Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 879
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 879
File number: MLG 3300 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 13 September 2024 Catchwords: MIGRATION – Judicial review – student visa – whether Applicant was a genuine temporary entrant under clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – no error in reasons of the Tribunal – application dismissed. Legislation: Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth).
Federal Circuit Court Rules 2001 (Cth).
Migration Regulations 1994 (Cth) Sch 2, item 500.212(a).
Number of paragraphs: 26 Date of hearing: 16 August 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Advocate for the Respondents: Mr Simpson Solicitor for the Respondents: Clayton Utz ORDERS
MLG 3300 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURVINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs.’
2.The Application filed on 1 November 2018 be dismissed.
3.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:
INTRODUCTION
This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 4 October 2018. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to refuse the Applicant a Student (Temporary) (Class TU) Subclass 500 visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is an Indian national. The Applicant arrived in Australia on 22 February 2014 as the holder of a student visa (Court Book (‘CB’) 32). He applied for the visa on 14 March 2017 (CB 26).
On 13 June 2017, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa (CB 26).
On 30 June 2017, the Applicant applied to the Tribunal for review of the delegate’s decision (CB 51).
On 13 August 2018, the Tribunal wrote to the Applicant and invited him to provide information relating to his study and stay in Australia in a Request for Student Visa Information form (‘Request for Student Information’) (CB 60). Attached to this correspondence was a copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications.’
On 27 August 2018, the Applicant provided a completed copy of the Request for Student Information to the Tribunal (CB 81).
On 4 October 2018, a hearing was held at the Tribunal. The Applicant attended the hearing. Following the hearing, the Tribunal orally affirmed the decision not to grant the Applicant the visa.
On 23 November 2018, the Tribunal produced a written record of its oral decision and reasons (‘Reasons’) (CB 143).
The Applicant filed an Application for review (‘Application’) and supporting affidavit in this Court on 1 November 2018. He relied on these documents at the hearing. The Minister filed a Court Book, and also filed written submissions.
THE DECISION OF THE TRIBUNAL
The issue before the Tribunal was whether the Applicant genuinely intended to stay in Australia temporarily, having regard to the terms of item 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth).
In its Reasons, the Tribunal:
(a)noted that the Applicant did not provide a Genuine Temporary Entrant (‘GTE’) Statement to the Tribunal and did not provide any evidence of completion or graduation from any courses to the Tribunal (at [3]-[4]);
(b)set out the information provided by the Applicant in his written response to the Request for Student Information dated 27 August 2018 at [5];
(c)noted that the Applicant provided a Confirmation of Enrolment (‘COE’) in an Advanced Diploma of Leadership and Management in the period 3 October 2018 until 13 October 2018, and also provided evidence that he had pre-paid tuition fees. The Tribunal noted that the COE was obtained the day before the scheduled hearing (at [6]);
(d)summarised evidence given by the Applicant that he had not engaged in any study for a period of five years prior to the hearing date, and that the overwhelming majority of his time had involved work and not study (at [7]);
(e)proceeded to consider the terms of Ministerial Direction Number 69 at [9] - [34] in respect of the Applicant;
(f)considered the Applicant’s circumstances in his home country. The Tribunal, in considering the evidence, stated it was inclined to the view the Applicant did not have reasonable grounds for not undertaking study in his home country (at [11]); stated that the Applicant’s personal ties to his home country are minimal and it was therefore unable to conclude the limited personal ties serve as a significant incentive for the Applicant to return to India (at [13] – [14]); and stated that it was inclined to the view the Applicant’s economic circumstances in Australia presented as a significant incentive for the Applicant not to return to his home country (at [15]);
(g)considered the Applicant’s potential circumstances in Australia. The Tribunal, when considering the evidence, was of the view that the Applicant had developed a set of ongoing ties in Australia and was unable to conclude that study plays a major role for the Applicant in Australia. The Tribunal was of the view that those ties as outlined presented as a strong incentive to remain in Australia and that it was of the view the Applicant was using the student visa program to circumvent the intentions of the migration program (at [22]);
