Singh v Minister for Immigration

[2016] FCCA 797

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 797

Catchwords:
MIGRATION – Review of decision of the former Migration Review Tribunal – refusal of a temporary student visa – applicant found not to be enrolled in a course of study and found not to be a genuine temporary entrant – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.360A

Migration Regulations 1994 (Cth)

Chen vMinister for Immigration [2011] FCAFC 56
Minister for Immigration v Khadgi (2010) 190 FCR 248
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration v SZMDS (2010) 240 CLR 611
Minister for Immigration v SZNPG (2010) 115 ALD 303
NABE v Minister of Immigration (No 2) (2004) 144 FCR 1
NAHI v Minister for Immigration [2004] FCAFC 10
SZBEL v Minister for Immigration (2006) 228 CLR 152
Tran v Minister for Immigration [2004] FCAFC 297

Applicant: TARANJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1890 of 2014

Judgment of: Judge Driver

Hearing date: 11 April 2016

Delivered at: Melbourne

Delivered on: 11 April 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr Cunynghame

ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. The application filed on 16 September 2014 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5, 800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1890 of 2014

TARANJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 27 August 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Singh, a temporary student visa.  Background facts relating to this matter are conveniently set out in the Minister’s outline of legal submissions filed on 4 April 2016. 

Background

1. Mr Singh is a citizen of India. On 8 June 2011 Mr Singh was granted a subclass 572 Student Dependant visa as a dependant of his then wife, Kamelpreet Kaur.[1] On 28 November 2012, Mr Singh lodged an application for a Subclass 572 visa as the primary applicant.[2]

   [1] Court Book (CB) 4

   [2] CB 1

2. Upon request for further information from the Department,[3] Mr Singh provided a statement of purpose in support of his application setting out his reasons for undertaking the proposed course of study.[4] In summary, he stated that he wanted to set up a career in Hospitality and the course would assist him to interact with different people from diverse cultures, which would help him to “understand the value of a global economy”.[5]

   [3] CB 22-27

   [4] CB 30

   [5] CB 30

3. Following a request from the Department for clarification about the status of his relationship with Ms Kaur,[6] Mr Singh confirmed that he had been separated from Ms Kaur for over one year, and that he applied for a divorce from Ms Kaur on 21 November 2012.[7]

   [6] CB 36

   [7] CB 39

4. On 6 March 2013, a delegate of the Minister (delegate) refused to grant the Visa on the basis that Mr Singh did not satisfy (the then) clause 572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).[8] The delegate was not satisfied that Mr Singh had complied substantially with a condition of his last substantive visa, specifically condition 8516. Condition 8516 required Mr Singh to continue to be a ‘member of the family unit’ of the primary visa holder, Ms Kaur. However, the delegate found that Mr Singh was not in a relationship with Ms Kaur for a period of more than 12 months while holding the subclass 572 Student Dependant visa.[9]

   [8] CB 54-56

   [9] CB 55

Tribunal's proceedings

1. On 18 March 2013, Mr Singh applied to the Tribunal for review of the delegate’s decision.[10]

   [10] CB 57-66

2. On 9 July 2014, the Tribunal wrote to Mr Singh to invite him to appear at a hearing scheduled for 13 August 2014 to give evidence and present arguments.[11] In this invitation, the Tribunal requested Mr Singh to provide information about his proposed course of study and any previous studies in Australia,[12] and also enclosed a copy of Direction No 53.

   [11] CB 72-74

   [12] CB 73

3. On 13 August 2014, Mr Singh appeared at the Tribunal hearing.[13] Mr Singh did not provide any of the material that he was invited to provide in the hearing invitation letter or any further documents in support of his application.

   [13] CB 78-80

Tribunal decision

1. On 27 August 2014, the Tribunal affirmed the delegate’s decision to refuse the Visa application on the basis that Mr Singh did not meet the criterion in clause 572.223(1)(a).[14] A letter was sent to Mr Singh on 29 August 2014 enclosing the Tribunal’s decision.[15]

   [14] CB 85-89

   [15] CB 84

2. Clause 572.223(1)(a) of Schedule 2 to the Regulations (the genuine temporary entrant criterion) required that the following criteria be satisfied at the time of the decision:

   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.

