Singh v Minister for Immigration
[2012] FMCA 497
•31 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION | [2012] FMCA 497 |
| MIGRATION – Review of decision of a delegate of the Minister not to waive a no further stay condition on student visa – whether a purported statement of reasons provided by the delegate was a complete or accurate statement of the reasons for the decision considered – the reasons were a clumsy attempt to summarise reasons for refusal put to the delegate by submission – whether the delegate misapplied the law considered – the delegate did not misapply the law, when his decision is read in the context of the submission put to him. |
| Migration Act 1958 (Cth), s.41 Migration Regulations 1994 (Cth) |
| Javinollar v Minister for Immigration (2001) 114 FCR 311 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Re Ruddock; ex parte Truong (2001) 202 ALR 305 Smith v Minister for Immigration (1984) 53 ALR 551 |
| Applicant: | PARMPREET SINGH |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 194 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 8 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie Dobbie & Devine Immigration Lawyers |
| Solicitors for the Respondent: | Mr A Markus Australian Government Solicitor |
ORDERS
The application filed on 30 January 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 194 of 2012
| PARMPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of a delegate of the Minister not to waive a “no further stay” condition attached to the applicant’s (Mr Singh’s) student visa. It is common ground that this Court has jurisdiction to judicially review the decision, which was not subject to merits review before the Migration Review Tribunal.
The following statement of background facts is derived from the submissions of the parties.
Mr Singh is a citizen of India who arrived in Australia on 29 June 2008. At that time, he was the holder of a Student Visa Subclass TU-572 that had been granted on 17 June 2008 and was to expire on 2 February 2010.[1] He was to commence an Advanced Diploma of Business Management on 7 July 2008, though Mr Singh subsequently cancelled his enrolment in that course.[2] Mr Singh was subsequently granted two further student visas onshore to allow him to undertake further courses.[3] At least the second of those visas was subject to a variety of conditions; relevantly, for the purposes of the present application, one of the conditions was condition 8534 of the Migration Regulations 1994 (Cth) (the Regulations).
[1] Court Book (CB) 17.3.
[2] CB 15.2.
[3] CB 15.2, 19.1.
Condition 8534 relevantly provided, at the time the visa was granted:
8534The holder will not be entitled to be granted a substantive visa, other than:
(a) a protection visa; or
(b)a student visa the application for which must be made on form 157P or 157P (Internet); or
(c) a Subclass 497 (Graduate — Skilled) visa; or
(d) a Subclass 580 (Student Guardian) visa;
while the holder remains in Australia.
The final substantive visa was granted on 29 June 2011 and was to expire on 4 January 2012 (the visa).[4] It was granted to allow Mr Singh to undertake a Diploma of Management Course at Loura Business College Pty Ltd (the management course).[5] That course commenced on 30 May 2011 and was expected to finish on 4 December 2011.[6] The subject of these proceedings is the decision not to waive condition 8534 imposed on the visa.
[4] CB 16.
[5] CB 17.5.
[6] CB 15.3.
Sometime in 2011, Mr Singh requested leave from his education provider to attend his brother's wedding in India (the wedding). The education provider granted leave for the period 31 October 2011 to 15 November 2011.[7] The wedding took place on 6 November 2011.[8]
[7] CB 3.4.
[8] CB 3.4.
As a result of taking that leave, Mr Singh was unable to complete the management course by 4 December 2011. Mr Singh’s education provider informed him that he would need to apply for a new admission, which he did. Mr Singh then enrolled in a new Diploma of Management Course commencing on 5 December 2011, with an expected end date of 26 February 2012 (the new management course).[9]
[9] CB 3.5, 4.5.
The visa expired on 4 January 2012. Mr Singh, with the assistance of his migration agent, applied for a waiver of condition 8534 on the visa on 5 January 2012.[10]
[10] CB 1-2.
He applied on the basis of wishing to apply for another student visa to complete his studies.[11] He stated that he had initially expected to finish his Diploma of Management course at Loura Business College on 4 December 2011.[12] However, his brother’s marriage was “fixed” for 6 November 2011. Mr Singh had sought and obtained leave from his education provider so that he could attend the wedding.[13] As a result, Mr Singh could not complete his course as planned, and was informed by his education provider that he needed to seek a new admission.
[11] CB 2; CB 3.
[12] CB 3 at [3].
[13] CB 3 at [4]-[6].
On or about 16 January 2012, Mr Singh’s registered migration agent made a further submission in support of the waiver application.[14] Mr Singh’s agent submitted that Mr Singh’s student visa has been incorrectly subject to condition 8534, on the basis that Mr Singh’s overall duration of study in Australia was greater than 10 months.[15] Mr Singh’s agent relied on an extract referred to as s.126.1, which provided:
[14] CB14-15.
