Singh v Minister for Immigration

[2017] FCCA 1153

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1153

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Indian citizen – student visa – whether genuine temporary entrant – whether relevant matters considered – whether impermissible merits review sought – whether decision unreasonable – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 360, 360A, 476, 499

Migration Regulations 1994 (Cth), Sch.2, cll. 572.222, 572.223

Cases cited:

Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Singh v Minister for Immigration & Border Protection [2016] FCA 74
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300

Applicant: GURPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 233 of 2016

Judgment of: Judge Antoni Lucev

Hearing date: 29 May 2017

Date of Last Submission: 29 May 2017

Delivered at: Perth

Delivered on: 31 May 2017

REPRESENTATION

Counsel for the Applicant: In person (with the assistance of an interpreter)

Counsel for the First Respondent: Mr E Solana

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 233 of 2016

GURPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a judicial review application (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”). Gurpreet Singh (“Mr Singh”) seeks to have the Court judicially review a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 29 April 2016. The Tribunal Decision is at Court Book (“CB”) 107-112. The Tribunal Decision was to affirm a decision by a delegate (“Delegate’s Decision” and Delegate” respectively) made on 14 December 2015 not to grant the applicant a Student (Temporary) (Class TU) visa (“Student Visa”): CB 112 at [34].

Background prior to the Tribunal Decision

1. The background to the matter prior to the Tribunal Decision is as follows:

   a)Mr Singh is a citizen of India who made an application to the Department of Immigration and Border Protection (“Department”) for the Student Visa, on 30 October 2015: CB 1-22;

   b)on 10 November 2015, the Department wrote to Mr Singh requesting further information in relation to, amongst other things, the genuine temporary entrant criterion and further requested the applicant provide evidence of any current enrolment in studies: CB 60-74;

   c)on 14 December 2015, the Delegate refused to grant Mr Singh the Student Visa on the basis that there was no evidence that he was enrolled in an acceptable course of study, and that Mr Singh did not therefore satisfy cl.572.222 of Sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 80-83;

   d)on 22 December 2015, Mr Singh lodged an application for review of the Delegate's Decision with the Tribunal: CB 84-85;

   e)on 30 March 2016, the Tribunal invited Mr Singh to appear before it, to give evidence and present arguments, at a hearing on 28 April 2016 (“Tribunal Hearing”),  and requested that Mr Singh provide a copy of any current certificate of enrolment in studies required for the grant of the Student Visa: CB 90-93;

   f)on 26 April 2016, Mr Singh provided the Tribunal with confirmations of enrolment in courses in a Diploma of Leadership and Management (from June 2016 to March 2017) and an Advanced Diploma of Leadership and Management (from March to December 2017) at New England School of English Pty Ltd trading as New England School of English, New England College Perth: CB 96-99; and

   g)Mr Singh appeared at the Tribunal Hearing which took place on 28 April 2016, together with his registered migration agent: CB 100-103 and CB 108 at [7].

Tribunal Decision

1. The Tribunal considered the claims and evidence presented to it by Mr Singh and:

   a)affirmed the Delegate’s Decision: CB 107 and CB 112 at [34];

   b)identified that the relevant issue for consideration in the matter was the satisfaction of cl.572.223 of Sch.2 to the Migration Regulations (the genuine temporary entrant criterion): CB 110 at [22], and that cl.572.223(l)(a) of Sch.2 to the Migration Regulations relevantly requires that the applicant satisfy the following criteria:

   "(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

   (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."

   c)found that Mr Singh had not provided clear or adequate reasons for why he wished to study the proposed courses, how the courses fit within his career plan, or would lead to further remuneration in India or another country: CB 111 at [26];

   d)found that there were significant gaps in Mr Singh’s studies from October 2012 until May 2014, and from September 2015 until June 2016: CB 111at [27];

   e)noted that Mr Singh had already completed a Diploma of Business, a Diploma of Marketing, and a Diploma in Management: CB 110 at [18], and was not satisfied that, if the applicant were to complete the courses for which he was now enrolled: see [2(f)] above,  that it would not result in a duplication of the same or similar skills: CB 111 at [28];

