Singh v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1265

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1265

File number(s):

ADG 113 of 2020

Judgment of:

JUDGE GERRARD

Date of judgment:

28 November 2024

Catchwords:

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where applicant failed to provide evidence of genuine access to funds – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) s 476

Migration Regulations 1994 (Cth) sch 2 cll 500.214, 500.214(2), 500.214(3), 500.214(4)

Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (Cth) cll 6, 10

Cases cited:

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Chhetri v Minister for Immigrationand Border Protection [2016] FCCA 490

Craig v State of South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, [2022] FCAFC 3

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30

Mntambo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 889

MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158, [2015] FCA 1392

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294, [2005] HCA 24

Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596

Division:

Division 2 General Federal Law

Number of paragraphs:

66

Date of last submission/s:

21 October 2024

Date of hearing:

5 November 2024

Place:

Adelaide

Applicant:

Self-represented with the assistance of a Punjabi interpreter

Counsel for the First Respondent:

Tara Rossetto

Solicitor for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 113 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SANDEEP SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	28 NOVEMBER 2024

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 GERRARD:

INTRODUCTION

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Student visa. As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.

2. For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal decision. On that basis, the application cannot succeed.

   BACKGROUND

3. The applicant is a citizen of India and first arrived in Australia in 2008 as the holder of a Vocational Education and Training Sector (subclass 572) visa, and subsequently held further student and bridging visas.

4. On 24 April 2017, the applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa (the visa) (Court Book (CB) 1-29). In that visa application, the applicant indicated that he was enrolled in a Diploma of Hospitality Management with an expected completion date of 16 February 2018 (CB 25). The applicant successfully completed the required units with credits on 14 July 2017 (CB 111). He had previously completed a Certificate IV in Commercial Cookery in 2016 (CB 8, 27).

5. The applicant had appointed a migration agent as his authorised recipient (CB 5, 17-19).

6. On 18 July 2017, a delegate of the Minister refused to grant the applicant the visa (CB 31-36). The delegate was not satisfied that the applicant had provided any evidence of financial capacity such as to meet subclause 500.214(3), and therefore clause 500.214, in Schedule 2 of the Migration Regulations 1994 (the Regulations) (CB 36).

7. On 2 August 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 37-38).

8. On 5 November 2019, the applicant was invited to attend a hearing scheduled for 25 November 2019 (CB 64-67).

9. On 12 November 2019, the applicant’s representative made a request under s 362A of the Migration Act 1958 (the Act) for access to the Tribunal and departmental files, which was granted in full on 15 November 2019 (CB 68-74).

10. On 15 November 2019, the applicant’s representative sought an adjournment of the hearing date due to their own medical circumstances (CB 75-76). On 19 November 2019, the Tribunal granted the adjournment request and rescheduled the hearing to 17 February 2020 (CB 77-80).

11. On 11 February 2020, the applicant’s representative indicated to the Tribunal that, as he had made several emails and phone calls to the applicant without response, he therefore had no instructions and would not be appearing at the hearing (CB 90-98).

12. On 17 February 2020, the applicant attended the hearing along with a support friend. The applicant’s former representative did not attend. The applicant was assisted at the hearing by a Punjabi interpreter (CB 99).

13. At the hearing, the applicant provided supporting academic documents, including a Confirmation of Enrolment for an Advanced Diploma of Hospitality Management, scheduled to commence that day (17 February 2020) and with an expected completion date of 16 August 2020 (CB 105-121).

14. Following the hearing, the applicant completed a change of contact details form withdrawing the authorisation for his representative (CB 102-103).

15. Later that day, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 125-131).

16. Tribunal case notes indicate that the applicant made a telephone enquiry to the Tribunal that afternoon to the effect that he believed he was advised at the hearing that he had three days to provide further financial information. He was therefore surprised to have already received the Tribunal decision (CB 133).

17. On 18 February 2020, the Tribunal case officer advised the applicant that there must have been a misunderstanding as the Tribunal Member had advised he was not given any further time to provide more documents following the hearing. That is why the decision was made and provided to him on 17 February 2020 (CB 133).

