Singh v Minister for Immigration and Border Protection

[2016] FCA 74

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCA 74

Appeal from:

Singh v Minister for Immigration & Anor [2015] FCCA 2090

File number:

NSD 1016 of 2015

Judge:

REEVES J

Date of judgment:

12 February 2016

Catchwords:

MIGRATION – application for leave to appeal from a decision of the Federal Circuit Court – where Minister refused to grant the applicant a student visa – where decision of the Minister affirmed by the Migration Review Tribunal – where application for judicial review dismissed by the Federal Circuit Court

Held:  no error in decision of the Federal Circuit Court

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, [2001] FCA 1833

Singh v Minister for Immigration & Anor [2015] FCCA 2090

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, [2006] HCA 63

Date of hearing:

27 November 2015

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

30

Counsel for the Appellant:

The Appellant appeared in person

Solicitor for the First Respondent:

Ms E Warner Knight, Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

NSD 1016 of 2015

BETWEEN:

SUKHDEV SINGH

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	12 FEBRUARY 2016

THE COURT ORDERS THAT:

1.The appellant’s appeal is dismissed.

2.The appellant is to pay the first respondent’s costs of and incidental to this appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1. Mr Singh has appealed from a decision of the Federal Circuit Court:  see Singh v Minister for Immigration & Anor [2015] FCCA 2090 (Singh).  His two grounds of appeal are expressed as follows:

   1.His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error as it failed to comply with the provision of Sec 359(A)(A) of the Migration Act 1958

   ...

   [2.]His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error as it failed to consider all the criteria mentioned in Direction No53 made under Sec 499 of the Act.

   …

   (Errors in original)

   THE FACTUAL CONTEXT

2. Mr Singh is a citizen of India.  He first arrived in Australia on 22 May 2008 on a student visa.  Since that time, he has been granted a number of student visas, the last of which was valid until 28 November 2013.  Shortly before that date, Mr Singh applied for a further student visa to enable him to undertake a Diploma of Information Technology Networking and Advanced Diploma of Network Security.

3. Under sub-cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations), it was a criterion for the grant of such a visa that the Minister had to be satisfied that Mr Singh genuinely intended to stay in Australia temporarily, as follows:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that 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 application; and

   (iv)any other relevant matter.

4. In considering that criterion, the Minister had concerns about the number and type of courses Mr Singh had already undertaken in Australia.  Those courses were set out in a letter an officer of the Department of Immigration and Border Protection wrote to Mr Singh in November 2013.  That letter contained the following list of those courses:

   (a)English;

   (b)Diploma of Hospitality Management;

   (c)Certificate IV in Hospitality;

   (d)Bsc of Business (cancelled);

   (e)Diploma of Business;

   (f)Bsc of Business (cancelled);

   (g)Certificate IV in Hospitality;

   (h)Advanced Diploma of Business;

   (i)Diploma of Business;

   (j)Advanced Diploma of Business; and

   (k)Advanced Diploma of Management.

   Mr Singh responded to that letter and addressed the concerns raised in it.

5. In April 2014, a delegate of the Minister declined to grant Mr Singh’s application on the basis that he had failed to satisfy sub-cl 572.223(1)(a) above.  Mr Singh then applied to the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), for a merits review of that decision.

   THE PROCEEDINGS BEFORE THE TRIBUNAL

6. Mr Singh attended a hearing before the Tribunal in October 2014.  Prior to that hearing, the Tribunal wrote informing him that it planned to consider whether he intended to genuinely stay in Australia temporarily and asked him to provide a written statement addressing that question.  In response, Mr Singh provided a statement which contained the details of his studies in Australia, including the dates of each course he had undertaken and copies of various academic transcripts and completion certificates related thereto.  He also explained how he believed a diploma in information technology of the kind he proposed to obtain would assist him to operate the restaurant business he planned to open upon his return to India.

7. Among other things, at the hearing, Mr Singh confirmed his travel movements during the period since he initially arrived in Australia in 2008.  When the Tribunal put to him that he had been in Australia for over six years and only departed twice and this might indicate that he had strong ties to Australia, he responded that he had been unable to leave Australia since November 2013 because he was on a visa that did not allow him to travel:  see Singh at [11].

