FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2017] FCA 975 Appeal from: Singh v Minister for Immigration & Anor [2017] FCCA 765 File number: SAD 70 of 2017 Judge: WIGNEY J Date of judgment: 16 August 2017 Catchwords: MIGRATION – application for student visa – "exceptional reasons" for grant of visa – whether Tribunal erred by narrowing its consideration of "exceptional reasons" – whether Tribunal erred in finding certain conduct of the Department of Immigration and Border Protection did not amount to an exceptional reason for the grant of the visa – whether primary judge erred in not undertaking further enquiries of the Department – appeal dismissed Legislation: Migration Act 1958 (Cth), s 351 Migration Regulations 1994 (Cth), Part 572 of Schedule 2 Date of hearing: 16 August 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 51 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs. ORDERS SAD 70 of 2017 BETWEEN: GURSEVAK SINGH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: WIGNEY J DATE OF ORDER: 16 AUGUST 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) WIGNEY J: 1 Mr Gursevak Singh is a national of India. He first arrived in Australia on a visitor visa. While still in Australia, he applied for a student visa. A delegate of the first respondent, the Minister for Immigration and Border Protection, refused to grant Mr Singh that visa. Mr Singh then applied to the second respondent, the Administrative Appeals Tribunal, for a review of that decision. That application too was unsuccessful. Mr Singh challenged the Tribunal's decision in judicial review proceedings before the Federal Circuit Court of Australia. That application was dismissed by a Circuit Court judge on 3 March 2017. 2 Mr Singh now appeals from the decision of the primary judge. BACKGROUND 3 Mr Singh lodged an application for a Student (Temporary) (Class TU) (Subclass 572) Vocational Education and Training Sector visa on 21 May 2015. Mr Singh, who indicated he was a motor mechanic, applied for the visa on the basis of a proposed Diploma in Business. He claimed that a Diploma in Business would improve his business skills and enable him to open a workshop and business in India. 4 The criteria for the grant of a subclass 572 student visa at the time were set out in Part 572 of Schedule 2 to the Migration Regulations 1994 (Cth). Regulation 572 relevantly provided as follows: 572.211 (1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6). (2) An applicant meets the requirements of this subclause if the applicant is: (a) the holder of a visa of one of the following classes or subclasses: … (xxi) Subclass 600 (Visitor); 572.227 If: (a) the application was made in Australia; and (b) subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and (c ) at the time of application, the applicant met the requirements of clause 572.211: … (i) as the holder of a visa of one of the following classes or subclasses: … (T) Subclass 600 (Visitor); the applicant establishes exceptional reasons for the grant of a Subclass 572 visa. 572.227A For paragraph 572.227(b), the highest assessment level does not include assessment level 1. 5 Mr Singh was an "Assessment Level 3" applicant based on the country that issued his passport and the course of study he proposed. That was the highest assessment level prescribed in connection with subclass 572 student visas: 'Student Visa Assessment Levels' IMMI 14/014 (legislative instrument F2014L00752). As an Assessment Level 3 applicant, and the holder of a visitor visa, Mr Singh was required to show "exceptional reasons" for the grant of an initial student visa while in Australia. 6 Under the Department of Immigration and Border Protection policy guidelines ("PAM3") 'exceptional reasons' may include but are not limited to situations where: (a) there is a benefit to Australia (for example where the visa grant would improve bilateral relations or provide significant economic benefits to Australia); (b) the applicant is a dependent of a departing temporary resident and has been studying in Australia for at least one year and wishes to complete her or his current course or undertake further studies; (c) the applicant held a student visa in Australia and was granted a specified temporary visa and now wishes to undertake further study; or (d) the applicant previously held a student visa and now holds either a FA-600 or a TR-676 (visitor) visa granted under s 351 of the Migration Act 1958 (Cth) (Ministerial intervention). 7 Following receipt of the student visa application, the Department wrote to Mr Singh requesting that he provide a statement and any supporting evidence which explained why there were exceptional reasons for the grant of the student visa. In response, Mr Singh claimed that the exceptional reasons in his case for the grant of the visa arose in his circumstances because there would be a benefit to Australian society. He claimed that his study would contribute to the Australian economy through his tuition fees and taxes; he would provide his motor mechanic services to the Australian workforce and train others to ease the shortage of motor mechanics; he would volunteer in the field while he studied; and he would ultimately establish business ventures with Australians when he returned to India. He also claimed that he would help his sister, an Australian citizen, after she had her second child. 