Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 339
•19 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 339
File number(s): ADG 250 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 19 April 2024 Catchwords: MIGRATION –Judicial Review Application – decision of Administrative Appeals Tribunal – citizen of India - refusal of student visa – where no enrolment in a course – where no confirmation of enrolment provided – where different dispositive issue at time of Administrative Appeals Tribunal hearing from time of delegate’s decision – where claims made at judicial review hearing concerning conduct of Administrative Appeals Tribunal hearing – where further hearing convened to address additional claims – whether offer of enrolment made and accepted – where offer of enrolment not accepted and fees not paid – whether bias – whether legal unreasonableness – whether material jurisdictional error Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Migration Act 1958 (Cth) ss 359A, 360, 474, 476, 477
Migration Regulations 1994 (Cth) Sch 2, cl 572.222
Cases cited: Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93
Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 ALR 173
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47
Dhawan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1335
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; (2022) 397 ALR 1; [2022] FCAFC 3
Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482; (2014) 314 ALR 597
Jalla v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 541
Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159; (2023) 300 FCR 106
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1; (2018) 75 AAR 434
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 139 ALD 181; 297 ALR 225
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001); 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SCAA v Minister for Immigration [2002] FCA 668
Singh v Minister for Immigration and Border Protection [2016] FCCA 2343
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578
Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; [2007] 77 ALD 23
WABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286
Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 220
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submission/s: 16 February 2023 Date of hearing: 28 October 2022 and 16 February 2023 Place: Perth(via videolink) Applicant: In person via CISCO Webex Counsel for the First Respondent: Mr Somers via CISCO Webex Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 250 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BARINDER PAL SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
19 APRIL 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 originating application filed 12 July 2019 be dismissed.
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 LUCEV
INTRODUCTION
This application filed in the Adelaide Registry of this Court (then the Federal Circuit Court) on 12 July 2019 relates to a decision of the Administrative Appeals Tribunal (“ Tribunal” and “Second Tribunal Decision” respectively”) made on 5 June 2019 to affirm an 18 June 2014 decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant the applicant, Mr Barinder Pal Singh (“Mr Singh”) a Student (Temporary) (class TU) Vocational and Education Training Sector (subclass 572) visa (“Student Visa”).
In orders made at a directions hearing on 24 May 2022 (“May 2022 Orders”) the Court granted an unopposed application under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) by Mr Singh for an extension of time in which to file an application for judicial review under s 476 of the Migration Act (“Judicial Review Application”).
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 253-257.
BACKGROUND
The background to the matter is as follows:
(a)Mr Singh is a citizen of India who first arrived in Australia in March 2009 as the holder of a student visa: CB 59;
(b)on 21 May 2014 Mr Singh applied for the Student Visa: CB 11-31;
(c)on 18 June 2014 the Delegate’s Decision to refuse the Student Visa was made: CB 53-61;
(d)on 9 July 2014 Mr Singh applied to the Tribunal for review of the Delegate’s Decision (“Tribunal Review Application”): CB 62-63;
(e)on 19 June 2015 the Tribunal affirmed the Delegate’s Decision (“First Tribunal Decision”) to refuse the Student Visa: CB 134-144;
(f)on 15 July 2015 Mr Singh filed an application for judicial review of the First Tribunal Decision in the Adelaide Registry of the Court: CB 145-150 and 151-153;
(g)on 21 September 2016 this Court (then the Federal Circuit Court) constituted by Judge Heffernan published reasons for judgment in Singh v Minister for Immigration and Border Protection [2016] FCCA 2343 finding jurisdictional error in the First Tribunal Decision and made orders remitting the matter to the Tribunal for reconsideration and determination in accordance with the law: CB 154-182;
(h)on 14 March 2019 the Tribunal wrote to Mr Singh’s migration agent (“Migration Agent”) regarding an invitation to comment on or to respond to information (“Invitation to Comment Letter”): CB 191-193. The Invitation to Comment Letter asked Mr Singh to respond to particulars of information as follows at CB 192:
That you are not currently enrolled nor do you hold a current offer of a place in a full time registered course of study.
(i)of the above particulars it was said at CB 192 that they were:
… relevant to the review because if you are not enrolled and do not hold a current offer of a place in a full time registered course of study of the relevant type, that may be the reason or part of the reason for affirming the decision under review.
If we rely on this information in making our decision, we may find that you do not hold a current enrolment or offer of enrolment of the relevant type and therefore do not meet cl572.222 of Schedule 2 to the Migration Regulations 1994.
In that event you will not be entitled to a visa and your application will fail.
The Tribunal notes that the issue considered by the delegate and the AAT at the previous hearing was whether you are a genuine temporary entrant as contemplated by clause 572.223 (1) (a) of schedule 2 to the Migration Act Regulations.
Given the information from PRISMS, a dispositive issue may be whether you are enrolled in a relevant course.
(j)on 27 March 2019 the Migration Agent responded to the Invitation to Comment Letter attaching a letter of offer from Salford College (“Salford College Offer”): CB 194-222. Further detail of the Salford College Offer is set out at [5] below;
(k)on 28 March 2019 the Tribunal wrote to the Migration Agent inviting Mr Singh to attend a Tribunal hearing on 17 April 2019 (“Tribunal Hearing”): CB 224-226;
(l)on 17 April 2019:
(i)Mr Singh failed to attend the Tribunal Hearing: CB 227-229; and
(ii)the Tribunal wrote to Mr Singh attaching notification of the decision to dismiss the Tribunal Review Application (“Tribunal Non-Appearance Decision”): CB 231-234;
(m)on 23 April 2019 Mr Singh wrote to the Tribunal to advise he had contacted the Tribunal on the day of the Tribunal Hearing to request a postponement as he was unwell, and requested that the Tribunal Hearing be re-scheduled: CB 235;
(n)on 17 May 2019 the Tribunal wrote to the Migration Agent:
(i)attaching a notification of the decision to reinstate the Tribunal Review Application: CB 237-239;
(ii)to invite Mr Singh to attend a further Tribunal hearing (“Further Tribunal Hearing”): CB 241-243;
(o)on 5 June 2019:
(i)Mr Singh attended the Further Tribunal Hearing. The Further Tribunal Hearing went for just over 50 minutes: CB 244-46; and
(ii)the Tribunal delivered its decision orally, affirming the Delegate’s Decision to refuse Mr Singh a Student Visa (“Second Tribunal Decision”): CB 258; and
(p)on 7 June 2019 the Second Tribunal Decision was provided to the Migration Agent in written form: CB 251-252 and 253-257.
