Singh v Minister for Home Affairs

[2019] FCCA 1675

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1675

Catchwords:
MIGRATION – Visa – student visa – whether Tribunal applied correct test – whether Tribunal took into account irrelevant material – ex tempore reasons by Tribunal – whether denial of procedural fairness – whether failure to consider relevant material – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359A(1)(a), 359A(4)(b), 359AA, 360, 368D(2)(a), 368D(4), 499 and 499(2A)

Migration Regulations 1994 (Cth), Sch.2, cl.572.223(1)(a)

Minister Direction No. 53

Cases cited:

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Applicant: GURPREET SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 344 of 2017

Judgment of: Judge Heffernan

Hearing date: 29 April 2019

Date of Last Submission: 29 April 2019

Delivered at: Adelaide

Delivered on: 18 June 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Respondents: Mr C Retallick for the Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 344 of 2017

GURPREET SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 27 July 2017.  That decision affirmed an earlier decision of a delegate of the first respondent to refuse to grant the applicant a Temporary Student (Subclass 572) visa (‘the visa’).  The applicant appeared before me self-represented.  His application raises eight grounds of review. 

2. On 27 December 2017, the applicant was given leave to file and serve an amended application by 8 December 2017.  He was also given leave to file and serve such further material, including the transcript of the proceedings, which he may seek to rely on in the hearing of this matter.  Further, he was ordered to file and serve an outline of submissions at least 10 days prior to the hearing.  The applicant has not filed any amended application, further materials, or a written outline of submissions.  The grounds are as follows:

   “1.That the Tribunal has committed a jurisdictional error by deciding the review application filed by the applicant only on the basis of ministerial direction and failed to apply the law which was applicable.

   2.That the Tribunal has committed a jurisdictional error by giving its decision based on the fact that applicant had breached condition 8516 when he was initially granted an SC 573 student visa. The tribunal committed an error by losing the sight of the fact that the applicant was thereafter granted two different visas SC 572 and SC 485 subsequently and therefore any breach whatsoever prior to the grant of those visas was inconsequential. By operation of law, any alleged breach before the grant of new visas was condoned when the new visas superseded the earlier visa. Therefore, the tribunal had no jurisdiction to dig out the breach of condition and rely upon it, especially when it was non-existent and stood condoned by the operation of law.

   3.The Tribunal failed to comply with s359A of the Migration Act 1958

   Particulars:

   The Tribunal committed jurisdictional error by failing to comply with s359A of the Migration Act 1958.

   Admittedly, the Tribunal had given an oral decision on the 27th of July and had summarily refused to interfere with the decision of the delegate and had affirmed it. It was only at the asking of the applicant that a written decision was given by the AAT on the 8th of August 2017.

   The Tribunal had to give clear particulars of the information to the applicant and invite the applicant to comment on or respond to the information, under section 359AA. If this was not done then it was incumbent on the Tribunal to give an opportunity to the applicant and provide clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it. AND

   (2)The information and invitation must be given to the applicant:

   (a)except where paragraph (b) applies--by one of the methods specified in section 379A;

   or

   (b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   The Tribunal committed jurisdictional error by not providing any of the provisions, evidence, regulations, and facts which were taken into consideration while affirming the decision of the delegate. It was incumbent on the tribunal to do that, especially because the application was lodged and argued by the applicant without any legal help from a lawyer or a migration agent.

   4.1That the Tribunal has committed a jurisdictional error by not putting the clear particulars of the information to the applicants and also never invited the applicant to comment on or respond to either orally or in writing of the said information during the telephonic hearing. Resultantly, the applicant lost his right to comment on the information under Section 359A by way of methods prescribed under Section 379A.

   4.2That the Tribunal has committed a jurisdictional error in not giving the Applicant the information orally at the telephonic hearing. Thus, the information was not clear and in a material particular. The Tribunal did not comply with Section 359AA as it did not explain what an opportunity to respond entailed; that is, it did not explain that a response could be in writing, such that it could have offered an adjournment to go and make their own decision and explore their options especially when there was no migration agent involved in the hearing process, to that adverse information and provide a meaningful response. In the present case, the Tribunal even failed to give basic information to the applicants.

