Singh v Minister for Immigration and Border Protection
[2017] FCA 1365
•21 November 2017
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2017] FCA 1365
Appeal from: Application for leave to appeal: Singh v Minister for Immigration and Border Protection [2017] FCCA 1751 File number(s): NSD 1366 of 2017 Judge(s): PERRY J Date of judgment: 21 November 2017 Catchwords: MIGRATION – application for leave to appeal from dismissal of application for judicial review decision on a show cause hearing – where Administrative Appeals Tribunal affirmed decision refusing to grant the applicant a Student (Class TU) visa – whether Tribunal wrongly assessed the application against subclass 573, Schedule 2, Migration Regulations 1994 (Cth), when the application was allegedly for a “subclass 572 visa” – where subclasses do not create classes of visa but merely prescribe criteria depending upon the course to be undertaken – where applicant’s primary course changed between delegate and Tribunal decisions – no reasonable prospects of success – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 44
Migration Act 1958 (Cth) s 45
Migration Regulations 1994 (Cth) 1.40A, 2.02, 2.03, 2.03A, Schedule 5A, clauses 5A101, 527.225, 572.224, 572.223, 570, 571, 573, 574, 576, 580
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Date of hearing: 16 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Applicant: Mr A Kumar Solicitor for the First Respondent: Mr A Markus, Australian Government Solicitor ORDERS
NSD 1366 of 2017 BETWEEN: KULJINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
21 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The applicant is to pay the costs of the first respondent as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1. INTRODUCTION
The applicant seeks leave to appeal from the decision of the Federal Circuit Court (the Court below) dismissing his application on a show cause hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) on the ground that it did not raise an arguable claim for relief: Appeal Book (AB) 45. The application sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal). By that decision, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa (the visa) which was made by a delegate (the delegate) of the first respondent, the Minister for Immigration and Border Protection (the Minister).
By the draft notice of appeal, the applicant alleges in effect that the primary judge fell into error in the following respects:
(1)in failing to find that the Tribunal wrongly rejected the visa application on the ground that the applicant did not satisfy the financial capacity requirement imposed by clause 5A508 of Schedule 5A to the Migration Regulations 1994 (Cth) (the Regulations) when the review application before the Tribunal was for subclass 572 and not subclass 573 (grounds 1 and 2);
(2)in denying the applicant an adjournment, the primary judge’s decision is unreasonable, lacking in an intelligible justification, and in breach of procedural fairness (ground 4); and
(3)in dismissing the application for judicial review summarily under rule 44.12 of the FCC Rules, the primary judge wrongly required the applicant to demonstrate that the grounds of judicial review were made out and not merely that they were arguable (ground 5).
I also note that in his written submissions filed before the hearing, the applicant abandoned ground 3 of the draft notice of appeal.
For the reasons below, any appeal would lack any reasonable prospects of success, as the Minister submits, and the application for leave to appeal should be refused.
2. EVIDENCE
In support of his application, the applicant relied upon his affidavits affirmed on 10 August 2017 and on 22 August 2017. I note that paragraphs 3 and 24 of the first affidavit, together with the first sentence of paragraph 4 and the last sentence of paragraph 26 of that affidavit, were relied upon as submissions only and not read.
The applicant was also cross-examined. However, it became apparent during the course of cross-examination that he was having difficulties in understanding the questions and in comprehending passages written in English, notwithstanding his indication that he did not require an interpreter before cross-examination commenced. In this regard, I note that the applicant had not been given advance notice that he may be required for cross-examination. I therefore raised the question as to whether it may be necessary for the matter to be adjourned in order for an interpreter to be made available. In the circumstances, the solicitor for the Minister explained that it was unnecessary for him to press the line of cross-examination which he had intended to pursue and he was content to proceed directly to submissions.
