Singh v Minister for Immigration

[2020] FCCA 2963

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2963

Catchwords:
MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – whether finding that applicant did not satisfy reg.500.212(a) was affected by jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359, 359AA, 499

Migration Regulations 1994 (Cth) reg. 500.212(a) of Schedule 2

Applicant: JATINDER SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 27 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: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 15 January, 2020 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 27 of 2020

JATINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 16 December, 2019 by which it affirmed a decision not to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa.

2. The first respondent opposes the application and the second respondent has entered a submitting appearance.

3. The Court directed that each of the parties file and serve written submissions and a list of authorities.  In the case of the applicant that was to be filed by 4:00pm, 28 days prior to the hearing.  However, the applicant has filed no written submissions as directed.  I have the benefit of written submissions from the first respondent.

4. In general terms, the issue in these proceedings is whether the second respondent fell into jurisdictional error when it determined that the applicant did not meet one of the conditions necessary for the grant of the visa, namely reg. 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth).

Background

1. The applicant is a citizen of India who arrived in Australia on 17 June, 2014 as the holder of a Student (Class TU) (subclass 573) visa. On 18 August, 2017 the applicant applied for a subsequent Student (Class TU) (subclass 500) visa. On 10 October, 2017 a delegate of the first respondent refused to grant the applicant the subsequent student visa on the basis that he was not satisfied that the applicant genuinely intended to stay temporarily in Australia and, therefore, did not satisfy subclause 500.212(a) of Schedule 2 to the Migration Regulations.

2. On 19 October, 2017 the applicant sought review of the delegate’s decision by the second respondent.

3. On 2 April, 2019 the second respondent invited the applicant to provide information pursuant to s.359 of the Migration Act 1958 (Cth). As the first respondent submits, that invitation:

   a)put the applicant on notice that it was a requirement of the visa to be a genuine student applicant;

   b)invited the applicant to provide information with respect to his entry and stay in Australia as a student; and

   c)notified the applicant that the second respondent would have regard to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications, made pursuant to s.499 of the Act, in considering the genuine temporary entry requirement, a copy of which was attached to the letter.

4. On 24 April, 2019 the second respondent invited the applicant to appear before it to give evidence and present arguments relating to the issues in his case.  On 17 May, 2019 the applicant appeared at a hearing with the second respondent.

5. On 16 December, 2019 the second respondent affirmed the decision not to grant the applicant the subsequent student visa. The second respondent had regard to the material given to it by the applicant and in particular, the material provided in response to the second respondent’s invitation under s.359 of the Act.

6. The second respondent considered the factors set out in Direction No.69, and made the following findings:

   a)the applicant’s family and financial circumstances in India did not provide an incentive for him to return to India, so as to outweigh the incentive for the applicant to remain living in Australia;

   b)the applicant’s failure to return to visit family in India for nearly five years, while continuing to work in Australia, was indicative that family ties did not provide a significant incentive for the applicant to return to live and work in India;

   c)the applicant’s circumstances in Australia did not provide an incentive for the applicant to return to work and live in India, so as to outweigh the incentive for the applicant to remain living in Australia;

   d)the applicant’s plan to open a restaurant at some point in the future was a “loose conceptual format” and “aspirational”;

   e)it was not satisfied with respect to the reasons given by the applicant concerning the value of studying a Diploma of Hospitality Management in Australia, to the applicant’s future plans to open a restaurant in India;

   f)it was not persuaded by the applicant’s evidence as to his difficulties in undertaking a Diploma of Hospitality in India; and

   g)the applicant had in the past breached visa condition 8516 by changing his bachelor degree studies to vocational education and training courses and did not inform the department to that effect due to a concern that the department would not permit him to stay in Australia and study the VET courses.

7. The second respondent considered that the applicant was using the student visa program primarily to maintain ongoing residence in Australia and so found. The second respondent was not satisfied that the applicant intended genuinely to stay in Australia temporarily so as to meet subclause 500.212(a) of Schedule 2 to the Regulations. It followed that the applicant did not meet the criteria for the grant of the student visa and the second respondent affirmed the decision under review.

8. From that decision the applicant pursues the application for review presently before the Court.  In his application, he specifies nine grounds of review, but not all of them assert error by the second respondent.  Some are simply statements of fact.  The applicant was given the opportunity to file an amended application but did not take up that opportunity.

9. What appears as the second ground of review in his application accurately summarises what appears to me to be the applicant’s complaint with the second respondent’s decision:

   The decision has been made by the AAT is not satisfactory. I am not happy with the decision and request the Federal court to review my case. I was a genuine student at previous attempt, studied four years of education which was completed successful since I am arrived to Australia. Presently I am studying Advanced Diploma Hospitality Management in Skills Institute Australia. I wish study Bachelors of Hospitality & Tourism or Bachelors of Business in Australia.

