Singh v Minister for Immigration
[2020] FCCA 2833
•20 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2833 |
| Catchwords: MIGRATION – Student (subclass 500) visa – decision of the Administrative Appeals Tribunal – where the applicant was found not to be a genuine temporary entrant – whether the Tribunal took into account irrelevant considerations or asked itself the wrong questions – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 499 Migration Regulations 1994 (Cth), cl.500.212 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | RANJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 35 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 15 October 2020 |
| Date of Last Submission: | 15 October 2020 |
| Delivered at: | Perth |
| Delivered on: | 20 October 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 35 of 2020
| RANJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He arrived in Australia on
28 July 2009 on a student visa (Court Book (“CB”) 32). Since arriving in Australia, the applicant has held other student visas or bridging visas.
On 2 March 2017, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-24). The applicant indicated that he was enrolled in a Diploma of Leadership and Management and an Advanced Diploma of Business.
On 6 June 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 26-35). The delegate was not satisfied that the applicant was “a genuine temporary entrant” as he did not meet the requirements of cl.500.212(a) of the Migration Regulations 1994 (Cth) (the “Regulations”).
The applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 21 June 2017 (CB 36-37).
On 18 February 2019, the applicant was invited to provide information to the Tribunal (CB 44-50). The applicant responded to that invitation and provided information that included a completion certificate for the Diploma of Business dated 2011 and a Letter of Offer in a Certificate IV of Commercial Cookery dated 21 February 2019 (CB 51-63).
The applicant attended a hearing before the Tribunal on 2 May 2019 (CB 72-74).
On 12 November 2019, the applicant was invited by the Tribunal to comment on the following information (CB 78-79):
Recent checks of the Provider Registration and International Student Management System (PRISMS) indicate that you do not hold a current Confirmation of Enrolment.
On 18 November 2019, the applicant provided a confirmation of enrolment in a Certificate IV in Commercial Cookery (CB 81-83).
On 13 January 2020, the Tribunal affirmed the decision not to grant the applicant the visa (CB 87-98).
On 3 February 2020, the applicant filed an application in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). He seeks judicial review of the Tribunal’s decision. To succeed, he must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 12 pages long. Six pages are an attachment relevant to Direction 69. The substantive decision itself is 34 paragraphs long.
The Minister’s submissions at [10]-[12] accurately summarise the Tribunal’s decision. The Court adopts that summary as its own. With some additions, it provides as follows.
The Tribunal began by identifying the type of visa the applicant had applied for, outlining why the delegate had refused the visa and confirming that the applicant had attended a hearing and was assisted by a migration agent (at [1]-[6]).
The Tribunal then explained that the issue before it was whether the applicant was a genuine temporary entrant and met cl.500.212 of the Regulations (at [7]).
The requirements of cl.500.212 were then set out by the Tribunal as follows:
8. Clause 500.212 requires as follows:
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.
Does the applicant intend genuinely to stay in Australia temporarily?
9. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
• 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.
10.The Direction indicates that the factors specified should not be used as a checklist but rather, 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 Tribunal noted that the applicant had arrived in Australia in 2009, had applied for the visa in 2017 and had indicated that he wanted to study a Diploma of Leadership and Management and an Advanced Diploma of Business (at [11]-[12]).
The Tribunal then referred to the applicant’s study history as follows:
13. As at the time of the hearing, the applicant had been enrolled in 20 courses, although he had only completed the following ones according to the PRISMS records, a copy of which was subsequently provided to the applicant on 12 November 2019 seeking his comments pursuant to s.359A of the Migration Act 1958 (discussed further below):
a. General English August - October 2009
b. Cert IV Business - October 2009 - April 2010
c. Diploma of Business June - December 2010
d. Advanced Diploma of Business January - July 2011
e. Cert III Commercial Cookery August 2011 - August 2012
f. Cert IV Commercial Cookery July- December 2013
g. Diploma of Hospitality January - June 2014
h. Diploma of Marketing May to November 2015
i. Advanced Diploma of Marketing July 2016 - January 2017
j. Advanced Diploma of Business February 2017 - February 2018
The Tribunal then referred to the applicant’s evidence that he had completed some courses but, for various reasons, was not given the completion certificates (at [14]).
The Tribunal noted that, during the hearing, the applicant said he wanted to complete the Diploma of Leadership and Management so that he could go into partnership with a friend in Melbourne who operated a restaurant. Having stated that he had only completed around three and a half months of the Diploma, the applicant told the Tribunal that the reason he stopped studying was because a friend had told him that he could not study while he was appealing the delegate’s decision (at [15]).
