SINGH v Minister for Home Affairs
[2019] FCCA 1660
•5 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1660 |
| Catchwords: MIGRATION – Student visa – applicant enrolled in, but cancelled 11 courses of study – no current Certificate of Enrolment – Tribunal affirms decision of delegate to refuse visa application – applicant confirms that he does not hold current certificate of enrolment – judicial review – non-attendance at court hearing – application for judicial review dismissed – application for reinstatement – applicable principles – whether grounds of review arguable – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 Migration Act 1958 (Cth), ss.65, 499 Migration Regulations 1994 (Cth), Sch 2 cl.500.111 |
| Cases cited: Gallo v Dawson (1990) 93 ALR 479 House v The King (1936) 55 CLR 499 |
| Applicant: | LOVEDEEP SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1074 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 5 June 2019 |
| Date of Last Submission: | 5 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 5 June 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Ms Roberts |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application in a case filed on 30 May 2019 be refused.
The applicant pay the costs of the first respondent fixed in the sum of $1,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1074 of 2018
| LOVEDEEP SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore revised from transcript)
Introduction
By application filed on 23 April 2018, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 March 2018 affirming the decision of a delegate of the first respondent (Minister) to refuse the applicant’s application for a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (Act). The Tribunal affirmed the decision and dismissed the application in circumstances where the applicant confirmed at the Tribunal hearing that he held no current Certificate of Enrolment (CoE) for any course of study.
The application for judicial review was dismissed on 15 May 2019. This application was pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) in default of the applicant’s appearance. The applicant now seeks to reinstate the application.
Background
The applicant, an Indian national aged 30 years, applied for the visa on 1 September 2016, having arrived in Australia on 1 October 2013.
On 25 October 2016, a delegate of the Minister refused the visa application. The delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.
The applicants PRISMS records for the period 2013 – 2017 indicate that while the applicant had completed a course in English Language Programs and two Masters’ Degrees in Professional Accounting, he had enrolled, but cancelled his enrolment, in 10 other courses.
On 4 November 2016, the applicant lodged an application for a merits review of the delegate’s decision by the Tribunal. The application was lodged by the applicant’s registered migration agent.
In responding to the application, the Tribunal provided the applicant with an acknowledgement in which it advised him that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. Advice to the same effect was contained in an attached document entitled Information for Migration Review Applicants.
On 27 February 2018, the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision. The Tribunal attached to the invitation advice that the hearing was scheduled to take place on 29 March 2018, and requested that the applicant read, complete and return an enclosed response to hearing invitation and provide all documents on which he intended to rely to establish that he met “the criteria for the visa”. The invitation continued:
In addition, please provide the following information so that a decision can be made as quickly as possible:
1) A copy of your current Certificate of Enrolment (COE) or other documents that show you are currently enrolled in a course of study as defined in cl 500.111 of the Migration Regulations 1994, as is required for the grant of a student visa. (emphasis added)
2) - 3) . . .
The Tribunal also provided by way of further attachments: a document entitled Information About Hearings – MR Division, which provided further advice for applicants in relation to giving evidence and attending the hearing, and; Ministerial Direction Number 69 – assessing the genuine temporary entrant criterion for student visa and student guardian applications, made applicable by s 499 of the Act.
The applicant completed the response to hearing invitation, indicating that he, together with his migration agent, would attend the hearing and that he did not intend to adduce oral evidence from any other person.
On 26 March 2018, the applicant’s migration agent lodged a written submission. Attached to that submission were a number of documents respecting the applicant’s academic transcript, in particular for the period March 2015 – November 2017.
At the hearing on 29 March 2018, the applicant and his migration agent were present. The applicant gave evidence. For the purposes of that hearing, the applicant completed a document entitled Student visa-GTE Questionnaire in which he answered the question:
Do you have a current COE? No.
On 29 March 2018, the Tribunal made an oral decision to affirm the delegate’s decision to refuse the visa application. The applicant made a request for written reasons which were provided to the applicant on 19 April 2018 (Reasons).
