Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 531
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 531
File number(s): ADG 152 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 23 June 2023 Catchwords: MIGRATION – Judicial review – Administrative Appeal Tribunal decision – citizen of India – application for Student Temporary (class TU) (subclass 500) visa – whether applicant enrolled in a “course of study” – whether procedural unfairness or unreasonableness – where documents subject to non-disclosure certificate not before the Administrative Appeals Tribunal – where documents not about the applicant – whether jurisdictional error Legislation: Education Services for Overseas Students Act 2000 (Cth) Pt 2, Div 3
Migration Act 1958 (Cth) ss 359, 359C, 360, 363A, 375A, 379A, 379C, 474, 476
Migration Regulations 1994 (Cth) reg 1.03, Sch 2 cll 500.111, 500.211, 500.212
Cases cited: CKJ15 v Minister for Immigration and Border Protection [2016] FCCA 1990
Dhawan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1335
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305; (2016) 71 AAR 169; (2016) 343 ALR 97
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1; (2016) 155 ALD 98
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) 95 ALJR 441; (2021) 390 ALR 590
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Patel v Minister for Immigration and Border Protection [2017] FCCA 2343
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134; (2004) 136 FCR 407
Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 220
Yang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1080
Zhang v Minister for Immigration [2014] FCCA 2752
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 7 June 2023 Date of hearing: 7 June 2023 Place: Adelaide Applicant: In person Counsel for the First Respondent: Mr A Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 152 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIKRAMJEET 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:
23 JUNE 2023
THE COURT ORDERS THAT:
1.The originating application filed on 22 April 2020 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
Before the Court is an application filed on 22 April 2020 by the applicant, Mr Vikramjeet Singh (“Mr Singh”), for judicial review (“Judicial Review Application”), pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”), of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), affirming the Delegate’s Decision not to grant Mr Singh a Student Temporary (class TU) Higher Education Sector subclass 500 visa (“Student Visa”).
BACKGROUND
The background to the matter is as follows:
(a)Mr Singh is a 27 year-old male citizen of India: Court Book (“CB”) 2;
(b)on 23 July 2015 Mr Singh arrived in Australia as the holder of a Student (Class TU), (Subclass 572) visa (“572 Visa”): CB 28;
(c)on 24 August 2017, six days before Mr Singh’s 572 Visa was due to expire: CB 28, Mr Singh applied for the Student Visa based on his enrolment in an Advanced Diploma of Leadership and Management, which had a scheduled completion date of 12 July 2019: CB 1-16, 29;
(d)on 24 November 2017, the Delegate refused to grant Mr Singh the Student Visa: CB 26-30. The Delegate was not satisfied that Mr Singh intended genuinely to stay in Australia temporarily and found that he did not satisfy cl 500.212 in Sch 2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”);
(e)on 12 December 2017, Mr Singh applied to the Tribunal for review of the Delegate’s Decision: CB 31-32. In the application, he provided an email address for correspondence with the Tribunal regarding his application (“Nominated Email Address”);
(f)on 13 January 2020, the Tribunal wrote to Mr Singh (“Invitation for Further Information”) at his Nominated Email Address and invited him, pursuant to s 359(2) of the Migration Act, to provide information to satisfy the Tribunal that Mr Singh was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student: CB 37-43;
(g)the Invitation for Further Information:
(i)attached a copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’: CB 37-43;
(ii)outlined that the information or a request for an extension of time should be received by the Tribunal by 28 January 2020: CB 38; and
(iii)put Mr Singh on notice that (original emphasis): CB 38:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
(h)on 21 January 2020 the Tribunal:
(i)invited Mr Singh to attend a hearing on 6 February 2020 (“Tribunal Hearing”): CB 44-46;
(ii)wrote to Mr Singh at his Nominated Email Address stating, in part (original emphasis): CB 47:
Please note that [the Tribunal Hearing] will only proceed if we receive a response to the [Invitation for Further Information], by 28th January 2020.
…
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
(iii)wrote to Mr Singh at his Nominated Email Address stating (original emphasis): CB 48:
Please note that the previous email inviting you to a hearing was sent in error. At this stage no hearing date has been scheduled. We will send you a revised hearing invitation once a date has been confirmed by the Member. Please be reminded that we are still awaiting your response to a request for further information, due by the 28 February 2020.