The Tribunal determined as follows:
16. The Tribunal asked the applicant if he checked that advice with the education provider or anyone and he indicated that he had not. The applicant’s failure to check this advice regarding his ability to continue his ongoing studies demonstrates poor knowledge of his intended course and the associated education provider. It is realistic to expect the applicant to have made enquiries of his education provider, especially having been in Australia on a student visa since 2009. It further indicates limited, if any research by the applicant into his proposed course of study and living arrangements.
The Tribunal then stated:
17. In relation to the proposed business venture with his friend, the applicant said he would have a managerial role and was able to invest $200,000 that his father would give him. In answer to a s.359(2) request from the Tribunal, the applicant indicated that he had a letter of offer for a Cert IV Commercial Cookery course that would commence in May 2019. The applicant told the Tribunal that if he was able to complete that course, he could also work as a cook at his friend’s restaurant as another option or complimentary with, his managerial role.
18. The applicant told the Tribunal that it was his hope that he would be permitted to remain in Australia so he could invest in and subsequently work in, the restaurant operated by his friend and assist with expansion plans. He was hoping to stay in Australia long term.
The Tribunal determined that that the applicant’s study history revealed that he had not progressed beyond short and inexpensive VET level courses. It was noted that the courses selected by the applicant shared a broad similarity and there was no evidence that he had put the acquired skills to any real effect (at [19]).
The Tribunal noted that the applicant had conceded that there was no reason why he could not study an equivalent course in India and weighed this concession against him (at [20]).
The Tribunal then referred to the applicant’s evidence, as follows:
21. The applicant’s ties to India include his parents and extended family members. Against this is the fact that the applicant has had minimal trips home to see them during his ten years in Australia, with the applicant indicating he had travelled home on three occasions, once in 2011, 2014 and 2016 respectively. The applicant told the Tribunal that during his ten years in Australia he had made lots of friends and links, including relatives in Melbourne and Adelaide. He indicated that it would be difficult to return to India after being away for so long and would find it difficult getting a job as he had no connections there. He also stated that he would make more money in Australia and was hoping to set up a life here
The Tribunal referred to the fact that the applicant had not studied since receiving the delegate’s decision. It noted that he had been working and was earning approximately $21,000 a year (at [22]). The Tribunal also accepted that there were no military service commitments or political/civil unrest that would prevent the applicant from returning to India (at [23]).
The Tribunal then stated:
24. When the applicant’s circumstances are weighed up, while the existence of family members in India provides some incentive to return, in light of the applicant’s ties to Australia, including proposed business, financial and personal ties, the Tribunal considers that there is not a significant incentive to return to India and conversely, that there is a significant incentive for the applicant to remain in Australia.
25. The nature and level of the applicant’s studies over ten years, with little real advancement, indicates that the applicant is using the student visa program to circumvent the intentions of the migration program and to maintain ongoing residency in Australia.
The Tribunal then referred to the applicant’s confirmation of enrolment provided in response to the invitation dated 12 November 2019 (at [26]-[27]).
The Tribunal then stated:
28. In light of the applicant’s assertion that he wanted to work with his friend in the Melbourne restaurant in management and/or some cooking capacity, completion of both course would have relevance to his proposed future in Australia, despite the enrolments appearing to occur in response to the Tribunal’s notice. The question though, is whether such courses will assist the applicant to obtain employment or improve his employment prospects in India?
29. When the applicant was asked what steps he had taken to plan a future in India, he indicated he had not really considered that but could potentially open a restaurant. It was evident that the applicant had no real plan for such a venture and that his focus was on making a life for himself in Australia in his friend’s business in Melbourne. While there is some relevance to the Applicant’s employment prospects in India from his completion of the above courses, the Tribunal does not give it significant weight in the applicant’s favour in the circumstances. Further, the applicant’s previous evidence to the Tribunal that he had better business opportunities in Australia that were more financially rewarding, coupled with the other findings in this paragraph, indicate that the value of the course to the applicant’s future is limited at best.
Overall, on the basis of the evidence before it, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily (at [31]).
The Tribunal affirmed the decision on the basis that the applicant did not meet cl.500.212(a) of the Regulations (at [32]-[34]).
Proceedings in this Court
The judicial review application dated 3 February 2020 contains one ground of review as follows:
1. The Tribunal took into account irrelevant considerations when addressing the question, which was “The applicant is a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily”
Particulars
• The consideration that the applicant was hoping to stay in Australia long term (para 18 of the decision). Intending to stay long term does not necessarily indicate the applicant is not intending to stay temporarily in Australia.
