Singh v Minister for Immigration - [2018] FCCA 1869

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1869

Catchwords:
MIGRATION – Application for review of a decision of the Migration Review Tribunal – student visa – whether Tribunal failed to take into account a relevant consideration – whether Tribunal engaged with Applicant’s evidence – findings open to the Tribunal on the evidence before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), Sch.2 cl.572.223

Cases cited:

Minister for Immigration v Yusuf (2001) 206 CLR 323

Nguyen v Minister for Immigration [2013] FCCA 1864

Applicant:

SURINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1697 of 2016

Judgment of:

Judge Hartnett

Hearing date:

25 June 2018

Delivered at:

Melbourne

Delivered on:

25 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Guo

Solicitors for the Applicant:

Bardo & Erci Lawyers

Counsel for the First Respondent:

Mr Aleksov

Solicitors for the First Respondent:

Sparke Helmore Lawyers

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1697 of 2016

SURINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

On the hearing of the matter this day, the Applicant was given leave to file and rely upon an amended application wherein the earlier grounds of judicial review, as set out in the Applicant’s application, filed on 9 August 2016, were abandoned. In lieu thereof, the Applicant sought to rely upon two new grounds which had been previously set out in the Applicant’s written submissions, dated 21 June 2018.
The two new grounds on which the Applicant relies, are as set out in the amended application filed this day. They are:-
“(1)The Tribunal failed to take into account a mandatory relevant consideration, being the Applicant’s evidence of his family farm, which was a significant incentive for him to return to his home country.
(2)The Tribunal failed to engage with the Applicant’s evidence about why he was required to study units he had previously studied, such evidence being material to the Applicant’s case and capable of answering the Tribunal’s reliance on the duplication as a reason for affirming the decision.”

Background

The Applicant, a citizen of India, arrived in Australia in January 2009 as the holder of a student (subclass 572) visa. The Applicant was granted a further student visa onshore on 8 November 2012, which was valid until 15 March 2014. On 14 March 2014, the Applicant lodged an application for a student (Class TU) (subclass 572) visa (‘the visa’), which is the subject of this judicial review application.
On 30 October 2014, a delegate of the First Respondent (‘the delegate’) refused to grant the visa on the basis that the Applicant did not satisfy the requirements of cl.572.223(1)(b) and (2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The Regulations were, relevantly, as follows:-
“(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
…
(b) the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
…
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; …”
The delegate was not satisfied that the Applicant was a genuine Applicant for entry and stay as a student. The delegate noted (in the delegate’s decision) that a review of the Provider Registration and International Student Management System (‘PRISMS’) indicated that the Applicant had been enrolled in a number of courses during his time in Australia and set out those courses as being:-
i)English for Academic Purposes;
ii)Certificate IV in Business;
iii)Diploma of Management;
iv)Certificate III in Automotive Mechanical Technology;
v)Diploma of Business (Frontline Management);
vi)Certificate III in Frontline Management;
vii)Diploma of Management;
viii)Advanced Diploma of Management;
ix)Certificate IV in Marketing;
x)Diploma of Marketing; and
xi)Advanced Diploma of Management (Human Resources) (current enrolment).
The delegate noted, that on 20 March 2014, an email had been sent to the Applicant via his registered migration agent that included a request for comment on his study history in Australia in particular in relation to the genuine temporary entrant (GTE) criterion. The Applicant was required to comment on his study history since arrival in Australia in January 2009, as well as a gap in his study history from 27 October 2013 until 6 April 2014.
The delegate noted, in respect of the Applicant’s response that:-
“…
In your statement of purpose you noted your desire to work in the automotive industry upon return to your home country with a plan to open your own automotive workshop. Commenting on the study gap noted above, you attribute not having studied to the emotional distress related to relationships in which you were engaged.”
On 14 November 2014, the Applicant applied to the Migration Review Tribunal (as it then was) (‘the Tribunal’) for review of the delegate’s decision. The Applicant appointed a migration agent to represent him before the Tribunal. The Applicant provided the Tribunal with a copy of the delegate’s decision with his application for review.
On 26 May 2015, the Applicant’s migration agent lodged a request with the Tribunal for access to written material. The Tribunal provided the Applicant with full access to documents on 27 May 2015.
On 30 July 2015, the Applicant appeared at a hearing before the Tribunal. Also in attendance was his appointed migration agent.
On 19 July 2016, the Applicant appeared at a further hearing before the Tribunal. Again, the Applicant’s migration agent was present to assist the Applicant. At the conclusion of that hearing, on 19 July 2016, the Tribunal made an oral decision on the review and provided oral reasons for its decision to affirm the decision of the delegate not to grant the Applicant the visa. The Tribunal provided the Applicant with written reasons for its decision on 26 July 2016.