10. In his grounds, the applicant suggests that the second respondent made jurisdictional errors by:

    a)making a legal error as to the construction of regulation 500.212 of the Migration Regulations;

    b)making a decision which was unreasonable and “unfair of any intellectual process”;

    c)making findings about the applicant’s academic progress which were entirely irrelevant to the relevant statutory inquiry, namely, whether the applicant intended to stay in Australia temporarily;

    d)neglecting the applicant’s claims that the course he now proposes had value for him and his future career in India;

    e)neglecting the applicant’s explanation for the change in his course from a Bachelors program and his explanation about why he was not able to get admission back into Bachelors program.

    f)“creating subjective views about whether further study was necessary to add significantly to my qualifications and life experience to return to my home country as a relevant consideration in relation to whether I intended to stay in Australia temporarily”; and

    g)making a decision that was “irrational and unreasonable of intellectual process” by giving little credit to the assertion that he will return home to join his family and pursue his career and thereby giving his family ties in India no weight at all.

11. The applicant filed an affidavit on 17 August, 2020 annexing evidence of his recent enrolment in a Bachelor of Business degree at the Holmes Institute.  However, this evidence was not before the second respondent, was not considered by it at the time it conducted its review, and I accept the first respondent’s submission that this evidence is irrelevant in the present proceedings.  Moreover, the evidence contained within the affidavit postdates the second respondent’s decision, so, as the first respondent submits, there can be no possible jurisdictional error in the second respondent not having considered it.

Consideration

1. The first discernible basis upon which the applicant contends that there has been jurisdictional error is his contention that the second respondent erred in its construction of regulation 500.212 of the Migration Regulations. At the time of the second respondent’s decision, regulation 500.212 was in the following terms:

   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.

2. The second respondent set out the regulation in its reasons for decision.  It also recorded that in considering whether the applicant satisfies regulation 500.212(a), it needed to have regard to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications, made pursuant to s.499 of the Act. The second respondent noted that the direction required it to have regard to a number of factors when considering the matters specified in regulation 500.212(a). The second respondent recorded that the factors specified in the Direction were not to be used as a checklist but rather, were 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.

3. The applicant argues that the second respondent referred to his educational history in a negative way and that his academic history and progress was irrelevant. At [16] – [18] the second respondent set out the applicant’s study history in Australia. At [32] the second respondent recorded that it put to the applicant, in accordance with s.359AA of the Act, the contents of the Provider Registration International Student Management System records database for the applicant. The second respondent invited the applicant to comment on the information contained within that database.

4. At [34] the second respondent records that the applicant gave evidence that he plans to return to India and open a restaurant near an airport.  He estimated that he would earn AU$10,000 per month running his restaurant, however the second respondent recorded that there was no evidence before it to support the applicant’s income estimation.  The applicant’s plans to open a restaurant near an airport were not well formulated.   He gave no evidence about the details of his plan.  The second respondent considered that the applicant’s plan to open a restaurant at some point in the future was “in a loose conceptual format and is aspirational”.  That conclusion was clearly open to the second respondent on the evidence before it.

5. In his third ground of review the applicant points out that he is still young and he wishes to study “Bachelors of Business or Bachelors of Hostility (sic) and Tourism”.  He claims that “[t]his course will be useful in India to work as Hotel Manager”.  However, it was never the applicant’s case that he would work as a hotel manager in India and that it was necessary for him to undertake a Bachelor of Business or a Bachelor of Hospitality and Tourism to achieve that end.  In the application for the relevant visa the applicant said:

   I wish to claim that I am a genuine temporary entrant and so I have the circumstances that support a genuine intention to remain in Australia temporarily to pursue study at Skills Institute Australia in Certificate IV commercial cookery and Diploma of Hospitality Management. Commercial cookery is the profession which I consider suits me and also it was recommended and advised by career counselors. I always have dreamed of having my own restaurant in India as it is one of the most booming and profitable industries in India and for that reason, after completing my certificate in commercial cookery I would like to do a diploma in hospitality management in business in order to operate my business restaurant successfully in India. Completing my certificate in commercial cookery will provide me with all the skills required to efficiently operate and manage my kitchen, but in order to operate and handle the business effectively and efficiently, I would like to study diploma in hospitality management as well. I have chosen Skills Institute Australia to complete my vocational education because their cooking and hospitality program is focused on the career goals and success with clear outcomes for professional employment. I would like to insist on the point that I am a genuine temporary entrant and I would like to finish my tertiary education in Australia and return back to my home country to establish my own restaurant chain. I have strong family and social ties with my home country. I intend to return to India upon completion of my studies.

6. Those matters were repeated in the applicant’s statement attached to his visa application.  Nothing in his statement attached to his application for review to the second respondent, or any other document for that matter, is consistent with him wishing to pursue a career in hotel management.  This is entirely at odds with his claim now that he wishes to work as a hotel manager.   

