Singh v Minister for Immigration

[2020] FCCA 183

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 183

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant not enrolled in a course of study at the time of the Tribunal decision – applicant declining a hearing before the Tribunal – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.359, 359A, 360, 363A, 379A
Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v SZMDS (2010) 240 CLR 611

Applicant: SUKHJIT SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1970 of 2019

Judgment of: Judge Driver

Hearing date: 31 January 2020

Delivered at: Sydney

Delivered on: 31 January 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms Q Ren of Australian Government Solicitor

ORDERS

1. The application filed on 2 August 2019 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1970 of 2019

SUKHJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 July 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Singh a temporary student visa.

2. Background facts relating to Mr Singh’s visa application and decision of the Tribunal on it are set out in the Minister’s outline of submissions, filed on 16 January 2020.

3. Mr Singh, born in 1987, is a citizen of India[1].  He first arrived in Australia on 2 June 2014 on a tourist visa, departing on 13 August 2014.  From 3 January 2015 to 9 December 2015 he entered Australia on three occasions on a second tourist visa. On 8 February 2016 Mr Singh applied for a student (Class TU subclass 573) visa as the dependent of his ex-wife. That visa, granted on 19 April 2016, was valid until 30 September 2017. [2]  

   [1]     Court Book (CB) 2

   [2]     CB 36

4. On 15 June 2017 Mr Singh lodged his own application for a student (Class TU subclass 500) visa (visa).[3] In his application, Mr Singh stated he had separated from his ex-wife.[4]

   [3]     CB 1-17

   [4]     CB 3, 22

5. On 11 August 2017 the delegate, not being satisfied that Mr Singh genuinely intended to stay in Australia temporarily as required by clause 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), refused to grant the visa.[5]

   [5]     CB 33-37

6. On 22 August 2017 Mr Singh applied to the Tribunal for review of the delegate’s decision.[6]  Mr Singh did not appoint a representative.[7]

   [6]     CB 38-39

   [7]     CB 61

7. On 25 February 2019, the Tribunal wrote to Mr Singh inviting him to provide information on the courses of study he was undertaking and his entry and stay in Australia as a student, pursuant to s.359 of the Migration Act 1958 (Cth) (Migration Act) (s.359 letter).[8]  In that letter, the Tribunal requested Mr Singh to complete an attached “Request for Student Visa Information form” (Request Form) by 11 March 2019.

   [8]     CB 68-69

8. On 11 March 2019, Mr Singh emailed two documents to the Tribunal. One was a statement to the Tribunal with submissions regarding his circumstances.[9] The second was a completed Request Form. In section 2, question 2 of the Request Form, Mr Singh ticked “Yes, I/we consent to the Tribunal deciding the review without a hearing”.[10]  In section 6, question 14, Mr Singh ticked “No” in response to the question “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?”.[11]  Mr Singh signed the Request Form.[12]

   [9]     CB 90

   [10]    CB 79

   [11]    CB 83

   [12]    CB 89

9. On 8 July 2019, the Tribunal affirmed the delegate’s decision.[13]

   [13]    CB 97-99

Tribunal decision

1. The Tribunal noted that Mr Singh gave consent for it to determine the review without a hearing,[14] and proceeded to determine the review application on the papers.[15]

   [14]    CB 98 at [4]

   [15]    CB 98 at [5]

2. The Tribunal referred to clause 500.211(a) of the Regulations which required that, at the time of the Tribunal’s decision, Mr Singh be enrolled in a course of study. The Tribunal noted Mr Singh did not claim to meet any of the alternative criteria in clause 500.211.[16]

   [16]    CB 98 at [8]

3. The Tribunal noted that, in response to the s.359 letter, Mr Singh advised that he did not have a current Confirmation of Enrolment (CoE) in a course of study.[17] The Tribunal was not satisfied that Mr Singh was enrolled in a course of study as required by clause 500.211(a) of the Regulations for the grant of the visa[18], and accordingly affirmed the delegate’s decision.[19]

   [17]    CB 99 at [13]

   [18]    CB 99 at [14]

   [19]    CB 99 at [15]

4. These proceedings began with a show cause application filed on 2 August 2019.  Mr Singh continues to rely upon that application.  The grounds in it are:

   1.The Administrative Appeals Tribunal acted in an unreasonable manner when it failed to consider the decision record by the Department of Immigration and Border Protection for the Applicant dated 11 August 2017.