   f)having considered Mr Singh's immigration history in Australia and his situation in India, the Tribunal was not satisfied that Mr Singh had a strong incentive to return to India, and in that regard referred to Mr Singh 's evidence that he had been working in Australia: CB 111 at [30];

   g)found that Mr Singh had undertaken, and proposed to undertake, “relatively short and inexpensive courses for the purpose of maintaining ongoing residence and employment in Australia”: CB 111 at [32]; and

   h)considered all of Mr Singh's circumstances, and was not satisfied that Mr Singh intended genuinely to stay in Australia temporarily, and therefore found that he did not meet the requirements of cl. 572.223(l)(a) of the Migration Regulations: CB 111 at [32].

Grounds for Judicial Review Application

1. The grounds of the Judicial Review Application (copied as quoted from the Judicial Review Application without amendment) are as follows:

   I am not satisfied with the decision of AAT & Department of Immigration & Border protection

   I have attached my claim in a separate copy

   …

   I want to dispute over the conduct of Administrative Appeal Tribunal in regards to my Student visa review application. My application was first refused by the immigration department and then by AAT department as there were concerns to Department of Immigration & Citizenship that I don't meet the criterion of Migration Regulations clause 572.222:

   (1) Except if subclause (2) applies or if the application was made on form 157E. the applicant gives

   to the Minister a certificate of' enrolment relating to the applicant undertaking a course of study

   the provider of which is not a suspended education provider (an acceptable course).

   (2) If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently,

   the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course.

   (3) If the application was made on form 157E, the applicant is enrolled in an acceptable course.

   Department refused my application on the grounds that I don't meet the Student visa criteria so the application refused on 14th Dec 2015.

   Then I applied to AAT to review immigration department decision but they again affirmed the decision on 29th April 2016. That time I did provide my eCoEs for further studies which were asked by Department of Immigration & Citizenship. But AAT refused on the basis that I don't meet Clause 572.223(1):

   (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

   (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;

   I am very depressed from the decision of AAT. Member didn't consider my circumstances.

   I am a genuine student and my circumstances beyond my control lead me to delay in starting my studies as I thought I don't have visa so I can't study. The chosen courses are not same which I did before they are different as education provider didn't offer any exemptions in these courses because of my previous studies. I wish to develop my skills at further level as I have worked in a shop as an assistant but I wish to acquire knowledge which leads me to upper level.

   My family is in India and I have full rights to go back to India, even though I don't have any property on my name there but I am the successor of my father property by law. I am always in link with my family in India and my father always supports my study expenses. I really wish to study and will go back after finishing my chosen courses.

   Tribunal Member has concerns that I have chosen inexpensive study but in Australia all diploma and advanced diploma level courses have same fees, but I only choose these courses as they were relevant to my previous studies and work field.

   I request the "Federal Circuit Court" to exercise its powers and to reverse the decision of Administrative Appeal Tribunal.

Consideration

1. The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

2. The Tribunal Decision demonstrates that the Tribunal considered Mr Singh’s circumstances having regard to the factors in Direction 53, a direction made under s.499 of the Migration Act, and made findings in relation to the factors that had practical relevance to Mr Singh's circumstances and evidence: CB 110-111 at [23], as it was required to do: Singh v Minister for Immigration and Border Protection [2016] FCA 74 at [28] per Reeves J. Specifically, the Tribunal considered:

   a)Mr Singh's academic history and made findings in relation to the considerable gaps in his studies in Australia: CB 111 at [25] and [27];

   b)Mr Singh's circumstances in his home country, including his family and personal ties to India: CB 109 at [8] and CB 111 at [30];

   c)the relevance of the proposed courses to Mr Singh’s career plans, and found that Mr Singh had failed to provide clear or adequate reasons for undertaking the proposed courses: CB 110 at [18]-[19] and CB 111 at [25]-[26];

   d)Mr Singh's potential circumstances in Australia: CB 109 at [14] and CB 111 at [30]-[31]; and

   e)Mr Singh's immigration history: CB 109 at [15] and CB 111 at [30].

