SINGH v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2347
Catchwords:
MIGRATION – Judicial Review – Student Visa.

Legislation:

Migration Act 1958 (Cth), ss.116, 474, 476
Migration Regulations 1994
Abebe v Commonwealth (1999) 197 CLR 510
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948 1 KB 223
Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 323
Minister for Immigration and Citizenship v MZYNN [2012] FCA 117
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC
SZRPT v Minister for Immigration and Border Protection [2004] FCA 24
Waterford v Commonwealth (1987) 163 CLR 54
Applicant: SHAGANDEEP SINGH
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: BRG 65 of 2015
Judgment of: Judge Howard
Hearing date: 14 July 2015
Date of Last Submission: 21 July 2015
Delivered at: Brisbane
Delivered on: 28 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Travers
Solicitors for the Applicant: Chand Lawyers
Counsel for the Respondents: Mr McGlade
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. That the Application filed 20 January 2015 be dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 65 of 2015

SHAGANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

  1. The applicant is a national of India. 

  2. On 15 January 2014 the applicant was granted a student visa in subclass 573.  He entered Australia as a holder of that visa on 27 January 2014. 

  3. The visa was granted to the applicant on the basis that he was enrolled in a Bachelor of Information Technology course at the Queensland University of Technology.  That course was due to commence in approximately June 2014. 

  4. Prior to commencing the bachelor course the applicant had enrolled to study a Certificate IV in IT and a Diploma of IT.  It seems that these were prerequisite courses for the Bachelor of Information Technology course at Queensland University of Technology.

  5. Shortly after arriving in Australia on 27 January 2014 the applicant commenced his studies in the Certificate IV in IT course. 

  6. Evidently, the applicant found the Certificate IV (IT) course difficult.  He therefore decided to change direction. 

  7. As part of this change of heart the applicant (while he was still apparently undertaking the Certificate IV (IT) course) obtained a confirmation in another course – namely a Certificate IV in Commercial Cookery at Spencer College.  The applicant commenced the Certificate IV in Commercial Cookery at Spencer College after the Certificate IV in IT course had been completed.  He also obtained a confirmation of enrolment in relation to a further course – namely a Diploma of Hospitality.

  8. On 18 June 2014 the applicant’s enrolment at the Queensland University of Technology in the Bachelor of Information Technology course was cancelled.  The enrolment was cancelled because of the applicant’s “non commencement of studies”.

  9. Courses specified for a student (temporary) (class TU)…

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Details
Case
[2015] FCCA 2347
Decision Date

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the applicant's contention that a particular finding of fact made by the Tribunal was "unreasonable". The matter came before Judge Howard.

The legal issue before the court was whether the principle of "Wednesbury unreasonableness" could be applied to an individual finding of fact made by the Tribunal, or if it was confined to the validity of discretionary decisions.

Judge Howard reasoned that the principle of "Wednesbury unreasonableness", as established in *Associated Provincial Picture Houses Limited v Wednesbury Corporation* and elaborated upon in *Minister for Immigration & Citizenship v Li*, applies only to the review of discretionary decisions. His Honour noted that the High Court in *Li* and the Federal Court in *MZYNN* and *SZOOR v Minister for Immigration and Citizenship* have made it clear that this standard of unreasonableness is not applicable to individual findings of fact. Therefore, the applicant's contention that the Tribunal's finding of fact was unreasonable could not be relied upon.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230 Lord Greene MR stated:“…if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere…” In Minister for Immigration & Citizenship v Li (2013) 249 CLR 323 at paragraphs 106 and 108, Gageler J stated:-“106. The label “Wednesbury unreasonableness” indicates “the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion” Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken “attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground”.…108. Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.” I also note the comments of Hayne, Keifel and Bell JJ in paragraph 66 of the High Court’s decision in Li where their Honours noted:“66. This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker…” I note, in particular what was said by Gray J in Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177. His Honour noted at paragraph 46:-“[46] Even assuming that it would be permissible for the court to apply the unreasonableness principle in the present case, it is a principle that can only be applied to the tribunal’s decision to affirm the refusal to grant the first respondent a protection visa. It is not a principle application to an individual finding of fact.” Further, in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 McKerrarcher J (with whom Reeves J agreed) stated:-“[83]…it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions.” The applicant’s contention that the particular finding of fact made by the Tribunal was “unreasonable” – is, in fact, not a contention upon which the applicant can rely. It is not open to the applicant because – “unreasonableness” is not a ground applicable to individual findings of fact.

Ratio Decidendi

Legal Principle Established

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