Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1051
•22 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1051
File number(s): MLG 1370 of 2022 Judgment of: JUDGE COULTHARD Date of judgment: 22 October 2024 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa– Administrative Appeals Tribunal –– judicial review – whether the Tribunal fell into jurisdictional error – no jurisdictional error established – inappropriate to infer proceedings brought for ulterior purpose – application dismissed. Legislation: Migration Act 1958 (Cth) ss 359(2), 359C(1), 360(3), 363A, 474(2), 476(1), Part 5, Division 5
Migration Regulations 1994 (Cth) cl 500.211, 500.212, 500.21(a)
Cases cited: Hasran v Minister for Immigration and Citizenship [2021] FCAFC 40
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 15 October 2024 Date of hearing: 15 October 2024 Place: Brisbane Counsel for the Applicants: The First Applicant appeared in person. Solicitor for the Respondents: Ms Tran - Sparke Helmore ORDERS
MLG 1370 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SATINDER SINGH
First Applicant
KAWALJEET KAUR
Second Applicant
GURSIDAK SINGH (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
22 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The first and second applicants are to pay the first respondent’s costs, fixed in the amount of $6500.00.
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 COULTHARD
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of the delegate of the Minister for Home Affairs (as the Minister was then called) (“the delegate”) to refuse to grant the first applicant a Student (Temporary) (Class TU) visa.
BACKGROUND
Application for a Student (Temporary) (Class TU) visa
The first applicant (“the applicant”) is a citizen of India.
The applicant arrived in Australia on 11 February 2009 on a Student (Temporary) (Class TU) visa for the purpose of studying a Certificate III in Hospitality (Commercial Cookery) and a Diploma of Hospitality. The applicant completed both courses (Court Book (“CB”) 25 - 33).
On 20 December 2011, the applicant, together with his wife (the second applicant) and child (the third applicant), returned to India and then re-entered Australia on 13 December 2015 as the holders of a Temporary Work Skilled (Subclass 457) visa. The day before that visa expired the applicant applied for a Student (Class TU) (Subclass 500) visa to study a Diploma of Leadership and Management with a completion date of 8 December 2020 (“the visa”). The second and third applicants were included in the application as members of the applicant’s family unit (CB 1 - 22 and 86).
The applicant submitted a ‘Notification of changes in circumstances form’ on 3 January 2020, by which he notified the Department that due to health complications he had had to cancel his enrolment in the Diploma of Leadership and Management course and had re-enrolled in the same course with a new start date of 6 March 2020 and a completion date of 4 March 2021 (CB 49).
On 13 March 2020, the delegate refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the genuine temporary entry criterion in cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). That criterion provides:
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
Application for review in the Administrative Appeals Tribunal
On 1 April 2020, the applicant applied to the Tribunal for review of the delegate’s decision (CB 69 - 71). The applicant was represented by a Migration Agent.
On 2 April 2020, the Tribunal acknowledged receipt of the application and advised the applicant to provide material or written arguments for consideration as soon as possible (CB 73).
On 3 December 2021, the Tribunal sent an invitation pursuant to s 359(2) of the Migration Act 1958 (Cth) (“the Act”) to the applicants’ representative at the email address listed in the review application requesting that the applicant provide information to satisfy it that he met the visa requirements that he is enrolled in a course of study and was a genuine applicant for entry and stay as a student. The invitation included a link to a ‘Request for Student Visa Information’ questionnaire. A copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (“Direction No. 69”) was also attached (CB 77 - 85). The invitation advised the applicant that if it did not receive either the applicant’s comments or response or the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information or to obtain the information and that the applicant would also lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not respond.
On 10 March 2022, the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting the applicant to provide comments in writing to information which it considered would be the reason or part of the reason for affirming the decision under review (CB 87 - 91). The particulars of the information were that a check of the PRISMS records by the Tribunal indicated that the applicant did not hold a current Certificate of Enrolment (“COE”) in a course of study (CB 90).
On 24 March 2022, the applicant’s representative responded to the Tribunal stating that the applicant had re-enrolled in the Diploma of Leadership and Management course and provided a new Certificate of Enrolment (“COE”) confirming this (CB 92 - 93). The COE confirmed that the course had commenced on 21 March 2022 and was due to be completed on 17 March 2023 (CB 93).
On 16 May 2022, the Tribunal affirmed the delegate's decision not to grant the visa (CB 98 - 106).
The Tribunal provided written reasons for its decision.
THE TRIBUNAL’S DECISION
The Tribunal proceeded to a decision having regard to all the information before it, including the information previously provided by the applicant to the Department but without taking further steps to obtain the additional information that it had sought ([12]). In doing so, the Tribunal stated that in the circumstance where the applicant had been issued with a
s 359(2) invitation to provide information but had failed to provide that information within the prescribed period, the Tribunal was permitted, pursuant to s 359C(1) of the Act, to make a decision on the review without taking any further action ([6]).
