Singh v Minister for Immigration

[2020] FCCA 2394

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2394

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359, 360, 425

Migration Regulations 1994 (Cth)

Cases cited:

Nehrupandiyan v Minister for Immigration [2019] FCA 123

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: SATNAM SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 37 of 2020

Judgment of: Judge Driver

Hearing date: 27 August 2020

Delivered at: Sydney

Delivered on: 27 August 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Ms S Wright of Mills Oakley Lawyers by telephone

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 37 of 2020

SATNAM SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 December 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Singh a student visa.

2. Background facts relating to this matter are conveniently set out in the Minister’s submissions filed on 12 August 2020, which I adopt.

3. Mr Singh is a citizen of India who arrived in Australia on 22 June 2014 as the holder of a student (Subclass 573) visa to undertake a package of courses leading to a qualification in a Bachelor of Business (Information Systems Management).[1]  Other than an English course, Mr Singh did not subsequently complete any of his proposed courses and instead completed a Certificate IV in Accounting in May 2015 and a Diploma of Accounting in November 2015.[2]

   [1] Court Book (CB) 55

   [2] CB 56

4. On 6 March 2018, Mr Singh applied for a student (subclass 500) visa on the basis of his enrolment in a Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology.[3]

   [3] CB 1-16

5. Mr Singh nominated an education agent to be his authorised recipient.[4] In support of his application, he submitted a copy of two pages of his passport which did not include the bio-page[5] and confirmation of his health cover.[6]

   [4] CB 5

   [5] CB 17

   [6] CB 18

6. On 2 May 2018, the Minister’s Department requested Mr Singh provide further evidence of his academic qualifications, evidence of study in Australia, a copy of his passport and a genuine temporary entrant statement.[7]

   [7] CB 31-40

7. On 4 June 2018,[8] Mr Singh provided evidence of a Certificate, statement of results dated 26 October 2015 and completion letter in a Certificate IV in Accounting;[9] a Certificate, statement of results dated 25 January 2016 and completion letter for a Diploma of Accounting;[10] and a copy of the bio-page of his passport.[11]

   [8] Page 4 of delegate’s decision at CB 56 contains the date that these documents were uploaded

   [9] CB 41-43

   [10] CB 44-46

   [11] CB 47

8. On 7 June 2018, the delegate refused to grant Mr Singh a student visa.[12] The delegate found Mr Singh did not satisfy the requirements of clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) because he was not a genuine temporary entrant (GTE).[13] The delegate noted that Mr Singh had now completed his Certificate III in Light Vehicle Mechanical Technology. The delegate was concerned by Mr Singh’s poor study history and the value of his proposed course as a motor mechanic. The delegate found that Mr Singh was using the student visa program for the purpose of extending his stay in Australia.[14]

   [12] CB 48-58

   [13] The delegate’s decision (at CB 55) incorrectly states that the applicant lodged his application for a student visa on 7 March 2018. The applicant lodged his application for a student visa on 6 March 2018 which is confirmed (at CB 20, 23, 33, 49, 53)

   [14] CB 57

The Tribunal

1. On 21 June 2018, Mr Singh applied to the Tribunal for a review the delegate’s decision.[15]  Mr Singh did not appoint an authorised recipient. He submitted the following documents with his review application: Confirmation of Enrolments (CoE) for a Certificate IV in Automotive Mechanical Diagnostics and Diploma of Automotive Technology (scheduled to be completed on 4 June 2019);[16] a copy of his Certificate III in Light Vehicle Mechanical Technology;[17] and Diploma of Accounting.[18]

   [15] CB 59-60

   [16] CB 61-62

   [17] CB 63-65

   [18] see CB 41

2. On 13 September 2019, Mr Singh was invited pursuant to s.359(2) of the Migration Act 1958 (Cth) (Migration Act) to provide information in writing about the course of study he was intending to undertake.[19]

   [19] CB 74-80

3. On 25 September 2019, Mr Singh appointed an authorised recipient[20] who requested an extension of time to provide a response to the s.359(2) invitation.[21]

   [20] CB 82

   [21] CB 81-83

4. On 8 October 2019, the Tribunal granted an extension of time to provide information.[22]  Mr Singh was given until 28 October 2019.[23]

   [22] CB 84-86

   [23] CB 86

5. On 27 October 2019, Mr Singth’s authorised representative responded to the s.359(2) invitation,[24] and submitted: a genuine temporary entrant statement;[25] a completed Request for Student Visa Information form;[26] a Certificate IV in Automotive Mechanical Diagnostics and Diploma of Automotive Technology;[27] and various academic documents from India.[28]  Mr Singh’s submissions noted that he had successfully completed his course of studies and stated he had “no intention to study further”. He requested an “opportunity to stay in Australia to gain some experience in his field of study”.[29]

   [24] CB 87-116

   [25] CB 87-93

   [26] CB 95-107

   [27] CB 108-113

   [28] CB 114-116

   [29] CB 93

6. On 26 November 2019, Mr Singh was invited to attend a hearing scheduled for 16 December 2019.[30] The hearing invitation requested that Mr Singh provide:

   A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 of Schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of the visa.