(i)Mr Singh did not respond to the Tribunal’s Invitation for Further Information or write to the Tribunal to request an extension of time by 28 January or 28 February 2020, or at all. He also did not respond to the Tribunal’s three emails sent on 21 January 2020; and
(j)on 25 March 2020, the Tribunal Decision was to affirm the Delegate’s Decision: CB 52-54.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)set out the background to the review: CB 53 at [1]-[2];
(b)identified that the Delegate did not grant Mr Singh a Student Visa on the basis that he did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations because Mr Singh did not satisfy the Delegate that he intended genuinely to stay in Australia temporarily (“GTE criteria”): CB 53 at [3];
(c)noted that it had sent Mr Singh the Invitation for Further Information at his Nominated Email Address, inviting him to provide information in writing about his enrolment status and the GTE criteria by the nominated dates, and that Mr Singh did not provide a response to the Invitation for Further Information or request an extension of time. The Tribunal noted that in these circumstances, pursuant to ss 359C and 360(3) of the Migration Act, Mr Singh was not required to appear before the Tribunal and that it had no power to permit him to appear: CB 53 at [4]-[5];
(d)identified that the criteria for the grant of the Student Visa is contained in Pt 500 of Sch 2 of the Migration Regulations and that the issue before the Delegate was whether Mr Singh met the GTE criteria: CB 53 at [7];
(e)identified further, that the issue before the Tribunal was whether Mr Singh satisfied cl 500.211 of Sch 2 to the Migration Regulations. The Tribunal noted that in accordance with cl 500.211 of Sch 2 to the Migration Regulations, at the time of the Tribunal Decision Mr Singh was required to be enrolled in a course of study: CB 53 at [8]-[9];
(f)noted that at the time of the Delegate’s Decision Mr Singh was enrolled to undertake an Advanced Diploma in Leadership and Management, which had a scheduled completion date of 12 July 2019, but no evidence demonstrated that Mr Singh was currently enrolled in a course of study as required by cl 500.211 of Sch 2 to the Migration Regulations: CB 54 at [11]-[12];
(g)was not satisfied that Mr Singh was enrolled in a course of study at the time of the Tribunal Decision and therefore cl 500.211 of Sch 2 to the Migration Regulations was not met: CB 54 at [13]-[14]; and
(h)affirmed the Delegate’s Decision not to grant Mr Singh a Student Visa: CB 54 at [15].
JUDICIAL REVIEW APPLICATION
Grounds
The grounds of the Judicial Review Application (which are numbered 4 to 13) are as follows (reproduced unaltered):
4.My name is Vikramjeet and I am writing herewith to explain reasons why I wish the court to consider my case for student visa grant. I applied for Student visa subclass, which got refused by DIBP and later AAT also refused my application stating that my study intentions are not genuine.
5.On 21/01/2020 I received an email from AAT for hearing on 06/02/2020. On 21/01/2020 I received any email which states that Please note that the previous email inviting you to a hearing was sent in error. At this stage no hearing date has been scheduled. We will send you a revised hearing invitation once a date has been confirmed by the Member. Please be reminded that we are still awaiting your response to a request for futher information, due by the 28 February 2020.According to the AAT decision it says that they have sent me information to provide on 13/01/2020 but I haven’t received any email. AAT on 25/03/2020 affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
6.I have plans that I can clearly interpret and work towards their achievement. I have successfully completed Certificate III in Hospitality from Tafe SA and Certificate IV in Leadership and Management from IIBIT (Federation University) of which shows that I am so genuinely trying to achieve my academics and trying to overcome the lost years of my life. In Past, I had regularly attended all my classes and finished assignments in time and paid my tuition fees on regular basis. But when my case was under pipeline, I had to get my CoE cancelled because I was not sure whether I will be grated with study visa or not.
7.I have clear plans to be an entrepreneur in hospitality industry, I have foresighted my career to start my own restaurant on highway in my hometown. But this is only the beginning. I have realized during studies that that hospitality is a vast sector and to diversify my business in this field I should equip myself with leadership and management knowledge. The qualification in leadership Management is therefore ideally suited to provide a range of services id hospitality sector.
8.I could not obtained offer letter for the courses because my case is pending in proceedings and no institution will process my admission application till Court clears my case.
