Singh v Minister for Immigration

[2020] FCCA 748

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 748

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), Schedule.2
Federal Circuit Court Rules 2001, r.33.12

Applicant: SATVIR SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 420 of 2019

Judgment of: Judge Vasta

Hearing date: 3 February 2020

Date of Last Submission: 3 February 2020

Delivered at: Brisbane

Delivered on: 3 February 2020

REPRESENTATION

The Applicant in Person

Solicitors for the First Respondent: SPARKE HELMORE

ORDERS

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

2. That the Application filed 2 May 2019 is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $3,737.00.

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 420 of 2019

SATVIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 8 April 2019, the Administrative Appeals Tribunal (“the Tribunal”) affirmed a decision not to grant the Applicant, Satvir Singh, a student visa.  That decision was given orally. On 2 May 2019, the Applicant filed an originating application asking this Court to review that decision.  The Tribunal then gave a written record of the decision on 9 May. 

2. The background to this matter is that the Applicant had applied for a student visa on 13 March 2017.  This was another student visa.  He had previously been given a student visa subclass 573 in 2013.  The Applicant came to Australia on 18 September 2013.  What he was to do was to study an English language program for international students and then a Diploma of Information Technology before going on to study a Bachelor of Information Technology.

3. The Applicant completed that English course fairly quickly on 29 November 2013, but he did not commence either the diploma or the bachelor course.  His enrolment in both those courses was cancelled according to the records due to non-commencement of studies. 

4. The Applicant didn’t recommence study until two and a-half years later on 16 May 2016.  At that time, he commenced a certificate IV in commercial cookery.  As can be seen, that is not the sort of course that one would associate with the higher education sector visa.

5. The Applicant was able to successfully complete that course. 

6. In looking, then, at what the Tribunal had to decide with regard to this latest application, the Tribunal correctly pointed out that it needed to look at whether the Applicant was a genuine Applicant for entry to stay as a student because, as per Schedule 2 of the Migration Regulations 1994 (Cth):

   (a)  the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant’s circumstances,

   (ii) the applicant’s immigration history,

   (iii)   any other relevant matter….

7. The Tribunal correctly, then, went about assessing whether the Applicant intended genuinely to stay in Australia. 

8. The Tribunal noted the history that I have already gone through, but also noted that the Applicant had said that he had gotten married during that time that he wasn’t studying.  There was a domestic violence order that had been issued by the Beenleigh Magistrates Court made against the Applicant on 24 February 2015.  That remained in force until 24 February 2017. 

9. There was also a document that evidenced that the Applicant attended Alcoholics Anonymous since 27 July 2017 and that he had attended at a responsible men’s program between 29 September 2016 and 9 February 2017.  There was also a great deal of information that was given to the Tribunal about the medical troubles that the Applicant had had during that period, including his treatment for hepatitis C. 

10. The Tribunal also had some more information from the Applicant in a form called an M17.  That document showed that the Applicant had only returned to India once since coming to Australia and that was for 12 days for medical treatment.  The explanation was that the Applicant was suffering from a sore tooth which would have cost him quite a deal of money to have treated in Australia, whereas, going back to India, he was able to have it treated very cheaply. 

11. The document also disclosed the Applicant had completed high school, had not worked prior to coming to Australia, that he was studying a Diploma of Hospitality, and that he wanted to enrol or have a certificate of enrolment in a bachelor’s course.  It also showed that he had worked as a manager with Oporto from July 2014 to July 2017 and as an Uber driver from February 2018. 

12. The Applicant said he had not been employed since August 2018 and he had annual expenses of $22,800 per annum.  He said that his wife was living with him in Australia and that he had a mother and a brother in India but hadn’t seen them for some time.  His assets in India were a farm, land and house worth $700,000 and $44,000 in savings, as well as in Australia having a car and furniture worth about $18,000.  In that form, the Applicant said that he had no community ties in his home country or Australia but does charity work in both countries.

13. The Tribunal went through his circumstances in India and asked why he needed to do his current course in Australia.  He said that the degrees from Australia have more prestige and are more highly valued and that if he were able to study a Bachelor of Business degree after he had completed his current studies, this would set him up.  He said that that bachelor’s degree would take about two years.

14. The Tribunal looked at answers that the Applicant had given in his M17, noting item 22 where it was asked:

    Please give details of the main Applicant’s contact with family in the home country, if any, and how often this occurs.

    And the Applicant had responded “not sure”.  The Tribunal asked the Applicant to expand on that, and he said that he is very close with his family and contacts them regularly, but intervals would vary from one to four months. 

15. He said that his father had passed away and his mother and brother were in India and his wife was here in Australia.  And he said that his brother farms and his mother does domestic duties, but he is not interested in farming and he hopes to work as a high level chef and one day open his own five star restaurant, possibly in Dubai or Singapore.  He said that if he returned to India, it would be to visit family, and he has no plans to settle there for the long-term.