   5.The tribunal relied on another application lodged by the applicant for partner visa without putting the applicant on notice that it was going to rely on the said application while making its decision and ultimately affirmed the decision of the delegate of the minister by relying heavily on the facts of a different partner visa application. The tribunal has observed in its decision:

   “You subsequently went offshore and lodged another application for a permanent 309 Partner visa.

   Mr. Singh: Is there anything wrong if I want to stay with my family?

   Member: Mr. Singh the situation is, I am in the process of making a decision in this matter”

   The tribunal, therefore, committed a jurisdictional error by not adhering to the procedure prescribed under Section 359AA while deciding the present matter.

   6.The Tribunal made a jurisdictional error by not adhering to the procedure prescribed under Section 359AA, especially the following:

   (a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)if the Tribunal does so the Tribunal must:

   (i)     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)     orally invite the applicant to comment on or respond to the information; and

   (iii)   advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)    if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   None of the above was followed at the time of the hearing and therefore all the proceedings at the hearing and thereafter are vitiated and cannot sustain in law.

   7.That the tribunal committed a jurisdictional error by not considering the submissions of the applicant that the migration agent engaged by him had in fact not given him the right advice and had played a fraud with him by getting applicant's signatures on a blank visa application form as at that time paper visa applications were lodged with the department. The applicant did not know the implications and requirements of law and therefore paid a huge fee to the agent and completely trusted him. However, the agent misrepresented to the applicant and ensured him that he was eligible to lodge the visa application and he fulfilled all the requirements of the Migration Act and the regulations. The famous formulation from the High Court (in the case of SZFDE v Minister for Immigration & Citizenship [2007) HCA 35 (2 August 2007) that "fraud is capable of unraveling everything'' should have proved to be the salvation of the applicant in this case. Also, Recently, the Federal Court has delivered two judgments which squarely cover the present matter in favour of the applicant. The Federal Court ruled that the Federal Circuit Court did not, in assessing the validity of the appellant's visa application, consider how, if at all, the operation of ss 45 to 48 and 98 of the Migration Act 1958 (Cth) might be affected by the conduct of the appellant's migration agent: see Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 at [52), and Gill v Minister for Immigration and Border Protection [2016) FCAFC 142 at [SO].”[1]

   (reproduced verbatim except for formatting)

   [1]     The application as filed had two grounds that were given the number 4.  They have been referred to above as 4.1 and 4.2.

Background

1. The applicant is an Indian national, having been born in 1987.  He arrived in Australia in June 2008.  At the time of his arrival, he held a Temporary Student (Subclass 573) visa.  In October of 2011, he was granted a Temporary Graduate (Subclass 485) visa, which was valid until April 2013.  In May 2013, he was granted a Temporary Student (Subclass 572) visa, which was valid until 2 May 2015. 

2. During his time in Australia, the applicant completed a variety of courses, which included a Diploma of Business, Diploma of Management, Diploma of Multimedia, and a Certificate III in Printing and Graphic Arts.[2]

   [2]     Court Book (‘CB’) pp 74 to 75.

3. In August 2014, the applicant applied for a Combined Partner (UK820/BS801) Visa.  He withdrew that application when he was invited to comment on adverse information.  On 22 September of 2015, the applicant left Australia and two days later applied offshore for a Combined Partner (UF309/BC100) Visa.  He returned to Australia on 25 September 2015.  The Combined Partner Visa was refused in March 2017.

4. On the same day the applicant returned to Australia he applied for the visa the subject of these proceedings.  A delegate of the Minister refused that application on 9 October 2015 and the applicant applied for a merits review before the Tribunal.

5. The Tribunal invited the applicant to attend at a hearing of the application to give evidence and present arguments. The letter of invitation attached a copy of Ministerial Direction No. 53 made by the Minister pursuant to s.499 of the Migration Act 1959 (Cth) (‘the Act’).  The letter requested that the applicant provide evidentiary material and a written statement on the question of whether or not he was a genuine temporary entrant.  The applicant responded to that invitation by providing a written submission to the Tribunal.[3]

   [3]     CB pp 76 to 78.

