SINGH v Minister for Immigration

[2017] FCCA 3406

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3406

Catchwords:
MIGRATION – Application for judicial review – student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994, cl.570.223

Cases cited:

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant: AVTAR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2312 of 2015

Judgment of: Judge Riethmuller

Hearing date: 31 October 2017

Date of Last Submission: 31 October 2017

Delivered at: Melbourne

Delivered on: 31 October 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2312 of 2015

AVTAR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on

   
   

   17 September 2015. That decision affirmed a decision of the delegate of the first respondent not to grant the applicant a student visa.

2. The applicant is a citizen of India, who came to Australia in 2009.  The applicant was first granted a student dependant visa, offshore, on 30 March 2009, which was valid until 18 April 2010.  The applicant was granted further student dependant visas in November 2010, August 2011 and October 2011.  The last visa expired in October 2013.  Through these periods, the applicant was a dependant of his wife, who was also on a student visa.  In October 2013, the applicant applied for a student visa in his own right, which is the subject of this review.

3. On 9 December 2013, the delegate refused to grant the visa, because the applicant did not provide evidence in relation to his financial capacity, as required by cl.570.223 of the Migration Regulations 1994 (“the Regulations”).  The applicant applied to the Tribunal for a review of the delegate’s decision.  On 29 April 2014, the Tribunal remitted the application for reconsideration on the direction that the applicant met the financial capacity requirements.  In May 2014, the Department sent an email to the applicant’s migration agent requesting further information.

4. On 3 June 2014, the applicant’s agent sent several documents to the Department, including a Statement of Purpose, which said:

   I am taking this course to improve my English.  It will help me get better opportunity when I return back to India.  I choose Victorian Institute of Technology as they have told me that I will get personalised coaching for improve my English.  I have been student dependent Visa since April 2009.  As my wife finish her course next year we are planing to go back to India at that time.  I want to use this opportunity to improve my skills.  I am livin at [address omitted] with my wife.  We have a family bussiness in India that is doing very well.  And family want me to improve my skills and communication to help grow further.

5. On 24 October 2014, the delegate refused to grant the applicant the visa, because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.  On 12 November 2014, the applicant applied to the Tribunal for a review of the delegate’s decision.  On 27 July 2015, the applicant’s migration agent provided supporting documents.  On 29 July 2015, the applicant appeared before the Tribunal to give evidence and to present arguments, with the assistance of a Punjabi interpreter. 

6. The Tribunal allowed the applicant additional time, until 5 August 2015, to provide further documents in support of his application.  On 17 September 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant a visa.

7. In considering whether the applicant was a genuine entrant for a stay in Australia, the Tribunal found:

   24.  The Tribunal observed that taken cumulatively, there were many factors in the applicant’s made it doubt that the applicant was a genuine entrant for stay in Australia to study only and might be using the student visa program to reside here.  These included the length of time he had spent in Australia before enrolling in a course and applying for a student visa, his lack of knowledge about the course (or courses) in which he was enrolled, his initial evidence that learning English would enhance his job prospects in Australia and his lack of ability to explain why learning English would enhance his employment prospects in India, either in his own existing family business or any business he and his wife established, given she is fluent in English. The applicant reiterated that he did want to study here - firstly English and then another qualification - and that this would help him if he returned to India and established his own business. The applicant said his family background was in agriculture, but he and his wife could easily start a business in a different field in India, such as a school, which the applicant could promote and market in the area. It would be better if he had English skills as this would enhance the reputation of such a business. In response to the Tribunal's query, the applicant said that his wife spoke very good English but he wanted to help her and if he did not learn English, he would be dependent on her all his life.

8. It is apparent that the Tribunal, when making its decision, had regard to the applicant’s oral and documentary evidence and the factors specified in Direction 53.  In relation to the applicant’s circumstances, the Tribunal stated:

   28.  The Tribunal notes that the applicant has his parents, 3 sisters and 1 brother in India. In Australia, he has his wife and his cousin, though they are temporary residents.  It further notes that the applicant previously worked in the family business as a truck driver and could return to this employment. The Tribunal would normally consider the fact that the majority of the applicant's family is in India, and that he would potentially rejoin the family business, would be an incentive for him to return there at the conclusion of his study in Australia. However, the Tribunal considers that this assumption is undermined by the applicant's evidence that his brother has taken over his role in the family business. Moreover, the fact that the applicant has now spent almost 6 years in Australia without having returned to India suggests that his family ties there are not a significant incentive for him to return there at the conclusion of his studies.

9. In relation to the applicant’s immigration history, the value of the course to his future, and other relevant matters, the Tribunal said:

   30. The Tribunal has concerns about the fact that the applicant has resided in Australia for almost 6 years before enrolling in any course in his own right, despite there being no apparent barrier to him studying English in that period (albeit possibly a shorter course than the ones he is presently enrolled in), should he genuinely have wished to do so. The Tribunal acknowledges that the applicant indicated that he did not know whether he had permission to do so while a dependent on his wife's subclass 572 visa and said that he did not think that he did. The Tribunal also notes his evidence that his wife was the educated one and took care of all visa-related paperwork. Nevertheless, it considers that his lack of knowledge on this point to be inconsistent with his assertion that he genuinely wanted to study here. The Tribunal also has concerns about the applicant's inability to provide any details of the course(s) he is enrolled to study, or to coherently explain why he could not pursue an English course in India, or how learning English would assist him on his return to India. The Tribunal found his evidence that completing an English course in Australia would assist him in the family business (in which he drove trucks) in India, or in any business he set up with his wife in India (given she is fluent in English), to be vague and general in nature. The Tribunal did not find the applicant's explanation of the benefits of the courses in which he is enrolled for his career prospects in India to be plausible or persuasive.

