Singh v Minister for Immigration and Anor

[2020] FCCA 2025

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2025

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – show cause hearing – whether there is an arguable case that the Tribunal did not consider the facts of the situation – whether there is an arguable case that the Tribunal made any jurisdictional error.

Legislation:
Federal Circuit Court Rules 2001, r.44(12)(a)
Migration Regulations 1994, Sch. 2, cl. 572.223(1)(a)

Applicant: SURINDER PAL SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2229 of 2018

Judgment of: Judge Riley

Hearing date: 2 July 2020

Date of Last Submission: 2 July 2020

Delivered at: Melbourne

Delivered on: 2 July 2020

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Keith Sypott

Advocate for the second respondent: No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r.44.12(a) of the Federal Circuit Court Rules 2001, the application filed on 30 July 2018 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $2,650.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2229 of 2018

SURINDER PAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)[1]

Introduction

[1] Chambers was notified on Wednesday, 22 July 2020 at 3:55pm that an appeal was filed in this matter by the applicant on 16 July 2020. Chambers ordered a transcript of the reasons for judgment on Wednesday, 22 July 2020 at 4:17pm, on same day turnaround. Auscript provided the transcript of the reasons for judgment on Thursday, 23 July 2020 at 11:30am. The reasons for judgment were settled on 23 July 2020, and provided to the parties by email on the same day at 4:30pm.

1. This is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister refusing to grant a student (Class TU) (Subclass 572) visa to the applicant.

2. The matter was listed before the court today, by consent, by a registrar, as a show cause hearing. That means that it is necessary for the court to determine whether there is an arguable case that the Tribunal made a jurisdictional error in assessing the applicant’s application.

Background

1. The applicant is an Indian citizen. He arrived in Australia on 26 June 2009 on a student (Class TU) (Subclass 572) visa. He subsequently, on 2 May 2016, applied for the visa that is the subject of these proceedings. A delegate of the Minister refused that application on the basis that the applicant was determined to not intend to genuinely stay in Australia temporarily, as required by clause 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994.

2. The applicant then applied to the Tribunal, with the assistance of a migration agent. The applicant appeared before the Tribunal for a hearing of the review application on 3 July 2018. The Tribunal made an oral decision on that day, affirming the delegate’s decision, and a written statement of the Tribunal’s reasons was published on 22 August 2018.

3. The Tribunal noted that, while the issue before the delegate had been whether the applicant was a genuine temporary entrant, the critical issue before the Tribunal was whether the applicant had a current certificate of enrolment or offer of enrolment. The Tribunal had foreshadowed that issue, in a letter dated 7 June 2018 to the applicant. The letter specifically asked the applicant to provide documents that showed that he was …currently enrolled in a course, or [had] an offer of enrolment in a registered course, as required for the grant of a student visa. It transpired at the hearing before the Tribunal that the applicant did not have a current certificate of enrolment or an offer of enrolment.

4. The Tribunal’s reasons for decision indicate that it discussed that issue with the applicant at the hearing, explaining that the critical issue had changed from whether the applicant was a genuine temporary entrant, to whether he had a certificate of enrolment or an offer of enrolment. The Tribunal’s reasons for decision record that the applicant indicated to the Tribunal that he understood that the critical issue had now changed.

5. The Tribunal also noted the applicant’s evidence, which was given on oath, that the applicant had last been enrolled in 2016 and that he had tried to get other enrolments, but had been unsuccessful. The Tribunal considered that, as the applicant was not currently enrolled and did not have an offer of enrolment in Australia, the applicant did not meet the enrolment requirements for student visas in Australia and therefore the applicant could not satisfy the requirements for the visa. The Tribunal then affirmed the delegate’s decision.

6. The applicant applied, within time, to this court. His application appears to have been prepared without the benefit of legal assistance.

Grounds of review

1. The grounds of review in the application filed on 30 July 2018 are as follows:

   1.Application for student visa was refused on grounds that I did not satisfy the requirements of 572.223(1)(a) in Schedule 2 of the Regulations and Ministerial Direction No. 53

   2.Application was refused and decision stated that I was not a genuine applicant and the decision was not a privative clause decision

   3.Decision to refuse the student visa application was appealed with the Administrative Appeals tribunal and decision was affirmed while not considering the facts of the situation

   4.I have been a genuine student since my arrival in Australia in 2009, and have studied courses in Automotive technology and Automotive Mechanical Diagnosis, I have also studied Business and Marketing courses and do not believe any of these courses are not relevant to my career.

   5.I had applied for a work visa which was refused and at this time I decided to study and enhance my qualifications further before leaving Australia

   6.Having spent a considerable amount of time in this country I wish to enhance my qualifications and skills to be able to gain employment in a Managerial position in the Automotive Industry in India

   7.I had applied to study Advanced Diploma in Marketing course and my visa was refused on basis of Genuine Temporary Entrant

   8.I have now completed the course in May 2017 and only need a valid visa to obtain a COE to study a Management course

   9.Upon completion of my Management course I wish to leave to India and pursue my employment opportunities.

   10.Without a valid visa, colleges are not giving me a COE to enrol and this has made my situation very difficult.

   11.Having spent considerable amount of time and money studying different courses, I do not wish to waste my efforts and go back to my home country without the relevant skills.

   12.I need to present my case and have evidence to prove that I am indeed a genuine student and have compelling circumstances which require to be considered.

2. Most of the grounds are essentially a recitation of the background to this matter and do not identify any jurisdictional error on the part of the Tribunal. There are also paragraphs that address what the applicant hopes to achieve. Again, they do not demonstrate or point to any jurisdictional error.

3. Ground 3 is potentially able to amount to jurisdictional error. However, it is simply not the case that the Tribunal did not consider the facts of the situation. The Tribunal clearly considered the critical fact, which was that the applicant did not have a certificate of enrolment or an offer of enrolment in an appropriate course in Australia. Consequently, there is no merit to ground 3.

4. Ground 12 suggested that the applicant has evidence to prove that he is a genuine student. That may be so. However, as the Tribunal noted, that was no longer the issue when the matter went before the Tribunal. The issue at that point was that the applicant did not have a certificate of enrolment or an offer of enrolment.

5. Ground 12 also asserts that the applicant has compelling circumstances which need to be considered. The applicant perhaps elaborated on those circumstances in his oral submissions to the court today. He said that he wants to stay here to study because his son is studying here. His son is in Grade 7 and he does not know anything about India. The applicant would like his son to be able to finish up to at least Grade 10 or Grade 12 in Australia, particularly because the applicant’s son gets skin problems when he goes back to India.

6. These may well be compassionate circumstances, but there was no scope for the Tribunal to consider them. The requirement that an applicant have a certificate of enrolment or an offer of enrolment is not subject to any discretion. It is an absolute requirement. Just as the Tribunal could not take into account any compassionate circumstances, nor can this court.

Conclusion

1. I have considered the material in the court book and the Tribunal’s reasons for decision. I have been unable to discern anything that could amount to an arguable jurisdictional error.

2. Consequently, pursuant to rule 44.12(a) of the Federal Circuit Court Rules 2001, the application filed on 30 July 2018 will be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:  

Date: 23 July 2020