Singh v Minister for Home Affairs
[2019] FCCA 3556
•12 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3556 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal considered all of the “circumstances” – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359, 476 Migration Regulations 1994 (Cth), cl.500.212 of sch.2 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Bala v Minister for Immigration [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | RANJEET SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 6 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 6 December 2019 |
| Date of Last Submission: | 6 December 2019 |
| Delivered at: | Perth |
| Delivered on: | 12 December 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Second Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 6 of 2019
| RANJEET SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 11 January 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 10 December 2018.
The Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) to deny the applicant a Student (Temporary)(Class TU) (subclass 500) visa (the “visa”).
These proceedings are brought pursuant to s.476(1) of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
In preparing this judgment the Court has referenced the applicant’s application for judicial review, an affidavit from the applicant dated 11 January 2019, correspondence confirming service on the applicant of the written submissions and list of authorities (marked as Exhibit 1), a Court Book (“CB”) comprising 169 pages (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 14 November 2019.
The applicant appeared before the Court without the assistance of a lawyer. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions. The applicant confirmed he had done so. He indicated, however, that he had not read the Minister’s written submissions. To ensure that the applicant properly understood the Minister’s submissions, the Court asked Counsel for the Minister, Ms Anicic, to first summarise the Minister’s position so that the applicant could then respond and make submissions.
Background
The Minister’s submissions (at [3]-[11]) accurately summarise the factual background to this matter. The Court adopts that summary as its own. It provides as follows.
The applicant is a citizen of India. He arrived in Australia on 21 October 2014 on a Student (Temporary) (Class TU) (Subclass 573) visa. This visa was granted on 30 September 2014 and was valid until 15 March 2017 (CB 120 and 143).
On 13 March 2017 the applicant applied for the student visa the subject of these proceedings (CB 1-39).
On 3 July 2017 a Ministerial delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy cl.500.212 of schedule 2 to the Migration Regulations 1994 (the “Regulations”), which required that he intended genuinely to stay in Australia temporarily (CB 118-122).
On 19 July 2017 the applicant applied to the Tribunal for a review of the delegate’s decision (CB 123-124).
On 13 August 2018 the applicant was invited to provide information to the Tribunal in the form of a Request for Student Visa Information questionnaire under s.359(2) of the Act. He was given until 27 August 2018 to do so (CB 128-130). The applicant was provided a copy of Direction Number 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (“Direction 69”), issued under s.499 of the Act (CB 131-135).
On 5 September 2018, the applicant requested an extension of time to 7 September 2018 within which to respond to the invitation to provide information (CB 136). As the applicant had not requested an extension of time within the time period allowed, he was advised that an extension could not be granted (CB 138). He was, however, invited to provide any information if he wished prior to a decision being made (CB 138).
On 28 September 2018, the applicant provided the completed Request for a Student Visa Information questionnaire to the Tribunal (CB 139-151). In that questionnaire, the applicant, amongst other matters, consented to the Tribunal deciding the application without a hearing (CB 141).
On 10 December 2018 the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 158-164).
Tribunal’s Decision
The Tribunal’s decision is 7 pages long and spans 32 paragraphs. The Court notes that the Tribunal’s paragraph sequence is incorrect. Nothing turns on this point.
At [1]-[9], the Tribunal summarised the background to the application for review, including the reason for the delegate’s decision.
The Tribunal also noted that, as the applicant had not responded to the request for information, he had lost the entitlement to attend a hearing before the Tribunal. It further noted that the information the applicant subsequently provided indicated that he had, in any event, consented to the Tribunal determining the application without a hearing.
The Minister’s submissions at [17]-[22] accurately summarise the balance of the Tribunal’s decision. The Court adopts those submissions as its own, as follows.
The Tribunal explained that the issue before it was whether the applicant satisfied the genuine temporary entrant criterion in cl.500.212 of Schedule 2 to the Regulations. The Tribunal extracted that particular clause and referred to Direction 69 (CB 160-161 at [11]-[13]).
The Tribunal referred to the applicant’s genuine temporary entrant statement to the Department, confirmations of enrolment, completed Request for Student Visa Information questionnaire and graduation certificates in detail at [14]-[17].
