Singh v Minister for Immigration
[2019] FCCA 2644
•29 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2644 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – decision of the Administrative Appeals Tribunal – where the applicant held no confirmation of enrolment – whether applicant on notice of requirement to be enrolled – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359, 476 Migration Regulations 1994 (Cth), cll.500.211, 500.212 of sch.2 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 |
| Applicant: | MANDHIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 160 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 29 August 2019 |
| Date of Last Submission: | 29 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 29 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr M Sunits |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 160 of 2019
| MANDHIR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
Introduction
By application filed in this Court on 3 May 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal) dated 18 April 2019.
The Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Student (Temporary) (Class TU) visa (the “visa”).
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Court has referenced a Court Book (“CB”) numbering 112 pages (marked as Exhibit 1). It has reviewed the Court Book in detail in preparation for this hearing. The Court has also referenced the applicant’s judicial review application and an affidavit sworn by him on 2 May 2019 (noting, however, that it reads 22 April 2019). The Minister filed an outline of written submissions on 22 August 2019, which the Court has reviewed.
Background
The Minister’s submissions at [3]-[9] accurately summarises the factual background relevant to this matter. The summary provided is detailed and is not argumentative. The Court adopts this summary as its own. It provides as follows.
On 14 March 2017, the applicant applied for the visa (CB 1).
On 13 June 2017, the delegate refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”) because he was not a genuine applicant for entry and stay as a student (CB 50).
On 21 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 60).
On 18 February 2019, the Tribunal wrote to the applicant to invite him to provide further information pursuant to s.359(2) of the Act (CB 66). In that letter the Tribunal stated that the requirements of the visa were such that the applicant must be enrolled in a registered course of study and must be a genuine applicant for entry and stay as a student.
On 4 March 2019, the applicant wrote to the Tribunal and informed the Tribunal that he did not hold a current confirmation of enrolment in a registered course of study in Australia (CB 73).
On 18 April 2019, the applicant appeared before the Tribunal at a hearing, to give evidence and present arguments.
On 18 April 2019, the Tribunal affirmed the delegate’s decision (CB 106).
Tribunal’s decision
The relevant parts of the Tribunal’s decision appear at [5]-[15]. These paragraphs provide as follows.
5. The Tribunal formally wrote to the applicant on 18 February 2019 pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal.
6. The applicant responded to the Tribunal’s request by written instrument lodged with the Tribunal on 4 March 2019. By that instrument the applicant informed the Tribunal, materially, that the applicant does not hold a current confirmation of enrolment (CoE) in a registered course of study in Australia.
7. The applicant appeared before the Tribunal on 18 April 2019 to give evidence and present arguments.
8. While the issue before the delegate was whether the applicant is a genuine temporary entrant, arising from the applicant's response to the Tribunal’s request for information, the issue before the Tribunal became whether, at the time of decision, the applicant meets the enrolment requirement in cl.500.211(a) for a student visa. The applicant acknowledged understanding that the determinative issue before the Tribunal had changed. The applicant was given an opportunity to address the Tribunal in relation to this determinative issue.
9.The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant.
10. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
11. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
12. At the hearing the applicant was given the opportunity to provide enrolment evidence to the Tribunal, such as a copy of a current CoE certificate. No such evidence was forthcoming.
13. The applicant confirmed in sworn evidence that no current enrolment in an approved course of study exists. As such, there is no evidence before the Tribunal that the applicant is enrolled in any approved course of study.
14. Therefore cl.500.211 is not met by the applicant.
15. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. For these reasons, the Tribunal has concluded that the decision under review should be affirmed.
(Without alteration)
Proceedings in this Court
The applicant’s judicial review application contains 21 “grounds” of review as follows:
1. I was born on 9th November 1995 at Kamrani, Rajasthan in India was residing there till Feb 2014.
2. I completed my studies in India including my Intermediate Examination.
3. After completion of my study, I was fascinated to study abroad enhancing my career options & opportunities.
4. After discussing with my family & member's, I concluded choosing Australia to upgrade my study.
5. I applied for my student visa, and fortunately, my application was approved, and I arrived in Australia as the holder of the Student visa on 17th of Feb 2014.
6. I was enrolled in Diploma of Business leading to bachelor's Degree.
7. I was feeling homesick and moved to Perth where my sister was residing.
8. I got enrolled in certificate III in commercial cookery on 9th of Feb 2015 and completed it on 31st of Jan 2016.
9. Further I got enrolled in certificate IV in commercial cookery on 15th of Feb 2016 and completed it on 17th of July 2016.