8. In January 2015, the Tribunal affirmed the decision of the Minister’s delegate.  It did not consider that Mr Singh had met the criteria set out in sub-cl 572.223(1)(a) above.  In particular, after taking account of the range of courses that he had undertaken in Australia and the fact he had been in Australia for such a long time and had only returned to India on two occasions, the Tribunal did not accept that he genuinely intended to stay in Australia temporarily:  see Singh at [12].

   THE FEDERAL CIRCUIT COURT DECISION

9. By an application filed in the Federal Circuit Court in February 2015, Mr Singh sought judicial review of the Tribunal’s decision. In that application, he raised three grounds of review. The first ground referred to [30] of the Tribunal’s decision and contended that the Tribunal had failed to clearly state the particulars of the matters that it would consider to be the reason to affirm the decision under review and had thereby failed to comply with the requirements of s 359AA of the Migration Act 1958 (Cth) (the Act).

10. As to this ground, the Federal Circuit Court judge observed that s 359AA of the Act provided an alternative method of complying with the obligation under s 359A and, if there was no obligation under the latter provision, the Tribunal did not need to rely upon s 359AA. The Federal Circuit Court judge concluded that was the position with Mr Singh’s matter because there was nothing in [30] of the Tribunal’s decision that gave rise to such an obligation. His Honour said:

    15.That section requires the Tribunal to give the applicant clear particulars of information that it considers would be the reason or part of the reason for its decision.  Broadly speaking, and subject to a number of qualifications, it requires the Tribunal to inform the applicant about information that is adverse to him. There is nothing in [30] of the Tribunal’s reasons that the Tribunal considered would be adverse to the applicant. To the contrary, it is plain that the Tribunal took the fact that the applicant had been continuously studying since his arrival in 2008 as an indicator of a genuine intention to stay temporarily. It said in the following paragraph:

    However, the successful completion of courses and continuous study is(sic) two of many considerations relevant...

    16.For that reason, none of the information in [30] of the Tribunal’s reasons gave rise to any obligation on the Tribunal under s.359A.

    (Emphasis in original)

11. The Federal Circuit Court judge then went on to consider whether any other breach of s 359A (or s 359AA) may have occurred. In the following passage of his reasons, he found that none had:

    17.On the other hand, there were two pieces of information that arguably fell within s.359A. The first was information concerning the nature of the courses and the second was information concerning the applicant’s migration history, namely the fact that he had only travelled to India on two occasions throughout the period that he had been studying in Australia. However, whether it be the case that the Tribunal considered that such information would be the reason or part of the reason for its decision, there was no obligation on the Tribunal to give the applicant clear particulars. That is so because both pieces of information were given by the applicant to the Tribunal for the purposes of the application and so excluded from the operation of s.359A: see subs. 359A(4)(b).

    18.The information about the courses was given by the applicant in his response to the Tribunal’s letter of 5 September 2014 and the information about the applicant’s migration history was given by the applicant at the hearing by way of confirmation in response to questions asked by the Tribunal. In this respect, there is no distinction between information proffered by an applicant to the Tribunal of the applicant’s own volition or elicited from an applicant by the answering of the Tribunal’s questions: SZTGV v Minister for Immigration & Border Protection (2015) 229 FCR 90 at 101 [24].

12. For those reasons, his Honour rejected Mr Singh’s first ground of review:  see Singh at [19].

13. Mr Singh’s second ground of review complained that the Tribunal had failed to consider that, from the time he had first arrived in Australia in about June 2008, until November 2013, he was the holder of several bridging visas, which did not permit him to travel overseas and then to re-enter Australia.  This complaint related to the following passage in the Tribunal’s decision (at [37]):

    … On the applicant’s own evidence he lived in Australia five and a half years to November 2013, a period when his visa allowed him to depart, and only returned home twice, each time being less than a month.

