Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 270
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 270
File number(s): SYG 1895 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 27 February 2025 Catchwords: MIGRATION – Judicial review – Student visa refusal – whether Tribunal failed to consider information and claims – whether Tribunal denied the applicant an opportunity to give information – whether Tribunal’s decision not to adjourn the review was legally unreasonable – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 359, 359C, 360, 363, 363A
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: MZXHY v Minister for Immigration [2007] FCA 622
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Tshering v Minister for Home Affairs [2019] FCCA 2667
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 29 November 2024 Date of hearing: 3 December 2024 Place: Sydney Solicitor for Applicant Mr H Gill of Gill Lawyers Solicitor for the Respondents Mr H McLaurin of The Australian Government Solicitor ORDERS
SYG 1895 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHUPINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The application filed on 10 August 2020 be 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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 15 July 2020. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) on 20 February 2019 to refuse to grant the applicant a Subclass 500 Student (Temporary) (Class TU) visa (student visa).
The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
For the following reasons, the application is dismissed.
BACKGROUND
The applicant, a national of India, first entered Australia on 9 July 2018 as the holder of a student visa granted on the basis that he was the spouse of another student visa holder. His spouse had been granted her student visa on 26 June 2018.[1]
[1] Court Book (CB) 51.
The student visa application
On 20 December 2018, the applicant applied onshore for a student visa on the basis that he sought to meet the primary criteria for the grant of the visa.[2]
[2] CB 15 to 30.
On 20 February 2019, the delegate refused the applicant’s student visa application because they were not satisfied the applicant was a genuine applicant for temporary entry and stay as a student pursuant to the requirement in cl 500.212 in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3]
[3] CB 43 to 52.
The review application
On 11 March 2019, the applicant applied to the Tribunal for review of the delegate’s decision.[4]
[4] CB 53.
On 17 April 2020, the Tribunal wrote to the applicant, pursuant to s 359(2) of the Act, inviting him to provide information in writing about the courses of study he was undertaking and any information relating to his entry and stay in Australia as a student (s 359 letter).[5] Attached to the s 359 letter was a ‘Request for Student Visa Information Form’ (RSVI Form) and a copy of ‘Ministerial Direction No. 69 Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69).[6] It was stated within the s 359 letter that:
(a)a written response, including the information requested in the RSVI form, should be provided to the Tribunal by 1 May 2020, or within an extended period as agreed between the Tribunal and the applicant;
(b)failure to provide a written response by 1 May 2020, or within an extended period as agreed, meant that the applicant would no longer be entitled to a hearing and that the Tribunal may proceed to a decision without taking any further action to obtain the requested information.
[5] CB 60 to 61.
[6] CB 60 to 67.
On 4 May 2020, the applicant provided the Tribunal with his written response to the s 359 letter which including a completed RSVI form, a copy of the applicant’s passport, a previous visa grant notice, school and university certificates, and six confirmations of enrolment (CoE).[7]
[7] CB 68 to 92.
Four of the CoEs were created on 14 December 2018 and they showed that the applicant was enrolled at Brisbane Career College Pty Ltd in the following courses:
(c)a Certificate II in Business commencing on 7 July 2019 with a completion date of 21 June 2019;[8]
(d)a Certificate III in Business commencing on 24 June 2019 with a completion date of 17 January 2020;[9]
(e)a Certificate IV in Business commencing on 20 January 2020 with a completion date of 11 September 2020;[10] and
(f)a Diploma of Business Administration commencing on 14 September 2020 with a completion date of 24 September 2021.[11]
The applicant confirmed in the RSVI form he provided to the Tribunal that he never started these courses of study.[12]
[8] CB 87.
[9] CB 88.
[10] CB 89.
[11] CB 90.
[12] CB 72.
The remaining two CoEs were created on 19 July 2019 and they showed that the applicant was enrolled at MVJ Enterprise Pty Ltd (trading as Perth College of Beauty Therapy: YES College) in the following courses:
(a)a Diploma of Business commencing on 8 July 2019 with a completion date of 5 July 2020;[13] and
(b)an Advanced Diploma of Business commencing on 6 July 2020 with a completion date of 4 July 2021.[14]
[13] CB 91.
