Singh v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 972

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 972

File number:

MLG 1372 of 2018

Judgment of:

JUDGE CHAMPION

Date of judgment:

30 October 2023 

Catchwords:

MIGRATION – Student visa – Decision of the Administrative Appeals Tribunal – Whether the Applicant satisfied the Genuine Temporary Entrant criteria under cl. 500.212 (a) of Schedule 2 of the Migration Regulations – Whether Tribunal had regard to Ministerial Direction No. 69 – Application dismissed

Legislation:

Migration Act 1958 (Cth) ss. 65, 360, 360A, 499

Migration Regulations 1994 (Cth) Schedule 2, cl. 500.212

Cases cited:

Kaur v Minister for Home Affairs [2019] FCA 2026

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 215 CLR 1; [2003] HCA 6

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

19

Date of last submissions:

30 October 2023

Date of hearing:

30 October 2023

Place:

Melbourne

Applicant:

In person

Solicitor for the Respondents:

Clayton Utz

ORDERS

MLG 1372 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

RANVIR SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	30 OCTOBER 2023

THE COURT ORDERS THAT:

1.The application is dismissed. 

2.The Applicant pay the First Respondent’s costs fixed in the amount of $7,328.

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).

EX TEMPORE REASONS FOR JUDGMENT
Revised from Transcript

JUDGE CHAMPION:

INTRODUCTION

1. On 18 May 2018, Mr Ranvir Singh (Applicant) applied for judicial review of a decision of the Second Respondent (Tribunal), dated 20 April 2018.  The Tribunal had affirmed a decision of a delegate of the First Respondent (Delegate), to refuse to grant the Applicant a student subclass 500 visa (Student Visa). On 10 July 2019, Registrar Bird ordered that the Applicant file 28 days before the final hearing date any amended application with proper particulars of the grounds of the application and written submissions. The Applicant has not filed any amended application or written submissions.  He did, however, appear before the Court today and made oral submissions as to his application. He noted that, in many ways, his circumstances had changed in the five years since he brought the application.

2. In summary, the Tribunal refused to grant the Applicant a student visa because the Tribunal was not satisfied that the Applicant intended genuinely to stay in Australia temporarily in accordance with Schedule 2, cl. 500.212(a) of the Migration Regulations 1994 (Cth), the genuine temporary entrant criterion (GTE criterion). The Tribunal, as it was required to do under s. 499(2A) of the Migration Act 1958 (Cth), had regard to direction number 69 (Direction 69), titled “Assessing the Genuine Temporary Entry Criterion for Student Visa and Student Guardian Visa Applications” a Ministerial Direction given under s. 499 of the Act.

3. Because the Tribunal was not satisfied that the Applicant satisfied the GTE criterion, it was not satisfied that the Applicant satisfied a primary criterion for the grant of the Student Visa and the student visa had to be refused under s. 65 of the Act (CB 111-112, TD 31-32). 

4. For the following reasons, the Applicant has not proved the Tribunal made any jurisdictional error.  The application will be dismissed.

   BACKGROUND

5. On 15 July 2016, the Applicant lodged an application for the Student Visa (CB 1-29).  On 23 November 2016, the Delegate of the Minister refused to grant the Applicant the visa because the Delegate was not satisfied that the Applicant met the GTE criterion (CB 46-55). On 28 November 2016, the Applicant applied to the Tribunal for merits review of the Delegate’s decision (CB 56-57).  On 9 March 2018, the Tribunal invited the Applicant to appear before it to give evidence and to present arguments (CB 67-71).  On 11 April 2018, the Applicant attended at a hearing (CB 92-95).  On 20 April 2018, the Tribunal affirmed the decision under review (CB 107-112).

6. In coming to its decision, the Tribunal considered the criteria in Direction 69, including:

   (a)the Applicant’s circumstances in India, his circumstances in Australia and his studies in Australia (CB 110-111, TD [17]-[28]); 

   (b)it was not satisfied that the Applicant intended genuinely to stay in Australia temporarily (CB 111, TD [29]); and

   (c)it was not satisfied that the Applicant met the GTE criterion (CB 111-112, TD [29]-[32]).

   CONSIDERATION

7. In his application for judicial review, the Applicant’s grounds of review are set out in narrative form.  The First Respondent has, in a useful way, analysed the Applicant’s narrative grounds of review (CB 116) by identifying three possible grounds of review within that narrative description of the grounds. I adopt the First Respondent’s structure in analysing the Applicant’s grounds of review.  I note that the Applicant’s affidavit made on 7 May 2018 in support of his application for judicial review did not meaningfully develop his grounds of review. The Applicant deposes, among other matters, that, “I feel the decision made by the tribunal for my visa is unfair” (CB 120).  I will consider each of the grounds, grounds 1 to 3, in turn.