9.I want to complete all my studies from Australia because in my chosen field of studies, Australian institutes provide detailed knowledge of course contents. There are no institutes in India that provide in depth professional knowledge in the chosen field. In addition Australian Qualification is highly regarded in India and it gives a solid impact in your resume or business profile to be trained in Australia in this field. The added advantage of doing this course from Australia is that it would provide me exposure on international level as well.
10.I want to complete all my studies from Australia because in my chosen field of studies, Australian institutes provide detailed knowledge of course contents. There are no institutes in India that provide in depth professional knowledge in the chosen field except the IIM’s but the admission criteria is very stringent and it is expensive. Other institutes lack new techniques and practical knowledge in this field. In addition Australian Qualification is highly regarded in India and it gives a solid impact in your resume or business profile to be trained in Australia in this field. The added advantage of doing this course from Australia is that it would provide me exposure on international level as well.
11.For the fulfillment of above-mentioned plan, I earnestly look forward to do these courses and would be highly thankful for your kind consideration towards my case.
12.I wish to draw your kind attention towards the fact that I did not get CoE in between the pending decisions of my case by AAT because I wanted to get some sort of surety that I would be granted student visa otherwise the institute itself could reject my application. And AAT could not consider this fact while deciding on my application and made jurisdictional error in the decision-making.
13.For the fulfilment of above-mentioned plan, I earnestly look forward to do these courses and would be highly thankful for your kind consideration towards my case.
Mr Singh’s submissions
Mr Singh did not file written submissions in accordance with the Court’s orders of 29 March 2023.
At hearing Mr Singh submitted that:
(a)the email sent by the Tribunal regarding the Tribunal Hearing was sent in error but the Tribunal still required further information: Transcript, p 3;
(b)Mr Singh did not understand what kind of information he should provide to the Tribunal: Transcript, p 3;
(c)there was “a kind of miscommunication”: Transcript, p 3;
(d)the last course he studied was in 2019 and since then Mr Singh has not enrolled in any program or course of study due to family reasons: Transcript, p 4;
(e)when he received the Invitation for Further Information he went to two or three places to obtain a confirmation of enrolment but could not get one “because of this AAT situation”: Transcript, p 6; and
(f)when he checked his emails he saw one advising him of the Tribunal Hearing and another cancelling the Tribunal Hearing, however, there was an attachment but Mr Singh did not scroll down and did not see the attachment: Transcript, p 6-7.
Minister’s submissions
The Minister submitted that:
(a)grounds four, six to eleven and thirteen (using the numbering in the Judicial Review Application) cannot succeed as they go no higher than seeking the Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ;
(b)insofar as ground five alleges that the Tribunal fell into jurisdictional error because Mr Singh did not receive the Tribunal’s Invitation for Further Information sent on 13 January 2020, the allegation must fail on the facts as:
(i)the Invitation for Further Information was given to Mr Singh by one of the methods specified in s 379A of the Migration Act, being Mr Singh’s Nominated Email Address, which was the last email address the applicant provided to the Tribunal in connection with the review: Migration Act, ss 359(3)(a) and 379A(5)(b);
(ii)in the circumstances, Mr Singh was deemed, under s 379C(5) of the Migration Act, to have received the Invitation for Further Information at the end of the day on which it was transmitted being 13 January 2020;
(iii)the fact that Mr Singh may not have been actually aware of the Invitation for Further Information does not displace the deemed-receipt provision in s 379C(5) of the Migration Act: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 (“SZVFW”) at [7]-[8] per Kiefel CJ; CKJ15 v Minister for Immigration and Border Protection [2016] FCCA 1990; VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134; (2004) 136 FCR 407 at [15] per Sundberg and Hely JJ; and
(iv)it is difficult to reconcile how Mr Singh received at least two of the Tribunal’s emails sent on 21 January 2020 (see ground five), but he did not receive the Invitation for Further Information sent on 13 January 2020 when all of the Tribunal’s emails were sent to Mr Singh’s Nominated Email Address: CB 36, 44, 47-48;