16. In item 23 of that response, the Applicant said that he maintains no community ties in India but sometimes identifies needy people via the internet and helps them.  He confirmed this in his oral evidence.  He was asked was there any reason he might not want to return to India, and he said there was no reason other than his wife because they have what was described to the Tribunal as an inter-caste marriage. 

17. He said this caused big social problems for his whole family and for him and his wife in particular.  He said that things could get very unpleasant for him and his wife if they returned.  He said that all of his friends and family stopped talking to him because of his marriage and this has also happened to him in Australia.  He said it would help his social status if he returned with a degree.

18. The Tribunal put to him that all of those circumstances point to him not really having any ties to India and would be an incentive for him to stay in Australia.  The Applicant responded to this and he recounted his history with problems with study and depression and that he was being helped in Australia.  He said that he had been through a really bad time, locking himself in his room, and that he needed another chance to prove himself.

19. The Tribunal, looking at those matters, made a finding that the Applicant’s circumstances in India would not present as a significant incentive to return to his home country.  The Tribunal then looked at the Applicant’s circumstances here in Australia looked at what ties he has and how much he was earning here in Australia.  Again, the Tribunal put to him that there was a disparity in the earning he has in Australia compared to his prospective earnings in India and that this could present a significant incentive not to return to India. 

20. The Applicant replied to this saying that if he finds work relating to the diplomas that he has done, he would earn $100 a month and if he has his own business he could earn more, but the actual amount was uncertain.  The Tribunal said that they considered that response but found it unpersuasive and found that there was a significant disparity between the Applicant’s earnings in Australia and his prospective earnings in India and that there was a significant incentive for him not to return to India and remain in Australia.

21. The Tribunal then looked at the value of the current course to the Applicant, and the Applicant admitted that he would not be earning much more than $100 a month with his current qualifications. 

22. The Tribunal again put to the Applicant that his present course of study was of little future economic benefit; that is, the advanced diploma of hospitality.  The Applicant replied to this saying that he needs another chance to prove himself, and he recounted his life struggles and said that he wanted to prove himself.  The Tribunal considered that response and found that the Applicant’s present study is of uncertain relevance to his future economic benefit.

23. The Tribunal then looked at the Applicant’s immigration history, which I have already mentioned.  The Tribunal put to him that the immigration history weighs heavily against him.  The Applicant replied to that saying that he had been in trouble with disease and he had paid his fees which were not refunded for his earlier course and recounted his study and personal and health difficulties and his social difficulties following his inter-caste marriage.

24. The Tribunal aid that they considered that response and found that it did not satisfactorily explain the full period of two and a-half years in which he was not enrolled in study and found that the migration history of the Applicant weighed heavily against him.

25. The Tribunal looked at all of those matters as a whole, especially the fact that there was a disparity of earnings between India and Australia and that there was a strong incentive for him to remain in Australia and a significant incentive for him not to return to India. 

26. Having looked at all of those matters, the Tribunal came to the conclusion that they were not satisfied that the Applicant was a genuine Applicant for entry and study in Australia.  And having come to that conclusion, affirmed the decision that was under review.

27. The Applicant, in his originating application, did not have grounds per se but had one long letter, which I will read into the record:

    I, Satvir Singh, would like to request a review of the Administrative Appeals Tribunal and the Tribunal was taken on 8 April 2019 in Brisbane.  In the beginning, with the first two questions from the Tribunal, it was clearly indicated he was not sure about my case and submission appropriately.  I considered that while I was on my break, I got asked to do so hurry because as the Tribunal member said that he needs to go to Melbourne on that afternoon.  I don’t think so that he is allowed to ask this.  I consider that he was in hurry and he just had to do my interview.  He just had to finish that in that time. 

    I consider the Tribunal member just focused on M17 form, but I also submitted the submission letter in which I explained about each and every circumstance, which is highly considerable to discuss during the time of interview.  But there was no discussion about my any submission and documents submitted at all.  Whole interview indicates that it is just about M17 form.  The Tribunal filed to do the work on time, as when the interview finished the outcomes of the oral decision provided on the same day. 

    But I received a letter from AAT on 10 April 2019 with the decision only but not with the reasons and this letter has no explanation at all. As requested under the Migration Act to get the reasons of the decision, so I emailed them on the same day. After so long wait and even with the telephone communication requested, I assume them – they delaying me with the reasons letter and making my timeframe more difficult. I am not expecting the Tribunal decision to be affirmed where I assume I explained the reasons of my circumstances in the submission letter. Therefore, in the M17 form, the question was properly answered and well-explained with extra submission letter.

    I waited for the reason last from 24 days and have not received any decision reasons letter yet according to my allocate timeframe, which is 35 days, to apply review under migration act.  I submitted the application with only outcomes letter from the Administrative appeals Tribunal, and additionally I submitted the supportive evidence with my affidavit service appeal.  Please consider in addition.  And I would like to add some more information about my case to establish the judicial error in the decision.

28. As I have previously recounted, the Tribunal’s decision was released in written form some seven days after the Applicant had filed this application. 

