Singh v Minister for Immigration
[2013] FMCA 216
•3 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 216 |
| MIGRATION – Judicial review – decision of Migration Review Tribunal – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), ss.474, 476 Migration Regulations 1994 (Cth), cl.572.223 |
| Plaintiff S 157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Craig v The State of South Australia (1995) HCA 58 |
| Applicant: | BHUPINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 189 of 2012 |
| Judgment of: | Simpson FM |
| Hearing date: | 15 February 2013 |
| Date of Last Submission: | 15 February 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 3 April 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr d'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
Application dismissed.
Applicant shall pay the first respondent’s costs fixed in the sum of SIX THOUSAND, FOUR HUNDRED AND SEVENTY ONE DOLLARS ($6,471).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 189 of 2012
| BHUPINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an Application for Judicial Review of a decision of the second respondent, the Migration Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of the Delegate of the Minister for Immigration and Citizenship not to grant the applicant a Student (Temporary) (Class TU) Visa.
The applicant seeks orders that the decision of the Tribunal be quashed and that a writ of mandamus directed to the Tribunal or Minister, requiring them to determine the applicant’s application according to law.
The grounds of the application are as follows:
1.Tribunal made decesion (sic) based on evidence that I stopped studying in college in June 2010 and the court I late (sic) enrolled was different (sic) from the course which I was earlier enrolled. Whild (sic) making the decesion (sic) tribunal failed to consider the fact that my former college (Cambridge International College) was having problem (sic) with giving placement to students, also they had issues related to record maintenance which was identified and acknowledged by Department of Education. Hence the Tribunal has made “jurdictional (sic) error in judgement”.
2.Tribunal made finding that I had enrolled in a different course but failed to see the fact that since mid 2010 no college has been offering this course to new students. I had to change the couse (sic) and seek admission in another course due to this. In any case if a person intends to change his occuation (sic) in life then it does not mean that the intentions are not guniene (sic). I belive (sic) that Tribunals judgment will force students to study the course in which they are enrolled and take away freedom to choose or change their career according to their wish. Thus there is “jurdictional (sic) error” in judgment.”
The applicant was unrepresented at the hearing. He had the assistance of an interpreter. The applicant indicated through the interpreter that he did not wish to make any submissions and that he wished the Court to determine the application on the papers.
Counsel for the second respondent provided a detailed Outline of Submissions. The applicant had had the Outline of Submissions read to him by an interpreter prior to the hearing. I gave the applicant the opportunity of putting submissions and to say anything that he wished to about the Outline of Submissions but he declined to do so.
On 16 November 2012, the applicant swore and filed an affidavit. At the hearing the applicant did not say whether or not he wished to rely on the affidavit. I have read the affidavit and come to the conclusion that, apart from the first item, the Migration Review Tribunal Decision Record which is already to be found in the green book prepared for the hearing, all other annexures were not relevant and were therefore inadmissible. The additional annexures were as follows:
·A statement from Cambridge International College Australia, being a Statement of Academic Results together with certain cover sheets and feedback forms for assessments in the course Diploma of Community Welfare Work;
·Two Statutory Declarations of individuals who the applicant says faced record keeping problems from College;
·Fee receipts;
·Enrolment details of the applicant in courses of study at Derbin International College Pty Ltd; and
·Tax Invoice from Australian Health Management in the sum of $476.05.
When he was before the Tribunal the applicant was given an opportunity to provide what ever evidence he wished. He declined to provide the information now contained in his affidavit at that time. In all of the circumstances, it is not appropriate that I allow this affidavit to be used in this hearing.
Background
The applicant is a citizen of India who arrived in Australia on 1 May 2008 as the holder of a Student (Temporary) (Class TU) subclass 573 Higher Education Sector Visa which was valid until 4 April 2011. On 4 April 2011, the applicant lodged an application for the visa with the Department. On 6 April 2011, the delegate sought further information by letter. By 8 July 2011, no documents had been received. The Delegate refused the application that day. In particular, the Delegate noted that:
“To date, no evidence of funds or other documents previously requested had been received by this office in support of your student visa application. As a result, I am not satisfied that you meet the requirements of Clause 5A 405(1) and therefore you do not satisfy Migration Regulation 572.223 (sic).”
Clause 5A405 in Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) concerns financial capacity.
On or about 22 July 2011, the Tribunal received the Applicant’s Application for Review of the Delegate’s decision. On 3 July 2012, the Tribunal invited the applicant to appear before it to give evidence and present argument relating to the issues arising in the case. The Tribunal’s letter advised that the Tribunal would seek to make a decision on the review at the conclusion of the hearing. Accordingly, the applicant was invited to provide a range of evidence said to be pertinent to the criteria for the grant of the visa.
On 1 August 2012, the applicant’s representative sent a package of material to the Tribunal including evidence of enrolment into courses, namely, a Certificate IV in Business and a Diploma of Management.
On 2 August 2012, the Tribunal conducted a hearing at which the applicant was present and represented by a Migration Agent. At the conclusion of the hearing the Tribunal affirmed the decision under review.
