Singh v Minister for Immigration
[2012] FMCA 1251
•16 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1251 |
| MIGRATION – Judicial review – failure to substantially comply with condition of last held visa – construction of condition 8202 – no basis to exercise decision to remit. |
| Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth), cl.8203, 572.235 |
| Chen v The Minister for Immigration and Citizenship [2011] FMCA 177 Jayasekara & the Minister for Immigration and Indigenous Affairs [2006] 156 FCR 199 Patel v The Minister for Immigration and Citizenship [2012] FCA 958 Weerasinghe v The Minister for Immigration and Multicultural Affairs [2004] FCA 261 |
| Applicant: | JARNAIL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 659 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 16 November 2012 |
| Date of Last Submission: | 16 November 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 16 November 2012 |
REPRESENTATION
| The applicant appeared in person |
| Solicitor for the Respondents: | Mr Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 26 July 2011 be dismissed.
The applicant pay the respondent’s costs of and incidental to these proceedings fixed in the sum of $5,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 659 of 2011
| JARNAIL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex tempore
By his application filed on 26 July, 2011 the applicant, Jarnail Singh, seeks judicial review of a decision of a migration review tribunal. The Tribunal’s decision was made on 22 June, 2011. In the decision, the Tribunal affirmed a decision of the delegate of the first respondent Minister, made in October, 2009 to refuse to grant to the applicant a student (temporary) class TU visa. The decision record of the Tribunal is found in the court book at page 65 and onwards.
The Tribunal first set out and made a finding that the decision before it was an MRT reviewable decision. It then set out the relevant law, by reference to the relevant criterion for a grant of a student (temporary) class TU visa and in particular those matters that are relevant to the grant of the particular sub-class 572 visa – sought in this particular case.
The Tribunal then recorded that it needed to be satisfied of certain matters and recorded that, in respect of a sub-class 572 visa and in particular criterion 572.235, the Tribunal needed to be satisfied that the applicant had complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant and to any subsequent bridging visa. The Tribunal recorded the authorities that were relevant to a consideration of whether an applicant had complied substantially with a visa condition and how those authorities ought to be applied by the Tribunal.
The Tribunal then set out some further authorities to the effect that there was no room for the operation of the substantial compliance doctrine when the Tribunal was considering whether condition 8202 had been complied with by the applicant before it.
The Tribunal then set out in its decision the claims and the evidence before it, and went on to make its findings and gave the reasons for those findings. The Tribunal found that the issue before it was whether the applicant had complied substantially with condition 8202 of his sub-class 572 vocational education and training sector visa. The Tribunal recorded that it was not satisfied that the applicant had so complied and in that respect, the Tribunal was satisfied that the applicant’s education provider had certified the applicant as not achieving satisfactory course attendance for the purposes of condition 8202(3)(b) of the relevant visa conditions.
In those circumstances, the Tribunal found that the applicant had not complied substantially with the condition of his last held visa and therefore did not meet the requirements or criteria set out in cl.572.235 of the Regulations. He was not entitled to the grant of a visa. The application was refused.
The applicant is a citizen of India and he has applied, as I have said, for a sub-class 572 vocational education sector visa. The application was made on 31 August, 2009. In this application he says that the Tribunal have made a jurisdictional error. He must establish that the Tribunal has made a jurisdictional error to succeed on this application. The first ground upon which he relies is set out in the following way:
The MRT failed to properly interpret clause 572.235 of schedule 2 of the Migration Regulations 1994, and has such committed a jurisdictional error.
I accept the submission from the first respondent that no particulars are provided to explain or support the assertion contained in that ground and for the reasons that I will give shortly, the Tribunal was correct to find that the applicant had been certified as not achieving satisfactory course attendance for the purpose of visa condition 8202(3)(b) in connection with his previous sub-class 572 visa.
The second ground is in the following terms:
Further and or in the alternative, the certification by the Shafston Training-1 Pty Ltd., under condition 8202 was not valid. Hence there was an absence of a jurisdictional fact, thus disabling the delegate of the first respondent from making a valid decision to cancel the applicant’s student visa. It follows that the delegate had no jurisdiction to make that decision. The second respondent, standing in the shoes of the delegate, ought to have appreciated that it did not have the jurisdiction to confirm the cancellation of the applicant’s student visa. Its decision therefore was an error of jurisdiction.
I accept the submission from the respondent that that ground must also fail. The Tribunal noted at the hearing that the certification that the applicant was in breach of condition 8202 was not of a type that would require the Tribunal or a court to go beyond it and consider the circumstances in which the certificate was issued. In Patel v The Minister for Immigration and Citizenship [2012] FCA 958 Collier J said:
It was not the role of the Tribunal to find that there was a valid certification.
Her Honour goes on.
Once the evidence established that a notice and certificate had been issued by the university in that case, which was valid on its face, there was no role for the Tribunal in looking behind the notice.
The applicant’s case in the Tribunal, and here, is that the certification by his education provider was erroneous. It ought not to have been issued and it was wrong of the training college to issue the certification. In the proceedings before me, he tendered two sets of documents – exhibits 1 and 2 – that were designed to demonstrate that the certification by the training provider, or the education provider was wrong.