(c)insofar as ground five asserts that it was unreasonable for the Tribunal to proceed to make a decision without taking further action to obtain the requested information when he did not respond to the Invitation for Further Information, the ground of review cannot succeed. As Mr Singh did not respond to Invitation for Further Information within the prescribed period, he lost his entitlement to appear before the Tribunal at a hearing: Migration Act, s 360(2)(c). As Mr Singh was no longer entitled to a hearing, the Tribunal had no power to permit him to appear before it: Migration Act, ss 360(2)(c) s 363A. Additionally, the Tribunal had the discretion to make a decision on the review without taking further action to obtain the information: s 359C(1) of the Migration Act. In Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [68] and [76] per Hayne, Kiefel and Bell JJ, the High Court explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions can be applied to the Tribunal’s decision to proceed to make a decision under s 359C(1) of the Migration Act, particularly given Mr Singh’s lack of engagement throughout the Tribunal process: SZVFW at [9]-[10] per Kiefel CJ;
(d)ground twelve cannot succeed as:
(i)Mr Singh did not make those claims to the Tribunal. It follows that the Tribunal could not have considered those claims; and
(ii)Clause 500.211 of Sch 2 to the Migration Regulations was a mandatory criterion for the grant of the Student Visa and it required, amongst other things, that Mr Singh was enrolled in a course of study at the time of the Tribunal Decision. As it was a time of decision requirement, it was not open for the Tribunal to find that Mr Singh satisfied cl 500.211 of Sch 2 to the Migration Regulations on the basis that he would obtain a Confirmation of Enrolment after the date of the Tribunal Decision;
(e)the Department of Home Affairs issued a non-disclosure certificate under s 375A of the Migration Act (“Non-disclosure Certificate”): CB 49. As set out in the affidavit of Alexander Pok-Man Chan affirmed on 8 May 2023, the Non-disclosure Certificate and the information covered by it were not before the Tribunal. The Tribunal did not disclose the Non-disclosure Certificate to Mr Singh or refer to it in the Tribunal Decision because the document was not before it. This matter is therefore distinguishable from Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305; (2016) 71 AAR 169; (2016) 343 ALR 97 and MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1; (2016) 155 ALD 98. Because the documents covered by the Non-disclosure Certificate were not about Mr Singh and were therefore irrelevant, there is no error in the Tribunal not having the Non-disclosure Certificate or the documents before it; and
(f)generally, even if Mr Singh is able to demonstrate jurisdictional error in the Tribunal Decision, which is neither apparent nor conceded, the Court should refuse relief in the exercise of its discretion. This is because the course which Mr Singh initially sought the Student Visa for ought to have been completed by now given that it had a completion date of 12 July 2019: CB 28. Given the circumstances referred to above, it can be inferred that these proceedings have been brought for an ulterior purpose, namely, to extend the applicant’s residence in Australia for reasons which are unrelated to the educational purpose for which he sought the Student Visa: Zhang v Minister for Immigration [2014] FCCA 2752 at [47] per Judge Lucev; Patel v Minister for Immigration and Border Protection [2017] FCCA 2343 at [10]-[13] per Judge Street; Yang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1080 at [27] per Judge Jarrett. Accordingly, the Court should refuse relief in any event in the exercise of its discretion.
CONSIDERATION
Requirement for jurisdictional error
For present purposes it suffices to observe that this Court may set aside the 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) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. An instance where the Tribunal has made findings that are legally illogical, irrational or otherwise unreasonable may also amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248.
Grounds
It is unnecessary to address the grounds individually. Mr Singh mainly sets out alleged matters of fact and future intention at the time of the Tribunal Decision, without addressing how the Tribunal is alleged to have made a jurisdictional error, and in so doing seemingly invites the Court to undertake merits review rather that judicial review, contrary to long standing principle: Wu Shan Liang.
Criteria
The relevant criteria for the grant of the Student Visa at the time of the Tribunal Decision were as follows:
500.2 – Primary criteria
Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b)if the application is made in Australia--the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c)if the applicant is a Foreign Affairs student--the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student--the applicant has the support of the Defence Minister for the grant of the visa.
Law related to the criteria
Clause 500.211(a) of Sch 2 to the Migration Regulations relevantly required that at the time of the Tribunal Decision Mr Singh be “enrolled in a course of study”. “Course of study” is relevantly defined in cl 500.111 of Sch 2 to the Migration Regulations as a “full-time registered course”. “Registered course” is defined in reg 1.03 of the Migration Regulations as a course of education or training provided by an institution, body or person that is registered under Div 3 of Pt 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.
