SINGH v Minister for Immigration

[2015] FCCA 1004

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1004

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) visa – procedural fairness – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, s.476
Migration Regulations 1994 Schedule 2 cl.573.223

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: GUPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 729 of 2015

Judgment of: Judge Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondent: Mr T. Galvin
Minter Ellison

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 729 of 2015

GUPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW 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 in respect of a decision by the Tribunal made on 20 February 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. 

2. The application identifies the following grounds:

   1. The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.

   Particulars:

   a. The Applicant applied for a review with the Migration Review Tribunal (Second Respondent). As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent.

   b. The Second Respondent was bound by s359 of the Migration Act 1958 to invite the applicant to provide further information. If the information was submitted to the satisfaction of the Second Respondent, then a hearing might not have been required and a favourable decision could have been made.

   c. The Applicant appeared for the hearing on 18 February 2015. Prior to this date, the Applicant submitted substantial evidence outlining his Exceptional circumstances with the Confirmation of Enrollment (Coe) and Course progress report which was given by his current education provider. The Tribunal failed to consider the nature of the Applicant's mental state and did not even mention what the illness was in its decision. At 22 the Tribunal made a credibility finding about the nature of the applicant's intention of study and the nature of his Father's business.

   d. The Applicant made several requests to the Second Respondent to allow additional time to obtain further evidence but it was not allowed and hence denied the Applicant procedural fairness.

   2. The Second Respondent decision was so unreasonable that no reasonable Tribunal member would have made it.

   Particulars:

   a) The Applicant could not continue study because of exceptional circumstances. The Applicant could not study because of his mental torment and his Mother's Illness.

   b) After waiting a considerable time to begin processing the Applicant's application the Tribunal refused to allow any further time for the Application to provide further evidence. In the circumstances where the Tribunal failed to have proper regard to the medical evidence it acted unreasonably.

   3. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness or failed to take into account relevant considerations in refusing the application request for an adjournment or additional time to provide a current COE letter. The Applicant relies on the principle in Minister for Immigration and Citizenship v Li [2013] HCA J 8 (8 May 2013 ).

   Particulars

   a. The applicant relies on the particulars in grounds 1 and 2 above.

3. The application also identifies on the first Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. The first respondent informed the Court that there was no reason why this matter should not be dealt with summarily. The Court identified to the applicant that it is concerned that the application failed to disclose an arguable jurisdictional error, having taken into account the decision of the Tribunal.  In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118.

5. There is no substance in relation to ground 1(a), as it is clear the Tribunal conducted a hearing in which the applicant appeared on 18 February 2015 to present arguments and had the assistance on that occasion of both presenting the case in English and in Punjabi. 

6. The applicant indicated to the Court that he understood English and was content to have the matter proceed today in English.  There was no application for any adjournment for an interpreter.  The Court informed the applicant to identify if there was anything said that he didn’t understand.  The Court explained to the applicant that this is not a Court of Appeal and does not have jurisdiction to review the matter on its merits.  The Court invited the applicant as to whether there was anything further the applicant wished to say in support of the grounds of the application, and the applicant indicated there was nothing further to be put. 

7. It is not necessary for the Tribunal under s.359 to invite the applicant to comment on the conclusions it has formed as to the issues of credit.  Relevantly in this case, the critical issue which the Tribunal found that it was not satisfied the applicant intends genuinely to stay in Australia temporarily.  That was a finding of fact by the Tribunal.  It was a finding of fact that was open on the material before the Tribunal, and nothing in ground 1(a) or 1(b) identifies any arguable jurisdictional error. 

8. In relation to ground 1(c), it was a matter for the Tribunal to determine the applicant’s credit, and ground 1(c) fails to disclose any arguable jurisdictional error.  In relation to ground 1(d), it’s clear that the applicant maintained in submissions dated 10 February 2015 before the hearing on 18 February that he was a genuine student with a real intention of completing particular degrees. It was open to the Tribunal to proceed to determine the matter on 18 February 2015 following the hearing without granting any further adjournment.  There is no substance in relation to ground 1(d), and it does not disclose any arguable jurisdictional error. 

9. In relation to grounds 2 and 3, it cannot be said that the Tribunal’s decision to proceed to deal with the matter in light of the material before it was disproportionate or that it lacked genuine and evident justification.  There was no denial of procedural fairness by the Tribunal proceeding to decide the matter following the hearing on 18 February 2015.  The findings made by the Tribunal were open and cannot be said to lack an intelligible justification.  There is no arguable jurisdictional error identified by ground 2 or ground 3. 

