Singh v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 650

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 650

File number(s):	MLG 3683 of 2019
Judgment of:	JUDGE VASTA
Date of judgment:	27 June 2024
Catchwords:	MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	61
Date of last submission/s:	27 June 2024
Date of hearing:	27 June 2024
Place:	Brisbane
Solicitor for the Applicant:	Mr Warriach, Solicitor of Huk Legal
Solicitor for the First Respondent:	Mr Macaulay, Solicitor of Clayton Utz
Solicitor for the Second Respondent:	submitting appearance, save as to costs.

ORDERS

MLG 3683 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SHAHBAJ SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	27 JUNE 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application filed on 25 October 2019 be dismissed.

3.The Applicant pay the First Respondent’s cost of and incidental to the application fixed in the sum of $8,371.30.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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
(Ex tempore)

JUDGE VASTA

1. On 16 October 2019, the Administrative Appeals Tribunal (“the Tribunal/AAT”) affirmed a decision not to grant the Applicant, Shahbaj Singh, a student visa.  On 25 October 2019, the Applicant asked this Court to review that decision. 

2. The matter came before the registrar, Registrar Carlton, back on 29 January 2020.  The registrar made the usual orders as for the filing of documents and made these orders:

   1.   The applicant file and serve the following 28 days before the final hearing date:

   (a)any amended application with proper particulars of the grounds of the application;

   (b)       a supplementary court book if any;  and

   (c)       written submissions;

   2.   the first respondent file and serve written submissions 14 days before the final hearing date;  and

   3.   the application be listed for final hearing before a judge on a date to be advised.

3. The matter then was subsumed into the national migration docket.  It was quite some time before it ended up being listed. 

4. On 8 May 2024, the Applicant and the Minister were sent an email from the national migration team which said the following: “Please be advised this matter has now been listed for final hearing before Judge Vasta as per the following details.  Date:  Thursday, 27 June 2024 – time:  2.15 pm – mode:  teleconference –with the dial in details and a note saying: Please direct all future correspondence in this matter to Chambers”.

5. And there was no other correspondence sent to my Chambers. 

6. The import of that email is that, in accordance with the orders of Registrar Carlton, it meant that the Applicant had until Thursday, 30 May to put in an amended application, any court book and written submissions, and, by 13 June 2024, the Minister had to put in their written submissions, and the matter was going to be heard. 

7. That meant that the Applicant had certainly 28 days within which to put their material before the Court if they wished.

8. This is a matter that has been in the system for far too long.  Just on the dates that I have enumerated today, it shows that it has been four years and eight months since the Applicant filed his application to the time when the Court finally gets around to hearing the matter.  That is an inordinate delay and, as I have expressed during the course of the hearing, the Court does apologise for this and that is part of the reason why I have said that the matter needs to finish today and why I am giving my decision ex tempore. 

9. When the matter was called on today, Mr Warraich appeared for the applicant.  He asked for an adjournment, saying that he had never appeared in a matter where there had not been a timetable set down by the Court for the filing of documents.  Unfortunately for him, the Court had done so, as I have just recorded, through the orders of Registrar Carlton on 29 January 2020 and then the email from the national migration team sent on 8 May of this year.

10. I do note that Mr Warraich, whilst he did not have his name down as the lawyer on the application, was the witness to the Applicant’s application and a witness to his affidavit that was filed with the application on 25 October 2019.  So, this is not a matter with which he is unfamiliar, and it would seem that he has been involved, as it were, for some time with the matter.  Whether that has been continuous, or not, is not really relevant to the Court, but this is not a matter that, in any way, takes him by surprise.  Given all of those circumstances, there was nothing shown to me as to why it was that the matter should not proceed.

11. The factual background to the matter is that the Applicant is a citizen of India.  He arrived in Australia on 16 April 2013 on a student visa.  That student visa expired on 15 March 2016.  It would seem 13 days before that expiration, he applied for a second student visa.  That student visa was granted, but that was one that was going to expire on 15 March 2018.  He applied then for the third student visa, which is the subject of the present application. 

