Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1110
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1110
File number(s): SYG 727 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 29 November 2024 Catchwords: MIGRATION – judicial review – sch 2, cl 500.212 Migration Regulations 1994 (Cth) - genuine applicant for entry and stay as a student – court’s role in examining Tribunal’s reasons when self-represented litigant – no jurisdictional error established Legislation: Migration Act 1958 (Cth) ss 29, 31, 45, 65, 476, 499
Migration Regulations 1994 (Cth) cll 500.211, 500.212
Cases cited: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 21 October 2024 and 29 November 2024 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr A Westenberg of Sparke Helmore Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 727 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JATINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.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 Kaur-Bains
By an application filed on 23 March 2020, the applicant who is a citizen of India, seeks judicial review of a decision made by the Tribunal dated 18 March 2020. The Tribunal affirmed a decision of a delegate of the Minister, refusing to grant the applicant a Student (Temporary) (class TU) Student (subclass 500) visa, on the basis that it was not satisfied that the applicant intended to genuinely stay in Australia temporarily. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The applicant sought to impugn the Tribunal’s decision, on the sole ground that the Tribunal “made an unfair decision”. No particulars were provided and when the applicant was given an opportunity before me to expand on why he said the decision was unfair, other than seeking a merits review, the applicant did not articulate a legal basis. The applicant did repeat before me that he genuinely wanted to study in Australia and had enrolments to study. I explained to the applicant that I had no power to grant him a visa and I was limited to looking at whether there was jurisdictional error in the Tribunal decision. For the reasons set out below I find no jurisdictional error is disclosed in the Tribunal’s decision.
BACKGROUND
On 7 October 2014, the applicant arrived in Australia on a Student (Offshore) (Class TU) (Subclass 573) visa (CB 51), which remained in effect until 31 August 2017. On 14 August 2017, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (visa) to undertake a Bachelor of Business (Accounting) course at Polytechnic Institute Australia Pty Ltd (CB 1-16).
Delegate’s Decision
On 22 September 2017, a delegate of the Minister refused to grant the applicant the visa (CB 48-52). The delegate was not satisfied the applicant genuinely intended to stay in Australia temporarily, finding that he did not meet the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Application for Review to Tribunal
On 27 September 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 53-54). On 5 April 2019, the Tribunal emailed the applicant a s 359(2) invitation to provide information under s 359(2) of the Act (CB 59-65). The invitation set out that as the applicant had applied for a visa to undertake a course of study in Australia, it was a requirement of the visa that:
(a)The applicant be enrolled in a registered course of study; and
(b)Was a genuine applicant for entry and stay as a student.
The invitation to provide information then stated:
Accordingly, you are now invited to give, in writing, information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completed the online form and clicking ‘Submit’ on the Declaration page.
The invitation then proceeded to inform the applicant that in considering whether the applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to the Ministerial Direction No. 69 “Assessing the genuine temporary entrant criteria for student visa and student guardian visa applications”, which included paragraph 9(a) as follows:
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant
The applicant submitted the ‘Request for Student Visa Information’ form (CB 66-77), Confirmations of Enrolments (CoE) (CB 81-82), a completion letter dated 2 June 2017 from a Student Support Manager from the education provider QIBA, confirming the applicant’s completion of Diploma of Leadership and Management, notifying that the official Certificate would be forthcoming (CB 83) and a supporting statement dated 18 April 2019 (CB 78-80). The applicant stated that in January 2018 he was enrolled at the AIA to study Diploma of Accounting, which he was then studying, and he had a future enrolment at the Australasian International Academy (AIA) to study an Advanced Diploma of Accounting, which was due to start July 2019 and finish on January 2021 (CB 71, 78).
In the supporting statement dated 18 April 2019, the applicant said the following under the heading “Reasons to study at Australasian International Academy (AIA)”:
I have chosen to study in Australasian International Academy for my study destination because as AIA teaching environment is very organized and is facilitated for a good study time. I wish to have a rewarding student experience at AIA. Teachers and student advisors are highly qualified and they provide more personalized way of learning. Also as I come from a different curriculum in India and small class size will help me to adjust in a better way. It will enhance my experience of learning. AIA has a very up to date curriculum and the technology used is user friendly for international students.
On 27 May 2019, by way of email, the Tribunal invited the applicant to attend a hearing (CB 87).
