Singh v Minister for Immigration

[2020] FCCA 1349

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1349

Catchwords:
MIGRATION –Student (Temporary) (Class TU) (Subclass 500) visa – Administrative Appeals Tribunal – whether the Tribunal failed to consider the Applicant’s claims – whether the Applicant was denied natural justice by the Tribunal – no jurisdictional error established – application dismissed with costs. 

Legislation:

Administrative Appeals Tribunal Act 1975, s. 2A (b)

Migration Act 1958 ss. 353(1), 363(1)(b), 366A

Migration Regulations 1994, Clauses 500.211 and 500.212 of Schedule 2

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenshipv Li [2013] HCA 18
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant: SIMERJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 521 of 2018

Judgment of: Judge Blake

Hearing date: 14 May 2020

Date of Last Submission: 14 May 2020

Delivered at: Melbourne

Delivered on: 14 May 2020

REPRESENTATION

Advocate for the Applicant: In person

Solicitors for the Applicant: None

Advocate for the Respondents: Mr Simpson

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.

2. The Application filed on 30 May 2018 be dismissed and such order to become operative from 28 days after the date written reasons are published.

3. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

BRG 521 of 2018

SIMERJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION,CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

1. This is an application for review of a decision made by the Administrative Appeals Tribunal on 26 April 2018. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 500) visa.

2. The applicant is an Indian national.  He arrived in Australian in 2008 as the holder of a Student (Temporary) (Class TU) (Subclass 500) visa.  The applicant has been granted additional visas subsequent to his arrival in Australia. The applicant applied for the visa the subject of these proceedings on 24 August 2016. 

3. It is a condition of granting the visa sought by the applicant that the applicant satisfy, among other things, Clauses 500.211 and 500.212 of Schedule 2 to the Migration Regulations 1994 (‘Regulations’), as they existed at that time.

   500.211

   One of the following applies:

   (a)  the applicant is enrolled in a course of study;

   (b)  if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

   (c)  if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

   (d)  if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

   …

   500.212

   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

   (b)  the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)  the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)  the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)  of any other relevant matter.

4. There are two matters falling from the clauses set out above that are of particular relevance to this case. First, Clause 500.212 requires the applicant to be a genuine applicant for entry and stay as a student.  Second, Clause 500.211 requires the applicant to satisfy one of the criteria set out in subparagraphs (a) to (d) of that Clause. Of relevance to this matter is Clause 500.211, subparagraph (a) – that the applicant is ‘enrolled in a course of study’.  (emphasis added)

5. On 17 November 2016, a delegate of the Minister refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the requirements of Clause 500.212 of Schedule 2. In short, the delegate was not satisfied that the applicant was a genuine temporary entrant for the purpose of study.

6. The applicant applied to the Tribunal for review of the delegate’s decision on 7 December 2016. What then occurred is of some significance to the grounds of review presently before the Court.  Accordingly, I set that out in some detail. 

7. On 23 March 2018, approximately 15 months after the applicant filed his application with the Tribunal, the Tribunal wrote to the applicant and invited him to appear at a hearing before the Tribunal on 18 April 2018 – see Court Book at page 92. 

8. It then appears that the applicant sought representation.  On 9 April 2018, the applicant’s representative wrote to the Tribunal.  The representative indicated that he had just been briefed.  He sought an extension of three months in order to “obtain affidavits and other materials”: See Court Book page 107. 

9. The Tribunal responded to the request for an extension of time on 16 April 2018 – see Court Book page 116.  The Tribunal refused the request for the following reasons:

   You are referred to 366A of the Migration Act, which provides that an applicant is entitled to have a person assisting them at the hearing, but unless there are exceptional circumstances, the assistant is not entitled to present arguments or address the Tribunal. Your representative is enabled to obtain and listen to a copy of the audio recording of the hearing and present post-hearing submissions. The hearing will therefore proceed as set out below. (sic)

10. The applicant’s representative sent a subsequent email to the Tribunal on 16 April 2018.  In that email, reproduced at Page 131 of the Court book, the representative stated that:

    …our client wishes to provide written statements, documents and other evidence to the Presiding Member. The information must be provided 7 days before the hearing date, this is not possible. Our client is entitled to procedural fairness. We respectfully request that you provide a 28-day extension of time to familiarise and collate all written statements and documentation. (sic)

11. The Tribunal responded to the above request on 17 April 2018. The Tribunal refused the request to adjourn the hearing for the following reasons:

    As the initial hearing invitation was sent on 23 March 2018, and your application for review was lodged with the Tribunal on 7 December 2016, which is approximately 16 months ago, you had ample opportunities to gather, consolidate and provide your evidence.