12. What was before the Tribunal was the history of the Applicant’s study in Australia.

13. What it showed was that, in 2013, he was enrolled in a Bachelor of Business (Executive Administration).  That course was not completed. 

14. In 2014, he was enrolled in a Bachelor of Networking.  That course was not completed. 

15. In 2015, he was enrolled in a Bachelor of Information Systems.  That course was never completed. 

16. In 2016, he was enrolled in a Bachelor of Information Technology and Systems.  That course was not completed. 

17. In 2018, he was enrolled in a Bachelor of Information Technology.  He did not ever start that course.

18. From April to July 2018, he took an English language course, which he did complete.  Later in 2018, he enrolled in a Bachelor of Information Technology, and he did not complete that course. 

19. In 2019, he enrolled in a Certificate III in Retail Baking, and that was the course that he was studying at the time that he presented himself before the Administrative Appeals Tribunal. 

20. As the AAT said, in the six years since the Applicant had arrived in Australia, he had only completed a four-month English language course, and he had just enrolled in a Certificate III in Retail Baking.  That baking course commenced on 5 August 2019 and was due to be completed by 2 August 2020. 

21. The applicant provided to the AAT a genuine temporary entrant statement, which is reproduced at CB 122.  What it was that he said, in that statement, was that he came to Australia with a dream of getting an international degree and making a good career back in India.  He had completed year 12 in the commerce stream.  So, he decided to study a Bachelor of Business at Holmes Glen Institute.

22. He said that he commenced his studies in July 2013, but he explained that, since his childhood, he had wanted to get technical studies in the field of IT and computing, but his parents wanted him to become a businessman.  So, they advised him to take the commerce stream in years 11 and 12, which led to business studies thereon.  He agreed with his parents’ suggestion because he says he wasn’t mature enough, and they had lifetime experience. 

23. He said that he began to be influenced by friends who were studying IT courses.  They were suggesting to him that he drop his business degree and he commence study in the IT field.

24. He enrolled in a Bachelor of Networking, and he said he was able to successfully complete the first year, but he said that he had expected that he would get additional help with some of the subjects he had failed.  So, he decided to change courses at a different college.  He then enrolled in the Bachelor of Information Systems, but he could not cope with those subjects and course curriculum.  He said that he tried his best, but he only managed to pass three subjects.  He also found that the college was too small.

25. He then changed to a different institute but, by then, he said that he had lost his confidence.  He said he could not concentrate and, therefore, could not complete the course.  He then tried another course – a Bachelor of Information Technology, but again could not cope with his studies.  He said that his sister’s marriage broke down at about this time, and the impact of that was deleterious to his studies.  He realised that IT was not his cup of tea, and he would not be able to complete the course.

26. He told the AAT that he had tried his level best to complete those IT studies.  He said that he now needed to get something in his hands before he returns home.  He told the AAT that he had always been a foodie person and, therefore, he became keen to study baking. 

27. He explained to the AAT that he now wants to open a bakery or a restaurant where he would sell breads and pastries in the front shop, and he would also have a dining restaurant.  When he was asked about the cooking side of the business, he said that after completing a bakery course in 2020, he wanted to go on and complete a Certificate IV in baking.

28. He confirmed that he is not presently enrolled in the Certificate IV course, but he was looking into it.  He said that he intended to go on and enrol in a Certificate III and IV in commercial cookery and then a diploma in hospitality.  He said that he would do further baking courses in India. 

29. The AAT said that, as far as they were concerned, the Applicant had made it very clear to the Tribunal that his intention was not simply to stay in Australia for a further year to complete the Certificate III in Retail Baking, but he was looking to stay in Australia for at least an additional four to five years.  That would mean that his overall stay in Australia would be 10 or 11 years.