[14] CB 92.
The applicant indicated within the RSVI form that he consented to the Tribunal proceeding to finalise his review application without a hearing.[15]
[15] CB 69.
On 15 July 2020, the Tribunal proceeded to make its decision without taking any further action to obtain information from the applicant pursuant to s 359C(1) of the Act.
The Tribunal’s decision
In its decision, the Tribunal outlined the procedural history and relevant statutory framework before examining the applicant’s claims and evidence. That examination involved a consideration of the material provided to the Department and the Tribunal.
The Tribunal noted that the applicant responded to the s 359 letter on 4 May 2020, which was not within the prescribed period for response, and that no extension of time to respond had been requested. Accordingly, it found that s 359C of the Act applied whereby the applicant was not entitled to appear before the Tribunal given the cascading effect of ss 360(3) and 363A of the Act.[16]
[16] CB 101 at [8].
The Tribunal elected not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review to allow the applicant additional time. Having considered that the applicant had been afforded a fair opportunity to provide relevant information the Tribunal proceeded to make its decision having regard to the information it had before it.[17]
[17] CB 102 at [10] to [11].
The Tribunal expressed its understanding of the operation and application of Direction 69, observing that it should not be used as a checklist, but rather as a guide for decision makers when assessing the applicant’s circumstances. Furthermore, the Tribunal had regard to Tshering v Minister for Home Affairs [2019] FCCA 2667 at [44]-[47], where His Honour Judge McNab endorsed the view that such guidelines may not be relevant where the facts presented by an applicant do not engage particular matters identified therein.[18]
[18] CB 103 at [18] to [19].
The Tribunal considered the applicant’s background prior to coming to Australia including his level of educational attainment, being a Bachelor of Arts in India, and his employment history within the agricultural industry in India. [19]
[19] CB 104 at [20] and [22].
It also considered the applicant’s reasons for study within Australia as opposed to studying in India and found them to be reasonable.[20]
[20] CB 105 at [25].
The Tribunal noted the applicant’s submissions to the Department indicating his intention to return to the agricultural business he had worked for in India. The Tribunal observed however that the material provided by the applicant to the Tribunal failed to mention this intention and instead comprised ‘vague and general submissions’ about the job opportunities and salary packages that may be available to him upon his return to India.[21] Whilst acknowledging that reasonable changes in career ambitions may occur, and that an Australian business qualification may be utilised in many ways within India, the Tribunal found the applicant’s submissions ‘too vague and general in nature’ in order to make any firm finding in the applicant’s favour in this regard.
[21] CB 104 at [22].
When considering the applicant’s study plan, as outlined in his visa application and the various CoEs, the Tribunal:
(a)recorded that it was puzzled by the applicant’s evidence to the Tribunal that he never started any of the proposed qualifications, which contradicted the delegate’s finding that the applicant was ‘studying’ the Certificate II in Business.[22]
(b)observed that, at the time of making its decision, the applicant should have completed his Diploma of Business but had not provided any corroborating documents from his course provider by way of an academic transcript, letter or certificate.[23]
(c)observed that there was limited evidence of the applicant having demonstrated a genuine intention to study as he had not enrolled in any courses while he was a dependent on his spouse’s student visa and had not enrolled in any courses until five months after his student visa application was refused, being seven months after the visa application was made. It found that this behaviour was not consistent with that of a genuine applicant for entry and stay as a student in Australia.[24]
(d)found that the applicant’s proposed study plan represented a significant downgrade from his tertiary level of education.[25]
[22] CB 104 at [21].
[23] CB 104 at [21].
[24] CB 105 at [23].
[25] CB 105 at [22].
The Tribunal examined the applicant’s economic circumstances and found, on balance, that his economic circumstances in Australia were not acting as a significant incentive for him to remain onshore.[26]
[26] CB 105 at [24].
