Singh v Minister for Immigration
[2020] FCCA 1296
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1296 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – decision of the Administrative Appeals Tribunal – show cause hearing – where applicant found not to be a genuine temporary student – no arguable case of error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13 Migration Act 1958 (Cth), ss.476, 499 Migration Regulations 1994 (Cth), cl.500.212 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | BOBANBEER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 343 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 21 May 2020 |
| Date of Last Submission: | 21 May 2020 |
| Delivered at: | Perth |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 343 of 2019
| BOBANBEER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 4 August 2019. That decision affirmed a decision of a delegate of the first respondent (the “Minister”) to not grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). The matter was listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). To succeed before this Court, the applicant must satisfy the Court that he has “a reasonably arguable case” that the Tribunal fell into “jurisdictional error”.
The Court had before it the applicant’s application for judicial review dated 29 August 2019, an affidavit from the applicant affirmed 28 August 2019, a Court Book (“CB”) numbering 96 pages (marked as Exhibit 1), correspondence confirming service of the Court Book and the Minister’s Submissions on the applicant (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 28 April 2020.
The applicant appeared without legal representation. The Court confirmed with him that he had received a copy of the Court Book and a copy of the Minister’s written submissions.
This matter was heard on 21 May 2020 and proceeded by way of teleconference as a result the current health protocols adopted by the federal courts. The applicant did not request an interpreter. The Court is satisfied that the hearing provided a meaningful opportunity for the applicant to engage with the Court.
Background
The applicant is a citizen of India. He first arrived in Australia on 17 June 2015 as the holder of a student visa (CB 49). He was subsequently granted a further student visa (CB 49).
On 14 February 2018, the applicant applied for the visa the subject of this application (CB 1-32). The applicant indicated that he intended to undertake a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management (CB 26-17).
On 13 March 2018, the Minister’s Department wrote to the applicant and asked him to provide further information about whether he satisfied the “genuine temporary entrant criterion” specified in cl.500.212 of Sch.2 to the Migration Regulations 1994 (the “Regulations”) (CB 34-40). No response was received from the applicant.
On 26 April 2018, the delegate refused to grant the visa (CB 47-53). The delegate was not satisfied that the applicant met the “genuine temporary entrant” criterion specified in the Regulations.
On 8 May 2018, the applicant applied for review of the delegate’s decision at the Tribunal (CB 54-55).
On 17 May 2019, the Tribunal invited the applicant to provide information that demonstrated that he was enrolled in a course of study and that he was a genuine student entrant (CB 62-69). The applicant was asked to provide that information by way of a “questionnaire”.
The applicant provided a completed questionnaire to the Tribunal on 30 May 2019. Attached to that correspondence was a confirmation of his enrolment in a certificate IV in Commercial Cookery and a Diploma of Hospitality Management at New England College, Perth (CB 70-81). Within the questionnaire, the applicant indicated that he consented to the Tribunal determining the application without an invitation to attend a hearing (CB 71).
No face to face hearing was held and, on 4 August 2019, the Tribunal affirmed the delegate’s decision to refuse the visa (CB 84-95).
Tribunal’s Decision
The Tribunal’s decision is 12 pages in length and 37 paragraphs long. It is detailed and well written. The Minister’s written submissions (at [13]-[20]) accurately summarise the Tribunal’s decision in detail. The Court adopts that summary as its own. With some additions, that summary provides as follows.
The Tribunal outlined the background to the application and noted that the applicant consented to the Tribunal deciding the review without a hearing (at [1]-[4]). The Tribunal then outlined the legislative criteria and the matters in Direction 69 which were relevant to the review (at [6]-[9]).
In relation to the circumstances in the applicant’s home country, the Tribunal:
a)recorded that the applicant was unmarried and had no dependent family members or assets in India (at [11]-[13]);
b)noted that the applicant had only returned to India once (for two and a half weeks) since he arrived in Australia in June 2015 (at [14]);
c)noted that the applicant had offered little information about his initial decision to study in Australia and that there was no evidence before the Tribunal that he had researched whether his proposed courses were available in India (at [15]);
d)noted that the applicant did not offer any explanation about why he abandoned those units (at [16]-[19]);
e)found that the applicant’s failure to respond to the Department’s request for information dated 13 March 2018 was not consistent with him being a genuine student or genuine temporary entrant (at [17]-[18]);
f)noted that in the questionnaire submitted to the Tribunal, the applicant did not mention his prior enrolment in a Diploma of Leadership and Management and an Advanced Diploma of Management (at [19]); and
g)found that the applicant’s reasons for not undertaking a cooking course in India appeared to be vague and speculative (at [20]).