8 The delegate, however, was not satisfied that there were any exceptional reasons for the grant of the visa in Mr Singh's circumstances. On 29 July 2015, Mr Singh was notified that his application for a student visa had been refused by the delegate. 9 Shortly thereafter, Mr Singh applied to the Tribunal for review of the delegate's decision. Before the Tribunal, Mr Singh provided enrolment documents for Certificates III and IV in Commercial Cookery and a Diploma and Advanced Diploma in Hospitality. He also supplied various documents in relation to his financial capacity, health insurance evidence and a statement, and supporting letter, which indicated that he was working as a cook at an Indian restaurant. 10 It would also appear that Mr Singh claimed before the Tribunal that he was misled by the Department because it told him that he could lodge a student visa while onshore but did not tell him that he needed to demonstrate exceptional reasons. 11 On 24 June 2016, the Tribunal affirmed the decision not to grant Mr Singh a student visa. THE TRIBUNAL'S DECISION 12 The Tribunal found that, based on the courses Mr Singh was enrolled in, and the fact that he made his student visa application in Australia as the holder of a Subclass 600 visitor visa, Mr Singh was required to establish exceptional reasons for the grant of the student visa. 13 The Tribunal then set out the PAM3 guidelines in relation to "exceptional reasons". The Tribunal also referred to the following more detailed guidance in relation to the meaning of "a benefit to Australia": Under policy, exceptional reasons require an applicant to establish that visa grant would improve bilateral relations or provide significant economic benefits to Australia. 14 Acknowledging that the guidelines were not binding on it, the Tribunal noted that the case law supported a nearly unconfined discretion to address the circumstances of the case in determining whether "exceptional reasons" exist. The Tribunal noted that it had "had regard to the Departmental policy on this provision", but that the only situation detailed in that policy that was applicable to Mr Singh was whether there was a 'benefit to the Australia'. The Tribunal was not satisfied on the evidence before it that Mr Singh had established that the grant of his student visa would improve bilateral relations or provide a significant economic benefit to Australia. 15 In relation to Mr Singh's claim that he was misled by the Department, the Tribunal was not satisfied that any conduct by the Department in this matter amounted to "exceptional reasons". This was because, firstly, the Tribunal did not consider that there was any relevant error or omission by the Department as the information given to Mr Singh was correct and, secondly, because there was no evidence to support the claim that Mr Singh was misled. 16 Finally, the Tribunal considered other claims made by Mr Singh, including that he was in the middle of courses and that if his application was not successful he will have wasted time and money. The Tribunal found that there was no evidence before it concerning what Mr Singh had paid for the courses or whether he was able to obtain a refund or defer the courses. The Tribunal noted that Mr Singh had completed his intended courses as listed in his visa application. 17 The Tribunal's ultimate findings were expressed in the following terms (at [25]): Overall the tribunal finds the submissions made regarding "exceptional reasons" to be speculative and unsupported by any convincing and/or objective evidence. The tribunal is not satisfied that it is unusual or out of the ordinary for a person to seek to undertake study in order to progress their careers. It is not satisfied that evidence establishes the Department gave any misleading advice. The tribunal not satisfied that there is anything further in the evidence which indicated that there may be exceptional reasons warranting the grant of the visa. THE CIRCUIT COURT PROCEEDINGS AND JUDGMENT 18 Mr Singh's application in the Circuit Court specified the following ground of challenge to the Tribunal's decision (as drafted, emphasis in original): 1. In paragraph 18 of decision, The member rightly mentioned the PAM3. Under Departmental guidelines (PAM3) 'exceptional reason' may include but are not limited to situations where: • There is a benefit to Australia • The [appellant] is a dependent of a departing temporary resident and has been studying in Australia for at least one year and wishes to complete