Singh v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2019] FCA 1863

Appeal from: Singh v Minister for Home Affairs [2019] FCCA 1675
File number: SAD 145 of 2019
Judge: COLVIN J
Date of judgment: 12 November 2019
Catchwords: MIGRATION - appeal from a decision of the Federal Circuit Court dismissing application for judicial review of a decision of the Administrative Appeals Tribunal affirming the delegate's decision to refuse the appellant's application for a student visa - where appellant sought leave to raise grounds not before the primary judge - where grounds lacked merit - application for leave to raise each new ground refused - where the Tribunal found that the appellant had failed to comply with the requirements of a previous visa - whether the Tribunal did not explain the consequences of the appellant's previous breach -  whether the Tribunal's findings gave rise to procedural unfairness - appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 359AA, 499
Cases cited:

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112

CHZ19 v Minister for Home Affairs [2019] FCA 914

Hamod v State of New South Wales [2011] NSWCA 375

Jan v Minister for Home Affairs [2019] FCA 1837

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445

SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15

Date of hearing: 12 November 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 39
Counsel for the Appellant: The Appellant appeared in person
Counsel for the First Respondent: Ms J Battiste
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

SAD 145 of 2019
BETWEEN:

GURPREET SINGH

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

12 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant do pay the first respondent's costs of the appeal to be fixed in the amount of $5,000 inclusive of any GST.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLVIN J:

  1. Since 2008, Mr Gurpreet Singh has lived in Australia in order to undertake courses of study.  For that purpose he has sought and obtained a succession of student visas.  The first student visa was granted in 2008, the next in 2011 and the next (a graduate visa to get work experience in the field of completed study) in 2013.

  2. In 2015, Mr Singh applied for a temporary student visa (subclass 572), a class of visa that closed for further application from 1 July 2016.  The application was refused.  He sought review in the Administrative Appeals Tribunal.  The Tribunal affirmed the decision to refuse the visa…

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Details
Case
[2019] FCA 1863
Decision Date

CaseChat Overview and Summary

In Singh v Minister for Home Affairs, the appellant, Mr Singh, sought leave to appeal a decision of the Federal Circuit Court, which dismissed his application for judicial review of the Administrative Appeals Tribunal's (AAT) decision. The AAT had affirmed the delegate's decision to refuse Mr Singh's application for a student visa. The primary concern was whether the Tribunal failed to explain the consequences of the appellant's previous visa breach and whether its findings resulted in procedural unfairness. The appeal was also focused on the Tribunal's handling of new grounds that were not previously raised before the primary judge.

The court was required to determine whether the grounds raised in the appeal had merit and whether leave should be granted to raise them. The appellant sought to introduce new grounds that were not previously considered by the primary judge. The court needed to assess whether these new grounds had any substance and if the Tribunal's findings were procedurally fair. Furthermore, the court had to decide if the Tribunal properly considered the appellant's completed courses and the alleged fraud by the migration agent.

The court found that the grounds of appeal were without merit. The Tribunal had considered and rejected the allegation of fraud by the migration agent as baseless. The court also noted that the Tribunal had taken into account the appellant's completed courses, even though it had not considered that the appellant had not completed all the courses he enrolled in. Additionally, the court held that the Tribunal adequately explained the consequences of the appellant's previous visa breach. Consequently, the grounds of appeal were dismissed, and leave to raise new grounds was refused.

The court dismissed the appeal and ordered Mr Singh to pay the Minister's costs of the appeal, which were fixed at $5,000 inclusive of any GST. The decision underscores the importance of raising all relevant grounds before the primary judge and the court's reluctance to entertain new grounds that were not previously considered.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant do pay the first respondent's costs of the appeal to be fixed in the amount of $5,000 inclusive of any GST.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Therefore, ground 8 should not be upheld.Conclusion For reasons I have given, the grounds of appeal should be dismissed. After hearing the parties as to costs, I made orders for costs to be fixed in the amount of $5,000 inclusive of any GST.

Ratio Decidendi

Legal Principle Established

The ground was not raised before the primary judge. It is without merit and I refuse leave to raise the ground.Ground 7: Alleged fraud by migration agent Ground 7 alleges that there was a failure by the Tribunal to consider submissions that the migration agent had 'played a fraud' with Mr Singh by getting him to sign a blank visa application. The primary judge correctly found that the Tribunal considered this matter and rejected it as baseless and therefore the ground had no substance: at [34]. No error has been demonstrated in this reasoning and this ground should not be upheld.Ground 8: Alleged failure to give weight to his completed courses The error alleged by ground 8 is that the primary judge did not give any weight to the fact that all the courses enrolled in by Mr Singh were studied and completed. This was not a matter that was raised by any ground of review before the primary judge so there could be no error in failing to consider that matter. If the ground is a complaint that the Tribunal did not give weight to this matter then it is without merit. The Tribunal took into account Mr Singh's completed courses. It is to be noted that the evidence showed that Mr Singh had not completed all the courses in which he had enrolled. However, that was not an aspect considered by the Tribunal. Therefore, ground 8 should not be upheld.Conclusion For reasons I have given, the grounds of appeal should be dismissed. After hearing the parties as to costs, I made orders for costs to be fixed in the amount of $5,000 inclusive of any GST.