• The applicant conceded that there were no reasons why he could not study an equivalent course in India, and the Tribunal relied on this consideration to give weight against the applicant (para 20 of the decision). The fact that similar course is available to the applicant in India is not a relevant consideration in deciding against the applicant as to whether the applicant is a genuinely intending to stay temporarily in Australia. It is the applicant’s preference of where he studies.
• The question that the Tribunal asked itself whether the Certificate IV in Commercial Cookery and Diploma of Hospitality Management will assist the applicant to obtain employment or improve his employment prospects in India (para 28 of the decision). This is an irrelevant consideration as to the genuineness of the applicant’s stay temporarily in Australia. The applicant could use the Australian qualifications for employment prospects in any other country that the applicant may eventually wish to work in, besides Australia.
The applicant was given an opportunity to file an amended application, any affidavit evidence and an outline of written submissions.
At the hearing of this matter on 15 October 2020 the applicant tendered two documents. The first document was an undated “statement” from the applicant. The Court marked the statement as Exhibit 3 and considers it to be an outline of submissions. The second document was a letter of offer for Lennox College dated 12 October 2020. This was marked as Exhibit 4.
The materials before the Court thus include those referred to above, correspondence confirming service of the Court Book and the Minister’s written submissions (marked as Exhibit 1), a Court Book numbering 98 pages (marked as Exhibit 2) and an outline of submissions filed by the Minister on 18 September 2020.
At the hearing, the Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions. The applicant did not have a copy of the Court Book with him. It is clear, however, that the Court Book had been sent to him (noting the contents of Exhibit 1). The Court indicated to the applicant that to the extent that any reference was made to the Court Book and he needed to address it, the Court would ask Counsel for the Minister to reference the relevant page number and/or relevant paragraphs. The applicant agreed to proceed on that basis.
The applicant appeared before the Court without legal representation. The Court gave him the opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns he had with the Tribunal’s decision: as per Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) 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 & Anor (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] (“SZRUI”); 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) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (“Wu Shan Liang”).
Unfortunately, the applicant’s oral submissions did not assist him in relation to whether the Tribunal fell into jurisdictional error. He simply stressed that he had no intention of staying in Australia but “just wanted to finish his current course of study”. In effect, the applicant’s oral submissions were an invitation for the Court to engage in merits review. At best, they express disagreement with the Tribunal’s conclusion that the applicant did not meet cl.500.212 of the Regulations.
The applicant’s oral submissions, accordingly, do not identify any error.
As noted, the applicant handed up two documents that were marked as Exhibit 3 and Exhibit 4.
The arguments raised in Exhibit 3 were not raised before the Tribunal. Further, much of what is highlighted in Exhibit 3 simply appeals to the merits of the Tribunal’s decision and makes an argument as to why the applicant is a genuine temporary entrant. The Court has no jurisdiction to consider the merits or consider the substantive issue afresh: Wu Shan Liang.
Exhibit 3 fails to identify any jurisdictional error.
Exhibit 4 is a letter from Lennox College offering the applicant a position in a new course. The letter is dated 12 October 2020. This letter is dated after the Tribunal’s decision and, again, seems to have been tendered in order to convince the Court that the applicant is a genuine temporary entrant. Again, the letter is irrelevant in relation to the issue of jurisdictional error.
Consideration – Ground of Review
The applicant argues in his particulars that the Tribunal took into account three “irrelevant” considerations. The Court will address each of these particulars/considerations in turn.
The First Particular
The first “irrelevant consideration” is particularised as follows:
The consideration that the applicant was hoping to stay in Australia long term (para 18 of the decision). Intending to stay long term does not necessarily indicate the applicant is not intending to stay temporarily in Australia.
The applicant refers to [18] of the Tribunal’s decision, which provides:
The applicant told the Tribunal that it was his hope that he would be permitted to remain in Australia so he could invest in and subsequently work in, the restaurant operated by his friend and assist with expansion plans. He was hoping to stay in Australia long term.
It is plain from the above that the Tribunal is simply summarising the evidence that the applicant provided to the Tribunal. The Tribunal is not making a finding. It is simply referring to the evidence provided by the applicant.
The definition of the word “temporarily” was discussed in Hafza v Director-General of Social Security [1985] FCA 201 as follows:
The Shorter Oxford Dictionary defines “temporary” as “Lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need”. The Macquarie Dictionary definition is to similar effect, with the addition of “not permanent”.
…
I think that the adjective “temporary” was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose. The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of “temporary” absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.
This definition of “temporarily” has been said to apply to cl.500.212(a) of the Regulations: Eros v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1061.