On 13 June 2019, the applicant attended a hearing before the Tribunal to give evidence and present arguments (CB 87-92). The hearing record noted that the hearing lasted 40 minutes. At the hearing the applicant provided 3 CoE documents to the Tribunal (CB 95-97) for the following courses:
(a)Certificate IV in Accounting and Bookkeeping with a start date of 13 May 2019 and end date of 10 November 2019. It is noted that the applicant at the time he filed the application for review before the Tribunal had not mentioned that he had enrolled in that course.
(b)Diploma of Accounting course with a start date of 11 November 2019 and end date of 8 November 2020.
(c)Advanced Diploma (Course Sector: VET) with a start date of 9 November 2020 and end date of 7 November 2021.
TRIBUNAL DECISION
The Tribunal identified that the issue on review was whether the applicant was a genuine temporary entrant as required by cl 500.212 of Schedule 2 to the Regulations ([8] of the reasons). It recorded that in considering this issue, it was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction 69) ([10] and [11] of the reasons). The Tribunal recorded it had regard to the applicant’s evidence and submissions against the factors set out in Direction 69 ([12] of the reasons).
In considering the applicant’s circumstances in his home country, being the factors in paragraph 9(a) of Direction 69, the Tribunal referred to the courses he was undertaking in Australia and his explanation for not undertaking those courses in his home country ([13]-[14] of the reasons). The Tribunal gave no weight to the applicant’s explanation for not undertaking his course of study in his home country, as the Tribunal said the applicant’s response was directed to the Diploma of Accounting, which course the applicant did not complete ([15] of the reasons). The Tribunal identified there were similar courses of study available in his home country. However, it gave some weight in the applicant’s favour to his studying all 3 courses, the subject of the CoE documents provided at the hearing, at the AIA ([18] of the reasons).
The Tribunal referred to the applicant’s evidence that he loved “staying here” and that he had only returned to India once since his arrival in 2014 ([21] of the reasons). The Tribunal found the applicant’s personal ties to his home country were not a significant incentive for him to return ([22] of the reasons).
The Tribunal found that there was no evidence with respect to some of the considerations listed in Direction 69, such as the applicant’s economic circumstances in his home country, any concerns about military service or political or civil unrest and the circumstances of others in his home country ([23]-[26] of the reasons).
In considering the applicant’s potential circumstances in Australia, the Tribunal found the applicant had established ties with Australia in the form of work, accommodation and friends and considered these presented as a strong incentive for the applicant to remain in Australia ([28] of the reasons).
The Tribunal identified that the applicant was not enrolled in a registered course of study from November 2015 to June 2017 ([31] of the reasons). The Tribunal found the applicant’s claims as to his health issues were unsupported by evidence and was not a satisfactory explanation for not being enrolled ([32] of the reasons). It found the applicant had only completed two short courses since his arrival in Australia in 2014 ([33] of the reasons). Given the length of time the applicant had been in Australia, the fact that he had only returned home once, the limited study he had undertaken and his failure to be enrolled in a course of study at all times, the Tribunal considered that the applicant was using the visa to maintain ongoing residence in Australia ([34] and [45] of the reasons).
The Tribunal turned to consider the value of the course to the applicant’s future. It referred to the applicant’s evidence that he intended to finish his diploma studies, subsequently enrol in an MBA course and obtain a job in Australia or return to his home country. The Tribunal was not satisfied the applicant had any informed knowledge of the MBA course ([37] of the reasons). It further found the applicant had not identified the type of future work or employment he proposed to pursue after the completion of his studies ([38] of the reasons).
The Tribunal gave significant weight to the applicant’s failure to maintain enrolment in a registered course of study, a condition of his visa ([43] of the reasons).
Having assessed the various relevant factors, the Tribunal was not satisfied that the applicant intended to stay in Australia temporarily, as required by cl 500.212 of Schedule 2 to the Regulations, and affirmed the decision under review ([50] and [52] of the reasons).
RELEVANT LAW
Section 29(1) of the Act gives the Minister power to grant a non-citizen a visa to travel to and enter, or to remain in, Australia. There are prescribed classes of visa and regulations may prescribe the criteria for visas of a specified class: s 31(1) and (3) of the Act. A non-citizen who wants a visa must apply for a visa of a particular class: s 45 of the Act.