Tribunal decision

In the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’), the Tribunal noted firstly, in paragraph 3, that to be eligible for the grant of the student visa, the Applicant had to be both a genuine temporary entrant and a genuine student. The Tribunal noted, in paragraph 4 of the Decision Record, that:
“To be a genuine temporary entrant your circumstances must support a genuine intention to remain in Australia temporarily.”
The Tribunal then set out a history of the matter, noting in paragraph 6 that the Applicant’s application had been refused by the delegate on 30 October 2014 because, having considered the Applicant’s circumstances, including a study gap without a satisfactory explanation, and the repetitive nature of the Applicant’s current fields of study, the delegate was not satisfied the Applicant was a genuine applicant for entry and stay as a student.
The Tribunal noted in paragraph 8 of the Decision Record that the hearing on 19 July 2016 was the Applicant’s second appearance before the Tribunal. A decision had not been made after the first hearing, which was some 12 months prior, and as the decision needed to be made on conditions at the time of the decision, the Applicant had been invited to again appear before the Tribunal on 19 July 2016.
The Tribunal referred to Ministerial Direction No.53 in paragraphs 9 and 10 of the Decision Record. Section 499 of the Migration Act 1958 (Cth) (‘the Act’) empowers the Minister to make directions which must be taken into account by the Tribunal. The Tribunal member noted the mandatory nature of his taking into account Ministerial Direction No.53 and noted in paragraph 9 of the Decision Record that what was required included consideration of:-
a)the applicant’s circumstances, including the amount of research he had undertaken into the proposed courses he had done;
b)the value of the applicant’s courses to his future;
c)the applicant’s immigration history;
d)the applicant’s incentive to stay in Australia or return home;
e)whether the applicant was using the student visa program to maintain ongoing residence in Australia; and
f)any other relevant matters.
As clearly understood by the Tribunal, and as is evident from the Decision Record, the Tribunal was cognisant of the fact that it was required to have regard to Ministerial Direction No.53 when considering the Applicant’s satisfaction of cl.572.223(1) of Schedule 2 to the Regulations.
Relevantly, item 9(b) of the Ministerial Direction No.53 required the Tribunal to consider:
“The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country.”
The Tribunal noted that the delegate’s decision put the Applicant on notice of the issues in his case and noted further in paragraph 11 of the Decision Record that at the first hearing the Applicant had told the Tribunal he had read and understood the primary decision which was discussed in some detail at the Tribunal hearing.
Ultimately, the Tribunal determined that it was not satisfied that the Applicant was a genuine student who intended to stay temporarily in Australia. The Tribunal found the Applicant did not meet cl.572.223(1)(a) of Schedule 2 to the Regulations. That clause provided, relevantly, as follows:
“(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
…
(iv) any other relevant matter; …”
The Tribunal affirmed the decision under review. The reasons which I highlight in respect of this application are as follows, as taken from the Decision Record:-
a)the Tribunal noted in paragraph 14 of the Decision Record that at both hearings the Applicant responded to a range of questions which went to the issues in Ministerial Direction No.53. The Applicant came to Australia having completed high school and having done no work other than work on the family farm. The Tribunal noted that the Applicant’s migration agent had provided a submission, which was before the Tribunal, in which the Applicant provided reasons for his courses. The Applicant stated that after his studies it was his intention to return to India and run his family’s dairy farm. The Tribunal noted that submission in paragraph 13 of the Decision Record;
b)the Tribunal noted in paragraph 16 of the Decision Record that the Applicant told the Tribunal that he came to Australia in January 2009 on a 572 visa to “learn automotive” with a view to opening his own automotive business. However, after a disagreement with his family about the girl he wished to marry his family stopped providing support to him. Thereafter, the Applicant and his family had further discussions as a consequence of which the Applicant decided to stop studying automotive and change to courses in management;