10. Having considered the applicant’s circumstances, immigration history, and other matters that it considered relevant, the Tribunal was not satisfied that the applicant intended to genuinely stay in Australia temporarily, and ultimately affirmed the decision of the delegate not to grant the visa.

11. The applicant filed an application in this Court for judicial review of the Tribunal on 15 October 2015.  In that application, the applicant set out his grounds for review as follows:

    1. I am not satisfied with decision made by AAT.

    2. I believe there are strong grounds that my visa should not be refused.

    3. I came in Australia April 2009. I want to learn English.  Even till not I could speak and write English.  Anywhere I am always going. I am always consider interpreter to translate. So for me english is more important. So I really want to learn and study in English.

12. The matter was first listed in the Court for final hearing on 17 July 2017.  However, the applicant failed to attend at Court, and the proceedings were dismissed due to his nonappearance.  On 19 July  2017 the applicant filed an application in a case seeking the following orders:

    1. The facts of case to be considered that were dismissed on hearing date 17-07-2017 pursuant to rule 13.03(1)(c) of Federal Circuit Court Rules 2001.

    2. Pursuant to cl 570.223(1)(a) of schedule 2 to the Regulations, I meet the Genuine Temporary Entrant criteria to stay in Australia to study English course.

    3. Pursuant to sec 359AA, I have no adverse information against me at present as previously in National Police check in July 2014.  I can provide updated Police Check.

    4. I see to order from the court to give me a hearing to present my case and facts of the case in relation to my federal application vs minister for immigration decision.

13. This application was supported by an affidavit also filed on 19 July 2017.  It seems that the applicant was confused as to which was the correct courtroom, and by the time he attended at court the case had been dismissed.  The matter came back before the court on

    
    

    7 September 2017.  The applicant attended on this day and was assisted by an interpreter. 

14. At this hearing it became apparent that the Tribunal had made findings that the applicant had been in Australia for nearly six years before deciding to enrol in an English course: see [30] of the decision.  However, the evidence before the Tribunal showed that the applicant had, in fact, been in Australia for only four and a half years before enrolling in a course of study in October 2013.  As this appeared to found an arguable point, the matter was reinstated and leave was granted to the applicant to add a further ground of review, namely, that the Tribunal erred in law in proceeding on the basis that he had been in Australia for almost six years before enrolling in any course in his own right when the evidence before the Tribunal was that he sought a student visa in 2013 after arriving in 2009. 

15. As the applicant is unrepresented, I adjourned the application to allow him and the first respondent to file and serve any further written submissions in light of this new ground.  The applicant did not file any written submissions.  The applicant did produce some further written submissions today which I have marked Exhibit ‘1’. 

16. I turn now to consider the grounds for review.

17. The grounds for review set out in the application do not show a basis for judicial review of the decision.  The substance of the grounds is that the applicant doesn’t agree with the Tribunal’s decision and seeks to have this court review the decision of the Tribunal on the merits. 

18. As set out above, it is clear that the Tribunal offered the applicant a proper opportunity to appear before the Tribunal and place relevant evidence before the Tribunal.  It is clear that the Tribunal has given the applicant a real hearing. 

19. Indeed, on the first occasion the Tribunal allowed the applicant’s application and remitted the matter to the delegate to determine again.  The applicant has not made out any of his generalised grounds for judicial review. 

20. With respect to the ground identified at the reinstatement hearing, it is clear that the Tribunal made a mistake of fact in saying that the applicant had been here six years before enrolling rather than four and a half years.  This error of fact did not go to whether or not the Tribunal had jurisdiction to decide the case.  Rather, it was one of the many facts and circumstances the Tribunal had to consider in making its ultimate decision.  As a result, I am not persuaded that this is a jurisdictional fact. 

21. I am mindful that it is important that the Tribunal have regard to the evidence before it.  I take into account that the Tribunal must have regard to and consider the evidence before it:  see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 and similar cases.

22. In this case the error of fact is objectively a minor one.  On any version, a number of years passed between when the applicant first came to Australia and when he decided he wished to learn English.  It is clear that this was a mistake by the Tribunal rather than a failure to consider the evidence generally.  It is also clear that it relates to only a very small aspect of the overall considerations of the Tribunal.  The Tribunal refers to other significant matters that go to whether or not the applicant is a genuine student.  For example, the applicant appeared to lack knowledge of his enrolment.  The applicant appeared to be unable to coherently explain why he could not pursue an English course in India nor how learning English would assist him when returning to India.  The applicant was vague and very general in his answers trying to explain why English would assist him in his business in India.  The Tribunal found that his explanations of the benefits of his proposed courses to him in India were implausible. 

23. When taking the reasons as a whole, I am not persuaded that this error by the Tribunal is of such significance that it can be categorised as a jurisdictional error. 

24. In these circumstances, I must therefore dismiss the application. 

    [Further argument ensued]

25. In this matter the Minister has been successful.  Costs ordinarily follow the event.  The amount sought is less than scale. I therefore order the applicant pay the first respondent’s costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  9 May 2018