After considering a valid application for a visa, the Minister must grant the visa “if satisfied” of the various matters identified in s 65(1)(a) of the Act. One of the matters of which the Minister or his delegate must be satisfied is that the criteria prescribed by the Act or Regulations for the visa have been met: s 65(1)(a)(ii) of the Act. If the Minister is not satisfied of the matters identified in s 65(1)(a), the Minister is to refuse to grant the visa: s 65(1)(b) of the Act.
Clause 500.2 of schedule 2 of the Regulations sets out the primary criteria relevantly as follows:
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
…
500.212
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.
In considering whether the applicant satisfied cl 500.212(a) of the Regulations, the Tribunal was required to have regard to Direction 69, which was made under s 499 of the Act (Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [27] and [28]). The “Genuine temporary entrant criterion” was defined in Direction 69 as referring, inter alia, to clause 500.212(a) of the Regulations.
Direction 69 makes clear that the Tribunal, in considering the Genuine temporary entrant criterion, has regard to:
(a)The applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to his future. This involves, inter alia, considering reasons for not undertaking the study in the home country, personal ties to the home country and to Australia, economic circumstances of the applicant that would present a significant incentive not to return home, evidence that the student visa programme was being used to circumvent the intentions of the migration programme, whether the student visa was being used to maintain ongoing residence and the value of the course to the applicant’s future.
(b)The applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries and previous travel to Australia or other countries, the amount of time the applicant has spent in Australia and whether the visa may be used primarily for maintaining ongoing residence.
(c)Any other relevant information, including information that may be either beneficial or unfavourable to the applicant.
Part 2 of Direction 69 specifies that the factors in the Direction were not to be used as a checklist, instead stating that:
1.…The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion
PROCEEDINGS BEFORE THE COURT
The applicant appeared before the Court at the hearing unrepresented. The applicant was assisted by a Punjabi interpreter. I ensured the applicant was in possession of the Application, Court Book and the Minister’s written submissions, as well as a pen and paper.
At the hearing before me, the applicant said he had not previously received the Court Book. Given that the applicant was self-represented, I took the applicant through the Court Book to explain each of the documents. I then took the applicant through the decision of the Tribunal. I explained to the applicant he needed to explain to me what error the Tribunal made, so I could consider whether the matter should be remitted to the Tribunal to reconsider.
In support of his ground for judicial review the applicant challenged findings made by the Tribunal on the basis that they were “unfair”. In relation to those challenges, I find there was no jurisdictional error disclosed, because the applicant was in essence disagreeing with the Tribunal’s findings and seeking a merits review, which I explained to the applicant I could not do. I also reviewed the procedural history to ensure the applicant was given notice of the relevant issues and an opportunity to provide information to the Tribunal, which he was. Therefore, I find that the ground raised in the application and supporting affidavit that the Tribunal decision is unfair fails.
CONSIDERATION OF POTENTIAL JURISDICTIONAL ERROR
Given that the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. In undertaking this task, I considered that there may be an error and I sought further written submissions from the Minister as to whether there was jurisdictional error because the Tribunal at [13] to [15] of its reasons failed to consider the applicant’s claim as to the reasons for not undertaking the Diploma of Accounting and Advanced Diploma in his home country, which claim engaged a factor listed in paragraph 9(a) of Direction 69. I also gave the applicant time to file further submissions in reply to the Ministers further submissions. The matter was relisted for a resumed hearing on 29 November 2024.
The Minister provided further written submissions dated 13 November 2024. The applicant did not file any submissions in reply.
I find there was no jurisdictional error, in the way the Tribunal at [13] to [18] considered the applicant’s reasons for wanting to study the 3 courses he had an enrolment for in Australia, as opposed to studying courses in India. This is because on a fair reading of the Tribunal’s reasons, I accept the Ministers submission that the Tribunal’s finding at [15], was that the applicant’s reasons for not wanting to study in India, was not directed to courses in which the applicant subsequently enrolled. However, the Tribunal at [18], nonetheless gave the applicant’s evidence as to wanting to study the 3 courses in Australia, weight in his favour. Accordingly, the Tribunal’s decision does not disclose this potential jurisdictional error.
CONCLUSION
The application is dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 29 November 2024
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