10. The Tribunal identified that the applicant applied for the visa on 20 June 2014, which the delegate declined to grant on 11 August 2014. The Tribunal carefully identified the claims and evidence in relation to the application which the delegate had refused on the basis that the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 of the Regulations, because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia. The Tribunal carefully identified the material before the Tribunal with respect to the applicant’s studies and identified the adverse conclusion of the delegate in para.12 as follows:

    12. The delegate concluded in her decision of 11 August 2014 that overall, given the applicant’s lack of academic progress, his immigration and study history, his potential circumstances in Australia and the lack of value of the courses to his future, she was not satisfied that he was a genuine applicant for entry and stay as a student; and that he was using the Student visa program to circumvent permanent migration.

11. The Tribunal identified the material provided by the applicant prior to the hearing, and relevantly:

    14. On 10 February 2015 ahead of the hearing, the applicant provided to the Tribunal a submission in which he posited that: ‘I am a genuine student with the real intention of completing a Business Diploma and Degree so that I can now go back home and take over my Father’s Real Estate Business’. He attributed his lack of academic progress between 2008 and 2011 to his mother’s illness and stated that he had a ‘wake-up call’ in 2011 when his father counselled him that, as the only son, he wanted him to study ‘something along the Business line’ so he could take on the real estate business on his return. For this reason the applicant completed Certificate IV in Business Administration, Diploma of Management and Advanced Diploma of Management. The applicant advised that he was now studying for a Bachelor of Business (Management) degree.

    15. With this submission, the applicant submitted various academic certificates and transcripts, including an Academic Progress Statement indicating that he commenced a Bachelor of Business in November 2014; a letter from a psychologist, indicating that the applicant was ‘unable to attend a few of his classes between 12 January and 27 February 2009 due to stress and anxiety; and an undated letter from a doctor in India stating that the applicant’s mother was suffering from hypertension and anxiety neurosis, requiring assistance from the applicant from 7 to 19 March 2011 as his father could not time off work as ‘a government servant’. In the Tribunal’s view, the two medical documents do not overcome concern about the significant gaps in his studies as evident at paragraph 9. Moreover the reference to his father’s employment as a ‘government servant’ is inconsistent with the information he provided to the Department about his father running a real estate business at paragraph 11 and exacerbates the concern expressed by the delegate at paragraph 13 regarding the existence of this business.

12. The Tribunal noted that in the seven years that the applicant had been in Australia, he had only completed four courses, which were identified by the Tribunal.  The Tribunal explained the primary purpose of the student visa was to enable an international student to study a registered course in Australia and progress academically before returning to their country, which the applicant acknowledged he understood. 

13. The applicant identified to the Tribunal his proposed business plan and the jobs he had undertaken whilst in Australia.  The Tribunal had doubts about the applicant’s desire in relation to the real estate business as expressed in para.22 as follows:

    22. As discussed with the applicant, the Tribunal is concerned that, having been in Australia for seven years, he has only completed one English language course and three short courses; applied for a TU 572 student visa to study Marketing in June 2014 but did not pursue it; and switched to a Bachelor of Business degree course. While the applicant claims that he really wants to complete his degree course and go home to start his business, the Tribunal is not satisfied that, in light of his erratic study history, he may not again change his mind. Moreover, the applicant’s vagueness about his proposed real estate business and inconsistencies in his evidence as to whether his father has an existing real estate business, as he submitted to the Department and the Tribunal; or is employed in a bank or as a ‘government servant’, raises doubts as to the applicant’s veracity about this issue, compounding the reservations expressed by the delegate about the existence of such a family business at paragraph 13.

14. The Tribunal did note that the applicant had returned to India on several occasions, but nonetheless the Tribunal came to an adverse finding in paragraph 24 as follows:

    24. On the basis of all the evidence before it, including the evidence regarding the applicant’s circumstances, immigration history, and other matters it considers relevant, as well as the significant, multiple and cumulative concerns detailed above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal finds that the applicant does not meet cl.573.223(1)(a).

15. The Tribunal then made adverse findings in para.25 as follows:

    25. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

16. I am clearly satisfied that the proceedings are doomed to failure, satisfied the applicant had a genuine hearing, and that the Tribunal conducted its review in accordance with the statutory regime.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The Court proceedings are summarily dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 April 2015