The Tribunal observed that the applicant did not complete the course that he had initially intended to study in Australia and had subsequently enrolled in a series of lower value courses in an unrelated field. Although the Tribunal acknowledged that the applicant was suffering from depression (as diagnosed by a professional), the Tribunal was nonetheless not satisfied that this adequately explained the applicant’s behaviour. The Tribunal also noted that the applicant had maintained constant employment during his period of “study difficulty” and that, by his own admission, the treatment he received recommended that he continue to meet his obligations (CB 162 at [19]).
The Tribunal referred to the applicant’s completed courses in management, commercial cookery and hospitality management, and his experience working in restaurant kitchens. The Tribunal stated that it was of the view that the applicant was more than suited by training, education and experience to gain employment as a cook/chef in both Australia and India (CB 162 at [20]).
The Tribunal determined that the applicant had not established, with any degree of certainty, that he would use the skills he had gained in hospitality once he departed Australia. The Tribunal noted that the applicant had mentioned several times in his statements that his family expected him to work in the family business (being a farm) once he returned to India and concluded that the applicant’s completed courses would not help in this regard. The Tribunal further concluded that the courses taken by the applicant were of very little benefit to his future employment opportunities and that he was likely seeking to maintain his residency onshore (CB 162 at [21]).
The Tribunal accepted that the applicant had family remaining in India and assets of considerable value. However, the Tribunal was also concerned that the applicant, having gained a set of qualifications that enabled him to work in a skilled area of employment, had not left Australia (CB 162 at [22]). The Tribunal was also concerned that the economic circumstances in Australia, specifically the disparity between the applicant’s salary when he resided in India and his current salary in Australia, presented a significant incentive for the applicant not to return to India (CB 162 at [23]).
The Tribunal concluded that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily and, accordingly, that the applicant did not meet cl.500.212(a) (CB 163 at [26]). The Tribunal affirmed the delegate’s decision (CB 163 at [27]-[30].
Proceedings in this Court
The application for judicial review contains 20 “grounds of review” as follows:
1. My name is Ranjeet Singh and I was born on [omitted] in Uplana India.
2. After completion of my initial study from India I was excited & full of energy for my future goals.
3. In this regard I did some research of career option I could explore through friend circle and internet.
4. Reason for not opting further study in India was due to lack of opportunities one can avail & moreover after completion of study from an international country there are several opportunities.
5. After considering all the pros and cons Australia was my first choice due to its quality education & amount of exposure I will be getting.
6. My parents agreed for the same & I came to Australia on 21 October 2014.
7. I was enrolled in Elicos for 10 weeks leading to master's in business administration.
8. After coming to Australia, I completed my English language course & got enrolled in MBA.
9. Due to different study structure and altogether different environment I was not able to accommodate with my study even after making various efforts
10. I was in immense pressure as I was very hopeful of achieving something big in my dream I had a dream which I can see was getting shattered.
11. I was unable to pass two units out of three and ultimately ended up withdrawing my study.
12. I had discussion with my family and some known friends they advised me to change my career pathway & chose some alternate.
13. After doing some research over the internet and talking to friends I figured out how food industry has blossomed in India over last decade.
14. I got enrolled in Diploma of business management at Cambridge college to get basic details of running a business involving basic criteria and details which are a essential part for running any organisation.
15. After completion of my diploma of business management I got enrolled in cert III in commercial cookery.
16. After attaining cert III in commercial cookery, I got enrolled in cert IV in commercial cookery.
17. Since my arrival I have been regularly enrolled in study and I have completed Cert III & Cert IV in commercial cookery along with diploma in business Management.
18. Currently I am trying to finish few units left in Diploma of hospitality Management.
19. The Tribunal did not consider my circumstances and didn't review my application.
20. I believe that AAT has not considered the relevant circumstances in my case and l don't agree with its decision.
The applicant’s affidavit contained 20 paragraphs in identical form.
Despite being given an opportunity to provide an amended application, any further affidavit evidence and an outline of written submissions, nothing further was filed by the applicant.
The applicant was not legally represented before this Court. Bearing in mind recent remarks from the Federal Court that an unrepresented applicant should be provided an opportunity to orally raise any grounds of review or identify any error (see Bala v Minister for Immigration [2019] FCA 600), the Court gave the applicant an opportunity to make oral submissions indicating what he thought the Tribunal “did wrong”.