However, the authorities make it clear that this court cannot interfere with a certification by an education provider where the certificate is valid on its face. It is not the role of the court, or the Tribunal for that matter, to go behind the certification issued by the education provider – provided the certification is one which, on its face, appears to be a certification issued for the purposes of clause 8202 of the Regulations and in other respects is, on its face, such a certification. The certificate in the present case answers that description.
In those circumstances, ground 2 of the applicant’s ground for review can not be made out.
The third ground of review is set out as follows:
Furthermore and or in the alternative the MRT fail to give proper, genuine and realistic consideration of the matters before it on review its decision therefore was an error of jurisdiction.
There are no particulars given to that ground. The Tribunal’s decision makes it clear that the Tribunal was alive to the point that the applicant wished to make and dealt with it in its reasons for decision. There is a fine line, it seems to me, between asserting on the one hand that the relevant Tribunal did not give proper, genuine and realistic consideration to the matters before it on review, and attempting to engage this court in a debate about the merits of the decision under review. It is no part of this court’s role to engage in a debate about the merits of the decision under review. Findings of fact, and the way those facts are applied to uncontroversial principles is not something that this court can review. The exercise undertaken by this court is one of judicial review – something which is designed to deal with the procedure and practices adopted by the Tribunal, not the decisions made by it.
The fourth ground of review is set out in the following terms:
The MRT committed jurisdictional error by incorrectly applying the reasonings of the majority in Jayasekara & the Minister for Immigration and Indigenous Affairs [2006] 156 FCR 199.
I accept the submission that the Tribunal’s reliance on that case was appropriate and that the Tribunal does not appear to have misinterpreted the approach in that case. The Tribunal recognised that clause 8202 in the Migration Regulations has a number of sub-parts, and each of those sub-parts needs to be considered separately. It is not the case that there can be some form of global assessment of substantial compliance with the previous terms and conditions of the visa. The task of the Tribunal is to consider each term and condition and make a determination about compliance.
In Weerasinghe v The Minister for Immigration and Multicultural Affairs [2004] FCA 261, Ryan J remarked that a condition similar to clause 572.235 in the Regulations:
Requires substantial compliance with all of the conditions cumulatively, to which an applicant’s last visa was subject.
In Chen v The Minister for Immigration and Citizenship [2011] FMCA 177, Burnett FM said this:
The language of the clause is not complicated. Its expression is plain and its meaning is readily discernible, from a plain reading of the words in their ordinary context. That is, relevantly for this applicant, that the clause requires that the applicant is compliant substantially with conditions that apply or applied to the last substantive visa and to any subsequent bridging visa he held. The clause directs attention to the issue of compliance. With each condition of that visa and the subsequent bridging visas, an assessment has to be made as to whether or not there has been a substantial compliance with each such condition. On that basis, the clause gives rise to a cumulative assessment such as if there is a failure in respect of any one condition, the application fails. No global assessment is made.
In this case, the Tribunal found that one of the conditions failed and so the Tribunal was obliged to determine the application in the way in which it did.
The remaining grounds 5, 6, 7 and 8 were characterised by Mr Alderton in his submissions as template grounds and I agree with that assessment. They are the following terms:
5. Further and or in the alternative, the MRT committed a jurisdictional error by not making the correct or preferable decision.
6. Further and or in the alternative, the MRT committed a jurisdictional error in that its decision was unreasonable.
7. Further and or in the alternative, the MRT failed to make proper findings on the material before it and therefore wrongly denied itself jurisdiction.
8. Further and or in the alternative, the MRT did not properly apply the law to the facts available, and hence failed to properly exercise its jurisdiction.
I accept that those grounds are nothing more than assertions of jurisdictional error, without particulars that make them meaningful.
There is nothing on the face of the Tribunal’s decision which suggests that it did not make the correct or preferable decision. There is nothing on the face of the Tribunal’s decision which suggests that its decision was unreasonable, or that it wrongly denied itself jurisdiction because it failed to make proper findings on the material before it or that it did not properly apply the law to the facts available and thereby failed to properly exercise its jurisdiction.
In all of its circumstances, the application fails and it will be dismissed with costs.
RECORDED : NOT TRANSCRIBED
I will add an addendum to my judgment. When this application was called for hearing today, the applicant appeared without his lawyer. The application was commenced by a lawyer when it was first filed. However, on 27 September 2012, that lawyer filed a notice of intention to withdraw. It is clear, from the discussions that I had with the applicant that he knew that his lawyer had withdrawn from September 2012. When the matter was called this morning, he asked for the matter to be adjourned so that he could seek alternate legal representation – but he was unable to indicate that he had taken any steps to secure such alternate legal representation before now.
On that basis, it seemed to me, that there was no point in adjourning the matter further, because the applicant had an opportunity to secure alternate representation between the withdrawal of his last lawyer and now. Moreover it seemed to me that the granting of an adjournment was, in the circumstances, not likely to lead to a different outcome in the case given that the Tribunal’s reasons in this case were demonstrably without error.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Jarrett FM.
Date: 22 January 2013
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