SINGH v Minister for Immigration

[2015] FCCA 2090

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2090

Catchwords:
MIGRATION – Student visa – cl.572.223 of sch.2 to the Migration Regulations1994 (Cth) – whether Tribunal failed to comply with s.359AA of the Migration Act 1958 (Cth) – whether Tribunal misapplied the test “genuine intention to stay in Australia temporarily” – whether Tribunal failed to provide an opportunity for the applicant to adduce further evidence – no error in Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 359A, 360

Migration Regulations1994 (Cth), cl.572.223 of sch.2

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZTGV v Minister for Immigration & Border Protection (2015) 229 FCR 90

Applicant: SUKHDEV SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 366 of 2015

Judgment of: Judge Smith

Hearing date: 28 July 2015

Date of Last Submission: 28 July 2015

Delivered at: Sydney

Delivered on: 7 August 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr M. Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 366 of 2015

SUKHDEV SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. The applicant arrived in Australia on 22 May 2008 on a student visa. Since that time he has been granted a number of student visas, the last of which was valid until 28 November 2013. Just before that date the applicant applied for a further student visa to enable him to undertake a Diploma of Information Technology Networking and Advanced Diploma of Network Security.

2. It was a criterion for the grant of that visa that the Minister be satisfied that the applicant genuinely intended to stay in Australia temporarily: sub-cl. 572.223(1)(a) of sch.2 to the Migration Regulations1994 (Cth). The Migration Review Tribunal accepted that the applicant had been continuously studying since his arrival in 2008 but was not satisfied that he genuinely intended to stay in Australia only temporarily. Critically, the applicant had only successfully completed courses at the vocational level and in a range of areas and, during the whole time in which he had lived in Australia, he had returned home only twice, each time being for less than a month.

3. The applicant has several complaints about the Tribunal’s decision. His central complaint is that the Tribunal did not take into account the fact that throughout his stay in Australia there were several periods during which he held only a bridging visa which did not entitle him to travel outside of Australia. As will be seen, none of the applicant’s complaints have been made out and the application will be dismissed.

Background

1. In light of the issues that arise in the application, it is necessary to focus on a number of aspects of the relevant facts. The first is the nature of the courses undertaken by the applicant during his stay in Australia, and the second is his visa status during that time.

2. The question concerning the number and type of courses undertaken by the applicant arose shortly after the visa application was made. By letter dated 27 November 2013 an officer of the Department wrote to the applicant setting out those courses which were:

   i)English;

   ii)Diploma of Hospitality Management;

   iii)Certificate IV in Hospitality;

   iv)Bsc of Business (cancelled);

   v)Diploma of Business;

   vi)Bsc of Business (cancelled);

   vii)Certificate IV in Hospitality;

   viii)Advanced Diploma of Business;

   ix)Diploma of Business;

   x)Advanced Diploma of Business; and

   xi)Advanced Diploma of Management.

3. The letter noted concerns in respect of the relationship between those courses to each other and how they were relevant to the applicant’s future career/employment prospects and invited comment. The applicant responded to that letter in terms which are not necessary to explore.

4. On 16 April 2014 a delegate of the Minister refused to grant the applicant a student visa on the basis that he failed to satisfy cl.572.223. The applicant applied to the Tribunal for review of that decision and, along with his application form, sent a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. By letter dated 5 September 2014 the Tribunal invited the applicant to attend a hearing and also to provide certain information prior to that hearing. Amongst the matters raised in the letter was that, like the delegate before it, the Tribunal would assess whether the applicant had intended to genuinely stay in Australia temporarily. In this respect the Tribunal indicated that there was a direction from the Minister, known as Direction No.53, that was relevant to that question and asked the applicant to provide a written statement addressing the issue of his intention to temporarily stay in Australia by reference to that Direction.

6. In reply to that letter the applicant’s agent set out further details of the applicant’s study in Australia including the dates of each course, and provided academic transcripts and completion certificates. In addition, he explained that the applicant had come to see that the advantage of an information technology course was that it would add to the restaurant business that he proposed to open upon his return to India.

7. The evidence of the applicant’s visa status since he first arrived been in Australia is scant. In its statement of reasons the Tribunal noted that movement records indicated that the applicant initially arrived in Australia on a student visa on 22 May 2008 which was valid until 2 September 2010, that further student visas were granted to 28 November 2013 and that the applicant departed Australia from 26 February 2010 to 18 March 2010 and again from 5 January 2012 to 30 January 2012.

8. At the hearing conducted by the Tribunal the applicant confirmed that summary of his travel movements. When the Tribunal suggested that the fact that he had been in Australia for over six years and only departed twice might indicate that he had strong ties to Australia, the applicant responded that he had been unable to leave Australia since November 2013 because he was on a visa which did not allow him to travel.

9. The Tribunal made its decision on 22 January 2015 affirming the decision of the delegate. As already explained, it was not satisfied that the applicant genuinely intended to stay in Australia temporarily in light of the nature of the courses that he had undertaken in Australia and on the basis that he had been here for such a long time and had only returned to India on two occasions.

Consideration

Ground 1

1. The first ground of the application is that the Tribunal failed to comply with s.359AA of the Migration Act 1958. The applicant points to [30] of the Tribunal’s statement of reasons in support of this ground. That paragraph reads:

   The Tribunal accepts that the applicant has undertaken and completed successfully several courses in Australia from his arrival in 2008 to date as indicated in paragraph 5 above. While the hearing was held prior to the completion of his Diploma of Information Technology Networking, it is prepared to accept based on his past performances and information provided as to his achievements mid-way through that course, that by the time of this decision he has successfully completed the IT course at the end of 2014. It accepts he has been continuously studying since his arrival in 2008.

