Singh v Minister for Home Affairs

[2019] FCCA 581

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 581

Catchwords:

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

Legislation:

Migration Act 1958 (Cth)

Applicant: AVRINDER SINGH

First Respondent:

Second Respondent:

MINISTER FOR HOME AFFAIRS

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 652 of 2018

Judgment of: Judge Vasta

Hearing date: 30 January 2019

Date of Last Submission: 30 January 2019

Delivered at: Brisbane

Delivered on: 30 January 2019

REPRESENTATION

Counsel for the Applicant: Mr L. Burrow

Solicitors for the Applicant: Chand Lawyers

Counsel for the First Respondent: Mr Lee

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the Application filed 1 July 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 652 of 2018

AVRINDER SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 5 June 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate not to grant the Applicant, Avrinder Singh, a student temporary class TU visa.  On 1 July 2018, the Applicant filed in this Court an originating application seeking to review that decision. 

2. The background to the matter is this; on 3 July 2014, the Applicant arrived in Australia as the holder of a subclass 573 higher education student visa.  He had told the Department he intended to study a Bachelor of Business at the University of Tasmania packaged with an English language study (ELICOS). 

3. What occurred is that, once the Applicant arrived, he chose not to study the Bachelor of Business course.  He said that this was because he found the University of Tasmania was very large and he was unprepared for it. 

4. He also decided not to complete the ELICOS training that was packaged with his Bachelor course because his language study group was breaking up.  He said that he then moved to Brisbane on the advice of his cousin. He then enrolled in vocational courses with the New England College of Technology.

5. Obviously, those vocational courses were not higher education courses.  He had not told the Department of any of what he was doing, and therefore the Department decided to cancel his visa because he had breached that condition of it in that he was not studying a higher education course.  He was then placed on a bridging visa E and has been on that visa since that time.

6. What the Applicant is seeking is a subclass 500 student visa because he now wishes to study further in the vocational sector, doing an Advanced Diploma of Hospitality Management. He claims that he has an offer of enrolment from a different college. 

7. To be eligible for such a visa, the Applicant must be a genuine applicant for entry and stay as a student, because he intends genuinely to stay in Australia, temporarily. In assessing eligibility, the Minister must have regard to all the circumstances, his immigration history and any other relevant matter. 

8. The other aspect of such a visa is that he must be enrolled in a course of study.  The terms of the bridging visa did not allow the Applicant to be enrolled in any course of study.  The Applicant did have an offer of enrolment in a course of study, but he was not enrolled in a course of study.

9. The AAT, in going through all of the circumstances, came to a conclusion that the Applicant did not have a clear plan for his future that would enable his proposed studies; that having come to Australia to study ELICOS and a Bachelor of Business as a package, he did not apply himself.  Instead he abandoned university studies and breached his visa.

10. The Applicant did not offer a coherent and reasonable account of why he abandoned those studies, nor did he convincingly explain how what he did was allowed to develop into a breach; that is, why he did not, as a genuine student, ensure with the Department that he was acting in accordance with his visa, or, if not, what other visa arrangements could have been made.

11. The Tribunal found that the Applicant did not have an intention to return home after studying his next course, and he did not persuade the Tribunal he intends to remain in Australia temporarily. 

12. One of the points that led to that particular conclusion was that the Applicant, in his statement to the Tribunal, had said that he intended to apply for a 485 visa which is a visa that leads to permanent residence in Australia, notwithstanding that he gave the excuse that he did not know that his migration agent had actually applied for such a visa. 

13. The AAT, having a look at all of those matters, came to the conclusion that they were not satisfied the Applicant was a genuine student.  They were not satisfied that he intends to genuinely stay in Australia temporarily, and therefore is not a genuine applicant for entry and stay as a student, and also that he has not enrolled in a specified course of study.  Therefore, the decision not to grant him a student visa was affirmed.

14. The Applicant has given one ground of review, and that is:

    (i) The decision of the second respondent was unreasonable. 

15. In the written submissions, the Applicant submits that the aspects of the decision that disclose the unreasonableness appear at those paragraphs I have just mentioned; that is, that the Applicant did not follow a logical progression and was not committed to his studies, and that he offered no coherent reason for abandoning his studies, and that there had been no explanation as to how the Applicant allowed the matter to evolve into a breach. 

16. The Applicant says that there is no evidence to support the suggestion that the Applicant was not committed to his studies.  The Applicant says that the only material before the Tribunal was that the Applicant could not handle university study. 

17. The Applicant submits that the Tribunal has gone a step too far in coming to a conclusion that the Applicant had, in fact, abandoned his studies.  The Applicant says that the total of the evidence was that the Applicant could not handle the course.  The submission is that this particular conclusion is not supported by any evidence which, in turn, undermines the conclusion that the Tribunal reached. 

18. In my view, one has to look at the totality of the evidence.  Whilst it may be seen that whether the word “abandoned” is semantically correct or not, the fact is that the Applicant had told the Department he was coming here to study a higher form of study, that is, the Bachelor of Business, and he did not do so.  There was no evidence before the Tribunal as to what, if anything, the Applicant did to try and resurrect this situation. 

19. The Applicant has submitted that the evidence was that the Applicant could not handle the course, but that is an explanation that really relies upon a reading of the evidence that is before the Tribunal. That relies upon an interpretation of what was said in paragraph 14, that is:

    The Applicant stated at the Hearing that after arriving in Australia on his higher education visa, he chose not to study in his planned Bachelor of Business course because he found the University of Tasmania was very large and he was unprepared for it.  He decided not to complete the ELICOS training that was packaged with his Bachelor course because his language study group was breaking up.  

20. There is no evidence as to what he did.  There was no evidence why simply arriving at the university was evidence that he could not handle the course.   There was nothing that illustrated what it was that he had done to start the course, or any other efforts that he had made to salvage what he had done to a point where he simply had to give up.  And there was nothing to show that the decision to quit was in concurrence with his lecturers or tutors.  There was none of that sort of evidence at all. 

21. To submit to this Court that the only evidence, that the Tribunal could have come to, was evidence that the Applicant could not handle the course, is a submission that must be rejected.  The categorisation that the Tribunal made, that the Applicant had abandoned his studies, is one that was open and in many ways was quite apt. 

22. It seems to me, that there was certainly evidence that such “abandonment” had occurred.  In fact, one could wonder how else one could categorise the actions of the Applicant, in that he came here to study something and simply chose not to do that.  The word “abandonment” does seem to fit the bill quite nicely.

23. Therefore, I cannot find that there was, to use the words of the Applicant, no evidence upon which to make the conclusion that the AAT made.  As was pointed out, the application would fail in any event because the Applicant was not enrolled in a course or had no certificate of enrolment; notwithstanding that he simply could not have one.  That is no one’s fault but the Applicant himself. 

24. Mr Lee who has appeared for the Minister has, according to his duty to the Court and in the best traditions of the Bar, pointed out that the way in which the AAT had spoken about dealing with direction 69 of the directions given to the delegates and the AAT, may have been something the Court could look at. 

25. However, after going through that matter with him I am satisfied that there was no jurisdictional error in that aspect either. 

26. Given that I do not find that there has been any unreasonableness in the decision, therefore there is no jurisdictional error.

27. The application is dismissed with costs fixed in the sum of $7,467.00.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:       14 May 2019