidence of English competency as required.

6. On 18 November 2013 the applicant applied to the Tribunal for a review of that decision.  As a consequence of his application, the Tribunal invited Mr Singh to appear before it on 22 September 2014.  The invitation was issued to him on 19 August 2014. 

7. In the invitation letter, Mr Singh was advised that he was required to bring a number of documents to the hearing with him.  These included the following:

   ·A copy of a current certificate of enrolment in a course of study;

   ·Documents in respect of past studies undertaken by him in Australia;

   ·An explanation of any gaps appearing in his study enrolment history course and documentary evidence relevant to any such explanation;

   ·Evidence of English language proficiency requirements;

8. On or about 15 September 2014, the applicant wrote to the Tribunal requesting more time to provide these documents.  He reiterated this request in a later letter dated 22 September 2014.  In particular, he indicated that he had a booking receipt in respect of a test under the International English Language Testing System (IELTS). 

9. However, the hearing took place as scheduled on 22 September 2014, with a decision provided later on that day.  The Tribunal decision was to affirm the earlier decision of the Minister’s delegate not to grant the applicant the student visa in question. 

10. In particular, it was found that the applicant did not meet one of the prescribed conditions relating to the grant of such a visa, namely the Tribunal was not satisfied that the applicant was a genuine student in Australia and wished to remain in this country to pursue tertiary studies.

The grounds for review

1. In his application filed on 15 October 2014, the applicant seeks that the decision of the Tribunal be quashed.  He has prepared his own grounds of application, which are as follows:

   “I want to review my decision because I feel its not in my behalf [sic] .

   It all depends on my future.

   My mother was sick in 2013.  I was feeling very bad that time.  I was depressed that time and I can’t concentrate on my studies.  The Migration Tribunal didn’t give me the chance to complete my studies for bright future.  This is not fare [sic] with me.  My parents spend a lot money on my studies.  I want to fulfil my parents dreams, so please give me a chance to complete my studies here in Australia.”

2. Mr Singh’s affidavit in support of his application is a brief document, in which he states he seeks a review of the relevant decision because it is not in his favour and he wishes to complete his studies in Australia.

The decision of the Tribunal

1. The Tribunal considered whether the applicant met the relevant criterion, which had to be satisfied at the time of decision, in order to be granted the relevant visa.  The relevant clause 572.223(1)(a) reads as follows:

   “(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)     The applicant’s circumstances; and

   (ii)    The applicant’s immigration history; and

   (iii)If the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)    Any other relevant matter.”

2. The Tribunal also indicated that it was required to have regard to direction number 53, entitled assessing the genuine temporary entry criterion for student visa applications, which required it to have regard to a number of specified factors in relation to:

   ·The circumstances of any applicant in their home country and the value of the course to the applicant concerned in future;

   ·The applicant’s immigration history;

   ·Any other relevant information provided by the applicant.

3. The applicant gave evidence before the Tribunal and confirmed that he had arrived in Australia in February 2009.  He also indicated that he had last attended classes in 2012, which was confirmed by evidence available to the Tribunal, indicating that his last enrolment had been cancelled on 11 September 2012, for non-payment of fees.

4. The applicant further indicated to the Tribunal that he had lost money, sent to him by his parents in India, at the casino, which had impacted upon his ability to pay course fees.  He also indicated that this was the reason why he had not undertaken an IELTS test. 

5. In this context, the Tribunal noted that the applicant had been on notice, for a significant period of time, about the need for him to meet the English-language proficiency requirement, but had demonstrated little effort to meet it.  It further found that the applicant had demonstrated a poor academic performance, in the period of five and a half years, since he had arrived in Australia. 

6. In these circumstances, the Tribunal did not consider the applicant to be genuine in his application to stay temporarily in Australia, as a student.  It found as follows:

   “His history of academic performance over 5½ years in the tribunal’s view is poor.  He has not studied for 2 years which the tribunal considers is contrary to the applicant’s claim to be a genuine applicant for entry and stay in Australia temporarily as a student.  He gave evidence that he has not done so due to his gambling habits.  Despite having his student visa application rejected in October 2013 the applicant made no arrangements to undertake an IELTS test or other means by which he could demonstrate he met the English-language proficiency requirements until after he was advised of the tribunal hearing.  He claims not to have had the money to do so because of his gambling habits.  Although he claims now to overcome that problem and has had himself barred from the casino, the tribunal notes that the applicant has not studied since September 2012 and that his stated failure to book an IELTS test any earlier than October 2014 was because he didn’t have the funds to do so.  The tribunal does not necessarily accept that the applicant in fact lost all his funds of the casino as he claimed, noting it has some doubts as to the credibility of the applicant’s evidence.  He initially told the tribunal for example that he had last studied in the 2013 and only after information from PRISMS records was put to him did he concede he had not done so and had not so since September 2012.”[1]

   [1]  See casebook at 52 [18]

7. Given its finding that the applicant was not a genuine student, the Tribunal declined to provide the applicant with more time to undertake his IELTS test.  This decision was influenced by the Tribunal’s finding that the applicant was not a credible witness, as he had been found to be unreliable in his evidence regarding his academic history, which was inconsistent with the independent electronic data base available to the Tribunal. 