2. Although the applicant relies upon s.359AA of the Act, that provision only gives an alternative method of complying with an obligation under s.359A. If there is no obligation under that latter provision, then the Tribunal does not have to proceed in accordance with s.359AA. Thus, the first issue is whether there was an obligation on the Tribunal under s.359A.

3. That section requires the Tribunal to give the applicant clear particulars of information that it considers would be the reason or part of the reason for its decision. Broadly speaking, and subject to a number of qualifications, it requires the Tribunal to inform the applicant about information that is adverse to him. There is nothing in [30] of the Tribunal’s reasons that the Tribunal considered would be adverse to the applicant. To the contrary, it is plain that the Tribunal took the fact that the applicant had been continuously studying since his arrival in 2008 as an indicator of a genuine intention to stay temporarily. It said in the following paragraph:

   However, the successful completion of courses and continuous study is(sic) two of many considerations relevant…

4. For that reason, none of the information in [30] of the Tribunal’s reasons gave rise to any obligation on the Tribunal under s.359A.

5. On the other hand, there were two pieces of information that arguably fell within s.359A. The first was information concerning the nature of the courses and the second was information concerning the applicant’s migration history, namely the fact that he had only travelled to India on two occasions throughout the period that he had been studying in Australia. However, whether it be the case that the Tribunal considered that such information would be the reason or part of the reason for its decision, there was no obligation on the Tribunal to give the applicant clear particulars. That is so because both pieces of information were given by the applicant to the Tribunal for the purposes of the application and so excluded from the operation of s.359A: see sub-s.359A(4)(b).

6. The information about the courses was given by the applicant in his response to the Tribunal’s letter of 5 September 2014 and the information about the applicant’s migration history was given by the applicant at the hearing by way of confirmation in response to questions asked by the Tribunal. In this respect, there is no distinction between information proffered by an applicant to the Tribunal of the applicant’s own volition or elicited from an applicant by the answering of the Tribunal’s questions: SZTGV v Minister for Immigration & Border Protection (2015) 229 FCR 90 at 101 [24].

7. For those reasons the first ground is rejected.

Ground 2

1. The next ground raises the applicant’s central complaint in respect of the Tribunal’s decision. The applicant argues that the Tribunal failed to consider that from the time he first arrived in Australia in around June 2008 until November 2013 he was the holder of several bridging visas. Those visas did not permit him to travel overseas and to re-enter Australia. The relevant passage in the Tribunal’s reasons is:

   [37]… On the applicant’s own evidence he lived in Australia five and a half years to November 2013, a period when his visa allowed him to depart, and only returned home twice, each time being less than a month.

2. That finding is inconsistent with the applicant’s assertion that he held a bridging visa in that five and a half year period that did not entitle him to leave and then to re-enter Australia. The only evidence of what the applicant said at the hearing in respect of his visa entitlements and movement in out of Australia is contained in the following passage from the Tribunal statement of reasons:

   [13]At the hearing the applicant confirmed his travel movements as outlined above and courses completed. The Tribunal questioned that he had been Australia (sic) for over 6 years and only departed twice and it may indicate he has strong ties to Australia. He responded that he has been unable to leave since November 2013 because he is on a visa which does not allow him to travel.

   (Emphasis added)

3. That passage is consistent with the Tribunal’s finding at [37] of its reasons and inconsistent with the assertion upon which the second ground is based. There being no other evidence of the applicant’s evidence before the Tribunal, I accept the Tribunal’s statement of reasons to be an accurate summary of what was said at that hearing. For that reason, I do not accept that the applicant gave evidence to the Tribunal that he had bridging visas in the period up to November 2013 that did not entitle him to leave and re-enter Australia. On that basis, the factual foundation for the second ground has not been established and the second ground must be rejected.

Ground 3

1. The third ground is that the Tribunal failed to provide the applicant with adequate opportunity to adduce additional evidence and that this constituted procedural unfairness. There is nothing in the evidence to suggest that the applicant sought additional time within which to provide material in connection with the review. Thus, the question is whether the conduct of the review by the Tribunal was otherwise procedurally fair.

2. The critical obligation on the Tribunal in regards to procedural fairness, at least insofar as it concerns the opportunity to produce material in respect of the issues for decision, is to invite the applicant to attend a hearing under s.360 of the Act. More particularly, that provision requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. Unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 163 [35].

3. In this case, the delegate’s decision was based upon the finding that the applicant did not genuinely intend to stay in Australia only temporarily. This then, was clearly an issue arising in relation to the decision under review. That was made even more pellucid by the terms of the Tribunal’s letter dated 5 September 2014 which expressly stated that the Tribunal would be assessing whether the applicant intended to “genuinely to stay in Australia temporarily”. The applicant took the opportunity presented by that letter, providing submissions, documentary material and a statutory declaration in respect of that issue. Further, the reasons of the Tribunal revealed that this issue was discussed at the hearing so that the applicant had an opportunity, at that time, to give evidence and present arguments relating to the issue.

4. In those circumstances, the Tribunal fulfilled its obligation under s.360 of the Act and the third ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 10 August 2015

CORRECTIONS

1. Cover sheet: Page 1, Legislation – replace “s.425” with “s.360”.

2. Reasons for Judgment: Page 7, Paragraph 24, line 4 – replace “s.425” with “s.360”.

3. Reasons for Judgment: Page 8, Paragraph 26, line 1 – replace “s.425” with “s.360”.