Singh v Minister for Immigration

[2019] FCCA 1288

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1288

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – invitation to this Court to engage in merits review – whether the Tribunal had a real and meaningful engagement with the applicant’s evidence and submissions – whether the Tribunal complied with the statutory regime – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl. 572.223 of Schedule 2

Applicant: HARDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 634 of 2016

Judgment of: Judge Street

Hearing date: 15 May 2019

Date of Last Submission: 15 May 2019

Delivered at: Sydney

Delivered on: 15 May 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr M Sunits
Australian Government Solicitor

ORDERS

1. The name of the First Respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs” and the Court dispenses with the need for the filing of a further document in that regard.

2. The Application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 15 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 634 of 2016

HARDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 November 2016 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of India and applied for the visa on 2 April 2015. On 23 June 2015, the delegate found the applicant failed to meet the criteria for the grant of the visa.

3. The applicant applied to the Tribunal for review on 11 July 2015. The applicant was sent a letter on 6 September 2016 inviting the applicant to appear at a hearing on 5 October 2016. The applicant appeared on that date to give evidence and present arguments by telephone and was also represented by his migration agent by telephone on that occasion.

4. The Tribunal, in its reasons, identified the background to the visa application and that the delegate had found that the applicant failed to satisfy the requirements under cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal referred to the evidence that was adduced and, in assessing whether the applicant is a genuinely temporary entrant, taking into account Direction 53, the Tribunal accepted that the applicant has had, and continues to have, an incentive to cease residence in Australia.

5. The Tribunal referred to the applicant’s explanations as to why the applicant chose Australia as a study destination and found the applicant does not have close family members in Australia. The Tribunal referred to the applicant’s plan to utilise the skills and knowledge gained in Australia and pursuits outside Australia. The Tribunal referred to the applicant’s educational background and problems that the applicant encountered following his grandfather’s death. The Tribunal referred to the fact that the applicant, since he had been in Australia from 2009, has completed only one course, being a diploma of business. The Tribunal referred to the applicant’s explanation as to his prolonged period of grief from his grandfather’s death.

6. The Tribunal referred to the applicant’s evidence about poor advice and his poor health leading into to 2016 when he did not complete the first unit of an advanced diploma of business. The Tribunal did not find the applicant’s explanations convincing.

7. The Tribunal found the applicant has had seven years to acquire skills, knowledge and qualifications. The Tribunal found that, in the years the applicant has been in Australia, he has acquired very little skills, knowledge and qualifications.

8. The Tribunal referred to the applicant not blaming himself in relation to his inability to complete his claimed mission in Australia and that he places responsibility at the hands of grief, believing poor migration advice and poor health, which the Tribunal found has not prevented him from occasionally driving a taxi, but has prevented him in recent months from obtaining any enrolment in a course until the Tribunal invited him to do so in the invitation to the Tribunal hearing.

9. The Tribunal was not satisfied that the advanced diploma of leadership and management, nor any other course previously proposed or completed, have any distinct value to the applicant’s future in India or elsewhere outside Australia as claimed. The Tribunal referred to the production of the current Certificate of Enrolment. The Tribunal found that, despite claiming that the applicant had recovered from poor health earlier in 2016, the applicant did nothing to resume his study to acquire the skills and knowledge that his claimed departure from Australia is premised on. The Tribunal found this is because the applicant is not interested in that departure and therefore not anxious to acquire skills and knowledge for a return to India or elsewhere. The Tribunal put to the applicant that he was really interested in prolonging his stay in Australia for as long as lawfully possible.

10. The Tribunal found the applicant intends to stay in Australia indefinitely and not temporarily. Having considered the applicant’s circumstances, immigration history and the matters referred to by the Tribunal as considered relevant, the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily. The Tribunal found the applicant did not meet the criteria is cl 572.223(1)(a) of the Regulations and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 22 December 2016. On 15 February 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. The applicant did not do so.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant referred to the problems that he had encountered and referred to his desire to continue to pursue his studies. This Court does not have power to determine the application on compassionate or discretionary grounds. This Court has no power to review the merits.

4. The applicant submitted that the Tribunal had not taken into account the whole of the applicant’s circumstances. There is no relevant circumstance that has been identified that the Tribunal has not referred to in its reasons. On the face of the Tribunal’s reasons, the Tribunal took into account the applicant’s evidence and submissions, and made dispositive findings that were open to the Tribunal for the reasons given by the Tribunal.

5. The applicant asserted that he is not seeking to do other than stay as a temporary entrant in Australia. That is, in substance, a submission inviting this Court to engage in merits review, which the Court has no power to do. The Tribunal provided logical and rational reasons for finding the applicant did not meet the mandatory criteria in relation to being a genuine temporary entrant. The applicant’s limited progress was a rational and logical factor to take into account in that regard. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. My circumstances should be considered.

   2. Not satisfied with the decision of the Immigration and Tribunal departments.

   3. I am a genuine student and studying responsibly (G.T.E).

   4. I am a genuine temporary entrant to study in Australia.

2. None of the grounds identify anything that could be described as a jurisdictional error. It is apparent from the Tribunal’s reasons that the Tribunal considered the applicant’s circumstances. No jurisdictional error is made out by ground 1.

3. In relation to ground 2, the applicant’s dissatisfaction of the decision does not identify any relevant error. On the face of the material before the Court, the Tribunal conducted the review in accordance with the statutory regime and the applicant had a real and meaningful hearing. On the face of the Tribunal’s reasons, the Tribunal had a real and meaningful consideration of the applicant’s evidence and submissions, including all the applicant’s circumstances. No jurisdictional error as alleged in ground 2 is made out.

4. Ground 3 is a disagreement with the adverse finding that does not identify any jurisdictional error.

5. Ground 4 is a further disagreement with the adverse finding that does not identify any jurisdictional error.

6. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 July 2019