7. The second respondent recorded in its reasons that when the applicant first came to Australia he was enrolled in and commenced to study a Bachelor of Business.  However, he soon ceased that level of study and commenced a vocational level of study.  The second respondent recorded that the applicant told it that he changed his study to VET courses as he found studying for a Bachelor of Business very hard and so he changed courses. When he was asked by the second respondent why he did not inform the first respondent’s department about changing his study to VET courses, the applicant initially gave evidence that he did not tell the department because he forgot to do so.  However, in response to a question from the second respondent as to whether he was worried that if he told the department about changing from a Bachelor of Business to VET courses, he would lose his student visa, the applicant said “yes”.  The second respondent concluded that the applicant breached visa condition 8516 of his first student visa when he changed his study to VET courses and did not tell the department about the change.

8. Consideration of the applicant’s study history, his academic progress and his course progression was plainly relevant to the second respondent’s determination concerning reg.500.212.  Such considerations are clearly relevant for the purposes of determining whether the applicant intended genuinely to stay in Australia temporarily, especially in a case where the applicant had already had one student visa and had been in Australia for a lengthy period of time.  The second respondent expressly recognised the importance of allowing for reasonable changes to career and study pathways, as required by Direction No.69 at [43] of its reasons.

9. To the extent that the applicant now argues that his study history, his academic progress, his course progression and the change in his level or stream of study were irrelevant to the second respondent’s consideration, his argument must be rejected.

10. Further, contrary to the applicant’s argument, the failure by the second respondent to consider the value of the applicant’s courses of study or his proposed courses of study to a career in hotel management was not an error on the part of the second respondent because that case was never put to it by the applicant.  

11. Moreover, the second respondent did consider the value of the applicant’s studies to his professed future plans of opening a restaurant in India.  The second respondent said:

    34. The applicant gave evidence that he plans to return to India and open a restaurant near an airport. The applicant estimates earning AU$10,000 per month running his restaurant. There is no evidence before the Tribunal to support the applicant’s income estimation. There is no evidence before the Tribunal setting out the details of the applicant’s plan to open a restaurant. The Tribunal considers the applicant’s plan to open a restaurant at some point in the future is in a loose conceptual format and is aspirational.

    35. Having regard to the evidence, the Tribunal was not satisfied by the applicant’s reasons as to the value of studying a Diploma of Hospitality Management in Australia in respect of the applicant’s future plans to open a restaurant.

12. This was a matter to which the second respondent’s attention was directed by Direction No.69.  The second respondent was entitled to consider these matters and make the findings that it did based upon the applicant’s case before the second respondent.  The way in which the second respondent treated the question of the value of the applicant’s courses of study to his future vocational aspirations does not suggest jurisdictional error in the second respondent’s decision.

13. The second respondent was obliged to consider the applicant’s family circumstances.  It did so by recording where the applicant’s family lived and it considered his evidence about the contact that he had with his family since he has been in Australia.  It is not suggested that the second respondent misunderstood any of the evidence given by the applicant about those matters.  The second respondent concluded that because the applicant had not returned to India to visit his family but nonetheless had taken time out of his study load to pursue employment in Australia (having secured permanent employment), his circumstances in Australia did not provide any incentive for the applicant to return to work and live in India that outweighed the incentive for the applicant to remain living in Australia.  On the evidence before the second respondent, such a finding was clearly open. 

14. To the extent that the applicant now asserts in his application for review that ‘[a]ll family members live in Australia’ his assertion is clearly at odds with his own evidence that he gave to the second respondent and the findings made by the second respondent about those matters at [22]–[26] and [30] of its reasons.

1. The second respondent considered the applicant’s family circumstances at [20] and [22] – [25] of its reasons.  At [25] the second respondent did not accept the applicant’s evidence as to having a strong relationship with his family.  It did not accept that he had not travelled to India to visit his family in nearly five years because of his studies.  At [26] the second respondent recorded that it considered that the applicant’s family and financial circumstances in India did not provide an incentive for the applicant to return to work and live in India that outweighed the incentive for the applicant to remain living in Australia.

2. The second respondent was obliged to consider these matters.  To the extent that the applicant argues that they were irrelevant, they were not. They were properly considered by the second respondent.  The second respondent’s reasons reveal that it weighed the various matters it referred to in those paragraphs to which I have just referred, and reached its expressed conclusion.  That conclusion was open to it on the material before it.  It was neither irrational, nor illogical.  The second respondent’s reasoning by which it reached that conclusion is adequately exposed in its decision record.

Conclusion

1. The applicant’s argument that the second respondent has misconstrued or misapplied regulation 500.212 has no merit.

2. The applicant’s argument that the second respondent’s decision was unreasonable in the legal sense, or that the second respondent engaged in irrational or illogical fact finding has no merit.

3. The applicant’s grounds of review, as amplified by him in his oral argument, expresses discontent with the second respondent’s decision, but do not disclose jurisdictional error.

4. The application must be dismissed with costs in the sum claimed by the first respondent.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 November, 2020.

Associate:

Date: 3 November, 2020