12. There is one other matter of some significance in the correspondence passing between the applicant and the Tribunal in the lead up to the hearing. That is, the requests by the Tribunal for the applicant to provide it with a copy of the applicant’s current certificate of enrolment or other document showing that he was currently enrolled in a course. Those requests were made by the Tribunal in its correspondence to the applicant on 23 March 2018, 16 April 2018 and 17 April 2018. No document appears to have been received by the Tribunal.

13. The matter subsequently proceeded before the Tribunal on 18 April 2018.  The applicant attended the hearing before the Tribunal on that date, where he gave evidence and he presented arguments. 

14. Subsequently, on 26 April 2018, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa. The reasons of the Tribunal disclosed the following: 

    a)The Tribunal identified that the applicant needed to satisfy the primary criteria set out in Clause 500.211 to Clause 500.218 – see paragraph 4 of the Tribunal’s reasons.

    b)The delegate had refused to grant the visa on the basis that the applicant did not satisfy Clause 500.212 – see paragraph 3 of the Tribunal’s reasons. 

    c)The primary issue in the present case was whether the applicant was enrolled in a course of study as required by Clause 500.211, subparagraph (a) – see paragraph 7 of the Tribunal’s reasons. 

    d)The Tribunal reviewed the events leading up to the hearing, which I have summarised earlier in these reasons, relating to the requests for additional time or postponement and noted the following:

    i)The applicant did not appoint a representative until 17 days after receipt of the hearing invitation;

    ii)The applicant had, through his representative, a period of 7 days between the appointment of the representative and the hearing date to submit evidence;

    iii)The applicant was advised that he could submit post-hearing submissions; and

    iv)No further evidence was submitted by the applicant prior to, at, or subsequent to, the hearing before the Tribunal.

    e)The Tribunal squarely advised the applicant that the issue before it, being whether the applicant was enrolled in a course of study, was different to the issue before the delegate, being whether the applicant was a genuine temporary entrant under Clause 500.212, subparagraph (a) – see paragraph 18 of the Tribunal’s reasons. 

    f)The applicant admitted that he was not currently enrolled in a course – see paragraph 19 of the Tribunal’s reasons.

    g)The applicant stated that he had discussed enrolment with two or three providers, and that they would not enrol him because of his visa. He presented no evidence of this to the Tribunal – see paragraph 21 of the Tribunal’s reasons. 

    h)The Tribunal accepted the applicant was not currently enrolled in a course.  The Tribunal also noted that at no stage during the request for postponements did the applicant request more time to secure an enrolment, and further, on his own evidence, he did not consider enrolment was possible in light of his visa refusal – see paragraph 22 of the Tribunal’s reasons.

    i)Accordingly, and as a result of the above, the Tribunal was satisfied that the applicant was not enrolled in a full-time registered course of study, and therefore failed to meet the criteria set out in Clause 500.211(a). 

    Accordingly, the decision under review was affirmed by the Tribunal – see paragraphs 23 and 24 of the Tribunal’s reasons.

15. As I have noted, the applicant made an application to this Court for judicial review of the Tribunal’s decision on 30 May 2018. The applicant filed an affidavit in support of the application, annexing the decision of the Tribunal. No further material has been provided by the applicant. 

16. The application for review sets out 10 grounds, as follows.

    ‘1. At the time of the Visa Application, the applicant was a genuine student and had an Offer of Enrolment and the Department of Immigration and Border Protection and Migration Refugee Division erred in taking this into account.

    2. The Department erred in not taking into account that under 500.211, there is a requirement that at the time of decision the applicant is enrolled in a course of study, the applicant had contacted two educational institution to get a confirmation of enrolment but was informed that he is unable to a COE and the best they could provide was a letter of offer.

    3. The DIBP and MRD were absent from any consideration that the applicant would have completed all courses but due to incorrect and negligent advice. Furthermore, THE MRD failed to consider that the applicant was waiting on further details from India. Ie affidavits, statutory declarations but was unaware that he needed all documents. The applicant requested extension of time to get materials relevant to his circumstances and case but was denied. Under 366 A of Migration Act denied natural justice, as there was insufficient time for the applicant and his representative to obtain the materials, especially documents coming from his home country of India.

    4. According to AA T decision and assumptions, it did not provide adequate consideration as applicant wish to complete all components in the business and business related field.

    5. The AAT failed in considering Australian Education standards are highly recognised and sort after be it VET or in higher education.