Here, the Tribunal made two critical findings. First, it stated that the nature and level of the applicant’s studies indicated that the applicant was using the visa for the purpose of maintaining “ongoing” residency in Australia. Second, it concluded that the applicant’s focus was on “making a life for himself in Australia”.
There was no specific or passing purpose in the applicant’s intention to stay. The purpose was to maintain (i.e., continue) ongoing (i.e., no known end date) residence. An intention to maintain a state of affairs on a continuing basis cannot be said to suggest a “passing” purpose. Further “making a life… in Australia” is the opposite of an intention to stay for a relatively short period. A reference to an “intention to maintain ongoing residence” also constitutes a clear statement that there is no intention to stay for a “relatively short period”.
While there may be cases where an intention to stay for a long period may still fall into the definition of temporarily, that is clearly not the case here. Here, the Tribunal made clear and unambiguous findings based on the applicant’s own evidence that he did not intend to stay temporarily.
The Tribunal did not take into account an irrelevant consideration when referring to the applicant’s evidence that he intended to stay in Australia “long term”.
The Second Particular
The second “irrelevant consideration” is stated as follows:
The applicant conceded that there were no reasons why he could not study an equivalent course in India, and the Tribunal relied on this consideration to give weight against the applicant (para 20 of the decision). The fact that similar course is available to the applicant in India is not a relevant consideration in deciding against the applicant as to whether the applicant is a genuinely intending to stay temporarily in Australia. It is the applicant’s preference of where he studies.
Paragraph [20] in the Tribunal’s decision provides:
The applicant conceded to the Tribunal that there were no reasons why he could not study an equivalent course in India. This is a factor that the Tribunal gives weight against the applicant.
Direction 69 states:
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
Direction 69 is a direction made under s.499(1) of the Act. Section 499(2A) of the Act states that the Tribunal “must comply with a direction under subsection (1).” Direction 69 was a relevant consideration: Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [4] and [26]-[29] (“Kumar”).
While the applicant may believe that the fact that a course is available in India is not relevant to whether he intends to stay temporarily, disagreement does not amount to jurisdictional error.
Here, the applicant stated that there was no reason why he could not study in India. Direction 69 makes specific reference to “reasonable motives” for an applicant to undertake a course in Australia. Hence, it was open to the applicant to explain why he wanted to study in Australia (i.e., that it was his preference to do so). Whether the applicant’s “preference” to study in Australia was a “reasonable motive” was a matter for the Tribunal – not this Court.
Unfortunately, the applicant never put his reason for studying in Australia as opposed to India to the Tribunal. It is not open to him to do so now.
The second particular does not point to an “irrelevant consideration”.
The Third Particular
The third alleged “irrelevant consideration” is described as follows:
The question that the Tribunal asked itself whether the Certificate IV in Commercial Cookery and Diploma of Hospitality Management will assist the applicant to obtain employment or improve his employment prospects in India (para 28 of the decision). This is an irrelevant consideration as to the genuineness of the applicant’s stay temporarily in Australia. The applicant could use the Australian qualifications for employment prospects in any other country that the applicant may eventually wish to work in, besides Australia.
Paragraph [28] provides:
In light of the applicant’s assertion that he wanted to work with his friend in the Melbourne restaurant in management and/or some cooking capacity, completion of both course would have relevance to his proposed future in Australia, despite the enrolments appearing to occur in response to the Tribunal’s notice. The question though, is whether such courses will assist the applicant to obtain employment or improve his employment prospects in India?
Direction 69 states:
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b. relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant’s complaint appears to be that the Tribunal asked itself the wrong question by restricting itself to employment prospects in India and any other country besides Australia.
It is apparent [12] of Direction 69 makes relevant the employment prospects for an applicant in a third country. The issue is whether the Tribunal erred by only referencing the applicant’s “home country” – being India.
The Tribunal’s assessment is reactive to the way that the applicant has put his claim: Kumar at [6]. Here, at no time in the course of his visa application, did the applicant refer to a third country. Rather, the applicant stated (CB 22):
After completion of my study I would go back to my country and hopefully I get job over there in relevant field.
He also stated (CB 59):
I would like to open my own restaurant in India.
The applicant never suggested that he intended to work in a third country. In light of the applicant’s own evidence, it was entirely reasonable for the Tribunal to consider the applicant’s employment prospects in India only.
The third particular does not identify any jurisdictional error.
Conclusion
The application for judicial review has failed to identify any jurisdictional error. The Court is also satisfied that the Tribunal has not otherwise made any jurisdictional error.
The application, accordingly, is dismissed.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 20 October 2020
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