Singh v Minister for Immigration

[2018] FCCA 2573

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2573

Catchwords:
MIGRATION – Application for review of decision of Administrative Appeals Tribunal to grant a student visa application – where Tribunal had adequately considered reasons to return to India as opposed to reasons for remaining in Australia – no jurisdictional error demonstrated – application for review dismissed.

Legislation:

Migration Act 1958 (Cth),ss.357A, 499, div. 5, pt.5

Migration Regulations 1994 (Cth), sch. 2, cl 572.223(1)(a)

Cases cited:

Minister for Immigration and Citizenship v Khadji & Anor [2012] FCAFC 145

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZMOK v Minister for Immigration and Citizenship (2009) 110 ALD15

Applicant: JARNAIL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 354 of 2017

Judgment of: Judge Egan

Hearing date: 5 September 2018

Date of Last Submission: 5 September 2018

Delivered at: Brisbane

Delivered on: 5 September 2018

REPRESENTATION

Applicant: Self-represented

Solicitors for the First Respondents:	Sparke Helmore Lawyers
Second Respondent	Submitting appearance

IT IS ORDERED ON A FINAL BASIS THAT:

1. The Application for review filed on 20 April 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of five thousand dollars ($5,000.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 354 of 2017

JARNAIL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who made application for a student (class TU) (subclass 572) visa on 15 April 2016.  The applicant stated in his application that he intended to study a number of courses in business. 

2. On 20 May 2016 a delegate of the Minister refused to grant the applicant the visa that he applied for. On 31 May 2016 the applicant lodged an application for a review of that decision in the Administrative Appeals Tribunal. The applicant appeared before the tribunal on 23 March 2017. On 27 March 2017 the tribunal affirmed the decision under review. The tribunal noted that the issue in the case was whether the applicant had met the criteria set out in clause 572.223(1)(a) of schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”) at the time of the decision. The tribunal referred to and outlined the factors in Ministerial Direction 53 which is a Ministerial direction made pursuant to the provisions of section 499 of the Migration Act 1958 (Cth) (“the Act”).

3. The applicant filed an application for review of the decision of the Administrative Appeals Tribunal on 20 April 2017.  The application filed by the applicant had two grounds.  The first ground alleged that the tribunal fell into jurisdictional error in its consideration of the applicant’s intention to study in Australia, asserting that the tribunal had not adequately considered his reasons to return to India as opposed to his reasons for remaining in Australia. 

4. The second ground was a procedural fairness assertion, namely, that procedural fairness had been denied him in that the tribunal did not put to him that it believed that he had reasons for remaining in Australia, or what those reasons might be, and further, that the tribunal did not indicate how much weight would be placed on those reasons in making its decision. 

5. It is noted that despite orders of Registrar Lynch made on 6 December 2017 permitting the applicant to file an amended application and further written submissions by 6 February 2018, no further documentation has been filed. 

6. Ground 1 involves a consideration of the acceptance by the tribunal that though the applicant had undertaken and completed a general English course whilst he had been in Australia, he had started but not completed an ELICOS course, and had not commenced any further studies (reasons at [19]).

7. The tribunal considered the applicant’s circumstances in his home country and accepted evidence that he had no political views or military ties or attachments which would act as an imperative for him to stay in Australia.  The tribunal found that the applicant had not provided satisfactory evidence to demonstrate that he did not have a strong financial incentive to remain in Australia, finding that the applicant did not have clear plans about any future employment, and further finding that the applicant had not demonstrated how his intended studies in Australia would provide him with employment prospects back in India, or otherwise incentivise him to return to India, at the conclusion of his studies.

8. The tribunal was not satisfied that the applicant’s family connections in India would be a reason for the applicant to leave Australia after his studies had been completed (reasons at [20] and [21]).  The tribunal also considered the applicant’s circumstances in Australia at [22] of its reasons. 

9. It noted that the applicant had said in his evidence that he had entered Australia as a dependant on his then partner’s visa, and that he had not initially come to Australia to study. It also noted that the applicant was working as a trolley collector which was covering his living expenses in Australia. It found, after an examination of all of the relevant evidence that the applicant’s planned course of study would involve him remaining in Australia until 2020 without any clear career objective relating to a possible return to India. The tribunal was not satisfied that the applicant had intended genuinely to stay in Australia only temporarily and therefore found that the applicant did not meet the clause 572.223(1)(a) criteria of the regulations (see reasons at [23] and [24]).

10. Having appropriately addressed all of the relevant criteria as set out in Ministerial Direction 53, and having appropriately weighed the evidence in that regard, it cannot be said that in respect of the ground 1 complaints, that the tribunal had committed any jurisdictional error. 

11. The tribunal made relevant findings in relation to those factors which it ought to have properly addressed in conformity with the reasons of the Full Court of the Federal Court in Minister for Immigration and Citizenship v Khadji & Anor [2012] FCAFC 145.

12. The ground otherwise seeks that this court undertake a merits review of the tribunal’s decision which it is not permitted to do. 

13. As to ground 2, the tribunal complied with its procedural fairness obligations as set out in Division 5 of Part 5 of the Act, and in accordance with the provisions of section 357A of the Act.

14. The tribunal also did not depart from the reasoning of the court in SZMOK v Minister for Immigration and Citizenship (2009) 110 ALD15 at [15]. The tribunal was not obliged to put its subjective appraisals, thought processes and determinations, impressions as to defects, gaps or a lack of detail in the applicant’s evidence, or the weight it put on the applicant’s evidence, to the applicant which is a source of complaint. In that respect, the tribunal did not depart from its obligations as set out in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

15. It cannot be said that the applicant was not put on notice of the issues which were to be the subject of determination before the tribunal in all of the circumstances (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). No jurisdictional error has been demonstrated, therefore, in respect of the ground 2 claims. The application for review is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 25 September 2018