SINGH v Minister for Immigration
[2020] FCCA 1140
•12 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1140 |
| Catchwords: MIGRATION – Student visa – where the applicant applied for a second student visa two days prior to the expiration of the first visa – where the applicant changed courses of study – where the applicant was considered disingenuous in his intention to stay in Australia temporarily – where the applicant had a history of non-completion of courses in his country – where the courses studied were not in the higher education sector as the visa stipulated – where the family ties in his country were not sufficient to reasonably ensure a return to his country – where the applicant made no mention of plans to return to his country – where the student visa is used to circumvent the intentions of the Australian migration program. |
| Legislation: Migration Act 1958 (Cth), ss.65, 357A, 359A, 360, 360A, 476 Migration Regulations 1994 (Cth), cl.9, 12, 13, 14, 500.212 |
| Cases cited: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 Craig v South Australia (1995) 184 CLR 163 |
| Applicant: | RAVINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2525 of 2018 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 6 May 2020 |
| Date of Last Submission: | 6 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Vince Murano |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), the Court directs that the parties be allowed to appear and to make submissions before the Court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
By consent, the application be treated as having been amended so as to seek relief in the nature of a writ of mandamus.
The application dated 23 August 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2525 of 2018
| RAVINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 23 August 2018, the applicant applies for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 27 July 2018 affirming a decision of a delegate of the first Respondent (Minister), not to grant the applicant a Student (Temporary) (Class TU) visa (visa).
I have concluded that the application should be dismissed. In summary, the Tribunal did not fail to consider the matters to which the applicant’s grounds of review are directed and the request for a merits review of the decision is not something which this court has jurisdiction to address.
Background
The background to the application is common ground.
The applicant, an Indian citizen aged 27 years who is single, first arrived in Australia on 6 August 2013, as the holder of a Student visa expiring on 21 September 2016.
Two days before the expiry of his first Student visa, on 19 September 2016 the applicant applied for the visa, providing documents including: (1) a statement of interim results for a Certificate IV in Building and Construction (Building); (2) a Certificate III in Carpentry; and (3) a confirmation of enrolment for a Bachelor of Business with a course start date of 14 November 2016. He subsequently provided a statement dated 25 November 2016 in which, among other things, he stated: that after commencing studies in IT in Australia, he decided carpentry would be beneficial to his future; he wanted to study in Australia for reasons including that more “hands on” skills were taught than in India; he wanted to study the Bachelor of Business because it was an “entry level pathway into the construction sector”; he had changed his course to Certificate III in Carpentry in February 2014 as “there was no intake before that”.
On 8 March 2017, the delegate refused the visa application. Having regard to Ministerial Direction 69 – Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (Direction), the delegate found that the applicant did not satisfy cl 500.212 of the Migration Regulations 1994 (Cth), doing so on the basis that he did not intend genuinely to stay temporarily in Australia.
On 24 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision.
On 15 May 2018, the Tribunal invited the applicant to participate in a hearing on 13 June 2018.
On the day prior to the scheduled hearing, the applicant provided to the Tribunal documents including: (1) a letter of offer for a Diploma of Building and Construction (Building); (2) confirmation that he had completed a Certificate III in Carpentry and a Certificate IV in Building and Construction (Building); (3) a statement in which the applicant acknowledged he had not studied between 1 January 2015 and 5 July 2015 and stated that:
[t]hough I have not completed any courses above the Vocational Education and Training sector and have maintained enrolment in short/inexpensive courses at the Vocational Education and Training sector but the reason is that I have been academically progressing, currently I do have offer letter for Diploma of building and construction where I aim to learn the skills such as building and construction concept and practices related to low and medium-rise buildings required as per necessity of location and purchaser of the building.
On 13 June 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He provided a further document being confirmation of an enrolment for a Diploma of Building and Construction (Building) which had been created at 10:30am on that date.The day following the hearing, the applicant provided a receipt showing he had paid $2,080 towards the total cost of $15,080 for the Diploma of Building and Construction (Building).
