Singh v Minister for Immigration
[2019] FCCA 2126
•26 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2126 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) Subclass 572 visa – application for judicial review – review of decision of Administrative Appeals Tribunal – whether failure to consider relevant information and evidence – whether Tribunal denied applicant procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.363, 476 Migration Regulations 1994 (Cth), cl.572.222, 572.223, schs.2, 5A |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | GURPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 3 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 26 July 2019 |
| Date of Last Submission: | 26 July 2019 |
| Delivered at: | Perth |
| Delivered on: | 26 July 2019 |
REPRESENTATION
| Applicant: | In person (via telephone) |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The first respondent’s name be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 3 of 2017
| GURPREET 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 30 December 2016, the applicant seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 6 December 2016.
The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 572 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.
Before the Court is the applicant’s application, an affidavit sworn by the applicant on 30 December 2016, a Court Book (“CB”) comprising 99 pages (which was marked as Exhibit 1) and the Minister’s written submissions filed on 3 July 2019.
Background
The Court notes that the Minister’s submissions at [3]-[9] provide a detailed chronology of this matter. The Court has reviewed the Court Book in detail. The Minister’s summary is accurate and the Court adopts it as its own.
The applicant is a citizen of India who arrived in Australia on 23 September 2008 to study a Diploma of Community Welfare (CB 40). The applicant has enrolled in and variously completed, cancelled, deferred, and been suspended from a number of different courses in business, nursing, and hospitality since then (CB 44-45). On 12 October 2015, the applicant applied for the visa in order to study a Diploma of Hospitality (course dates 6 July 2015–1 January 2016) and an Advanced Diploma of Hospitality (course dates 4 January 2016–30 December 2016) (CB 1-8, 18 and 26-29). The applicant finished the Diploma of Hospitality, but his enrolment in the Advanced Diploma was cancelled on 18 May 2016 due to non-payment of fees (CB 75). There is no evidence that the applicant has enrolled in any other course of study since then.
On 13 October 2015, the Department requested that the applicant provide further information in relation to the financial capacity criteria (amongst other criteria) (CB 34-43). The applicant did not respond to this request.
On 7 December 2015, a delegate of the Minister refused to grant the applicant the visa (CB 50-53). The delegate found that the applicant had not provided evidence that he had access to funds in accordance with Schedule 5A of the Migration Regulations 1994 (Cth) (the “Regulations”) and therefore was not satisfied that the applicant met cl.572.223(2) of Schedule 2 to the Regulations.
On 8 December 2015, the applicant’s newly appointed representative wrote to the Department and sought that the Department “simply increase [the applicant’s] current visa by two months” to cover the full length of the applicant’s course (CB 54-55). On 23 December 2015, the Department responded and stated that the application had been finalised and no further assessment could be made and, in any event, the Department did not extend visa dates (CB 62-64).
On 24 December 2015, the applicant lodged an application for review in the Tribunal (CB 65-66).
By correspondence dated 9 November 2016, the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues in his case (CB 71-74). In that correspondence, the applicant was requested to provide:
a)a current certificate of enrolment;
b)documents to show that he was enrolled in a course or had an offer of enrolment in a registered course; and
c)documents that demonstrate that he had sufficient funds, or access to funds, to pay course fees, living costs, school costs and travel costs for the relevant period.
The applicant did not respond to the request.
On 6 December 2016, the applicant appeared before the Tribunal as scheduled (CB 78-81). He did not provide any further documentation at the hearing.
Tribunal Decision
The applicant attended a hearing before the Tribunal on 6 December 2016. The Tribunal made an oral decision at that hearing affirming the delegate’s decision. The written record of the reasons for decision was settled on 18 January 2017.
The Tribunal’s decision is short. Relevantly, [3]-[18] of the Tribunal’s decision state:
STATEMENT OF DECISION AND REASONS
3. You lodged this application for a further student visa on 12 October 2015.
4. To be eligible for the grant of a visa an applicant must satisfy a range of criteria set out in the regulations.
5. On 13 August 2015 you were asked to provide evidence of access to $23,376. You failed to provide the requested evidence and consequently on 7 December 2015 your application was refused.