3. In reaching a decision with respect to clause 572.223(1)(a), the Tribunal was required to have regard to the relevant Ministerial direction given in relation to that clause.[16]  Direction No 53 sets out a number of “factors” relevant to clause 573.223(1)(a)(i)-(iv), which the Tribunal “must” have regard to.

   [16] Direction No 53

4. The Tribunal expressly stated that it had regard to the “Minister’s Direction” in reaching the conclusion that the decision under review should be affirmed.[17]

   [17] CB 88 [15]

5. In its findings, the Tribunal stated that the “complied substantially” criteria was repealed on 22 March 2014 and the relevant issue at clause 572.223(1)(a) was the genuine temporary entrant requirement.[18]

   [18] CB 86 [4]-[6]

6. The Tribunal found that Mr Singh was currently not enrolled in a registered course, and did not have a current offer of enrolment. Although this alone was sufficient for the application to fail, the Tribunal proceeded to assess the issue identified at clause 572.223.[19] The Tribunal clarified that Mr Singh had commenced and completed a Diploma of Business course from September 2013 to March 2014.[20]

   [19] CB 87 [9]-[10]

   [20] CB 87 [13]; see also CB 77

7. In relation to Mr Singh’s evidence that he did not wish to return to India “empty handed”, the Tribunal did not accept that Mr Singh’s Diploma of Business was “worthless” as it appeared relevant to Mr Singh’s past employment.[21]

   [21] CB 88 [14]-[15]

8. The Tribunal noted Mr Singh’s claim that he wished to study a Certificate IV in Hospitality in order to seek employment as a chef in India. The Tribunal also noted that the course Mr Singh wished to study was a short course of 6 months (up to 18 months if additional options are pursued). The Tribunal considered that Mr Singh had had ample opportunity to undertake the course and complete it in the 5 years he had been in Australia.[22]

   [22] CB 88 [16]

9. The Tribunal formed the view that Mr Singh was using the student visa as a means to remain in Australia. The Tribunal found that Mr Singh was not a genuine applicant for entry and stay in Australia because it was not satisfied that he genuinely intends to stay temporarily.[23]

   [23] CB 88 [16]

10. Based on the evidence before it and taking into account the factors in Direction No 53, the Tribunal was not satisfied that Mr Singh intended genuinely to stay in Australia temporarily.[24] Accordingly, the Tribunal found that Mr Singh did not meet the criterion in clause 572.223(1)(a) and affirmed the decision under review.[25]

    [24] CB 88 [17]

    [25] CB 88 [17]-[18]

Current proceedings

1. These proceedings commenced with a show cause application filed on 16 September 2014.  There are three grounds in that application:

   1.   Tribunal is not satisfied that I am a genuine applicant.

   2.   MRT didn’t consider all of the documents presented by me.

   3.   I hold genuine intentions to study so kindly grant me an opportunity to be able to prove myself.

2. Mr Singh continues to rely upon that application.  He has not taken up the opportunity afforded him by orders made by a registrar on 3 December 2014 for the filing of an amended application or additional evidence.  The application is supported by a short affidavit filed with it which I received as a submission.

3. I invited oral submissions from Mr Singh today.  He has two principle concerns:  the first is that he was unable to convince the Tribunal that he is a genuine student and that he was given incorrect advice by people he consulted in relation to his visa application.  It appears that Mr Singh was labouring under the misapprehension that he did not need to enrol in a course of study in order to receive the student visa he sought.  Mr Singh told me from the bar table that he had consulted a number of people who he describes as lawyers who advised him that he could not enrol until the visa was granted.

4. The Tribunal’s decision record discloses that Mr Singh told the same thing to the Tribunal.  However, in my opinion, it should have been apparent to Mr Singh from the Tribunal’s hearing invitation issued on 9 July 2014[26] that he would need to provide evidence of an enrolment in order to obtain the visa.  The simple fact is that Mr Singh could not qualify for the visa he sought without an enrolment.  Although he had undertaken some study in the lengthy period between his visa application and the Tribunal decision, he did not have a current enrolment at the time of either the Tribunal hearing or decision.

