Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1268
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1268
File number: MLG 4626 of 2019 Judgment of: JUDGE CHAMPION Date of judgment: 22 November 2024 Catchwords: MIGRATION – Application for reinstatement – Student visa – Where Applicant’s judicial review application was dismissed for non-attendance – Where Applicant did not provide adequate explanation for non-attendance – Whether it is in the interests of justice to reinstate the application – Where the proposed grounds of the substantive review application not reasonably arguable – Application for reinstatement dismissed Legislation: Migration Act 1958 (Cth) s. 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 13.06, 17.05
Migration Regulations 1994 (Cth) cl. 500.212
Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176
Kaur v Minister for Home Affairs [2019] FCA 2026
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration And Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Plaintiff M1/2021 v. Minister for Home Affairs (2022) 275 CR 582; [2022] HCA 17
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submissions: 21 November 2024 Date of hearing: 21 November 2024 Place: Melbourne Counsel for the Applicant: In person Solicitor for the First Respondent: Ms Kristina Petrovski of Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 4626 of2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURJANT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application in a case filed on 21 October 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $1,200.
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 CHAMPION:
INTRODUCTION
Mr Gurjant Singh, a citizen of India, applied for a student visa. On 29 November 2019 the Tribunal refused to grant to him a student visa. The Tribunal refused to grant him a visa because it was not satisfied that he was a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily within the meaning of cl. 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth).
Mr Singh applied for judicial review.
On 10 September 2024, I dismissed the judicial review application under rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) because Mr Singh failed to appear at the final hearing scheduled on that date.
On 23 October 2024 Mr Singh applied to set aside the orders made in his absence dismissing his application.
WHAT ARE THE RELEVANT LEGAL PRINCIPLES AS TO REINSTATEMENT?
Under Rule 17.05(2)(a) I may vary or set aside an order made in the absence of a party.
I must exercise my discretion whether to reinstate the application in the interests of justice (FBS18 v Minister for Home Affairs [2019] FCAFC 196, [50]).
In CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344, Mortimer J (as she then was) said at [4]:
4. … The exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
[Emphasis added]
I consider each of these 3 factors in turn:
(1)whether the Applicant has an adequate explanation for his non-attendance;
(2)whether there is any prejudice to the Minister if the matter is reinstated; and
(3)whether the Applicant has an arguable case on judicial review.
For the reasons below, I have decided it is not in the interests of justice to reinstate the application.
(1) Does the Applicant have an adequate explanation for his non-attendance?
Mr Singh read an affidavit in support of the reinstatement application. Ms Samantha Moxey, a lawyer for the Minister, read an affidavit in opposition.
Mr Singh deposed:
1. That I filed for the judicial review before the Federal Circuit and Family Court of Australia. As I have limited knowledge about the court procedure, and I was seeking help from a private lawyer.
2. Due to my financial capacity, I could not seek their services.
3. I applied for the judicial review application on 24 December 2019.
4. On 10 September 2024, I receive a court order made in my absence.
5. I was not aware about the Court procedure and the Honourable Federal Circuit and Family Court of Australia.
[Emphasis added]
As to Mr Singh’s assertion that he was not aware about court procedure, as Ms Moxey notes in her affidavit, by email to Mr Singh dated 4 September 2024, my Chambers noted that the matter was listed for hearing on 10 September 2024.
On 5 September 2024, the following day, Mr Singh responded to that email:
Dear Sir/Madam,
I am Gurjant Singh. I will attend the hearing.
Thanks
One may have considerable sympathy for the challenges a litigant in person confronts. Nonetheless, in SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38] Foster J said that “ignorance of requirements” is not usually, without more, a satisfactory explanation for the delay in bringing a judicial review application. By analogy, albeit in a different context, Mr Singh’s evidence that he was ignorant of court procedures is not an adequate explanation for his non-attendance at the previously scheduled hearing of this matter, particularly in the context of his email dated 5 September 2024 which expressly confirmed his attendance at the scheduled hearing.
Mr Singh delayed in bringing this application to reinstate his case. Mr Singh has deposed that he received the court order dismissing his application on 10 September 2024, the date it was made. He gives no explanation for his delay between 10 September 2024 and 21 October 2024 when he made his application to reinstate his proceeding. I give his delay some limited weight in the exercise of my discretion.
(2) Is there any prejudice to the Minister if the matter is reinstated?
The Minister notes that there is a significant public interest in the finality of litigation (Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [15]–[17]). The Minister does not otherwise contend that there is any specific prejudice by the reinstatement of the application and accepts that any prejudice could be cured by an award of costs.
The mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time (Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176, [21]). So too the mere absence of prejudice is not a sufficient basis to warrant the reinstatement of the application.
(3) Whether the Applicant has an arguable case on judicial review?