SALFORD COLLEGE OFFER
The content of the Salford College Offer is relevant to the disposition of this matter, and includes the following:
(a)in the covering letter of offer at CB 196 Salford College:
(i)offers Mr Singh a place as a student “as per the details of the course outlined below” and confirms that it has “reserved a course placement” for Mr Singh “on the entry date specified below”;
(ii)says that the offer “is issued provisionally subject to … payment of fees and charges as below”;
(iii)says that if Mr Singh “would like to take this offer please go through the terms and conditions of this written agreement, your course details and its course fees as well as payment schedule and send us a signed acceptance of this offer”; and
(iv)says that “[t]his is a binding document and you should ensure that you read it thoroughly”;
(b)in the Course Offer and Details:
(i)identifies the course as the Diploma of Leadership and Management (“L & M Diploma”) with a commencement date of 17 June 2019: CB 197;
(ii)sets out an application fee and an administration and materials fee of $250 and $300 respectively, payable on 22 March 2019 and 4 April 2019 respectively: CB 197;
(iii)sets out a term 1 tuition fee payment of $1625 payable by 4 April 2019: CB 197;
(iv)provides that no tuition fees can be made to Salford College before acceptance of the offer: CB 197;
(v)says that “[t]his offer letter is valid for a period of 14 days after the offer date”: CB 198;
(vi)says at CB 198 that:
All offers are issued conditional on availability of places and subject to approval by our Admissions Committee. Applicants can only be guaranteed placement on acceptance, screening process (interview/authenticity of documents), approval and full payment of first semester fees. Responses to offers not received by the due date will be cancelled without further notice, to allow equitable access to other applicants. The letter of offer is not a guarantee of placement. The Letter of Offer cannot be used for any Visa lodgment. Once you receive a CoE (confirmation of enrolment) from Salford College, you need to submit it in order to apply for a visa
(vii)further says at CB 198 that:
To accept this offer, you must complete, sign and return the enclosed “Acceptance of Offer and Terms of Offer as well as Applicants Declaration on the last page” with payment and relevant documents by the due date.
(viii)Under the heading “Your steps” at CB 199 sets out steps to be taken by Mr Singh, including the following (some of which are steps to be taken whilst others are in the nature of the provision of information):
1.Agree to the Terms and Conditions of study as per this Offer, the Terms and Conditions and Acceptance of Offer documents.
…
4.Please ensure your fees are paid as per the offer letter and send the proof of payment to the College. …
5.Any fees that you pay towards the course and is received by Salford College will be reflected on your CoE.
6.Please sign the Acceptance of Offer and send to the administration or send by email to [Salford College admissions email address omitted]
7.Once fees are paid and you meet all the eligibility requirements, you may be issued a CoE (Confirmation-of-Enrolment) which you can use for application for Visa. …
and requests that this be done to the Salford College admissions email address before the letter of offer expiry date.
SECOND TRIBUNAL DECISION
In the Second Tribunal Decision the Tribunal:
(a)set out the claims and considerations before the Tribunal: CB 254 at [9]-[42];
(b)noted that:
(i)Mr Singh came to Australia in 2009 to pursue studies to enable him to run a mechanical workshop and started a “Certificate 3 in Automotive at Pacific International College”: CB 254 at [10];
(ii)Mr Singh said he wanted to do other study including a Diploma of Business to help him with the managerial side of the work: CB 254 at [11];
(iii)Mr Singh’s father was running an automotive business in Dubai and his intention was that once he had finished studying he would go and work with his father, which the Tribunal accepted to be the case: CB 255 at [12];
(iv)Mr Singh said that after he had “done” the Diploma of Business he applied for a work visa to get some experience and that he worked as a mechanic: CB 255 at [13];
(v)Mr Singh’s father had fallen victim to an unscrupulous cousin and lost control of his business meaning that there was no longer an opportunity for Mr Singh to work with his father, and that this happened towards the end of 2013 and early 2014 and that he decided to change his plans, which the Tribunal accepted to be the case: CB 255 at [14]-[15];
(vi)Mr Singh claimed that the Delegate was mistaken when the Delegate found that he had 18 months’ work experience as he had only three months’ work experience (the Tribunal found that this was not an important issue for the purposes of the Tribunal’s review): CB 255 at [16];
(vii)Mr Singh said he had applied for the Student Visa so that he could study management and marketing and be able to run a business: CB 255 at [17];
(viii)Mr Singh said he was surprised when his Student Visa application was refused in 28 days and that he had been expecting a request for further information from the Department: CB 255 at [18];
(ix)Mr Singh was concerned about some of the findings in the Delegate’s Decision and that he applied to the Tribunal for review: CB 255 at [18];
(x)Mr Singh said that while he waited for his matter to go before the Tribunal he decided not to study, although he was free to do so under the conditions of the bridging visa that he was on at the time: CB 255 at [18], and that he had decided to defer study until he had a decision from the Tribunal: CB 255 at [19]-[22];
(xi)Mr Singh continued to do security work that he had been doing at the time he applied for the Student Visa: CB 255 at [19]-[22];
(xii)Mr Singh said that when the Further Tribunal Hearing was approaching it was explained to him that he needed to be studying in order to qualify for the Student Visa: CB 255 at [19]-[22];
(xiii)Mr Singh started a Diploma in Marketing but that because of the “problem” with the Student Visa he was unable to enrol at one of the larger universities which would have been his preference: CB 255 at [23];
(xiv)Mr Singh agreed with the Provider Registration and International Student Management System (“PRISMS”) printout which showed that he finished the Diploma of Marketing on 10 January 2016 and an Advanced Diploma of Marketing on 19 March 2017, and the Tribunal further noted that information had previously been put to Mr Singh under s 359A of the Migration Act: CB 255 at [24];
(xv)when Mr Singh was asked by the Tribunal if he had enrolled in any course since 19 March 2017 Mr Singh said that he had enrolled in an Advanced Diploma of Leadership and Management, but that he had not pursued the course beyond about six weeks because he did not want to keep on with it and did not think it had anything to offer his future, and that he thought it was a waste of money: CB 255 at [25];
(xvi)when Mr Singh was asked by the Tribunal if he is currently enrolled in any course Mr Singh said that he had enrolled as he had been asked to by the Registrar of the Tribunal: CB 256 at [26];
(xvii)the Migration Agent had been sent a letter dated 14 March 2019 advising that the PRISMS record showed that Mr Singh was not enrolled in a full time registered course of study, that this led to the possibility of a finding that Mr Singh did not satisfy the requirements of cl 572.222 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”), that this may be a dispositive issue in the Tribunal Review Application: CB 256 at [27], and that in response to this Mr Singh had said that in response to the Registrar’s enquiry he had enrolled in a course at Salford College: CB 256 at [28];
(xviii)it had confirmed with Mr Singh that he was referring to a L & M Diploma commencing on 17 June 2019, in relation to which he had provided the Salford College Offer: CB 256 at [29];
(xix)it had asked Mr Singh whether he had taken up the Salford College Offer and that Mr Singh replied that he had not, and that Mr Singh said that that he decided to come to the Tribunal and see what the outcome of the First Tribunal Hearing was before enrolling: CB 256 at [30];
(xx)Mr Singh said that he could easily do the L & M Diploma course, but that he would prefer to just fulfil the requirement for the Student Visa and once he had that he could go to TAFE and get a better regarded qualification: CB 256 at [31];
(xxi)it had asked Mr Singh whether there would be anything to confirm that he is currently enrolled in any courses, and Mr Singh said that there would not be and that he did not distinguish between having a letter of enrolment (presumably intending to refer to a letter of offer) and actually being enrolled: CB 256 at [32]-[33];
(xxii)it had confirmed with Mr Singh that there were about $2,175.00 worth of fees that would now be overdue in relation to the L & M Diploma course, and that Mr Singh said that he had not paid them: CB 256 at [34];
(xxiii)Mr Singh had confirmed that he does not have a Certificate of Enrolment (“COE”): CB 256 at [35];
(xxiv)it had put the provisions of cl 572.222 of Sch 2 to the Migration Regulations to Mr Singh and explained to him that if he is not enrolled in any course his Student Visa application must fail: CB 256 at [36];
(xxv)Mr Singh said that the reason for his original refusal was the “Genuine Student requirement” and that he had come to the Further Tribunal Hearing to discuss that: CB 256 at [37];
(xxvi)it had been clearly put to Mr Singh, both in the Invitation to Comment Letter from the Tribunal of 14 March 2019 and at the Further Tribunal Hearing that the lack of enrolment in a course would be a dispositive issue: CB 256 at [37];
(xxvii)Mr Singh said that he could not say much about the lack of enrolment, and the Tribunal noted he made no further comment: CB 256 at [37];
(xxviii)cl 572.222 of Sch 2 to the Migration Regulations requires that an applicant gives to the Minister a COE relating to the applicant undertaking an acceptable course (as defined), save for exceptions in limited circumstances which were not applicable to Mr Singh’s circumstances: CB 256-257 at [38]-[40]; and
(xxix)there was no evidence before the Tribunal that Mr Singh was then enrolled in any applicable course of study, and that therefore cl 572.222 of Sch 2 to the Migration Regulations was not met: CB 257 at [41].
