SINGH v Minister for Immigration
[2020] FCCA 2966
•3 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2966 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – Student (Temporary) (Class TU) (subclass 500) visa – whether finding that applicant did not satisfy reg.500.211(a) was affected by jurisdictional error |
| Legislation: Migration Act 1958 (Cth), ss.360(3), 363A Migration Regulations 1994 (Cth), regs.500.211(a), 500.212 Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13, Div 1, Pt 3, Sch 1 |
| Cases cited: Murni v Minister for Immigration [2020] FCCA 579 SZIMG v Minister for Immigration & Citizenship (2008) 167 FCR 362 |
| Applicant: | DEVINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 212 of 2020 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 9 October 2020 |
| Date of Last Submission: | 9 October 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 3 November 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
Pursuant to r.44.12 of the Federal Circuit Court Rules 2001, the application filed on 6 April, 2020 be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,737.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 212 of 2020
| DEVINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the second respondent made on 13 March, 2020 which affirmed a decision of a delegate of the first respondent to refuse the applicant the grant of a Student (Temporary) (Class TU) (subclass 500) visa.
The first respondent opposes the application and the second respondent has entered a submitting appearance.
The application is before the Court by way of a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). As the first respondent submits, the issue for determination is whether the application raises an arguable case for the relief claimed: FCCR 44.12(1). In so satisfying the Court, the applicant is confined to the relief sought and the grounds mentioned in the application for judicial review: FCCR 44.13(1). If the Court is not so satisfied, it may dismiss the application: FCCR 44.12.
Background
The applicant is a citizen of India. On 3 July, 2008 he arrived in Australia as the holder of a Student (Class TU) (Subclass 572) visa. He was subsequently granted a further student visa, before being granted a Temporary Work (Skilled) (Class UC) (Subclass 457) visa on 22 December, 2014.
On 20 December, 2018 the applicant applied for the visa the subject of these proceedings. For that purpose he provided two confirmations of enrolment; one in a Diploma of Hospitality Management (due to commence on 18 March, 2019 and conclude on 19 June, 2020) and a second in an Advanced Diploma of Hospitality Management (due to commence on 13 July, 2020 and conclude on 30 April, 2021).
On 20 February, 2019 a delegate of the first respondent refused to grant the visa on the basis that the applicant did not meet reg.500.212 of the Migration Regulations 1994 (Cth). The delegate was not satisfied that the applicant was a genuine applicant for temporary entry and stay in Australia.
On 3 March, 2019 the applicant applied to the second respondent for review of the delegate’s decision. On 6 November, 2019 the applicant was invited to provide information that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. In response to that invitation, the applicant provided a completed Request for Student Visa Information form, in which he confirmed that:
a)he consented to the second respondent deciding the review without a hearing; and
b)he did not have a current certificate of enrolment in a registered course of study.
On 13 March, 2020 the second respondent affirmed the delegate’s decision not to grant the applicant the visa. It did so on the basis that it could not be satisfied that the applicant was currently enrolled in a registered course of study. The second respondent recorded that, at the time of his application, the applicant was proposing to study a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management and seeking to extend his stay in Australia until April, 2021. The second respondent observed that in his response to the second respondent’s request for further information (6 November, 2019) the applicant indicated that the last completed course was a Diploma of Project Management completed in February, 2014 and that he had responded “No” to the second respondent’s question, “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?”.
To succeed in his application before the second respondent, it was necessary for the applicant to demonstrate that he held, at the time of the decision on his visa application, a current confirmation of enrolment for a qualifying course of study: reg.500.211(a) of the Migration Regulations.
The second respondent recorded that for the purposes of determining whether reg.500.211 was satisfied, there must be evidence of a current enrolment to support a finding that the applicant was currently enrolled in a registered course of study. It found that there was no such evidence before it. The finding was plainly correct. Accordingly, the second respondent was not satisfied that at the time of its decision that the applicant was enrolled in a course of study and found that reg.500.211 was not met. In those circumstances, it was unnecessary for the second respondent to consider whether the applicant met any of the other primary criteria for the grant of the visa.
Grounds of review
The grounds of review set out by the applicant in his application filed on 8 April, 2020 are as follows (faithfully reproduced):
2. The Tribunal’s decision was fundamentally influenced by not receiving evidence from the applicants. By consequence the Second Respondent’s decision is no decision at all in law.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
3. The Tribunal did not issue any written invitation prior to make the decision Therefore failed the statutory obligation.