In the circumstances, I can give little weight to the bulk of the appellant’s evidence in cross-examination. However the appellant was clear and emphatic in his recollection that he was provided at the directions hearing in the Court below on 5 June 2017 with a list of contact details for various bodies able to provide legal assistance and a fact sheet relating to the review of migration decisions published by the Federal Circuit Court.
3. BACKGROUND
The relevant facts were not in issue: see reasons below at [6].
3.1 The delegate’s decision
The applicant is a national of India. On 24 December 2015, the applicant applied for the visa on the basis of his intention to study a Diploma of Accounting. On 14 January 2016, the delegate wrote to the applicant, requesting that he provide further information in relation to his financial capacity, overseas health cover, and medical examination. On 31 March 2016, the delegate refused to grant the applicant a visa: Application Book (AB) 27. The delegate noted the applicant's principal course of study was a type specified by Gazette Notice as a type of course for a Subclass 572 visa and assessed the applicant primarily against the Subclass 572 criteria. However, the delegate was not satisfied that the applicant had provided evidence of any of the matters requested and therefore did not satisfy clauses 527.225, 572.224, and 572.223 of Schedule 2 to the Regulations. The delegate also considered the applicant against the other subclasses within Student (Temporary) (Class TU), namely, 570, 571, 573, 574, 576 and 580, but found that he did not satisfy the criteria specified by these subclasses either.
3.2 The decision by the Tribunal
On 18 April 2016, the applicant applied for review to the Tribunal. On 16 February 2017, the Tribunal invited the applicant to attend a hearing and requested that the applicant provide (among other things) evidence of sufficient funds to pay his course fees and living costs. On 21 March 2017, the applicant provided submissions and copies of bank statements in support of his application. The applicant attended a Tribunal hearing on 22 March 2017 and provided further material to the Tribunal on 5 April 2017.
On 13 April 2017, the Tribunal affirmed the delegate's decision not to grant the applicant the visa. The Tribunal found that the applicant had almost completed the Diploma of Accounting and “is currently enrolled in a Bachelor of Accounting as his principal course” (Tribunal reasons at [10] (emphasis added)). Given the finding that the Bachelor of Accounting was his principal course, the Tribunal assessed the applicant’s application against the criteria for a Subclass 573 visa and found that he was required to meet the requirements set out in Part 4 of Schedule 5A of the Migration Regulations 1994 (the Regulations) (Tribunal reasons at [14]-[15]).
The Tribunal identified the issue as whether the applicant satisfied clause 5A508 of Schedule 5A to the Regulations requiring the applicant to give evidence of funds from an acceptable source that is sufficient to meet his Bachelor course fees, travel costs and living costs for the first 12 months totalling $27,314.00 (Tribunal reasons [27]-[28]). As the applicant had not completed 75% of the Bachelor of Accounting course, the Tribunal found that he was required to show funds from an acceptable source, as defined in the regulations, for at least 3 months immediately before the date of his application for the visa: clause 5A508(2), Schedule 5A to the Regulations (Tribunal reasons at [30], [34]). The Tribunal found that the funds in the applicant’s bank account as at the date of the Tribunal hearing and evidence provided by him as to funds held on deposit by his parents exceeded the amount of funds required for the purposes of clause 5A508. However, the Tribunal found that the evidence did not demonstrate that those funds had been held for 3 months before the date of the visa application and therefore did not satisfy clause 5A508(2). The Tribunal alerted the applicant at the hearing to this deficiency in his evidence and agreed to defer making a determination until after 5 April 2017 in order to allow him to submit further documents.
Despite that opportunity, the Tribunal ultimately found that:
37. … As at the date of the Tribunal decision no further documents have been received from the applicant and there is no evidence before the Tribunal that the applicant held funds available from an acceptable source for 3 months prior to the visa application.
Accordingly, the Tribunal found that it was not satisfied that the applicant satisfied clause 5A508 of Schedule 5A to the Regulations.
