Singh v Minister for Immigration

[2015] FCCA 725

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 725

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – application discloses no formal grounds – inchoate plea for fairness – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5; 474; 476(1); 476(2)

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163

Applicant: GURWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 280 of 2014

Judgment of: Judge Brown

Hearing date: 24 March 2015

Date of Last Submission: 24 March 2015

Delivered at: Adelaide

Delivered on: 17 April 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Mr Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 28 July 2014 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of six thousand and six hundred and forty six dollars ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 280 of 2014

GURWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for the issue of constitutional writs in respect of a decision of the Migration Review Tribunal “the MRT” made on 10 July 2014. 

2. The relevant decision affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection not to grant the applicant, Gurwinder Singh a student (temporary) (class TU) visa “the visa” pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.

3. The applicant is a citizen of India.  He is married to Gurpeet Kaur, who is also a citizen of India.  The applicant and Ms Kaur were married, at Lidcombe, in New South Wales, on 10 March 2012.[1]

   [1]  See casebook at 19

4. On 20 August 2012, Ms Kaur applied for a student visa.  She intended to complete a Masters’ Degree in Accounting at a private college in Adelaide.  It is convenient to refer to Ms Kaur as “the primary visa applicant”. 

5. The applicant in these proceedings, Mr Singh, applied for the visa applicable to him, as a dependant of Ms Kaur.  It is convenient to refer to him as a “secondary applicant”.  His entitlement to the visa in question depending on Ms Kaur successfully holding the same category of visa, as did he, at the time of application. 

6. On 6 September 2012, a delegate of the Minister wrote to Ms Kaur requesting her to comment in respect of some information held by the Department, which was considered to be adverse to Mr Singh’s application.  This information related to work purportedly undertaken by the applicant.  In this context, Ms Kaur was advised that it was a condition of Mr Singh’s visa that he work no more than twenty hours per fortnight.[2]

   [2]  See casebook at 53-55

7. Payslips relevant to Mr Singh, which the Department had received, indicated that he had worked more than eighty hours per fortnight during August of 2012.  In response, Mr Singh wrote to the delegate on 9 September 2012 and indicated that he had been uncertain of the conditions attaching to the visa and had been driven to work through financial necessity.[3]

   [3]  See casebook at 57-58

8. On 15 October 2012, Ms Kaur was granted a temporary (class TU) higher education sector (subclass 573) visa.  The cessation date for the visa was 13 September 2013 and it was subject to various conditions.[4]

   [4]  See casebook at 95

9. On the same day (15 October 2012) the delegate refused to grant Mr Singh the secondary visa, for which he had applied and which was dependent upon Ms Kaur’s visa application.  In lieu thereof, Mr Singh was granted a bridging visa.[5]

   [5]  See casebook at 96

10. The reason Mr Singh’s visa was refused that the delegate considered that “Mr Singh had not substantially complied with the conditions of any substantive or bridging visa held”, as he had been working more hours than his visa permitted. 

11. As a consequence of this decision, on 19 October 2012, the applicant applied for a review of the delegate’s decision to the MRT.  On 4 June 2014, Mr Singh was invited to appear before the Tribunal to give evidence and present any arguments relating to the issues in his case.  The date at which this would occur was scheduled for 7 July 2014. 

12. On 24 June 2014, Mr Singh’s representative wrote to the MRT in order to make submissions on Mr Singh’s behalf.  The thrust of these submissions related to the circumstances of Mr Singh’s employment during August of 2012 and asserted that he had “only breached condition 8104 for approximately one month [of his] three year period [of residence in Australia].”

13. Germane to the present application, in the letter from the applicant’s representative, the following concession was made:

    “Our client’s partner, Mrs Gurpeet Kaur and his son born in Australia on 17/8/2013 have both been granted temporary graduate (subclass 485) visas since the refusal.  Our client’s partner has completed her Master of Accounting and is awaiting a placement in an accounting firm.”[6]

    [6]  See casebook at 148

14. Ms Kaur was informed of the fact that she had been granted a temporary graduate visa on 2 May 2014.  On the same day, the applicant and Ms Kaur’s son, Yashveer Singh was granted the same visa, which no doubt was dependent on his mother’s visa.  As a consequence, from 2 May 2014 onwards, Ms Kaur no longer held (nor was entitled to hold) a student visa.

The decision of the MRT

1. The MRT noted that the grant of the visa was subject to the satisfaction of criteria stipulated in clause 573.322 of the Migration Regulations 1994.  These criteria are designated as required “to be satisfied at time of decision.”  One of the mandatory criteria reads as follows:

   “The applicant is a member of the family unit of a person (the primary person):

   (a) who is the holder of a subclass 560 or 562 visa …”

2. In this context, the MRT noted that the applicant had given evidence that Ms Kaur no longer held a student visa, but rather had held a temporary graduate visa since 2 May 2014. 

3. The Tribunal asked Mr Singh to comment on the situation, which had arisen since 2 May 2014, which had resulted in him seeking to review a decision regarding a secondary visa application, in respect of a visa, which his wife no longer held. 

