Singh v Minister for Home Affairs

[2019] FCCA 3720

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3720

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: HARJINDER SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 620 of 2018

Judgment of: Judge Vasta

Hearing date: 26 July 2019

Date of Last Submission: 26 July 2019

Delivered at: Perth

Delivered on: 26 July 2019

REPRESENTATION

The Applicant appearing on his own behalf

Solicitor for the First  Respondent: AUSTRALIAN GOVERNMENT SOLICITOR

ORDERS

1. That the Application filed 19 November 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 620 of 2018

HARJINDER SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 24 October 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate of the Minister not to grant the Applicant, Mr Harjinder Singh, a student visa.  On 19 November 2018, Mr Singh filed an originating application in this Court, asking this Court to review that decision. 

2. The Applicant is a citizen of India.  He first arrived in Australia on 18 January 2014 on a 573 student visa.  That is a student visa that is granted for the higher education subjects.  The subjects, which the Applicant was going to study at that stage, were an Academic English Program, followed by a Master of Engineering.  The Applicant completed the two-month Academic English Program and then he commenced the Master of Engineering through Edith Cowan University.

3. After three semesters of study, the Applicant ceased studying that course because he had failed a number of subjects and had had an unsatisfactory course progression. 

4. The Applicant then applied for the current visa on 12 September 2016.  The delegate refused to grant that visa in November of 2016, mainly because the criteria relating to the student visa was not met.

5. The criteria for the student visa, relevantly, is that the Applicant must show that he is a genuine Applicant for entry and stay as a student because he intends to genuinely stay in Australia temporarily, having regard to his circumstances, his immigration history and any other relevant matter, and then after his study, he would leave the country. 

6. As has been noted many times, there is great value in this system, because it allows persons from overseas to come to this country to study, to get the benefits of that study and then to return home to their country and put the benefits of what it is that they have learned into practice. 

7. In doing so, it enriches the country that the student has come from.  While the student is in Australia, of course, Australia benefits both economically and reputationally because there is a recognition overseas that the courses offered in Australian universities have worldwide application. 

8. The criteria for the granting of the student visa, therefore, is very strict to ensure that there is compliance with those criteria. 

9. The Applicant gave evidence before the Tribunal.  He told the Tribunal that he completed his secondary schooling and a Bachelor of Technology through a university in India between June 2008 and December 2012.  He said that he had never worked full time in India and as soon as he had finished that degree, he was looking at, to use his words, wanting to learn something in Australia that will help him on his return to India.

10. The Applicant told the Tribunal that his parents are back in India and his brother lives in Spain.  His brother is studying on a student visa there.  The father of the Applicant is a farmer, the mother is a housewife, and that he, the Applicant, has been able to manage personal relations with his parents back in India while living in Australia by making contact twice a week via telephone and the social media application WhatsApp. He contacts his brother either through the phone or through WhatsApp once a week. 

11. The Applicant told the Tribunal that there are no issues of concern for him back in India.  He is not a person who would need to complete military service, and there is no political or civil unrest back in India. 

12. The Applicant told the Tribunal he has developed a number of friendships during his time in Australia.  He has made friends with people in his course and he is living in share accommodation in a suburb north of Perth.  The Applicant has, in the eyes of the Tribunal, significant ties that he has now made because of the length of time he has lived in Australia where he has been able to establish himself with part-time casual employment over this period.  The Tribunal noted that the Applicant has not returned home since arriving in Australia. 

13. The Applicant gave the Tribunal a confirmation of enrolment for a Bachelor of Business that would commence on 19 November 2018, and that that course would be completed by 30 June 2020, and it would cost the Applicant $33,200 to do.  The Applicant, it was noted, only obtained that enrolment on 5 September 2018.  The Applicant said to the Tribunal that that Bachelor of Business course will provide him with the skills required to run his own business back in India. 

14. The Tribunal looked at the fact that, in the time that the Applicant has been here, he has been enrolled between 2 January 2017 and 29 December 2017 in a Certificate IV in Commercial Cookery and a Diploma in Hospitality, but he did not complete this because he did not submit his assignments on time for the Certificate IV.  As a consequence, his certificate of enrolment for that diploma was cancelled.

15. He had completed a Certificate III in Commercial Cookery, and then he enrolled in a new package of hospitality courses in January 2018.  He completed a certificate IV in Commercial Cookery on 29 August 2018 and was due to complete a Diploma in Hospitality on 29 October 2018.  The Bachelor of Business course was due to commence after this. 

16. The Tribunal noted that the Applicant did not complete his first package of hospitality courses because he didn’t submit his assignments on time and, therefore, the Tribunal had serious doubts that the Applicant would be able to complete the current package of hospitality courses. 

17. When the Tribunal looked at the situation of the Applicant having ties to this country, the length of time he has been living here, the length of time he has been working here, the fact that he sees no reason to be going home, and that he has enrolled in the courses that he has, the Tribunal came to the conclusion that the student visa program was being used by the Applicant to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.

18. The Tribunal looked at the Applicant’s employment situation in that he was currently working between 20 and 25 hours a week as an Uber driver, earning between $700 and $800 a week.  The Tribunal noted that the Applicant owns his own car and lives in shared accommodation.  He contributes $120 a week towards the rent and the bills.  The Tribunal considered that those living arrangements and expenses, the ownership of the vehicle and the economic circumstances within Australia provide a strong incentive for the Applicant not to return to his home country. 

19. The Tribunal then considered what value the course had to the Applicant’s future.  The Applicant told the Tribunal that the value of the current course and the Bachelor of Business would provide him with the management skills required to work in the hospitality industry, and, in the future, give him skills and knowledge to expand and start up his own business.  The Applicant said that he has a job offer back in India with Hotel Yellow Sapphire and believes that he would earn $1500 a month there. 

20. The job offer submitted to the delegate was dated 16 March 2016.  The course in which the Applicant is enrolled is the next phase in the package of courses.  The Tribunal said that it had difficulty accepting that a job offer made some 13 months ago will still be available for the Applicant on his return to India. 

21. The Tribunal came to the conclusion that they were not satisfied that the Applicant intended genuinely to stay in Australia temporarily, therefore, he did not meet the criteria for the visa.  Given that those requirements were not met, the Tribunal affirmed the original decision of the delegate.  

22. The Applicant’s application had two grounds:

    1. Ignoring the evidences provided in support.

    2. Deciding the application on assumption.

23. Neither of those grounds were particularised, and, on their face, disclose no jurisdictional error. 

24. The Applicant appeared in person before me.  I asked him what, if anything, he had to say to expand upon his grounds in his application.  In trying to make the best of what it is he said to me, it seems to me that he has said that the inferences that the Tribunal have drawn, in the fact that he did not finish his studies and that there are a number of courses that he had not completed and the fact that he was earning money here and had a fairly good life, were insufficient to use as a basis for a finding that the Applicant was not a genuine Applicant who would come to Australia temporarily, study and then go back to his home country.

25. These grounds will only illustrate a jurisdictional error if it is that the conclusion that the Tribunal had come to was simply not open on the evidence. 

26. Having gone through the reasoning of the Tribunal, it seems to me that the conclusion reached by the Tribunal was open on the evidence.  It does not necessarily mean that that is the same conclusion that any or every decision-maker may come to, but as long as the conclusion was open on the evidence, then there will be no jurisdictional error.

27. It seems to me, really, that the grounds that the Applicant is putting forward to this Court are an invitation for an impermissible merits review. 

28. Having come to the conclusion that there is no jurisdictional error that has been illustrated, I dismiss the application with costs fixed in the amount of $6000.  

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:18 December 2019