c)the Tribunal found, as set out in paragraph 17 of the Decision Record, that the Applicant had:-
“…been enrolled in a number of courses including the original ELICOS, you first of all did a Certificate IV in Business then a Certificate III Automotive, a Certificate III Frontline Management, a Diploma of Management, an Advanced Diploma of Management, a Certificate IV in Marketing which course you extended to finish subjects you then had a study break of seven or eight months, you then did an Advanced Diploma of Management in human resources, five of the eight units of which you had previously studied in the Advanced Diploma of Management, you then did a Certificate IV Small Business Management and an Advanced Diploma of Business in which course you had previously completed the majority of subjects in other courses.”
d)the Tribunal, in discussion with the Applicant during the course of the hearing, noted to the Applicant that he had twice completed an Advanced Diploma of Management and while the second course suggested it was in Human Resources, the Applicant had already completed five of the seven course units. When the Tribunal questioned the Applicant as to whether he had done research into the courses that he was going to study, the Applicant said he had not done any research as he thought because the courses had different names they would probably teach a different thing; and
e)the Tribunal set out in paragraph 21 of the Decision Record that it did not accept the Applicant’s answer as being “plausible” and found that the Applicant had enrolled in the courses not to follow a defined study pathway, but to “maintain ongoing residence in Australia”.[1]
[1] Decision Record, paragraph 21.
The Tribunal then took up with the Applicant, and as set out in paragraph 22 of the Decision Record, that he now wished to study a Bachelor of Business. The Tribunal asked the Applicant how that would assist him in the running of the family farm with the Applicant responding that it would provide him with other job opportunities perhaps in the future. The Tribunal concluded, as set out in paragraph 23 of the Decision Record, that it did not accept the courses the Applicant had studied provided significant value to his future and found that his past courses and proposed courses were of little value to his professed future as a dairy farmer.
The Tribunal also considered the gap in the Applicant’s study history, noting that he had finished his Certificate IV in Marketing on 13 August 2013 and had not commenced his next course, being an Advanced Diploma of Management, until 7 April 2014. When the Tribunal asked the Applicant about this gap in his study, he initially responded it was only five months. After some time in which exchange between the Tribunal and the Applicant occurred, the Applicant accepted that the period was longer than five months; in fact, it was approximately eight months. But the Applicant’s only answer in that regard was that he was going through family problems. The Tribunal noted, as set out in paragraph 25 of the Decision Record, that student visas require students to remain enrolled and studying. The Tribunal found that the study gap taken by the Applicant had no “acceptable explanation” and provided further evidence that the Applicant was “not a genuine student”.
The Tribunal noted that the Applicant had been in Australia for seven and a half years and had completed a number of short, inexpensive courses, many of which repeated units previously studied. The Tribunal put to the Applicant that he could do his further proposed studies at home. The Applicant responded that getting qualifications from Australia provided him with more opportunities. The Tribunal found that response an “implausible answer”, given that what the Applicant was looking to do, as claimed, was to go back home and run a family dairy farm business. This is as set out in paragraph 26 of the Decision Record.
The Tribunal said, in paragraph 28 of the Decision Record:-
“The fact that you have not been home since coming to Australia 7 ½ years ago leaves the tribunal to find you did not have strong ties to India or incentive to return home and that view is strengthened by the fact that what you now say is I want to do a degree course for another couple of years presumably not returning home until it was finished.”
The Tribunal considered the Applicant’s circumstances as a whole, including the issues in Ministerial Direction No.53, and was not satisfied the Applicant was a genuine student who intended to stay temporarily in Australia.