   [26] CB 72 and 73

5. The other issue of concern to Mr Singh is that he was, in his words, suffering from depression at the time of the Tribunal hearing and could not make himself understood.  Mr Singh separated from his former spouse in 2011 and applied for a divorce in November 2012.  He told me from the bar table that the divorce was granted, apparently by this court, in January 2013.  It is understandable that a person would be upset and possibly depressed as a result of a relationship breakdown; however, by the time of the Tribunal hearing on 13 August 2014 some time had passed following the divorce.

6. There is nothing in the evidence before me which is comprised in the court book filed on 20 November 2014 that any medical issue was raised before the Tribunal.  The Tribunal’s decision record discloses what appear to be a normal series of exchanges between the presiding member and Mr Singh.  The Tribunal appeared to see some significance in the breakdown of the relationship and the student visa application. 

7. To the extent that Mr Singh complains that he did not state that his relationship ended in late 2010, it appears that the Tribunal did make an error of fact. By email on 9 January 2013, Mr Singh provided the Department with an invoice for an application for divorce in the Federal Magistrates Court dated 21 November 2012. He stated that he had been “separated from her by more than one year before filing for divorce”. The delegate mistakenly stated that the divorce was filed in November 2011. It appears that this error was carried through by the Tribunal and was the basis for mistakenly finding that Mr Singh had been separated since early 2010. The Tribunal was wrong, as the delegate was wrong, in determining the time when the couple separated, but it appears to me that there was a connection with his student visa application.

8. Mr Singh told me from the bar table this morning that he applied for the student visa within a few days of applying for divorce.  This suggests that, in Mr Singh’s mind, the student visa application was a means of extending his stay in Australia in circumstances where his separation from his former spouse created a difficulty for his earlier visa which expired, in any event, in January 2013.  Notwithstanding the factual error made by the Tribunal, I see no adverse impact on the decision made by the Tribunal.

9. An error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, even though it may have led to an erroneous finding of fact.[27]

   [27] Minister for Immigration v SZNPG (2010) 115 ALD 303 at [28]; Chen vMinister for Immigration [2011] FCAFC 56 at [51]; NABE v Minister of Immigration (No 2) (2004) 144 FCR 1 at 20 [63]

10. The absence of a current enrolment in an acceptable course of study at the time of the Tribunal decision was fatal to Mr Singh’s visa application.  The bulk of the Tribunal’s reasoning related to an additional issue of whether Mr Singh was a genuine student.  In my opinion, the conclusions reached by the Tribunal, while not strictly necessary, were open to the Tribunal on the material before it and no jurisdictional error is indicated.  I otherwise agree with the Minister’s submissions in relation to the grounds of review advanced.

Grounds 1 and 3

1. Mr Singh’s assertions are simply a disagreement with the merits of the Tribunal’s conclusions, which cannot be impugned in this Court. As was stated in NAHI v Minister for Immigration [2004] FCAFC 10 at [10]:

   “ ... the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”[28]

   [28] Gray, Tamberlin and Lander JJ

Ground 2

1. This ground contends that the Tribunal failed to consider some documents provided by Mr Singh. However, it is unclear which documents before the Tribunal Mr Singh alleges that the Tribunal failed to consider. By letter dated 9 July 2014 the Tribunal invited Mr Singh to attend a hearing and present arguments, in accordance with s 360A of the Migration Act 1958 (Cth) (Migration Act). The invitation also requested that any further documents that Mr Singh wished to rely on be provided at least 7 days before the hearing. Mr Singh did not provide any documents in response to the Tribunal’s invitation.

