Singh v Minister for Immigration - [2020] FCCA 2597

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2597

Catchwords:

MIGRATION – Application for judicial review of Administrative Appeals

Tribunal’s decision to refuse a Student (Temporary) (Class TU) visa – where

necessary to satisfy Migration Regulations cl. 500.212 – where the applicant’s

study history raises concern whether he is a genuine temporary entrant – where

there is an intelligible and evident basis for each of the Tribunal’s conclusions

and its decision is not irrational – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) sch. 2 cl. 500.212

Applicant:

JAGDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 198 of 2019

Judgment of:

Judge Young

Hearing date:

10 September 2020

Date of Last Submission:

10 September 2020

Delivered at:

Darwin

Delivered on:

10 September 2020

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Ms Allen

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the first respondent costs in the sum of $5,000.
The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 198 of 2019

JAGDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal” or “AAT”) made on 4 June 2019 affirming a decision of the delegate to refuse the applicant a student visa, in particular, a Student (Temporary) (Class TU) visa. As a criterion for the issue of that visa it was necessary to establish compliance with clause 500.212 of the Migration Regulations, which required satisfaction that:
The applicant is a genuine applicant for entry and stay as a student because:
(a) 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
(iii) if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
I might say at the outset that the issue raised on the material before the Tribunal did not concern the applicant’s compliance with any visa conditions nor was there any particular evidence that he would not comply with a visa condition, on the contrary, nor was there anything in the applicant’s immigration history to suggest that he had not complied with a condition or would not comply with a condition in the future. The concerns of the Tribunal arose from uncontested material, that is, the applicant’s migration history, his study history and his employment history, combined with the fact that he was ordinarily a resident of India.
The applicant came to Australia in 2008. He was granted a student visa and a further three student visas were granted. His first student visa application was on the basis of his enrolment in a series of courses comprising a Certificate IV in Spoken and Written English, a Certificate III in Printing and Graphic Arts and a Diploma of Multimedia. Those courses were completed in 2010 and, as mentioned, the applicant was subsequently granted a further three student visas.
The applicant said in his submissions to the delegate that he was born in a small town in northern India and education was important to him. He wished to obtain qualifications in business management and he saw himself as a management professional ultimately. He said also that his father or his family ran a trucking business in India and he wished to contribute to that, presumably with the qualifications he obtained in Australia. In addition to the qualifications I have mentioned that were obtained by 2010, in 2010 the applicant commenced a Diploma of Management, which he completed in 2011.
In 2011 he commenced a Certificate IV in Business which he completed in 2012. In 2013 he commenced a Diploma of Business and completed that approximately six months later in 2013. He commenced another Diploma of Business in July 2013, but possibly that is the second part of the Diploma I have already mentioned, presumably semester 2. He completed that, apparently, in August 2013. He commenced a Diploma of Marketing in June 2014 and completed that in December 2014. He commenced an Advanced Diploma of Marketing in January 2015 and completed that in January 2016. He also completed an Advanced Diploma of Business on 16 April 2017.
He enrolled in a Certificate III in Commercial Cookery which he commenced in March 2019. He was scheduled to complete this on 29 March 2020, that is, a time which has passed.
At the time he applied for the visa which is the subject of the application, he had enrolled in an Advanced Diploma of Leadership and Management, which he was due to commence on 5 June 2017 but which he did not complete. There is no evidence as far as I can see referred to by the Tribunal of the completion of any other course after this. If the applicant had completed the Certificate III in Commercial Cookery, which he intended to commence in 4 March 2019, he would have completed it by now.
He also has had a history of employment from 2010 as a shop manager or a driver. At the beginning of 2019, which is the last record before me, he had been working as a manager for a transport company, apparently, and earning an annual salary of $44,000 a year.
The Tribunal asked the applicant how it was that his proposed study, that is, a Certificate III in Commercial Cookery, would add to the family transport business or, indeed, finance or engineering business, which are all mentioned as related to the applicant’s family in India. The Tribunal said that in relation to that:
When asked by the Tribunal why he did not return to India to work in the businesses at the completion of these initial studies in 2010 he was unable, at first, to provide a logically coherent answer. When pressed by the Tribunal he stated to the effect that he felt he could make a contribution to the family business by undertaking further studies in business and management. When asked by the Tribunal why, once he had finished his studies in business and management, he did not then return to work in the family business, he stated to the effect that he felt he could make a contribution by undertaking studies in marketing.
When again asked by the Tribunal why he did not return to work in the family business at the completing of his studies in marketing, the applicant stated to the effect that he required qualifications in commercial cookery to enable him to run a kitchen and meals area within the family transport business. When asked by the Tribunal why, with his numerous business and management qualifications, he would not employ someone in India to do this, the applicant was unable to provide a cogent answer. The Tribunal found the applicant’s evidence regarding study history, motives and career plans to be vague, unconvincing and illogical and his explanations unsatisfactory. Despite further probing by the Tribunal, the applicant was unable to offer any further details to overcome the Tribunal’s concerns.
In my view, having regard to the applicant’s study history, his expressed wish to return and work in a family transport business, his explanation for or inability to provide an explanation for wanting to undertake a commercial cookery course was, perhaps not surprisingly, of central interest to the Tribunal. As I say, given the history I have referred to the Tribunal was, in my view, entirely justified in its concern about whether that history indicated that the applicant may not be a genuine temporary entrant.
The grounds of review set out by the applicant run over some one and a half pages and I do not propose to read them in their entirety. Ground one said:
That the Administrative Appeals Tribunal has failed to appreciate that I want to learn cookery skills for my own advantage and refusing to allow the appeal on the grounds that I can employ another person as a cook is irrational and without any basis.
In my view, the applicant’s proposal to study commercial cookery is quite inconsistent with what he otherwise says is his plan to work in the family transport business in a management capacity. In my view, the Tribunal was entirely justified in reaching the conclusion it did about that explanation.