29. Given the facts of the matter, when the matter came before Registrar Lynch on the first court date on 5 June 2019, it was set down for a show cause application pursuant to r.33.12 of the Federal Circuit Court Rules 2001; that is, I have to be satisfied that the Applicant has raised an arguable case for the relief claimed.

30. When the Applicant appeared before me, I asked him whether he understood the proceedings.  He said that he did, though I have my doubts about that.  The Applicant was asked to make his submissions.  He did so in a somewhat rambling manner with large numbers of pauses and spoke for well over an hour. At times, his wife also spoke for him, though that was more in the beginning of the submissions.

31. The Applicant, rather than concentrating on the errors of the Tribunal, really wanted to reiterate his whole story, which was well and truly contained in the material.  Very helpfully, the solicitor for the Minister summarised the letter that I have read into the record as showing three distinct grievances: 

    (a) That the Tribunal was rushed and unsure about his case;

    (b) The Tribunal focused solely on the form M17, and failed to consider his additional submissions and supporting documentation; and,

    (c) The Tribunal failed to provide him with a copy of the written reasons for decision within 14 days.

32. The third of those matters is really not a jurisdictional error, because the decision had been made on 8 April 2017.  Whether the written reasons are delivered in the timeframe that the Act says that they should be delivered does not in any way vitiate the decision that has been made.  Whilst it is very unfortunate that the Applicant didn’t get the written reasons before he put his application in, that is not a jurisdictional error.  And so I will really only look at the first two of those aspects.

33. The first aspect about the Tribunal being rushed really comes from the Applicant’s assertion that the Tribunal had said to him that they had to go and that they had to be in Melbourne.  The Applicant said that he felt ignored.  He said that he had turned up, at the Tribunal hearing, thinking that the AAT would listen to him, would read all the documents, and he felt very confident. 

34. After the comment was made by the Tribunal member, the Applicant said that he didn’t feel good.  He said that he was there to explain a serious matter to him and it did not seem to him as though the Tribunal was taking the matter as seriously as he had been.  He said that he had wanted the Tribunal to investigate everything that he had said. 

35. What can be seen from the court book bundle, at page 149, is that the Tribunal hearing started at 9.54 am.  The hearing adjourned at 10.02 am.  The hearing resumed at 11.53 am and adjourned at 12.34 am.  The hearing resumed at 12.41 am.  The hearing adjourned at 1.09 pm.  The hearing resumed at 1.13 pm and then the hearing closed at 1.34 pm, when the reasons were then given orally. 

36. That means that the hearing started off with an eight-minute period and then with a 41-minute period, and then for a 28-minute period and then finally a 21-minute period.  So in all, the hearing was around the 100 minute mark, though the time in which the hearing started to when it finished was just 20 minutes short of four hours. 

37. That does not, on the face of it, bespeak of being rushed in any way.   The Applicant says that the Tribunal did not take matters into account.  He claimed that there were 10 things that were very important to him, but there was no mention of those things in the decision, but that the Tribunal had put weight on other matters that he did not see as particularly relevant.

38. When I asked the Applicant to expand on those matters, he spoke of the fact that there was no mention of what he had said had happened to him and the struggles that he had had with the disease and with depression and those sorts of matters.  However, if one does actually look at the reasons of the Tribunal, it shows there that the Tribunal did take those matters into account.

39. At paragraph 31, the Tribunal noted that the Applicant said that he needed another chance to prove himself and recounted his life struggles and that he wanted to prove himself.  At paragraph 34, the Tribunal noted:

    The Applicant said he had been in trouble with disease, that he had paid fees which were not refunded for his earlier course, and recounted his study and personal and health difficulties and his social difficulties following his inter-caste marriage. 

40. It seems to me that the Tribunal did, in fact, know about all those things that the Applicant had submitted and noted that the Applicant did submit those things.  The real issue that the Applicant has is that he is of the view that those sorts of matters should have “carried the day” for him.  When they have not, he has made the assumption that the Tribunal has ignored these matters or not taken into account or rushed.  I cannot see any evidence of rushing and I cannot see any evidence that would show that any major aspect of what the Applicant was saying had been ignored.  For that reason, that ground would fail.

41. The other ground that there was a concentration on the M17 form – also does not seem to have much merit either.  The M17 form was obviously information that the Tribunal had to take into account.  By looking at answers 22 and 23, as I have already recounted, the Tribunal was able to use those answers as part of the reasoning in looking at the ties that the Applicant has, either to Australia and India and the incentive to either stay in Australia or not return to India.  Those are matters that are quite relevant. 

42. As to the amount of weight that the Tribunal puts onto a matter, that is a matter for the Tribunal and really does not amount to any form of jurisdictional error.  So therefore, there is no merit in that ground. 

43. It seems to me that realistically, everything that the Applicant had said is a plea for a favourable outcome and is an attempt to have an impermissible merits review.  There is nothing in the material or in any of the submissions that would allow me to come to a state of satisfaction that this application had raised an arguable case for the relief claimed. 

1. Cause has not been shown. Therefore, I have no option but to dismiss the application with costs in the sum of $3,737.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:   6 April 2020