Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 355
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 355
File number(s): MLG 1822 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 24 April 2024 Catchwords: MIGRATION – Visa – Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa – where Administrative Appeals Tribunal affirmed decision of first respondent to cancel applicants’ visa – where first applicant failed to maintain enrolment in a course of study – where certain grounds raised by applicants entirely unparticularised – found no jurisdictional error on behalf of the Administrative Appeals Tribunal Legislation: Migration Act 1958 (Cth) ss 474, 476
Migration Regulations 1994 (Cth) sch 2, cl 572.21, sub-cl 572.212, cl 572.22, sub-cls 572.221, 572.223, 572.223(1A), 572.231, 572.234
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Craig v South Australia (1995) 184 CLR 163
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 2 April 2024 Solicitor for the Applicants: Self-represented litigants Solicitor for the First Respondent: Mr O’Shannessy of Mills Oakley Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1822 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GOPAL SINGH
First Applicant
MEENA RANI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The First and Second Applicants have leave to amend their Application filed 22 June 2018 to seek a writ of mandamus directed to the Administrative Appeals Tribunal.
2.The Application filed 22 June 2018 be dismissed.
3.The First and Second Applicants pay the First Respondent’s costs in an amount to be fixed, if not agreed.
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 J YOUNG:
Before the Court is an Application filed on 22 June 2018, in which the applicants seek judicial review of a decision of the second respondent (Tribunal) dated 4 June 2018. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to cancel the first applicant’s Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (Visa).
BACKGROUND
The first applicant (Applicant) is a citizen of India. The Applicant arrived in Australia on 13 October 2008 as the holder of a student visa granted on 17 September 2007. The Applicant has held five subsequent visas since his first arrival.
The second applicant is the Applicant’s wife. The applicants married in India on 6 December 2014.
On 16 June 2016, the Applicant applied for the Visa. The second applicant was named as a family unit member on the Visa application.
On 8 November 2016, a delegate of the Minister refused to grant the Applicant the Visa as the delegate was not satisfied the Applicant met sub-clause 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Sub-Clause 572.223 of Schedule 2 of the Regulations required the delegate to be satisfied the Applicant was a genuine temporary entrant (GTE).
On 15 November 2016, the applicants applied to the Tribunal for review of the delegate’s decision and appointed a registered migration agent. In the application for review, the Applicant nominated the registered migration agent’s email address <[email protected]> (representative’s email address) for correspondence.
On 8 May 2018, the Tribunal sent an email to the applicants via their representative’s email address enclosing an invitation for the applicants to attend a hearing on 4 June 2018 at 1.00pm with an information sheet attached (8 May 2018 Letter). The Tribunal requested the Applicant provide the following documents, (amongst other things) within seven days of receipt of the invitation: a copy of his current Confirmation of Enrolment (COE); documents evidencing his current enrolment in a course, or an offer of enrolment in a registered course; documents evidencing his past studies in Australia; and a written statement addressing the issue of whether he was a GTE. The hearing invitation stated that if the Applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 4 June 2018, the applicants appeared at the hearing before the Tribunal. The applicants were represented at the hearing. On that same day, the Applicant provided to the Tribunal a completed questionnaire (Questionnaire) in which he provided the following information:
·in response to the question, “Do you have a current Certificate of Enrolment?”, the Applicant circled the word “No”;
·in response to the question, “What is your current course of study?”, the Applicant wrote, “Building and Construction”; and
·in response to the question, “Where are you currently enrolled?”, the Applicant wrote, “Della International”.
At the hearing on 4 June 2018, the Tribunal made an oral decision to affirm the decision of the delegate to refuse to grant the Applicant the Visa. The Tribunal also gave oral reasons for its decision at the hearing.
Tribunal’s decision
On 13 August 2018, the Tribunal produced a written record of its oral decision (Decision). In its Decision, the Tribunal noted that while the issue before the delegate was whether the Applicant was a GTE, the issue before the Tribunal was whether, at the time of the Tribunal’s Decision, the Applicant met the enrolment requirements for the Visa.