The Tribunal noted that the applicant’s sister lived in India, and that he spoke with her daily. However, it also noted he had not returned home to visit India since his arrival and had not listed any community ties to India. The Tribunal found his family ties ‘may serve as an incentive’ to return, but that it did not have sufficient information to find such incentives ‘are acting as a significant incentive’ to return.[27] Further, as the applicant had not detailed any community ties to Australia, the Tribunal did not consider it had sufficient information to make findings on whether the applicant’s community ties to Australia were serving as a strong incentive for him to remain.[28]
[27] CB 105 at [27].
[28] CB 105 at [26].
The Tribunal concluded that it was not satisfied that the applicant genuinely intended to stay temporarily as required by cl 500.212. The Tribunal ultimately found that that the student visa was being sought primarily to maintain residence in Australia. In reaching that conclusion, the Tribunal gave weight to its concerns about the following matters: [29]
(a)the lack of study the applicant undertook prior to July 2019;
(b)the absence of any supporting documentation in relation to the applicant’s academic progress since July 2019;
(c)the vague and general nature of the applicant’s submissions in relation to his future employment goals; and
(d)the significant downgrade the applicant’s proposed study represents given his attainment of a Bachelor level qualification.
[29] CB 106 at [30].
Accordingly, the Tribunal affirmed the delegate’s decision.
PROCEEDINGS IN THIS COURT
The applicant commenced proceedings by way of an originating application filed on 10 August 2020, within which he raises the following grounds of review (reproduced without alteration):
1.The first Respondent (Department of Home Affairs) erred in its decision as
a) Due consideration was not given to the fact of the Applicant's circumstances.
Particulars
i) The Applicant's genuine attempts to study and the reasoning on why he wished to pursue specific course were not considered
ii) The Applicant was not provided an opportunity to further information in relation to his circumstances
iii) The First respondent made the decision based on the assumptions and did not consider the actual facts.
iv) The Applicant has no ties in Australia, his family is in India and they are financially set for a good standard of living, giving the Applicant no other necessary reason to reside in Australia.
b) The Second Respondent failed to consider relevant facts of the matter:
i) The Administrative Appeals Tribunal had all the relevant facts before them prior to making the decision.
ii) The Administrative Appeals Tribunal failed to consider applicant's current and personal circumstances and relied on the assumptions.
iii) The Administrative Appeals Tribunal failed to consider all the facts available before making a decision.
By way of affidavit filed by the applicant on 10 August 2020 (applicant’s affidavit), the applicant further particularises his grounds of review at paragraphs [20] to [24] whereby he states that the Tribunal failed to consider:
(a)his agricultural work experience in India;
(b)the career benefit in studying an Advanced Diploma in Business Management;
(c)his personal circumstances that could explain why there was a delay in commencing his course of study, and
(d)his lack of incentive to stay in Australia on a permanent basis and his significant incentives to return to India.
RELEVANT LEGISLATION
Section 359 of the Act relevantly provided:
359 Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
….
Section 359C(1) of the Act provided:
359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
Section 360 of the Act provided:
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 363A of the Act provided:
363A Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
Clause 500.212 in Part 500 of Schedule 2 to the Regulations provided:
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.
CONSIDERATION
In this judicial review proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
By way of written submissions, the Minister helpfully categorises the applicant’s grounds into two broad issues, being a failure to consider information and claims (Issue 1) and a failure to give the applicant an opportunity to give information (Issue 2).
The Minister further submits that ground 1(a) is clearly directed towards the delegate’s decision, which this Court does not have jurisdiction to review under s 476(2)(a) and (4) of the Act, but acknowledges that as ground 1(b) refers to the Tribunal’s conduct and decision, the Minister’s submissions properly address the entirety of the applicant’s grounds as they relate to the Tribunal’s decision.
For the purposes of my consideration, I adopt the Minister’s characterisation of the grounds into two distinct issues and, where relevant, address the applicant’s grounds as they pertain to each of those issues. I also address the matter of whether, in all the circumstances of this case, the Tribunal’s decision not to adjourn the review was legally unreasonable.