   [30] CB 118-126

7. On 10 December 2019, Mr Singh accepted the hearing invitation[31] and on 16 December 2019, Mr Singh and his representative attended the hearing but did not provide evidence of enrolment.[32]

   [31] CB 127-130

   [32] CB 131-133

The Tribunal’s decision

1. On 16 December 2019, the Tribunal gave an oral decision affirming the delegate’s decision.[33]

   [33] CB 134-140

2. On 17 December 2019, the Tribunal provided Mr Singh with written reasons for its decision.[34]

   [34] CB 141-146

3. The Tribunal confirmed that the issue before the delegate was whether Mr Singh met the GTE criteria,[35] summarised the mandatory criteria for the grant of a student visa and identified the specific requirement under clause 500.211 for Mr Singh to be enrolled in a registered course at the time of the decision.[36]

   [35] CB 145, [3]

   [36] CB 145, [6]-[8]

4. The Tribunal found that Mr Singh had conceded at the hearing that he was not enrolled in a registered course of study and sought an opportunity to be “granted a visa” so that he could gain work experience in Australia. The Tribunal recorded that it had put to Mr Singh that enrolment in a course of study was a mandatory requirement for the grant of a student visa. Accordingly, the Tribunal identified the issue on review was whether at the time of the decision, Mr Singh met the enrolment requirements for the grant of a student visa.[37]

   [37] CB 145-146, [10]

5. The Tribunal concluded that as there was no evidence before it that Mr Singh was currently enrolled in a registered course, Mr Singh did not satisfy the mandatory criteria for the grant of a student visa and affirmed the decision of the delegate.[38]

   [38] CB 146, [11]-[13]

The present proceedings

1. These proceedings began with a show cause application filed on 8 January 2020.  There are two grounds in that application:

   1. The Tribunal denied the Applicant procedural fairness and/or breached s425 of the Migration Act.

   Particulars

   2.The Tribunal error in denying the applicant an opportunity in refusing the visa renewal and denying the applicant to provide confirmation of enrolment.

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 9 March 2020.

3. Only the Minister filed pre-hearing submissions in accordance with procedural orders made by a Registrar.  I invited oral submissions from Mr Singh this morning.  He told me, with disarming frankness, that he is perfectly willing to return home but needs a skills assessment based upon work experience in order to represent himself as qualified for skilled employment.

4. Mr Singh takes the view that he should be permitted to undertake limited work experience following the completion of his studies before returning to India.  Mr Singh pointed out that there was a considerable delay between the making of his student visa application and the decision on it by the Tribunal.

5. In the period of time that followed the making of his application, Mr Singh had completed his studies and was only seeking to undertake limited work experience.  Mr Singh was not able to meet that requirement because he required a CoE as an essential criterion for the visa.  He could not satisfy that criterion because he had completed his studies.  This left Mr Singh in a predicament which neither he nor the Tribunal could remedy.

6. It would be open to the Minister, if he were so minded, to extend Mr Singh’s bridging visa for a limited period and to vary the condition on it relating to employment. At the present time, his bridging visa only provides limited work rights, meaning that he can only work for 20 hours a week.  That is consistent with the work restriction on student visas.  However, in order for Mr Singh to undertake work experience, the Minister could, if he was so minded, consider whether the restriction of 20 hours should be removed.  That is beyond the scope of this proceeding.

7. The Minister’s submissions dealt with the legal issues relating to the grounds of review advanced.  I agree with those submissions and adopt them. 

8. The sole ground of the application for judicial review asserts that the Tribunal denied Mr Singh “procedural fairness” as it breached s.425 of the Migration Act by denying him the opportunity to “provide confirmation of enrolment”. This ground is misconceived as s.425 has no application to reviews conducted under Part 5 of the Migration Act.

9. To the extent Mr Singh intends to allege a breach of s.360(1) of the Migration Act, no evidence, such as a transcript of the Tribunal hearing, has been filed to support this contention.

10. In any event, by letter dated 26 November 2019, the Tribunal validly invited Mr Singh to attend a hearing in accordance with s.360(1) of the Migration Act, scheduled for 16 December 2019 to give evidence and present arguments on the issues arising in the review. The Tribunal’s hearing invitation set out the enrolment requirement. It requested that Mr Singh provide, at least seven days before the hearing, a copy of his “current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 of Schedule 2 to the Migration Regulations 1994”. The hearing invitation put Mr Singh on notice that his ability to meet the enrolment requirement for the grant of a student visa was in issue and he had until the scheduled hearing date to provide evidence of enrolment but did not do so.

11. Further, Mr Singh was afforded an opportunity to present arguments and give evidence at the hearing in relation to the issue arising on the review.[39]  The Tribunal decision records that Mr Singh conceded at the hearing that he was not enrolled in a registered course of study and sought an opportunity to be “granted a visa” so that he could gain work experience in Australia.[40]  The Tribunal correctly found that clause 500.211 was mandatory. There was no power, discretionary or otherwise, for the Tribunal to dispense with the requirement for the applicant to be enrolled in a course of study.[41] Accordingly, there was no other decision open to the Tribunal other than to affirm the decision under review. No breach of s.360(1) can be established. Mr Singh’s sole ground of judicial review fails to raise an arguable case for the relief claimed.

    [39] CB 145-146, [9]-[10]; SZBEL v Minister for Immigration (2006) 228 CLR 152 at [33]-[35]

    [40] CB 145-146, [10]

    [41] Nehrupandiyan v Minister for Immigration [2019] FCA 123 at [14]

12. I conclude that Mr Singh is unable to establish an arguable case of jurisdictional error by the Tribunal. 

13. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

14. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  Mr Singh stated that he was happy to pay the costs.

15. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 1 September 2020