Singh v Minister for Home Affairs
[2019] FCCA 948
•10 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 948 |
| Catchwords: MIGRATION – Student Visa – decision of Administrative Appeals Tribunal – Student Visa denied – no evidence of current enrolment – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Legislation Amendment (2016 Measures No.1) Regulation 2016 (Cth), sch.5, it.5401 |
| Cases cited: APZ15 & Anor v Minister for Immigration & Anor [2017] FCCA 1473 Craig v State of South Australia (1995) 184 CLR 163 DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 1 |
| Applicant: | RAVINDER SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 302 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 9 April 2019 |
| Date of Last Submission: | 9 April 2019 |
| Delivered at: | Perth |
| Delivered on: | 10 April 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS (as made 9 April 2019)
That the application be dismissed
Formal written reasons for judgment be published by Chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $5,000 by 9 May 2019.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 302 of 2018
| RAVINDER SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 9 April 2019 this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court. Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written Reasons for Judgment be published by Chambers at a later date.
3. The applicant pay the first respondents costs in the sum of $5000.00 by 9 May 2019.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 9 April 2019.
By application filed in this Court on 7 June 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 15 May 2018.
The Tribunal’s decision affirmed a decision of a delegate of the then Minister for Immigration and Border Protection, now Minister for Home Affairs (the “Minister”), not to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) Visa (the “visa”).
The Tribunal initially handed down an oral decision on 15 May 2018. That decision was then transcribed as written reasons for judgment on 13 July 2018. As discussed further below, the Tribunal upheld the delegate’s decision because (in effect) the Tribunal was not satisfied that there was any evidence that the applicant had a current offer of enrolment – a prerequisite for the student visa the applicant was seeking.
The applicant now seeks judicial review of the Tribunal’s decision.
This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
By his application to show cause filed in this Court, the applicant advances the following grounds of review:
1. I Ravinder Singh, a citizen of India, have been in Australia on temporary basis for study purposes. When my previous visa was about to expire I applied for a student visa extension which was subsequently refused by the delegate. The delegate did not seek clarification or did not provide me a chance to explain my circumstances under natural justice but made an adverse decision on my application.
2. I was a genuine student studying in Australia but my visa was refused and later refusal decision affirmed by the Tribunal member. I believe that the tribunal engaged in conduct which amounted to jurisdictional error by considering irrelevant information and made a biased decision based on assumption but not facts.
3. I believe that the tribunal fell into jurisdictional error by acting unreasonably while considering my application for review. Therefore, I am now seeking intervention from the Honourable Federal Circuit Court as I believe that there was a jurisdiction error in the decision. I believe that relevant factors and information provided by me was not considered carefully in order to establish genuineness of my temporary stay on the student visa and compliance with my student visa condition while on a student visa. I request Federal Circuit Court review and consider my case so to provide me justice.
A further challenge to the Tribunal’s decision is contained at [4] of the applicant’s affidavit sworn 7 June 2018 as follows:
4.The delegate did not seek clarification on my circumstances and I was not given a chance to clarify my circumstances under natural justice. Furthermore, the member at the Administrative Appeals Tribunal did not consider information provided in my application and made a judgment based on assumptions rather than facts provided in the review response.
The applicant was self-represented before this Court. He did not have the assistance of a translator. Nor had one been requested. The Court concluded that the applicant was fluent in English and did not require the assistance of an interpreter. The applicant was articulate and did his best to advance his case.
The Minister was represented by Ms Tattersall of Sparke Helmore. Ms Tattersall, as a model litigant, assisted the applicant to the extent that she was able to do so. The Court thanks her for this assistance and for the clarity of her submissions. Others would do well to emulate this approach to advocacy.
Ms Tattersall filed written submissions dated 19 March 2019. No written submissions were filed by the applicant despite an order of a Registrar of this Court allowing him to do so.