18. On 12 March 2020, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 the Act.

    THE TRIBUNAL’S DECISION

19. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.

20. The Tribunal’s decision is seven pages long and spans 24 paragraphs (CB 125-131). This includes four pages of legislation, being extracts from the Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (the Instrument).

21. The Tribunal’s reasons began by identifying the visa under review, noting that the applicant had applied for the Student (Temporary) (Class TU) visa on 24 April 2017. The Tribunal observed that, at the time of application, the visa class contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, it noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]).

22. The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant satisfied the requirements of cl 500.214 of Schedule 2 to the Regulations because he had not provided any evidence of financial capacity (at [3]).

23. The Tribunal confirmed that the applicant appeared before the Tribunal on 17 February 2020 to give evidence and present arguments, with the assistance of a Punjabi interpreter (at [4]).

24. The Tribunal reiterated that the issue in the present case was whether the applicant will have genuine access to funds of a kind contemplated in cl 500.214 (at [6]).

25. The Tribunal explained that, in considering the application, it had had regard to the delegate’s decision of 18 July 2017, to submissions made to the Tribunal by the applicant’s representative in support of an adjournment request, and to a bundle of documents relating to the applicant’s enrolment status which were provided to the Tribunal on the morning of the hearing (at [7]).

26. The Tribunal accepted the applicant’s oral evidence that:

    (a)he had not relied on the financial support of his family for some time (at [8]);

    (b)he earned a fortnightly wage of $950 after tax, which was supported by a payslip (at [8]-[9]); and

    (c)he had savings of $5,000 (at [10]).

27. The Tribunal considered the applicant’s evidence that he had enrolled in a course which was due to start on the day of the hearing and continue for 26 weeks, and that he had already paid $1,000 of the total $6,500 course fees (at [11]-[12]). The Tribunal found that he had a further $5,500 of course fees to pay (at [13]).

28. The Tribunal found that the applicant was required by cl 500.214(3) to give evidence of their financial capacity to meet their costs and expenses during their intended stay in Australia, as per cl 500.214(2) (at [14]-[15]). The requirements for that evidence are set out in the Instrument (at [16]).

29. The Tribunal found that the applicant had access to $5,000 by way of his bank account but that this was a little less than his outstanding course fees (at [17]-[18]).

30. The Tribunal found that the applicant intended to stay in Australia for at least 28 weeks, as demonstrated by his Certificate of Enrolment, and that he had demonstrated no other evidence of financial capacity (at [19]-[20]).

31. On the evidence before it, the Tribunal was not satisfied that the applicant met cl 500.214(3) of the Regulations (at [21]).

32. The applicant therefore did not satisfy cl 500.214 and did not meet the criteria for the grant of the visa (at [22]-[23]).

33. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [24]).

    APPLICATION TO THIS COURT

34. The application for judicial review filed by the applicant in this Court on 12 March 2020 contains the following grounds of review (without alteration):

    1.Administrative Appeals Tribunal made Jurisdictional error by initially giving me extra 3 days to provide financial documents but on the next day after the hearing tribunal member sent me Notification of Decision and refused my tribunal review application. Tribunal has that recording where they granted to extension but later they did not grant any. If require, I can provide that recording from Tribunal.

    2.Administrative Appeals Tribunal made Jurisdictional error by not considering my current COE of Advance Diploma of Hospitality.

    3.Administrative Appeals Tribunal made Jurisidictional error by not considering my previous and current study record.

35. The applicant filed an affidavit with that judicial review application on 12 March 2020 which annexed copies of the Tribunal’s decision, the delegate’s decision, and the applicant’s passport.

36. The applicant appeared before the Court on 5 November 2024 without legal representation but with the assistance of a Punjabi interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.

37. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 12 March 2020 (the affidavit being taken as read and in evidence at the hearing on 5 November 2024), a Court Book numbering 133 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 21 October 2024.

38. The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952 at [40]. Accordingly, at the hearing of this matter on 5 November 2024, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.