The Tribunal went on to state that pursuant to s 360(3) of the Act, as a consequence of the failure to provide the requested information, the applicant was not entitled to appear before the Tribunal ([7]). The Tribunal concluded that as the applicant had failed to provide the information requested, it did not have the power to permit the applicant to appear before it. The Tribunal referred to s 363A of the Act and the decision in Hasran v Minister for Immigration and Citizenship [2021] FCAFC 40 in support of that conclusion ([7]).
The Tribunal considered whether it should exercise its discretion to adjourn the review under s 363(1)(b) of the Act but concluded that the applicants had been given a fair opportunity to provide the information and declined to exercise its discretion.
The Tribunal identified that the issue on review was whether the applicant met the requirements of cl 500.212(a) of the Regulations which required that the applicant satisfy the genuine temporary entrant requirement (“GTE requirement”) [(18)]. In considering whether the applicant satisfied the GTE requirement, the Tribunal stated that it must have regard to the specified factors in Direction No. 69 ([19]). The Tribunal noted that the factors should not be used as a checklist but as a guide when considering the applicant’s circumstance as a whole in reaching a finding ([20]).
The Tribunal considered the following matters:
a) Due to delays in the matter coming before the Tribunal it was anticipated that the applicant would have completed his course (due to be completed in March 2021) and have returned to his home country but the applicant had not completed the questionnaire in the s359(2) letter which enquired, inter alia, about course progress ([24]);
b) The PRISMS search on 8 March 2022 indicated the applicant was no longer enrolled in a course however, after contacting the applicant to enquire about his non-enrolment, the applicant provided a new COE. That new COE was created the day before the applicant responded. The Tribunal observed that this raised concerns about whether the applicant was utilising the student visa program to maintain residence in Australia ([25]);
c) The applicant had provided no evidence to support that he had completed any study in Australia beyond the Certificate III and Diploma of Hospitality ([27]) or supplied any evidence about any study he had engaged in during the two years since making his application to the Tribunal which raised concerns about the true nature of the applicant’s intentions in applying for the visa ([28]);
d) The applicant’s submissions to the delegate regarding his future plans were not sufficiently clear and did not provide details about future remuneration such that the Tribunal could not make any firm findings in relation to the relevance, assistance and improvement the course had to offer the applicant in his future career ([29]);
e) The applicant did not complete the questionnaire which asked directly about community ties within Australia. The Tribunal said that it was reasonable to conclude that after nine years the applicant had cultivated a satisfactory life and established strong ties to the Australian community ([30]);
f) The applicant had not provided details of his actual income but had been working in Australia as a Chef since July 2018. As a consequence, the Tribunal was concerned that the applicant’s economic circumstances in Australia may be acting as a significant incentive to remain in Australia but made no firm finding in this regard given the limited information before the Tribunal [(31)];
g) The applicant had not completed the questionnaire which asks about community ties in Australia. The applicant’s mother and sister live in India and he expressed a desire in his statement of purpose filed with the Department to care for his mother. That was, however, at odds with the applicant’s lack of academic progress over the last two years and continued residence on shore. Whilst the applicant may have personal ties acting and an incentive for him to return to his home country the evidence did not support a finding that those ties are a significant incentive for him to return as they seem to be outweighed by the applicant’s incentives and desires to remain onshore ([32]);
h) The applicant’s statement that Australia is the best destination for international students were, on balance, not reasonable reasons for undertaking study in Australia rather than in his home country or region [(33)];
i) That the applicant had a Student visa cancelled previously, troubled the Tribunal, but the Tribunal placed limited weight on this information as there was no information beyond the applicant’s own disclosure of this history. There was no information before the Tribunal that the applicant had any other travel, visa or immigration issues in the past [(34)];
j) There was no evidence that the applicant had any potential military service obligations or political or civil unrest circumstance in India ([34]);
k) It was difficult to reconcile a period of over nine years within the meaning of temporary and this raised concerns about whether the applicant was using the student visa program to maintain residence ([35]).
Taking the evidence as a whole and having regard to the applicant’s circumstances, his immigration history and all the relevant matters, the Tribunal concluded that it could not be satisfied that the applicant was a genuine applicant for entry and stay as a student temporarily as required by clause 500.212 ([36] – [37]).
Accordingly, the Tribunal affirmed the delegate’s decision ([38]).
APPLICATION TO THIS COURT
These proceedings were commenced by application pursuant to s 476(1) of the Act on 16 June 2022. The applicant also filed an Affidavit sworn or affirmed (it is not clear which) on 16 June 2022. The Affidavit recites that the Tribunal made a jurisdictional error and annexes a copy of the Tribunal’s decision.
