Singh v Minister for Immigration

[2018] FCCA 102

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 102

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant: CAPTAN SINGH

Second Applicant: JASMEET KAUR

Third Applicant: HARNIWAZ SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 335 of 2017

Judgment of: Judge Vasta

Hearing date: 15 January 2018

Date of Last Submission: 15 January 2018

Delivered at: Brisbane

Delivered on: 15 January 2018

REPRESENTATION

Counsel for the Applicants: Mr L Burrow

Solicitors for the Applicants: Gopal Lawyers

Counsel for the Respondents: Mr P Psaltis

Solicitors for Respondent: Clayton Utz

ORDERS

1. The Application filed on 13 April 2017 as amended on 14 November 2017 be dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 335 of 2017

CAPTAN SINGH

First Applicant

JASMEET KAUR

Second Applicant

HARNIWAZ SINGH

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 13 April 2017 the Applicant, Captan Singh, and his dependent wife and child, apply to this Court for a review of a decision of the Administrative Appeals Tribunal that was made on 21 March 2017.  That decision itself affirmed a decision not to grant the Applicant a student visa. 

2. In short compass, the facts are these.  The Applicant came to Australia in the year 2009 on a student visa.  On 5 November 2015, he applied for another student visa.  That was refused on 12 April 2016.  He then took the matter to the Administrative Appeals Tribunal, which, as I’ve said, gave their decision on 21 March 2017. 

3. Since the time that the Applicant had been in Australia he had taken, or had been enrolled in and completed, these courses:

   a)A General English Language course;

   b)A Certificate III in Automotive Mechanical Technology (Light Vehicle); a Diploma of Management,

   c)A Diploma of Management;

   d)A Certificate IV in Spoken and Written English;

   e)A Certificate III in Wall & Floor Tiling;

   f)An Advanced Diploma of Management;

   g)A Certificate III in Automotive Mechanical Technology;

   h)A Certificate IV in Automotive Mechanical Diagnosis; and

   i)A Diploma of Automotive Technology. 

   The Applicant has not studied since 2015, because, as he said, he is waiting for his student visa to be given. 

4. The Applicant had returned to India on two occasions since his arrival, once in January 2012 and again in December 2012.  He visited his family and whilst in India met his wife, whom he married, and their son was born here in Australia. 

5. He was asked to provide to the Tribunal a written statement as to what it was that he planned to do, and he didn’t do that. At the hearing, he told the Tribunal that his future plans were to open his own automotive business in India and for that reason he needed a broad knowledge of the industry.  He said that he would run a business by himself but would later consider training and employing local people. 

6. His student visa allowed him to work in Australia, and he had been employed as a commercial cleaner and had driven a tow truck and a taxi for short periods.  Apparently, his wife is employed in the aged-care industry at this time.  It’s her wages plus the support of the family in India that has provided for them financially. 

7. What must be established to the Tribunal’s satisfaction is that the Applicant is a genuine applicant for the student visa; that is, that he intends to come from his own country to study here and then to return to his native country to put in place what it is that he has learned. 

8. The benefits of such a scheme are self-evident.  Obviously, the student themselves benefits from the greater educational facilities and learnings of this country.  Australia benefits by ensuring that it keeps its educational standards to such an extent that they will attract overseas applicants.  The Australian economy is, obviously, greatly enhanced by having students, and then the country of origin of the student is enhanced because of the skills that the students then bring back to their countries.

9. This scheme will benefit all involved, if undertaken properly.  However, it is a scheme that is open to abuse, and that is why the Tribunal is, and the delegates of the Minister are, tasked with ensuring that persons who are applying for such visas are doing so genuinely. 

10. In this case, what the Tribunal did was have a look at a number of factors in the Applicant’s case.  Since 2009, the Applicant has been back to India on only two occasions, totalling a period of 90 days.  He has his wife and child here in Australia.  He has not studied since 2015.  He wishes to work in the automotive industry when he returns to India, and yet with regard to that he has not really taken any employment in that industry and has no solid plan for working in this industry when he returns. 

11. During the seven years that he has been in this country he has also been an Applicant for permanent residency under another scheme, though he did end up withdrawing his application, because, to use the words of the Tribunal,  the Applicant said that the “sponsorship did not proceed, as the job did not work out with the employer”. 

12. It was also noted that, whilst the Applicant says that working in the automotive industry was always the goal, he did do a course on wall and floor tiling.  His excuse was that his father experienced a financial setback and that he, the Applicant, could not afford to take a course related to the automotive industry and had to find something cheaper.  

13. The Tribunal quite rightly said that they had difficulty accepting that excuse, as it made very little sense, to pay for and study a completely unrelated vocational subject that has not added anything to the career plans. 

14. So when one looked at all of these matters the Tribunal came to the conclusion that this Applicant was not someone who genuinely intended to come to Australia to study and then to leave again to put what he had studied into place. 

15. The only ground of this application is that the decision-maker engaged in jurisdictional error in making a decision that was irrational, illogical and unreasonable, informing a view that the Applicant failed to meet the requirement to remain in Australia temporarily. The point was quite properly made by counsel for the Respondent, and it seems to be accepted by counsel for the Applicant, that the unreasonableness has no application here in the legal sense, because the decision-maker was not exercising a discretion.  The decision-maker here had to assess the evidence and to conclude whether a state of things was established, which was not a matter of exercising a discretion. 

16. As to whether the decision was illogical or irrational, one has to look at what it is that necessarily has to be established.  For those grounds to be established, it must be seen, that the ultimate conclusion of the Tribunal was simply not open upon material before the Tribunal. 

17. There were a number of legs to the decision.  These were the family ties to India, what the Applicant had done with regard to his plan for the automotive industry, whether that plan was actually viable, the fact of a previous application for permanent residency, the excuse for doing the course on tiling, the fact that the Applicant hasn’t studied since 2015, and the fact that the wife is working in an industry and bringing in money for him and his son to also live on in conjunction with the money that the family is sending.

18. All of those matters were matters that had to be considered.  It is not whether any one of those factors is sufficient to come to the conclusion that the Tribunal eventually made.  In fact, if one looked at all six or seven of those particular bases, one could find some problem with each of them, if one really wanted to look. 

19. However, it is the cumulative effect, the same way in which juries are told to look at circumstantial evidence; the cumulative effect of all those bases, that comes together to found the conclusion that the Tribunal made. 

20. When one looks at all of those bases, one cannot say that the conclusion made by the Tribunal was simply not open.  It seems to me, that it was quite clear, that such a conclusion was open.  That does not mean that it is the same conclusion that I or any other decision-maker may necessarily have inevitably come to, but it was a decision that was open on the evidence.

21. For that reason there is no jurisdictional error that has been established. That being so, the application is dismissed with costs fixed in the sum of $7,328.00.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date:  29 March 2018