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 in the context of a discussion of how the merits of the substantive application might be assessed on an extension of time application, the plurality said at [17] that “it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. The plurality accepted at [18] that “there will be circumstances in which it is appropriate for the court to engage in more than an impressionistic assessment”.
I am exercising a discretion as to whether to grant an application to reinstate an application. The High Court in Tu’uta Katoa was examining the discretion to extend time to bring a judicial review application. In in each case, the discretion is framed by what is in the interests of the administration of justice.
Even though the court made orders for the Applicant to file submissions before the hearing scheduled on 10 September 2024 and again before the reinstatement application, I note that at no time has the Applicant filed any submissions in support of his substantive application. I have only the Applicant’s initiating application available to me to assess the merits of his judicial review application .
In circumstances in which I have had the benefit of the Minister’s submissions prepared in anticipation of the final hearing scheduled on 10 September 2024, I have examined the substantive application in some detail and formed the view that it is not reasonably arguable. Because the underlying substantive application is not reasonably arguable, the interests of justice do not favour its reinstatement. In Tu’uta Katoa the plurality said at [18] that the “broad power” to extend time did not prevent a judge from undertaking a detailed examination of the application and if the court concluded that the application was hopeless or not reasonably arguable it was open to the court to rely upon that determination to refuse an extension of time. By analogy, I have undertaken such an examination in considering my discretion to reinstate the application. I have reached the conclusion that the substantive application is not reasonably arguable. I rely upon that conclusion in refusing to reinstate the application.
THE SUBSTANTIVE APPLICATION
As noted, the Tribunal did not grant the visa because it was not satisfied that the Applicant met the genuine temporary entrant criterion.
The primary criteria as to which the Tribunal had to be satisfied at the time of its decision included cl. 500.212 (a) of Schedule 2 to the Migration Regulations 1994 (Cth) which the Tribunal reproduced in its Reasons at [9] and required that:
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
…
The Tribunal had to comply with Direction No. 69 – “Assessing the Genuine Temporary Entrant Criterion for Student visa and Student Guardian visa applications” – given by the Minister under s. 499 of the Act. One issue is whether the Tribunal complied with its obligation to have regard to the factors set out in Direction No. 69.
Mr Singh’s substantive application contains the following 7 grounds for judicial review:
1. The Member made an error in reaching on the conclusion that there is an uncertainty, that the applicant will complete the enrolled programme (Bachelor of Business course) at expected course finish date.
2. The Member’s consideration that the applicant’s stay till completing his study would be a long stay (six years and three months), is inconsistent with temporary stay.
3. The Tribunal recognise that it is important to allow for reasonable changes to career and study pathway but made irrelevant consideration that applicant’s study is inconsistent. Whereas, the applicant’s study is consistent with his previous study in Australia and future business plan in India.
4.The Member has overlooked the business plan (prepared by professional Accountant) submitted by the applicant and considered it merely an aspiration. (The Business Plan is accessible at applicant’s solicitor office)
5. The tribunal also made an error in reaching on a conclusion that the applicant does not have strong incentives to return to his home country. The Tribunal overlooked the evidences that his father, mother, siblings and newly married wife are living in his home country, which is a strong reason for him to return home country after the completion of his course.
6. The member failed to consider that each case have its own facts and merits and ought to be considered on a case by case basis.
7. The AAT also failed to apply the correct legal test because it affirmed the department decision and did not properly assess applicant’s claim.
Save to say that I have grouped some of the Applicant’s grounds I have otherwise sequentially dealt with them below.
Do the Tribunal’s conclusions as to Grounds 1, 2 and 6 disclose jurisdictional error?
Grounds 1, 2 and 6 can be dealt with together.
Ground 1 alleges that the Tribunal made a jurisdictional error because it concluded that there was uncertainty that Mr Singh would complete his Bachelor of Business degree at the expected course finish date.
Ground 2 alleges that the Tribunal was in error to conclude that a stay in Australia of 6 years and 3 months was a long stay “inconsistent with” staying in Australia temporarily.
Ground 6 is a submission that the Tribunal failed to consider the case on its own merits.
As the High Court plurality said in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24] a decision-maker must read, identify, understand and evaluate each of the arguments and their component integers. The decision-maker must “bring their mind to bear upon the facts stated in them and the arguments or opinions put forward.” It is a matter for the decision-maker as to what “weight or persuasive quality” is thought appropriate as to the arguments put forward.
Further, as Gageler J (as he then was) said in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [90] – [92] there is an implication in the statute that the decision-maker must reach his or her state of satisfaction within the bounds of legal reasonableness. An implied obligation of legal reasonableness applies to why and how the decision-maker reached the state of satisfaction as to whether the Applicant met the genuine temporary entrant criterion. As Allsop CJ said in Minister for Immigration And Border Protection v Stretton(2016) 237 FCR 1; [2016] FCAFC 11 at [10] although the concept of legal unreasonableness is not amenable to “rigidly-defined categorisation” one way in which a decision may be characterised as legally unreasonable is if it lacks an “evident and intelligible justification” or if it is “plainly unjust, arbitrary having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power” (Stretton, [11]).