The Court also had in evidence a Court Book (“CB”) numbering 73 pages. The applicant had a copy of both the Court Book and the Minister’s written submissions.
Factual Background
The Court adopts the factual and procedural overview outlined at [3]-[8] in the Minister’s written submissions. These facts were not disputed and provide as follows.
On 14 March 2017, the applicant, a citizen of India, lodged an application for the visa (CB 1-16). The application indicated that the applicant was enrolled in a Bachelor of Business (Community Services Management) course at the Stott’s Colleges (CB 1 and CB 44-45).
On 23 May 2017, the delegate refused to grant the visa on the basis that the applicant’s enrolment in the Bachelor of Business course was cancelled on 20 March 2017.[1] The delegate found that the applicant had failed to provide evidence of enrolment in an acceptable course of study (so as to satisfy cl.500.211 of the Migration Regulations 1994 (Cth) (the “Regulations”) and could not, accordingly be granted the visa (CB 25-26).
[1] The Court notes that the delegate’s decision records that the course was cancelled on 21 April 2017 (CB 26). This is not accurate. PRISMS records before the delegate indicate that it was actually cancelled on 20 March 2017 (CB 44-45). This is a factual oversight on the part of the delegate. It does not go to jurisdictional error on the part of the Tribunal.
On 9 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 27-28).
On 23 April 2018, the Tribunal wrote to the applicant inviting him to attend a hearing, give evidence and present arguments relating to the issues relevant to his case (CB 39-43).
The hearing invitation requested that the applicant provide the following information to the Tribunal (CB 42):
·A copy of his current Confirmation of Enrolment (“CoE”) or other document/s that showed that he was currently enrolled in a course of study as defined in cl.500.111 of the Regulations; and
·Documents that showed his past studies in Australia, including copies of all his attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to his past or intended studies in Australia.
On 11 May 2018, the applicant provided written submissions to the Tribunal (CB 46-51).
Prior to the Tribunal hearing, the applicant gave the Tribunal a “Letter of Offer and Student Acceptance Agreement” for a Bachelor of Business course from “Acknowledge Education” (CB 55-61), as well as voluminous financial documents.
On 15 May 2018, the applicant appeared before the Tribunal to give evidence and present arguments (CB 62-64).
By oral decision on the same day, the Tribunal affirmed the delegate’s decision under review (CB 68).
On 13 July 2018, the Tribunal provided a written statement of its decision and reasons (CB 72-73).
The Tribunal’s Decision
The Tribunal’s decision is brief and provides as follows:
3.The situation is that to be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations.
4.You applied for a student visa on 14 March 2017 and on 23 May 2017, a delegate of the Minister made a decision to refuse your application, on the basis that you did not satisfy regulation 500.211, in that you had not provided evidence that you were currently enrolled at the date of decision.
5.You appealed that decision to be reviewed by this Tribunal and we sent you an invitation on the 23rd of April to come to today’s hearing and with that invitation, we asked you to provide evidence of documents of past studies in Australia, including copies of all attendance certificates, academic transcripts and certificates of completion, as well as documents evidencing any work related to your past or intended studies in Australia. You have not provided any of that evidence. You have told the Tribunal you have been here since February 2014 and have not passed any courses that you have studied.
6.The invitation letter also asked you to provide a copy of your current certificate of enrolment or other documents that show you are currently enrolled in a course, as defined in clause 500.111 of the Migration Regulations 1994, which was the reason that your application was refused.
7.You provided by email today, a 30 or 40-page submission of documents of financial evidence and of things that bear little relationship. You have provided a letter of offer from Acknowledge Education. That letter does not appear to be dated however that letter is supposedly an offer for a Bachelor of Business that commences on 23 July 2018. However, that letter of offer is not evidence of current enrolment and does not satisfy clause 500.211.
8.The situation is that the role of the Tribunal in conducting a de novo review is to look at whether you satisfy the requirements for a visa.