The first respondent’s written submissions conveniently deal with the first and third grounds together. The applicant complains that the second respondent did not receive evidence from him and it did not issue any written invitation inviting him to give evidence prior to making its decision. However, the letter of 6 November, 2019 was an invitation to the applicant to provide information to the second respondent that addressed the matters to which the second respondent needed to pay regard when deciding the application. Specifically, the applicant was directed to provide sufficient information to satisfy the second respondent that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. There was a direction, including a hyperlink, to the form entitled Request for Student Visa Information. The applicant completed that form and returned it to the second respondent on 20 November, 2019. That form included the following section (I have included the applicant’s answer):
Hearing information
Do you and any other applicants consent to the Tribunal deciding the review without a hearing? *
Yes, I/we consent to the Tribunal deciding the review without a hearing
Note: If you consent to us deciding your review without a hearing:
• You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision Will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.
• We may either affirm or set aside the decision under review. Please see our Information about Decisions fact sheet for more Information about different types of decisions and what happens once our decision has been made.
• You should provide us with all the information you would like us to consider in your case. A decision will not be made until alter the period for responding to this Invitation has passed, Additional information may also be given at the end of this form.
• If there is more than one review applicant, you may only consent to us deciding the review without a hearing if you have the authority of each applicant to do so.
Once the applicant gave his consent to the second respondent deciding the review without a hearing, the second respondent was not entitled to invite the applicant to attend a hearing: ss.360(3) and 363A of the Migration Act. It was obliged to proceed to determine the review without the applicant appearing before it. That view was taken in similar circumstances in SZIMG v Minister for Immigration & Citizenship (2008) 167 FCR 362 at [21]. Although that was a case involving a protection visa (and consequently different sections of the Migration Act) the sections of the Migration Act relevant to the present proceedings are not materially different from those considered in SZIMG. The approach taken in that case is apposite to the present on this point. It has been followed in circumstances similar to those in the present case: Murni v Minister for Immigration [2020] FCCA 579.
The first and third grounds specified by the applicant in his application for review taken either together or separately do not demonstrate jurisdictional error on the part of the second respondent.
Ground two of the application is formulaic and in my view, devoid of content. It assumes that the second respondent reached a state of “reasonable satisfaction” about something not specified in the ground. But a perusal of the second respondent’s reasons for decision demonstrates that it did not reach any “reasonable satisfaction” about anything. Indeed that was the point of the decision made by the second respondent, namely that it could not be satisfied that the applicant held a qualifying certificate of enrolment sufficient to satisfy reg.500.211(a).
Although the applicant had provided two certificates of enrolment with his application for the visa, that did not demonstrate that the applicant remained enrolled in those courses at the time his review application was determined. He needed to satisfy the second respondent that he held a qualifying certificate of enrolment at the time of the second respondent’s decision on his review application.
The request for information sent to the applicant on 6 November, 2019 expressly drew his attention to the need to provide evidence that demonstrated that he was enrolled in a registered course of study. There is nothing in the material before me that suggested that the applicant provided any evidence to the second respondent that demonstrated that matter. More than that, in the Request for Student Visa Information form completed by the applicant the following appeared (again, I have included the applicant’s answer to the relevant question):
Information about enrolment and study in Australia
Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study? *
No
Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
Please give details of all courses that the Main Applicant has been ENROLLED in while in Australia , Please include any:
• cancelled enrolments
• courses successfully completed
• current or future enrolments
For past enrolments where you started the course, please enter your actual dates of study. For future enrolments, please enter your proposed dates of study as shown on your CoE.
Based on the applicant’s response in the Request for Student Visa Information form, the second respondent could not have been satisfied that the applicant was enrolled in a qualifying course of study and accordingly, the only outcome was a finding that reg.500.211 was not me by the applicant.
In his affidavit filed in support of his review application to this Court, the applicant asserts that the decision of the second respondent was affected by “actual bias constituting judicial error”. However, there is nothing in the second respondent’s decision record to demonstrate any bias, either actual or apprehended, on the part of the second respondent. The applicant has made no attempt to particularise his allegation of bias or provide any evidence to suggest that the second respondent had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter.
Conclusion
The grounds of review relied upon by the applicant do not demonstrate any jurisdictional error on the part of the second respondent. The matter raised by the applicant in his affidavit does not demonstrate jurisdictional error on the part of the second respondent. In my view, the application does not raise an arguable case for the relief claimed and ought to be dismissed pursuant to FCCR 44.12 with costs fixed in the sum of $3,737.00 being the sum specified in Division 1, Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 November, 2020.
Associate:
Date: 3 November, 2020
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