[15] CB14.
126.1 As a mandatory condition
With the exception of
The 571 Schools visa and
The 576 AusAid/Defence visa
Condition 8534 applies on a mandatory basis to all AL3 & 4 student visa holders if the proposed overall duration of study in Australia is 10 months or less.
Mr Singh’s agent submitted that Mr Singh’s overall duration of proposed study was more than 10 months, having regard to his previous study in Australia and his proposed study. A history of Mr Singh’s study in Australia, and his proposed study in Australia, was contained in his electronic records held on PRISMS, under the auspices of the Department of Education, Employment and Workplace Relations (Cth).[16]
[16] CB 15.
The delegate rejected the latter argument because Mr Singh had enrolled in a number of non consecutive courses. Mr Singh does not contest that aspect of the delegate’s decision.
A minute, entitled “Submission To Delegate” was prepared by an officer of the Minister’s Department.[17] She recommended to the delegate that condition 8534 not be waived.[18] Her reasons for that recommendation are set out in the submission to the delegate.
[17] CB 16-21.
[18] CB 21.
On 20 January 2012, the delegate approved the recommendation made to him, and refused the application for a waiver.[19] The submission approved by the delegate was, relevantly, to the following effect:
a)the wedding could not be considered a change to Mr Singh’s circumstances;[20]
b)the scheduling of the wedding could be considered outside of Mr Singh’s control, however Mr Singh made a voluntary decision to depart Australia in order to attend the wedding, such that the circumstances raised by Mr Singh were not outside of his control;[21]
c)the circumstances were compassionate but not compelling. Mr Singh had been granted two further student visas onshore to allow him to undertake his studies. He had enrolled in a number of courses which were not sequential in nature. Although Mr Singh claimed to be very stressed due to the lack of certainty as to whether he could complete his course or not, no evidence was provided to support his claim.[22]
[19] CB 16-21.
[20] CB 19.4.
[21] CB 19.5.
[22] CB 19.6.
Mr Singh was notified of the delegate's decision by way of a letter dated 20 January 2012 (the notification letter). Relevantly, the notification letter stated:[23]
Reasons for Decision
Regulation 2.05(4) requires that since the grant of your visa, compelling and compassionate circumstances have developed over which you had no control that resulted in a major change to your circumstances.
Whilst I acknowledge that family weddings represent a significant part of Indian cultural values, however I am not satisfied that you had changes in your circumstances that were beyond your control as a result of taking leave from the course. You have not provided any information which would indicate that since the grant of your Student visa on 29 June 2011, you were faced with a situation where you have little or no alternative but to remain in Australia.
For these reasons, I have determined that your circumstances do not meet the requirements to waive the 8534 condition and the condition has not been waived.
(Emphasis added)
[23] CB 24.2.
The judicial review application
These proceedings began with a show cause application filed on 30 January 2012. There are two grounds in that application:
1. The delegate misinterpreted the applicable law and misapplied the law to the facts
Particulars
(i) In exercising the power conferred under s.41(2A) of the Act, the delegate erred in his understanding and application of r 2.05(4) of the Migration Regulations 1994
(a) Subregulation 2.05(4) relevantly provides:
2.05 Conditions applicable to visas
…
(4)For subsection 41 (2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41 (2) (a) of the Act are that:
(a)since the person was granted the visa that was subject
to the condition, compelling and compassionate circumstances have developed:
(i)over which the person had no control; and
(ii) that resulted in a major change to the person's circumstances; and
(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c) if the person asks the Minister to waive the condition, the request is in writing.
(b) The delegate required the Applicant to provide information which would indicate that, since the grant of the student visa on 29 June 2011, he was faced with a situation where he had little or no alternative but to remain in Australia, when there is no such requirement to be met for the purposes of r2.05(4).
[2]. The delegate’s decision was so unreasonable as to be infected with jurisdictional error
Particulars
(i) The decision of the delegate is so unreasonable, on the basis of the evidence before him, as to be infected with jurisdictional error.
The second ground was abandoned at the hearing before me on 8 June 2012.
I have before me as evidence a book of relevant documents filed on 15 March 2012.
Both parties made written and oral submissions. The applicant contends that the delegate misinterpreted the applicable law and misapplied the law to the facts. In particular, Mr Singh contends that the delegate introduced a new and unauthorised requirement that Mr Singh had to meet in order to obtain a waiver of the condition, namely that he was faced with a situation where he would have little or no alternative but to remain in Australia.
The Minister contends that, while the delegate’s letter provided an awkward summary of the reasons for rejecting Mr Singh’s request, in substance all the delegate was doing in providing what was described as his reasons for decision was summarising the reasons that were put to the delegate by the submission and accepted by him. Viewed in this light, the Minister contends that there was no error in the decision of the delegate.