39. The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that, in migration decisions such as the decision being challenged by the applicant, common categories of alleged jurisdictional error included:

    (a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));

    (b)where the decision-maker ignores relevant material (Craig at 178);

    (c)where the decision-maker relies on irrelevant material (Craig at 178);

    (d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 330, [2005] HCA 24 at [207]-[208]);

    (e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

    (f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27, [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648, [2010] HCA 16 at [131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445, [2014] FCAFC 1 at [44]).

40. However, it was also explained to the applicant that this was not an exhaustive list, and he should tell the Court why he said the Tribunal had fallen into error.

41. Against this background, the applicant told the Court that he did not provide any financial documents to the delegate because his agent did not ask for them. As per the agent’s suggestion, the applicant only provided a confirmation of enrolment in support of his visa application.

42. The applicant then told the Court that the Tribunal member advised him he could submit financial documents within seven days of the Tribunal hearing. The applicant was surprised to receive notification of the decision affirming the delegate’s decision later that same day. When asked to clarify whether the applicant says they were given seven days or three days, as written in ground one of the applicant’s grounds, the applicant confirmed it was three days.

43. The Court explained that the difficulty with that submission is that there is no evidence before the Court to suggest that the applicant was given three days to provide further documents. In fact, the evidence before the Court is that the applicant raised this concern with the Tribunal after receiving the Tribunal decision, and was told that the Tribunal member did not give him three days to provide further documents and that he must have misunderstood (CB 133).

44. The Court understands this to be a submission that the Tribunal acted unreasonably in not allowing him three days to provide those documents.

45. In oral submissions, the applicant withdrew ground two with respect to the Tribunal’s failure to consider his confirmation of enrolment, noting that the applicant’s genuine access to funds was the only issue in dispute.

46. The applicant pressed ground three with respect to the Tribunal’s failure to consider his previous and current study record. It was put to the applicant that this was not a matter that the Tribunal needed to consider because it was only concerned with whether he had provided evidence of financial capacity. He was invited to expand on this ground in oral submissions but did not add anything further.

47. In reply to the Minister’s submissions, the applicant simply put that he should have an opportunity ‘to show the funds and financial documents’ and that he has since filed a complaint with MARA against the migration agent who misguided him. The Court reminded the applicant that it cannot consider any material that was not before the Tribunal.

    RELEVANT LEGISLATIVE PROVISIONS

48. The issue for determination before the Tribunal was whether the applicant had met cl 500.214 in Schedule 2 of the Regulations which provides (emphasis added):

    (1) The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).

    (2) While the applicant holds the visa, sufficient funds will be available to meet:

    (a) the costs and expenses of the applicant during the applicant's intended stay in Australia; and

    (b) the costs and expenses of each member of the applicant's family unit (if any) who will be in Australia.

    (3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).

    Note: For arrangements for the use of a computer program, see section 495A of the Act.

    (4) The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).

49. The applicable legislative instrument at the time of the Tribunal’s decision for the purposes of cl 500.214(4) was the Instrument, which relevantly provided:

    6 Subclause 500 (Student) visa—primary applicants

    …

    (2)  The evidence of financial capacity

    (a)  is in the form specified in section 10; and

    (b)  demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:

    (i)  travel expenses; and

    (ii)  the following living costs and expenses:

    (A)  if the primary applicant intends to stay in Australia for a period of 12 months or more – AUD21,041 (annual living costs); and

    (B)  if the primary applicant intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and

    (iii)  the following course fees, minus any amount already paid:

    (A)  if the duration, or the remainder, of the primary applicant’s period of study in Australia is less than 12 months – the fees for the course of study or the remaining components of the course of study…

    …

    10 Evidence of financial capacity

    The following forms of evidence of financial capacity are specified:

    (a)  money deposit with a financial institution;

    (b)  loan with a financial institution;

    (c)  government loans;

    (d)  scholarship or financial support.