(h)considered the value of the course to the Applicant’s future. The Tribunal, in considering the evidence, stated that it was ‘disturbed’ that the Applicant only obtained the COE in an approved course the day prior to the hearing, and was not satisfied that the Applicant obtaining qualifications is likely to enhance his remuneration level or career prospects significantly upon completion of his study (at [26] – [27]);
(i)considered the Applicant’s immigration history. The Tribunal noted at [29] the Applicant’s study history and considered that that history demonstrated that the Applicant had failed to comply with the visa conditions 8202 and 8516 (at [30]). The Tribunal stated that there were strong indications the Applicant may again fail to abide by the conditions of his student visa or any other visa in the future, and that the Applicant had provided only limited details of his employment overseas and in Australia at [30]. Taking these matters into account, the Tribunal was unable to be satisfied that the Applicant will comply with immigration laws in the future or that he will return to his home country at the end of his proposed stay in Australia (at [31]);
(j)considered whether the Applicant was a minor and noted he was over the age of 18 years (at [32]-[33]);
(k)considered that there was no other relevant matter that required consideration at [34]; and
(l)on balance was not satisfied that the information the Applicant had provided regarding his circumstances in his home country, potential circumstances in Australia, immigration history and the value of the proposed course to the future are sufficient to demonstrate that he is a genuine temporary entrant (at [35]). The Tribunal proceeded to affirm the decision under review.
THE APPLICATION
The Grounds for Review in the Application are as follows:
1.By application filed on 13 June 2017, I applied for the merit review application with Administrative Appeals Tribunal. The grounds of the application are as follows:
1.The Department made a procedural error by not correctly assessing information relevant to the applicant's particular circumstances.
Particulars:
The department of immigration and border protection failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa condition was not considered.
2.The applicants were not afforded natural justice.
Particulars:
I believe that I wasn't provided a fair opportunity to provide the verbal evidences to the member.
My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs did not provide the decision record for their decision which clearly depicts an error.
3. Tribunal misconstrued with clauses 500.212a and Ministerial Direction No 69. According to tribunal, The Tribunal cannot be satisfied that the applicant will comply with any visa which attach to a visa, should it be granted in future.
Particular:
The evidence by the tribunal that compelled them to make this decision is void and without base and facts. No evidence was provided why tribunal came to this conclusion.
4.AAT rather than assessing my current GTE criteria and my evidences, affirmed the decision based on the facts presented by Department of Home Affairs.
5. Member erred in dismissing the applicant's application without providing extra time without any basis in law and fact.
6.The appellant's application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.
7. Substantial justice was not provided and that's the reason I want to apply in Federal Circuit Court of Australia.
In the affidavit filed with his Application, the Applicant states further that the Tribunal did not consider the actual reason for the refusal and made a conclusion on the basis of the reasons given by the Department of Home Affairs.
During the hearing, I directed the Applicant to the Grounds of Review in the Application and asked him what submissions he wished to make in respect of them. The Applicant submitted that he had attended the Tribunal with his COE, but the Tribunal nevertheless rejected his visa. He claimed the Tribunal did not look at the COE he provided. He submitted also that there were no good reasons why his application for the visa was rejected, and that he did not understand the reasons why his visa had been rejected. He said the entire situation had taken a toll on him.
The Applicant’s submission that the Tribunal did not look at his COE or failed to take account of it must be rejected. The Reasons of the Tribunal disclose that the Tribunal had the COE before it and actively considered it: see paragraphs [6], [7] and [26]. The Tribunal considered, inter-alia, that the Applicant had only obtained the COE the day prior to the hearing, suggesting little pre-planning as to the utility of proposed study (at [26]), and that it was inclined to the view the COE was obtained by the Applicant out of his desire to prolong his stay in Australia (at [7]).
