Singh v Minister for Immigration

[2019] FCCA 1871

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1871

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant – whether the Tribunal failed to comply with s.359AA of the Migration Act considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 359A, 360, 499

Migration Regulations 1994 (Cth)

Cases cited:

SZBYR v Minister for Immigration (2007) 235 ALR 609

Applicant: GAGANDEEP SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2213 of 2018

Judgment of: Judge Driver

Hearing date: 5 July 2019

Delivered at: Sydney

Delivered on: 5 July 2019

REPRESENTATION

Solicitors for the Applicant: Mr R Killalea of Kazi & Associates

Solicitors for the Respondents: Ms A Davyskib of Minter Ellison

ORDERS

1. The title of the first respondent is amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The amended application the subject of leave granted on 5 July 2019 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including costs thrown away by previous order, fixed in the sum of $7,467.

4. Pursuant to rule 36.03(b) of the Federal Court Rules 2011 (Cth), the time for the lodging of an appeal is extended to 30 August 2019.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2213 of 2018

GAGANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 July 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Singh a temporary student visa. 

2. Background facts relating to this matter are conveniently summarised in written submissions filed on behalf of the Minister on 10 April 2019. 

3. Mr Singh is a citizen of India who arrived in Australia on 20 January 2014 as the holder of a student visa.[1]

   [1] Court Book (CB) 53

4. On 18 January 2017, Mr Singh subsequently made a further application for a student visa.[2]

   [2] CB 1-44

5. On 2 March 2017, the delegate refused to grant the student visa because Mr Singh did not satisfy the requirements of clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3]

   [3] CB 48-54

6. By application dated 15 March 2017, Mr Singh sought review of the delegate's decision before the Tribunal.[4]

   [4] CB 55-56, see also index item 5 to CB

7. On 5 April 2018, Mr Singh was invited, via his migration agent, to attend a hearing before the Tribunal to give evidence and present arguments relating to the issues in his case.[5]

   [5] CB 67-83

8. On 23 April 2018, Mr Singh submitted documents, including relevantly, a written statement addressing the genuine temporary entrant criterion, and a current Certificate of Enrolment.[6]

   [6] CB 94-98, 102

9. On 1 May 2018, Mr Singh attended a hearing with the assistance of his representative.[7]

   [7] CB 109-111

10. On 6 July 2018, the Tribunal notified Mr Singh of its decision, dated 5 July 2018, affirming the decision under review.[8]

    [8] CB 118-129

Tribunal decision

1. The Tribunal identified that Mr Singh needed to satisfy clause 500.212(a) of Schedule 2 to the Regulations.[9]  That clause set out the following requirements which needed to be satisfied at the time of decision:[10]

   [9] CB 124: [9]

   [10] CB 127: [22]

   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; ...

2. In reaching a decision with respect to clause 500.212(a), the Tribunal expressly acknowledged that it was required to have regard to the relevant Ministerial direction made in relation to that clause (Direction No. 69) (Direction No. 69 was given under s.499 of the Migration Act 1958 (Cth) (Migration Act) and by operation of s.499(2A) the Tribunal was required to comply with it). The Tribunal recorded that Direction No. 69 sets out a number of specified “factors” which “should not be used as a checklist” but as a guide.[11]

   [11] CB 128: [24]

3. The Tribunal made the following key findings:

   a)Mr Singh did not provide convincing reasons for failing to complete his initial courses resulting in a significant gap in his study;[12]

   b)he did not provide credible evidence about mental health and emotional difficulties;[13]

   c)while he recommenced study, he did not provide credible evidence about how he intends to apply the skills and knowledge gained;[14]

   d)he was unable to credibly account for his living expenses when he was not studying;[15]

   e)his subsequent employment did not have particular relevance to his studies and provides an economic incentive to stay in Australia;[16] and

   f)his circumstances were indicative of strong ties to Australia.[17]  

   [12] CB 128: [26]

   [13] CB 128: [26]

   [14] CB 128-129: [27]

   [15] CB 129: [28]

   [16] CB 129: [29]

   [17] CB 129: [30]

4. For these reasons, and taking into account the factors in Direction No. 69, the Tribunal was not satisfied that Mr Singh intended genuinely to stay in Australia temporarily.[18] Accordingly, the Tribunal found that Mr Singh failed to satisfy clause 500.212(1)(a) of Schedule 2 to the Regulations and affirmed the decision under review.[19]

   [18] CB 128-129: [25], [32]

   [19] CB 129: [33]-[34]

The present proceedings

1. These proceedings began with a show cause application lodged on 9 August 2018.  The application has been amended several times since then.  I made procedural orders in the matter on 18 April 2019 dispensing with the need for a preliminary hearing and making orders for the preparation of the case for a final hearing today.  Relevantly, the applicant was given the opportunity to amend his application, and I also called for written submissions.