The Tribunal found that the Delegate’s Decision should be affirmed: CB 257 at [44].
JUDICIAL REVIEW APPLICATION
Ground of review
The Judicial Review Application contains the following ground of review:
1.Colleges were not offering me admission hence I could not get COE
Affidavit
Mr Singh filed an affidavit affirmed 12 July 2019 (“Singh Affidavit”) (filed with the Judicial Review Application) in which he said as follows:
1.I have been asked to take admission in any course to prove that I am studying in Australia. And the course I want to do is only available in university or tafe and they refused to give me admission as my VISA is Refused.
I informed Member of tribunal to which he said he understand but said “He has sympathy but cannot help and when I asked whether he wants me to take admissions in any course just to prove I am studying regardless of my interest”, he went quite.
Pre-hearing litigation history
The litigation history of this matter prior to the first day of the hearing on 28 October 2022 is as follows:
(a)the Judicial Review Application and the Singh Affidavit were filed in the Adelaide Registry of the Court (then the Federal Circuit Court) on 12 July 2019;
(b)on 13 August 2019 a Registrar of the Court made consent orders programming the matter for hearing on a date to be fixed and listing the matter for a directions hearing almost two years later on 18 June 2021;
(c)on 3 January 2020 the parties were advised by email from the Adelaide Registry of the Court that the directions hearing on 18 June 2021 was being vacated and that the proceeding was adjourned to a date to be fixed, without any reason being given for the adjournment;
(d)in May 2022 the matter was docketed to the presently presiding Judge in the Perth Registry of the Court;
(e)on 18 May 2022 the parties were emailed by the presiding Judge’s Chambers advising of a directions hearing on 24 May 2022;
(f)on 24 May 2022 the parties attended a directions hearing at which orders were made (“May 2022 Orders”) that:
(i)Mr Singh file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 27 September 2022;
(ii)the Minister file and serve any amended response, affidavits in reply, and an outline of submissions by 10 October 2022; and
(iii)listing the matter for a final hearing by video link on 25 October 2022 at 1.00pm AWST/3.30pm ACDST before the presiding Judge;
(g)Mr Singh did not file any documents (including written submissions) pursuant to the May 2022 Orders;
(h)on 7 October 2022 the Minister filed written submissions pursuant to the May 2022 Orders (“Minister’s Written Submissions”); and
(i)on 19 October 2022 the presiding Judge’s Chambers emailed the parties advising that the hearing date had been changed to 28 October 2022 due to the presiding Judge having to attend a family funeral.
Minister’s Written Submissions
In the Minister’s Written Submissions the Minister submitted that:
(a)ground 1 is without merit as it merely outlines an explanation as to why Mr Singh could not meet the enrolment criterion for the Student Visa in cl 572.222 of Sch 2 to the Migration Regulations, and that it was also contrary to the evidence Mr Singh gave to the Tribunal that he had elected not to enrol in any courses since March 2017 because he thought it was a waste of money: CB 255 at [25];
(b)the Tribunal Decision is plainly correct: in order for the Student Visa to be granted cl 572.222 of Sch 2 to the Migration Regulations requires Mr Singh to provide the Minister with a COE relating to Mr Singh undertaking an acceptable course of study, subject to two exceptions which the Tribunal correctly found to not be relevant to the Student Visa application: CB 256 at [38]-[39] and 257 at [40]. While COEs were provided to the Minister with the Student Visa application, Mr Singh was unable to provide them at the point in time relevant to the Tribunal Review Application – being the date of the Tribunal Decision – because, by Mr Singh’s own admission, he was not enrolled in any acceptable course of study at the relevant time: CB 256 at [39], and this admission necessarily invalidates Mr Singh’s ability to meet the relevant criteria;
(c)the dispositive issue before the Tribunal differed from the dispositive issue before the Delegate. Mr Singh was put on notice of this by way of the Invitation to Comment Letter, to which Mr Singh responded on 27 March 2019 by providing the Salford College Offer: CB 194-222. The Second Tribunal Decision clearly indicates that the Tribunal discussed the dispositive issue before the Tribunal with Mr Singh at the Further Tribunal Hearing: CB 255-256 at [24]-[34]; and
(d)while Mr Singh does not contend to the contrary, there has been no breach of s 360 of the Migration Act.
October 2022 hearing
In oral submissions at the 28 October 2022 hearing (“October 2022 Hearing) Mr Singh submitted: Transcript, October 2022 Hearing, pp 3-5, that:
(a)the Tribunal said it would make “a fresh start” and “[f]orget what happened in the past”, which was in Mr Singh’s opinion wrong;
(b)the Tribunal “missed” that he had a letter of offer (presumably the Salford College Offer), and there were still three days before the course was due to start;
(c)his comment concerning his wasting money by enrolling was made in the context of the significantly higher fees paid by overseas students, and the difference in fees charged by various educational institutions, and the fact that he asserted that he was being required to take admission in a course he did not want to do;
(d)at the Further Tribunal Hearing the Tribunal had asked him questions for about 20 minutes, and had said that the Tribunal “don’t see any reason for you to not have a visa”, but then opened a file and said “Oh, you don’t have a certificate of enrolment”, and then indicated that Mr Singh did not meet the relevant criteria and that there were no further questions; and
(e)the Tribunal’s actions at the Further Tribunal Hearing were “pre-planned”, and that the Second Tribunal Decision was “premade” and “biased”.