Ground two says that:
The AAT failed to appreciate that I am a disabled man and get intimidated easily. My hesitation and uneasiness to provide answers to the deemed essential questions by the delegate should not have been construed against me.
There was information before the Tribunal that the applicant suffered from dysarthria. That has not been defined anywhere in materials before me but I have sought in Wikipedia a definition of that disorder and it is described as a motor speech disorder resulting from neurological injury of the motor component of the motor-speech system and is characterised by poor articulation of phonemes, in other words, sounds. It goes on to say that dysarthria does not imply any cognitive deficit but is a motor problem with speech.
On the hearing record, the Tribunal has noted that documents received indicated that the applicant has a “stuttering issue” and that there are “issues with noise in the background”. The applicant was represented by a migration agent throughout the interview. There was no indication before me, for example, of a post-hearing letter from the migration agent to the Tribunal saying that the applicant had not had a proper chance to put forward his case or what he wanted to say because of such a disability or because of any telephone connection issues.
I would have expected that had the applicant and/or his migration agent genuinely thought there was a problem with the mode of interview or of the hearing that would have been raised after the hearing. I note that in response to the hearing notation the migration agent has written the following in relation to the applicant:
Stammering problem of the client can greatly affect him to express himself effectively. We request the Tribunal member to be patient during the hearing.
As I say, I am not satisfied that the applicant was unable to put forward his case. I asked him what he wished to say that has not been put forward and he was not able to describe anything he had not been able to put forward. I might say, in the hearing before me, he told me he felt confused but, as I say, there is nothing to indicate that the disorder of dysarthria produces a cognitive deficit or confusion.
It appeared to me that the applicant, who had written reasonably detailed grounds of review, was somewhat disadvantaged because he did not have those grounds in front of him, particularly when I invited him to expand on the grounds as set out in this application. I arranged for my associate to send him via email his own application and also the affidavit in support to assist him in making submissions if he wished to.
The applicant also sought an adjournment which I refused because he had not taken any steps to obtain legal advice despite filing his application on 4 June 2019. I was not satisfied that an adjournment was required in the interests of the administration of justice. I am not satisfied that the applicant was unable to advance his case before the Tribunal, particularly given that he was assisted by a migration agent and there was no complaint following the interview about the process of the interview.
The third ground is that the AAT wrongly read the difference of “income proportionality” in India and Australia as an incentive to reside in Australia permanently. The Tribunal did read it that way. The applicant told the Tribunal he had earned $44,000 a year in the last year in Australia and if he returned to India and worked in the family trucking business he would earn $24,000, that is, in Australian dollars. That in itself of course is probably not that telling but given the other factors in the applicant’s case I am satisfied that the Tribunal is entitled to take account of that factor and it was not irrelevant. The reasons why there is an income difference between Australia and India is not to the point.
In ground four, the applicant says:
The AAT has failed to appreciate the gravity of the fact that my first child and wife reside in India and I have no alternative but to return to India eventually.
The applicant said that he has a wife and child in India and in fact this was noted in the Tribunal reasons. While the applicant may well have a wife and child in India, the fact is that the other circumstances, particularly the protracted period he has spent in Australia and the series of qualifications which appear to be in some cases repetitive or not adding generally to the applicant’s skills, raise a real question mark about whether he is a genuine temporary entrant. The material gives rise to that concern on an objective basis and I am satisfied the fact that he has a wife in child in India is merely one factor.
Ground five was that:
The AAT has rightly recorded that I have been living in Australia [for a long time] and have not violated any visa conditions but due weightage has not been given to this factor.
As I have mentioned, the Tribunal was aware that there were no incidents of non-compliance with visa conditions but, nevertheless, the very history of the applicant’s migration history that I have referred to gives rise to its own concern. I am satisfied that the Tribunal’s approach, which was to acknowledge the fact of compliance with visa conditions in the past, was not to be interpreted as dispelling any concern about whether the applicant was a genuine temporary entrant.
Ground six alleges that:
The AAT has wrongly held that I am trying to create a pathway to maintain residency in Australia.
I am not sure that was precisely the finding of the Tribunal but the Tribunal certainly found as follows, and I refer to paragraph 26 of its reasons:
The Tribunal has formed the view that the applicant has an economic motivation to maintain his residency in Australia and that progressing academically, so as to improve his employment or business opportunities in his home country, is not his primary reason for seeking to remain in Australia.
Ground seven is an allegation, which is not in dispute, that the applicant has complied with visa requirements in the past.
In my view, the complaints of the applicant really go to the way the Tribunal has assessed the evidence. In my view, there is an intelligible and evident basis for each of the Tribunal’s conclusions and its decision is not irrational. I am not satisfied that any factor that the Tribunal has taken into account is an irrelevant consideration or that it has failed to take into account a relevant consideration. I am not satisfied that the various complaints about weight given by the Tribunal to various factors have any merit.
The applicant also referred in ground 6 to Ministerial Direction No. 69 where it is said that the potential of an applicant for a visa for living permanently in the future in the country is to be disregarded. On my reading of the Tribunal’s reasons it has not failed to take into account the substance of that direction, which is to the effect that simply because an applicant may be seeking to live permanently in Australia in the future that alone is not a proper basis for failing to be satisfied that an applicant is a genuine temporary entrant.
I am not aware of anywhere in the material before me where the applicant says that he intends to apply to remain in Australia permanently on a lawful basis. As I understand his material, throughout he says that he intends to return to India to work in the family business if possible. I am not satisfied that the reference to Direction No. 69 has any relevance in this case.
I am not satisfied the decision is affected by jurisdictional error. The application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 15 September 2020