14. The Federal Circuit Court judge found that this complaint was inconsistent with the evidence before the Tribunal and there was otherwise no evidence before him which would establish the factual foundation for it, as follows:

    21.That finding is inconsistent with the applicant’s assertion that he held a bridging visa in that five and a half year period that did not entitle him to leave and then to re-enter Australia. The only evidence of what the applicant said at the hearing in respect of his visa entitlements and movement in out of Australia is contained in the following passage from the Tribunal statement of reasons:

    [13]At the hearing the applicant confirmed his travel movements as outlined above and courses completed. The Tribunal questioned that he had been Australia (sic) for over 6 years and only departed twice and it may indicate he has strong ties to Australia. He responded that he has been unable to leave since November 2013 because he is on a visa which does not allow him to travel.

    (Emphasis added)

    22.That passage is consistent with the Tribunal’s finding at [37] of its reasons and inconsistent with the assertion upon which the second ground is based. There being no other evidence of the applicant’s evidence before the Tribunal, I accept the Tribunal’s statement of reasons to be an accurate summary of what was said at that hearing. For that reason, I do not accept that the applicant gave evidence to the Tribunal that he had bridging visas in the period up to November 2013 that did not entitle him to leave and re-enter Australia. On that basis, the factual foundation for the second ground has not been established and the second ground must be rejected.

    (Emphasis in original)

15. In his third ground of review, Mr Singh contended that the Tribunal had fallen into jurisdictional error because it had failed to inform him of the issues that were relevant to the review and to allow him an adequate opportunity to respond to them.  On this ground, the Federal Circuit Court judge found that no additional issues had been raised by the Tribunal and in such circumstances the relevant issues were limited to “the issues arising in relation to the decision under review” that were “identified as determinative against [him]” citing SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, [2006] HCA 63 at [35]. Since Mr Singh was aware of the determinative issue in question and “the reasons of the Tribunal revealed that this issue was discussed at the hearing so that the applicant had an opportunity, at that time, to give evidence and present arguments relating to the issue”, his Honour rejected this ground (see Singh at [23]–[25]).

16. Having rejected each of Mr Singh’s grounds of review, the Federal Circuit Court judge therefore dismissed Mr Singh’s application.  As is already noted above, he then filed this appeal to this Court.

    THE CONTENTIONS ON THIS APPEAL

17. In his written submissions, the Minister contended that Mr Singh’s appeal should be dismissed with costs because he had not demonstrated any error on the part of the Federal Circuit Court judge.  Mr Singh did not file any written submissions.  However, when he appeared at the hearing of the appeal, he made some oral submissions.

18. Of relevance to his grounds of appeal, he repeated the claim which the Federal Circuit Court judge rejected (see at [14] above) that he was on a bridging visa after 2008 and that was why he only went to India twice. Otherwise, he contended that, if the Minister did not intend to issue a further student visa to him, he should have placed a condition on his last visa that he could not apply for any further visas. He also contended that everyone should be treated equally, whether they were migrants or not. These latter two contentions are clearly not related to either of his grounds of appeal, and nor do they identify any error allegedly made by the Federal Circuit Court judge so they therefore can be disposed of immediately.

    NO ERROR MADE BY FEDERAL CIRCUIT COURT JUDGE

19. The primary purpose of an appeal to this Court from a judgment of the Federal Circuit Court is the correction of error on the part of the latter Court:  see Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, [2001] FCA 1833 at [21]–[22] per Allsop J (as his Honour then was), with whom Drummond and Mansfield JJ agreed. With this principle, Mr Singh faces a significant difficulty in this appeal (see at [22] and [25] below). That is so because, with the possible exception of an aspect of his first ground of appeal, the remainder of his grounds of appeal raise questions that he did not put to the Federal Circuit Court judge. Self-evidently, the Federal Circuit Court judge could not have made an error with respect to those questions if they were not raised with him.