30. The AAT said that, given that the Applicant was not even enrolled in any of those courses, with the exception of the Certificate III, this fact, in and of itself, raised serious concerns about whether he truly, and genuinely, held the intention to stay in Australia on a temporary basis.  The AAT said that, from the evidence that he had given about these further courses he would want to do, it seemed apparent that the current course in retail baking would not be sufficient to assist him in either obtaining employment in baking or improving his prospects of setting up his own bakery and/or restaurant in India. 

31. The AAT noted that, other than having an interest in food, he had very little experience working in a bakery or a restaurant.  He had worked as a taxi driver in Australia.  He had done some work in restaurants and car washing, but he did not expand upon that nature of the work that he did in restaurants.

32. He said he had no work experience before coming to Australia, and his studies, up until he left India and even when he first came to Australia, always had a focus on either business or IT. 

33. The Tribunal found that the Certificate III in Retail Baking bears no relevance to his previous studies or work experience. 

34. He was asked about what sort of remuneration he expects to earn using the qualifications when he goes back to India, and he said that he expected to earn $60 to $70 000 Australian dollars, and he said that would be, initially, on an annual basis, which would be increasing with the time and with an increasing customer base and with the betterment of the services provided by his restaurant.

35. When asked by the Tribunal how he reached those figures, he said he had spoken to two friends; one who works in a restaurant, and one who works in a hotel.  When he was asked whether they had studied, the Applicant said they had completed hospitality courses in India.  He said he had also spoken to his parents. 

36. The Tribunal said that there seemed to be an overall lack of planning and insight into the idea of running a bakery or restaurant.  The Tribunal said that, at present, it was just an idea and, really, it was a concept tailored to suit the course that he had recently enrolled in.  The Tribunal had taken into account the genuine temporary entrant statement that had been provided when the Applicant was still interested in information technology as a career.

37. Even after the delegate had made the decision in May 2018 not to give the Applicant a student visa, the Applicant was still interested in information technology, evidenced by the fact that he enrolled in a Bachelor of Information Technology in July 2018, which is while he was waiting for the AAT to hear his matter.  It was only in August 2019 that he enrolled in the baking course, which was two months prior to appearing before the Tribunal. 

38. The Tribunal said that they considered that his plans for the future were vague and what he had told them of his plans was tailored to suit the course he had recently enrolled in.  The Tribunal said, that is not as it should be.

39. The Tribunal looked at the circumstances in the Applicant’s own country and, after going through his family and social set up and how often he had gone back to India and so on, concluded that there really was very little incentive for him to return to India and plenty of incentive for him to stay in Australia.  The Applicant has two sisters and a cousin that are in Australia.  The sisters are now Australian citizens, and he was currently living with one of his sisters and another friend.

40. The Tribunal said that, considering that he has been in Australia for six years, and he plans to be here for another five years to complete all the courses he would like to do, even though he was not enrolled in any of them, the Tribunal considered that the friends, families and ties to the community in Australia were really illustrative of the Applicant starting a life for himself in Australia and having very little as far as ties were concerned to India. 

41. The AAT looked at the very recent change in his area of study from six years of studying degrees in business and information technology to a VET course in retail baking.  The Tribunal was concerned that the Applicant was using the student visa program to circumvent the intentions of the migration program, and he was using the student visa to maintain ongoing residence. 

42. Having come to those conclusions, the Tribunal found that the criteria for the grant of the student visa were not met. 

43. The decision then not to grant the Applicant a student visa was therefore affirmed.

44. The application had two grounds, they were that,

    1.The Tribunal made a jurisdictional error whilst making a decision on application.

    2.The ADMINISTRATIVE APPEALS TRIBUNAL member failed to consider all the aspects of the appeal and observe principles of natural justice.

    (a)In considering whether the visa applicant met the visa grant criteria required by the regulations, the Tribunal member failed to fully consider the fact that the circumstances of the case were beyond the applicant’s control.

    (b)The visa applicant was not at fault and yet was affected by exceptional circumstances.