   PARTICULARS

   The Tribunal decision record at paragraph 11 states "The Tribunal has carefully considered the delegate's decision record dated 26 July 2017, a copy of which was provided to the Tribunal by the review applicant with the application for the review.[”] Whereas, the delegates decision record is dated 11 August 2017. Therefore, it appears that the Tribunal has not carefully considered the delegate’s decision record applicable to the Applicant.

   2. The Administrative Appeals Tribunal decision is procedurally unfair

   PARTICULARS

   a) The Tribunal decision record at paragraph 4 states "The applicant provided a written response to a s.359(2) request for information. The applicant advised the tribunal he consented to the tribunal deciding the review application without a hearing". Whereas, the Applicant did not provide such a comment or consent.

   b) The Tribunal decision record at paragraph 13 states "In his written response to a s.359(2) request for information the applicant advised the Tribunal he did not have a current Confirmation of Enrolment (COE) in a course of study". Whereas, the Applicant did not provide such a comment.

5. The application was supported by an affidavit filed with it.  I received [4] of that affidavit as a submission, and the balance as evidence. 

6. I also have before me as evidence the court book, filed on 29 September 2019.

7. I invited oral submissions from Mr Singh this afternoon.  He was supported in that by his wife, Ms Rana.  Ms Rana, unlike Mr Singh, speaks excellent English.  It transpired that most of the submissions were made on behalf of Mr Singh by Ms Rana.

8. Ms Rana is clearly highly supportive of her husband.  I should stress, for clarity, that Ms Rana is not the same wife who Mr Singh separated from in 2017.  Ms Rana is an Australian permanent resident.  I queried with Ms Rana whether she and Mr Singh contemplated him making a partner visa application at some stage.  That indeed is their intention, although they do not intend to make that application until this matter is resolved.

9. Mr Singh, through Ms Rana, drew my attention to CB 1, where a CoE is referred to.  It appears that the delegate accepted, at least implicitly, that Mr Singh had a current CoE at the time of the delegate’s decision.

10. Mr Singh’s difficulty is that after he sought review before the Tribunal, he responded to correspondence from the Tribunal, stating that he did not have a current CoE.  It appears that Mr Singh was assisted in making that response by a Tamil friend, whose knowledge of his circumstances was not adequate.

11. Be that as it may, neither Mr Singh nor Ms Rana were able to point me to anything to establish that the statement made by Mr Singh to the Tribunal was factually incorrect.  Mr Singh also declined the hearing opportunity he was offered.  In the circumstances, it is hardly surprising that the Tribunal rejected the visa application on the basis of a lack of a current enrolment.

12. The Tribunal decision is a brief one.  The decision contains at least two errors.  At [5], the Tribunal incorrectly states that Mr Singh was assisted in the review by a registered migration agent.  At [11], the Tribunal incorrectly records the date of the delegate’s decision.

13. These are unfortunate errors, but, in my view, they do not go to jurisdiction.  Whether or not Mr Singh was assisted by a migration agent is not, in my view, a matter which the Tribunal regarded as determinative.  The Tribunal’s decision elsewhere establishes that the Tribunal was having regard to the correct delegate’s decision.

14. The errors made by the Tribunal, however, led me to the view that, although this matter was listed today for a show cause hearing, the decision should be completed on the basis of final orders.

15. In other respects, I agree with the submissions made by the Minister in relation to the grounds of review.  The relevant legislative provisions are as follows:

16. Section 359 of the Migration Act governs the Tribunal’s procedural fairness obligations in seeking additional information. That section provides:

    (1)   In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

    (2)  Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

    (3)  If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

    (a)  except where paragraph (b) applies--by one of the methods specified in section 379A; or

(b)  if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

1. Section 359A(1) sets out the Tribunal’s obligation to put clear particulars of certain information to the applicant, while s.359A(4) provides an exception to this obligation. Section 359A relevantly provides as follows:

   (1)     Subject to subsections (2) and (3), the Tribunal must:

   (a)   give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)   ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)   invite the applicant to comment on or respond to it.

   …

   (4)     This section does not apply to information:

   ...

   (b) that the applicant gave for the purpose of the application for review; …

2. Section 360 sets out the Tribunal’s obligation to invite an applicant to a hearing as follows:

   (1)   The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)     Subsection (1) does not apply if:

   (a)   the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

   (b)   the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)   subsection 359C(1) or (2) applies to the applicant.