her or his current course or undertake further studies • The [appellant] held a student visa in Australia and was granted a specified temporary visa and now wishes to undertake further study. Further in Paragraph 21, Member stated that "The Tribunal has had regard to the Departmental policy on this provision, the only one of which may be applicable to the applicant is the first, that is, a benefit to Australia. The more detailed policy guidance under 'benefit to Australia' states." Policy clearly stated that it is not limited to the situation which are mentioned in PAM3 but member misinterpreted the policy or in any case failed to consider this. Member narrowed his decision to only one situation which might be applicable as per him. This is [jurisdictional] error in decision. Member did not consider all the situation and looked into one situation "benefit to Australia". It clearly shows error in the decision. Secondly, In paragraph 23 its stated that "The Tribunal [does not] consider there was any relevant error or omission by the department such that would constitute "exceptional reasons" justifying a grant of the visa". There was clear omission by Department as they did not tell me that if my onshore application will only be granted in exceptional circumstances. I would have gone offshore and [apply] otherwise. The fact that Department gave a right advice as mentioned by member is wrong. 19 Notwithstanding the rather prolix drafting of the application for review, the primary judge identified the core of Mr Singh's grievances with the Tribunal's decision in the following terms (at [22]): 1. the Tribunal correctly had regard to the guidelines at [18], but at [21] of its decision stated that the only applicable provision was "benefit to Australia" and erred in narrowing its decision to this consideration and not the [appellant's] whole situation; and 2. the Tribunal erred in finding at [23] that there was not error or omission on the part of the department that would constitute "exceptional reasons". 20 The primary judge dismissed Mr Singh's application, finding that neither of the contentions advanced by Mr Singh had been made out. 21 In relation to the contention that the Tribunal had erroneously narrowed its consideration of Mr Singh's case to one of the situations referred to in the Department's policy guidelines, the primary judge noted that it was clear that only one of the situations concerning "exceptional reasons" set out in the guidelines had any potential relevance to Mr Singh. That was the "benefit to Australia" situation. His Honour concluded that the Tribunal did not err by not referring to the other three situations. His Honour inferred that the Tribunal found them not to be relevant. His Honour found that, having regard to the manner in which Mr Singh ran his matter before the Tribunal, the only other issue that the Tribunal was required to consider was Mr Singh's claim that the Department had misled him and if so, whether that situation amounted to an exceptional reason for the grant of the visa. 22 The primary judge held that, contrary to Mr Singh's contention, the Tribunal did consider Mr Singh's allegations concerning his dealings with the Department prior to lodging his student visa application. As the primary judge noted, the Tribunal found that the Department had done nothing wrong. Mr Singh gave evidence at the hearing before the primary judge and was cross-examined. The primary judge noted that in his evidence, Mr Singh did not relevantly go further than to repeat his complaint that the Department should have told him that an onshore application for the relevant visa would not be granted in the absence of exceptional reasons. The primary judge held that the Tribunal did not err in concluding that the Department had no duty in the circumstances to advise Mr Singh about the criteria that applied to his visa application, and that Mr Singh's evidence at the hearing did not cast doubt on that conclusion by the Tribunal. His Honour held that, in "the absence of a duty to provide advice as contended by [Mr Singh], a failure to provide it can hardly amount to exceptional reasons for the grant of a visa". APPEAL GROUNDS AND SUBMISSIONS 23 Save in one respect, Mr Singh's notice of appeal was drafted in the same terms as the application before the primary judge. The only difference was the following additional paragraph (as drafted): In Federal Circuit court, Respected Judge Failed to detect the error in the decision of Tribunal. I had even raised the point that Respected judge can call Department of Immigration and border protection from court and enquire as a student and they will again give the wrong advice as they gave me earlier. Respected judge said that that would not be relevant in my case. I believe this is very relevant in my case as Department is still giving out wrong advice to applicants same as they did in my case and putting future of students in jeopardy. 