    Ground 1

20. At first blush, Mr Singh’s first ground of appeal in this Court (see at [1] above) appears to re-agitate the complaint made in the first ground of review before the Federal Circuit Court about the Tribunal’s failure to comply with s 359A, or s 359AA, of the Act. However, when one considers the particulars Mr Singh provided in support of this ground, it becomes apparent that, instead of pointing to [30] of the Tribunal’s decision as he did before his Honour (see at [9] above), in this ground of appeal Mr Singh has identified a different category of information that he claims the Tribunal should have put to him. The particulars in question are as follows:

    The court in paragraph 18 has observed that the applicant gave evidence relating to his migration history. Whereas in the Tribunal decision in paragraph 2 it states the information is collected from the “movement records”. It is submitted that the applicant when questioned by the Tribunal gave evidence that he had been on bridging visa which did not permit travel overseas in 2010 for a few months, in 2011 for about six months and from 2013 to till date. It is submitted that the Tribunal was in possession of the Movement records. As these are information not adduced by the appellant, the Tribunal should have provided clear particulars of the adverse information relied upon from the movement records as per Sec 359AA and should have afforded an opportunity to reply to such adverse information.

    It is also submitted that the Tribunal wrongly observed that in para 37 of its order that “On the applicant’s own evidence he lived in Australia for five and half years to Nov 13, on a period of visa which allowed him to depart, only returned home twice”. This observation of Tribunal was quoted at para 21 of the order of the Honourable Court,. It is submitted that this observation is erroneous and is contrary to the evidence adduced by the appellant at the Tribunal Hearing and also contrary to the information that would have been available in the movement records. At the time of Tribunal hearing the appellant had clearly stated that he was on bridging visa in 2010 & 2011. The observation of Tribunal that “applicant’s own evidence he lived in Australia for five and half years to Nov 13, on a period of visa which allowed him to depart” is without legal basis. Hence it is submitted that the decision was based on incorrect evidence or erroneous observation of the evidence elicited.

    (Errors and omissions in original)

21. It can be seen from these particulars that Mr Singh has identified, as the information that should have been put to him under s 359A or s 359AA, the “movement records” referred to in [2] of the Tribunal’s decision. In contrast, paragraph [30] of the Tribunal’s decision did not mention his travel movement, but instead described the studies Mr Singh had successfully undertaken since arriving in Australia in 2008, as follows:

    The Tribunal accepts that the applicant has undertaken and completed successfully several courses in Australia from his arrival in 2008 to date as indicated in paragraph 5 above. While the hearing was held prior to the completion of his Diploma of Information Technology Networking, it is prepared to accept based on his past performances and information provided as to his achievements mid-way through that course, that by the time of this decision he has successfully completed the IT course at the end of 2014. It accepts he has been continuously studying since his arrival in 2008.

22. As I have recorded above (at [10]), the Federal Circuit Court judge found that the contents of paragraph [30] were favourable to Mr Singh, rather than adverse, and they did not therefore give rise to any obligation under s 359A or s 359AA of the Act. Mr Singh has not challenged that finding in this appeal. Instead, as his particulars of this ground show, he has focused on the reference in paragraph [18] of Singh (set out in [11] above) to his “migration history” and the “movement records” mentioned in [2] of the Tribunal’s decision. However, while Mr Singh did not identify these matters in his first ground of review before the Federal Circuit Court, he did raise them in his second ground. In that ground of review, he complained about the Tribunal’s observations at [13] of its decision (set out in the quotation at [14] above). Paragraph [13] of the Tribunal’s decision is directly connected with [2] of its decision because, prior to the former, the only mention of travel movements or “movement records” in that decision appears in the latter. At [2] of its decision, the Tribunal set out the details of Mr Singh’s travel movements in the following terms:

    Movement records indicate that applicant (sic) initially arrived in Australia on a student visa on 22 May 2008, which was valid until 2 September 2010. Further student visas were granted to 28 November 2013. The applicant departed Australia from 26 February 2010 to 18 March 2010 and 5 January 2012 to 30 January 2012.

1. In addition, as the Federal Circuit Court judge observed in his reasons (Singh at [22]; see at [14] above), the subject of Mr Singh’s travel movements was mentioned again later in the Tribunal’s decision (at [37]). There, the Tribunal observed:

   The Tribunal accepts that [Mr Singh] has no relatives in Australia and wishes to marry a girl from India. However, the Tribunal does not consider [Mr Singh’s] family being in India or his wish to marry an Indian girl to indicate a strong intention on the part of [Mr Singh] to remain in Australia temporarily or intention to return to India. On [Mr Singh’s] own evidence he lived in Australia for five and a half years to November 2013, a period when his visa allowed him to depart, and only returned home twice, each time being less than a month.