There are many, many judgments of the federal courts dealing with applicants for a student visa without confirmation of enrolment at the time of decision by the Tribunal, and who therefore failed to meet the criteria in cl 500.211(a) of Sch 2 to the Migration Regulations to be enrolled in a course of study. Brief reference to three judgments will suffice for present purposes.
In Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350 (“Singh”) 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 at [58] per Judge Kendall (followed in Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 220 at [18]-[20] per Judge Lucev) this Court (then Federal Circuit Court of Australia) observed that (emphasis in original):
... 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.
No enrolment
Mr Singh did not provide any evidence to the Tribunal that he was enrolled in a course of study at the time of the Tribunal Decision. There was therefore no evidence that at the time of the Tribunal Decision Mr Singh met the relevant criteria in cl 500.211(a) of Sch 2 to the Migration Regulations, which required Mr Singh to be enrolled in a course of study. Before the Court, Mr Singh admitted that at the time of the Tribunal Decision he was not enrolled in a course of study: Transcript, p 4. Mr Singh did not therefore meet the relevant criteria as prescribed in cl 500.211(a) of Sch 2 to the Migration Regulations at the time of the Tribunal Decision. Consequently, the Tribunal did not make an error in determining that Mr Singh failed to meet that relevant criteria.
The Tribunal Decision affirming the Delegate’s Decision to refuse Mr Singh a Student Visa as Mr Singh did not meet the relevant criteria in cl 500.211 of Sch 2 to the Migration Regulations, as he was not enrolled in a course of study, was the only finding open to the Tribunal. Nothing put by Mr Singh constitutes jurisdictional error in the Tribunal Decision in this respect.
Procedural fairness and unreasonableness
On the material before the Court the Tribunal sent Mr Singh the Invitation for Further Information at his Nominated Email Address and invited him, pursuant to s 359(2) of the Migration Act, to provide “sufficient information to satisfy” the Tribunal that Mr Singh was “enrolled in a registered course of study” and was a genuine applicant for entry and stay as a student: CB 37. The Tribunal seemingly thus provided Mr Singh with a meaningful opportunity to put forward all relevant materials to make out his case, an opportunity to which Mr Singh did not respond. In ground twelve of the Judicial Review Application Mr Singh concedes that he did not obtain a confirmation of enrolment, not because he was unaware of the requirement to do so, but because “in between the pending decisions of my case by the AAT because I wanted to get some sort of surety that I would be granted student visa otherwise the institute itself would reject my application” (a not dissimilar rationale to that rejected by the Federal Court in Singh at [29]-[31] per Banks-Smith J). At hearing before this Court Mr Singh submitted that he did not seek to enrol in a course after 2019 because of “some family reasons and … I was going through a really hard time at that time”: Transcript, p 4, but also that, having seen his “consultant”, he “went to two or three places … all three of them denied to give me an enrolment just because I was involved in this … AAT situation”: Transcript, p 6. It is plain that Mr Singh either was, or should have been, aware that to satisfy the Student Visa criteria he was required to provide to the Tribunal evidence of enrolment in a registered course of study, but that he did not do so.
In circumstances where Mr Singh did not respond to the Invitation for Further Information the Tribunal was not required to, and did not have the power to, permit Mr Singh to appear before the Tribunal: Migration Act, ss 359C and 360(3).
It follows from the above that Mr Singh was not denied procedural fairness by the Tribunal, and nor did the Tribunal act in a manner which was unreasonable, and the Tribunal Decision was therefore not affected by jurisdictional error on these bases.
Non-disclosure certificate
In circumstances where the documents the subject of the Non-disclosure certificate were not about Mr Singh the fact that the Non-disclosure Certificate and the documents were not before the Tribunal was neither relevant nor material. It follows that there was no jurisdictional error in the Tribunal Decision in relation to the Non-disclosure Certificate or the documents it referred to.
Jurisdictional error otherwise
The Court is also 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 v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 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 at [26] per Judge Lucev. In the Court’s view there is nothing otherwise in the materials before it which indicates that the Tribunal made a jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded Mr Singh has not made out any of the grounds of the Judicial Review Application, and that the Tribunal Decision is not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 22 April 2020.
The Court will hear the parties as to costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 22 June 2023
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