Singh v Minister for Immigration
[2014] FCCA 1337
•24 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1337 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – Applicant failed to satisfy cl.572.211 of Schedule 2 to the Migration Regulations 1994 (Cth) – no arguable case for relief – no reviewable error – application dismissed pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Migration Act 1958 (Cth), s.65 Federal Circuit Court Rules 2001 (Cth), reg.44.12(1)(a) |
| Singh & Anor v Minister for Immigration & Anor [2014] FCCA 1111 |
| Applicant: | AMRIK SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 945 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 24 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2014 |
REPRESENTATION
| The Applicant: | The applicant appeared via teleconference. |
| Solicitors for the First Respondent: | Ms A. Wong of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance. |
ORDERS
The application be set down for an immediate hearing pursuant to reg.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).
The application be dismissed pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $1,700.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 945 of 2014
| AMRIK SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 7 April 2014 by the applicant, Amrik Singh, seeking review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”), made by Member S. Roushan on 10 March 2014, affirming the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Student (Temporary) (Class TU) visa.
It is convenient to reproduce the reasons of the Tribunal in its Decision Record of 10 March 2014 as background for these proceedings. The Tribunal stated:
STATEMENT OF DECISIONS AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 October 2013 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 23 October 2013 to undertake study in Australia. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends on the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, and the subclass for which the type of course was specified by the Minister under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 274.231 and 575.231 of the Schedule 2 to the Migration Regulations 1994). The relevant subclass in this case is Subclass 572.
3. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.572.211 because he did not hold a substantive visa when he lodged the application the last substantive visa that he held was a Temporary Graduate visa (subclass 485) which expired on 27 September 2013.
4. The applicant appeared before the Tribunal on 6 March 2014 to give evidence and present arguments.
5. The Tribunal put to the applicant at the hearing that when he had applied for a review of the delegate’s decision he had provided a copy of the delegate’s decision to the Tribunal. That decision states that when he lodged the application on 23 October 2013, he did not hold specified substantive visa and that the last substantive visa that he held was a Temporary Graduate visa (subclass 485) which expired on 27 September 2013. It was put to the applicant that as his last substantive visa was not a visa specified [in] cl.572.211(3), it did not appear that he satisfied the requirements of the provision. The applicant said that he had no comments to make.
CONSIDERATION OF CLAIMS AND EVIDENCE
6. As discussed with the applicant at the hearing, the issue in the present case is whether the applicant satisfies cl.572.211. That criterion requires that if the visa application is made in Australia, the applicant holds a specified substantive visa at that time, or alternatively, if not such a visa holder, the last substantive visa held by the applicant was either a student visa; or a special purpose visa; or a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or (in limited circumstances) a Diplomatic (Temporary) (Class TF) visa; or a subclass 497 (Graduate – Skilled) visa: cl.572.211(3)(b).
7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
8. The Tribunal finds that the applicant’s visa application was made in Australia on 23 October 2013. The Tribunal finds that the last [substantive] visa held by the applicant was a Temporary Graduate visa (subclass 485) which expired on 27 September 2013. On the basis of the evidence before it, the Tribunal finds that the applicant did not hold a substantive visa at the time that she lodged the application. The Tribunal finds that the last substantive visa held by the applicant does not meet the requirements of cl.572.211(3)(b).
9. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.572.211(3). AS she also does not meet cl.572.211(2), (4) or (6), she does not meet the requirements of cl.572.2111) and she does not meet cl.572.211 of Schedule 2 to the Regulations.
10. For applicant in Australia who do not hold a substantive visa at the time of visa application, the other subclasses within the Class TU visa have a requirement that is the same as cl.572.211(3). For the reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses.
DECISION
11. The Tribunal affirms the decision not the grant the applicant a Student (Temporary) (Class TU) visa.
Current Proceedings
The application filed in this Court for review of the Tribunal’s decision contains what appears to be two grounds, both written by hand. They are:
1. I have attached the copy of decision.
2. I Amrik Singh were included in 485 dependent visa which was expired on 27 September [2013] and I were expecting that the immigration will provide me Bridging visa after the finish of 485 as we (ne and my wife) waiting for a decision for application 885 which is skilled visa then they described me that because I was not included at the time of lodgement of 885 they can’t provide me same as my wife’s visa which was Bridging Visa A. So I applied for student visa which been refused by MRT and immigration which I am not satisfied with.