It was explained to the applicant that this Court can only look at whether the Tribunal fell into “jurisdictional error”. It was explained that in relation to matters of this sort, the main areas of jurisdictional error usually articulated by applicants tend to be:
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]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that many applicants who appear before this Court assume that the Court will review the evidence before the Tribunal and give applicants the visa they seek. The Court explained that it cannot do this as this would require the Court to engage in an impermissible merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court asked the applicant to make any comments he wished to make and to explain what mistakes or errors were made by the Tribunal.
The applicant explained the circumstances surrounding the refusal of his visa.
Unfortunately, the Court cannot consider these matters as they largely relate to the merits of the application. They do not identify any error in the Tribunal’s decision.
The applicant also stated that he did not think that the Tribunal looked at his case properly and that it just “followed the Department”. The Court will consider this submission below when assessing the applicant’s “grounds of review”.
Consideration
To the extent that the applicant seeks review of the delegate’s decision (noting that he indicated in his judicial review application that he did seek such a review), the Court does not have jurisdiction to review the delegate’s decision: s.476(2) and (4) of the Act. Rather, the Court’s jurisdiction is confined to determining whether the Tribunal erred.
Grounds 1-18
Grounds 1-18 of the judicial review application relate to factual matters. They do not express (or imply) any error in the Tribunal’s decision.
Accordingly, grounds 1-18 are dismissed.
Grounds 19-20
Grounds 19 and 20 arguably outline some sort of error. However, without particulars it is difficult for the Court to identify what “circumstances” were not taken into account.
The Tribunal correctly identified the relevant legislative provisions and criterion it was required to consider and summarised the matters in Direction 69 that it was required to have regard to (at [11]-[12]).
The Tribunal also summarised the materials and information that it had before it, including the applicant’s statement concerning the genuine temporary entrant criterion and the response to the invitation issued by the Tribunal under s.359(2) of the Act (at [14]-[16]). The Tribunal also made reference to other evidence, including the Graduation Certificates for the courses the applicant had completed and a letter of support from the applicant’s employer. The Tribunal also noted that there was no evidence of a current confirmation of enrolment.
The Tribunal considered, and engaged with, the materials that were before it.
When considering whether the applicant met the “genuine temporary entrant criterion” it is apparent that the Tribunal was conscious of and had regard to the relevant matters in Direction 69. The Tribunal made reference to the applicant’s personal ties to India (being his family), his economic circumstances (noting that the information tended to suggest there is a financial incentive to remain in Australia), his qualifications and experience (which, the applicant said, would enable him to gain employment in India), the fact that there appeared to be little benefit in the course selections to the applicant’s future employment endeavours and the fact that the applicant’s circumstances suggested that he was seeking to use the visa program to maintain ongoing residence in Australia (at [16]-[23]). All of these matters are referred to in Direction 69.
The Tribunal expressly notes (at [24]) that, in circumstances where the applicant had not provided a significant amount of information in relation to the genuine temporary entrant criterion, there was a lack of evidence which would enable the Tribunal to consider a number of the other matters in Direction 69. The Tribunal found that the absence of evidence precluded those matters from forming part of the consideration of whether the applicant was a genuine student.
There is no error in this regard.
Having assessed the limited evidence that was before it, the Tribunal considered all of the “relevant circumstances” and information necessary to determine whether the applicant met cl.500.212.
The Tribunal was not satisfied that the applicant met cl.500.212.
The Court, in turn, is satisfied that the Tribunal’s conclusions are logical and reasonable. It cannot be said that the Tribunal’s decision was not open to it. Nor can it be said that the findings the Tribunal made or the reasoning it employed were arbitrary or capricious.
Grounds 19-20 are, accordingly, dismissed.
Otherwise
At hearing, the applicant made a submission to the effect that the Tribunal “just followed the Department”. When asked to explain, the applicant indicated that the Tribunal came to the same conclusion as the delegate.
The fact that the Tribunal came to the same conclusion as the delegate does not amount to, nor indicate, jurisdictional error.
However, the Court does note that at [19] and [21] the Tribunal states:
The primary objective of a Student visa holder in Australia must be to study a registered course and progress academically. The applicant provided material to the Department that sought to explain his poor study performance and change in enrolments. In particular the Tribunal notes the applicant maintained constant employment in this period of study difficulty.