In oral submissions at the October 2022 Hearing, Mr Somers, appearing for the Minister, submitted: Transcript, October 2022 Hearing, p 4, that:
(a)the Minister relied on the Minister’s Written Submissions;
(b)Mr Singh was required to have a COE;
(c)the evidence the Tribunal had before it was the same evidence that was before the Delegate, and the Second Tribunal Decision was correct and one the Tribunal was bound to make under the Migration Regulations; and
(d)the Tribunal notified Mr Singh of the dispositive issue prior to the Further Tribunal Hearing: CB 190-193.
November 2022 directions hearing
Having reflected on the submissions made at the October 2022 Hearing, the Court relisted the matter for a directions hearing on 2 November 2022 (“November 2022 Directions Hearing”).
At the November 2022 Directions Hearing the Court indicated: Transcript, November 2022 Directions Hearing, p 2, that:
(a)it had reflected on the submissions made by Mr Singh at the October 2022 Hearing, and that a number of those submissions contained assertions about what occurred before the Further Tribunal Hearing, but none of what occurred was on affidavit or before the Court by way of transcript or audio recording;
(b)Mr Singh’s submissions were particularly context dependent, and that Mr Singh, as a self-represented litigant, may not have appreciated the need to properly put his case, in circumstances where his case was clearly dependent upon what occurred at the Further Tribunal Hearing;
(c)the Court proposed to give Mr Singh an opportunity to put before it either one or both of the transcript or the audio recording of the Further Tribunal Hearing, notwithstanding that it was cognisant of the fact that Mr Singh had earlier had an opportunity by reason of the May 2022 Orders to file affidavits and submissions but had failed to do so; and
(d)it was a matter for Mr Singh as to whether he filed such evidence, but that if he did not then the best available evidence as to what occurred at the Further Tribunal Hearing would be the Second Tribunal Decision (and the Court referred to NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 and Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81).
The Court therefore made orders (“November 2022 Orders”) at the November 2022 Directions Hearing as follows:
1. The matter be removed from the list of cases reserved for judgment.
2. The Applicant file and serve:
(a)either or both of a transcript or audio recording of the hearing before the Second Respondent on 5 June 2019 (“Transcript”); and
(b)a written outline of submissions in relation to any contentions arising from the Transcript,
by 14 December 2022.
3. The First Respondent file and serve:
(a) any affidavits in reply; and
(b) a written outline of submissions,
by 25 January 2023.
4.The matter be listed for further hearing at 10.00am AWST/12:30pm ACDT on 16 February 2023 by videolink for [sic] Judge Lucev.
5. Costs reserved.
6. Liberty to apply on 24 hours’ notice.
Mr Singh’s written submissions and audio recording of the Further Tribunal Hearing
Mr Singh provided a copy of the audio recording of the Further Tribunal Hearing (“Further Tribunal Hearing Audio Recording”) to the Court by email on 12 February 2023. Mr Singh filed written submissions (“Mr Singh’s Written Submissions”) on 13 February 2023.
Mr Singh’s Written Submissions
Mr Singh’s Written Submissions were relevantly as follows:
1.As it happened in first AAT hearing same happened in hearing on 5th June 2019, I tried to explain reasons for why i have applied for review with AAT and AAT member had their own questions planned to be asked, At 4minute 30 seconds I explained the reason for the first extension of the visa which was one of the three reasons the delegate gave for refusing the visa in 2014 by saying I have already extended my student visa in past, that time our visa was extended by Australian government as the college I was studying in Adelaide Pacific International College was shut down for fraudulent activities. Moreover, the member kept repeating his questions.
2.As mentioned in submission by First respondent
“Ground 1, the Applicant’s sole ground of judicial review is, in the Minister’s respectful submission, without merit. It merely outlines to the Court an explanation for why the applicant could not meet the enrolment criterion for a student visa in clause 572.222 of the Regulations. This ground is also contrary to the evidence the Applicant gave to the Tribunal that he had elected not to enrol in any courses since March 2017 because he thought it was a waste of money: CB 255 [25].”
This statement that “ i thought it was waste of many ” has been put in a way in which i strongly believe is misleading, i explained Member of tribune at 33rd minute of my hearing on 5th June 2019 and stated that I have been categorized as non genuine temporary entrant and in refusal of my student visa in 2014 and no high regarded college like TAFE and university of Adelaide and university of south Australia and multiple other Australian universities are ready to accept my application and doing these 6 months course continuously till i get student visa, it is costing money and that money spending on these courses is what i meant was wasting money till i get visa and be able to get admission in the field in which i would like to study.
3.To further prove i would like to show a few links of universities, please copy paste these links to check GTE( genuine temporary entrant) requirement to get admissions in college. It clearly states non genuine temporary entrants will not be given entrance, which means c can not be fulfilled unless i go against my interest and enrol in something that i do not wish to study. Below are the links which prove GTE requirements set by high regarded Australian colleges.
a. align="left">b. /visa-gteflyer.pdf
c.
d. believe it is harassment not knowing that colleges are not enrolling me as I have been categorised as a non genuine temporary entrant because I tried to extend my student visa and expecting me to get admission.
5.Also in my particular case I have been asked to keep studying in a field I do not wish to study just to fulfill the requirement to get a visa regardless of my interest in that course just to satisfy a Member of AAT. Being said that I did not mean that i do not wish to study. I would like to study at Tafe or University of South Australia and would have been a Registered Nurse by now as few of my friends are now. Some of them are senior mental health nurses at well known hospitals in Adelaide. In addition, Also the course does not start till 17 June 2019 I had time to pay fees and enrol refer to 45 minute of audio recording.
6.Delay and time these decisions have taken, has taken 8 years of my life and with no solid career I was able to build because of AAT's biased decision as on 19 june 2015 and later at 5 June 2019 giving decision on not knowing the fact that Non genuine temporary entrants are not allowed admissions now it is December 2022.
7.I have explained it to member the reason of why i said wasting money but they exaggerated it and used it to mislead or hide the fact that if a decision takes almost eight years and if student is not allowed to take admission in college of his choice how can member force or expect student to be still studying any course which he or she does not intend to(meaning want to).
8.If I was given a chance by tafe and if I did not fail genuine temporary entrant criteria( because i do not have a valid visa) I would have made a career by now.
9.As I said, the member kept repeating his question so that recording will only revolve around, I am not studying to portrait in the way to prove his decision is right. Refer to statement of decision point number 19, 21.
10.If respectful judge listen to audio recording of AAT member I have mentioned multiple times that I have been categorised Non genuine temporary entrant and because of that colleges and universities are refusing to give me admission he did not mention GTE(genuine temporary entrant) in his statement of decision at all instead he wrote i said there is something wrong with my visa, I question how come a member of AAT and his representative attorney Mr. Somers, does not know about GTE implementation. Refer to point number 23 of the statement of decision and reasons.