Issue 1 – Failure to consider information and claims
By way of grounds 1(a)(i), 1(a)(iii), 1(a)(iv), 1(b)(i)-(iii) and in paragraphs [20]-[24] of the applicant’s affidavit, the applicant alleges a variety of claims the Tribunal failed to consider. The Minister submits that these allegations fail at a factual level, as each of the claims were in fact considered by the Tribunal or were not raised by the applicant.
The Minister contends that the applicant’s ‘genuine attempts to study’ were not raised by the applicant before the Tribunal, nor did the applicant provide the Tribunal with any explanation as to why he delayed commencing his course. The evidence contained in the applicant’s affidavit in relation to the break-up of his relationship and his academic progress, which variously relate to the applicant’s attempts to study in Australia, was not before the Tribunal. It is not open for the Court to accept fresh evidence that was not before the Tribunal: see MZXHY v Minister for Immigration [2007] FCA 622 at [8]. I also note that the applicant’s fresh evidence is submitted as part of a broader invitation to engage in impermissible merits review. I therefore refuse to admit as evidence these aspects of the applicant’s affidavit.
Turning to the applicant’s allegations in relation to the Tribunal’s failure to consider information and claims, the Minister submits that these allegations fail at a factual level as each of these claims were either considered by the Tribunal or not raised by the applicant. The Minister specifically addressed each of these allegations at paragraph 25 of his written submissions in the following terms (footnotes omitted):
25.1. The applicant’s “genuine attempts to study” were not raised by the applicant, nor was there any explanation provided as to why there was a delay in commencing the applicant’s course. The Tribunal noted at [23] of its decision that there was “limited evidence” as to why the applicant chose not to commence studying in 2018. The fresh evidence contained in the applicant’s affidavit regarding the applicant’s marriage breakdown and difficulties adjusting to a new country is fresh information that was not before the Tribunal. It is not open for the applicant to ask the court to rely on the fresh evidence to review the merits of the Tribunal decision.
25.2. The applicant’s reasoning on why he wished to pursue a specific course was considered by the Tribunal at [25], which it accepted as “reasonable reasons”.
25.3. The Tribunal considered what it could about the applicant’s lack of ties to Australia, based on the evidence before it, and could not make any findings on this element.
25.4. The Tribunal considered the applicant’s family in India, and made the finding at [16] above.
25.5. While the Tribunal did not directly consider the applicant’s lack of reason/incentive to reside/stay in Australia permanently, as there were no clearly articulated submissions about this, the Tribunal considered whether what it could about whether there were incentives for the applicant to remain onshore.
25.6. The Tribunal considered the applicant’s agricultural work experience, as available in the Department file, at [22] of its decision.
25.7. Finally, the Tribunal considered the career benefit in studying an Advanced Diploma in Business Management as part of a broader assessment of the applicant’s response to the invitation under s 359, where it noted concerns about the vague and general submissions about the qualifications he sought to undertake.
At hearing before me, the Minister drew my attention to the various claims and evidence before the Tribunal and submitted that paragraph 14 of the Tribunal’s reasons disclose the basis upon which that material, where relevant, was considered. The Minister further submitted that a fair reading of the decision as whole, including:
(a)paragraph 20, discloses the Tribunal’s consideration of any relevant material before it relating to applicant’s agricultural work experience in India;
(b)paragraph 22, discloses the Tribunal’s consideration of any relevant material before it relating to the career benefit in studying an Advanced Diploma in Business Management;
(c)paragraph 23, discloses the Tribunal’s consideration of any relevant material before it relating to the applicant’s genuine attempts to study between the making of his student visa application in December 2018 and the date he commenced studies in July 2019;
(d)paragraph 25, discloses the Tribunal’s consideration of any relevant material before it relating to the applicant’s reasons why he wished to study particular courses;
(e)paragraph 26, discloses the Tribunal’s consideration of any relevant material before it relating to the applicant’s ties to Australia and whether they serve as an incentive to stay in Australia on a permanent basis; and
(f)paragraphs 24 and 27, discloses the Tribunal’s consideration of any relevant material before it relating to the applicant’s ties to India and whether they serve as an incentive to return to India.
