SINGH v Minister for Immigration

[2015] FCCA 1806

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1806

Catchwords:
MIGRATION ­– Temporary Business Entry (Class UC) visa – applicant did not satisfy relevant criteria – no jurisdictional error.

Legislation:  

Migration Regulations1994, reg.457.211(b)(ii), schedule 3, cll.3003, 3004, 3005

Minister for Immigration v SZFDE [2006] 92 ALD 1

Applicant: JASBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 556 of 2014

Judgment of: Judge Jarrett

Hearing date: 19 June 2015

Date of Last Submission: 19 June 2015

Delivered at: Brisbane

Delivered on: 19 June 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms E. Tattersall

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 23 June, 2014 is dismissed.

2. The applicant pay the first respondent’s costs of an incidental to the application fixed in the sum of $5800. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 556 of 2014

JASBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. By his application filed on 23 June, 2014 the applicant seeks judicial review of a decision of a migration review tribunal that was given on 19 May, 2014.  That decision affirmed a decision of a delegate of the first respondent made in May, 2013 to refuse to grant to the applicant a Temporary Business Entry (Class UC) visa.

2. When the proceedings were commenced in this Court, directions were made for each of the parties to file written submissions.  The first respondent has filed written submissions, but the applicant has not.  The second respondent has entered a submitting appearance.

3. The material demonstrates that the applicant is a citizen of India.  He has previously held an Education Sector visa which ceased on 15 June, 2011.  After that time he did not hold a further substantive visa.

4. On 4 March, 2013 the applicant departed Australia and went to Fiji.  The next day he came back.  He arrived according to the material before me, at about 6.00pm.  On either 5 March, 2013 or 6 March, 2013 the visa application, which is ultimately the subject of these proceedings, was lodged by his agent.  In colloquial terms, he applied for a 457 visa.   

5. The applicant made at the same time, an application for a business nomination so that there was in place a sponsor to support his own visa application.  That business nomination was approved on 6 March, 2013.

6. Whilst the business nomination was approved, upon considering the applicant’s application, the first respondent, by his delegate, became concerned that at the time the visa application was lodged the applicant did not hold a substantive visa.

7. That was important because, depending upon whether he held a substantive visa or not, certain criteria specified in schedule 3 of the Migration Regulations1994 might have to be satisfied by him. Because he did not hold a substantive visa at the time his visa application was lodged the first respondent’s delegate determined that the applicant was required to demonstrate that he satisfied the criterion in schedule 3 to the Migration Regulations, and in particular, criteria 3003, 3004 and 3005.

8. On 24 May, 2013 the first respondent’s delegate refused the grant of the visa to the applicant on the basis that he was unable to satisfy clause 457.211(b)(ii) of the Regulations which, in turn, draw upon criteria 3003, 3004 and 3005 of schedule 2 to the Regulations. Specifically, the delegate was of the view that the applicant could not demonstrate compelling reasons for the grant of the visa having regard to criterion 3004 in schedule 3 to the Regulations.

9. The applicant lodged an application for a review of that decision by a migration review tribunal.  By the time the matter was dealt with in the tribunal, the business nomination that had been approved on 6 March, 2013 had expired.  The applicant was without a business sponsor and he asked for an adjournment of the tribunal determination, or a deferment of the tribunal’s determination, until such time as he could organise another business sponsor.

10. The tribunal declined and set a hearing date for the applicant to attend and to present his arguments and give evidence before the tribunal.  That occurred on 15 May, 2103 and subsequently the tribunal determined to affirm the decision under review.

11. The tribunal’s decision is not very lengthy, but it is clear enough in its terms.  The tribunal found that the applicant was not a holder of a substantive visa at the time he lodged his application.  It determined that he lodged his application on 6 March, 2013 when he was present in Australia.  I will return to that issue shortly, but for present purposes, that was the tribunal’s determination.

12. Accordingly, the tribunal was of the view that the applicant needed to meet the criteria in clause 457.211 of schedule 2 of the Migration Regulations, and that, in turn, required him to demonstrate compliance with, or engage with, criteria 3003, 3004 and 3005 of schedule 3 to the Regulations.