11.AAT member decides my fate but does not know about what is happening out in universities or colleges about implementation of GTE or it has been ignored to portray me as wrong or defend delegates' decision by any means. In my opinion that is highly unfair.
12.Also is it not discrimnation? If extending Visa after student visa is considered Non genuine temporary entrant then every student who has been granted permanent residency of australia should have their visa refused on grounds of non genuine temporary entrant.
13.Why a phrase “waste of money ” been picked and portrayed in such a way to prove that their decision is right or did they have nothing else to prove that they have made up their mind to defend delegates decision and visa will not be granted as delegate from home affairs decision will be final from June 2014 regardless of if I am being right and genuine. Refer to the submission made by AAT member and Mr. Somers.
14.Member of AAT review had pre decided the decision unless he knew every clause by heart that he straight away said I breached clause 572.222.
15.Why original audio recording which is in WAV format never plays and changed format of audio recording which is mp3 format that is also sent by Tribunal officer only plays.
Further Tribunal Hearing Audio Recording
The Further Tribunal Hearing Audio Recording was marked as Exhibit 2 at hearing. The Court notes that Mr Singh requested that the Court consider the following “time stamps” in the Further Tribunal Hearing Audio Recording:
(a)from minute 26 and 45 seconds to minute 29;
(b)from minute 33 to minute 37; and
(c)from minute 46 and 40 seconds to minute 49 and 50 seconds.
The Court has listened carefully to the whole of the Further Tribunal Hearing Audio Recording numerous times and has prepared the summary of the Further Tribunal Hearing which appears immediately below. The Court has paid attention to the three “timestamps” referred to by Mr Singh. In summary, the Further Tribunal Hearing Audio Recording records that:
(a)within the first three minutes, and prior to Mr Singh giving evidence, the Tribunal explained to Mr Singh that it was undertaking a fresh review of the Delegate’s Decision, and it referred to this as a “fresh start”;
(b)for the next 19 minutes the Tribunal obtains evidence from Mr Singh as to his visa background and work history in Australia from 2009 to 2014 prior to his making the Student Visa application;
(c)at minutes 22-24 Mr Singh says that he was not studying at the time he applied for the Student Visa, but that he had a bridging visa with full work and study rights and that he was working full time for a security contractor at a hospital;
(d)at minutes 24-26 evidence was given by Mr Singh concerning the refusal of his Student Visa application by the Delegate and his making the Tribunal Review Application resulting in the First Tribunal Decision;
(e)at minutes 26-30 Mr Singh gave evidence that:
(i)because he had been held to be a non-genuine temporary entrant he could only obtain enrolments in courses at small colleges and that TAFE and the universities would not accept him as a student; and
(ii)before the First Tribunal Hearing he enrolled in a Diploma of Marketing, which he finished, but which he did because he had no choice, and which was not useful to him as he wished to enrol in a course at TAFE or university;
(f)at minutes 30-31 the Tribunal discussed Mr Singh’s PRISMS records with Mr Singh, and the Tribunal observed that there was “not anything controversial here”;
(g)at minutes 31-34 Mr Singh gave evidence that:
(i)he did an Advanced Diploma of Marketing from June 2016 to March 2017; and
(ii)after March 2017 he enrolled in an Advanced Diploma of Leadership and Management for about six weeks, but did not continue it because he “wasn’t sure what was going on”, and he did not continue with it because he got impatient and wanted to do something better than all the diplomas he was doing which he did not think had anything to offer his future, he was wasting money and not getting where he wanted to go, which was TAFE or a bachelors degree;
(h)at minutes 34-35 Mr Singh was asked by the Tribunal whether he was enrolled now, and he said he did enrol again as he had been asked why he was not enrolled, but that he did not want to do what he was enrolled in at Salford College because he preferred to go to TAFE or university and not be part of these small colleges, and he stopped going to college when he was again refused admission to TAFE because of the restriction on his visa;
(i)at minute 36 Mr Singh gave evidence that he had not taken up the Salford College Offer because he had decided to await the outcome of the Tribunal Hearing (which gave rise to the Tribunal Non-Appearance Decision);
(j)at minutes 37-39:
(i)Mr Singh gave evidence that “at the moment” he did not have a COE for any course;
(ii)the Tribunal said that Mr Singh’s lack of enrolment was a “problem”, and for the Tribunal to proceed to consider whether Mr Singh was a genuine temporary entrant Mr Singh needed to “satisfy certain criteria” at the time of the Tribunal Decision and that one of those was that he was enrolled in a course, and that he was not enrolled; and
(iii)Mr Singh responded by saying that he could still do the course the subject of the Salford College Offer but that he wanted to talk to the Tribunal first, and if the Tribunal allowed him the Student Visa he could go to TAFE and do something there, because the small colleges do not do adequate courses;
(k)at minutes 39-40:
(i)the Tribunal advised Mr Singh that the Student Visa conditions under cl 572.222 of Sch 2 to the Migration Regulations provided that Mr Singh had to provide a COE at the time the Tribunal Decision was made, and said that Mr Singh did not have a COE and that he had told the Tribunal that he was not enrolled in any course; and
(ii)Mr Singh referred to the Salford College Offer and whether it could be considered a COE, and said he “was not studying at the moment” but that he was “enrolled at Salford” and that if he was granted his Student Visa he would continue to study;
(l)at minutes 40-41 the Tribunal asks whether Mr Singh has paid Salford College any money, and Mr Singh said that he had paid the registration fees but not the fees for the course, and said he had paid the “initial amount” which he thought was $100;
(m)at minutes 41-42 there is a significant period where it is evident that the Tribunal was turning pages in a file or document;
(n)at minutes 42-43 Mr Singh says that if he had known that it was a condition that he had to be enrolled he would have done that, and asked Salford College to enrol him in the April 2019 entry, and not to have to wait until June 2019 to be enrolled;
(o)at minutes 43-45 the Tribunal again spends time turning pages in a file or document and then, in relation to the L & M Diploma course:
(i)said “that it says here that the application fee is $250”, and Mr Singh said he has not paid the $250;
(ii)said “that the administration and material fees are $300”, and Mr Singh said that he has not paid that amount;
(iii)said “that term 1 fees are $1666”, and Mr Singh said that that was to be paid on the day that he started the course;
(iv)said that the application fee was to be paid by 22 March 2019, and Mr Singh said again he had not paid that fee;
(v)said that administration and material fees were to be paid by 4 April 2019, in response to which Mr Singh said that that was for the April 2019 course intake and that he had a choice as to whether he took the June 2019 course intake; and
(vi)said that it gave a commencement date of 17 June 2019, to which Mr Singh did not respond;
(p)at minute 46:
(i)the Tribunal said that it was “not satisfied that you are enrolled in anything and that … [the Tribunal’s] decision has to be to refuse your application”;
(ii)Mr Singh said to the Tribunal “please don’t do it [make the decision to refuse the Student Visa application] and that “I still have the 17th of the June [2019] as the date so its been given to me before even this date was postponed, and so it was not something I have planned or asked them to give me 17th of June [2019] as the date”
(q)at minutes 47-48 the Tribunal said that the conditions set out at cl 572.22 [of Sch 2 to the Migration Regulations] applicable to the form of the application made by Mr Singh said that an applicant has to give the Minister a COE, and “[y]ou haven’t got one, have you?” to which Mr Singh responded “[u]nderstand” and went on to say that the only thing he came to the Tribunal to discuss was a discrepancy in a finding as to the length of his work experience and that his visa had previously been extended because the college had been shut down;
(r)at minute 49 the Tribunal said that without a COE from Mr Singh it was unable to help him, and that although it had some sympathy for Mr Singh’s situation it was going to have to refuse his Student Visa application, that it would prepare written reasons for the Tribunal Decision, but the issue here was Mr Singh’s enrolment, and he was not enrolled, and therefore his Student Visa application was refused; and
(s)at minutes 49-51 Mr Singh said that the Tribunal Decision “revolved around the same thing this time as last time as to why … [he] was not enrolled” and he had come to discuss the Delegate’s Decision about his work experience and “not that I am not studying”, and added that he did not read all “the clauses and everything” and that he “did not read them in depth”, to which the Tribunal responded that he understood, “but the law is quite clear” and the Student Visa application was refused.