On 3 August 2012, the Tribunal published its Statement of Reasons and furnished the applicant’s representative with a copy under cover of letter dated 6 August 2012.
On 29 August 2012, the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.
The Tribunal’s Decision
The Tribunal canvassed the relevant law in relation to the visa. In particular, it referred to Clause 572.223 which read in part:
“ (2) An applicant meets the requirements of this subclause if:
(a)for an applicant who is not a person designated under regulation 2.07AO:
…
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B)any other relevant matter; …
Notably, at the time of the Tribunal’s decision, Clause 572.223(2) had been amended by the Migration Amendment Regulations 212 (No 10 (Cth), No 35 of 2012 (the Amending Regulations). The amendments relevantly came into force on 24 March 2012: s2(e) of the Amending Regulations. As the visa in this case was applied for on 4 April 2011, I find that the Tribunal referred to the correct version of Clause 572.223 in its decision.
The Tribunal recounted the background facts, including the topics canvassed at the Tribunal hearing. Specifically, it relevantly noted that immediately prior to the hearing, the applicant provided two certificates of enrolment. At the hearing, the applicant gave evidence that he studied community welfare because, among other things, he wanted to work for people with mental health issues. The decision records that the applicant confirmed at the hearing that he had not completed the course, and that the last time he attended a lesson was in June 2010.
Next, the applicant was questioned on his current course(s) that he was enrolled in. The applicant gave evidence that he enrolled in the current CoE the day before the hearing. Of this, the Tribunal said:
“The Tribunal explained to the applicant that one of the things it had to consider was whether there was any matter before it that might lead it to conclude that he was not (a) genuine applicant for entry and stay in Australia as a student. The Tribunal explained that it had listened to his evidence and considered that there was a real issue as to whether it considered him to be a genuine applicant for entry and stay in Australia as a student. The Tribunal indicated that it was very concerned about his evidence and that he had not attended any lessons since June 2010, had only enrolled in a course the previous day, and that this course was in an unrelated field to his earlier course. The Tribunal indicated it was seriously considering whether to conclude that the applicant was not a genuine student in light of this evidence.
The Tribunal adjourned to enable the applicant to consult with his representative. Upon resumption, it was submitted by the applicant’s representative that the Tribunal should have regard to the fact that the applicant had paid partial fees towards his education in 2010 in order to maintain his place in that course, the course had not been offered by the college after 2011, and the applicant had approached other colleges regarding enrolment in a Diploma of Community Welfare.”
In its “findings and reasons”, the Tribunal found that the Applicant’s course of study for which he was enrolled fell within subclass 572. The Tribunal also found that the applicant was not a person designated under Rule 2.07AO of the Regulations and that the Applicant held an eligible passport for India.
It observed that it considered that the issue in the review was whether, on the evidence before it, there was any relevant matter that would cause it not to be satisfied that the applicant was a genuine applicant for entry and stay as a student. It explained that the factors relevant to this topic were as follows:
·that he had not undertaken any study in Australia since June 2010;
·he had only enrolled in the course the day prior to the hearing; and
·the course was in a different field to the course he ceased studying in June 2010.
The Tribunal stated that it “… considered carefully the applicant’s response to this issue, and the submissions made on his behalf as to why the Tribunal should not conclude from his evidence that he is not a genuine applicant for entry and stay as a student”. But it then expressed its lack of persuasion with the evidence. In the result, the Tribunal said:
“Having considered the applicant’s response to the concerns raised with him at hearing, arising from his evidence, the Tribunal finds that there are relevant matters before it that lead it not to be satisfied that the applicant is a genuine applicant for entry and stay as a student. The Tribunal reaches this conclusion after having regard to, and notwithstanding, the applicant’s stated intention to comply with any conditions subject to which the visa is granted.
On the basis of the above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student within the terms of Clause 572.223(2)(a)(ii)(B) [sic]”.
The Tribunal concluded that the applicant had not met an essential requirement of Clause 572.223 and that there was no evidence that he met the criteria for any other Student (Temporary) (Class TU) visa subclass. Thus, the Tribunal affirmed the Delegate’s decision.
Respondent’s Submissions
The second respondent submits that both grounds relied upon by the applicant are without foundation. The respondent’s submissions were as follows:
20.Ground 1 may be taken to be a complaint that the Tribunal failed to consider a relevant issue. However, the Tribunal expressly stated that it had regard to the Applicant’s response to the issues raised at the hearing. The Applicant was provided with an opportunity to respond to the Tribunal’s concerns, even with the benefit of an adjournment and input from his representative. It is for the Applicant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims. It is not for the Tribunal to make the Applicant’s case for him. The Tribunal is not obliged to stimulated elaborations that the Applicant did not choose to give or to act as his “nursemaid”.
21.Ground 2 can be defeated for similar reasons. The Tribunal expressly considered the Applicant’s contention about contact with other colleges. The Tribunal said at [27]:
“The Tribunal was not persuaded that evidence of payment of fees in 2010 materially changed the picture that emerged from the applicant’s evidence. Nor did the Tribunal consider that the applicant’s evidence of very limited contact with other colleges in 2011 changed its impression about the applicant’s genuineness arising from his evidence that he had not engaged with study in Australia for over 2 years.”