   Ground 1:  Did the Tribunal fail to properly to look at the relevant facts as to the GTE criterion?

8. The structure of the Tribunal’s reasons indicates that the Tribunal had regard to relevant matters set out in Direction 69.  Direction 69 sets out factors the Tribunal “should”, not “must”, consider.  Direction 69 expressly notes that it is a guide, not a checklist:  Part 2, cl 1;  see Kaur v Minister for Home Affairs [2019] FCA 2026 at [30]-[31] (Steward J). 

9. The Tribunal was not satisfied that the Applicant intended genuinely to stay in Australia temporarily, including in circumstances which included, but were not limited to, circumstances that:

   (a)the Applicant had been residing in Australia as a holder of a student visa for more than eight years (CB 109, TD [11]);

   (b)the Applicant had no difficulty in remaining in contact with his family in India while he was in Australia and therefore had no incentive to return to India (CB 110, TD [21]);

   (c)the Applicant’s economic circumstances, including his earning capacity and employment in Australia amounted to a significant incentive for the Applicant not to return to his home country (CB 110, TD [23]).  This was a factor Direction 69 provided that the Tribunal should have regard to at clause 9(c) of Direction 69;

   (d)The Applicant had enrolled in at least 14 courses and only completed one (CB 111, TD [26]);  and

   (e)The Applicant was unable to explain in a coherent way how his current intention to do a Diploma of Leadership would assist him in opening a bakery or food processing business back home, which was his stated intention (CB 111, TD [25]).

10. Each of these matters was a relevant matter to which the Tribunal was entitled to have regard in considering whether it was satisfied that the Applicant met the GTE criterion. 

11. The Applicant has not identified or particularised which relevant factors he submits the Tribunal failed to consider. 

12. As to ground 1, I see no error in the Tribunal’s approach.  Ground 1 has not been made out.

    Ground 2:  Did the Tribunal make an error of judgment?

13. It is not possible to engage in the Applicant’s assertion that the Tribunal made an error of judgment when it is pitched at such a high level of generality.  In the circumstances of this case, I accept the First Respondent’s submission that failure to particularise a ground of review is sufficient basis for it to be dismissed: WZAVW v The Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J). The First Respondent properly in his oral submissions submitted that ground 2 may perhaps be understood as a submission that the Tribunal misapplied the law and misapplied the GTE criterion. The Applicant has not proved, and he bears the onus, that the Tribunal misapplied or misconstrued clause 500.212(a) of Schedule 2 of the Regulations. Ground 2 has not been made out.

    Ground 3:  Did the Tribunal Deny the Applicant Procedural Fairness and/or Did Its Decision Cause Hardship to the Applicant?

14. The Applicant has not provided any particulars of his actual grievance as to his allegation that he was denied procedural fairness. I accept the First Respondent’s submissions that the Tribunal complied with the procedural obligations set out in Division 5 of Part 5 of the Act (RS 16). The Tribunal invited the Applicant to appear at the hearing in accordance with the provisions of ss. 360 and 360A of the Act.

15. As to procedural fairness, the concern of the law is to avoid practical injustice:  Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ).

16. As to whether there was a practical injustice by reason of a failure to afford procedural fairness, the Applicant was on notice that the issue for the Tribunal’s decision concerned whether he satisfied the GTE criterion in circumstances in which the Delegate had refused to grant the Applicant the Student Visa as the Delegate was not satisfied the Applicant met the GTE criterion  (CB 46-55).  Put slightly differently, the critical issue to the decision had been identified for the Applicant: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [29] (the Court). As to ground 3, the Applicant has not proved that he was denied procedural fairness.

17. Further as to this ground, the Applicant says in his grounds for application:

    I request that the Court accept on the ground of fair justice as my whole life depends on the decision.  It is more than a career.

18. Doubtless, decisions of this kind have a great significance for visa applicants.  The gist of the Applicant’s complaint, namely, that an adverse decision will cause him hardship, does not, however, prove that the Tribunal made any jurisdictional error.  Ground 3 has not been made out.

    DISPOSITION

19. The application will be dismissed.  I will order that the Applicant pay the First Respondent’s costs in the amount of $7,328, the amount sought in the First Respondent’s submissions.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Champion.

Associate:

Dated:       30 October 2023