Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 363
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 363
File number(s): SYG 2947 of 2020 Judgment of: JUDGE DOUST Date of judgment: 14 March 2025 Catchwords: MIGRATION – application for student visa – requirement to show current enrolment in course of study – request for adjournment of Tribunal hearing to obtain Confirmation of Enrolment – application dismissed Legislation: Migration Act1958 (Cth) ss 363(1)(b), 476, 477(1), 499
Migration Regulations1994 (Cth) sch 2 cl 500.212
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12
Minister for Immigration and Citizenship and Li (2013) 249 CLR 332; [2013] HCA 18
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 21 January 2025 Place: Sydney The Applicant: In person, via Microsoft Teams Solicitor for the First Respondent: Ms Q Ren, HWL Ebsworth Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2947 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DOUST:
BACKGROUND TO APPLICATION TO THE COURT
The applicant lodged the present application on 21 December 2020 (the application) seeking a remedy under s 476 of the Migration Act1958 (Cth) (Act) in respect of a decision of the (then) Administrative Appeals Tribunal (Tribunal), now Administrative Review Tribunal affirming a decision to refuse the applicant a Student (Temporary) (Class TU) Subclass 500 visa (student visa).
The application has been made within the time specified in s 477(1) of the Act.
The applicant filed an affidavit, affirmed by him on 19 December 2020, in support of the application, annexing a copy of the Tribunal decision the subject of the application. The Tribunal’s written reasons were prepared on 10 December 2020 (and sent to the applicant under cover of a letter dated 14 December 2020) after oral reasons were delivered by the Tribunal at the hearing on 30 November 2020.
The Tribunal filed a submitting appearance on 26 August 2024.
On 31 March 2021 the first respondent (now the Minister for Immigration and Multicultural Affairs (Minister)) filed a Court Book containing documents concerning the applicant’s visa application, including a copy of the Tribunal decision the subject of the application (Court Book).
On 18 February 2021, and again on 13 December 2024, the Court made orders giving the applicant permission to file any amended application containing any grounds other than those already appearing in the application. The applicant did not file any amended application. Nor did the applicant file and serve any other evidence, or written submission in support of the application, despite directions being made to that effect on 18 February 2021 and again on 13 December 2024.
On 13 December 2024, the matter was listed for final hearing on 21 January 2025.
At the hearing, the Court received, without objection, both the applicant’s affidavit and the Court Book.
The applicant appeared, via a Microsoft Teams link, and had the assistance of an interpreter throughout the hearing.
THE APPLICANT’S VISA APPLICATION
The applicant, born 13 July 1983, is a citizen of India, with a Bachelor of Commerce from the Punjab University.
He undertook an Advanced Diploma of Marketing at AITE College in Sydney between March 2018 and 2019.
He applied for a Student (Subclass 500) visa on 7 May 2019. His application stated that he wished to study leadership and management.
THE DECISION OF THE MINISTER’S DELEGATE
On 3 July 2019, the Minister’s delegate (the delegate) wrote to the applicant advising the applicant that his application for the student visa had been refused.
The Decision Record attached with the letter recorded the delegate’s view that cl 500.212 in schedule 2 of the Migration Regulations1994 (Cth) (Regulations) was not satisfied. That clause, known as “the genuine temporary entrant criterion”, provides 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.
The delegate referred to Ministerial Direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (Direction) which sets out the factors that must be taken into account when assessing the genuine temporary entrant criterion for student visa applications. The delegate noted that the Direction was made in accordance with s 499 of the Act. The delegate set out a summary of the factors to be considered arising from the Direction, which included, inter alia:
(a)the applicant’s circumstances in their home country;
(b)the applicant’s potential circumstances in Australia;
(c)the value of the course to the applicant’s future; and
(d)the applicant’s immigration history.
The delegate noted that the applicant advised that his proposed course of study was to undertake the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management.
The delegate noted the absence of any history of employment in India in the applicant’s application, the absence of any information about significant financial assets in India, and expressed serious concerns about whether the applicant intended to depart Australia at the completion of his studies.
The delegate also noted the applicant’s failure to provide information in his application about his travel history for the past ten years, and as a result of that failure, expressed concern that the applicant had not given a full picture of the length of his stay and his circumstances in Australia.
The delegate noted the applicant’s claim that he intended to enter into a work partnership with his cousin at the completion of his studies, but noted that the applicant had not provided any evidence that his cousin owned such business.
Noting that the applicant was proposing to extend his stay in Australia (in respect of which he had held a previous student visa) by more than 50 months, the delegate concluded that the applicant had not provided strong reasons for undertaking the study, and concluded the applicant was likely seeking to extend his stay for other reasons.
The delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.
The delegate concluded that the applicant did not meet the requirements of cl 500.212 of sch 2 of the Regulations, that the applicant did not meet the criteria for the grant of the visa, and therefore refused the application.
THE REVIEW BY THE TRIBUNAL
The applicant lodged his application for review with the Tribunal on 21 July 2019.
On 8 May 2020, the Tribunal wrote to the applicant with an invitation to provide information concerning the application.