…
The applicant advised the Tribunal he would return home to work on his father’s farm. It is an asset of significant value.
The delegate’s decision relevantly stated as follows:
The primary objective of a Student visa holder in Australia must be to study a registered course and progress academically. The applicant did not complete the course he arrived in Australia to undertake and subsequently enrolled in a series of lower value courses in an unrelated field. The applicant has submitted that he was suffering from depression due to the stress that his course and living away from home was causing and this resulted in his poor performance. The applicant has supported this with medical letters from his GP and psychologist. It is unclear however why the applicant was unable to continue with his studies. The letter from his psychologist recommends that he keep busy with his studies and keep up his obligations with his course requirements as treatment. It is noted that the applicant discontinued his studies one month after this recommendation was given to him. The applicant clearly states “I suffered from severe depression that lead to the poor results in my Master’s degree” yet offers no justification as to why he did not follow the treatment that was recommended to him by his psychologist and instead chose to discontinue studies. In addition the applicant offers no reason as to why he did not seek a deferral from his education provider or why he did not seek to enrol in a lower level course of the same education stream. Although I acknowledge that the applicant was suffering from depression as diagnosed by a professional I am not satisfied that it adequately explains his behaviour as a genuine student. It appears as though a genuine student, seeking genuine academic outcomes would continue to pursue his course, especially considering by his own admission his depression caused his poor performance and that the treatment recommended was to continue to meet his obligations. I find the applicant’s actions as reflective of a nongenuine student who travelled to Australia for outcomes other than genuine academic progress.
The applicant was asked to provide justification as to why he was seeking these unrelated enrolments. This is of particular concern as the applicant has demonstrated that he has already completed a Bachelor of Arts with a focus on public administration and a Bachelor of Education. Including his previous masters enrolment this would represent the fourth education stream that the applicant has sought studies in. The applicant has claimed that after speaking with his friends and cousins, who advised him of the benefits of a cookery course, that he “developed a feeling of learning cookery in me”. Furthermore the applicant has claimed that he has been working in a restaurant as a Kitchen attendant. The evidence submitted by the applicant includes a letter from his employer demonstrating that he has been working at this location since June 2015. It is noted that the letter does not advise what role the applicant has at his place of employment or what tasks he undertakes. The applicant had initially advised that he intends to utilise these qualifications to work in the hospitality field as a cook or restaurant manager but later also indicated that he would also be happy to work in his father’s agricultural business once he returns. Based on the varied responses by the applicant, the lack of any genuine personal desire to seek a career in this field and his previous history of changing study pathways I cannot be satisfied that the applicant is seeking these courses for genuine career purposes. The applicant has not established with any degree of certainty that he intends to complete these courses or utilise the skills once he departs. The applicant has mentioned several times in his statements that his family expect him to work in the family business once he returns home and I am of the opinion that the applicant’s chosen enrolments will not help him in this endeavour. I find that the applicant’s course selections are of very little benefit to his future employment opportunities and that he is likely seeking these enrolments to maintain his residency onshore.
These indicate that the applicant is not a genuine student. Rather, appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and the applicant does not genuinely intend to stay in Australia temporarily.
The passages highlighted above are virtually identical.
It is apparent that the Tribunal has indeed “adopted” the findings of the delegate.
In these circumstances, the question arises: does this indicate that the Tribunal failed to conduct a proper review?
While the approach adopted by the Tribunal in this regard might not be the preferred approach, as a whole the Court is satisfied that the Tribunal did conduct the review before it appropriately.
The Tribunal’s reasons for finding that the applicant did not meet the criterion in cl.500.212 are found at [19]-[25]. Hence, there are five other detailed paragraphs that form part of the Tribunal’s reasons.
While the Tribunal ought to have expressed its conclusions in its own words at [19] and [21], the Court is satisfied that the Tribunal’s references (albeit limited) within these specific paragraphs to information that was not before the delegate indicates that the Tribunal brought its own mind to the question of whether the applicant was a genuine temporary entrant. When considered in the context of [19]-[25] as a whole, the Tribunal cannot be said to have “followed” what the delegate said without independent consideration.
No other error arises from the face of the Tribunal’s decision.
Conclusion
The applicant’s application for judicial review fails to identify any error. The Court has otherwise reviewed the decision and is not satisfied that there is any error.
The application, accordingly, is dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 December 2019
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