Singh v Minister for Immigration

[2013] FCCA 2051

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2051

Catchwords:
MIGRATION – Application for tourist visa refused by delegate whose decision was affirmed by the second respondent – whether the Tribunal’s decision vas vitiated by jurisdictional error – application refused.

Legislation:  

Migration Act 1958

Applicant: PREM SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 130 of 2013

Judgment of: Judge Lindsay

Hearing date: 25 November 2013

Date of Last Submission: 25 November 2013

Delivered at: Adelaide

Delivered on: 25 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Singh

Solicitors for the Applicant: In Person

Counsel for the First Respondent: Mr Reilly

Solicitors for the First Respondent: Sparke Helmore Lawyers

Counsel for the Second Respondent: No Appearance

Solicitors for the Second Respondent: Not applicable

ORDERS

1. The name of the first respondent to be changed to the “Minister for Immigration and Border Protection”.

2. The Application for Review filed on 8 May 2013 do stand dismissed.

3. The applicant to pay the first respondent’s costs of and incidental to these proceedings fixed in the sum of FIVE THOUSAND FOUR HUNDRED DOLLARS ($5400.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 130 of 2013

PREM SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to section 476 of the Migration Act1958 or an order by way of review of a decision of the Migration Review Tribunal of 3 April 2013. The Tribunal’s decision was to affirm the decision of the delegate of the Minister made on 14 November 2012 not to grant the applicant a tourist visa. The chronology of the applicant’s dealings with the Department, for present purposes at least, is set out at CB [15]. Although that chronology only runs from April 2011, Mr Singh first came to Australia in 2008 on a student visa.

2. On 18 April 2011 he arrived in Australia holding a student visa.  He lodged an application for a school graduate visa on 13 September 2011 and in April 2012 he lodged a Regional Sponsored Migration Scheme nomination and a Regional Sponsored Migration Scheme visa application.  On 12 October 2012 he withdrew his application for a skilled graduate visa and then lodged the application that is the issue in these proceedings for a further stay as a tourist on 6 November 2012.  The relevant part of the regulations relating to the criteria for the grant of the TR 676 Tourist Visa is to be found at CI 676.225.

3. The only aspect of the criteria that I have described that are really in issue are those that are picked up by sub-regulation a(ii)(B), which address the need for the applicant to satisfy schedule 3 criteria 3001 to 3005 inclusive, and his difficulty arises in relation to 3004 in that he must establish that he was not the holder of a substantive visa at the time he made the application because of factors beyond his control, firstly, and secondly that there are compelling reasons for the grant of the visa.  And the delegate found and the Tribunal agreed with the delegate’s finding that the matters promoted by Mr Singh in respect of the satisfaction of those criteria were inadequate; they failed to satisfy the delegate and the Tribunal respectively.

4. He said that he had applied for a skilled graduate visa but decided to return to India and wait for the outcome of his Regional Sponsored Migration Scheme visa.  Subsequently, he withdrew his application for a skilled graduate visa.  He then decided he would like to stay in Australia after all, and that is when he had a change of mind and made his application for a tourist visa.  None of those circumstances were circumstances that the Tribunal found indicated that he was not the holder of the substantive visa because of matters beyond his control or would have demonstrated compelling reasons for grant of the tourist visa.

5. And they were the only matters that were promoted.  In my view, the chronology which I have given is not controversial.  In my view, those facts of the matter, those elements of the chronology, really only need to be stated for the delegate’s decision and in turn the Tribunal’s affirmation of the delegate’s decision to be seen as reasonable and logical; not that I have to be satisfied that what the Tribunal did was reasonable in the sense that it may be that I would have dealt with the history he promoted in a different way and I would have reached a state of satisfaction as to the grant of the visa.

6. That would not be enough to entail the success of the application before me, and that is because applications pursuant to s.476 of the Migration Act will only succeed if the applicant can establish that the decision of the Tribunal was vitiated by a jurisdictional error. Applications under s.476 of the Act lie in respect of migration decisions. Migration decisions as such are the subject of careful definition in the Act and, for all purposes relevant to this application, mean a privative clause decision or purported privative clause decision (see s.474 of the Act).

7. The decision of the Tribunal certainly falls within that category, but the High Court has made it plain on a number of occasions that the review will only lie if the decision can be shown to have been vitiated by jurisdictional error.  If it is not, the provisions of s.474 prevail and the determination is to be regarded as final and conclusive.  In his application to this Court, all that the applicant does, really, is to set out in narrative form under the heading Grounds the matters that are, in my view, fairly summarised by the Tribunal in its reasons.

8. The grounds do not purport to identify any error going to jurisdiction associated with the decision of the Tribunal, and when provided with that opportunity by me today, notwithstanding that he had not filed any outline of submissions, the applicant was not in a position to attempt to identify any error going to jurisdiction.  Essentially his application constituted an invitation for me to review the merits of the tribunal’s decision. 

9. That is inappropriate, but the summary I have given to the background to the application and of the salient aspects of his attempt to satisfy the statutory criteria indicate to me that, in any event, the Tribunal’s decision was a sound one.  

10. For those reasons the application will be dismissed.  The formal order of the Court is that the Application for Review filed on 8 May 2013 do stand dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Lindsay.

Associate: 

Date:  27 November 2013