Singh v Minister for Immigration
[2019] FCCA 3172
•30 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3172 |
| Catchwords: MIGRATION – Application for student visa – non-compliance with relevant criteria – finding that the applicant did not have a genuine intention to study – finding that applicant’s intention was to stay in Australia for economic reasons – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476, 499 Migration Regulations 1994 (Cth), Schedule 2, cl.800.212 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | GURJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 166 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 30 October 2019 |
| Date of Last Submission: | 30 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 30 October 2019 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Mr Cummings of Sparke Helmore |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.’
The application for review filed on 20 February 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review, fixed in the amount of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 166 of 2019
| GURJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS. |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who arrived in Australia on 15 January 2014 as the holder of a student visa. On 14 March 2017, the applicant applied for a student (temporary class TU) visa pursuant to the provisions of s.65 of the Migration Act 1958 (Cth) (the Act).
On 1 June 2017, a delegate of the Minister refused to grant the visa.
On 3 June 2017, the applicant made application to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision. On 28 September 2018, the Tribunal invited the applicant to attend a hearing before it. That invitation also requested that the applicant provide evidence that he was at the time enrolled in a course of study.
On 12 November 2018, the applicant filed supporting documents to be considered by the Tribunal.
On 14 November 2018, the applicant attended the Tribunal hearing per telephone.
On 28 November 2018, the applicant filed supporting financial documents with the Tribunal.
On 11 February 2019, the Tribunal affirmed the delegate’s decision.
On 20 February 2019, the applicant filed an application for review of the decision of the Tribunal pursuant to the provisions of s.476(1) of the Act.
The relevant criteria for consideration in this matter are as set out in Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 500.212 provides as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
At [18] of its reasons, the Tribunal noted that for the purpose of considering whether the applicant satisfied the criteria under clause 500.212(a) it must have regard to Direction Number 69 titled “Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications” which were made pursuant to the provisions of s.499 of the Act. That direction required the Tribunal to have regard to a number of specified factors as set out in [18] as follows:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
At [1]-[15] of its reasons, the Tribunal summarised the applicant’s relevant education history.
At [9] of its reasons, the Tribunal recorded that the delegate had noted that records indicated that after the applicant’s cancellation of his studies due to non-commencement of study for the Diploma of Business and Bachelor of Business in July 2014, the applicant then enrolled with another education provider and did not complete studies in a Certificate III Diploma of Horticulture, Diploma of Management and Bachelor of Business. It was recorded that the delegate noted that the applicant then went on to enrol in and complete courses in a Certificate IV course in Small Business Management, Diploma of Business and Advanced Diploma of Business with a different education provider. At the time of the application for the Subclass 500 Student Visa, the applicant was proposing to study a Certificate IV course in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business, the latter course being due to finish in November 2021.
At [10] of its reasons, the Tribunal recorded that the delegate had noted that the applicant had not attempted to use his qualification to gain employment in India, and further, that the applicant had failed to provide a clear career plan following the completion of his studies. It was noted that despite having twice previously enrolled in a Bachelor of Business type of higher education sector course, the applicant had never attempted to study the course.
At [20] of its reasons, the Tribunal recorded that it was satisfied that the applicant had provided evidence that he had successfully completed the following:
·Certificate IV in Small Business Management – August 2015 / January 2016
·Diploma of Business - February 2016 / August 2016
·Diploma of Business – September 2016 / April 2017
·Certificate IV in Commercial Cookery – August 2017 / July 2018
At [21] – [25] of its reasons, the Tribunal analysed the applicant’s past study history and found that the applicant had not provided convincing explanations for his failure to commence the Bachelor of Business course, or for his failure to complete any courses between January 2014 and August 2015.
At [25] of its reasons, the Tribunal found that it was not satisfied that the applicant had provided a convincing explanation for his failure to commence the higher education sector bachelor of business course which he had enrolled in during 2014 and 2015, nor was it satisfied as to the applicant’s explanation for his failure to complete any courses in the period from when the applicant commenced study in Australia in January 2014 up until August 2015 – a period of some 20 months. The Tribunal had significant concerns about the applicant’s motivation for seeking to maintain residency in Australia on the basis of study in circumstances where he had not been diligent in pursuing such study.
The Tribunal noted the applicant’s concession that he had enrolled in the Bachelor of Business course for a second time because he was concerned about his visa status rather than from a genuine wish to undertake such higher education course. The fact that the applicant had failed to commence the Bachelor of Business course added weight to the concerns about the applicant’s study history and the actual motivation behind his study choices.
Whilst noting at [26] of its reasons that the applicant’s study and work experience in the hospitality sector had improved his chances of employment in India or a third country, the Tribunal was not satisfied that the applicant’s study in the hospitality sector was the applicant’s primary motivation for seeking to maintain residency in Australia.
At [27] – [28] of its reasons, the Tribunal found that it was not persuaded that the applicant truly wished to study in Australia rather than India, nor the applicant wanted to open his own restaurant business in India. The Tribunal placed limited weight on the latter claim because the applicant had not provided any evidence of research he had undertaken in relation to specific employment or other business opportunities in India following the completion of any study in Australia.
At [31] of its reasons, the Tribunal noted that the applicant’s gross earnings were as follows:
a)March-May 2014: $3651.00
b)2015 income year: $3898.00
c)2017 income year: $19,297.00
d)2018 income year: $50,024.00
At [32] of its reasons, the Tribunal noted that, upon a review of the applicant’s CBA Smart Access account bank statements, there was no indication in such documentation that funds had been remitted to the applicant from his family in India for the payment of his education expenses. There was a regular payment of the sum of $793 per week from “SR Transport” which the Tribunal took to be earnings from the applicant’s employment with the transport company. There were also records of significant sums of money being transferred between other CBA accounts in the applicant’s name. Having perused such documentation, the Tribunal was concerned that the applicant had not been fully transparent in relation to the provision of financial records as to his earnings whilst in Australia.