Tribunal’s decision
On 27 July 2018, the Tribunal affirmed the delegate’s decision. Having set out the procedural history and applicable law, the Tribunal:
a)stated the relevant issue on review was whether, pursuant to cl 500.212(a) of Sch 2, the applicant intended genuinely to stay in Australia temporarily;
b)in respect of the applicant’s immigration history, was concerned about the applicant’s intentions as he had not completed the course of study in respect of which he was granted his initial student visa;
c)in respect of the circumstances in the applicant’s home country, considered evidence that the applicant had not completed studies in India because:
. . . having an international qualification would give him a better job back in India” and that he makes contact “every couple of days” with family in India – the Tribunal found that personal connections overseas were not a “distinct incentive for [him] to cease residence in Australia;
d)in respect of the applicant’s potential circumstances in Australia:
i)noted the applicant had obtained his confirmation of enrolment for the Diploma of Building and Construction (Building) at 10:30 am on the morning of the hearing, that he had made a partial payment for the course and that the applicant’s evidence was that the course was “about the construction things and how I can project plans so that it will help me back in India”;
ii)given those matters, the Tribunal was concerned the applicant would not complete the course and was “using the student visa to circumvent the intentions of the migration program and to maintain ongoing residence in Australia”;
iii)expressed concern that, despite having been granted a visa to study in the higher education sector, the applicant had only completed a Certificate III in Carpentry and Certificate IV in Building and Construction since his arrival in Australia;
iv)noted that, in his GTE statement, the applicant accepted he had maintained enrolment in short, inexpensive courses and stated that the Diploma of Building and Construction would “provide him the skills to build and construct low and medium rise buildings in the future” – the Tribunal noted that this statement made no mention of future plans in India and did not provide an explanation for not having completed a course in the higher education sector in Australia; and
v)found the applicant’s economic circumstances in Australia would present a strong incentive for him not to return to India;
e)in respect of the value of the course to the applicant’s future:
i)the Tribunal noted the applicant provided no evidence to support the claim he would have a starting salary of about AUD $1,700 per month in India if he completed his proposed course of study;
ii)the Tribunal did not accept that the applicant’s future plans lay outside of Australia and found that he had enrolled in a course which would add little to his future employment prospects in India;
f)found that the applicant was using the student visa program to circumvent the intentions of the Australian migration program and to maintain ongoing residence in Australia, doing so in circumstances where his evidence was that: (1) he intended to depart Australia permanently in March 2018; (2) he returned to Australia in April 2018 and had not enrolled in a course of study until 13 June 2018; (3) he proposed to remain in Australia for 18 months to study a Diploma of Building and Construction; and (4) he had breached his visa conditions between August 2013 and 21 September 2016 by not starting the course for which his initial student visa had been granted;
g)noted there was no relevant evidence, and made no findings, regarding the following factors set out in the Direction: (1) potential military service in India; (2) political circumstances in India; (3) civil unrest in India; (4) the applicant’s ties with Australia that present as a strong incentive to remain; (5) circumstances in India relative to Australia; and (6) the applicant’s circumstances in India relative to others in India;
Having regard to this reasoning, the Tribunal found that the applicant was “not a genuine temporary entrant and a genuine student and genuinely intends not to stay in Australia temporarily”, was not satisfied the applicant met cl 500.212(a) and affirmed the delegate’s decision.
Procedural history
On 23 August 2018, the applicant lodged an application for judicial review of the Tribunal’s decision together with an affidavit to which he exhibited a copy of that decision.
At the time the application was filed, the applicant was unrepresented. The Minister, as model litigant, noted that the application did not engage the jurisdiction of this court under s 476 of the Act, as the applicant had not sought relief in the form of a writ of mandamus,[1] but did not oppose the applicant amending his application to seek that relief.
[1]Act, s 476(1). This court has the same original jurisdiction in relation to migration decisions as does the High Court has under par 75(v) of the Constitution. While par 75(v) of the Constitution refers to certiorari, a writ of certiorari may be issued as ancillary to a writ of mandamus or prohibition issued under pa 75(v) of the Constitution: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, [61]-[64] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).