    …

    CONSIDERATION

1. As outlined above, there are three grounds of review advanced in these proceedings. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158, [2015] FCA 1392). Having regard to what the applicant has said in his application and his submissions before the Court, it appears that the applicant’s key argument is that the Tribunal acted unreasonably in not allowing him further time to provide financial documents (ground one). The applicant also put forward an argument that the Tribunal failed to consider his previous and current study record (ground three), but at the hearing, withdrew the argument in respect of the Tribunal’s alleged failure to consider his confirmation of enrolment (ground two).

   Ground one

2. In written submissions, the Minister observed that there was no indication on the face of the decision record that the Tribunal had granted the applicant a further three days to provide financial documents. In the absence of a transcript to prove otherwise, the Minister submits that the Court should accept the Tribunal’s summary as accurate (citing Chhetri v Minister for Immigration and Border Protection [2016] FCCA 490 at [48]).

3. Further, the Minister submits that this ground should fail on a factual level as the evidence before the Court is that, on 17 February 2020 at 1:51pm, the applicant called the Tribunal registry to query why he had already received the final decision when he believed he had been given three days to provide further documents. On 18 February 2020, the Tribunal officer called the applicant and confirmed that the Tribunal Member did not give him any further time to provide more documents.

4. It is for the applicant to provide any evidence upon which he wishes the Court to rely in support of his assertion that he was given three days. The Court does not have before it a recording or transcript of the Tribunal hearing. Absent any transcript or evidence to support the applicant’s claim, the Court accepts the Tribunal’s summary of events.

5. No jurisdictional error arises in respect of ground one.

   Ground two

6. At the hearing, the applicant withdrew ground two with respect to the Tribunal’s alleged failure to consider his confirmation of enrolment, noting that he represented himself. The Court will nevertheless briefly consider this ground in the event that any jurisdictional error might arise from it.

7. The Minister submits that the Tribunal plainly had regard to the documents before it, including those provided on the morning of the hearing, and that it specifically referred to the Hospitality course in its decision (at [11] and [19]). The Tribunal turned its mind to the applicant’s confirmation of enrolment to the extent of the limited issue it was required to consider, that is, whether the applicant met the criteria in cl 500.214 of the Regulations.

8. The Court agrees with the Minister’s submission that this ground fails at a factual level. It is clear that the Tribunal considered the applicant’s current confirmation of enrolment to the extent it was required to.

9. No jurisdictional error arises in respect of ground two.

   Ground three

10. At the hearing, the applicant was invited to expand on ground three in his oral submissions, but did not add anything further. Notwithstanding this, the Court will consider this ground in the event that any jurisdictional error arises.

11. In both written and oral submissions, the Minister submits that the Tribunal was only concerned with the criteria in cl 500.214 of the Regulations, namely, that the applicant has genuine access to funds. In these circumstances, the Minister submits that the Tribunal was not required to make findings in respect of the further visa criteria in circumstances where it concluded that the applicant failed to meet the genuine access to funds criteria (citing Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596 at [32] and Mntambo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 889 at [35]).

12. Again, the Court accepts the Minister’s submissions in this regard. The Tribunal set out, at [6] of its reasons, that the primary criteria in cl 500.211 to 500.218 must be satisfied by at least one applicant. It is well founded that the Tribunal is only required to refer to pieces of evidence that it found germane to its reasoning (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348, [2001] HCA 30 at [73]-[74]). Where a primary applicant fails to meet cl 500.214 of the Regulations, it is not required to have regard to any of the other criteria specified, or evidence to support these other criteria. Therefore, the Tribunal was not required to make findings in respect of the applicant’s previous and current study record where the issue at hand related to genuine access to funds in cl 500.214.

13. No jurisdictional error arises in respect of ground three.

14. The Court also asked counsel for the Minister whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. There were none. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision. 

15. The Court is satisfied that, even adopting the broad approach referred to in [50] of these reasons, no jurisdictional error is apparent.

    CONCLUSION

16. The application for judicial review, supporting affidavit and additional oral submissions presented by the applicant have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.

17. Accordingly, the application is dismissed.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       28 November 2024