24 Mr Singh did not file any written submissions. He did, however, make oral submissions at the hearing. It is probably fair to say that his submissions were directed to what he plainly considers to be his unfair treatment at the hands of the Department. It is possible to distil his submissions down into the following points. 25 First, he was on a tourist or visitor visa when he first went to the Department's offices to inquire about applying for a student visa. He was told that he could apply for a student visa while he was in Australia. 26 Second, at that time the Department did not tell him that he would need to establish exceptional reasons. He accepts that he was not told that he would be granted a student visa. Nor, however, was he told that he would not or might not be granted a visa. 27 Third, if he had been told that he needed to show exceptional reasons, he could have returned to India and applied for the visa from there. 28 Fourth, the only reason that his visa was refused was that he was unable to show exceptional reasons. His visa application was not refused because he was not a genuine student, or because he had any ill intentions. 29 Fifth, and following from the other points, he considers that he has been dealt with unfairly by the Department. 30 Sixth, he maintains that he is a genuine student, he is half-way through his studies, that he has no ill-intentions and that as a result of the Department's actions he will have to abandon those studies unless he is given justice. 31 Mr Singh's appeal grounds and submissions effectively raise three issues for determination. 32 First, whether the primary judge erred in not finding that the Tribunal erred in narrowing its consideration to the "benefit to Australia" situation in the relevant policy and not considering Mr Singh's whole situation. While this issue was not addressed in Mr Singh's oral submissions, it is nonetheless raised in his notice of appeal. 33 Second, whether the primary judge erred in not finding that the Tribunal erred in finding that there was no error or omission on the part of the Department that would constitute "exceptional reasons". It should be noted in this regard that in his submissions on appeal Mr Singh did not specifically address any errors in the primary judge's reasons. Indeed, he effectively said that he was not saying that the primary judge made any errors. 34 Third, whether the primary judge erred in not inquiring whether the Department would still give wrong advice to a person in his circumstances. CONSIDERATION of appeal grounds 35 There is no merit in any of the grounds or contentions raised by Mr Singh in his notice of appeal and submissions. Did the Tribunal err by narrowing its consideration of Mr Singh's case? 36 It is perhaps fair to say that the primary judge's reasons did not directly or squarely engage with or address what appears to have been the central thrust of Mr Singh's contention that the Tribunal erroneously narrowed its consideration of his case to the "benefit to Australia" consideration in the relevant policy. The primary judge simply found that none of the other situations referred to in the guidelines were relevantly engaged in Mr Singh's case. That was undoubtedly correct. But Mr Singh appeared to contend that the Tribunal was required to look outside the situations outlined in the guidelines. The primary judge did not appear to squarely address that contention. 37 Nevertheless, there was and is no merit in Mr Singh's arguments concerning this aspect of the Tribunal's decision and reasons. There was and is no basis for concluding that the Tribunal erred in narrowing its consideration of Mr Singh's case to the situations referred to in the policy guidelines. That is so for a number of reasons. 38 First, the Tribunal expressly and correctly noted that the policy did not bind it, but that it was a matter that it was entitled to have regard to when determining what may constitute "exceptional reasons". 39 Second, the Tribunal was correct in finding that, having regard to the evidence and material relied on by Mr Singh, and the way that he had put his case, the only applicable situation referred to in the guidelines was the "benefit to Australia" situation. On no view of it could any of the other specified situations have been relevant to Mr Singh's case. 40 Third, and perhaps most importantly, the Tribunal did not restrict its consideration of Mr Singh's case to the "benefit to Australia" situation. The Tribunal expressly considered and made findings concerning Mr Singh's claims that he had been misled by the Department. It also considered other arguments that Mr Singh had advanced, including the time and money spent on his courses. 41 Fourth, and fundamentally, it is not apparent that, in conducting his case before the primary judge, Mr Singh put forward any particular circumstance relevant to the "exceptional reasons" criterion that should have been, but was not, considered by the Tribunal. Nor has he articulated any such circumstance in arguing his appeal. 