Consideration
At the time Mr Singh’s last substantive visa was granted, being 29 June 2011, clause 572.613 provided:
572.613
(1) If the applicant:
(a)satisfies the primary criteria; and
(b)is subject to assessment level 3, 4 or 5; and
(c)is seeking to undertake a course of study that is, or courses of study that are together, of 10 months duration or less; and
(d)is not an applicant to whom subclause (2) applies;
condition 8534.
(2) If the applicant:
(a) satisfies the primary criteria; and
(b) is subject to assessment level 3; and
(c)gives to the Minister the evidence mentioned in subclause (3);
condition 8534 may be imposed.
(3) For subclause (2), the evidence is:
(a)evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the period of 12 months after the full period:
(i) living costs, within the meaning of subclause 5A104 (1);
(ii) school costs, within the meaning of subclause 5A104 (2); and
(b)evidence that the applicant has a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source; and
(c)evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
(4) For paragraphs (3) (a) and (b), the funds must be in addition to the funds for which the applicant provided evidence for subclause 5A408 (1).
(5) If the applicant satisfies the secondary criteria as a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 572 visa that is subject to condition 8534, condition 8534.
(6) In this clause:
funds from an acceptable source has the meaning given by subclause 5A408 (2).
The power to waive Condition 8534 is derived from s.41 of the Migration Act 1958 (Cth), in particular, s.41(2A). Section 41 provided:
41 Conditions on visas
(1)The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
(2)Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a)a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or
(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i) any work; or
(ii) work other than specified work; or
(iii) work of a specified kind.
(2A)The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
(3)In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
Regulation 2.05 is prescribed for the purposes of s.41(2A). subregulations 2.05(4), (4A), (5), (5A) and (6) provided:
2.05…
(4)For subsection 41 (2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41 (2) (a) of the Act are that:
(a)since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person’s circumstances; and
(b)if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c)if the person asks the Minister to waive the condition, the request is in writing.
(4A) However, the Minister must not waive:
(a)in relation to a Subclass 020 Bridging B visa granted to a person who is an applicant for a Subclass 462 (Work and Holiday) visa — condition 8540; and
(b)in relation to a Subclass 462 (Work and Holiday) visa — conditions 8503 and 8540.
(5)For subsection 41 (2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa:
(a)has, after holding a student visa to which condition 8534 applies, been granted:
(i) a Subclass 497 (Graduate — Skilled) visa; or
(ii) a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa associated with the Subclass 497 (Graduate — Skilled) visa application; and
(b)has not, after holding a student visa to which condition 8534 applies, been granted a protection visa.
(5A)For subsection 41 (2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa:
(a)has completed the course for which the visa was granted; and
(b)has a genuine intention to apply for a General Skilled Migration visa.
(6)For subsection 41 (2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa is a registered nurse, or satisfies the requirements for registration as a registered nurse, in Australia.
Note Regulation 2.07AH deals with applications for visas by persons for whom condition 8534 has been waived under subregulation 2.05 (6).
The delegate was required to determine the following for the purposes of regulation 2.05(4): that since the grant of Mr Singh’s student visa on 29 June 2011:
a)compelling and compassionate circumstances had developed; and
b)over which Mr Singh had no control; and
c)that resulted in a major change to his circumstances
The delegate correctly set out the law in this regard.[24] However, Mr Singh contends that he then did not go on to apply it. In his notification letter the delegate stated:
I am not satisfied that you had changes in your circumstances that were beyond your control as a result of taking leave from the course. You have not provided any information which would indicate that since the grant of your Student visa on 29 June 2011, you were faced with a situation where you have little or no alternative but to remain in Australia.
[24] CB 24.
This paragraph is said to contain the reason for the refusal to waive the condition. It is submitted on behalf of Mr Singh that the reasoning is flawed on several levels:
a)the delegate failed to determine whether the scheduling of the wedding of Mr Singh’s brother, and his need to attend it, were compelling and compassionate circumstances that had developed since the grant of the visa; and
b)the delegate failed to then determine whether the scheduling of the wedding during Mr Singh’s course of study was something over which he had no control; and
c)the delegate failed to then determine whether those circumstances resulted in a major change to Mr Singh’s circumstances.
I prefer the Minister’s submissions on this issue.
In her undated submission,[25] the officer relevantly stated[26]:
[25] CB 16-21.
[26] CB 19.
c) Did the circumstances result in a major change to the client’s circumstances?
No. The marriage of Mr Singh’s brother cannot be considered a change in his circumstances, since his visa grant on 29 June 2011.
d) Were the circumstances outside the client’s control?
No. Whilst it can be considered outside Mr Singh’s control that his brother’s wedding was schedule few months prior to his course completion, however Mr Singh made a voluntary decision to depart Australia on 28 October 2011 so he can attend the family wedding.
e) Are these circumstances both compelling and compassionate?