The first ground of the application indicates a copy of the Tribunal’s decision came attached to the applicant’s Affidavit filed with the application in this Court. Accordingly, this is not a ground of review and needs no further consideration.
The second ground of the application appears to state some of the history of how the applicant came to be before this Court in respect of his visa application and a dissatisfaction with the Tribunal’s decision. There has been no particularisation of this ground.
I have had the benefit of reviewing the Bundle of Relevant Documents filed by the Minister’s representatives on 7 May 2014 (the “Court Book”). Any reference in these reasons to material contained within the Court Book will be followed with a page reference (“CB”).
The applicant applied on 23 October 2013 for a Student (Temporary) (Class TU) visa (CB 1-20). In that visa application the applicant indicated he held a “qualifying” visa (CB 5). On 31 October 2013 a delegate of the Minister refused to grant the applicant the visa sought on the basis he could not satisfy any of the prescribed criteria for any subclass within the Student (Temporary) (Class TU) visa (CB 42-47).
Consideration
Relevantly, in respect of a subclass 572 visa, cl.572.211 stated at the time the applicant applied for the visa:
572.21—Criteria to be satisfied at time of application
572.211
(1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).
(2) An applicant meets the requirements of this subclause if the applicant is:
(a) the holder of a visa of one of the following classes or subclasses:
(i) Border (Temporary) (Class TA);
(ii) Business (Temporary) (Class TB);
(iii) Cultural/Social (Temporary) (Class TE);
(iv) Educational (Temporary) (Class TH);
(v) Electronic Travel Authority (Class UD);
(vi) Expatriate (Temporary) (Class TJ);
(vii) Family Relationship (Temporary) (Class TL);
(viii) Interdependency (Temporary) (Class TM);
(ixa) Maritime Crew (Temporary) (Class ZM);
(x) Medical Practitioner (Temporary) (Class UE);
(xi) Retirement (Temporary) (Class TQ);
(xiii) Student (Temporary) (Class TU);
(xiiia) Superyacht Crew (Temporary) (Class UW);
(xiv) Supported Dependant (Temporary) (Class TW);
(xv) Temporary Business Entry (Class UC);
(xva) Subclass 400 (Temporary Work (Short Stay Activity));
(xvb) Tourist (Class TR);
(xvc) Visitor (Class TV);
(xvi) Working Holiday (Temporary) (Class TZ);
(xvii) Temporary Work (Long Stay Activity) (Class GB);
(xviii) Training and Research (Class GC);
(xviiia) Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;
(xix) Temporary Work (Entertainment) (Class GE);
(xx) Special Program (Temporary) (Class TE);
(xxi) Subclass 600 (Visitor); or
(b) the holder, as the spouse, de facto partner or a dependent relative of a diplomatic or consular representative of a foreign country, of a Diplomatic (Temporary) (Class TF) visa; or
(c) the holder of a special purpose visa; or
(d) the holder of a visa of one of the following subclasses:
(i) Subclass 303 (Emergency (Temporary Visa Applicant));
(ii) Subclass 427 (Domestic Worker (Temporary)—Executive);
(iia) Subclass 485 (Temporary Graduate);
(iii) Subclass 497 (Graduate—Skilled).
(3) An applicant meets the requirements of this subclause if:
(a) the applicant is not the holder of a substantive visa; and
(b) the last substantive visa held by the applicant was:
(i) a student visa; or
(ii) a special purpose visa; or
(iii) a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or
(iv) a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or
(v) a Subclass 497 (Graduate—Skilled) visa; and
(c) the application is made within 28 days (or within such period specified by Gazette Notice) after:
(i) the day when that last substantive visa ceased to be in effect; or
(ii) if that last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:
(A) the day when that last substantive visa ceased to be in effect; and
(B) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and
(d) the applicant satisfies Schedule 3 criterion 3005.