The legal principles applicable

1. The legal principles applying to applications of this type are complex.  I will do my best to explain them.  In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did. 

2. Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

3. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Migration Review Tribunal.  Part VIII of the Act deals with judicial review.  Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

4. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the MRT by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

5. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions.  A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[2] 

   [2]  See Migration Act at section 5

6. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

7. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision.  As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act. 

8. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[3]

   [3]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

9. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[4]

   [4]  See Craig v South Australia (1995) 184 CLR 163

10. As previously indicated, jurisdictional error is a complex concept.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction. 

Consideration

1. In his application, the applicant is apparently seeking to raise issues relating to his mother’s ill health and his own mental wellbeing, which he purports are relevant to his failure to complete his studies. 

2. This material was not raised by him before the Tribunal.  In this context, it is important to note again that this is not a re-hearing of the merits.  As such, it is not open to this court to admit fresh evidence, unless it bears on some asserted jurisdictional error. 

3. As Nicholson J stated in MZXHY v Minister for Immigration & Citizenship[5] it is not open for an applicant, on judicial review, to ask the court to admit new evidence for the purpose of inviting the reviewing court to disagree with a factual conclusion reached by the Tribunal concerned. 

   [5]  See MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 at [8]

4. In addition, I am satisfied that the applicant was given an ample opportunity to put his case before the Tribunal.  As the High Court (Gummow and Hayne JJ) held in Abebe v Commonwealth[6] it is for the applicant to advance whatever evidence or argument he wishes to advance, not for the Tribunal to tease out the case from him or her. 

   [6]  See Abebe v Commonwealth (1999) 197 CL 510 at 576

5. As I am at pains to point out, the court is only entitled to intervene in respect of the Tribunal’s decision if some jurisdictional error in the exercise of the Tribunal’s discretion can be discerned. I have no authority to substitute my own findings in respect of the evidence proffered before the Tribunal.

6. In this particular case, I can find no indication of such an error.  In my view, the Tribunal exercised its jurisdiction arising under the applicable regulation, and made logical findings of fact from the evidence available to it. 

7. In the exercise of its functions under the Act, the Tribunal is required to provide a mechanism of review that is fair, just, economical, informal and quick [section 353].  It is authorised to adjourn, refuse before it from time to time [section 363].  The power to adjourn proceedings is one which must be exercised reasonably.  See Kruger v Commonwealth[7]. 

   [7]  See Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ

8. In this case, the applicant sought to adjourn the hearing before the Tribunal, a short time prior to the date scheduled for its commencement, in order to comply with the request made of him to supply various documents, including proof of English proficiency, to the Tribunal. 

9. The Tribunal declined this application on the basis that Mr Singh had been on notice for a considerable period of time in respect of the requirement that he formally establish his proficiency in English.  In this context, the Tribunal also noted the applicant’s poor academic history, which had occurred over the period of approximately 5½ years, whilst Mr Singh had been in Australia. 

10. As previously indicated, the Tribunal has authority to adjourn proceedings from time to time.  It is not obliged to grant every application for adjournment, which comes before it.  However, it must not unreasonably withhold an adjournment of the proceedings before it, in appropriate instances.

11. In Minister for Immigration & Citizenship v Li[8]under the heading Judging Unreasonableness Gageler J said as follows:

    “Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”

    [8]  See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at 256

12. Also in Li, Hayne, Kiefel and Bell JJ said as follows:

    “It cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence.  Of course, it may decide, in an appropriate case, that ‘enough is enough’, but it is not apparent how that conclusion was reached in the present case…

13. In this case, I do not think that is was unreasonable for the Tribunal to refuse the application for an adjournment.  Given the length of time Mr Singh had been in Australia and his unsatisfactory academic performance during that period, in my view, the Tribunal was under no obligation to adjourn the proceedings in order to allow Mr Singh to complete an IELTS test. 

14. In any event, the visa proviso required that satisfactory proof of English proficiency be obtained in the period of two years prior to the application for the visa in question.  In these circumstances, there is merit in the submission of counsel for the Minister, Ms Stokes that it would be futile to refer the matter back to the Tribunal on this basis. 

15. In my view, the record of decision discloses no jurisdictional error in respect of the exercise of the Tribunal’s discretion to adjourn proceedings arising under section 363.  In addition, I can find no other jurisdictional error in the findings of the Tribunal that the applicant was not a genuine applicant for entry and stay, in Australia, as a student. 

16. Accordingly, I have come to the view that Mr Singh has not established that he has an arguable case for the relief sought and therefore his application should be dismissed and an order for costs made, in the Minister’s favour in the sum of $6,646.00.

17. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  2 September 2015