The Tribunal noted that the Regulations required that at the time of the Tribunal’s Decision, an applicant must be enrolled in, or be the subject of a current letter of enrolment, in a relevant course of study.
The Tribunal further noted that a copy of the Applicant’s COE was not provided, neither in response to its request in the 8 May 2018 Letter nor when requested to do so at the hearing on 4 June 2018. The Tribunal referred to the Applicant’s evidence that he was last enrolled in a Diploma of Building and Construction Management and that the confirmation of enrolment for that course was cancelled before the end date of 25 June 2017. It also noted the Applicant’s evidence that he was not currently enrolled, nor did he have any COE, in any course of study in Australia.
The Tribunal found that there was no evidence before it that the Applicant was enrolled, or had a current offer of enrolment, in any relevant course of study. It therefore found that the Applicant did not meet the enrolment requirement for the grant of the Visa, nor any other student visa.
Accordingly, the Tribunal affirmed the decision under review in relation to both applicants.
APPLICATION FOR JUDICIAL REVIEW
The applicants applied for judicial review of the Tribunal’s Decision on 22 June 2018.
The Application contains the following ground for judicial review (without amendment):
1. The decision at AAT tribunal did not grant time to produce the COE.
2. I have the necessary documents to show that I am a genuine student.
3.The decision was made by the tribunal because I could not produce the documents requested on the hearing day at AAT.
4.The decision was made without giving me appropriate time to produce documents relating to my case.
5. 3rd party factors were not considered on the day of decision by AAT.
6. Crucial piece of evidence was not considered.
The applicants did not file any amended Application nor any further evidence in support of their Application as required by the orders dated 20 December 2023.
The hearing took place on 2 April 2024.
The Applicant appeared on behalf of both applicants, with the second applicant’s consent. The Applicant was assisted by an interpreter in the Punjabi and English languages at the hearing.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Grounds 1, 3 and 4
It is convenient to address Grounds 1, 3 and 4 together. All of those grounds submit that the Tribunal erred by not allowing the Applicant additional time to produce his COE.
At the hearing the Applicant submitted that before the Tribunal he sought additional time to provide the COE but the Tribunal refused that request and in so doing fell into error. For the following reasons I reject that submission.
Firstly, there is no evidence before the Court that the Applicant made any request for additional time to provide the COE. Further, at the hearing before the Court the Applicant’s submissions regarding this asserted request were inconsistent. He first submitted that he did not know at the time of the Tribunal hearing that the Tribunal had requested he provide the COE but then said contrary to this submission that he did know that he had to provide the COE to the Tribunal but he could not find it. He then submitted that he requested an additional day to provide the COE but subsequently submitted that he requested an additional hour to provide the COE.
Secondly, even if the Applicant did request additional time to provide the COE as submitted, by the 8 May 2018 Letter, the Applicant was requested to provide “a copy of your current Certificate of Enrolment…as required for the grant of a student visa”. The Applicant did not do so. The hearing was held on 4 June 2018 at which time the Applicant was again asked to provide a copy of his current COE. Accordingly, the Applicant had some 27 days’ notice of the need to provide the COE to the Tribunal and was twice provided an opportunity to do so. In those circumstances, even if the request was made as asserted, I do not consider that the refusal to provide additional time to provide the COE was unreasonable.
Thirdly, the Tribunal records at paragraph [14] of its Decision that the Applicant’s evidence was that:
·he was last enrolled in a Diploma of Building and Construction Management;
·that enrolment was cancelled prior to its end date on 25 June 2017; and
·he was not currently enrolled.
This evidence is consistent with the COE attached to the Applicant’s affidavit dated 22 June 2016 (Della COE), which records that:
·Della International College Pty Ltd [027 16C] (trading as: Della International College Pty Ltd ) is the relevant “Provider”;
·Diploma of Building and Construction (Management) [082044J] as the relevant “Course”;
·a “Course Start Date” of 27 June 2016; and
·a “Course End date” of 25 June 2017.