9.As you do not have current enrolment, you have not provided evidence of current enrolment, the Tribunal therefore finds that you do not satisfy clause 500.211, a prerequisite for the grant of a visa, the reason your visa was originally refused.
Proceedings in this Court
To be successful, the applicant must demonstrate to this Court that the Tribunal’s decision was affected by jurisdictional error.
As the applicant was unrepresented, the Court explained to him what the Court could and could not do. It was explained that the Court could look for jurisdictional error on the part of the Tribunal and that, for migration matters of the sort before the Court, “errors” most commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] (“SZMDS”); Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that it could not engage in merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (“Wu Shan Liang”).
The applicant was asked to outline what, in his opinion, he felt the Tribunal did that was wrong. He did so to the best of his abilities, as discussed below.
Discussion
In relation to the applicant’s four grounds of review the Minister contended as follows in written submissions:
a)in relation to ground 1, the applicant seeks review of the delegate’s decision. The Court has no power to review a primary decision under s.476(2)(a) of the Act;
b)in relation to ground 2, the applicant has not identified what irrelevant information the Tribunal relied upon. For information to constitute an irrelevant consideration, the consideration must be one that, either expressly or by implication, a decision-maker is forbidden or prohibited from taking into account;
c)to the extent that ground 2 alleges bias, in the absence of any evidence, such as a transcript of the Tribunal hearing, this ground cannot be established;
d)ground three asserts error on the basis that the decision was unreasonable. Here, the Tribunal’s task in this matter was properly discharged when it found that the applicant was not currently enrolled;
e)insofar as the additional complaint contained in the applicant’s affidavit alleges that the Tribunal did not consider the applicant’s letter of offer for a Bachelor of Business from Acknowledge Education, the Tribunal clearly did consider this document (CB 73 at [7]). The Tribunal found that that letter of offer was not evidence of current enrolment in an acceptable course of study, which only occurs once an applicant has accepted an offer and paid the relevant fees; and
f)the Tribunal was correct in finding that the letter of offer did not satisfy cl.500.211(a) of the Regulations.
The applicant was asked to comment. Suffice it to say, he struggled to articulate what, precisely, he believed the Tribunal did wrong. He remains firmly of the view that he was a legitimate student and, although not registered in a course of study at the time the Tribunal handed down its decision, he had always been a diligent student who had always complied with the requirements of his student visa.
The applicant struck the Court as sincere and honest. What appears to have confused him is a legislative change relevant to the student visa requirements.
Subclass 500 visa was introduced into the Regulations by virtue of the Migration Legislation Amendment (2016 Measures No.1) Regulation 2016 (Cth) (“Regulations Amendment”).
The amendment takes effect from 1 July 2016: Regulations Amendment, sch.5, it.5404(1). The applicant applied for his visa on 14 March 2017. Hence, the amendment applies to this applicant.
Prior to the amendment, an applicant who had evidence of an offer of enrolment might still succeed in relation to a student visa application. Now, however, an applicant who applies for a student visa of the sort seen here needs to satisfy the Minister that he or she is enrolled in a “course of study” (Regulations, cl.500.211).
On an ordinary reading of cl.500.211(a) – “the applicant is enrolled in a course of study” – requires that he be currently enrolled. Unfortunately, that was not the case here.
This statutory background was explained to the applicant.
Putting aside the statutory background, it is arguable that what the applicant is asking the Court to do is review the decision of the delegate for error. To the extent that the applicant does seek review of the delegate’s decision, the Court does not have jurisdiction to review that decision – by virtue of s.476(2)(a) of the Act − as it is a primary decision: APZ15 & Anor v Minister for Immigration & Anor [2017] FCCA 1473 at [29].
On another level, it is also arguable that what the applicant is asking the Court to undertake is a merits review in the hope that the Court will ultimately come to a different conclusion than that reached by the Tribunal. In effect, the applicant would like the Court to review the evidence that was before the Tribunal and ultimately give him the student visa that he seeks. The Court cannot undertake a review of that sort: Wu Shan Liang at 272.