The Court notes that:
(a)it is not apparent from the Further Tribunal Hearing Audio Recording that the Tribunal ever said “don’t see any reason for you to not have a visa”, or words to that effect, at the Further Tribunal Hearing, as was asserted by Mr Singh in his oral submissions at the October 2022 Hearing; and
(b)to the extent that Mr Singh submits that the Further Tribunal Hearing Audio Recording plays in one format and not another: Mr Singh’s Written Submissions at [15] at [18] above, that submission is not a basis for finding jurisdictional error in the Tribunal Decision in the absence of any evidence that that is actually the case and, even if it be the case, that there is anything untoward in relation thereto. Having listened numerous times to the Further Tribunal Hearing Audio Recording (tendered by Mr Singh) it is not obvious that it is anything other than a complete audio recording of the Further Tribunal Hearing Audio Recording.
February 2023 Hearing
Mr Singh’s Oral Submissions
At the February 2023 Hearing Mr Singh made oral submissions: Transcript, February 2023 Hearing, pp 2-4, that:
(a)when the Tribunal called him a non-genuine temporary entrant and Mr Singh was telling the Tribunal the reason colleges were not giving him admission the Tribunal told him that there was “something wrong” with his “visa”;
(b)as to [23] of the Second Tribunal Decision (at CB 255) where the Tribunal found as follows:
He said that he started a Diploma in Marketing but that because of the problem with his visa he was unable to enrol at one of the larger Universities which would have been his preference
that the Tribunal calls him a non-genuine temporary entrant but ignores the fact that, because of that reason, Mr Singh could not obtain admission to colleges;
(c)the colleges were not giving Mr Singh admission and would not give him a COE: he had been studying in the small international colleges for the past four years and he informed the Tribunal that these were courses he did not wish to do, and that the course he wants to do is within the TAFE or universities and they were not admitting him because the Tribunal has declared him a non-genuine temporary entrant, to which the Tribunal did not answer;
(d)Mr Singh had explained to the Tribunal that he was trying to review the three reasons in the Delegate’s Decision and that on reviewing those, the three reasons were wrong, but every time he went to the Tribunal the Tribunal found something which is wrong at that same moment to pick on, and not to review what Mr Singh was asking them to review;
(e)getting a COE was not possible; and
(f)he asked the Tribunal if the Tribunal wanted him to study in TAFE in nursing to be a mental health nurse or if the Tribunal wanted him to keep on studying these small courses and asked if the Tribunal could make the decision to grant him the Student Visa, and that by that time he had already finished four small diploma courses just so that he could keep waiting for the dates of the respective Tribunal hearings.
Minister’s oral submissions
The Minister did not file any documents pursuant to the November 2022 Orders, but at the hearing on 16 February 2023 Mr Somers made oral submissions on behalf of the Minister: Transcript, February 2023 Hearing, p 4, that:
(a)it appeared Mr Singh was making two points, the first being that either he was not able to obtain a COE in a course of study that was suitable to him, and the second being that he was not able to obtain a COE at all;
(b)regardless of which point was being made by Mr Singh, the fact remained that the Tribunal was bound to find and affirm the Delegate’s Decision on the basis that there was no COE;
(c)the inability to obtain a COE is not an exception to the requirement to obtain a COE;
(d)the second point seemed to be in respect of the Tribunal not addressing the Genuine Temporary Entrant criteria but as was already submitted by the Minister at the October 2022 Hearing the Tribunal had a threshold and a separate condition to determine – whether or not there was a COE;
(e)there was no COE so the Tribunal did not need to go on to determine the Genuine Temporary Entrant criterion and so it did not do so; and
(f)Mr Singh was put on notice that different criteria applied before the Tribunal, and so procedural fairness had been afforded in that regard.
CONSIDERATION
Requirement for material jurisdictional error
For present purposes it suffices to observe that the Court may set aside the Second Tribunal Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. To constitute jurisdictional error an error must be material in the requisite sense explained in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
In this matter the Court’s role is to ascertain whether there is material jurisdictional error in the Second Tribunal Decision. The Court’s role is not to review the merits of the Second Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1.
The onus is upon Mr Singh to establish material jurisdictional error in the Second Tribunal Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 ALR 173 at [48] per Griffiths, White and Bromwich JJ.
Ground 1
Ground 1 simply submits that there were no colleges that were offering Mr Singh admission or enrolment, and that he could therefore not obtain a COE to provide to the Tribunal, as requested in the Invitation to Comment Letter. Mr Singh’s Affidavit takes the matter no further than Ground 1. It is plain in this case that:
(a)Mr Singh did not have a COE at the time of the Second Tribunal Decision; and
(b)the Tribunal:
(i)asked Mr Singh whether there would be anything to confirm that Mr Singh is currently enrolled in any courses;
(ii)ascertained from Mr Singh and understood that Mr Singh did not have a COE at the time of the Second Tribunal Decision;
(iii)understood the relevant criteria in cl 572.222 of Sch 2 to the Migration Regulations;
(iv)noted that save for two exceptions in limited circumstances, cl 572.222 of Sch 2 to the Migration Regulations requires that an applicant give to the Minister a COE relating to the applicant undertaking an “acceptable course”; and
(v)observed that the exceptions did not apply to Mr Singh for the reasons set out in the Second Tribunal Decision: CB 256 at [38]-[39].
The applicable criteria in cl 572.222 of Sch 2 to the Migration Regulations required Mr Singh to provide evidence that he had a COE at the time of the Second Tribunal Decision showing that he was enrolled in a course of study.
It is indisputable on the evidence that Mr Singh did not provide a COE to the Tribunal at the time of the Second Tribunal Decision. Mr Singh admitted that to be the case before the Tribunal: Further Tribunal Hearing Audio Recording, minutes 36-37.