At [33] of its reasons, the Tribunal did not accept the applicant’s claim that his living and education expenses had been paid by his parents, nor did it accept the applicant’s subsequent oral evidence that his education fees were mostly paid for from funds sent to him by his parents. The Tribunal was concerned that the income did not evidence money received by the applicant from working in an Indian restaurant called “Saabi’s Kitchen Restaurant”. On the basis of such financial documentation and of its concerns about the applicant’s earnings having been understated, the Tribunal expressed its concern that the applicant had an economic incentive for seeking to maintain his residency in Australia rather than the incentive of obtaining academic qualifications.
At [34] of its reasons, it was noted that the applicant, whilst having parents, siblings and numerous other relatives living in India, had no relatives in Australia. It was also noted that the applicant had said that he had no military service commitments in India, and no concerns about returning there because of any civil or political unrest.
At [5] of its reasons, it was noted by the Tribunal that the applicant was assisted during the course of the Tribunal hearing by a registered migration agent.
At [36] of its reasons, the Tribunal recorded that, after having considered all of the available evidence before it, it did not accept that the applicant was undertaking any study at the time of the decision, for the reasons claimed, but rather was using such study as a means to maintain residence in Australia, presumably for the purpose of earning income.
At [37] of its reasons, the Tribunal found that it was not satisfied that the applicant was a genuine applicant for entry and stay as a student. Accordingly, the Tribunal found that the applicant had not satisfied the relevant criteria as set out in clause 500.212(a). Having found that the applicant did not satisfy the clause 500.212(a) criteria, the Tribunal was not then required to consider the clause 500.212(b) criteria.
The lengthy grounds of application filed with the application for review, which were attached to such application, were conveniently summarised by the lawyers for the first respondent as follows:
a) “The department and AAT has not considered relevant life aspects and circumstances”.
b) The Department’s decision should be reversed as “the Case Officer’s decision seems vague and obscure”.
c) “[He] has never breached the requirements of cl. 500 of Schedule 2”.
d) The Department’s “lack of understanding of the global hospitality and food market led to the adverse decision”.
e) He is an “extraordinary student” and had been enrolled and studying throughout his stay in Australia.
This Court agrees that the “grounds” are largely a request on the part of the applicant to engage in an “impermissible merits review”, something which this Court cannot do.
Proceeding on the basis that ground A was an assertion that the Tribunal had failed to take into account relevant considerations, the Tribunal did consider the applicant’s relevant past study history ([20]–[22]), the applicant’s career aspirations ([27]–[28]), the applicant’s employment history ([29]), the applicant’s financial circumstances ([31]–[32]), and the applicant’s ties to India and Australia ([34]).
The assertion that the “case officer’s decision seems vague and obscure” is so lacking in particularity as to be meaningless. The decision of the Tribunal was clear and coherent, and the Tribunal appropriately dealt with the evidence before it. It was not vague or obscure. There is no merit to that ground.
As to the applicant’s compliance with visa conditions, and whether the applicant did or did not so comply, it ought to be inferred that the Tribunal relevantly considered such matters because it recorded, at [18] of its reasons, that it “must have regard to direction number 69, and the criteria set out thereunder”. That is indeed so because the applicant set out the relevant dot points which had to be considered under direction number 69 and relevantly addressed those matters in the direction which needed to be addressed. It should not be inferred that a decision-maker failed to consider an issue where its reasons are comprehensive and where the issue in question had been referred to during the course of its reasons. [1]
[1] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236
FCR 593 at [46] – [47] per French, Sackville and Healy JJ.
It is also of note, in relation to the visa compliance issue, that the applicant did not advance any evidence or submission relating to his compliance or non-compliance with such conditions. The Tribunal is not required to tease out of an applicant information which the applicant does not himself or herself consider of relevance on the question of whether or not a study visa should be granted or refused.
In any event, Direction 69 did not constitute a list of mandatory considerations to be taken into account. Rather, they were matters which “should” have been taken into account. Item 1 in Direction Number 69 reads as follows:
“Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.”
The case of Singh v Minister for Immigration & Anor [2018] FCCA 3423 cited by the applicant is distinguishable on the basis that her Honour Judge Riley was there dealing with Direction 53, which provided that the decision-maker “must have regard” to the listed factors in such direction. Direction 69 uses the word “should” have regard to the matters listed, and therefore imports a discretion, depending on the circumstances of the case. [2]
[2] South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 at
38 per King CJ; BHP Billiton v Parker (2012) 113 SASR 206 at 257-258.
There is no merit to the other possible grounds identified by the first respondent. The assertion that the department lacked an understanding of the global hospitality and food market was an irrelevant assertion. It was the decision of the Tribunal which was under the microscope, not the capacity of the department to either understand or not understand any particular aspect of global hospitality or global food marketing.
As to the assertion that the applicant was an extraordinary student, again, such matter, unparticularised as it is, is unable to be appropriately addressed by this Court. However, the Tribunal did have regard to the applicant’s relevant study history, and, to the extent that it did so, it cannot be criticised on the basis that it had overlooked consideration of a relevant matter.
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429, at [25] – [27] where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, at [66] and [76], where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The application for review is without merit and is dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 13 November 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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