Singh v Minister for Immigration - [2020] FCCA 1296

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
Jan v Minister for Home Affairs [2019] FCA 1837
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1296
Decision Date: 29 May 2020

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration's decision to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa. The AAT had found that the applicant was not a genuine temporary entrant.

The primary legal issue before the Federal Court was whether the AAT had made an error of law in its determination that the applicant failed to satisfy the criteria for a genuine temporary student. This involved an assessment of whether the AAT's findings were supported by the evidence before it and whether the correct legal principles were applied in reaching its conclusion.

Justice Kendall found that the AAT had not made an error of law. The Tribunal had properly considered the applicant's circumstances, including their stated intentions, financial capacity, and ties to their home country, in assessing whether they were a genuine temporary student. The AAT's conclusion that the applicant had not established they were a genuine temporary entrant was open to it on the evidence presented. Consequently, the application for judicial review was dismissed.

Orders