The invitation was contained in an attached letter which stated that it was a requirement of the student visa sought by the applicant that he be both:
(a)enrolled in a registered course of study; and
(b)a genuine applicant for entry and stay as a student.
The letter advised the applicant that he would need to provide sufficient information to satisfy the Tribunal that he met both of those visa requirements. It invited him to give the Tribunal, in writing, all relevant information about the course of study he was undertaking and his entry and stay in Australia as a student. The letter directed him to provide specific details about the requested information using the “Request for Student Visa Information” form, to which it provided a link. The letter also provided the applicant with a copy of the Direction. The letter requested the applicant to provide the information by 22 May 2020.
The applicant provided a completed Request for Student Visa Information form to the Tribunal.
In it, the applicant stated that he did not consent to the Tribunal deciding the review without holding a hearing.
The applicant disclosed in the form that he first arrived in Australia on 10 January 2010, and that he had held a student visa between May 2016 and May 2019. The applicant disclosed that he had previously completed a Diploma of Management, Advanced Diploma of Hospitality, Certificate IV in Marketing and an Advanced Diploma of Marketing and Communication which he completed in March 2019.
The applicant stated that he did not hold a current Confirmation of Enrolment in a registered course of study.
He entered that information into a space provided above a notation on the form that:
Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
On 13 November 2020, the Tribunal wrote to the applicant attaching an invitation to attend a telephone hearing on 30 November 2020, advising that on the material before the Tribunal alone, it was unable to make a decision that was favourable to the applicant. The letter contained the following:
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations1994 (the Regulations) for the grant of the visa.
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia. Please note, if you have recently provided these documents to the Tribunal, there is no need to submit them again, but please ensure that you have provided us with the most up-to-date information.
(underlining added, bold in original)
On 16 November 2020, the applicant returned to the Tribunal a completed ‘Response to hearing invitation’ – MRDivision form. In that form, he responded in the negative to a question regarding whether he intended to rely on any documents at the hearing.
The Tribunal hearing proceeded as a telephone hearing on 30 November 2020.
The hearing concluded and the Tribunal gave an oral statement of reasons affirming the delegate’s decision to refuse to grant the visa.
On 1 December 2020, the applicant requested that he be provided with the written reasons.
The Tribunal gave a written statement of its decision and reasons on 10 December 2020, which was sent to the applicant under cover of a letter dated 14 December 2020.
THE TRIBUNAL’S REASONS
In its written reasons, the Tribunal concluded that the decision under review should be affirmed.
The Tribunal noted that cl 500.211 of sch 2 of the Regulations required that, at the time of its decision, the applicant be enrolled in a course of study as defined in the Regulations, and that at the hearing, the applicant in his sworn evidence informed the Tribunal that he was not currently enrolled in a course of study, and that due to the COVID-19 pandemic he did not have the funds to do so presently. The Tribunal recorded that the applicant stated that he was enrolled in a Diploma of Marketing in 2019 and that he had not been enrolled in a course of study in 2020 but that he was able to provide a confirmation of enrolment (COE) in seven days from the date of the Tribunal hearing. From other material in the Court Book, it appears that the applicant was in fact enrolled in the Advanced Diploma of Marketing in 2019, but the applicant did not attack that part of the Tribunal’s reasons.
The Tribunal went on as follows:
12. The tribunal considered whether or not it might be appropriate to grant the applicant an adjournment in the circumstances, to procure a confirmation of enrolment. The tribunal concluded that it was not appropriate to provide any further time to procure a confirmation of enrolment in the circumstances, because the tribunal considered that the applicant, based on his evidence, has had sufficient time in which to procure a confirmation of enrolment in advance of today's hearing. The tribunal formed a view that the applicant has had sufficient time to procure a confirmation of enrolment based upon the applicant's evidence as set out above.
13. Based upon the matters set out above, the tribunal is satisfied that the applicant is not enrolled in a course of study at the time of this decision and therefore clause 500.211 is not met by the applicant.
14. Given the above findings, the tribunal finds the criteria for the grant of the sub-class 500 student visa are not met.
THE APPLICATION TO THE COURT
The Court may only grant a remedy to the applicant if the Tribunal’s decision is affected by an error that is jurisdictional in character.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 (LPDT), Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (with whom Beech-Jones J agreed in separate reasons) described jurisdictional error as follows (with footnotes omitted):
2. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all” and is in that sense "void".
3. Because an express or implied condition of a statutory conferral of decision‑making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
In some cases, the error will be jurisdictional whether or not that error has been shown to have had an effect on the final decision, for example, where apprehended or actual bias are shown: LPDT at [6].
However, in most instances an error will only be jurisdictional where the error was material to the decision made, in the sense that there is a realistic possibility (that is, one that is neither fanciful nor improbable) that the decision could have been different but for the error: LPDT at [7], [14].
The single ground in the application was as follows (errors in original):
Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue ) as mentioned in affidavit attached here with .
The applicant’s affidavit contained the following (errors in original):
3. Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue)
First of all delegate mentioned in decision Record that, “The Tribunal does not have Jurisdiction. Then The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212. please have a look annexure A.