2. On this aspect, it should be noted that, in the second paragraph of his particulars (see at [20] above), Mr Singh has also sought to challenge this part of the Tribunal’s decision under this first ground of appeal.

3. Even assuming in Mr Singh’s favour that, by a combination of his first and second grounds of review before the Federal Circuit Court, he raised the substance of this first ground of appeal below, I do not consider Mr Singh has established that the Federal Circuit Court judge committed any error in his treatment of it. First, as I have already noted above (at [22]), the Federal Circuit Court judge dismissed Mr Singh’s first ground of review and he has not sought to challenge that finding in this appeal. As to Mr Singh’s second ground of review, the Federal Circuit Court judge dismissed that ground because he concluded that Mr Singh had not made out the factual foundation for it. That is, as I have already explained above (at [14]), his Honour accepted as accurate the Tribunal’s statement at [13] of its reasons that Mr Singh had confirmed his travel movements as outlined at [2] of the Tribunal’s reasons and, because there was no other evidence before him to show that Mr Singh had given any additional evidence to the Tribunal on that topic, his Honour did not accept “that [Mr Singh] gave evidence to the Tribunal that he had bridging visas in the period up to November 2013 that did not entitle him to leave and re-enter Australia”. That being so, there is no evidence that the Tribunal had before it any information adverse to Mr Singh about that matter which fell within the terms of s 359A or s 359AA of the Act. In any event, even if Mr Singh were able to prove that he did give that evidence before the Tribunal, as the Federal Circuit Court judge correctly observed (see Singh at [18]; see at [11] above), it would constitute information proffered by him of his own volition and therefore would not fall within the terms of s 359A of the Act. I do not therefore consider there is any substance to Mr Singh’s first ground of appeal.

   Ground 2

4. Mr Singh’s second ground of appeal (see [1] above) clearly raises a new matter that was not raised before the Federal Circuit Court.  In it, Mr Singh claims that the Tribunal made a jurisdictional error by not considering all of the criteria in Ministerial Direction 53 and that the Federal Circuit Court judge erred by failing to hold that such an error had occurred.  Mr Singh provided the following particulars of this ground:

   The evidence on record will indicate that the appellant donot have any family ties in Australia and he intends to return to India after studies. The appellant has successfully completed all the courses he enrolled which add value and have a bearing on his future when he return to India. It is submitted most of the other circumstances stated in Direction 53 have not been considered or dealt with in the Tribunal order.

   (Errors and omissions in original)

5. The Minister opposed leave being granted to Mr Singh to rely upon this new ground because it is without merit and has no prospects of success.  I agree with this contention.

6. Direction 53 is a direction issued by the Minister under s 499(1) of the Migration Act. The Tribunal’s decision records that, at the hearing, among other things, it outlined the relevance of that Direction to Mr Singh. Then, in the “Consideration of claims and evidence” section of its decision, the Tribunal set out the terms of Direction No 53 and observed (at [27] and [28]) that “the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole …”. At two points thereafter in its decision, the Tribunal stated that it had had regard to the factors specified in that Direction (at [29] and [39]). Whether or not the Tribunal specifically mentioned every factor in Direction 53 in its decision, I consider it is clear that it took account of the whole of the import of that Direction in reaching its decision. Moreover, the Tribunal specifically took account of the two matters Mr Singh appears to claim in his particulars above that it did not, namely his lack of family ties in Australia and his intention to return to India after his studies. It did that at [37] of its decision, as follows:

   The Tribunal accepts that the applicant has no relatives in Australia and wishes to marry a girl from India. However, the Tribunal does not consider the applicant’s family being in India or his wish to marry an Indian girl to indicate a strong intention on the part of the applicant to remain in Australia temporarily or intention to return to India. …

7. There is, therefore, no merit in Mr Singh’s second ground of appeal.  Accordingly, I consider that leave to rely upon it as a new ground before this Court should be refused.

   CONCLUSION

8. For these reasons, Mr Singh’s appeal must be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:       

Dated:       12 February 2016