6. The Tribunal provided oral reasons on the day of the hearing and later, subject to a request from the applicant, published written reasons on 8 August 2017.

Tribunal Decision

1. The Tribunal considered the applicant’s migration history.  It noted and placed weight on the fact that whilst he had come to Australia as the holder of a subclass 573 visa, he had never undertaken studies at that level, which was itself a breach of condition 8516 of that visa.  The Tribunal also gave weight to the fact that there had been significant gaps during the applicant’s course of studies.  It also noted, and appears to have placed weight on the fact, that whilst the applicant was granted a Subclass 485 Visa, which enabled him to get work experience in a field in which he had completed studies, he did not work in his area of study, but rather as a taxi driver once he had been granted that visa. 

2. Further, it noted and appears to have placed weight on the fact that whilst he was the holder of a Subclass 485 Visa, he did not do any study and yet applied for another student visa shortly before the Subclass 485 Visa was to expire.  It was at that time that he enrolled in a Diploma of Business and a Diploma of Management.  The Tribunal found that his motivation for enrolling in those courses was for the purpose of prolonging his stay in Australia by obtaining another valid visa.[4]

   [4]     CB p 131 at paras [20] and [21].

3. Noting that the applicant claims to have travelled to Australia in order to become qualified as a graphic designer, the Tribunal found that he had no future plans that were consistent with his studies.  This was because, as it noted, he stated that his ultimate goal was to run his own business, a café, a hotel, or a restaurant, notwithstanding the fact that he had no experience in those industries.[5]

   [5]     CB p 131 at paras [24] and [25].

4. The Tribunal took into account, as part of the applicant’s migration history, that he had previously applied for a partner visa and yet in that application failed to declare that he was already married in India.  It noted that it was only after he was sent a natural justice letter suggesting that there was adverse information, that the applicant withdrew that application.  It further noted that he claimed that he was advised to withdraw the application because a breach of condition 4020 would lead to a three-year visa ban.[6]

   [6] CB p 132 at para [26].

5. Further, the Tribunal noted and placed weight on the fact that the applicant, notwithstanding the fact that his divorce had not yet been finalised in India, had a de facto partner in Adelaide, had amassed significant savings and informed the Tribunal that he would like to buy a house in the western suburbs of Adelaide.[7]

   [7]     CB p 132 at paras [28] to [30].

6. On the basis of all of those matters, the Tribunal concluded that the applicant did not intend to stay in Australia temporarily, as was required by the grant of a student visa, but rather that he was using the visa for the purpose of maintaining ongoing residence in Australia. Having considered the applicant’s circumstances as a whole, including the issues identified in Ministerial Direction No. 53, the Tribunal was not satisfied that the applicant was a genuine student intending to stay temporarily in Australia, and for that reason he could not meet cl.572.223(1)(a). As a result, it affirmed the decision under review.

Submissions

1. As I have noted, the applicant did not file written submissions in this matter.  He elected not to make any oral submissions in support of his application.  He made a brief oral submission in reply once he had heard the brief submissions of the first respondent.  His submission was, in effect, to restate the complaint made in ground two of his application.  The oral submission added nothing to the matters referred to in the ground itself.

2. The first respondent made brief oral submissions but otherwise relied on its written outline of submissions. Briefly stated, the first respondent submitted, with respect to ground one, that the Tribunal had understood and applied the correct test under cl.572.223(1)(a) and, having found that the applicant did not satisfy that clause, was required to affirm the delegate’s decision.

3. With respect to ground two, the first respondent submitted that the Tribunal was required by Ministerial Direction No. 53 to have regard to the applicant’s migration history and that this included his history of compliance with the terms of any visas previously held.  For that reason, it was not an error for the Tribunal to take into account the previous breach of condition 8516 of his original visa.  Further, it was submitted that, in any event, the fact of that breach was not the sole reason for reaching the conclusion that the applicant was not a genuine student intending to stay temporarily in Australia, but merely one of a number of factors that led to that conclusion.

4. As to grounds three and 4.1, the first respondent submits that the Tribunal clearly had power to give oral reasons on the day of the hearing. Further, there was no information relevant for the purposes of s.359A which the Tribunal was required to disclose to the applicant.