While the applicant was required to file and serve submissions and any amended application by 8 April 2020, nothing was filed. Although solicitors came on the record for the applicant, on 24 April 2020, they filed a notice of withdrawal of lawyer.
The Minister’s submissions were otherwise responsive to the matters addressed in the application and Reasons.
Judicial review
If the Tribunal’s decision was a privative clause decision,[2] it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[3] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[4] Whether it should do so is a separate issue.
[2]Act, s 474(2).
[3]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[4]Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[5] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[5]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[6] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[7] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[6]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[7]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
The applicant advanced three grounds of review.
Grounds 1-2: failure to consider
It is convenient to address Grounds 1 and 2 together. They read:
1.As per the clause 13 and 14 of Direction 69, my family ties ups have been ignored in home country; as an incentive to return to the home country; but I hold genuine intention to study and return to home country as I have done intensive research back in home country.
2.I have Certificate III in Carpentry dated September 2015 (AAT folio 28) Certificate IV in Building and Construction (Building) dated 25 April 2017 (AAT folio 30) is clearly relevant study; as I am determined to purse relevant job back in home country.
Those grounds may be construed as contending for error because:
a)the Tribunal failed to consider the applicant’s family ties in India;
b)the Tribunal failed to consider that the courses completed by the applicant in Australia would assist him in pursuing employment opportunities in India.
Respecting how a Tribunal should apply Direction 69, in Kaur v Minister for Home Affairs[8], Steward J said:
. . . What the Tribunal must ultimately do in a case concerning an application of cl 500.212(a) is make a finding of fact about whether an applicant does or does not intend genuinely to stay in Australia temporarily. For that purpose, it must apply the four factors prescribed in cl 500.212(a) of the Regulations ...
Then, for the purpose of applying those factors, the Minister has made a Direction which the Tribunal must apply. The direction he has made here is that the contents of Direction No. 69 should be used as a “guide” in applying the four factors. For that purpose, the Minister has only directed that the factors identified in the Direction should be considered, not that they must be considered. He has also expressly directed that the factors should not be treated as a “checklist”; rather they are to guide a decision-maker “when considering the applicant’s circumstances as a whole”. In other words, a decision-maker is not required to check each identified factor in the Direction. In my view, this language is inconsistent with the first appellant’s contention that every factor must be considered as a mandatory consideration. It is also inconsistent with the function and purpose of Direction No. 69 as a guide to assist in applying cl 500.212. (emphasis added)
Compare Kumar v Minister for Immigration and Border Protection. [9]
[8][2019] FCA 2026.
[9][2020] FCAFC 16, [74]-[87], [96]-[99] (Derrington and Thawley JJ, Logan J agreeing).
Steward J further observed that, in the context of considering whether a visa applicant satisfied cl 500.212 of Sch 2 by reference to the Direction, the Tribunal may err if it failed to consider: a substantial, clearly articulated claim made by a visa applicant; or a claim engaging a factor listed in Direction that was apparent on the face of the material before the Tribunal and which clearly emerges from that material.
In my view, there is no error of the type identified in Kaur. The Tribunal expressly considered in respect of:
a)family ties in India: the applicant’s evidence that: (1) he has parents and a brother in India; and (2) he makes contact with parents and brother “every couple of days via telephone and the social media applications WhatsApp and WeChat” – the Tribunal found that “[i]n these circumstances, the Tribunal does not consider the applicant’s personal connections overseas as a distinct incentive for the applicant to cease residence in Australia”; and
b)courses completed in Australia: the applicant’s evidence that: (1) he had completed a Certificate III in Carpentry and a Certificate IV in Building and Construction (Building); and (2) has “not completed any courses above the VET sector but that he had maintained enrolment in short/inexpensive courses in the VET sector and had progressed academically” – the Tribunal noted the applicant made no mention of future plans in India and did not provide any explanation for not having completed a course in the higher education sector (despite his initial student visa being granted on the basis of his enrolment in such a course).