42 It should perhaps be reiterated that Mr Singh advanced no arguments in relation to this ground of appeal at the hearing. Did the Tribunal err in not finding that the alleged error or omission of the Department constituted "exceptional reasons? 43 The primary judge was correct to reject Mr Singh's contention that the Tribunal erred in not finding that the alleged error or omission on the part of the Department constituted "exceptional reasons". 44 As the primary judge effectively found, it was open to the Tribunal to find that nothing done or not done by the Department in Mr Singh's case constituted "exceptional reasons" for the grant of his visa. It was open to the Tribunal to find that there was no evidence in support of his claim that he had been misled by the Department. Equally, it was open to the Tribunal to find that the information provided to Mr Singh by the Department was correct. It was correct for the Department to advise Mr Singh that he was able to apply for the visa onshore. As for the claim that he should have been told that if he did apply onshore he needed to show exceptional reasons, the Tribunal correctly found that Mr Singh was required to take responsibility for his own visa application. The Department was under no duty to give him advice concerning the criteria for the visa he was applying for. 45 There is one additional point that should be made in relation to this aspect of Mr Singh's case. As was noted earlier, not long after he applied for the visa, the Department wrote to Mr Singh, advised him that he needed to show exceptional reasons, and asked him to provide information in that regard. From that time at least, Mr Singh was on notice that he needed to show exceptional reasons. Importantly, the Department's letter also advised Mr Singh that he could withdraw his application at any stage. Thus, Mr Singh could have withdrawn his application, returned to India and applied for a student visa from there. He did not do so. It should also be noted in this context that by this time Mr Singh had engaged a migration adviser. In these circumstances, it is difficult to see how anything that Mr Singh was or was not told when he first contacted the Department about his visa application could have had any ongoing significance in respect of his visa application. 46 In any event, at the end of the day, Mr Singh's complaints concerning this aspect of the Tribunal's decision amounted to nothing more than a complaint about the merits of the decision. A mere complaint about the merits of the Tribunal's decision cannot constitute jurisdictional error. That is the case even if the complaint has some substance, which in this case it does not. 47 While it is not difficult to feel some degree of sympathy for Mr Singh, and it is unfortunate that he continues to consider that he has been dealt with unfairly, his complaints concerning the actions of the Department have no merit. More importantly, they provide no basis for concluding that the Tribunal erred in a jurisdictional sense in deciding his review application. Did the primary judge err in not further exploring whether the Department's advice was misleading? 48 This ground of appeal is fundamentally misconceived. Mr Singh appears to contend that the primary judge himself should have inquired whether the Department is still giving the same advice to visa applicants in his position. The suggestion appears to be that if the primary judge did that, it would somehow assist Mr Singh in making out his case that the Tribunal should have found that he was misled by the Department. 49 The Circuit Court's jurisdiction on a judicial review application concerning a decision of the Tribunal in migration matters such as this is limited to determining whether the Tribunal erred in a jurisdictional sense. At its very highest, Mr Singh's arguments in respect of this ground of appeal again amount to little more than an attack on a factual finding made by the Tribunal and the merits of the Tribunal's decision. Even if the attack had some substance, which it does not, it could not make out jurisdictional error on the part of the Tribunal. 50 In any event, Mr Singh was given the opportunity to adduce evidence before the Circuit Court on the question whether he was misled by the Department. The primary judge considered that evidence. His Honour was not persuaded by it. The primary judge plainly had no duty to make further inquiries on Mr Singh's behalf. Indeed, the primary judge had no power or jurisdiction to do so. Conclusion and disposition 51 None of the grounds or arguments raised by Mr Singh have any merit. The primary judge did not err in any way in dismissing Mr Singh's judicial review application. His appeal must be dismissed accordingly. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate: Dated: 25 August 2017