5. With respect to grounds 4.2 and six, it was submitted that, as with grounds three and 4.1, there was no information which was the subject of an alleged failure to comply with s.359AA. Properly understood, no procedural fairness requirement was engaged because of that fact. Clearly, the applicant was invited to attend the hearing, was on notice of the issues to be determined, and given an opportunity to give evidence and present arguments.

6. With respect to ground five, the circumstances surrounding the fact of the applicant’s combined partner visa was not information which gave rise to any procedural fairness requirements under ss.359A or 359AA. It was information that the applicant himself provided to the Tribunal and, as such, at the very least, fell within the exception in s.359A(4)(b).

7. With respect to ground seven, it was submitted that, contrary to the contention contained within this ground, the Tribunal did not ignore the applicant’s claim of fraud on the part of his migration agent but rather considered that evidence and clearly rejected it.[8]

   [8] CB p 113 at para [16].

Legislative background

1. In order for the applicant to satisfy the criteria for the visa, it was necessary that he met the time of decision criterion in cl.572.223. Clause 572.223(1)(a) provided as follows:

   “(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)     the applicant’s circumstances; and

   (ii)     the applicant’s immigration history; and

   (iii)   if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)    any other relevant matter, and”

2. It was necessary in considering whether the applicant satisfied the above criterion for the Tribunal to have regard to Ministerial Direction No. 53, Assessing the genuine temporary entrant criterion for student visa applications. That Direction was made pursuant to s.499 of the Act. The Tribunal was required by the Direction to have regard to a series of specified factors relating to the applicant’s circumstances in their home country, their potential circumstances in Australia, and the value of the course to the applicant’s future:

   a)The applicant’s immigration history, including previous applications for Australia visas and previous travel to Australia or other countries.

   b)Any other relevant information provided by the applicant or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

1. Those factors are not a definitive checklist of matters to be considered, but rather are to be used by the Tribunal as a guide when weighing up the applicant’s circumstances as a whole in order to determine whether the applicant satisfied the genuine temporary entrant criterion.

Consideration

Ground one

1. I am not satisfied that there is any substance to this ground. The ground itself makes the bald assertion that the Tribunal relied only on the Ministerial Direction rather than applicable law. The Tribunal was required by virtue of s.499(2A) of the Act to have regard to the considerations set out in Ministerial Direction No.53. That included the applicant’s personal circumstances both in his home country and in Australia, the nature of the courses he had studied and the potential value of those courses to his future, and his immigration history. The Tribunal did take those matters into consideration in forming its view as to whether or not the applicant met the necessary criteria under Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The conclusion it reached was that the applicant was not a genuine temporary entrant to Australia and for that reason did not meet cl.572.223(1)(a). Self-evidently, this demonstrates that the Tribunal did not simply make a decision based on Ministerial Direction No. 53, but rather it considered the Direction in light of the materials before it and applied that consideration to determining the question as to whether or not the applicant satisfied the relevant criteria. The legal test under cl.572.223(1)(a) is not a complicated one. There is nothing in the reasons of the Tribunal, even allowing for the fact that they were brief, to suggest that it did not correctly understand the test to be applied under that clause. I dismiss ground one.

Ground two

1. This ground stands to be dismissed on the basis identified by the first respondent. Firstly, Ministerial Direction No. 53 required the Tribunal to take into account the applicant’s migration history. It did so. In doing so, it could not ignore the fact that he had committed a prior breach of condition 8516 whilst holding a Student (Subclass 573) Visa. It could not be said that the fact of a previous breach, being part of the history of his failure to comply with conditions with respect to study, was irrelevant to the consideration by the Tribunal of whether he was a genuine temporary entrant. Further, the decision of the Tribunal was not based solely on the fact that he had previously breached condition 8516. It was one of many factors which the Tribunal took into account in forming its ultimate conclusion that he did not satisfy cl.572.223(1)(a).

2. There is no substance to the applicant’s assertion that simply by virtue of the fact that the Department either ignored or did not pick up the fact of his earlier breach, and that he was successful in obtaining other student visas after the time of that breach, that it was either irrelevant or somehow “condoned by the operation of law”.  I dismiss ground two.

