Singh v Minister for Immigration and Border Protection
[2017] FCA 213
•6 March 2017
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2017] FCA 213
Appeal from: Singh v Minister for Immigration & Anor [2016] FCCA 2264 File number: VID 1018 of 2016 Judge: MURPHY J Date of judgment: 6 March 2017 Catchwords: MIGRATION – appeal from Federal Circuit Court affirming Migration Review Tribunal refusal to grant Student (Temporary) (Class TU) visa – no evidence of enrolment – no grounds to overturn decision below – appeal dismissed Legislation: Migration Regulations 1994 Date of hearing: 6 March 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 1018 of 2016 BETWEEN: DALJIT SINGH
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
6 MARCH 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT (revised from transcript)
MURPHY J:
The appellant is a citizen of India. He arrived in Australia more than six years ago, initially on a Subclass 573 student visa. While in Australia, on 11 March 2014, he applied for a Student (Temporary) (Class TU) visa (the visa) to undertake study in Australia. On 16 May 2014 a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refused to grant the visa. On 1 June 2014 the appellant applied to review that decision to the Migration Review Tribunal (the Tribunal) (now the Administrative Appeals Tribunal), but the Tribunal affirmed the decision. On 18 February 2015 the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision, but the Federal Circuit Court dismissed the application (Singh v Minister for Immigration and Anor [2016] FCCA 2264).
The appellant now appeals to this Court from the decision of the Federal Circuit Court.
The application to the Migration Review Tribunal
The appellant attended a hearing before the Tribunal on 10 December 2014, and had the assistance of a migration agent. On 23 January 2015 the Tribunal affirmed the decision of the delegate not to grant the appellant a student visa, doing so on two grounds.
First, that there was no evidence before the Tribunal that the appellant was enrolled in, or had a current offer of enrolment in, any applicable course of study. The appellant conceded that he was not so enrolled and was not seeking enrolment. He told the Tribunal that he had enrolled for an Advanced Diploma course but had left it because he did not want to pay the fees once his visa had been refused.
Therefore the appellant did not meet the enrolment requirement for a student visa in cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Nor was there any evidence that the appellant met the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa which are the remaining subclasses of a class TU visa. The appellant did not apply for the visa on the basis of being a Student Guardian.
The Tribunal concluded that, on that basis alone, the decision under review must be affirmed.
Second, although it was unnecessary to decide, the Tribunal went on to refuse the visa application on the alternative basis that it was not satisfied that the appellant met the requirements of cl 572.223 of Schedule 2 to the Regulations because the appellant was not a genuine applicant for entry and temporary stay in Australia. It did so on the basis that:
(a)the appellant was not a reliable witness as to the study courses he had undertaken;
(b)the highest level course he had completed in six and a half years of study in Australia was a Certificate IV course;
(c)he was not enrolled in any course for about one year in about 2012;
(d)he had a fairly poor academic record having completed a Certificate IV in Business course, which he did not complete on his first attempt and having not completed a degree course;
(e)he had cancelled his enrolment in an Advanced Diploma of Management which he started in March 2014 (and which was due for completion on 22 February 2015) once his visa was refused, and which the Tribunal did not consider would be of much benefit even if he was to complete it;
(f)he had previously held a Subclass 573 student visa which required him to remain enrolled in a higher education course and he conceded that he had not been enrolled in such a course between 29 June 2008 and 15 March 2014. Accordingly, the Tribunal found that he did not comply with condition 8516 of his last student visa which required him to maintain the conditions upon which the student visa was granted;
(g)the Tribunal had little confidence that if the appellant was granted a student visa the situation would not repeat itself whereby he withdrew from courses without completing them; and
(h)the Tribunal considered that the appellant appeared more focused on prolonging his stay in Australia for reasons other than academic achievement.
The application to the Federal Circuit Court
The application for judicial review to the Federal Circuit Court raised five grounds of review, being that the appellant:
(a)did not agree with the decisions of the Minister or the Tribunal;
(b)wanted to challenge the Tribunal decision refusing his application;
(c)was concerned that his application was refused even though he was studying continuously;
(d)tried to complete his studies to his best potential and had never breached any condition attached to his visa; and
(e)was a genuine student and his only motive for extending the visa was to complete his further studies.
The learned primary judge set out the factual and procedural background of the matter in some detail and I need not reiterate that background. Her Honour concluded (at [14]) that, in circumstances where the appellant did not have a current certificate of enrolment in any appropriate course, the Tribunal’s decision was the only decision it could have made. Her Honour also said that the Tribunal’s conclusions on the alternative basis for refusing the visa application were reasonably open to it, and that the Tribunal had not made any jurisdictional error.
Consideration
The appellant was assisted by an interpreter before me but did not have legal representation. He apparently understood the proceeding and made submissions through the interpreter. He reiterated that at the time of his application to the Tribunal he was not enrolled in any eligible course because, he said, he could not afford to pay the fees.
The appeal raises two new grounds of appeal to this Court, namely that:
(a)the primary judge failed to consider whether the Tribunal exceeded its jurisdiction in making its decision to affirm the Minister’s decision; and
(b)the primary judge dismissed the case without considering the legal and factual errors contained in the Tribunal’s decision.
There is no merit in these grounds. On the first ground, it is plain from the reasons of the primary judge that her Honour considered whether the Tribunal exceeded its jurisdiction. On the second ground, the appellant did not identify any legal or factual errors in the Tribunal's decision, and none are apparent to me.
I can see no error in the judgment of the Federal Circuit Court in respect of the appellant’s lack of enrolment in an eligible course at the time of the Tribunal hearing. Each of cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Regulations require that the visa applicant be enrolled in or be the subject of a current offer of enrolment in an eligible course of study. This is complemented by the requirement in cl. 572.223(1A) that a visa applicant “…is, and was, at the time of application, an eligible vocational education and training student [and has] confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student.” There is nothing in those clauses which indicates that an incapacity to pay academic fees excuses a visa applicant from the requirement to be so enrolled.
Nor can I see any jurisdictional error in the way the Tribunal approached the question under cl 572.223(1) as to whether the appellant was a genuine applicant for entry and stay on the basis that he intended genuinely to stay in Australia temporarily. I respectfully agree with the primary judge in that regard. In passing I note that, based on his admissions to the Tribunal, there is no substance in the appellant’s contentions that:
(a)he studied continuously. He conceded that he did not; or
(b)he had never breached any conditions attached to his visa. It is plain that he breached the conditions attached to his Subclass 573 visa.
The appeal must be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 7 March 2017