SINGH v Minister for Immigration

[2014] FCCA 1941

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1941

Catchwords:
MIGRATION – Application for review of a decision of the Migration Review Tribunal not to grant a Student (Temporary) (Class TU) visa – Tribunal found Applicant had not substantially complied with conditions of previous visa – no error on part of the Tribunal – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), cls.572 of Sch.2, conditions 8202 and 8516 of Sch.8

Kim v Witton and Anor (1995) 59 FCR 258

First Applicant: AMANDEEP SINGH

Second Applicant: PARMINDER KAUR

Third Applicant: ARMIN SINGH GREWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2035 of 2013

Judgment of: Judge Whelan

Hearing date: 19 August 2014

Date of Last Submission: 19 August 2014

Delivered at: Melbourne

Delivered on: 19 August 2014

REPRESENTATION

Counsel for the Applicants: Applicants appeared in person

Counsel for the First Respondent: Mr C McDermott

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application filed on 25 November 2013 be dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $2,950.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2035 of 2013

AMANDEEP SINGH

First Applicant

PARMINDER KAUR

Second Applicant

ARMIN SINGH GREWAL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application[1] for judicial review (“the application”) of a decision of the Migration Review Tribunal (“the Tribunal”) of

   
   

   22 October 2013 to affirm the decision of a delegate of the Minister to refuse to grant the Applicants’ Student (Temporary) (Class TU) visas.

   [1] Application filed 25 November 2013.

2. The Applicants seek the following orders:

   An order that the decision of the Tribunal be quashed.

   A WRIT OF MANDAMUS directed to the tribunal , [sic] requiring them to determine the applicant’s application for review according to law.

   A WRIT OF PROHIBITION preventing the first Respondent, his servants and agents from acting upon or giving effect to the Tribunal’s decision.

   Such other relief as the court considers appropriate.

   Costs be awarded in favour of the applicants.[2]

   [2] Application filed 25 November 2013 at p.3.

Background

1. The First Applicant arrived in Australia in 2008 to study commercial cookery and completed a Diploma of Hospitality at Holmes College between 9 February 2009 and 13 June 2012. At this time, he held a Subclass 573 Higher Education Sector visa. On 26 August 2012, the First Applicant, his wife, (“the Second Applicant”) and his child

   
   

   (“the Third Applicant”) applied for a Student (Temporary) (Class TU) Subclass 572 visa.

2. On 15 November 2012, a delegate of the Minister refused to grant the visa having not been satisfied that the First Applicant provided acceptable reasons for an eight-month gap in his studies while holding the subclass 573 visa. This was a breach of conditions 8202 and 8516 of Schedule 8 of the Migration Regulations 1994 (Cth)

   
   

   (“the Regulations”).

3. On 27 November 2012, the Applicants applied to the Tribunal for a review of the delegate’s decision. On 3 October 2013, the Applicants appeared at a hearing before the Tribunal represented by a migration agent. On 22 October 2013, the Tribunal affirmed the delegate’s decision.[3] On 25 November 2013, this application for review was lodged.

   [3] Court Book filed 27 February 2014 at pp.124-131.

The Tribunal’s Decision

1. The Tribunal found that the First Applicant was not enrolled in a registered course between December 2010 and August 2011. The Tribunal examined the Applicant’s various explanations as to why he had not been studying during that period, against the documentary evidence and concluded that the First Applicant did not provide a reasonable explanation for his study gap and that the gap constituted a substantial breach of condition 8202 of Sch.8 of the Regulations.

2. The Tribunal determined that the Applicant did not satisfy cl.572.235 of Sch.2 of the Regulations. The Tribunal found that the

   
   

   Second Applicant and the Third Applicant were ineligible for a visa as their applications were dependent on the success of the

   
   

   First Applicant’s application.