The Tribunal considered that while the issue before the delegate had been whether the applicant met the genuine temporary entry criteria, the issue before the Tribunal at the time of its decision was whether the applicant met the enrolment requirements for a Student visa. The Tribunal proceeded to examine that issue in some detail. It recognised that the applicant had confirmed in his answer to the questionnaire that he did not have a current CoE and considered the evidence which the applicant had given.
In particular, the Tribunal found at [19] that the applicant had not made a formal application for a CoE and such inquiries as he had made respecting the provision of a CoE for any course of study had been made on “an information basis more than anything else”.
The Tribunal concluded that the applicant had been on notice before the hearing of the requirement that a CoE was required. The Tribunal did not consider it a matter of particular difficulty to obtain such a certificate, and found that the applicant had had a reasonable time in which to obtain such a certificate without doing so: [20-21]. The Tribunal further found that it had not received a meaningful response from the applicant as to why he had been unable to comply with the request that he provide it with a current CoE. The Tribunal found that the applicant had not complied with the prescribed criterion that he have a current CoE at the time of its decision: [22-23]. It was in those circumstances that the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for the Student visa.
As noted, on 23 April 2018, the applicant filed an application for judicial review of the Tribunal’s decision. An affidavit in support deposed as follows:
That the decision of the [Tribunal] to affirm the [delegate’s decision] contains a jurisdictional error. The Tribunal Member failed to take into consideration the relevant circumstances of my case and made the decision on the basis of irrelevant material. Therefore, the decision is illogical and irrational and must be quashed by the Hon. Court. I have enclosed a copy of the [Tribunal’s decision] . . .
By a Response filed on 11 May 2018, the Minister opposed the grant of relief on the basis that the application failed to raise an arguable case for relief and did not establish any jurisdictional error in the Tribunal’s decision.
As appeared on the notice of filing that was issued when the application for judicial review was lodged, the application was listed for hearing on 15 May 2019.
As the applicant did not appear at that hearing, an order was made dismissing the application pursuant to r 13.03C(1)(c) of the Rules.
On 30 May 2019, the applicant filed an Application in a Case which stated, as concerned the orders sought, as follows:
I wish to quash Review member decision for refusal of my student visa application on grounds of 500.212, I missed my hearing due to compelling reason, please refer to attached documents; hence please grant me a chance to get hearing rescheduled.
The applicant did not serve the Application in a Case or supporting affidavit, and had no response to why he had not done so. In all events, the Minister’s lawyers became aware of the hearing and appeared, opposing the application for reinstatement.
As explained to the applicant in the hearing, certain criteria or guidelines are to be considered in a decision whether to reinstate a proceeding. I address these in further detail below.
Reinstatement
Where an applicant does not appear at a hearing, the court may dismiss the application: r 13.03C(1)(c).
The court may set aside an order made in the absence of a party: r 16.05(2)(a). The principles which are applicable to the discretionary power to reinstate a proceeding are well settled. Where a power conferred by rules of the court is cast in discretionary terms, the exercise of such power is not automatic, but calls for the exercise of that discretion: cf Gallo v Dawson (1990) 93 ALR 479, [480] (McHugh J). Inherent in the conferral of a discretionary power is an assumption that some applications may be refused: Jackamarra v Krakouer (1998) 195 CLR 516 at 540 (Kirby J); see also, at 519-512 (Brennan CJ and McHugh J). The waste of scarce resources is not a relevant consideration: MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392, [11] (Logan J).
The principles that govern the court’s exercise of power under r 16.05(2)(a) in relation to an application for reinstatement of a matter after dismissal in the absence of an applicant were considered in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, [7]. There, Ryan J stated:
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.
More recently, in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344, [4], Mortimer J restated the applicable test in these terms:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
Her Honour’s statement of principle has been endorsed on several occasions.
Applicable threshold
The exercise of discretion in favour of an order for reinstatement does not require the court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review: CAL15, [5]. Rather, on an application for reinstatement, the threshold that is applicable to the consideration of the merits of the application is whether the grounds for judicial review are shown to be ‘arguable’: CAL15, [5] citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, [62]. In CAL15, her Honour Mortimer J stated at [6]:
The threshold is whether a ground of review is ‘arguable’. That means it is not fanciful, illogical, impermissible or devoid of merit, but, has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is arguable, the Court should not expect a ground of judicial review to be fully developed especially by an unrepresented asylum seeker whose first language is not English.