2. The Tribunal set out the relevant background to the matter, and had due regard to the evidence provided by Mr Singh.[29] Further, it was entirely a matter for the Tribunal to determine the weight to be accorded to the evidence and to each of the matters prescribed in Direction No 53.[30]

   [29] In particular, see [13]-[16] of the Tribunal Decision

   [30] Tran v Minister for Immigration [2004] FCAFC 297 [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41

3. In any event, the approach of the Full Court of the Federal Court in Minister for Immigration v Khadgi (2010) 190 FCR 248 at [68] – [69] in respect to the application of Regulation 2.41 of the Regulations is equally applicable to the application of Direction No 53, such that:

   a)The weight to be given to any one factor or group of factors is entirely for the Tribunal, and will vary from case to case;[31] and

   b)It is not essential for the Tribunal to compartmentalise its reasons and to set out those reasons by reference to each criterion specified in Direction No 53.[32]

   [31] Minister for Immigration v Khadgi (2010) 190 FCR 248 at [68]

   [32] Minister for Immigration v Khadgi (2010) 190 FCR 248 at [69]

Further complaint - Error of fact

1. In his application to this Court, Mr Singh has also marked up the Tribunal’s decision with additional comments. At [16] Mr Singh has noted that his certificate of enrolment for a “Diploma of Hospitality” was for a course for a period of two years. The Tribunal found that the “Certificate IV in Hospitality” which “he now wished to study” was a short course of 6 months. At [14] the Tribunal again recorded that the evidence from Mr Singh was that he wished to study a Certificate IV in Hospitality. The Tribunal’s finding that he intended to study a short course was responsive to, and consistent with, the evidence provided by Mr Singh at the hearing.

2. At [14], in response to the Tribunal’s statement that Mr Singh gave evidence that he was “still depressed as a result of his separation from his wife (late 2010)”, Mr Singh stated “I did not said this” [sic]. Mr Singh further stated that the Tribunal did not listen to him when he stated that he did not study because he did not have a visa, “I was refused for study visa”. Mr Singh has not provided evidence of the evidence he gave at the hearing before the Tribunal, e.g. a transcript, and as such this claim is unsubstantiated.

Compliance with Direction No 53

1. In considering whether Mr Singh met the genuine temporary entrant criterion in clause 572.223(1)(a), as required, the Tribunal had regard to Direction No 53. The Tribunal expressly stated that Direction No 53 required it to have regard to “a number of specified factors in relation to” the following:[33]

   1.   The applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant future;

   2.   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;

   3.   If the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant;[34] and

   4.   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.

   [33] CB 87 [11]

   [34] It is noted that the applicant in the present matter is an adult

2. The Tribunal’s decision record demonstrates that it considered Mr Singh’s evidence and engaged in an “active intellectual process” and gave “genuine” consideration to the factors set out in Direction No 53.[35] The basis of the Tribunal’s decision concerned satisfaction of clause 572.223(1)(a) and it made findings in relation to the factors that had practical relevance to Mr Singh’s circumstances and evidence.

   [35] Minister for Immigration v Khadgi (2010) 190 FCR 248

3. Mr Singh was on notice of the “determinative issues” on review.[36] Mr Singh was put on notice by the hearing invitation letter and by the Tribunal when he appeared before it[37] that Direction No 53 and whether Mr Singh was a “genuine temporary entrant” as required by clause 572.223(1)(a), was a determinative issue on the review. In the hearing invitation letter, Mr Singh was specifically asked to provide evidence addressing the issue of whether he was a genuine temporary entrant by reference to Direction No 53.

   [36] SZBEL v Minister for Immigration (2006) 228 CLR 152

   [37] see [6] of Tribunal decision

4. The Tribunal’s finding that Mr Singh did not meet the temporary entrant criterion was open to it. It was not one at which “no rational or logical decision maker could arrive on the same evidence”.[38]

   [38] Minister for Immigration v SZMDS (2010) 240 CLR 611 at 647-648 [130] per Crennan and Bell JJ

Conclusion

1. I conclude that Mr Singh is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.

2. Accordingly, the decision of the Tribunal is a privative clause decision and the application must be dismissed. I will so order.

3. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,800. Mr Singh indicated that he may need time to pay. I will not require any payment by any particular time. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5, 800.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 15 April 2016