Singh v Minister for Home Affairs

[2019] FCCA 2098

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2098

Catchwords:
MIGRATION – Application for review dismissed due to non-appearance at hearing – application for reinstatement – failure by applicant to satisfy substantive criteria for the grant to him of a student visa – application for reinstatement lacking in utility – application dismissed.

Legislation:

Migration Regulations 1994 (Cth) r.573.222.

Cases cited:

Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429.

Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611.
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332.

Applicant: RANJODHBIR SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1101 of 2018

Judgment of: Judge Egan

Hearing date: 23 July 2019

Date of Last Submission: 23 July 2019

Delivered at: Melbourne

Delivered on: 23 July 2019

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Mr. K. Sypott

IT IS ORDERED THAT:

1. The application for reinstatement filed on 12 June 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for reinstatement fixed in the amount of $3,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 1101 of 2018

RANJODHBIR SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant has made application for reinstatement of his application for review filed by originating application on 26 April 2018. That application was dismissed by order of Registrar Luxton made on 15 May 2019 by reason of the nonappearance of the applicant at a hearing before the registrar listed for that date. The lawyers for the first respondent oppose the application for reinstatement on the ground that the substantive grounds as set out in the originating application for review are without merit and likely to be dismissed, and that, therefore, any reinstatement order would lack utility.

2. The applicant has filed an application to reinstate his application by an application in a case filed on 12 June 2019. In support of his application the applicant has filed two affidavits. The first affidavit was filed on 12 June 2019. That affidavit sought to give reasons as to why the applicant did not appear at the Court on 15 May 2019. There is a further affidavit filed on behalf of the applicant on 12 July 2019. In that affidavit, the applicant sets out a number of reasons why his application for review should be reheard. One of those reasons is that he asserted that he had a strong case, the grounds for review having been referred to as those set out in his originating application.

3. The originating application filed on 26 April 2018 has nine grounds of review. Those grounds are as follows: 

   “1. The Tribunal did not take into account the history of my studies and work in Australia. The tribunal failed to acknowledge the studies I have already done (cert III and cert IV in commercial cookery) before seeking further visa. The Tribunal also did not take into account the serious consequence; the refusal of m visa application would have on my life and career. This is a denial of natural justice.

   2. The tribunal failed to consider the importance of further studies in relation to my career. Study of bachelor degree is essential for my career aim of becoming Kitchen Manager. Having trade qualification in commercial cookery field is not considered matching the requirement of Manager level positions. The tribunal didn’t weigh my claims in relation to my future plans and the career I was planning to pursue after finishing my studies.

   3. The Minister and Tribunal Member made their own perception about my study gaps. They failed to consider that the 6 months time, which they were considering as my study gap, was actually not a gap, instead, during this time I didn’t complete any study and changed my stream. Because of this whole scenario, I didn’t get any transcript or letter of completion from my college. However, I had a COE during that time and Tribunal member was at wrong while concluding that it was a gap in my studies and it further contradicts my visa conditions.

   4. The Tribunal did not take into account the importance of trade qualification along with bachelor degree as stated by me. The tribunal member didn’t try to understand my point of view in regards to my future aim and the importance of higher education in my future goals.

   5. The tribunal member failed to acknowledge that I had always complied with my student visa conditions and never breached any visa condition (Subclass 573 – Higher Education) while my stay in Australia. I had always abided by the limitations imposed by Department of Immigration and Border Protection on my visa. This clearly indicates that I have always been a Genuine Student and law abiding non Australian Citizen.

   6. Department of Immigrations was wrong in concluding that my change in studies was derived by my intention to permanently migrate into Australia.

   7. Tribunal and Minister of Immigration exaggerated the point that I haven’t departed Australia more than once. My explanations of completing my study as earliest as possible were completely ignored by the Minister and Tribunal member.

   8. The Tribunal member seemed to have already made up his mind even before the hearing and despite my attempts to explain my case, refused my application.

   9. I may provide more grounds after I receive reasons for the decision of the court.”

4. Each of the grounds assume, erroneously, that the applicant was, at the time of the making of the decision by the Administrative Appeals Tribunal (‘the Tribunal’) on 4 April 2018, a person who was prima facie entitled to the issue to him of a student (Temporary) (Class TU) Sub class 573 visa.