6. You applied to the Tribunal for review of the decision.
7. On 4 January 2016 we sent you a letter acknowledging your application and stating that if you wished to provide material or written arguments for us to consider, you should do so as soon as possible. Nothing was received
8. In conducting a de novo review the Tribunal looks at whether you satisfy the requirements for a visa.
9. The original decision put you on notice of the issue in your case being the provision of financial evidence.
10. The invitation to this hearing was sent on 9 November 2015 and provided considerable detail about evidence you were asked to provide at least a week before today's hearing but nothing was received.
11. The requested evidence included evidence you were currently enrolled or held a current offer of enrolment.
12. You told the Tribunal at today's hearing you are not currently enrolled, do not have a current offer of enrolment and were awaiting the Tribunal decision before you sought enrolment.
13. As it explained in the hearing invitation, current enrolment is a prerequisite for the grant of a visa so on that grounds you do not satisfy clause 572.222 which is a prerequisite for the grant of a visa.
14. You have been in Australia studying since 2008 and this is your fourth application for a student visa.
15. Despite request to do so, you have failed to provide any financial evidence. When I ask you why, you respond that it is difficult to get evidence from India and perhaps if you could be given more time you could get the evidence required.
16. You have been here since 2008, this is your fourth application, you have had more than a year and in the circumstances I believe you have had ample time and opportunity to provide the required evidence.
17. The Tribunal finds you do not meet the enrolment requirements of clause 572.222 or the financial capacity requirements of Schedule 5A and therefore you do not meet clause 572.223.
18. It is therefore the decision of this Tribunal to affirm the decision under review.
Proceedings in this Court
The applicant has now applied for review in this Court. His application for judicial review provides two “grounds of review”:
1. Jurisdictional error as outlined in attached Affidavit
2. Applicant denied procedural fairness by Tribunal Member as outlined in attached Affidavit
The applicant’s affidavit contains 3 paragraphs. Those paragraphs state:
There is jurisdictional error in the refusal of my Student (Subclass 572) Visa application which was refused by the Department of Border Protection (DIBP) on 7th December 2015 and the decision subsequently affirmed by the Administrative Appeals Tribunal (AAT) on 6th December 2016 in which the application has been refused/affirmed under Clause 572.223(2) and I believe that grounds exist under jurisdictional error for the following reasons:
I am a genuine student and have access to sufficient funds to cover tuition, living and accommodation expenses for the duration of my stay in Australia, therefore grounds exist under a jurisdictional error under Clause 572.223(2); and
The Tribunal Member at the hearing the AAT application on 6th December 2016 denied me procedural fairness as I requested time to provide financial documentation from my parents in India, however, I was denied the time I stated they would require to arrange the funds evidence.
In orders made by a Judge of this Court on 30 June 2017, the applicant was afforded an opportunity to file an amended application, any affidavits and a written outline of submissions. The applicant did not file any further materials.
In correspondence emailed to the Court, the applicant sought for the matter to be transferred to Melbourne. The Minister opposed this transfer on the basis that the applicant had not filed a notice of address for service indicating that he was now living in Melbourne or in the eastern states.
On the morning of 22 July 2017, the applicant attempted to file an affidavit with the Court Registry. This affidavit was rejected as it was not filed in accordance with the Court’s Rules. The applicant appeared to request an adjournment on the basis that he had slipped and fallen in the shower and had “really hurt his back”. He provided a medical certificate deeming him unfit for work from 19 July 2019 until 23 July 2019. He also provided a copy of an airline ticket which suggested he had made arrangements to travel to Perth.
While the affidavit had not been accepted, and no formal application for an adjournment was made, the Court asked the Minister for their position. The Minister opposed any adjournment on the basis that the medical evidence was insufficient and the matter had been on foot for over two years. The Minister consented to the applicant appearing by video-link. The Court contacted the applicant by email advising that inquiries were being made that would allow him to appear by video-link in Melbourne and he should indicate if he had any concerns in this regard. No response was received. The Court again emailed advising that the hearing would proceed by audio link and advising that the applicant should provide his telephone number as a matter of priority. No response was received.
On the morning of the hearing, Chambers contacted the applicant on the mobile telephone number he had provided in his most recent address for service. The applicant answered that call and was advised that the hearing this afternoon would proceed and he would be contacted on that number.