No. Mr Parmpreet Singh initially arrived in Australia on 29 June 2008, on a Student Visa Subclass U-572, granted on 17 June 1008 with an expiry date of 2 February 2010. Mr Singh since, was granted two Student visas onshore so he can undertake further studies, however he enrolled in five courses excluding this last course which is a continuation of his Diploma in Management studies for which he has presented a new CoE (4E3B7F76).
It is noted from Departmental records, that the courses undertaken by Mr Singh were not sequential in nature, and as such condition 8534 was not erroneously imposed.
Furthermore, Mr Singh claims to be very stressed due to the lack of certainty of whether he will be able to complete his course or not. No evidence was provided in support of this claim.
In line with the information presented in Mr Singh’s request, I found that his claims whilst compassionate are not of a compelling nature.
A relevant finding of the delegate, derived from the officer’s submission to the delegate, was that the changes in Mr Singh’s circumstances were not beyond his control. Contrary to what Mr Singh’s submissions appear to suggest,[27] that finding having been made, Mr Singh could not satisfy subregulation 2.05(4)(a) of the Migration Regulations, and it was accordingly not essential for the delegate to also consider whether the circumstances relied upon by Mr Singh as having developed since the granting of his visa on 29 June 2011 (i.e. that he was unable to complete his management course prior to the expiry of his visa) were “compassionate and compelling”, and whether they resulted in a major change in Mr Singh’s circumstances.
[27] applicant's submissions at [14].
Mr Singh relies on the words "little or no alternative but to remain in Australia" in the delegate’s letter in an attempt to identify jurisdictional error. Reasons of administrative decision-makers are, of course, not to be scrutinised overzealously by seeking to discern whether some inadequacy may be gleaned from the way in which those reasons are expressed.[28] In circumstances where there is no obligation to give reasons it is particularly dangerous to subject the short statement offered by the delegate to minute examination.
[28] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. See also Smith v Minister for Immigration (1984) 53 ALR 551 at 554
More importantly, however, read in proper context, the words complained of were not intended to be a paraphrasing the test set out at subregulation 2.05(4)(a) of the Regulations, but to explain the finding that the circumstances that had developed were not beyond Mr Singh’s control. The effect of what the delegate concluded was that:
·Mr Singh claimed that he needed a further visa to enable him to stay in Australia to complete the new management course;
·he needed to complete the new management course because he was unable to complete the management course;
·he was unable to complete the management course because he travelled back to India during his course of studies to attend his brother’s wedding; and
·the decision to travel back to attend the wedding was a voluntary decision made by Mr Singh; i.e. it could not be described as a circumstance beyond Mr Singh’s control.
The Minister conceded that the delegate’s attempt to explain the reasons for his decision in his letter dated 12 January 2012 fell short of the literary eloquence of a great English writer. Nevertheless, although the contrary is clearly arguable, I accept the Minister’s contention that the statement of reasons under the heading “Reasons for Decision”[29] was intended to be a summary of the reasons put to the delegate by the officer. Mr Singh has no quarrel with those reasons. Mr Singh contends, however, that the delegate in notifying his decision provided different reasons to those advanced by the Departmental officer providing the submission to the delegate. I reject that contention for two reasons. First, the delegate endorsed the submission to him without comment[30]. Secondly, the impugned part of the purported statement of reasons in the delegate’s letter is, in my view, no more than a clumsy attempt to summarise the recommending officer’s reasons for proposing that the request should be denied on the basis that Mr Singh’s circumstances were not beyond his control.
[29] CB 24.
[30] See Re Ruddock; ex parte Truong (2001) 202 ALR 305 at 309 per Hayne J and Javinollar v Minister for Immigration (2001) 114 FCR 311
In that connection, it is important to reiterate that the officer recommended to the delegate that the request failed to meet the necessary criteria for waiving the condition for three reasons. First, Mr Singh’s circumstances did not result in a major change to those circumstances. Secondly, those circumstances were not outside Mr Singh’s control. While he had no control over the timing of his brother’s wedding, he made a voluntary choice to attend. Thirdly, the circumstances, while compassionate, were not compelling as Mr Singh had been in Australia since June 2008 on various student visas and undertook several courses of study. It was the second factor that the delegate clumsily addressed in his purported statement of reasons for his decision in stating that Mr Singh did not face a situation where he had “little or no alternative but to remain in Australia”. Read in context with the recommendation put to the delegate, this was a statement adequate to support a conclusion that Mr Singh had had sufficient opportunity to complete his desired courses of study in Australia.
Conclusion
I conclude that Mr Singh has failed to demonstrate jurisdictional error in the decision of the delegate. That decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 31 July 2012
4
2