10. After completion of my cookery courses got enrolled in Diploma of Hospitality management on 25th of July 2016 and completed it on 29th of Jan 2017.
11. I applied for Further extension of student visa on 14th of Mar 2017.
12. My visa was refused on 13 June 2017, my visa application was rejected as case officer thought I was not meeting criteria for genuine temporary entrant.
13. I would like to bring to your attention that I was regular with my studies and completed my courses.
14. I applied for Merit Review of Case with Migration Review Tribunal on 21 st of June 2017.
15. Due to the circumstances beyond my control, my dream of having a successful career was shattered, and I never told my parents about the situation, and due to this I was stressed and was afraid on the consequences when my parents will have when I tell them my real position.
16. I provided facts in support of my application.
17. I appeared for Telephonic interview to present my arguments for the case.
18. On 18th April 2019 AAT dismissed my application and considered enough evidence were not provided towards support of my application as my primary piece of information for refusal.
19. I believe that the tribunal member & case officer has not taken into grant all the circumstances appropriately and has passed the judgement without considering all the relevant information.
20. I believe case officer has made error in judgement by overshadowing supporting documents which were provided to them.
21. I request Federal Circuit Court to reassess my application and substitute a favourable judgement for me.
(Without alteration)
The applicant also filed an affidavit sworn 22 April 2019. That affidavit contained 21 paragraphs that repeated verbatim the “grounds” expressed in the judicial review application.
The applicant was afforded an opportunity to file any amended application, supporting affidavits and an outline of written submissions prior to the matter coming on for final hearing. The applicant did not file any further documents.
The applicant was not legally represented before the Court.
In line with what is now standard practice in this Court, the applicant was provided an opportunity to explain orally in Court what he thought the Tribunal “did wrong”: Bala v Minister for Immigration & Border Protection [2019] FCA 600.
The Court first explained to the applicant that it cannot review the merits of the Tribunal’s decision or grant him the student visa he seeks: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (“Wu Shan Liang”). Rather, the role of the Court is strictly to determine whether or not jurisdictional error arises in the Tribunal’s decision. In effect, that means that the Court must determine if the Tribunal made a material error in arriving at the decision it had on the basis of the materials and the evidence that were before it.
The Court further explained that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort they most commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
Against this background, the applicant was asked to outline what “mistakes” he believes the Tribunal made.
Unfortunately, the matters raised by the applicant did not assist him in relation to the issue of jurisdictional error. They were directed to the merits of the Tribunal’s decision. As indicated, the Court cannot assist the applicant in this respect: Wu Shan Liang at 272.
The Court also notes that, while it is sympathetic to the personal circumstances outlined by the applicant, the Court does not have the discretion to take into account the personal circumstances he raises.
Regrettably, none of the matters identified orally indicate any error in the Tribunal’s decision.
Consideration
Grounds 1-12, 14-15 and 21
The matters raised in these grounds do not identify any jurisdictional error. They are factual matters that are not disputed.
The Court has no reason to doubt that the applicant was “regular” in relation to his studies and did complete his courses.
The Court also sympathises with the applicant when he says that he is stressed about the consequences of having to tell his parents about what has occurred. The Court has no doubt that that is, in fact, true.
However, these are not grounds of review.
Finally, it should be noted that if ground 12 pertains to the delegate’s decision, this Court has no jurisdiction to review the delegate’s decision: s.476(4) of the Act.
Grounds 1-12, 14-15 and 21, accordingly, are dismissed.
Grounds 13 and 18
The Court has interpreted these two grounds as an assertion that the Tribunal decided the applicant’s application on a basis that differed from the delegate.
The basis of the delegate’s decision was that the applicant was not a genuine student. The primary basis of the Tribunal’s decision was that “enough evidence were not provided”.
It is correct that the delegate’s decision was decided on a different basis to the Tribunal’s decision. The question here is whether the Tribunal erred in the sense described in the case of SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. That is, did the applicant have adequate notice of the determinative issue before the Tribunal, particularly in circumstances when the determinative issue was different to that of the delegate.
Here, the applicant clearly had adequate notice that he needed to provide the evidence that he met the enrolment criterion and that if he did not do so this could be a reason for refusing to grant him the visa.