3.3 The decision of the Federal Circuit Court
The applicant appeared unrepresented in the Court below. The application for judicial review was dismissed on 27 July 2017 after the show cause hearing on the ground that the application had not raised an arguable case for the relief claimed. The Court below gave ex tempore reasons for its decision which were published subsequently on 7 August 2017.
In her reasons, the primary judge explained why she had refused the applicant’s application for an adjournment of the hearing: see further below.
As to the issues of substance, the primary judge identified the applicant’s complaints as appearing to be that “he is partway through a further course; and, that there are other factors that the Tribunal should have taken into account in relation to the application” (reasons below at [11]). The primary judge held that the Tribunal had affirmed the delegate’s decision because the applicant did not satisfy the financial capacity requirements under clause 5A508 of Schedule 5A of the Regulations. The primary judge identified that requirement as a “mandatory” requirement and held that the finding by the Tribunal that it was not met would appear to be open to the Tribunal on the evidence and material before it (reasons below at [24]-[25]). That being so, the primary judge found that there was no imperative on the Tribunal to consider other criteria that the applicant may have met. Accordingly the primary judge found that the grounds that the Tribunal misconstrued the requirements of his visa or had failed to consider other matters were not made out. In the circumstances, the primary judge was not satisfied that the application raised an arguable case and dismissed the application in the exercise of discretion pursuant to rule 44.12(1)(a) of the FCC Rules.
4. LEGISLATIVE PROVISIONS
Relevantly, clause 573.223 of Schedule 2 specified primary criteria to be satisfied at the time of decision: see reg 2.03(1) and clause 1222(4) of Schedule 1 to the Regulations. Clause 573.223 relevantly provided that an applicant is required to give the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant (clause 573.223(2)(a) of the Regulations).
Schedule 5A to the Regulations relevantly provides:
5A508 Financial capacity
(1) The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 12 months:
(i) course fees;
(ii) living costs;
(iii) school costs
…
(emphasis added)
The use of the word “must” in clause 5A508 makes it clear that this is a mandatory requirement.
The term “acceptable source” is defined in clause 5A508(2) of Schedule 5A as follows:
funds from an acceptable source means one or more of the following:
(a)if the applicant:
(i) has successfully completed at least 75% of the requirements for his or her principal course; and
(ii) has applied for the visa in order to complete the course; and
(iii) does not propose to undertake any further course;
a money deposit held by an acceptable individual;
(b)if paragraph (a) does not apply-a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;
(emphasis added)
The phrase the “first 12 months” is defined in clause 5A101 of Schedule 5A to the Regulations to mean the period that:
(a) begins:
(i) if the application is made outside Australia-on the day of the applicant's expected arrival in Australia; or
(ii) if the application is made in Australia-on the day that the student visa is expected to be granted to the applicant; and
(b) ends on the earlier of the following:
(i) the day 12 months after the beginning of the period;
(ii) the last day of the applicant's proposed stay in Australia.
In turn, course, living and school costs are defined in clause 5A101 and clause 5A104 of Schedule 5A. For the purposes of clause 5A104(1), the Minister, by instrument in writing, specified the amount of living costs as $18,610.00 (IMMI14/004, Evidence of further funds and living costs).
5. CONSIDERATION
5.1 Relevant principles
Leave to appeal is required because the decision below was interlocutory: see rule 44.12(2) of the FCC Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). A decision on whether to grant leave to appeal is discretionary. Relevant factors include: whether in all of the circumstances the decision is attended with sufficient doubt to warrant its reconsideration on appeal; and whether substantial injustice would result if leave were refused, assuming the decision at first instance to be wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court)).
5.2 Should leave be granted?
5.2.1Grounds 1 and 2, draft notice of appeal
With respect to grounds 1 and 2 of the draft notice of appeal, the appellant submits that he applied for a Subclass 572 student visa. As such, he contends that the Court below ought to have held that the Tribunal erred in refusing him a visa on the basis that he had not satisfied clause 5A508 of Schedule 5A to the Regulations which applies to subclass 573 visas: see grounds 1 and 2, draft notice of appeal.