Ground 3: merits
Ground 3 reads:
I wish to get judicial review done on the basis of the incentives I hold to return to my home country. I also have my employment proof for the kind consideration; I clearly completed my past study with only intention of moving on further in my life back in home country in relevant field of building and construction
By Ground 3, the applicant disagrees with the Tribunal’s findings that: (1) he does not have a strong incentive to return to India; and (2) he does not genuinely intend to remain in Australia temporarily.
These complaints are directed to the merits of the Tribunal’s decision which this court has no jurisdiction to address upon judicial review.[10]
[10]Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, [23] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Other matters
As model litigant, the Minister addressed other aspects of the Tribunal’s decision. I agree that there is no error in the Tribunal’s statement of the applicable legal principles or how it had applied the law.
As the applicant applied for the visa on 19 September 2016, the Tribunal was correct to apply the Direction which commenced 1 July 2016 in assessing whether the applicant satisfied cl 500.212(a). Having regard to Kaur, the Tribunal made no error and satisfactorily considered:
a)the applicant’s immigration and travel history – which relate to cll 13-14 of the Direction;
b)the applicant’s circumstances in India – which relate to cl 9(a) (reasons for not undertaking study in India) and cl 9(b) of the Direction (ties to India) of the Direction;
c)the applicant’s potential circumstances in Australia – which relate to cl 11(a) (economic ties with Australia), cl 11(b) (the student visa program being used to circumvent intentions of the Australian migration program) and cl 11(c) (the use of a student visa to maintain ongoing residence in Australia) of the Direction; and
d)the value of the course to the applicant’s future – which relate to cl 12(a) and cl 12(b) (the value of the proposed course to employment prospects in India) and cl 12(c) (remuneration from potential qualifications in India compared with Australia) of the Direction.
The Tribunal was correct to say that it did not need to make any findings in respect of other matters stated in the Direction in respect of which there was no evidence before it: see, paragraph 13(l) above.[11]
[11]Kaur v Minister for Home Affairs [2019] FCA 2026, [28].
The Minister also correctly addressed the Tribunal’s procedural fairness obligations are set out in Div 5 of Pt 5 of the Act. Pursuant to s 357A, Div 5 of Part 5 is “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.[12] To the extent it may be assessed on the material before the court:
a)the Tribunal complied with its obligations under s 360 and s 360A and extended a meaningful invitation to the applicant to attend a hearing to give evidence and present arguments (the applicant attended the hearing); and
b)“issues arising in relation to the decision under review” were raised:
i)in the letter inviting the applicant to the hearing, which explained: (1) he should provide documents relating to his current enrolment; (2) he should provide documents showing his “past studies”; and (3) the Tribunal would assess whether he is a “genuine applicant for entry and stay as a student” (and attached a copy of the Direction). The applicant provided written submissions and other material; and
ii)during the Tribunal hearing: see, [12] – [14], [15], [19] – [22].
[12]As to the meaning of the expression “in relation to the matters it deals with”, see, Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010 )241 CLR 252, [35]-[42] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
In addition, having regard to the material before the court, any “information” within the scope of s 359A(1) relied on by the Tribunal was given by the applicant to the delegate or the Tribunal, such that the exceptions to s 359A(1) of the Act provided by s 359A(4)(b) and s 359A(4)(ba) were engaged.[13] Otherwise, the Tribunal relied on its own “subjective appraisals, thought processes or determinations”[14] in reaching its conclusion that the delegate’s decision should be affirmed.
[13]Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240, [74] (North, Greenwood and Besanko JJ), citing with approval Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241, [26] (Sundberg J); SZTGV v Minister for
Immigration and Border Protection (2015) 229 FCR 90; [2015] FCAFC 3, [22] – [24] (Perram, Jagot and Griffiths JJ).
[14]SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
CONCLUSION
For the reasons above, the application should be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Associate:
Date: 12 May 2020
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