In relation to the applicant’s assertion that there was bias here, the applicant again made no submissions that assisted him.
An allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69].
Insofar as the applicant alleges actual bias, there is nothing to indicate that the Tribunal brought a closed mind so as to sustain such an allegation. Nothing the Tribunal said indicates it was not open to persuasion.
Neither is there any basis for a reasonable apprehension of bias, the test for which is whether a fair-minded lay observer, who was properly informed as to the nature of the decision to be made, the matters in issue and the conduct complained of, might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: MZYPO v Minister for Immigration & Citizenship [2013] FCAFC 1 at [85]; SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2].
In so far as the applicant can be seen to press his concern that the Tribunal looked at irrelevant considerations or failed to take into account relevant considerations, it is, of course, the case that ignoring or failing to take into account relevant material (including relevant evidence) or relying on irrelevant material can amount to jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [111].
That is not, however, the case here. The applicant has not identified any irrelevant considerations allegedly taken into account or any relevant considerations that were allegedly overlooked.
In the present case, what can be said is that Tribunal considered all of the evidence the applicant put before it, and it did not consider any irrelevant material. That evidence included documentation which the applicant said constituted an offer of enrolment – a submission rejected by the Tribunal.
The applicant was unable to clarify why he thought the Tribunal’s decision was “unreasonable”. Counsel for the Minister, referencing Li, stressed that there is no evidence or any suggestion that the applicant sought an adjournment from the Tribunal so that he might have more time to get a “formal offer of acceptance of study”. The applicant was clearly on notice that this would be issue. Indeed, this was the reason the delegate refused the applicant the visa. The Tribunal noted this at [6] and referenced what constitutes little more than an informal offer of sorts. It cannot be said here, in these circumstances, that the Tribunal acted unreasonably by failing to adjourn so that the applicant might have time to formalise the offer in question.
In so far as the applicant is suggesting that the Tribunal’s decision is illogical or irrational (and, again, it is not entirely clear that this is what is being argued), the Court is guided by the principles outlined in SZMDS, wherein Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
131.The test for illogicality or irrationality must be to ask whether logical or irrational or reasonable lines might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical, rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Court also notes that in SZMDS per Crennan and Bell JJ further explained that:
135. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision maker does not come to that conclusion or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
SZMDS sets a very high threshold for findings of irrationality or illogicality. In this context the Court is also guided by the decision in Gupta v Minister for Immigration & Border Protection [2017] FCAFC 172 at [34]–[36] and DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 1 at [30].
On the evidence here, there is nothing in the Tribunal’s decision that shows that its decision was illogical or irrational. The Tribunal relied upon the applicant’s own evidence that he was not currently studying or enrolled in a registered course of study. Overall, the Tribunal considered the facts of the case, the legislation it was required to examine and all of the evidence provided by the applicant. In the circumstances of this case, the Tribunal made the only decision that was open to it.
Further, the Court is satisfied that the applicant was given every opportunity to present evidence that would dispute that finding. He did not do so. He was invited to attend at a hearing. He did so. He was properly advised about what would be looked at and what evidence would assist him. He provided nothing of any assistance in this regard.
Further, no adjournment was requested and there was no reason to suggest, on the evidence, that one should have been granted. In the circumstances of this case, it cannot be said that procedural fairness was not afforded.
Overall, the Tribunal’s decision to affirm the delegate’s decision was sound and open on the evidence before the Tribunal. Overall, the Tribunal’s analysis showed that, on the evidence that it had before it, the applicant was not a student for migration purposes as he was not enrolled in a course of study.
While the Court is sympathetic to the frustrations articulated by the applicant, there is no jurisdictional error demonstrated by the grounds of review, or otherwise apparent in the Tribunal’s decision.
The applicant’s application for judicial review is, accordingly, dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 10 April 2019
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