To the extent that Mr Singh argued that the Salford College Offer constituted a COE it did not. That is because in its terms the Salford College Offer makes it clear that the issuance of a COE is contingent upon other events. For Salford College to issue a COE it was necessary under the terms of the Salford College Offer for Mr Singh:
(a)to accept it by a date 14 days from the date it was offered, which was 21 March 2019, so acceptance by 4 April 2019, and Mr Singh had not accepted it by the required deadline of 4 April 2019, or at all;
(b)to pay the various fees by their due date, namely 21 March 2019 for the application fees, and 4 April 2019 for the administration and materials fee and the term 1 tuition fees, which he had not done by the due dates, or at all;
(c)to return the Acceptance of Offer form, and there was no evidence that he did so,
and there was therefore no basis under the terms of the Salford College Offer for Salford College to issue a COE to Mr Singh. The failure to fulfill the conditions in the Salford College Offer meant that it had expired: see [5(a)(v)-(viii)] above, and (a), (b) and (c) of this paragraph.
It follows that there was no error in the Tribunal’s factual finding that Mr Singh did not have a current COE and was therefore not enrolled in a course of study.
There are many, many judgments of the federal courts dealing with applicants for a student visa without a COE at the time of decision by the Tribunal, and who therefore failed to meet the relevant criteria in the Migration Regulations to be enrolled in a course of study. Reference to just a few of these judgments will suffice for present purposes.
In Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350 (“Singh – FCA 2019”) at [29]-[31] per Banks-Smith J the Federal Court of Australia observed that:
29.Before me, the appellant said that he did not have a certificate of enrolment because he wished to await the grant of a visa before incurring the costs of enrolment. He also said he wanted a second chance to continue his studies, as he came to Australia for that purpose.
30.Whilst I can well understand the appellant’s desire to continue studies in Australia, the matters he has raised do not comprise a basis for finding appellable error on the part of the primary judge.
31.It is clear that the Tribunal properly understood its task. It ascertained that the appellant had failed to provide evidence of enrolment at the date of its decision and applied the relevant definition, as required for the purpose of considering whether the criterion for the subclass 500 visa was met. It applied the definition correctly. Accordingly, no jurisdictional error on the Tribunal’s part is disclosed and the primary judge did not err in dismissing the review application.
In Dhawan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1335 (“Dhawan”) at [58] per Judge Kendall (followed in Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 220 (“Wangchuk”) at [18]-[20] per Judge Lucev) this Court (the then Federal Circuit Court of Australia) observed that:
... it was not relevant why the applicant was not enrolled. It was only relevant whether he was enrolled. Hence, the fact that he was not allowed an opportunity to explain “why” is of no consequence.
Mr Singh also argued that because he did not have a Student Visa he was unable to obtain a COE. That argument fails on the facts because it is evident that Mr Singh may have obtained a COE if he had fulfilled the conditions of the Salford College Offer, but he did not do so. The argument also fails on the law. In Singh-FCA 2019 the appellant had been refused a student visa because he had no COE and he said he wished to await the grant of a student visa before enrolling: Singh-FCA 2019 at [29] per Banks-Smith J, and in that respect, there are some similarities between that case and this case. The Federal Court held that the Tribunal correctly applied the relevant definition to the fact that there was no COE for the purpose of finding that the student visa criterion was not met, and there was therefore no jurisdictional error in the Tribunal decision: Singh-FCA 2019 at [31] per Banks-Smith J. In Jalla v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 541 (“Jalla”) at [21] per Judge Laing this Court said that:
[21]At the hearing of this matter, the applicant additionally submitted that he had been unable to obtain a COE because he did not have a visa. He submitted that this placed him in an untenable position, as he was unable to obtain a visa without a COE and the universities that he approached would not give him a COE without a visa. However, even if this was the case, the Tribunal had no power to waive the requirements of cl 500.211. If the applicant was unable to meet those requirements, the Tribunal was obliged to refuse his application for the Visa.
and, as the Court has otherwise observed: Dhawan at [58] per Judge Kendall and Wangchuk at [18]-[20] per Judge Lucev, what matters, for the purposes of meeting the relevant criteria, is whether Mr Singh had a COE, not why he did not have one.
Mr Singh did not provide any evidence to the Tribunal that he was enrolled in a course of study at the time of the Second Tribunal Decision. There was therefore no evidence that at the time of the Second Tribunal Decision Mr Singh met the relevant criteria in cl 572.222 of Sch 2 to the Migration Regulations, which required Mr Singh to have a COE as a consequence of being enrolled in a course of study. Consequently, the Tribunal did not make an error in determining that Mr Singh failed to meet the relevant criteria. The Second Tribunal Decision affirming the Delegate’s Decision to refuse Mr Singh the Student Visa as Mr Singh did not meet the relevant criteria was the only finding open to the Tribunal in respect to whether Mr Singh met the criteria at the time of the Second Tribunal Decision: Singh – FCA 2019 at [29]-[31] per Banks-Smith J; Dhawan at [58] per Judge Kendall; Wangchuk at [18]-[20] per Judge Lucev. Nothing put by Mr Singh demonstrates jurisdictional error in the Second Tribunal Decision in this respect.
Mr Singh argued that he wanted the Tribunal to listen to and deal with his explanations as to why the Delegate’s Decision was, in Mr Singh’s view, wrong in relation to its conclusions on whether he was a genuine temporary entrant and as to the length of his work experience, and why Mr Singh had made a comment about it being a waste of money to enrol in a further non-TAFE or non-university course, namely because he wanted to enrol in a TAFE or university course not another college course. Those issues were not, however, the dispositive issues by the time the matter came before the Tribunal and were therefore irrelevant in the absence of a COE. As the Tribunal pointed out to Mr Singh in the Invitation to Comment Letter, if he was not enrolled in a course of study the Student Visa application may fail and that that may be a dispositive issue: CB 192.
Having regard to the matters set out at [27]-[37] above, the Court finds there is no jurisdictional error established by Ground 1.
Bias
Mr Singh raised the issue of bias by asserting in his oral submissions at the October 2022 Hearing and Mr Singh’s Written Submissions at [14] (at [18] above) that the Tribunal’s actions at the Further Tribunal Hearing were “pre-planned”, and that the Second Tribunal Decision was “premade” and “biased”. Albeit that the assertion was not repeated in Mr Singh’s oral submissions at the February 2023 Hearing consideration of the assertion is still necessary.
Bias is a serious allegation that must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001); 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J; Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [18] per North and Lander JJ. No inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal Decision: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; [2007] 77 ALD 23 at [21] per Kenny J; SCAA v Minister for Immigration [2002] FCA 668 at [38] per von Doussa J; WABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3] per Hill J.