The Applicant’s oral submission that he did not understand the reasons why his visa was rejected to some extent overlaps with Grounds 2 and 3. At one level, the Applicant’s complaint is understandable. The Tribunal conducted its hearing on 4 October 2018 and thereafter delivered oral reasons. The Applicant was not given written reasons of the Tribunal’s decision. It is apparent from the chronology that at the time he filed his Application in this Court, he did not have access to any written reasons of the Tribunal and to that extent, it is understandable he may not have understood the Tribunal’s reasons for its decision. That said, there is no evidence in the Court Book that the Applicant ever requested written reasons from the Tribunal. This, despite the fact that on 4 October 2018, the Tribunal wrote to the Applicant and informed him that he was entitled to request a written statement of decision. Furthermore, it seems written reasons were ultimately obtained by the Minister, and a copy of them was included in the Court Book. The Applicant has therefore had access to the written record of reasons.
I turn then to the Grounds of Review in the Application.
Ground 1 cannot succeed. To the extent the Applicant complains about the conduct of the Department, the Court does not have jurisdiction to entertain that complaint. To the extent the Applicant’s complaint is directed to the Tribunal, it is plain that the Tribunal considered the previous immigration history of the Applicant and his compliance with these conditions: see paragraphs [28]-[30] of its Reasons. The Tribunal also proceeded to consider whether there were any other relevant matters requiring consideration in the case of the Applicant at [34].
Ground 2 cannot succeed. The Tribunal wrote to the Applicant on 4 July 2017 acknowledging his application and furnishing him with relevant information about the Tribunal process (CB 51). On 13 August 2018, the Tribunal invited the Applicant to provide information (CB 60). That piece of correspondence, inter-alia, put the Applicant squarely on notice that an issue for the Tribunal to consider was whether the Applicant was ‘a genuine applicant for entry and stay as a student’. On 10 September 2018, the Tribunal invited the Applicant to attend a hearing before it on 4 October 2018 (CB 93). Again, in this piece of correspondence, the Applicant was told, inter-alia, that the Tribunal would be assessing whether he was ‘a genuine applicant for entry and stay as a student’. Ultimately, the Applicant attended the hearing on 4 October 2018, and it is evident from the decision of the Tribunal that the Applicant was afforded an opportunity to give evidence and present arguments. The Tribunal hearing record discloses that the hearing proceeded for just under two hours. Further, as I have noted, written reasons were ultimately produced by the Tribunal and the Applicant has had access to them for some time now. In the circumstances, the Applicant was afforded natural justice.
Ground 3 cannot succeed. As I have noted earlier, the Tribunal considered the Applicant’s past compliance with visa conditions, and in that context considered whether he was likely to comply with any future visa condition at [28] – [30]. The Tribunal’s conclusions appear to be based on information provided by the Applicant himself prior to the hearing, including that at the time he filed the Application, he did not have a valid COE (CB 82) and that he had failed to complete two courses he was previously enrolled in (CB 84). There is also the Applicant’s own evidence given at the hearing that he had not engaged in study for a period of five years and that he had spent majority of his time working: see Reasons at [7], [18].
Ground 4 cannot succeed. It is misconceived. It is evident from the reasons of the Tribunal that it considered matters afresh in arriving at its conclusion. That included consideration of information that the Applicant had supplied to the Tribunal prior to the hearing, and also during the hearing.
Ground 5 cannot succeed. There is no evidence that the Applicant asked for extra time, or asked for the proceedings before the Tribunal to be adjourned. There is no evidence that he asked to make any post hearing submissions. The Applicant appeared to concede that he did not ask for extra time in his reply submissions before me.
Grounds 6 and 7 cannot succeed. No discernible jurisdictional error is identified in these grounds nor are any particulars of any alleged error provided. The Applicant did not elaborate upon them during the hearing. They must be dismissed.
In summary, the Applicant has not identified any jurisdictional error committed by the Tribunal. I am unable to identify any error, having regard to the Reasons given by the Tribunal. The only appropriate course is that the Application be dismissed. Orders will be issued to that effect.
DISPOSITION
The Minister seeks costs fixed in the amount of $7,467, which are costs according to the scale of costs set out in the Federal Circuit Court Rules 2001 (Cth). These rules have since been replaced by the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) and the scale of costs set out in Schedule 2. In circumstances where the costs sought are less than the current scale of costs, and given the Minister has been entirely successful, I will make an order for costs in the amount sought by the Minister.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 13 September 2024
1
0
3