The submission is, with respect, misconceived. The applicant applied for a Student (Class TU) visa under s 44(1) of the Migration Act 1958 (Cth) (the Act) which provides for the making of an application for a visa “of a particular class” subject to, that is, in accordance with, the Act and Regulations. Subclasses 572 and 573 do not create classes of visa but merely prescribe criteria for the grant of a Student (Class TU) visa, depending upon the category of course that an applicant intends to undertake or is undertaking. Thus, regulation 2.02 provides that Schedule 2 to the Regulations is divided into Parts described as subclasses and that a Part of Schedule 2 “is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem “Subclasses” in the item in Schedule 1 that refers to that class of visa.” In turn, regulation 2.03(1) headed “Criteria applicable to classes of visa” provides that:
(1)For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulations 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a visa of a particular class are:
(a)the primary criteria set out in a relevant Part of Schedule 2; or
(b)if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.
Primary and secondary criteria for the grant of a temporary student (Class TU) visa, in turn, are relevantly found in those parts of Schedule 2 described as Subclass 572 and 573. Regulation 1.40A requires the Minister to specify “the types of courses for each subclass of courses for each subclass of student visa”, which the Minister did by an instrument dated 16 March 2014: IMMI14/015, Types of Courses for Student Visas (commenced 22 March 2014). Schedule 1 to IMMI14/015 specified a Bachelor Degree as a type of course for Subclass 573 (Higher Education Sector) of student visa, whereas Diploma (Vocational Education and Training) was specified as a type of course for Subclass 572 (Vocational Education and Training Sector) of student visa.
Thus, the delegate assessed the applicant’s application primarily against the financial capacity criteria specified for a Student (Temporary) (Class TU) visa under subclass 572 because at the time that the delegate made her decision the applicant intended to undertake the Diploma of Accounting. However, the Tribunal assessed his application for review primarily against the financial capacity criteria for a temporary student visa under Subclass 573 because it found that his primary course at that time was a Bachelor degree. The Tribunal’s approach therefore accorded with its obligation to make the correct and preferable decision at the time that it made its decision: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286. In other words, the Tribunal’s obligation was to decide the application for a Student (Temporary) (Class TU) visa on the basis of the evidence when the Tribunal made its decision. Grounds 1 and 2, being premised upon the assumption that the application before the Tribunal was for a “subclass 572 visa”, are therefore misconceived.
That being so, no jurisdictional error is alleged with respect to the Tribunal’s finding that the applicant’s primary course was a Bachelor degree. Nor is there any challenge to the Tribunal’s finding that there was no evidence meeting the requirement in clause 5A508. To the contrary, the applicant conceded that he could not meet that requirement: reasons below at [14]. Rather, the applicant submitted below that he does now have the funds, that he is continuing to study successfully, and that he wishes to have an opportunity to remain in Australia and pursue his courses (reasons below at [13]). While the applicant’s disappointment with the refusal of his visa application can readily be understood in these circumstances, the criterion in clause 5A508 was a mandatory one applicable to his visa application, as the Tribunal and the Court below found.
5.2.2Ground 4, draft notice of appeal
The applicant also seeks to challenge the primary judge’s interlocutory decision to refuse an adjournment on the ground that the decision was unreasonable or in breach of the requirements of procedural fairness (ground 4, draft notice of appeal). In particular, the applicant submitted that the primary judge failed to have regard to a number of considerations, namely that: the applicant did not understand the nature of the show cause hearing; the applicant applied for an adjournment so that proper legal representation could be sought by him; an inadequate opportunity had been given for the applicant to seek representation; and unreasonable orders were made on the first return date. In addition it was said that her Honour erred in finding that there were no reasonable prospects of success on the application and therefore in taking that into account in refusing the adjournment.
Ground 4, with respect, has no reasonable prospects of success. First, for the reasons I have given with respect to grounds 1 and 2 of the draft notice of appeal, no error can be demonstrated in her Honour’s finding that the judicial review application had no reasonable prospects of success.