   (3)       If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

3. Section 363A in Division 5 Part 5 of the Migration Act provides as follows:

   If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

4. I agree with the Minister’s submissions relating to the grounds of review advanced.

Ground 1

1. I accept that at [11] of its decision, the Tribunal misstated the date of the delegate’s decision record as “26 July 2017”.[20]  The correct date of the decision was in fact 11 August 2017.[21]

   [20]    CB 99 at [11]

   [21]    CB 29

2. The Minister submits that this appears to be simply a typographical error.  Perhaps a proofreading error might be more accurate.  Reading the Tribunal’s decision as a whole, it is clear the Tribunal considered the delegate’s decision relating to Mr Singh. At [1], the Tribunal refers to the correct date of decision and accurately describes it. The Tribunal then provided an accurate summary of the delegate’s findings at [3] of its decision.[22] The reasons correctly record the material provided by Mr Singh to the Tribunal.[23]

   [22]    CB 98 at [3]

   [23]    CB 99 at [12]-[13]

3. To the extent that Ground 1 contends that the Tribunal acted unreasonably in failing to consider the delegate’s decision, this was not the case. The single erroneous date in [11] is very far from establishing any jurisdictional error or legal unreasonableness.

4. To the extent that Mr Singh contends that the Tribunal’s factual findings were unreasonable, the issue is better characterised as whether or not the Tribunal’s decision was illogical or irrational.[24] Here, the Tribunal’s factual findings were open to it on the material before it. Having concluded, on information provided by Mr Singh himself, that he did not have a CoE at the time of the Tribunal’s decision as required by clause 500.211(a), an essential criterion for the grant of a student visa, the Tribunal was bound to affirm the delegate’s decision. The Tribunal’s factual findings were logical and rational.

   [24]    Minister for Immigration v SZMDS (2010) 240 CLR 611 at [128]-[130] (Crennan and Bell JJ)

5. Ground 1 does not disclose any jurisdictional error.

Ground 2

1. Ground 2 asserts that the Tribunal decision was procedurally unfair. The particulars fail on a factual level:

   a)particular 2(a): Mr Singh provided consent to the Tribunal to determine the decision without a hearing in his completed Request Form which he signed and dated on 10 March 2019.[25]  Mr Singh submitted the form to the Tribunal on 11 March 2019. Further the Request Form clearly advised Mr Singh that by giving such consent, he “will not be invited to appear at a hearing to give evidence and present arguments” and that he needed to provide Tribunal with “all the information you would like us to consider”; and 

   b)particular 2(b): Mr Singh stated in the Request Form that he did not have a CoE in a registered course of study.[26] He did not provide any other information in response to the s.359 letter to indicate the contrary.

   [25]    CB 79 at question 2

   [26]    CB 83 at question 14

2. Further, the Tribunal decision was free from any procedural error for the following reasons.

Section 359 letter

1. The Tribunal’s s.359 letter complied with the statutory requirements because the letter:

   a)made the requests in writing: s.359(2)

   b)was sent to the applicant by email, a method permitted by s.379A(5) and

   c)the Tribunal had regard to, and relied on, the information that the applicant was not enrolled in a course of study to affirm the delegate’s decision: s.359(1).

2. As the information that Mr Singh did not have a current CoE was provided by Mr Singh for the purpose of the review, the Tribunal was not required to invite him to comment or respond to that information.[27]

   [27] section 359A(4)(b)

Determining the review without a hearing

1. The Tribunal had jurisdiction to determine the review on the papers.

2. Pursuant to s.360(1) of the Migration Act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal’s obligation under s.360(1) does not apply where an applicant consents to the Tribunal deciding the review without the applicant appearing before it.[28] Further, pursuant to s.360(3) of the Migration Act, where an applicant has provided such consent under s.360(2)(b), the applicant is no longer entitled to appear at a hearing before the Tribunal. By operation of s.363A, where the applicant is not entitled to a hearing, the Tribunal does not have power to invite the applicant to a hearing.

   [28] section 360(2)(b)

3. As a consequence of Mr Singh’s consent on 10 March 2019, the Tribunal was not required, and indeed had no power to invite him to a hearing.[29] In these circumstances, the only option open to the Tribunal was to proceed to determine the review on the papers. The decision to proceed on such basis could not be said to be procedurally unfair.

   [29] sections 360(2), 360(3) and 363A

4. Ground 2 fails.

5. I conclude that Mr Singh is unable to establish that the decision of the Tribunal is affected by a jurisdictional error.  The decision is therefore a privative clause decision.

6. I will order that the application filed on 2 August 2019 is dismissed.

7. In consequence of the dismissal of the application, the Minister seeks an order for costs, in the sum of $3,667.  Some discussion followed between me and Ms Rana, but it was inconclusive.

8. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 February 2020