Mr Singh must identify a factor or factors which might have led the Tribunal to decide the review application otherwise than by independently and impartially evaluating the merits, and articulate how it is that the Tribunal Decision did not make an independent and impartial evaluation of the merits of the review application: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47 (“CNY17”) at [17] and [21] per Kiefel CJ and Gageler J and [57] per Nettle and Gordon JJ. This Court cannot reach a conclusion that there is an apprehension of bias through the construct of the hypothetical, fair minded lay observer “lightly”: CNY17 at [56] per Nettle and Gordon JJ.
In considering this matter the hypothetical fair-minded lay observer properly informed of the facts would be entitled to observe that:
(a)the Tribunal would know and have regard to the law as it relevantly applied at the time it was considering the Second Tribunal Decision;
(b)the law as it stood confirmed the Tribunal’s view that Mr Singh’s did not meet the criteria for the grant of the Student Visa; and
(c)the Tribunal’s statutory objectives as set out in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) require that the Tribunal in carrying out its functions must pursue the objective of providing a mechanism of review that is “fair, just, economical, informal and quick”.
The Court has had the advantage of listening, numerous times, to the Further Tribunal Hearing Audio Recording, from which it is evident that the Tribunal carefully and methodically established the relevant facts relating to Mr Singh’s study and personal circumstances, and having done so, then established that Mr Singh was not enrolled in a course of study and did not have a COE. The Tribunal explained the relevant criteria (which as a specialist tribunal it can be taken to either know or be capable of looking up) to Mr Singh, and then applied that criteria to arrive at its conclusion to affirm the Delegate’s Decision to refuse Mr Singh’s Student Visa application. In addition to being careful and methodical in its approach, the Tribunal acted quietly and calmly throughout. Nothing in the Tribunal’s conduct would suggest that it acted with bias, either actual or apprehended.
In the foregoing circumstances there is no possibility that the hypothetical, fair minded lay observer would consider that the Second Tribunal Decision was affected by a lack of independence and impartiality, and there is no, or no sufficient, evidence to sustain a finding that the Tribunal acted with pre-determination or was not open to persuasion.
It follows from the foregoing that the allegation of bias is not established on the material before the Court and does not establish jurisdictional error in the Second Tribunal Decision.
Legal unreasonableness
Although neither Mr Singh nor the Minister raised legal unreasonableness as an issue, it is necessary to consider whether it might arise in this case: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [26] per Judge Lucev.
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, in an administrative decision may constitute jurisdictional error: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 139 ALD 181; 297 ALR 225 (“Li”) at [63]-[76] per Hayne, Kiefel and Bell JJ. Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ. Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; (2022) 397 ALR 1; [2022] FCAFC 3 at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited).
The relevant principles in relation to legal unreasonableness were conveniently summarised by the Federal Court in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J and include the following:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) …
(h) …
(i) …
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
It is worth stressing the last point made in the above quote from Pandey at [41(j)] per Wigney J, citing Li at [113] per Gageler J, concerning the test for unreasonableness being stringent, as it is a point often lost in the gaggle and consequent grind of migration cases which come to this Court and then on appeal to the Federal Court. It is a point more recently reinforced in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1; (2018) 75 AAR 434 at [11] per Kiefel CJ and Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578 at [65] per Rares, Anastassiou and Stewart JJ.
By reason of the matters set out at [5] and [30] above, Mr Singh had the opportunity to obtain a current COE, and could have obtained a COE had he fulfilled the conditions for the Salford College Offer by the due dates. Mr Singh chose not to do so, and rather made a voluntary decision not to study whilst awaiting the outcome of his Student Visa application: Further Tribunal Hearing Audio Recording, minute 36. It is apparent from the Tribunal’s questioning of Mr Singh concerning non-payment of the required fees: Further Tribunal Hearing Audio Recording, minutes 43-45, that the Tribunal understood that at least one of the pre-conditions for acceptance of the Salford College Offer had not been met. Further, the Salford College Offer exhorts Mr Singh to “ensure that you read it thoroughly” and Mr Singh conceded at the Further Tribunal Hearing that he “did not read” documents “in depth”: Further Tribunal Hearing Audio Recording, minute 50. Had Mr Singh read the Salford College Offer in depth he might have realised he needed to accept that offer (and fulfill other conditions) before a COE would issue, and that his assertion to the Tribunal (and subsequently to this Court) that it was still open to him to accept the Salford College Offer until 17 June 2019 was wrong.
It was not for the Tribunal to ensure that Mr Singh made the best of the opportunity that had been afforded to him by the Delegate and the Tribunal. In Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383 (“Sullivan”); ALR at 343 per Deane J the Federal Court observed that:
… it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.
In Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482; (2014) 314 ALR 597 (“Jagroop”) at [32] per Dowsett, Murphy and White JJ the Full Court of the Federal Court having cited the above passage from Sullivan observed, at [33] per Dowsett, Murphy and White JJ, that:
A reasonable opportunity is not synonymous with “every possible opportunity” or even “every opportunity”. Whether or not an applicant has been provided with the requisite opportunity is to be determined objectively, having regard to all the relevant circumstances.
The paragraphs cited from Jagroop were recently endorsed by another Full Court of the Federal Court in Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159; (2023) 300 FCR 106 at [17] per Rares, Bromwich and Raper JJ.
In the circumstances set out above, it cannot be said that the Tribunal acted unreasonably in relation to the opportunities that it gave Mr Singh to provide the Tribunal with a current COE.
For reasons set out at [30] and [49] above the Salford College Offer had expired. Otherwise, Mr Singh did not have a current offer of enrolment at any educational institution. This is therefore not a case like Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93 where unreasonableness was found in circumstances where the applicant had an unconditional offer of enrolment in a course which was still open for acceptance at the time the Tribunal made an ex tempore decision affirming a delegate’s refusal of the student visa application.
Having regard to the circumstances set out above the Court is of the view that it cannot be said that no reasonable decision-maker would not have made the decision the Tribunal made in this case: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248 at [131] per Crennan and Bell JJ. Put differently, the Second Tribunal Decision was within the scope of the decisional freedom afforded to administrative decision-makers on discretionary matters: Li at [28] per French CJ; Pandey at [52] per Wigney J.
It follows from the foregoing that unreasonableness cannot be established on the material before the Court and that there is no jurisdictional error in the Second Tribunal Decision on the basis of unreasonableness.
Jurisdictional error otherwise
The Court is cognisant that Mr Singh was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB at [100] and [112] per Mortimer J; Ludgero at [26] per Judge Lucev. It was this obligation that led the Court to:
(a)provide Mr Singh with the opportunity to:
(i)make Mr Singh’s Written Submissions; and
(ii)provide to the Court the Further Tribunal Hearing Audio Recording;
(b)have the February 2023 Hearing;
(c)consider matters arising from the Further Tribunal Hearing Audio Recording; and
(d)consider the issue of unreasonableness at [46]-[57] above.
In the Court’s view, there is, however, nothing otherwise in the materials before it which might give rise to an argument that the Tribunal made a jurisdictional error in the Second Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that Mr Singh has failed to establish that the Second Tribunal Decision is affected by material jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 12 July 2019.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 19 April 2024
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