3. To the extent that the particulars to the Judicial Review Application contend that the Tribunal failed to comply with s.360 of the Migration Act no such error is revealed. The Court notes that the Delegate refused the Student Visa on the basis that Mr Singh failed to provide evidence of enrolment in an acceptable course of study pursuant to cl.572.222 of Sch.2 to the Migration Regulations, whereas the Tribunal did not accept that Mr Singh intended genuinely to stay in Australia temporarily: cl.572.223(l)(a) of Sch.2 to the Migration Regulations. The Tribunal complied with the relevant requirements of the Migration Act because:

   a)pursuant to ss.360 and 360A of the Migration Act, the Tribunal invited Mr Singh to appear before it to give evidence and present arguments at the Tribunal Hearing, at which the applicant was assisted by his migration agent: CB 100-103 and CB 108 at [7];

   b)the Tribunal put the applicant on notice, at the Tribunal Hearing, that the issue for consideration was whether Mr Singh was a genuine temporary entrant as a student and whether he met cl. 572.223(1)(a) of Sch.2 to the Migration Regulations: CB 109 at [15];

   c)the Tribunal explained the application of Direction 53 to Mr Singh: CB 109 at [17], and provided Mr Singh with the opportunity to address both the factors in Direction 53 and the Tribunal’s concerns as conveyed to Mr Singh at the Tribunal Hearing arising from the matters the Tribunal had to consider under Direction 53: CB 109-110 at [15]-[19],

4. The Court considers that the Tribunal discussed with Mr Singh aspects of his evidence that the Tribunal considered may be important to the Tribunal Decision and upon which the Tribunal’s factual findings might be made: CB 109-110 at [11]-[19], and that the Tribunal took proper and adequate steps to identify the determinative issues arising in relation to the Tribunal Decision, and in particular whether Mr Singh satisfied the criteria in cl.572.223(1)(a) of Sch.2 to the Migration Regulations: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [33]-[35] and [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. In the circumstances no failure to comply with s.360 of the Migration Act is established.

5. To the extent that ground 1 of the Judicial Review Application complains about the Delegate’s Decision this Court has no jurisdiction to review the Delegate’s Decision, which is a primary decision: Migration Act, s.476(2)(a) and (4). Further, and in any event, it is well-established that if the Tribunal Decision is not flawed, it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J.

6. To the extent that the particulars of the Judicial Review Application as set out at [4] above take issue with the Tribunal’s description of the courses undertaken by the applicant as “relatively short and inexpensive courses for the purpose of maintaining ongoing residence and employment in Australia”: see [3(g)] above citing CB 111 at [32], that is a factual matter within the remit of the Tribunal, and does not give rise to jurisdictional error, even if it is an erroneous description of the courses undertaken (and the Court is not satisfied in any event that it is an erroneous description when regard is had to the nature and cost of the courses concerned: see [2(f)] and [3(e)] above; and CB 4 at items 31- 32, CB 25-32, CB 35-43, CB 74 (which includes cancelled courses) and CB 96-99).

7. It cannot be said that the Tribunal identified a wrong issue, asked the wrong question, ignored relevant material or relied on irrelevant material. In order to grant the Student Visa the Tribunal had to be satisfied that the relevant criteria under cl.572.223(1)(a) of Schedule 2 to the Migration Regulations had been met, and if they were not met, the Tribunal could not be so satisfied, and could not therefore grant the applicant the Student Visa: Migration Act, s.65(1). In this case those criteria were not met. In the circumstances, the Tribunal’s exercise of power was not affected by any excess of, or failure to exercise, the authority or powers given to it under the Migration Act and Migration Regulations. There was, therefore, no jurisdictional error in the Tribunal Decision.

8. The grounds of the Judicial Review Application therefore constitute no more than an impermissible request for the Court to engage in merits review based on Mr Singh’s dissatisfaction with the findings in the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568’ (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ and Toohey, McHugh and Gummow JJ.

Conclusion and order

1. For the reasons set out above, the Court has concluded that there is no jurisdictional error in the Tribunal Decision. It follows that there will be an order dismissing the Judicial Review Application.

2. The Court will hear the parties as to costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Associate: 

Date:  31 May 2017