The Tribunal then stated:
21. The Tribunal is not satisfied that the applicant has demonstrated any reasonable reasons for undertaking his current and proposed courses of study in Australia. Neither is the Tribunal satisfied that the applicant has demonstrated any ties to his home country which present as a significant incentive for him to return to his home country.
22. Overall, this criterion weighs against the applicant
In considering the “applicant’s potential circumstances in Australia”, the Tribunal wrote:
23.Information recently provided by the applicant shows that he completed a Diploma in Human Resources Management in January 2018, very shortly before he made the current visa application. It is clear from above, that for reasons which the applicant has not seen fit to explain to the Tribunal at some time after the lodgement of his visa application, the applicant elected not to proceed with those proposed courses. The Tribunal does not know at what point in time this occurred.
24.What is clear to the Tribunal is that based on the information recently provided by the applicant, the applicant appears to have undertaken no study between January 2018 and August 2018 at which time he took out his current enrolments, which appear to which appear to bear, at best, a tenuous relationship to his previously stated intention.
The Tribunal then:
a)found that the fact that the applicant did not pursue the Leadership and Management courses suggested that he was disingenuous in his desire to undertake them and he likely enrolled in them for the purposes of securing a visa and maintaining residence in Australia (at [25]);
b)considered that the relevant study gap was not consistent with the applicant being a genuine student (at [26]);
c)found that the applicant’s belated enrolment in the current courses, which bore little resemblance to his previous studies, also suggested that he intended to maintain residence in Australia (at [27]); and
d)observed that the applicant had not disclosed what his annual income was or provided any explanation as to how he had been able to maintain himself. This lack of full and frank disclosure was of concern to the Tribunal (at [28]-[29]).
Overall, the Tribunal considered the applicant’s circumstances in Australia weighed against granting the visa (at [30]).
When considering the value of the applicant’s course to the applicant’s future, the Tribunal stated (at [31]):
The applicant has changed his study streams regularly and consistently since coming to Australia. This raises concerns on the part of the Tribunal as to whether the applicant is serious about pursuing any specific study stream or career path. The applicant has stated that in the near future he wants to switch to a full-time cooking job, and in the long run he would like to operate or run a successful restaurant business. The applicant aspirations are very broad and non-specific and do not demonstrate that any detailed consideration has been given to his future career. In any event, in the light of the matters above, the Tribunal gives the applicant’s claims regarding his future career little weight. The Tribunal is unable to find that the applicant’s current and proposed courses of study offer any particular value to his future employment prospects.
In relation to the applicant’s immigration history, the Tribunal took into account that the applicant did not respond to a previous request for information from the delegate and that he had provided little by way of explanation for his regular changes of study stream. The Tribunal was concerned that the applicant’s presence in Australia was motivated by factors other than study and that his continuing presence in Australia was not genuinely motivated by a desire to study (at [32]). This factor also weighed against the applicant being given the visa he was seeking (at [33]).
The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, he did not meet cl.500.212(a). In the circumstances, the Tribunal affirmed the decision under review (at [34]-[37]).
Proceedings in this Court
The applicant’s application for judicial review contains 5 “grounds of review” as follows:
1. On 14 February 2018, I applied for the student visa (subclass 500) to the Department of Home Affairs.
2. On 26 April 2018, the Department of Home Affairs refused my student visa application (subclass 500) on the basis of my poor academic record and not satisfying the genuine temporary entrant criteria. The Department was not satisfied that I genuinely intended to stay in Australia temporarily for my academic purposes.
3. I applied for the review of the Department of Home Affairs decision with the Administrative Appeals Tribunal (AAT).
4. On 4 August 2019, the Administrative Appeals Tribunal (AAT) affirmed the decision made by the Department of Home Affairs.
5. The Administrative Appeals Tribunal (AAT) did not consider all the factors in their decision and made a jurisdictional error in making the decision. I want to seek a review of the decision by the Honourable Federal Circuit Court of Australia.
In the applicant’s affidavit affirmed 28 August 2019, the applicant repeats these grounds of review.
Despite an opportunity to provide an amended application, any affidavit material and an outline of submissions, the applicant did not file any further materials.