The difficulty with the applicant’s complaints in relation to the Tribunal’s consideration of the evidence is that the applicant fails to appreciate the Tribunal properly considered the material that was before it, including the evidence and submissions before the delegate, and reached conclusions that were entirely open to it. At hearing before me, the applicant’s solicitor was unable to articulate any sound basis upon which to rest an argument that the Tribunal had failed to consider the applicant’s claims or evidence. On that basis, and having carefully examined the Tribunal’s decision and the evidentiary material that was before the Tribunal, I am of the view that:
(a)the Tribunal did not fail to consider the applicant’s claims and evidence; and
(b)contrary to the applicant’s general assertion, the Tribunal did not fail to consider the actual facts (or all relevant facts or all available facts) and the applicant’s current and personal circumstances.
Accordingly, the applicant’s grounds insofar as they relate to Issue 1 must fail.
Issue 2 – Failure to give the applicant an opportunity to give information
Insofar as ground 1(a)(ii) is directed towards the Tribunal’s alleged failure to give the applicant an opportunity to present and give information ‘in relation to his circumstances’, the Minister contends that an opportunity was provided by way of the Tribunal’s written invitation to give information pursuant to s 359 of the Act.[30] The applicant availed himself of that opportunity by providing information in relation to his study history and other matters. Notably, the applicant did not provide information addressing the delay in commencing his studies until July 2019, which was an issue raised in the delegate’s decision, as well as other information relating to matters such as his relationship breakdown.
[30] CB 61.
As the applicant’s response to the s 359 letter was received three days after the end of the prescribed period for response, the Minister contends, and I agree, that the Tribunal was correct in its determination that the applicant had lost his right to a hearing pursuant to s 359C and the cascading effects of ss 360(3) and 363A of the Act. Further, it cannot be ignored that the applicant consented to the Tribunal deciding his case without having to invite him to a hearing. In that context, the Minister contends that the applicant could not to be said to have suffered any practical injustice.[31]
[31] CB 69.
The Minister submits that this ground must fail in circumstances where the Tribunal had no power to invite the applicant to a hearing, the applicant was otherwise provided with a reasonable opportunity to provide submissions and evidence in support of his application, and the Tribunal went on to consider the information provided by the applicant on 4 May 2020 (after the expiry of the prescribed period).
The applicant was unable to provide any cogent or coherent submissions in relation to Issue 2. Ultimately, the applicant’s submissions amount to misconceived and misdirected complaints about the scope of the Tribunal’s procedural fairness obligations in Part 5 of the Act.
I agree with the Minister’s submissions in relation to Issue 2 and conclude that applicant’s grounds, insofar as they relate to this particular issue, must also fail.
Was the Tribunal’s decision not to adjourn the review legally unreasonable?
The Minister further submits that it was legally reasonable for the Tribunal to proceed to make a decision on the review without taking any further action to obtain information, as permitted by s 359C(1) of the Act, rather than to allow the applicant more time to provide information under s 363(1)(b) of the Act. The Minister contends that there was nothing in the circumstances of the case to suggest that the Tribunal acted unreasonably in exercising this power, particularly in circumstances where the applicant was content for a decision to be made without a hearing, and the Tribunal had considered all the information that was provided by the applicant.
The Minister argues that the Tribunal properly fulfilled its obligation when considering its discretionary power under s 363(1)(b). By referring to the circumstances and relevant case law, the Tribunal gave an evident and intelligible justification for the exercise of its discretion and thereby ultimately drew a reasonable conclusion that the applicant had been provided a fair opportunity to provide the information that he wished to rely on for the purpose of the review.[32]
[32] CB 102 at [9] to [11].
Again, I agree with the Minister’s submission on this point and find that the Tribunal exercised its discretion in manner that was not legally unreasonable.
CONCLUSION
For the above reasons, the application is dismissed.
Finally, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024(Cth), the name of the second respondent is to be amended to ‘Administrative Review Tribunal’.
I will hear the parties as to costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 27 February 2025
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