I hope that I have put forward my position in a simple, clear and honest manner and that you will see that I am not in breach of cl 500.212 condition. I have requested to member to give me only 7 days to provide COE but member not allow me to do so.
I sincerely request that you give due consideration to the compelling and compassionate circumstances. I think I am become a victim of a procedure fairness issue/matter here as Administrative Appeals Tribunal has an error in my decision. This is not fair work by any department while making a decision and department or tribunal should be fair to make it decision and must look into all necessary aspects.
The grounds are dealt with in turn below.
GROUND 1
The applicant did not file any written submission in support of his application, nor did he elaborate on his ground in any substance at the hearing.
As best the application may be understood, it is an allegation that the Tribunal’s decision involved jurisdictional error arising from the failure to adjourn the hearing to enable the applicant to obtain a COE.
The applicant’s case raises for consideration the decision of the High Court in Minister for Immigration and Citizenship and Li (2013) 249 CLR 332; [2013] HCA 18 (Li). In that matter, an applicant for a Skilled Overseas visa was awaiting an assessment of her skills by the relevant authority at the time the Tribunal conducted its hearing. Subsequent to the hearing, the applicant was advised that the assessment was unsuccessful, but sought a review of that assessment. The applicant requested the Tribunal to hold off determining her application for review until the skills assessment review process was concluded, advising the Tribunal of the fundamental errors in the skills assessment she claimed to have identified. She undertook to keep the Tribunal advised of the progress of that application.
The Tribunal proceeded to determine the review application notwithstanding the applicant’s request, reasoning that the applicant had been provided with enough opportunities to present her case, and expressing the view that it was not prepared to delay the matter further.
The Court found that the Tribunal had erred. Hayne, Kiefel and Bell JJ (the majority) concluded at [85], that it was not possible to say whether the Tribunal had erred by not having regard to the purposes for which the statutory discretion in s 363(1)(b) of the Act was provided, or by giving too much weight to the fact that the review applicant had already had an opportunity to put on evidence. There was error nonetheless, as the Tribunal could not have properly decided to bring the review to an end having regard to all relevant considerations and the scope and purpose of the Act. The Tribunal had not discharged its function according to law.
The majority in Li made clear, at [82], that the Tribunal is not under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and improve upon the evidence. In an appropriate case, the conclusion that “enough is enough” may be open to the Tribunal. In the circumstances of Li, it was not clear how the Tribunal had reached that point.
The majority said (at [83]) that whilst the Tribunal could not be expected to assume that the second skills assessment would be favourable to Ms Li, there was no suggestion that Ms Li had no prospect of such assessment being favourable or that the outcome would not be known in the near future.
The present matter is not on all fours with Li.
First, in Li, the applicant sought time to obtain evidence to demonstrate her satisfaction of the visa criterion. In the present matter, the applicant sought additional time to take the steps necessary to satisfy the visa criterion, namely, the criterion that he be enrolled in a course of study.
Second, in Li the review applicant had taken steps to obtain the evidence prior to the Tribunal hearing. There was some basis to think that the evidence would become available within a foreseeable period.
In the present matter, the applicant had not been enrolled in a course of study since completing his Advanced Diploma of Marketing and Communication (the certificate of which was issued on 21 March 2019). He had been advised in a letter from the Tribunal dated 8 May 2020 that he would be required to demonstrate at hearing that he met the requirement that he be enrolled in a course of study. Notwithstanding the fact that he told the Tribunal, as recorded at [11] of the Tribunal’s reasons, that he did not have the funds to enrol in a course presently, the applicant claimed that he was able to provide a COE in seven days. The Tribunal does not record the applicant specifying how he might have been able to provide the COE within seven days in circumstances where he was not in a position to enrol at the date of the hearing, even after being on notice of that requirement for some six months at the time of the hearing. There is nothing in the Tribunal’s reasons to indicate the applicant had any particular course of study planned. In that context, the claim that the applicant could obtain a COE within seven days has a quality of putting the cart before the horse.
Unlike the applicant in Li, the applicant here did not identify any steps that he had taken prior to the Tribunal hearing to obtain a COE, such as making enquiries about places in any proposed course of study. That was notwithstanding the communications from the Tribunal on 8 May 2020 and 13 November 2020 identifying the necessity for the applicant to provide a COE. Nor did the applicant provide the Tribunal any substantial basis, other than mere assertion, for thinking there was a realistic possibility in the not too distant future that he might be in a position to provide a COE. The applicant has not, in this Court, provided any evidence to demonstrate how he had a realistic possibility of obtaining a COE within seven days, or any reasonable period, of the Tribunal hearing.
The Tribunal’s focus in [12] of its reasons is on the fact that the applicant had been given sufficient time to procure a COE. In that sense, it has echoes of the Tribunal decision in Li, where the Court found that such focus revealed error. However, given the differences set out above, the decision in this matter was not unreasonable in the sense discussed in Li.
The application should be dismissed and the parties will be given an opportunity to make submissions as to costs when these reasons are published.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 14 March 2025
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