The applicant appeared before the Court without legal representation. Notwithstanding r.44.13 of the Rules (which the Court notes can be dispensed with pursuant to r.1.06 of the Rules), the Court allowed the applicant to elaborate on, and further particularise, the applicant’s grounds of review. The applicant was advised that he could raise any concerns he had with the Tribunal’s decision. This is now the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that in the context of a show cause application, he had to satisfy the Court that he had a reasonably arguable case that the Tribunal had made “a material error”. The Court explained that the Court can only assess whether it is at least arguable that it was jurisdictional error in the Tribunal’s decision. The Court then explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the student visa he now seeks: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant was asked to explain in his own words what he felt the Tribunal “did wrong”.
The applicant explained that he had provided everything that was requested to the Tribunal and gave the Tribunal everything necessary for him to be granted the visa. Despite that, he explained, the visa was still refused.
Unfortunately, none of the applicant’s oral submissions identify any arguable case of jurisdictional error. Rather, they suggest that the applicant disagrees with the Tribunal’s decision that it did not grant him the visa or appears to relate to the delegate’s decision (which the Court has no jurisdiction to review: the Act, s.476(2) and (4)).
In these circumstances, the Court must assess whether the applicant’s grounds of review identify any error of the sort this Court can address or whether there is anything else on the face of the Tribunal’s decision that raises concerns: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Consideration
Grounds 1-4
Grounds 1-4 are not grounds of review. They detail factual matters that are already reflected in the Court Book. They do not identify jurisdictional error.
Ground 1-4 are, accordingly, dismissed.
Ground 5
Without particulars, it is difficult for the Court (and the Minister) to gauge what the applicant is saying when he says that the Tribunal “did not consider all the factors in their decision and made a jurisdictional error”.
The Court has considered whether it can on its own accord identify any “factor” that was not considered in the Tribunal’s decision.
In issue in this case is cl.500.212 of the Regulations which provides as follows:
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
…
By virtue of s.499 of the Act, the Tribunal is also required to have regard to Direction 69. It is noted that the applicant was provided a copy of Direction 69 with the invitation to comment (CB 65-69).
The Tribunal, relevantly, set out cl.500.212 in full (at [7]). It referred to Direction 69 as follows:
8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
• the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
• the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
• if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal was clearly cognisant that it had to take these matters into account.
What remains is for the Court to determine whether the Tribunal properly considered all of the factors it was necessary to consider.
The Court is conscious that each of the factors in Direction 69 need not be expressly addressed. It is enough that an inference can be drawn that the Tribunal did not refer to a particular matter because the Tribunal did not consider the matter to be relevant: Jan v Minister for Home Affairs [2019] FCA 1837 at [27]-[28].
The Court is satisfied that the Tribunal considered all of the relevant factors. The Tribunal expressly used the headings in Direction 69 as relevant to the determination of the genuine temporary entrant criterion. The Tribunal, to the extent that it was able to do so on the materials before it, considered the individual factors that were relevant to its assessment.
Here:
a)when considering the applicant’s circumstances in his home country, the Tribunal had regard to the applicant’s lack of explanation for not undertaking the course in India, the extent of any family ties and the reasons for pursing his course of study. All of these matters were factors to consider. The Tribunal also referred to the applicant’s economic circumstances at a later point in its reasons. While the Tribunal made no reference to military service or political and civil unrest, the applicant did not provide any indication that this was relevant. Hence, it can be inferred the Tribunal considered the same;
b)when considering the applicant’s potential circumstances in Australia, the Tribunal used the language of Direction 69 when considering the applicant’s evidence. For example, it indicated that it considered that the enrolments were undertaken to maintain residence in Australia and not for a genuine purpose;
c)when considering the value of the course to the applicant’s future, the Tribunal referred to the applicant’s change of study paths and his broad and unspecific career plan. This clearly links to the matters listed in Direction 69. The applicant provided no evidence regarding the proposed remuneration he expected to receive on return. Hence, the Tribunal can be taken not to have considered this not to be have been relevant; and
d)in assessing the applicant’s immigration history, the Tribunal had regard to the applicant’s “study gap”, his previous interactions with the Department and his regular and unexplained change of study. Again, these are matters identified in Direction 69.
The weight the Tribunal placed on these factors was a matter for the Tribunal.
The Court is satisfied that the Tribunal properly considered all of the relevant factors and, furthermore, all of the evidence that the applicant provided in support of his claim to be a genuine temporary entrant.
The Tribunal’s decision is detailed and analytical in its assessment of the evidence. The Court is otherwise satisfied that no arguable case arises from the materials.
The sole remaining ground of review is without merit.
Conclusion
On the basis of the above, the application is dismissed pursuant to r.44.12(1)(a) of the Court’s Rules.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 29 May 2020
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