Grounds

1. The Applicants’ grounds for review are as follows:

   1.  The Tribunal committed jurisdictional error by not applying the correct law. The Tribunal failed to notice that the Migration Regulation 2.43(2)(b) which was applicable to the case of applicants had been repealed in March 2013 thus giving wide powers to the Tribunal not to cancel applicant’s [sic] visas even if no compelling and compassionate circumstances existed which resulted in violation of condition 8202 of applicant’s [sic] visas.

   2.  The Tribunal fell in error by not considering that Applicant 1 had completed his studies from February 2009 to June 2012 and even if he had not studied for few months he had still substantially complied with condition 8202 keeping in view the total period of study completed by the applicant.

   3.  The Tribunal failed to exercise it’s jurisdiction while affirming the decision of the delegate even after accepting that the gap in applicant’s study for few months was because of one of other factors including the pregnancy of his wife.[4]

   [4] Application filed 25 November 2013 at p. 3.

The First Respondent’s submissions

1. The First Respondent submits, with respect to ground one, that this:

   [P]ertains to an amendment effected by the Migration Legislation Amendment Regulation 2013 (No 1). Regulation 2.43(2)(b) was repealed by dint of that Regulation. However, reg.2.43(2)(b) relates to the Minister’s exercise of power under s 116 of the Migration Act 1958 (the Act) to cancel a visa. The amendments relating to cancellation of student visas which took effect from

   
   

   13 April 2013 have no bearing on the Tribunal’s affirmation of the delegate’s decision not to grant to the Subclass 572 visa. (Original emphasis).[5]

   [5] First Respondent’s Contentions of Fact and Law filed 1 August 2014,  p.3 at para.16.

2. With respect to grounds two and three, the First Respondent submits that these:

   [S]eek to challenge the Tribunal’s ultimate finding about the First Applicant not substantially complying with condition 8202(2)(a). The Tribunal had express regard to the matters based on which the Applicant sought to explain his study gap, including his wife’s pregnancy (at [25]), and his total period of study (at [18]), but gave it different weight to that which the Applicant would have viewed the material. The Applicant seeks impermissibly to review the merits of the Tribunal’s factual findings, which were open on the available material and were not unreasonable, illogical or irrational.[6]

   [6] Ibid at para.17.

Conclusions

1. The criteria for the granting of a Subclass 572 visa are set out in cl.572 of Sch.2 of the Regulations. The issue in this case was whether the First Applicant met the criterion in cl.572.235 of Sch.2 of the Regulations which required that, if the application was made in Australia, the First Applicant has complied substantially with the conditions that apply or applied to the last visa held by the

   
   

   First Applicant.

2. The Tribunal referred to the considerations which might be taken into account in determining if an applicant had “complied substantially with the conditions of a visa as set out by Sackville J in Kim v Witton and Anor (1995) 59 FCR 258 at 271.

3. The Tribunal noted in its decision that the First Applicant was not enrolled in a registered course between December 2010 and

   
   

   August 2011. It also noted that, when asked to provide his reasons for not studying during this time, the First Applicant gave conflicting answers which were not consistent with the documentary evidence he provided. On the basis of that evidence, the Tribunal did not accept that the First Applicant had provided a reasonable explanation for his study gap.

4. The repeal of Reg.2.43(2)(b) of the Regulations did not affect either the powers of the Tribunal or the approach to its consideration of the matters which were relevant to the determination of whether the

   
   

   First Applicant had substantially complied with condition 8202(2)(a) of Sch.2 of the Regulations. The Tribunal correctly referred to the relevant law and applied it consistent with the case law cited.

5. The First Applicant’s real contention is that the Tribunal was wrong in finding that he had not substantially complied with condition 8202(2)(a) of Sch.8 of the Regulations. Findings of fact are matters for the Tribunal. Only in circumstances where the Tribunal makes finding which have no evidentiary basis or which are so illogical or unreasonable that no reasonable decision-maker could come to that view will the Court interfere in a Tribunal’s findings of fact. Neither of those circumstances apply in this case.

6. For these reasons the application is dismissed.

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

Associate: 

Date:  27 August 2014