Consideration

Ground one

The Applicant argues that the Tribunal failed to appreciate that the Applicant’s evidence with respect to his family’s dairy farm in India fell within the scope of item 9(b) of Ministerial Direction No.53, and in failing to consider that matter, the decision of the Tribunal was affected by jurisdictional error. The Applicant argued in paragraph 5 of the Applicant’s written submissions filed 21 June 2018 and on which the Applicant relies, that for the purposes of Ministerial Direction No.53:-
“Plainly, the farm was (and is) a powerful employment tie for Mr Singh to his home country.”
The Applicant further relied upon a transcript of the hearings of both 30 July 2015, and 19 July 2016, which were before the Court in evidence and marked as annexures ‘NE1’ and ‘NE2’ to the affidavit of Nazim El-Bardouh, solicitor for the Applicant, affirmed 21 June 2018, to advance this argument. The Applicant submitted to the Court that his evidence of his family’s desire for him to take over the farm was unchallenged and there was nothing in the reasons of the Tribunal to indicate that the Tribunal considered that aspect of his evidence was not credible. Accordingly, the Applicant argued the Tribunal did not take into account whether the farm, being the principle factor put forward by the Applicant as his tie to his home country, was a “significant incentive to return”. Further, it was argued that the Tribunal failed to take into account that the Applicant’s family, were all residing in India.
The First Respondent submits that there are two answers to this argument. First, it is not necessary for a decision-maker to recite each of the matters set out in Ministerial Direction No.53 and make specific findings about those matters. Rather, the:
“…question is whether a particular decision-maker can be understood to have considered the matters set out in the direction.”[2]
The First Respondent submits that where a decision-maker has indicated that they were aware of the Ministerial Direction No.53, as the Tribunal has clearly done here, the absence of specific mention of some matter in the Decision Record would not give rise to an inference that the matter was not considered, but that the matter was not considered to be material.[3] As the Tribunal was not obliged to give some specific weight to the particular matter as set out in the direction, it was a matter for the Tribunal what weight it gave to the specific matter considered by it as mandatorily required in the Ministerial Direction.
[2] Nguyen v Minister for Immigration (2013) FCCA 1864 50-60, 86.
[3] Minister for Immigration v Yusuf (2001) 206 CLR 323 53769.
The Tribunal is required to deal with the circumstances of a case as it arises on the material before it, by considering each of the claims put forward by the Applicant, and the integers of each such claim. The Tribunal is required to consider relevant matters and not take into account irrelevant matters. There is required to be a correct application of the relevant law, including any mandatory Ministerial Direction. The Tribunal is then required to make findings on the evidence before it, which are not illogical and which have a clear factual basis.
In this case, the Tribunal was plainly aware of the Applicant’s evidence with respect to his family’s dairy farm and included reference to that farm in the Decision Record. The transcripts as put before the Court by the Applicant, support the statement that the Tribunal was well aware of the matters put before it by the Applicant with respect to his grandfather’s dairy farm. The Tribunal, indeed, is seen to engage at some length with the Applicant about matters pertaining to his family’s dairy farm. The Tribunal asks the Applicant how many cows or buffalos are present on the farm; how many people work on the farm; what crops are grown on the farm; how many of the cows and buffalos are milked; how much milk is obtained from the animals; to whom the farm sells its milk; and of what relevance the various courses the Applicant had undertaken were to his expressed desire to return to India and run his family’s small farm. The Tribunal had difficulty with the answers given by the Applicant and asked of the Applicant, in essence, how it was that he proposed to engage in dairy farming when he:
“…hadn’t had any experience of a farm for what, 10 years, when you go home.”[4]
[4] Affidavit of Nazim El-Bardouh, solicitor, dated 21 June 2018, Annexure NE-1, page 7, 22.

