Singh v Minister for Immigration & Anor - [2011] FMCA 972

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 972

MIGRATION – Judicial review of decision of Migration Review Tribunal – non compliance with condition of grant of student visa – no jurisdictional error.

Migration Act 1958 (Cth), ss. 349, 458, 474, 476 & 477
Migration Regulations 1994

Craig v The State of South Australia [1995] HCA 58
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] FCAFC 167
Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141

Applicant:

MANDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 154 of 2011

Judgment of:

Lindsay FM

Hearing dates:

26 September 2011 & 28 November 2011

Date of Last Submission:

28 November 2011

Delivered at:

Adelaide

Delivered on:

30 November 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr d’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Pursuant to s.477 of the Migration Act 1958 the time to institute proceedings for review is extended so as to permit the filing of the application to have been filed on 22 June 2011.
The Application for Review is refused.
The applicant pay the respondents’ costs of and incidental to this application fixed in the sum of SIX THOUSAND, TWO HUNDRED AND FORTY DOLLARS ($6,240.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 154 of 2011

MANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s. 476 of the Migration Act 1958 (“the Act”) for orders by way of review of a decision of the Migration Review Tribunal which decision affirmed the decision of the delegate of the Minister not to grant the applicant a student visa. The application was brought outside the time prescribed by s. 477 of the Act, but the period by which the application was filed out of time was slight and there had been no prejudice to the respondents to the application made. It seems to me the application for an extension of time to bring the application ought to be allowed and I will so order.
The decision of the Tribunal is a privative clause decision, as defined in s. 474 of the Act, and therefore, for the review to succeed before me, it must be demonstrated that the decision was vitiated by jurisdictional error as that concept has been explained in a number of High Court decisions, most notably perhaps in Craig v The State of South Australia [1995] HCA 58, and in the context of applications under the Act in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
The applicant is an Indian national and the relevant application for a visa was that made on 16 August 2010 for a student temporary class TU visa.
The delegate refused to grant that visa on 3 December 2010, and that brought the application to the Tribunal. On 11 May of this year, the Tribunal conducted a hearing at which the applicant was present.

He was represented by a migration agent. He gave evidence, as did two of his witnesses, and on the same day the Tribunal affirmed the delegate’s decision and then that brought the application to this Court.
The criteria for the grant of the class of visa which the applicant sought is set out in Part 572 of Schedule 2 to the Regulations under the Act, and the issue was whether the applicant met the criterion specified in clause 572.235. That criterion required the applicant to have complied substantially with the conditions that apply or applied to the last of any substantive visas held by him.
The issue in the application was whether the applicant had complied with Condition 8202 of his previous subclass 572 vocational education and training visa. A version of Condition 8202 which applied to the last visa held by the applicant is set out at [12] of the Tribunal’s Reasons. That is at Court Book 77 and relevantly, in subclause 3, it provides that:
A holder meets the requirement of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for –
and then the relevant section of the Education Services for Overseas Students Act is referred to and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007; and
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for –
those same provisions.
The critical finding of the Tribunal is that which appears at paragraph 36 where the Tribunal says:
The Tribunal therefore finds that the applicant’s education provider has certified the applicant as not achieving satisfactory course progress for the purposes of Condition 8202(3)(a). As noted above, based on the reasoning of the majority in Jayasekara the Tribunal considers this aspect of Condition 8202 is one to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not. As there is a relevant certificate before the Tribunal from the education provider for the purposes of Condition 8202(3), the Tribunal finds that there is no compliance with Condition 8202(3), let alone substantial compliance.
As the Tribunal notes, the decision in Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] FCAFC 167, dealt with Condition 8202 of the subclass 560 student visas when that condition was in a different form than the form in which it was considered in Jayasekara (supra). The essential difference was that the condition required the course provider to provide a certification. The form of Condition 8202 relevant to this matter has the condition expressed in a different way. The condition is expressed such that it is the absence of a certification of unsatisfactory course progress or course attendance which is relevant, but the differing form of the condition, as it was in Jayasekara (supra), and as it is in the case before me, I do not think in any way, detracts from the assistance the decision in Jayasekara (supra) provides.
Jayasekara (supra), of course, was a majority decision. Finkelstein J did not agree with the reasoning of the majority, but the decision of the majority – the core of it is at paragraphs 15 and 16 where Heerey and Sundberg JJ say this:
The substantial compliance requirement might, as counsel’s argument suggests, be apt in the case at para (c) where the condition is expressed in terms of the decision-maker being satisfied of a particular percentage of contact hours. However, in the present case, it is not suggested there was any certificate at all. There was thus no compliance, let alone substantial compliance. Still less could reasons or explanations for non-compliance amount to compliance, substantial or otherwise.
Their Honours go on:
There is an obvious policy behind the way the condition is framed. Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision-maker or the Tribunal who are less well fitted to make such judgments.
Reference is then made to the Full Court decision of Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141.
So seen in that light, the arguments that the applicant presented to the Tribunal, which appear at page 79 of the Court Book, and the subject matter of the evidence given by his two witnesses, can be seen not to have addressed the core problem associated with the non-fulfilment of the condition.
The application to this Court alleged three grounds. The first was that the decision of the Tribunal is what is described as “jurisdictional error.” That is simply an assertion in relation to the nature of the Tribunal’s decision. It is not a proper ground of review.
The second is that:
The Tribunal member of the Tribunal failed to consider relevant proof provided by me in his decision, thus the Tribunal falls in jurisdiction error.
But the passage to which I have referred at Court Book 79 sets out the fact that the Tribunal makes express reference to the material that is relied upon by the applicant, and I think the Tribunal may be taken to have, therefore, considered the applicant’s material. So it is difficult to see how that ground of jurisdictional error can be made out.
The third simply asserts that the Tribunal failed to apply relevant law in the decision but having considered the Tribunal’s analysis of the relevant Regulations and conditions associated with the subclass of visa sought, I am not satisfied that there has been any misapprehension of the relevant law to be applied.
One matter that did trouble me, and which I raised with the counsel for the respondents, was the reference at [18] of the Tribunal’s reasons to their description of, or their summary of the outcome of the delegate’s decision making. It is said there that the delegate decided that the applicant had not complied substantially with Condition 8202 of his visa, and it then goes on to mention the certification by the relevant education provider. But the decision of the delegate, as recorded at pages 34 to 36 inclusive of the Court Book, demonstrates no such finding on the part of the delegate.
Rather, the delegate appears to have been content to have dealt with the matter upon the basis of a description of material that was requested to establish substantive compliance with the condition relating to the previous visa and then an observation that lack of supportive evidence was provided. I cannot find anywhere within the decision record of the delegate the process of reasoning upon which the Tribunal itself relied in coming to a decision to affirm the decision of the delegate. It may be that the explanation for the Tribunal’s description of the way in which the delegate proceeded is to be found in material from the departmental file that has not made it’s way into the Court Book, but I should not speculate about that.
In any event, the powers of the Migration Review Tribunal are set out in s. 349 of the Act, which provides that:
The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
It seems to me that that curiosity, for want of a better word, in the Tribunal’s summary of the claims and evidence is not material to the outcome of the application for review. The Tribunal’s decision, based as it was on the decision of the Full Court of the Federal Court in Jayasekara (supra), seems to me to have been in accordance with the relevant criteria described in the Act and in the Regulations. There being no ground upon which jurisdictional error on the part of the Tribunal has been established, the application must fail.
It seems to me that there is no reason why costs should not follow the event in this case and I so order.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 6 December 2011