No formal request for an adjournment was made. However, insofar as an adjournment was sought, the Court is not satisfied that such should be granted on the following basis:
a)there is no material before the Court (noting that the affidavit was rejected and the applicant has not sought to re-file anything) to suggest the applicant is unable to participate;
b)the evidence the applicant did provide was a medical certificate that indicated he was “unfit for work”. This is insufficient. It does not indicate that the applicant is precluded from participating in Court proceedings generally. It does not, for example, indicate that he cannot appear by telephone;
c)the medical certificate that was provided advised that the applicant was “unfit” until 23 July 2019. The matter was listed for hearing on 26 July 2019;
d)the applicant was provided with the alternative of appearing by video-link to accommodate his inability to travel and “injury” He chose not to respond to any correspondence; and
e)the matter was commenced in early 2017 and has been on foot for over 2 years. During that time the applicant has not filed any materials to support his case. If the Court were to adjourn, the ability to bring it back on for hearing quickly would be difficult when matters in this Court are now currently listed out until May 2020.
On that basis, any application for an adjournment is refused.
To the extent the applicant sought the matter to be transferred, there is nothing on the Court record to indicate that the applicant resides in the Eastern States. In circumstances where the applicant has taken no active steps to have the matter transferred (noting that the Minister has asked the applicant to file a notice of address for service) and the matter has been on foot for over two years the Court determined it inappropriate to transfer the matter to Melbourne.
The applicant was offered the opportunity to appear by video from Melbourne and did not respond. He was available on the telephone (albeit only after the Court initiated contact) and the Court is satisfied that he was able to participate without disadvantage. He also indicated to the Court when asked at hearing that he was content to appear by telephone.
Any application for the matter to be transferred to Melbourne, which would undoubtedly require an adjournment which for reasons already expressed is refused, is, accordingly, also refused.
Consideration
Having disposed of the adjournment request and the transfer request the Court now turns to the grounds of the judicial review application.
The applicant appeared by telephone without legal assistance. Noting the remarks of the Federal Court, more recently in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7], that an unrepresented applicant or applicants should be given an opportunity to explain their grounds of review or what they perceive the Tribunal “did wrong”, the Court gave the applicant the opportunity to make oral submissions.
To assist the applicant, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, 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] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was explained to the applicant that this Court cannot undertake what is referred to as a merits review. This Court cannot grant him the visa. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
As noted, the applicant was asked to describe to the Court what he thought the Tribunal “did wrong”.
The applicant stated, in effect, that much of what “went wrong” was due to carelessness on the part of his migration agent. The Court explained to the applicant that, while sympathetic, on the evidence available to the Court, the Court could not assist in this regard. The applicant was advised, however, that any concerns he had about the conduct of his migration agent could be assessed by the Office of the Migration Agents Registration Authority.
Other submissions made by the applicant at hearing appealed to the merits of the delegate’s decision or the Tribunal decision or asked for assistance the Court cannot provide.
To the extent the matters raised can be considered relevant to applicant’s “grounds” the Court will reference them below.
Ground 1
I am a genuine student and have access to sufficient funds to cover tuition, living and accommodation expenses for the duration of my stay in Australia, therefore grounds exist under a jurisdictional error under Clause 572.223(2); and
The first ground of the application appears to take issue with the finding that the applicant did not meet cl.572.223(2) of the Regulations. That clause provides as follows:
(2)If subclause (1A) does not apply:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
The Minister submits that this ground seeks impermissible merits review. The Court agrees. On one level, the applicant is simply expressing disagreement with the Tribunal’s finding. He seems to be asking the Court to come to a different conclusion to that reached by the Tribunal. This Court cannot do that.
To the extent that the applicant is arguing that the Tribunal’s decision is illogical or irrational, the Court notes that the applicant was asked to provide evidence to meet the financial requirements of cl.572.223 of the Regulations. He failed to do so. For that reason the delegate refused to grant the applicant the visa. The applicant was clearly on notice that he needed to provide evidence he met the financial criterion.
Upon applying for review with the Tribunal, the applicant received a letter acknowledging his application. He was requested to provide, amongst other things:
5. Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:
• evidence of fees of current or proposed course/s you have already paid, or still owe for past courses
• evidence of funds from an acceptable source
o if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application
o if you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current
• evidence of the regular income of any person who is providing funds to you (including yourself), and their relationship to you evidence that you have genuine access to the funds that you declare while you hold a student visa, such as evidence of any money you have received or been given.
The applicant again failed to provide these materials.