The Tribunal also asked the Applicant specifically why he would study human resources; why his courses were repetitive, they all being low-level, cheap and inexpensive courses; and the relevance of them to what it was he proposed to return to India to do, which was run his family business. The Tribunal expressed to the Applicant the difficulty the Tribunal was having with the Applicant having remained in Australia for an extensive period of time, undertaking courses with repetitive units and seemingly no relevance to a farming enterprise. The Tribunal said to the Applicant:
“I wonder whether you are a genuine student?”[5]
[5] Ibid, page 12, 20.
On the occasion of the Applicant’s second appearance before the Tribunal on 19 July 2016, the Tribunal again discussed with the Applicant his grandfather’s dairy farm and his stated desire to return to it and, thereby, to India and his family and how that provided any meaningful explanation for the Applicant’s study history. The Tribunal noted that the Applicant’s first course was an automotive course which the Applicant gave evidence was related to an idea he was then pursuing to open a garage on his return to India. The Applicant stated however, that after his grandmother passed away in October 2013, he determined that he would then listen to the advice from his family and change his studies from automotive studies to management studies. The Tribunal said, in relation to that evidence:-
“The problem that I’ve got with that answer is that your grandmother died on the 25^th of October 2013. You stopped studying automotive on the 3^rd of September 2010, after that, you did Frontline Management, Diploma of Management, Advanced Diploma of Management, and in fact, you had completed a Certificate 4 in Marketing, all before your grandmother died.”[6]
[6] Affidavit of Nazim El-Bardouh, solicitor, dated 21 June 2018, Annexure NE-2, page 3, 14.
The Tribunal, thereafter, again, took up with the Applicant his evidence that he spoke with his grandmother about dairy farming, and determined to pursue that after his grandmother died, which was 25 October 2013. The Tribunal put to the Applicant, that by then the Applicant had done a number of courses that did not involve any automotive study. The Tribunal indicated to the Applicant that it wondered:-
“…whether what you’re telling me is consistent and makes sense.”[7]
[7] Ibid, page 4, 3.
By the second Tribunal hearing, the Applicant had enrolled in a Bachelor of Business. The Tribunal engaged with the Applicant as to why he wished to do a Bachelor of Business. The Tribunal said:-
“My question is, why would someone going back to run a family dairy business that has been going for a long time, because your grandfather’s getting old and he can’t run it any more, “oh what I’ll do is I’ll stay here for another” - how long’s this course? - “Another 2 years. I’ll do a Bachelor of Business.””[8]
The Applicant’s response to the Tribunal was that as he had “not heard back from the Tribunal”, he enrolled in a Bachelor of Business. He also gave evidence that he thought he should seek a degree and that:-
“Bachelors are always (inaudible) worldwide.”[9]
And further:-
“If I need it, I should have a degree.”[10]
[8] Ibid, page 8, 18.
[9] Ibid, page 8, 27.
[10] Ibid, page 9, 11.
Further on, the Tribunal asked the Applicant:-
“Tell me, people running dairy farms in India, small dairy farms, would have bachelor’s degree from Australia, do you think?”[11]
[11] Ibid, page 12, 31.
The Tribunal’s Decision Record makes clear that it considered the Applicant’s evidence with respect to his family’s dairy farm, but was unable to conclude that its existence and the Applicant’s evidence in relation to it, provided any plausible, acceptable and meaningful explanation of the Applicant’s study history. It was open to the Tribunal to treat that state of affairs as submitted by the First Respondent, as the dominant factorial issue in the review, and to relegate other matters, or not to place any weight on the other matters set out in Ministerial Direction No.53.
Additionally, the Tribunal was concerned about the Applicant’s gap in study history which clearly went to the Tribunal’s consideration of whether the Applicant was a genuine student, together with the length of time for which the Applicant had remained in Australia undertaking inexpensive and low-grade courses. By the time of the second Tribunal hearing, the Applicant had enrolled in a further course to remain in Australia for a further two years, making his period of residence in Australia approaching a period of 10 years. It was open to the Tribunal, clearly, on the evidence to find the Applicant did not have strong ties to India or an incentive to return home.
It cannot be inferred, as the Applicant would wish to say, that the Tribunal ignored item 9(b) of Ministerial Direction No.53. Nothing further was required to be said by the Tribunal in that regard.
The First Respondent submits as a second matter that even if it is inferred the Tribunal had somehow failed to consider item 9(b) of Ministerial Direction No.53, and the Court finds specifically that the Tribunal did consider item 9(b), it is clear this could not have affected the outcome of the review, given the seriousness of the Tribunal’s concern about the lack of any satisfactory explanation for the Applicant’s study, which included the gap in his study history. The Court accepts that submission.