5. In that regard, clause 573.222 of the Migration Regulations 1994 (Cth) (‘the Regulations’) sets out the criteria to be satisfied by an applicant such as the present applicant as at the time of the making of the decision by the Tribunal. Relevantly, clause 573.222(1) provides that the applicant must provide at that time of decision a certificate of enrolment indicating that the applicant was enrolled and undertaking a course of study, the provider of which was not a suspended education provider in respect of an acceptable course. Clause 573.222 provides as follows:

   “573.222

   (1)  Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).

   (2)  If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course.

   (3) If the application was made on form 157E, the applicant is enrolled in an acceptable course.”

6. The applicant was sent a letter by the Tribunal dated 6 March 2018.  That letter relevantly provided that the date for the hearing of the applicant’s application for review was listed as 4 April 2018.  The time and place of such hearing was also set out in the letter. Relevantly, the letter on page 2 [1] provided that for the purposes of the hearing, the applicant was to provide a copy of his then current certificate of enrolment as was required for the grant to him of a student visa. By sending that letter to the applicant, the Tribunal was reminding the applicant of his mandatory obligation to provide a then current certificate of enrolment evidencing the applicant’s enrolment in an acceptable course of study as at the date of the decision in accordance with the regulation referred to above.

   [1]        Page 87 of Court Book.

7. The applicant today conceded that on 4 April 2018 he did not have a certificate of enrolment indicating that he was enrolled in, and undertaking, an acceptable course of study at the relevant time.  Paragraph [11] of the reasons of the Tribunal are relevant in that regard.  The Tribunal there said: 

   “11. You told the Tribunal that your most recent course, namely the Bachelor of Business (Management and Finance), was cancelled by the provider or rather, that your enrolment in that course, was cancelled by the provider.”

8. Paragraph [12] of the reasons of the Tribunal provided as follows: 

   “12. You told the Tribunal when you were refused the student visa application by the delegate, you became upset and that you did not attend classes.  It follows that the provider cancelled your enrolment in that course.”

9. At [16] of its reasons, the Tribunal confirmed that the applicant had received a copy of the Tribunal’s letter dated 6 March 2018, referred to earlier.  It also noted that on the day of the hearing before the Tribunal the applicant had not provided a copy of a then current confirmation of enrolment certificate as requested.  At [17] of its reasons, the Tribunal found that the applicant had had significant time to enrol in a course and that it was not prepared to allow any further time to the applicant for him to enrol in another course.

10. At [18] of its reasons, the Tribunal noted that a certificate dated 15 December 2014 was in fact provided by the applicant to the Tribunal but upon a review of PRISMS records, it was noted that such certificate related to the course of Bachelor of Business (Management and Finance) which had been cancelled. Confirmation of that cancellation is seen at Court book page 118, which forms part of Exhibit 2, and which clearly indicates that the Bachelor of Business (Management and Finance) course for which the applicant had been enrolled had been cancelled at some time in 2017 prior to the hearing before the Tribunal on 4 April 2018. 

11. It is also relevant that on 25 July 2018, after the filing of the applicant’s originating application for review, the Australian Government Solicitor sent a letter to the applicant advising him that a directions hearing in the matter would take place at 10:00am on 15 May 2019. In paragraph 3 of that letter it was indicated to the applicant that should he not attend on that day the first respondent might ask the Court to make orders dismissing the applicant’s application and requiring the applicant to pay the Minister’s legal costs without further notice. [2] 

    [2]         Annexure KMS-1 to the affidavit of Mr Sypott filed on 12 July 2019.

12. In the light of all of the circumstances referred to above, it is clear that as at the date of the Tribunal hearing on 4 April 2018 the applicant was not a person who satisfied the relevant criteria for the grant to him of the student visa.  He was in those circumstances disentitled to seek the relief before the Tribunal which he did.

13. The applicant compounded his problems by failing to appear at the directions hearing before the Registrar on 15 May 2019 and had his originating application dismissed as a result.

14. Though the first respondent concedes that there is no prejudice suffered by the Minister as a result of the filing of the application for reinstatement, and further that there was no delay on the part of the applicant in filing such application for reinstatement, the first respondent nevertheless submits that because the substantive application for relief is without merit the application for reinstatement should be refused. The Court agrees with the submissions advanced on behalf of the first respondent. The first respondent was at no time entitled to the grant to him of the relevant student visa, and hence none of the grounds advanced by the applicant in his application for review are of any merit.

15. It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ in Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429 at [25] - [27], where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

16. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [130]:

    “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

17. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification as such restrictive concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

18. The applicant has not demonstrated any jurisdictional error on the part of the Tribunal.

19. The application for review is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 31 July 2019