Grounds three and 4.1

1. Section 359A(1)(a) requires the Tribunal to give an applicant clear particulars of any ‘information’ that it considers would be the reason or part of the reason for affirming the decision under review. That requirement does not mean that the Tribunal must give the applicant a running commentary on the view that it takes with respect to any information or evidence given by the applicant during the course of the hearing. It is not necessary for the Tribunal to demonstrate its thought process.[9] Any identified gaps or lack of detail or specificity in the evidence does not amount to ‘information’ for the purposes of s.359A. Further, as the first respondent has correctly submitted, the applicant did not identify any particular ‘information’ which was the subject of an alleged failure to comply with s.359A. The applicant complains that the Tribunal did not provide “any of the provisions, evidence, regulations and facts which were taken into consideration”. As I have noted, there was no information which caused the procedural fairness requirements of s.359A to be engaged.

   [9]     SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at para [18]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 206 ALR 471 at para [24].

2. Further, the Tribunal had the power to make an oral decision at the conclusion of the hearing pursuant to s.368D(2)(a) of the Act. The applicant was entitled to have a copy of that decision in writing and he made a request for written reasons under s.368D(4). The Tribunal was required to provide a written statement of the reasons to the applicant within 14 days upon his request and it did so. There is no substance to the applicant’s complaint that the Tribunal summarily dismissed or simply refused to interfere with the delegate’s decision. I am satisfied the Tribunal considered the materials before it and the applicant’s claims in light of Ministerial Direction No. 53, and that in doing so it made findings within power. I dismiss grounds three and 4.1.

Grounds 4.2 and six

1. I accept the submission of the first respondent that the applicant has failed to identify any particular ‘information’ that was the subject of the alleged failure to comply with s.359AA. As I have already indicated, I am also satisfied that there was no information before the Tribunal which gave rise to the procedural fairness requirements of ss.359A or 359AA. The applicant was not denied procedural fairness with respect to the hearing. He was entitled to a hearing in accordance with s.360 of the Act. He was invited to attend and did attend such a hearing. He was on notice of the fact that the dispositive issue was likely to be whether he intended genuinely to stay in Australia only on a temporary basis. He was provided with a copy of Ministerial Direction No. 53 and given an opportunity to provide further information about his course studies and any explanation he had for anomalies or gaps in his periods of study. He provided a written statement addressing those issues. I am satisfied that he had a meaningful opportunity to give evidence and present argument with respect to the dispositive issues.[10]

   [10]    Minister for Immigration and Border Protection v Singh [2014] 308 ALR 280 at para [51].

2. I dismiss grounds 4.2 and six.

Ground five

1. The Tribunal was not required to put the applicant on notice of the fact that it took into account his Combined Partner (UF309/BC100) Visa. As I have already indicated, the Tribunal was required by virtue of Ministerial Direction No. 53 to have regard to the applicant’s migration history. The fact of the application for a Combined Partner Visa was not ‘information’ before the Tribunal which gave rise to the procedural fairness requirements in ss.359A or 359AA. The fact of his previous application for a visa did not, as the first respondent submitted, contain a rejection, denial or undermining of the applicant’s claims such as to engage the relevant procedural fairness requirements.[11] Further, given that the applicant had provided the Tribunal with the information about the earlier partner visa application, the information fell within the exception in s.359A(4)(b).

   [11]    SZBYR, op cit at para [17].

2. I dismiss ground five.

Ground seven

1. There is no substance to this ground.  The Tribunal did not fail to consider the submission of the applicant that his migration agent had given him false advice and committed a fraud by obtaining his signatures on a blank visa form.  It is clear from the decision record that the Tribunal had regard to that evidence and that it rejected it as baseless.  The term used by the Tribunal was “quite incredible”.[12]  Further, that allegation of fraud did not relate to the application for the visa which is the subject of this review.  It related to the earlier application for a Combined Partner Visa in 2014.  For that reason, even if accepted, the allegation of fraud with respect to an earlier visa would not affect the decision the subject of this review.[13]

   [12] CB, p 131 at para [16].

   [13]    SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.

2. I dismiss ground seven.

3. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 18 June 2019