13. For the purposes of the tribunal proceedings, the tribunal said this:

    The issue in this case is whether the applicant meets criterion 3004(d) which requires that there are compelling reasons for the grant of the visa.

14. On the basis of the facts determined by the tribunal that was the issue before it was entirely accurate.  The tribunal then, in paragraphs 9 through to 18 of its decision, considered the matters raised by the applicant as amounting to compelling reasons for the grant of the visa.  The tribunal recounted the procedural history, the fact that the applicant originally had a business sponsor which had, by the time the matter was before the tribunal, expired.  The tribunal took into account each of the matters raised by the applicant.

15. The first matter raised by the applicant was that he had received poor advice from his migration lawyer who had told him to depart the country and to remain outside of the country, presumably with a view to lodging a visa application whilst he was outside of the migration zone, and then to return to the country on 5 March. He says, and the tribunal records that he said, that his lawyer did not lodge the application until 6 March, 2013 and so he was caught by a schedule 3 and the criteria to which I have earlier referred.

16. He raised with the tribunal the fact that he did not have the business sponsor at the time the matter was before the tribunal, but his previous sponsor had hired someone else after his visa application was refused and the applicant was currently looking for a new sponsor.  That process had not been completed. 

17. The applicant argued to the tribunal that he had always complied with the immigration laws, apart from when he was trying to extend his student visa.  There was a difficulty with his last student visa.  He was trying to change colleges, apparently, and that caused some difficulty with his student visa which either ultimately expired by a effluxion of time or was cancelled. 

18. He told the tribunal that those matters amounted to compelling reasons.  He wanted to say in Australia to work. 

19. The tribunal considered each of those claims, its reasons make that plain.  The tribunal determined that those matters, either individually or collectively, did not amount to compelling reasons for granting the visa, and so, the tribunal affirmed the decision under review.

20. In these proceedings, the applicant contends that the tribunal’s decision was affected by jurisdictional error.  The grounds of his application are set out in three paragraphs as follows:

    (1)    Applicant failed to meet the requirement because of ignorance and greed of immigration consultant.

    (2)    My case was refused because of schedule 3 requirement.  I was told by Department that my case had been refused on the grounds that I don’t satisfy criteria of the application.

    (3)    No criteria were mentioned to me earlier while lodging my application.  I want court to request me a waiver and quash.

21. The grounds, plainly not drawn by a lawyer, do not raise, in my view, any arguable case of jurisdictional error.  The tribunal’s reasons do not reveal any jurisdictional error on its part. 

22. The first ground of review, the suggested ignorance and greed of the immigration consultant, the poor advice received by the applicant in respect of the procedure to be adopted to, as it were, get around the schedule 3 requirement, is, even if proved in the evidence, insufficient to amount, in my view, to a jurisdictional error.

23. The first respondent points me to the decision of French J, as his Honour then was, in Minister for Immigration v SZFDE [2006] 92 ALD 1 at page 34. It is the case, it seems, that error which is constituted by bad or negligent advice by an adviser, short of fraudulent activity, does not generally give rise to jurisdictional error. It is difficult to see here how acting on the advice of a lawyer amounts to jurisdictional error on the part of the tribunal.

24. The second ground lacks particularity.  All it simply does is to restate the tribunal’s determination that the applicant did not satisfy a relevant criterion.  On the material disclosed in the court book and in the tribunal’s reasons it is clear that the applicant did not satisfy the relevant criterion.

25. The third ground of review cavils, again, with the merits of the tribunal’s decision.  There is nothing in that ground.

26. The first respondent points out in both written and oral submission that there might be an error of fact on the face of the tribunal’s reasons.  The tribunal determined that the relevant visa application was made on 6 March, 2013.  There is some evidence that suggests that that application might have been made on 5 March, 2013 and depending upon the time of day that it was made, it might be the case that the applicant was outside of the migration zone when the application was lodged. 

27. I accept the first respondent’s argument, however, that whether the application was lodged on 5 March or 6 March does not much matter in this case because whenever it was lodged, the applicant was always going to have to meet the requirements of schedule 3 and criterion 3004. On the tribunal’s findings he was unable to do so.

28. In my view, the application must be dismissed because no jurisdictional error is demonstrated on the part of the tribunal.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 19 June, 2015.

Associate: 

Date:  6 July 2015