I have determined that the Tribunal both considered the Applicant’s claim and its component integers as explained in Plaintiff M1/2021 and made a decision within the bounds of legal reasonableness as explained in Stretton in reaching the state of satisfaction that the Applicant did not meet the genuine temporary entrant criterion.
The Tribunal noted that the Applicant came to Australia on a student visa on 26 September 2015 (Reasons, [12]).
The Applicant completed his secondary schooling in India in 2011. The Tribunal noted that in India he then completed a Bachelor’s degree in Computer Applications (Reasons, [1]).
After he came to Australia, the Tribunal noted that between November 2015 and March 2016 he studied a Certificate IV in English as an Additional Language (EAL) (Reasons, [16]).
At the same time, he completed a Certificate III in Aged Care (Reasons, [16(b)]).
In March 2016 he commenced studying a Master of Technology (Software Engineering). He struggled in those studies.
Between September 2016 and December 2018, he undertook studies in Automobile Technology (Reasons, [19(a) and (b)]).
In March 2019 he commenced studying a Bachelor of Business which the Tribunal noted that he expected to conclude in December 2021 (Reasons, [19(c)]). The Tribunal said at [20] that:
20. The applicant gave evidence that the Bachelor of Business degree requires the study of 24 subjects and that he has currently completed eight subjects within two units. He has at this time only obtained his results for the first semester and he has passed three of four subjects in the Bachelor's degree but claimed that he repeated the fourth subject and he has now passed that subject. The applicant claims that results are pending with regards to the second semester. However there is no certainty that the applicant will complete the Bachelor's degree within the time scheduled for the course. Even if the applicant were to complete the Bachelor's degree in December 2021, the applicant will have remained in Australia for six years and three months which is a long period of time and inconsistent with the stay being temporary.
By Ground 1, the Applicant seeks to impugn the Tribunal’s finding that there was uncertainty about when the Applicant would complete his Bachelor of Business. The Tribunal’s finding that there was uncertainty about when the Applicant would complete his Bachelor of Business had an evident and intelligible foundation because of the Applicant’s evidence that he had struggled with his past studies in Australia, having been unable to complete his Master’s course in Software Engineering. Further, he had failed at least one subject in the first semester of his Bachelor of Business degree. These factors provided a logical foundation for the finding that there was uncertainty about when he would complete his Bachelor of Business. The anticipated completion date of course was relevant to the Tribunal’s statutory task and the Tribunal’s finding that it was uncertain as to when the Applicant would complete his degree having regard to past events was not a finding that lacked common sense.
By Ground 2, the Applicant impugns the Tribunal’s finding that – if the Applicant completed his Bachelor of Business degree as scheduled in December 2021 – a stay of 6 years and 3 months in Australia represented a “long period of time” and was “inconsistent with the stay being temporary”. That finding was within the boundaries of legal reasonableness.
The Tribunal’s careful recounting of the Applicant’s study history in Australia affords its own answer to Ground 6 that the Tribunal failed to consider the claim on its merits and on a “case by case” basis.
Grounds 1, 2 and 6 are not reasonably arguable.
Ground 3: Did the Tribunal make a jurisdictional error by having regard to an irrelevant consideration that the Applicant’s courses of study were inconsistent?
The Tribunal (correctly) noted that it had to have regard to the factors set out in Direction No. 69. Steward J said in Kaur v Minister for Home Affairs [2019] FCA 2026 at [30]-[31] that the factors set out in Direction No. 69 were to be used as a “guide”, not a checklist. In accordance with what Steward J had said in Kaur, the Tribunal expressly said at [11] of its reasons that the Direction No. 69 factors should be used as a “guide”, not a checklist.
Item 12(a) of Direction No. 69 is as follows:
Value of the course to the applicant's future
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant's future:
a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways;
[Emphasis added]
In conformity with item 12(a) of Direction No. 69, the Tribunal expressly recognised at [22] of its Reasons “that it is important to allow for reasonable changes to career and study pathways.”
Nonetheless, the Tribunal was entitled to find, as it did, having regard to the history of the “varied” courses that the Applicant had pursued that the courses did “not reveal any progression in [the Applicant’s] course of study” (Reasons, [22]).
The Tribunal found at [22] of its Reasons that because the Applicant had previously obtained a Bachelor’s degree in India before coming to Australia his “current course of study is not consistent with his level of education” because he was commencing another Bachelor’s degree when he already held a qualification at Bachelor’s degree level.
The matters the Tribunal took into account were in accordance with the factors set out in item 12(a) of Direction No 69 above. They were not irrelevant considerations.
