Singh v Minister for Immigration

[2020] FCCA 651

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 651

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) Visa – whether an error in the Tribunal’s reasons resulted in a misunderstanding in respect of the mandatory criteria that the Tribunal was required to apply – whether the Tribunal failed to take into account a relevant consideration – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.500.112

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: JATINDER SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2242 of 2018

Judgment of: Judge Street

Hearing date: 20 March 2020

Date of Last Submission: 20 March 2020

Delivered at: Sydney

Delivered on: 20 March 2020

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms K Evans, Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 20 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2242 of 2018

JATINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 July 2018 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student (Temporary) (Class TU) Visa (“the Student visa”). 

2. The applicant is a citizen of India, and at the time of the hearing before the Tribunal, did not have a current course of enrolment. 

3. The Tribunal, after the Delegate found that the applicant did not meet the criteria for the grant of the Student visa and the applicant applied for a review, wrote to the applicant on 27 June 2018 inviting him to attend a hearing. In that letter, the Tribunal identified that the applicant needed a current certificate of enrolment. 

4. The applicant appeared before the Tribunal to present arguments. 

5. The Tribunal raised with the applicant that he did not have a certificate of enrolment. The Tribunal found the applicant’s responses to be vague and evasive but found that he does not have a current certificate of enrolment and that he did not meet the requirements of cl 500.211 of the Migration Regulations 1994 (Cth) (“the Regulations”) and affirmed the decision under review. 

6. At the commencement of the hearing today, the Court explained to the applicant the nature of the show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The applicant confirmed that he understood the hearing as explained by the Court. 

7. The applicant referred to a typographical error in the Tribunal’s reasons as to the date he arrived in Australia. The correct date was in 2014 and that has no relevance whatsoever to establishing any error or arguable error by the Tribunal. 

8. It is apparent that the Tribunal complied with its statutory obligations in the conduct of the review. The applicant’s submissions about whether he was at fault or whether others were at fault completely fails to grapple with the essential requirement that the applicant had to meet at the time of hearing. 

9. The applicant’s complaint that he had to pay fees and that someone else must have made a mistake are a failure by the applicant to comprehend that he was squarely on notice of the need to have a current course of enrolment because of a letter sent to him by the Tribunal on 27 June 2018 inviting him to attend a hearing. 

10. The applicant’s explanations as to having problems in communication from colleges and depression have nothing to do with enlivening any jurisdiction of this Court to grant relief in respect of the Tribunal’s decision. 

11. As this Court explained to the applicant, it can only grant relief if the Tribunal has exceeded its statutory powers. The applicant’s submissions invited the Court to determine the matter on compassionate or discretionary grounds. The Court has no power to do so.

12. Nothing said by the applicant identified any arguable case of relevant error. 

The grounds

1. The grounds in the application are as follows:

   1.The Tribunal misunderstood my case and recorded wrong information on the decision. I came to Australia on 16/2/2014 on subclass 573 and not on 15 July 2009. This confusion is important because the Tribunal Member misunderstood my circumstances.

   2.While I agree that I am not enrolled to study but this is the result of refusing my student visa but the Tribunal failed to consider that I am committed to study and the Department refused my application and this is one of the reasons why enrolment in a course of study is not met at the time of the Tribunal as I was waiting for the result of the Tribunal.

Ground 1

1. In relation to ground 1, this refers to the erroneous date as to arrival in Australia. It does not, in any way, identify any misunderstanding in respect of the mandatory criteria that the Tribunal was required to apply. 

2. No arguable case of relevant error is disclosed by ground 1. 

Ground 2

1. Ground 2 acknowledges that the applicant did not meet the mandatory criteria before the Tribunal but wants to advance other reasons why the applicant should be allowed to obtain the Student visa. 

2. The Tribunal did not have to consider any other matters once it found that the applicant did not meet the mandatory criteria in respect of a current certificate of enrolment. The applicant’s assertions of a desire to study do not identify any error or arguable error by the Tribunal. 

3. No arguable case of relevant error is made out by ground 2 of the application. 

4. The Court is satisfied that the application has not raised an arguable case for the relief sought. 

5. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules and the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 20 March 2020 and the parties were provided a sealed copy of the Court’s orders.

Date: 8 May 2020