4. In this context, Mr Singh: “… maintained that he should be given one as well.  The Tribunal explained that it did not have the power to either grant the applicant a visa or to consider him against the criteria for a subclass 485 visa [temporary graduate visa].”[7]

   [7]  See casebook at 161 [11]

5. As a consequence of its finding that the applicant was no longer in a position to apply for a secondary student visa, because his partner no longer such a visa, the MRT made the following findings:

   “The visa application was made on the basis that the applicant is a member of the family unit of a person who satisfied the primary criteria for a Subclass 573 visa and who is the holder of the visa.  However, in his pre-hearing submission the representative indicated that the applicant’s partner, who was the primary applicant for the visa, has completed her Master of Accounting and. Along with the parties’ infant son, has since been granted Temporary Graduate (Subclass 485) visas.  Accompanying the submission was evidence that on 2 May 2014 the applicant’s partner and son were granted Subclass 485 visas.  At his Tribunal hearing, the applicant confirmed that his wife now holds a Subclass 485 visa.

   On the basis of the above, the Tribunal finds that the applicant is not a member of the family unit of a person who satisfies, or has satisfied, the primary criteria in Subdivision 573.21 and 573.22 and who will be or has been granted a visa in relation to a course of study of 12 months duration or more.  There is also no evidence that the applicant satisfies any of the alternate limbs of cl.573.322.  Accordingly, the applicant does not meet cl.573.322.

   For these reasons, the Tribunal finds that criteria for the grant of a Subclass 573 visa are not met.  As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.”[8]

   [8]  See MRT decision dated 10 July 2014 at 14-16

6. Under the heading Ministerial Intervention the MRT alluded to what might be regarded as an anomalous situation so far as the applicant was concerned. 

7. In particular it is the case that the applicant has remained in a relationship with Ms Kaur during the entire review process.  However, during this period Ms Kaur had progressed from a student visa to a graduate visa. 

8. As a consequence of this, the MRT effectively determined that Mr Singh’s review application was futile, as Mr Singh was effectively applying for a different type of visa to that held by the person on whom his application depended.  It is also the case that the MRT determined the review application on a different basis to the Minister’s delegate.  In this context, the MRT noted as follows:

   “The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.  Those guidelines indicate that the Minister will generally only consider exercising his public interest powers in cases which are referred to the Department by a review tribunal or which exhibit one or more unique or exceptional circumstances.

   The Tribunal has considered the various matters raised by the applicant and his representative.  However, the Tribunal does not consider it appropriate to refer this matter to the Minister on the basis of those submissions.  It does, of course, remain open to the applicant to apply directly to the Minister to consider exercising his powers under s.351 of the Act.”[9]

   [9]  See casebook at 162

The application to the court

1. Mr Singh commenced the present proceedings on 28 July 2014.  He seeks that the decision of the MRT made on 7 July 2014 be quashed.  He has prepared his own application.  He has provided no grounds whatsoever in support of his application. 

2. As required by the rules of court, he filed an affidavit in support of his application.  He has completed a proforma affidavit form in his own handwriting.  In effect, his affidavit affirms that his name and address are true. 

3. Mr Singh was not represented before the court.  He was however assisted by a Punjabi interpreter.  Mr Singh was unable to advance any other ground of appeal. 

4. As best I can understand his submissions, he asserted that it was unfair that the Department had “opened another file for his wife” but had not opened one for him.  From this I infer that Mr Singh regards it as grossly unfair to him that his wife has been granted a different visa from the type of visa on which his application is dependent, which is the subject of the review proceedings both before this court and the MRT. 

The applicable legal considerations

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.[10] 

   [10]  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.[11]

   [11]  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.[12]

   [12]  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. 

Conclusions

1. I acknowledge that the applicant has extreme difficulties in mounting his application to the court.  In a formal sense, he has provided no grounds on which he challenges the decision of the MRT.  In essence, his submissions to the court are an inchoate plea that it is unfair that the rug has been pulled from under him as a consequence of Ms Kaur’s change of visa. 

2. Notwithstanding Mr Singh’s perception that this situation is anomalous and unfair, I can discern no legal error in the reasoning of the MRT.  It was required to consider whether the applicant had satisfied a mandatory criterion relating to whether or not Mr Singh was a family member of a person who held a student visa.

3. This was a time of decision criterion.  The evidence, which was uncontroverted by the applicant, was that at the time of decision Ms Kaur no longer held a student visa.  Accordingly, the MRT was obliged to dismiss the application for review. 

4. I accept, as did the MRT, that neither this court nor the Tribunal has the authority to grant a different visa to the applicant, which accords with the current visa status of Ms Kaur. 

5. The court’s authority, as with the MRT, is only to review migration decisions not to conduct other hearings arising under the Act. 

6. There being no discernible legal error, the application must be dismissed.  The first respondent seeks costs in the sum of $6,646.00.  In this case I accept that costs should follow the result.

7. 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-three (43) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:         17 April 2015