(4) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 560, 562 or 572 visa that is subject to condition 8101; and
(b) the application was made on form 157P or 157P (Internet); and
(c) the applicant gives to the Minister evidence that the applicant has commenced a course of study for which the visa held was granted.
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 570, 571, 573, 574, 575 or 576 visa; and
(b) the application was made on form 157A or 157A (Internet); and
(c) the applicant gives to the Minister evidence of an offer of a place with an education provider of a course of study other than the education provider of a course of study for which the visa held was granted; and
(d) the Minister is satisfied that there are exceptional circumstances justifying the change in enrolment.
Having regard to the above criteria and the applicant’s failure to hold at the time of the visa application any type of visa prescribed by the cl.572.211 of the Migration Regulations 1994 (Cth) (the “Migration Regulations”) either at that time or previously, the Tribunal was bound by the law to refuse the applicant’s visa application. There is no error discernable on the part of the Tribunal and there has been no evidence from the applicant that he did satisfy the criteria. Accordingly, there has been no arguable case for relief raised by the applicant and the application must fail.
I note the reasons of her Honour Judge Hartnett in Singh & Anor v Minister for Immigration & Anor [2014] FCCA 1111 where her Honour considered an application from the Tribunal that had a similar factual premise to the current application, except there were two applicants and the applicants failed to appear before the Court or the Tribunal. Her Honour stated at [10] therein:
10.. On 2 September 2013, the applicants made an application for Student (Temporary) (Class TU) subclass 572 visas, and indicated that they sought to satisfy the criteria for subclass 572 visas. The delegate refused to grant the visas on the basis that:-
a) the First Applicant was not, at the time of application, the holder of a substantive visa (that is, including a visa of one of the kinds specified by cl.572.211(2), (4) or (6) of the Migration Regulations 1994 (‘the Regulations’));
b) the First Applicant’s last substantive visa was a (Temporary Graduate) subclass 485 visa (not being a visa of one of the kinds specified by cl.572(3)(b ) of the Regulations); and
it followed that the First Applicant did not satisfy cl.572.211(1) of the Regulations.
Her Honour in Singh & Anor v Minister for Immigration & Anor (supra) continued at [19]:
19. The Tribunal found that the First Applicant did not satisfy the “time of application “criterion in cl.572.211 of the Regulations. It found that the First Applicant did not meet the requirements in cl.572.211 (2), (4) or (6) of the Regulations, because the First Applicant did not hold a substantive visa at the time of application. It found that the First Applicant did not meet the requirements in cl.572.211(3)(b) of the Regulations because the last substantive visa held by the First Applicant was a subclass 485 visa.
Her Honour then stated at [21]-[22]:
21. The application for judicial review fails to identify any ground of judicial review. Indeed, it fails to identify any error of any kind by the Tribunal. As Reeves J of the Federal Court said in SZNXA v Minister for Immigration and Citizenship [2010] FCA 775, it is impossible for the Court to engage in judicial review by reference to a “ground” of review of the kind relied on by the applicants.
22. In these circumstances, it is open to the Court to dismiss the application. It is not incumbent on this Court “independently to consider for itself whether a self-represented litigant might, despite the inadequacies of presentation of his her position, have a case for the court’s intervention“. In any event, there is no obviously arguable case to put forward that the Tribunal has erred in making its decision.
(footnote omitted)
Her Honour’s reasoning is similarly applicable to these proceedings and it is open to the Court to dismiss the proceedings. I note that in the Tribunal’s Decision Record the applicant has been referred to as “she” a number of times despite being male, however, I do not believe this constitutes any error that could amount to an error of law on the part of the Tribunal, given the circumstances of the application. The proceedings should be dismissed pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
I note the applicant appeared via teleconference at the hearing on 24 June 2014 and made some submissions, however, the bulk of these submissions addressed his immigration and visa issues, none of which are in the power of this Court to address. I informed the applicant of this and that the function of this Court was to review the decision of the Tribunal to see if any error of law had been made. The applicant accepted this and indicated he would allow the Court to make any orders it saw fit.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 24 June 2014
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