22.Earlier at [21] in the ‘claims and evidence’ part of the decision, the Tribunal stated:
“The Tribunal explained to the applicant that it was interested in his representative’s submission regarding approaching other colleges for admission. The applicant said he had approached Salford College and ACTC. The applicant said he had done this in 2011, but had been informed that they did not run that course. The applicant said the course can now only be undertaken at University or in Melbourne, but he wanted to stay in Adelaide. The Tribunal asked the applicant why he wanted to stay in Adelaide. The applicant said that his friends were here, and he has only lived in Adelaide since arriving in Australia.”
23.…
24.In the face of the Tribunal’s express consideration of the Applicant’s complaints, it is submitted that ground 2 is bound to fail. Inasmuch as the complaint is that the Tribunal should have accepted that other courses were not available, that involves an impermissible shift from the proper province of judicial review to a consideration of the issues before the Tribunal on their factual merits.
25.The Court should reject both grounds of review.”
Conclusions
The decision of the Migration Review Tribunal is a privative clause decision as defined in s.474 of the Migration Act 1958 (Cth). Section 474 says:
474 Decisions under Act are final
(1)A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article;
(g)doing or refusing to do any other act or thing;
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j)a failure or refusal to make a decision.
…
(7)To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a)a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351, 391, 417 or 454 or subsection 503A(3);
(b)a decision of the Principal Member of the Migration Review Tribunal or of the Principal Member of the Refugee Review Tribunal to refer a matter to the Administrative Appeals Tribunal;
(c)a decision of the President of the Administrative Appeals Tribunal to accept, or not to accept, the referral of a decision under section 382 or 444;
(d)a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
The Federal Magistrates Court has no jurisdiction to deal with a privative cause decision or purported privative cause decision mentioned in subs.474(7). Section 476 provides as follows:
476 Jurisdiction of the Federal Magistrates Court
(1)Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a)a primary decision;
(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c)a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
(d)a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3)Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non‑privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4)In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.
The Federal Magistrates Court can only review a decision if it can be shown that the decision was tainted by jurisdictional error. Jurisdictional error was explained by the High Court in Plaintiff S 157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. There have been many High Court decisions explaining the concept of jurisdictional error. A leading authority is Craig v The State of South Australia (1995) HCA 58.
The result of the case of Plaintiff S 157/2002 is that if a Court is reviewing a “privative cause decision” then the grounds of review remain governed by the Hickman principles. The grounds for review as set out by Dickson J in that case were:
“1.The decision maker was not acting in good faith in making the decision;
2.The decision is not reasonably capable of reference to the decision making power given the decision maker;
3.The decision does not relate to the subject matter of the legislation; or they add,
4.The decision exceeded the limits set out in the Commonwealth Constitution.”
It should be noted however, that a decision involving “jurisdictional error” is not a “privative cause decision”. In practice, this means that applicants frequently seek review of decisions affected by “jurisdictional error” by way of the constitutional writs (Mandamus prohibition, injunction) or the related writs of certiorari or habeas corpus. “Jurisdictional error” extends to such matters such as denial of procedural fairness, failing to comply with statutory procedures, error of law, the inflexible application of policy, consideration of irrelevant material and failure to consider relevant material.
I note that the Tribunal says at paragraph 19 that it:
“… explained to the applicant that one of the things it had to consider was whether there was any matter before it that might lead it to conclude that he was not a genuine applicant for entry and stay in Australia as a student. The Tribunal explained that it had listened to his evidence and considered that there was a real issue as to whether it considered him to be a genuine applicant for entry and stay in Australia as a student. … The Tribunal indicated it was seriously considering whether to conclude that the applicant was not a genuine student …”.
A little later at paragraph 21 the Tribunal said:
“The Tribunal explained to the applicant that it was interested in his representative’s submission regarding approaching other colleges for admission. The applicant said he had approached Salford College and ACTC. The applicant said he had done this in 2011, but had been informed that they did not run that course. The applicant said the course can now only be undertaken at University or in Melbourne, but he wanted to stay in Adelaide. …”
A little later at paragraph 27 of the reasons, the Tribunal said:
“The Tribunal was not persuaded that evidence of payment of fees in 2010 materially changed the picture that emerged from the applicant’s evidence. Nor did the Tribunal consider that the applicant’s evidence of very limited contact with other colleges in 2011 changed its impression about the applicant’s genuineness arsing from his evidence that he had not engaged with study in Australia for over 2 years.”
The Tribunal ultimately concluded that the applicant was not a genuine applicant for entry and stay as a student within the terms of cl. 572.223. That clause relevantly provides as follows:
572.223 …
(2) …
(b)The minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having a regard to:
(i) The stated intention of the applicant to comply with any condition subject to which the Visa is granted; and
(ii) Any other relevant matter.
The applicant has failed to establish any jurisdictional error and his claim must be dismissed.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Simpson FM
Date: 3 April 2013
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