    6. The Applicant has always had a genuine desire to run his own restaurant in his home country in Chandigarh India. To achieve that goal, the Applicant worked in an Indian Gourmet Restaurant for a period.

    7. The Applicant has always had close ties to India and remained in regular contact and the family has plans for him to settle down and get married.

    8. According to the AAT decision, applicant does not meet cl.572.223(1)(a) however the Applicant had been a Genuine Student but was restricted in obtaining a COE due to the erred decision of the DIBP and MRD.

    9. The DIBP and Tribunal failed to give a genuine opportunity to provide the suitable documents by the applicant. DIBP and MRD failed to have regard to applicant's circumstances and failed to check whether there was no non-compliance from applicants while holding previous student visa. Further noted, both the DIBP and MRD were negligent in properly instructing the Applicant from the time of the lodgement of the MRT appeal to the time of the Invitation of hearing.

    10. The applicant seeks to be eligible for the grant of a subclass 500 student visa as he has been a genuine student.’

17. The above grounds of review are supported by the applicant’s affidavit sworn 21 May 2018.  In that affidavit, the applicant, inter alia:

    a)Confirms that he did not have a certificate of enrolment at the relevant time, but only letters of offer.

    b)Says he did have a certificate of enrolment to complete a Diploma in Marketing.  He has not attached any evidence of it, nor specified when that certificate of enrolment was in his hands.

    c)Says that he was awaiting further materials from India.  He had requested an extension of time and was therefore denied natural justice. 

    d)Says that the decision-maker did not properly assess the genuine temporary entrant criterion for student visa applications.  He says the decision-maker made assumptions.

18. During the oral hearing before me today, the applicant submitted that he wished to have the chance to continue studying at a higher level in Australia.  He said that he went to universities to apply for enrolment, it seems in various different states of Australia, and was rebuffed.  He says he was told that he needed the visa to get the enrolment.  When he could not produce the visa, the enrolments were not confirmed. 

19. It is understandable that the applicant, Mr Singh, wishes to continue his studies in Australia.  It would appear, at a very cursory or high level, that he has obtained some benefit from those studies. There are, however, significant matters that stand in the road of the applicant, not the least of which is the mandatory and fixed nature of the criteria that he was required to satisfy.

20. I now turn to deal with the grounds of review.

21. An administrative decision-maker falls into an error of law amounting to jurisdictional error, with the effect of invalidating any order or decision, if that decision-maker identifies the wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or in some instances makes an erroneous finding or reaches a mistaken conclusion. 

22. The reasoning of a decision-maker under review are not to be construed minutely and finely with an eye keenly attuned to error. It will be a jurisdictional error where a decision-maker failed to consider evidence, depending on the importance of the ignored material.  See, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16.

23. The first observation to be made about the grounds of review is that many of the grounds appear to take issue with the department or the decision of the delegate. See, for example, grounds, 1, 2, 3 and 9 of the application. Insofar as any complaint is sought to be agitated in respect of the delegate’s decision, this Court does not have jurisdiction to deal with such complaint. 

24. It is difficult to clearly understand the grounds of review.  At one level, it appears the applicant is asking the Court to conduct a merits review.  It is well settled that the Court ought not embark on that task. 

25. Embarking on the task presently before the Court, it would appear that grounds 1 and 2 assert an error by the Tribunal in failing to take account of the asserted fact that the applicant had an offer of enrolment and could provide a letter of offer. 

26. The assertion that the applicant had an offer of enrolment and that the Tribunal failed to take account of this must be rejected. The assertion fails on the applicant’s own evidence. The Tribunal recorded that the applicant’s enrolment in the Advanced Diploma of Marketing was cancelled – see paragraph 16 of the Tribunal’s reasons.  In paragraph 17, the Tribunal records the applicant confirming that he did not enrol in any course.

27. The relevant question that the Tribunal had to concern itself with was whether the applicant was enrolled in a course of study under Clause 500.211(a) as defined in the Regulations. A review of the Tribunal’s reasons discussed earlier clearly discloses that this was the task that the Tribunal concerned itself with. While the Tribunal considered at paragraph 21 of its reasons the applicant’s attempts to discuss enrolment and the alleged offers, it was not required to do so. Nor was it required to accept a letter of offer for a course in place of a certificate of enrolment. Doing so would not have satisfied the requirements of Clause 500.211, subparagraph (a). The Tribunal has therefore not made an error of the type complained of by the applicant.