2. The timetable was not strictly adhered to, and by Application in a Case filed on 3 July 2019, Mr Singh sought leave to further amend his application. At the trial today, I granted that leave, the result of which is that the application as finally amended raises only one ground of review which is an asserted breach of s.359AA of the Migration Act:

   1.The decision of the Tribunal was attended by jurisdictional error as the Tribunal failed to comply, variously, with s.424AA(1)(a), (b)(i) and/or (b)(iii).

   Particulars

   Transcript of Decision: p.9/10, lns 15-36. (being part of Attachment “A” to the affidavit of R Killalea affirmed 17/4/2019)

3. The application is supported by two affidavits.  The first is the affidavit of Mr Singh’s solicitor, Richard Killalea, which annexes an earlier affidavit made by him on 17 April 2019 which, in turn, has annexed to it a number of documents including a transcript of the hearing conducted by the Tribunal.  That evidence was updated in the affidavit of Desi Karakitsos made on 2 July 2019 which had annexed to it an alternative transcript which had been amended and corrected by Ms Karakitsos.  The Minister raised concerns about both affidavits, but I received both into evidence subject to relevance and subject to any rulings on weight. 

4. I also received as an exhibit[20] a USB containing the sound recording of the Tribunal hearing, to which reference could have been made if necessary.  Having heard the parties, I did not consider that it was necessary to refer to the sound recording in order to verify the accuracy of the transcript. 

   [20] Exhibit R1

5. I have before me the court book filed on 22 October 2018.

6. The applicant’s case is that the Tribunal fell into error in not complying with the requirements in s.359AA of the Migration Act for oral disclosure of information required to be disclosed under s.359A. Mr Singh’s solicitor took me to a particular passage in the Tribunal’s reasons on page 11 of the transcript annexed to the affidavit of Ms Karakitsos. In that passage, the presiding member explained to Mr Singh the parts of his evidence with which the Tribunal had difficulty:

   Okay.  From what you’re talking, I do have some concerns that I understand I’ll summarise for you, so as to give you the opportunity to comment.  Now, I’ve got concerns about the gap in your studies and in my observation, you undertake the courses on the basis for your initial Higher Education Sector [unclear 00:25:35].  I’ve got concerns that you really haven’t – haven’t explained to why did you undertake that studies and I understand you said you had some mental difficulties but in your written statement you said you didn’t seek any formal assistance.  So there’s no more documents or reports from doctors or anything to sort of support what you’re saying.  I also find that – I’ve got some concern as to how you’ll financially support yourself and the gap herein and the fact that your parents – it sounds like they may not have [unclear 0:26:23] but they gave you $1,000.00, that would’ve have stretched that far in Australia and financial support from friends but that maybe the case, but other than that I’ve got some concerns on how that you’ve been coming for an about, and just wanted to support yourself in being here in Australia.  I also have some concerns that you’re planning to [unclear 00:26:49] generally in operation specific.  Mr Singh, in terms of – like I know that’s understandably when you like in employment, that you’ll go back to your own country but you don’t really seem to have a very clear plan for your future.  Now, do you – do you want to say anything to me about those concerns because I haven’t made my mind up.

7. In my view, the purpose of that disclosure was to put Mr Singh on notice of the Tribunal’s concerns which might be dispositive of the review. In so doing, the Tribunal was purporting to comply to the extent necessary with its obligation under s.360 of the Migration Act to ensure that Mr Singh was aware of the likely dispositive issues arising in the review. That may not have been strictly necessary, given the concerns already identified by the delegate in the delegate’s decision, which had been provided to the Tribunal by Mr Singh, and by the further refinement of the issues pursuant to the direction to the Tribunal for the conduct of the review.

8. While it is apparent that the disclosure made by the Tribunal at the hearing would not satisfy the requirements of s.359AA, the ground of review fails for the reason that the Tribunal was not dealing with information which required disclosure under s.359A. Rather, the Tribunal was simply commenting on Mr Singh’s own information which he had presented to the Tribunal in support of his review application. The Tribunal’s commentary upon it was simply the Tribunal’s expression of its own thought processes which, as noted in the Minister’s supplementary submissions, is not information requiring disclosure.[21] 

   [21] See SZBYR v Minister for Immigration (2007) 235 ALR 609

9. Further, the information Mr Singh himself gave to the Tribunal for the purposes of review was by reason of the operation of s.359A(4)(b) of the Migration Act also not information that required disclosure.

Conclusion

1. I conclude that there was no breach of s.359AA in this case.

2. The applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision, and the application must be dismissed. I so order.

3. I will order in addition that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, including costs thrown away by previous order, fixed in the sum of $7,467.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       5 August 2019