Ground two

The Applicant submits that, plainly, one of the preoccupations of the Tribunal was why the Applicant had studied particular courses in the past which appeared to overlap in their content. The Applicant argues it was a significant factor in the Tribunal’s decision to affirm the refusal. The Court does not accept that it was a significant factor, rather, it was one of the many factors which went to the Tribunal’s decision to affirm the refusal. The Tribunal put to the Applicant, on more than one occasion, its difficulty in understanding how the Applicant could present as a genuine student, intending genuinely to stay in Australia temporarily, when he pursued a number of courses of questionable value to what it was he said he wished to take up on his return to India, and which considerably overlapped in content. As such, he was not learning anything new or different, and the courses appeared to have no connection to his desire to assist in the running of the family’s dairy farm. The Tribunal, asking the Applicant why he would engage in courses which overlapped in their content, was, as conceded by the Applicant’s Counsel in his submissions, an entirely permissible matter for the Tribunal to enquire about and take into account.
The Applicant’s Counsel argues, however, that the Applicant did attempt to provide an explanation for the overlap in the form of the private colleges with which he enrolled refusing to grant his course credit for previous study. The Applicant argues that rather than deal with the explanation of the Applicant, the Tribunal’s reasons show that it simply ignored it, even though the explanation was capable of completely answering the Tribunal’s concerns. The Applicant argues that the Tribunal’s reasons show no engagement with the Applicant’s evidence which, if it had been accepted, was capable of being a complete answer to the Tribunal’s reliance on the duplication of course studies as a reason supporting the refusal.
The Court finds what the Applicant, in fact, did say in response to the Tribunal’s questioning about this matter was that the relevant colleges had said to him:-
“We can’t give you a refund or anything.”[12]
To which the Tribunal member responded:-
“What do you mean you can’t get a refund? Forget a refund, why would you go and enrol in an Advanced Diploma of Management when you already have an Advanced Diploma of Management? It doesn’t make sense.”[13]
[12] Ibid, page 6, 34.
[13] Ibid, page 6, 36.
Ground 2 of the application must fail. It involves no evidence that was central to the review and it is clear in the Decision Record that the Tribunal did engage with the Applicant’s explanation for his study history, which is also supported by the transcripts which are in evidence before the Court. What the Tribunal did, in the relevant exchange above was to direct the Applicant’s attention to what it was the Tribunal needed from him, which was, namely, a plausible explanation for a matter that was of concern to the Tribunal, and a matter in which the Tribunal could make an adverse credibility finding against the Applicant.
The Applicant’s study history was the main determinant for the Tribunal concluding that the Applicant pursued the studies he did to maintain ongoing residence in Australia and to not be a genuine student. That conclusion was open to the Tribunal for the reasons it gave on the material that was placed before it by the Applicant, which included the Applicant’s evidence over two hearings before the Tribunal, the second occurring so the Tribunal could appraise itself of the Applicant’s then circumstances.
The decision of the Tribunal is not affected by jurisdictional error and the application is dismissed. The Applicant is required to pay the costs of the First Respondent.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:

Date: 13 July 2018