28. The next challenge made to the Tribunal’s reasons arises from grounds 4, 5, 6, 7, 9 and 10. These grounds, and to a lesser extent grounds 1 and 2, assert that the Tribunal failed to consider evidence that the applicant was a genuine temporary entrant for the purposes of the Regulations. The matters that it is said the Tribunal ignored include, variously, the applicant’s wishes, the work he had undertaken in the restaurant, and his close ties to India.

29. The difficulty for the applicant with these submissions is that they pay no attention to the task the Tribunal concerned itself with. As noted earlier, the focus of the Tribunal’s inquiry was whether the applicant was enrolled in a course of study and therefore able to satisfy the requirements in Clause 500.211(a). The Tribunal was not concerned with the delegate’s reasons as to why the Tribunal did not meet the genuine entry requirements stipulated in Clause 500.212(a). This was a matter that the Tribunal took some time to advise the applicant about. 

30. None of the matters now raised by the applicant are necessary for the Tribunal to consider in order to complete the statutory task.  None of the matters raised in these grounds was dispositive of the question before the Tribunal.  I am therefore unable to identify any error by the Tribunal. 

31. Grounds 3, 8 and 9 raise variously, among other things, that the applicant was denied natural justice, that he had insufficient time to put forward the relevant materials, that he was restricted in obtaining a certificate of enrolment, and that he was not given a genuine opportunity to provide suitable documents.  These grounds appear to relate to requests by the applicant’s representative for adjournment or postponement of the hearing. 

1. Under section 363(1)(b) of the Act, the Tribunal has the power to adjourn the review of a decision. The exercise of a discretion to adjourn must be exercised reasonably and will only be regarded as having been exercised unreasonably where it lacks an evident and intelligible justification. See Minister for Immigration and Citizenshipv Li [2013] HCA 18.

2. In assessing reasonableness, consideration is to be given to what is now contained in section 2A(b) of the Administrative Appeals Tribunal Act 1975 (what was previously the directive in section 353(1) of the Migration Act 1958 (‘Act’)). That is, the Tribunal must provide and conduct a review procedure that is fair, just, economical, informal and quick. 

3. I have set out earlier in the reasons the history of the requests for an adjournment.  I have also set out earlier in these reasons a summary of the manner in which the Tribunal recorded that history in its reasons.  When those matters are considered, I am satisfied that there was an evident and intelligible justification for the Tribunal declining the request for a postponement or adjournment. I have reached this conclusion having regard to what I have set out above and also what follows: 

   a)That the applicant had ample opportunity to provide evidence to support his application.  The hearing did not occur until 16 months after the filing of the application. He was also given 25 days advance notice of the hearing. 

   b)The Tribunal in its correspondence to the applicant’s representative correctly summarised the effect of section 366A of the Act. That section permits an applicant to be assisted by another person, but does not entitle the assistant to present arguments unless exceptional circumstances exist.

   c)The applicant was directly informed that post-hearing submissions could be provided; however, none were provided.  In saying this, I observe that the decision was handed down eight days after the hearing. However, it also appears from the decision record at paragraph 22 that the applicant himself considered it was not possible to enrol in a course of study.

4. In addition to the above, the applicant has expressly in ground 3 of the grounds of review appeared to link the denial of natural justice to section 366A of the Act. It may be that the applicant in raising this ground is seeking to assert that the failure to adjourn the matter denied him the opportunity to have another person present and assist him. The Tribunal may fall into error if it unreasonably refuses to adjourn a hearing in a manner that does not give sufficient weight or attention to the rights provided for in section 366A.

5. To the extent that this is what the applicant’s complaint is about, in my view, it cannot be sustained.  A review of the matter discloses that the two postponement requests were not advanced on the basis that the representative could not attend the hearing to assist the applicant.  The Tribunal’s refusal to grant the adjournment therefore cannot be considered unreasonable, given those circumstances. 

6. To the extent that these grounds of review assert denial of procedural fairness on any other basis, a review of the matter discloses that the applicant was properly invited to the hearing, was informed of his right to participate in the hearing, participated in the hearing and had the opportunity to make post-hearing submissions.  I am satisfied that there was not a denial of procedural fairness in respect to the manner in which the Tribunal conducted the proceeding or conducted the lead up to the proceeding.

7. I have in these reasons carefully reviewed the grounds of review and the Tribunal’s reasons.  I am unable to discern any jurisdictional error of the Tribunal.  Accordingly, the application must be dismissed. 

8. The Court has heard from Mr Singh in relation to the Minister’s application for costs.  Mr Singh is unrepresented.  Properly represented, he might have opposed the application for costs.  The usual position in proceedings such as this are that costs would follow the event.  The costs that the Minister seeks are those fixed by the scale. I order them.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 28 May 2020