The applicant was ordered to file, by 27 August 2024, any amended application with proper particulars of the grounds of the application, written submissions, and any additional evidence that he sought to rely on. The first respondent was ordered to file and serve written submissions and any additional evidence on which the first respondent sought to rely, by 9 September 2024. Orders were also made as to the preparation, filing, and service of a Court Book.
The applicant did not file an Amended Application or any other evidence in support of his application. The applicant did not file any written submissions.
The grounds of review set out in the Application are (without alteration):
Ground One
The decision made by member of AAT contains jurisdictional error.
Ground Two
The decision is unjustified.
Ground Three
The migration decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474(2) of the Migration Act 1958.
The applicant appeared before the Court in person unrepresented. The applicant told the Court that he also represented the second applicant.
The material before the Court included the Application for judicial review, the applicant’s Affidavit, the first respondent’s written submissions and a Court Book. The applicant did not have any of the material with him with which he had been served, nor did he have a copy of the Application or his own Affidavit. Accordingly, the Court provided the applicant with a copy of the materials. The Court also provided the applicant with a pen and paper.
CONSIDERATION
For the applicants to be successful they must satisfy the Court that the Tribunal has fallen into jurisdictional error.
As the applicants were unrepresented, the Court took the time to explain to the applicant that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error. The Court provided to the applicant some examples of the categories of jurisdictional error.
As the applicant was unrepresented, the Court has taken the approach of interpreting the applicant’s grounds of review as broadly as possible and has been alive to whether the Tribunal’s decision otherwise discloses any jurisdictional error.
As to ground one of the Application that the Tribunal decision ‘contains a jurisdictional error’, the Application contains no particulars as to how it is said that the decision is affected by jurisdictional error.
The first respondent submitted that as ground one does not provide any particulars of the allegation of jurisdictional error made, this is sufficient to warrant the dismissal of the application (First Respondent’s Submissions (“FRS”) [27]). The Court takes the view that it should be reluctant to dismiss an application or ground of review on the basis of a lack of particularity in circumstances where the applicant is unrepresented (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612).
As to ground two of the application, that the decision was unjustified, the applicant does not provide any particulars of how it is said that the decision is unjustified by reference to any recognised category of jurisdictional error.
The applicant’s Affidavit (at [2]) states that “the major facts of the case has been ignored and interpreted under law” but does not identify what facts it is said that the Tribunal ignored.
The Court took the applicant to the Application and invited the applicant to make oral submissions in support of the Application. The applicant said that he had nothing to say. The Court then asked the applicant to assist it by explaining what error the applicant alleges the Tribunal made. The applicant said the Tribunal may have misunderstood the documents. The Court asked the applicant which document or documents he considered the Tribunal may have misunderstood to which the applicant responded that he could not say. The applicant then said that the Tribunal may have made a mistake. The Court asked the applicant to identify what mistake he said the Tribunal may have made to which the applicant responded that he could not say.
The Court agrees with the submissions of the first respondent (FRS [28] – [29]) that the Tribunal correctly identified the issue to be determined on the review and that the Tribunal’s finding that the applicant was not a genuine temporary entrant was open to it on the evidence before it for the reasons that it gave. The Tribunal correctly identified the relevant factors to be considered by reference to Direction 69 and weighed those factors by reference to all the information before it to reach a logical and justifiable conclusion.
No jurisdictional error is established on either of grounds one or two of the application.
As to ground three, the allegation that the Tribunal’s decision is not a privative clause decision is not a ground of review.
Although the Application does not, even on the broadest of readings, allege any failure to afford procedural fairness the first respondent made submissions as to whether the Tribunal had failed to afford the applicant’s procedural fairness. For the reasons set out in the first respondent’s submissions (FRS [30] – [32]), the Court agrees that the Tribunal complied with its obligations under Part 5, Division 5 of the Act.
Finally, the first respondent submitted that even if jurisdictional error were established the Court should refuse relief in the exercise of its discretion (FRS [35] – [36]). The first respondent’s submission was that because the course for which the visa was sought out to have been completed by now (that is, by March 2023), the Court should infer that these proceedings have been brought for an ulterior purpose. The Court is not prepared to draw that inference. Firstly, the drawing of such an inference may require the Court to engage in impermissible merits review by, in effect, making findings as to whether the applicant was a genuine temporary entrant. Secondly, it would be unfair to the applicant, who is unrepresented, to make a finding in respect of which the applicant is not in a position to make meaningful submissions.
CONCLUSION
The Application for judicial review, supporting Affidavit and the applicant’s submissions advanced at the hearing, do not identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate: Nazrana Saheb
Dated: 22 October 2024
SCHEDULE OF PARTIES
MLG 1370 of 2022 Applicants
Fourth Applicant:
LAGANJOT KAUR
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2
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