Further, these matters as to progression along a study path were not irrelevant in the sense Mason J (as he then was) explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [40]. They were not matters the decision-maker was either expressly or implicitly forbidden from taking into account.
Ground 3 is not reasonably arguable.
Ground 4:Did the Tribunal make a jurisdictional error by failing to take into account a business plan?
The Tribunal found as follows at [32] of its Reasons:
32. The applicant gave evidence that he does not own assets either here in Australia or in India but that his father has promised him that he is able to construct a garage on his land. The applicant submitted an affidavit affirmed on 25 September 2019 by his father that he does not have any objection to his son making his mechanical garage on his land. The difficulty with the applicant's evidence is that he has set out both in the business plan and in evidence an intention to commence a garage which would not commence operating at least for another two years and there are substantial expenses that would need to be incurred in establishing that garage. It is difficult for the Tribunal to make any assessment regarding the viability of such a business based on the information before it and it finds that the applicant's plan is merely an aspiration at this time.
Contrary to the Applicant’s submissions, the passage above discloses that the Tribunal expressly took into account the “business plan.” The Tribunal concluded it was “merely an aspiration.” It is accurate that the Bachelor of Business course in which the Applicant had enrolled in 2019 was relevant to the Applicant’s aspiration to operate a mechanical garage in India and as to which he provided a project plan to the Tribunal. The Tribunal brought its mind to bear as to that issue as it was required to do. This fact in and of itself did not mandate a conclusion that the Tribunal be satisfied that the Applicant met the genuine temporary entrant criterion. It was one of a number of matters which the Tribunal had to, and did, evaluate.
I am not persuaded that Ground 4 has sufficient merit to warrant the reinstatement of the application because the Tribunal brought its mind to bear on the Applicant’s business plan.
Ground 5: Did the Tribunal make a jurisdictional error by failing to take into account the Applicant’s evidence that his family and wife live in India?
The Applicant submitted that:
The Tribunal overlooked the evidence that his father, mother, siblings and newly married wife are living in his home country, which is a strong reason for him to return home country after the completion of his course.
Clause 9(b) of Direction No. 69 provides that the Tribunal ought to have regard to:
the extent of the applicant's personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
The Tribunal expressly considered the Applicant’s family ties to India (at [29] of its Reasons) as it had to do in line with the binding authority in Plaintiff M1/2021. In particular, the Tribunal considered the Applicant’s evidence that he had recently married in January 2018 and he would live with his wife in India. At [36] of its Reasons the Tribunal found:
36. The applicant has both personal ties in Australia and at home in India. The applicant gave evidence that he has at home his father, mother, brother, sister and his wife and he has not seen them since July 2019, and that would ordinarily provide the applicant with incentive to return home. The applicant claims that he remains in contact with them daily by telephone and social media with video calls. However given the period of time that the applicant has stayed in Australia and intends staying in Australia, which will be for a further two years and two months and considering his circumstances in Australia, the Tribunal does not find that such ties do not provide a significant incentive for the applicant to return home to India.
The Tribunal’s Reasons at [36] disclose that the Tribunal sufficiently brought its mind to bear as to the extent of the Applicant’s personal ties to India in accordance with Plaintiff M1/2021, above.
I accept the Minister’s submissions that it was open to the Tribunal to conclude that the Applicant’s family ties did not serve as a “significant incentive” to return because of the apparent convenience to the Applicant of daily arrangements of telephone/social media contact with his family. Further, the Applicant’s own proposal to stay in Australia for further study for more than two years supported the conclusion that the Tribunal reached that the Applicant had no significant incentive to return home.
Ground 5 does not have sufficient merit to warrant the reinstatement of the application.
Ground 7: Did the Tribunal make a jurisdictional error by failing to apply the correct legal test?
The Applicant did not provide any particulars of how the Tribunal failed to apply the correct legal test which makes it difficult to engage meaningfully with this ground.
In Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16 Derrington and Thawley JJ said at [96] that the decision-maker had to “have regard to” the matters in the relevant Ministerial direction. Relevantly, a failure to make a finding, or a legally unreasonable finding as to a factor in Direction No. 69 might constitute jurisdictional error.
The Tribunal correctly addressed itself to the matters set out in cl. 500.212(a) of Schedule 2 to the Regulations. It had regard to the factors set out in Direction No. 69. There was no unreasonableness in the legal sense as to how it had regard to the factors set out in Direction No. 69.
Ground 7 does not have sufficient merit to warrant the reinstatement of the application.
WHAT IS MY CONCLUSION?
I will dismiss the Applicant’s application to reinstate the proceeding because he has not provided an adequate explanation for his non-attendance and I have determined that his substantive application lacks sufficient merit and is not reasonably arguable so as to warrant its reinstatement.
I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $1,200 as the Minister sought.
I certify that the preceding sixty-six (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 22 November 2024
0
14
3