It is also consistent with the Applicant answering “no” to the first question in the Questionnaire (although it is to be noted that the Applicant said at the hearing that he did not complete the Questionnaire. This is despite it being signed by him and that this answer is inconsistent with the subsequent information as to his course of study).
At the hearing before this Court, the Applicant confirmed that the Della COE was the COE upon which he sought to rely and was the COE he would have provided to the Tribunal had the Tribunal provided additional time to do so. The Della COE confirms that at the time of the hearing before the Tribunal on 4 June 2018 the Applicant did not hold a current COE, the course to which that COE applied having concluded almost one year prior.
In light of the above matters, the granting of further time would have been of no utility. Fourthly, the provision of the Della COE could have had no bearing upon the Tribunal’s Decision. The Della COE did not demonstrate that the Applicant held a current COE, no such document existed at the time of the Tribunal hearing and no amount of time could have changed that circumstance.
Grounds 1, 3 and 4 therefore disclose no jurisdictional error on the Tribunal’s behalf.
Ground 2
By Ground 2 the Applicant asserts that he has the “necessary documents to show that he is a genuine student”. At the hearing the Applicant said that the necessary documents referred to in Ground 2 were documents evidencing his prior studies in Australia. At issue before the Tribunal was whether the Applicant, at the time of the Decision, met the requirements for a student visa: specifically, whether the Applicant at that time was enrolled, or subject to a current letter of enrolment, in an applicable course of study for the purposes of the Regulations. Whether the Applicant was a genuine student was not relevant to the Tribunal’s task. Accordingly, the Tribunal did not, and was not required to, consider whether the Applicant was a genuine student. The “necessary documents” were therefore irrelevant to the Tribunal’s task.
Ground 2 therefore discloses no jurisdictional error on the Tribunal’s behalf.
Grounds 5 and 6
Grounds 5 and 6 are entirely unparticularised. This alone is a sufficient basis to dismiss these grounds: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24].
In relation to Ground 5, as I understand the Applicant’s submissions at the hearing, the Applicant submitted that the applicants’ representative was overseas and that this was the “third party factor” that was not considered by the Tribunal. Further, the Applicant submitted the representative who was overseas had the Della COE in his possession. That submission must be rejected.
Firstly, the applicants were represented at the hearing by a migration agent, Mr Sandhu, who was validly appointed by the applicants on 4 June 2018. I accept that the applicants had previously been represented by another migration agent; however, the evidence before the Court is that the appointment of Mr Sandhu as the applicants’ representative was received by the Tribunal at the hearing. Further, the Tribunal’s Migration Hearing Record records that Mr Sandhu was in attendance at the hearing as the applicants’ representative. Secondly, the Della COE has been addressed above. As already set out, production of the Della COE at the hearing could have had no bearing upon the Tribunal’s Decision.
As to Ground 6, at the hearing the Applicant confirmed that the “crucial piece of evidence” said not to have been considered by the Tribunal was the Della COE. I refer and repeat my comments above in relation to that document.
Grounds 5 and 6 also therefore disclose no jurisdictional error on the Tribunal’s behalf.
Other matters
At the hearing the Applicant submitted that:
(a)he had lived in Australia honestly;
(b)he wants to study to achieve his dreams and goals;
(c)his aim is to become a builder;
(d)his friends have achieved their goals; and
(e)there are people ready to sponsor him.
These matters are irrelevant to the Court’s task at judicial review. The requirement of the Regulations cannot be waived by reference to the Applicant’s personal circumstances: Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322 at [24].
DISPOSITION
For the reasons set out above, the Application discloses no jurisdictional error on the Tribunal’s behalf.
The Application must therefore be dismissed.
The Minister seeks the First and Second Applicants pay their costs in a fixed amount. However, at the hearing the Minister did not address the Court as to costs. Accordingly, I shall order that the applicants pay the Minister’s costs in an amount to be fixed, if not agreed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2024
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