Secondly, the primary judge found that the applicant had had sufficient time to obtain legal advice (reasons below at [15]). In this regard, the Tribunal’s decision was made on 13 April 2017, the applicant filed his application for judicial review on 8 March 2017, the first directions hearing at which timetabling orders were made for the exchange of evidence and submissions was held on 5 June 2017, and the hearing of the show cause application was held on 27 July 2017 as set down by those orders. Furthermore, her Honour found that at the directions hearing on 5 June 2017 the applicant was given the contact details of legal services providers and translating and interpreting services (reasons below at [16]). However, her Honour found that the applicant nonetheless took no steps to seek to obtain any legal advice before the show cause hearing. Her Honour concluded at [16] that:
Having regard to the lack of steps taken by the applicant to obtain any legal advice, the opportunity that the applicant has had to seek that legal advice, and the lack of prospects of success of the applicant substantive application for judicial review, the application for adjournment was refused.
It was not in dispute that the applicant had not taken any steps to obtain legal advice prior to the show cause hearing on 27 July 2017. As I have also earlier noted, the applicant agreed emphatically in cross-examination on the appeal that he had been provided with the contact details of legal services providers and interpreting and translating services which were annexed to the orders made at the directions hearing on 5 June 2017. On the other hand, the appellant gave evidence on the appeal that he was out of the country between 3 and 26 July 2017 and that he did not understand the meaning of the show cause hearing at the time of the hearing. However, there is no evidence suggesting that the applicant’s absence from Australia before the hearing was raised in the Court below in support of his adjournment application; nor does the applicant’s lack of understanding as to the meaning of a show cause hearing of itself demonstrate a breach of procedural fairness or that the refusal of an adjournment was unreasonable. In this regard, I note that order 10 made on 5 June 2017 states that the matter is set down on 27 July 2017 for a show cause hearing pursuant to rule 44.12 of the FCC Rules, and that a copy of rule 44.12 was annexed to the orders. The latter states expressly that the Court may dismiss the application if the Court is not satisfied that the application raises an arguable case for the relief claimed.
In all of the circumstances, therefore, there is nothing to suggest that it was not open to the primary judge to find that the applicant had had an ample opportunity within which to seek legal representation or at the very least to have taken steps towards engaging a lawyer. That being so, the decision by the primary judge to refuse the adjournment which was sought by the applicant in order to seek legal representation cannot be said to have been legally unreasonable; nor is there any merit in the suggestion that the reasons of the primary judge fail to demonstrate an evident and intelligible justification for refusing the adjournment (cf Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ)). This ground has no reasonable prospects of success.
5.2.3Ground 5, draft notice of appeal
With respect to ground 5 of the draft notice of appeal, the applicant submits that the primary judge required the appellant to demonstrate “prima face success”, as opposed to merely an arguable case in accordance with rule 44.12 of the FCC Rules. This complaint is also lacking in any merit. While the primary judge in the course of her reasons at [27] and [28] found that certain of the applicant’s complaints are “not made out”, fairly read her Honour properly understood that the issue before her was to determine whether the application raised an arguable case for the relief claimed. At the outset of her reasons, the primary judge expressly defined the issue in terms of an “arguable” case (reasons below at [3]). The primary judge also stated that she made “no final decision” as to whether the Tribunal’s decision was affected by jurisdictional error but found only that the applicant had not identified any error “capable of” establishing jurisdictional error: reasons below at [30]. Consistently with this, her Honour concluded at [31] that she was not satisfied that the applicant had “raised an arguable case for the relief claimed” and therefore, in the exercise of discretion, dismissed the application pursuant to rule 44.12.
6. CONCLUSION
For the reasons set out above, any appeal would not enjoy reasonable prospects of success and the applicant has not established that it is in the interests of justice to grant leave to appeal. The application for leave to appeal must therefore be dismissed with costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 21 November 2017
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