The Court notes as follows:
a)in the invitation to provide information sent to the applicant on 18 February 2019, it stated that it was a requirement of the visa that he be “enrolled in a registered course of study” and that he should provide that information to the Tribunal (CB 66);
b)in his response to the request for information, the applicant was asked a question of whether he had a current confirmation of enrolment in a “registered course of study” to which he answered “no”. Immediately beneath that question was written the following (CB 79):
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.
c)in the invitation to attend a hearing before the Tribunal, the applicant was asked to provide a number of documents including “A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.”. Further, he was asked to provide “Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.” (CB 87); and
d)at the hearing it appears the applicant was advised and acknowledged that the determinative issue before the Tribunal had changed and the issue now was whether he met cl.500.211(a), in relation to which the applicant was given an opportunity to address. He confirmed that he did not have a confirmation of enrolment, no such evidence was “forthcoming” and no such evidence existed (CB 107-108 at [8] and [12]-[13]).
Here, the applicant was aware of the determinative issue in the review and was given ample notice to provide evidence suggesting that he met the relevant criteria. He did not do so.
Grounds 13 and 18 are, accordingly, dismissed.
Grounds 16 and 19-20
Grounds 16 and 19-20 appear to suggest that the Tribunal failed to take into account relevant information and evidence that the applicant had provided.
In the absence of the applicant identifying or particularising what circumstances, information and supporting documents were provided, it is difficult for the Court to determine, precisely, what “relevant material” was overlooked. The applicant’s oral submissions to the Court did not articulate any concerns he has in this respect and there are no particulars in relation to the grounds of review as written.
The Court has done its best to address this issue notwithstanding this lack of detail.
The applicant did provide “facts” to the Tribunal in support of his application. The Tribunal clearly considered those facts. As the Tribunal noted, it was the applicant’s own evidence and information that he was not currently enrolled which was “material” to the Tribunal’s disposition of the application and its conclusion that the applicant be refused the visa.
The only “supporting document” that appeared to be before the Tribunal was the applicant’s response to an invitation to provide information dated 4 March 2019. The applicant also provided “submissions” at the Tribunal hearing and a number of documents from his educational providers regarding his attendance and his completion of various courses.
The Tribunal clearly took into account the response to the invitation to provide information and the information the applicant provided in that response as it has it expressly referred to it at [6] in its decision.
The Tribunal does not reference the applicant’s submissions and the documents he provided at the hearing. However, the Tribunal was not required to reference these as, having referred to the information provided by the applicant at [6] and the applicant’s oral evidence (at [12]) that he was not currently enrolled in any course of study, the applicant did not meet cl.500.211(a) of the Regulations. The need in those circumstances for the Tribunal to consider these documents and the “circumstances” that the applicant referred to in his “submissions” was nugatory as he failed to meet the mandatory criterion of being enrolled in a course of study and the Tribunal was required to refuse the visa on that basis.
Grounds 16 and 19-20 are, accordingly, dismissed.
Ground 17
On one view, ground 17 is another factual assertion that fails to identify any error.
However, for finality the Court makes the following observations:
a)there does not appear to be anything in the materials to suggest that the applicant appeared at the Tribunal hearing by telephone. Rather, the evidence suggests that the applicant appeared in person and “handed” his submissions and documents to the Tribunal at the hearing (see CB 93);
b)in any event, the applicant was invited to the Tribunal hearing in accordance with the requirements of the Act and, on the face of the Tribunal’s decision, he was given an opportunity to present evidence and arguments (CB 107-108 at [7] and [12]-[13]);
c)the applicant was placed on notice of the need to provide a confirmation of enrolment in the invitation to provide information and the Tribunal hearing invitation (CB 66, 77 and 87); and
d)at hearing the applicant was put on notice and acknowledged that the determinative issue before the Tribunal was the enrolment criterion in cl.500.211(a) of the Regulations.
Ground 17, accordingly, is dismissed.
Conclusion
In the absence of the applicant having provided a confirmation of enrolment and in circumstances where the applicant’s evidence was that he did not have one and that no such evidence was forthcoming, the only option for the Tribunal was to dismiss the application, as the applicant failed to meet the mandatory criteria relevant to the visa he sought.
None of the applicant’s grounds of review have identified any jurisdictional error. The Court is otherwise satisfied that no error arises in the Tribunal’s decision as a whole.
The application, accordingly, is dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 19 September 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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