The assessment upon an application for reinstatement, which requires the court to consider whether a ground of review is arguable, is evaluative. As Ryan J observed in MZYEZ, it follows from the principles considered above that the “decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles” stated by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, [504-505]; cf BAL17 v Minister for Immigration and Border Protection [2018] FCA 792, [10] Bromwich J.
The applicant’s affidavit sworn in support of the application for reinstatement merely deposed that –
Kindly refer to the attached correct information as declared by me.
I have considered the documents attached to that affidavit. I am satisfied on the basis of that information of the following:
(a)on 21 December 2017, the applicant’s father was admitted to hospital in Jalandhar, India, with complaint of chest pain and was diagnosed to be suffering angina;
(b)on 9 March 2019, the applicant’s father was again admitted to hospital with complaint of chest pain and was recommended for regular follow-up and cardiac medication;
(c)on each of those admissions the applicant’s father underwent an angiography. The results of the angiographies were described in several documents as being uneventful, and the applicant’s father was discharged in a stable condition; and
(d)the applicant’s provided a flight itinerary which, as he confirmed in the course of oral submissions, indicated that he had travelled from Australia to India on 12 December 2018 and returned to Australia on 15 January 2019.
The applicant submitted that he had been suffering stress and been unable to attend the hearing on 15 May 2019. Offered an opportunity to explain what he had done in the four-month period from his return from India in January 2019 to the date of hearing, he was non-responsive. The applicant has adduced no medical or other evidence supportive of a conclusion that he, quite apart from his father, was suffering any medical or other condition as might support a conclusion that he was unable to adequately prepare or to be present at the hearing on 15 May 2019.
While I accept that the application for reinstatement was made within a fortnight of the order dismissing the application, I do not accept that a reasonable explanation has been proffered for the applicant’s non-attendance. While I accept the applicant’s affidavit provides some historical explanation of the circumstances of his father’s health from 2017 onwards, I do take that affidavit, and the documents that it exhibits, into account in my overall assessment of the matter.
Prejudice
While the Minister accepted that there would not be any prejudice in responding to the application if the court were to grant an extension to reinstate the proceeding, the absence of prejudice is not of itself sufficient or capable of supporting a conclusion that in all the circumstances an order for reinstatement should be made.
Arguable case
As the applicant was self-represented before me, I have re-examined the court book, his application for review and the Tribunal’s reasons.
The immediate question on the present application is whether the applicant’s grounds of review are arguable in the requisite sense. The applicant’s grounds for judicial review read as follows. They will be set out, paragraphs 1 to 5 inclusive:
1. I submit that I am a young Indian national who came to Australia on a Student visa in October 2013 to undertake higher education.
2. I submit that I was always a genuine student and wanted to return to my home country once I complete my education in Australia.
3. Before coming to Australia in 2013, I obtained a Bachelor of Commerce in India. As, at the time, the business environment was becoming increasingly international and the local Indian businesses were also preferring candidates who had obtained their business degrees from a reputed western country; accordingly, I decided to pursue my Masters of Business in Australia. This was because firstly, the Australian business qualifications encourage graduates to think globally in an environment that merges Eastern and Western perspectives of business and management. Secondly, Australian universities are recognised all over the world and well known for providing quality and skill-oriented education to students. Therefore, at the time, I believed .that having qualifications in Australia would provide me better employment opportunities in my home country. Accordingly, in 2013, I undertook a Masters of Business and later switched to a Masters of Professional Accounting. As I could not complete my course within the timeframe of my previous visa; therefore, I applied for a new student visa. However, on 25 October 2016 the Department of Immigration and Border Protection declined my Student visa application. Thereafter, I filed a review application with the Administrative Appeals Tribunal; but the Member of the Tribunal also failed to consider my genuine circumstances and affirmed the Department' decision.