On that basis, there was nothing before the Tribunal on which it could be satisfied that the applicant affirmatively satisfied cl.572.223(2) of the Regulations. That the applicant claims he can now pay this is irrelevant to the task of the Court. That evidence should have been provided to the Tribunal. The Tribunal undertook the review with what it had before it. Without the financial capacity evidence, the Tribunal could only make the findings on the evidence it had before it. The finding it made was open on the evidence and was not illogical, irrational or unreasonable.
Ground 1 fails.
Ground 2
The Tribunal Member at the hearing the AAT application on 6th December 2016 denied me procedural fairness as I requested time to provide financial documentation from my parents in India, however, I was denied the time I stated they would require to arrange the funds evidence.
Ground 2 argues that the applicant was denied procedural fairness because the Tribunal denied his request for extra time within which to provide financial evidence.
The Court notes the Minister’s submissions at [18]-[22] as follows:
18. The second ground of review alleges a denial of procedural fairness. On the basis of the affidavit, this ground may be read as challenging the Tribunal’s refusal to grant the applicant additional time to provide financial evidence.
19. Whilst the Tribunal is empowered to adjourn the review from time to time, by virtue of s 363(1)(b) of the Act, the Tribunal’s decision to refuse to allow further time in this case disclosed an evident and intelligible justification. The Tribunal set out in its reasons its justification for refusing the request, as summarised above at paragraph [13]. Significantly, the applicant was on notice from the delegate’s decision in December 2015 of the requirement that he should provide financial evidence, but had not obtained any evidence at the time of the Tribunal hearing some one year after.
20. Accordingly, the decision to refuse to allow further time fell within the range of possible acceptable outcomes, and while “reasonable minds may reach different conclusions about the correct and preferable decision,” the Tribunal’s decision is within the “area of decisional freedom” conferred upon the Tribunal.
21 The Tribunal otherwise complied with Division 5 of Part 5, which provides an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with. In this regard, it is evident that:
(a) The applicant was invited to, and appeared before, the Tribunal at a hearing on 6 December 2016, in compliance with s 360 of the Act: CB 71-74.
(b) The applicant was aware, through the delegate’s decision, of the dispositive issue on review (namely, whether the applicant met the financial capacity requirement in accordance with Schedule 5A).
22. No error arises from ground 2.
The Tribunal has the power to adjourn a review from “time to time”: Act, s.363(1). That power is part of the natural justice provisions governing the Tribunal and is subject to the obligations of reasonableness as expounded by the High Court in Li.
The relevant portions of the Tribunal’s decision are at [15]-[16]:
15. Despite request to do so, you have failed to provide any financial evidence. When I ask you why, you respond that it is difficult to get evidence from India and perhaps if you could be given more time you could get the evidence required.
16.You have been here since 2008, this is your fourth application, you have had more than a year and in the circumstances I believe you have had ample time and opportunity to provide the required evidence
The applicant’s assertion that he was denied procedural fairness is rejected. The Court notes that:
a)as emphasised by the Tribunal, this was the applicant’s fourth student visa application and he ought to have had some familiarity with the evidence he was required to provide;
b)the applicant was requested by the delegate to provide the financial evidence on 13 October 2015 and he did not respond to the request;
c)the delegate, on 7 December 2015, refused the visa on the basis that the applicant did not satisfy the financial capacity criterion;
d)after lodging his application for review, the applicant was invited (by letter dated 9 November 2016) to attend a hearing and was asked to provide the specific evidence referred to above seven days prior to the hearing. He again failed to do so;
e)at the hearing on 6 December 2016 the applicant appeared before the Tribunal without any evidence that he met the financial criterion.
Against that background the Tribunal determined that the applicant had had ample time to provide the evidence needed. There was nothing unreasonable in that finding. It cannot be said that no reasonable decision-maker would not have arrived at the same conclusion. The applicant had been on notice since 13 October 2015 that he was required to provide financial evidence. He had over one year to obtain that evidence and he was specifically asked, and given an opportunity, to do so on two occasions and did not.
Bearing in mind the Tribunal’s objective to provide a mechanism of review that is fair, just, economical, informal and quick, the Court is not satisfied that it was unreasonable for the Tribunal not to grant the applicant additional time to provide the evidence in circumstances where he had failed to take advantage of the ample time already given.
Ground 2 is dismissed.
Conclusion
The applicant has failed to identify any error in the Tribunal Decision.
Accordingly, the application is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 2 August 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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Procedural Fairness
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Natural Justice
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Jurisdiction
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