45. None of that was expanded upon by Mr Warraich.

46. He submitted to me that there had been a lack of procedural fairness, and when I challenged him as to what else could the Tribunal have done, he said to me he wasn’t talking about the Tribunal; he was talking about the delegate. As I explained to him, pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”), this Court is precluded from reviewing the decision of the delegate, and the only jurisdiction this Court has is to look at the decision of the Tribunal. Sections 359 and following are an exhaustive statement of procedural fairness and natural justice.

47. What is clear in this case is that the Applicant made his application to the Tribunal.  The Tribunal acknowledged that application.  When it was that they were ready to look at the matter, they sent him an invitation to attend a hearing.  He answered that invitation to attend the hearing.  The Tribunal asked him for documentation to back up that he was currently enrolled in a course.  He presented them that material.  The Tribunal also asked him for a genuine temporary entrant statement.  He provided that to the Tribunal.

48. He turned up at the hearing, he participated in the hearing, and he answered all the questions and gave a full account of himself. 

49. There really was not able to be identified, any aspect of the behaviour of the Tribunal that transgressed those sections of the Act.

50. Mr Warraich then submitted to me that the Applicant needed to have his matter remitted back to the Tribunal so he could give the Tribunal another genuine temporary entrant statement.  When I explained that he had already done so, Mr Warraich said that the Applicant was not given the opportunity to explain why he had failed the courses.  That did not seem to be congruous with what it was that the Tribunal had said in their reasons. 

51. It seems to me, upon a reading of what the Tribunal have said in their reasons, that the Applicant was given an ample opportunity to explain his whole situation with regard to the courses that he had given, why it was that he did not complete them, and why the change of heart.  There does not seem to be any matter for which the applicant had not had an opportunity to address the AAT. 

52. I asked Mr Warraich, “what is it that the applicant says that he would have said to the Tribunal if it were that he had been given any particular other opportunity?” Mr Warraich could not answer that. 

53. In those circumstances, it really seems difficult to see how it was that the Tribunal had, in any way, been unfair to the Applicant. 

54. The next submission was that the Tribunal had not considered all of the facts of the matter.  Again, I queried this with Mr Warraich as to what was it that had not been considered.  Mr Warraich said to me that it was all of the matters that the Applicant had said to the Tribunal.  I asked him how is it that he could make the submission that the matters were not considered, and he said simply that the Tribunal did not give him a visa.

55. The logic of this submission is premised on a belief that the Applicant had given, and told of, all of his circumstances.  The submission continues that this circumstance, in and of itself, was sufficient for any Tribunal of fact to find that the Applicant had, in fact, complied with all of the requirements for the granting of a visa.  The fact that the Tribunal did not come to that conclusion means that they, therefore, must not have considered those matters that the Applicant had said to the Tribunal, because, if they had considered those matters, the Tribunal automatically would have given him a visa.

56. The logic of that is questionable and, really, if that were so, then there was no need for a Tribunal hearing because, realistically, once he had given his application, the Applicant should simply have been granted the visa. 

1. The fact is, that it is for the Applicant to satisfy the Tribunal that he has met all of those criteria.  The Applicant simply could not do that.  That does not mean that there has not been consideration by the Tribunal.  There has been consideration; it simply has not met the standard.

2. There really was nothing that was beyond the Applicant’s control in anything that he said that had occurred.  The Applicant may have lost his nerve.  He may have been affected by his sister’s marriage break-up, but those are not things that are matters that are beyond his control.  They are matters that happen as part of life.  If it is that those factual matters disturbed his ability to study, to any extent, there would need to be some evidence of that, such as representations made to the course convenors as to special consideration because of those matters, or even medical evidence that a doctor was of the view that he could not study because of those matters and such doctor’s opinion or certificate was given to the university.  There was nothing of that nature. 

3. I have looked through the decision of the Tribunal.  I cannot see any other jurisdictional error. 

4. The grounds upon which this application was based do not illustrate any jurisdictional error either, for the reasons that I have gone through. 

5. Having found that there is no jurisdictional error, I dismiss the application with costs fixed in the scale amount of $8,371.30.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       25 July 2024