4. I believe that the Tribunal's decision affirming the department decision contains a jurisdictional error. This is because the Tribunal Member failed to take into consideration the relevant circumstances of my case and made the decision on irrelevant material. Therefore, the decision is illogical and irrational. In his decision, the member stated that "The issue before the delegate was whether the applicant met the genuine temporary entry criteria. However, the issue is now whether at the time of this decision the applicant meets the enrolment requirements for a student visa, so a subclass 500 visa". Therefore, the Member decided the application solely on the basis that I was not enrolled in a course at the time of the tribunal hearing. Although, I contended that I had obtained a Master degree and only wanted to complete a professional year in Australia which was a necessary requirement to obtain a job in my home country. In contrary, the member did not listen to my genuine requests and affirmed the decision. Moreover, the Member did not consider that I had completed my master course with great results and only wanted to complete a professional year which was a part of my course. Furthermore, the Member did not take into consideration that if I would return to my home country with an Australian visa refusal, then I would always need to declare this visa refusal, and this may diminish the chances of getting a visa if l apply in the future. Therefore, despite being a genuine student, the Department of Immigration and AAT have ruined my Australian immigration history.
5. I request that you, please quash the Tribunal decision with a direction that the Department of Home Affairs and the tribunal must reconsider my case and they grant me a Student visa so that I can complete a professional year in Australia.
In truth, the stated grounds of review provide an historical narrative of the circumstances leading to the applicant’s arrival in Australia and his period of study from 2017 to the present date. In particular, the stated grounds of review are expressed in a conclusory form which were essentially devoid of particulars.
In WZAVW the Minister for Immigration and Border Protection (2016) FCA 760, [35], Gilmour J said:
An unparticularised assertion of jurisdictional error is vague and meaningless. It does not specify what the nature of the jurisdictional error, allegedly, committed by the court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed.
See also MZARG v Minister for Immigration and Border Protection (2018) FCA 624, [25] McKerracher J.
Notwithstanding those principles, I have considered the reasons and the grounds of review so as to assess whether an arguable ground of review is presented. In the present case, it is clear that an essential criterion for the grant of a Student visa was that the applicant was enrolled in a course of study: Sch 2, cl 500.111(a) Migration Regulations 1994 (Cth). As the applicant did not hold such a Certificate, that essential criterion could not be satisfied. In those circumstances the Tribunal could not be satisfied that that criterion for the grant of the visa existed.
By s 65(1)(b) of the Act, the Tribunal, if not satisfied the criteria for the grant of the visa had been satisfied, was obliged to refuse to grant the visa.
I have also considered the applicant’s generalised complaints that –
The tribunal’s decision contains a jurisdictional error, because it failed to take into consideration the relevant circumstances of my case and made the decision on irrelevant material. Therefore, the decision is logical and irrational.
The applicant’s grounds of review correctly recognised that the Tribunal decided the application solely on the basis that the applicant was not enrolled in a course of study at the time of its decision. I do not consider that the decision to affirm the delegate’s decision to refuse the visa failed to take into consideration relevant considerations, or that the decision was made on irrelevant material. Nor do I consider that the decision is either illogical or irrational.
The test for a finding of jurisdictional error grounded on legal-unreasonableness is strict and is only met in rare cases: SZVFW v Minister for Immigration and Border Protection (2018) 357 ALR 408. I am not satisfied that in the circumstances of this case (and in particular where there had been clear advice of the need to furnish a CoE coupled with the fact that the applicant’s migration agent had furnished written submissions), that the decision of the Tribunal was either illogical or irrational. It is not sufficient that it is a decision about which reasonable minds might differ.
Indeed, I consider that the decision was entirely open on the material before the Tribunal at the time of decision. The applicant was entitled to a reasonable opportunity to furnish evidence and arguments to the Tribunal. The applicant was, clearly, on notice of the need to furnish a CoE; he did not do so.
In all of the circumstances, I am not satisfied that the applicant has an arguable basis for challenging the decision of the tribunal. In those circumstances, having regard to my view of the inadequacy of the applicant’s explanation for his non-appearance at the hearing on 15 May 2019, the application for reinstatement will be refused.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge A Kelly.
Date: 5 June 2019
0
11
4