Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 161
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 161
File number: MLG 814 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 6 March 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal - Student (Temporary) (Subclass 572) visa – whether Tribunal the applicant denied natural justice – whether Tribunal failed to consider relevant factors – whether Tribunal considered irrelevant factors – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 441, 477,
Migration Regulations 1994 (Cth) cl 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231
Cases cited: SZTES v Minister for Immigration and Border Protection [2015] FCA 719
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of last submission/s: 2 March 2023 Date of hearing: 2 March 2023 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Martin ORDERS
MLG 814 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAMANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
06 March 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for an extension of time, is dismissed.
3.The Applicant is to pay the First Respondents costs, fixed in the sum of $4189.38.
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 HUMPHREYS
Introduction
The applicant is a citizen of India. On 12 September 2015, he applied for a Student (Subclass 572) visa (“Student visa”). On 29 June 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Student visa.
On 29 June 2016, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for merits review of the delegate’s decision. The Tribunal affirmed the delegate’s decision not to grant the applicant his Student visa on 19 February 2018.
The applicant now seeks judicial review of the Tribunal’s decision in this Court. It is to be noted that the application for judicial review was filed 3 days outside the prescribed time limit for such matters. As such, the Applicant will require an extension of time for his matter to be considered on the merits
The administrative appeals tribunal decision
Paragraphs 1 to 6 of the Tribunal’s decision record provide the background to the applicant’s review application.
At paragraph 7, the Tribunal states that the issue before it concerned whether the applicant, at the time of the decision, met the enrolment requirements for the grant of a Student visa.
At paragraph 9, the Tribunal notes that the applicant’s evidence, in response to a request for information as to whether he had a Certificate of Enrolment (“CoE”), confirmed that the applicant was not enrolled in any course and had discontinued his studies in a Diploma of Hospitality.
At paragraph 10, the Tribunal states that, with limited exceptions, clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Migration Regulations 1994 (Cth) (“the Regulations”) require the applicant to be enrolled in, or be the subject of a current offer of enrolment in, a course of study. The Tribunal states that there was no evidence before it that the applicant was an eligible student as defined by the Regulations in order to be exempt from the requirements to be enrolled, or be the subject of an offer of enrolment, in a course.
At paragraph 11, the Tribunal states that there was no evidence before it that the applicant was, at the time of the hearing, enrolled in or was the subject of an offer of enrolment in any application course. Thus, clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations were not met.
Paragraphs 12 and 13 outline the legislative requirements relevant to determining whether a Student visa applicant is a Genuine Temporary Entrant (“GTE”), as required by cl 572.223 of the Regulations. The Tribunal noted that it must have regard to the following:
· the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
· the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
· if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
· any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
·Paragraphs 16 to 25 outline the relevant information considered by the delegate to assess whether the applicant was a GTE. The information can be summarised as follows:
oThe applicant is 26 years old from India. His father is a retired policeman and now owns a restaurant. He has a mother and a sister who is a student.
oThe applicant lives in a share house with other Punjabi persons. He does not have any Australian friends with whom he socialises.
oThe applicant worked between 20 to 25 hours per week as a taxi driver, earning about $500 to $600 per week.
oThe applicant obtained an initial Student visa offshore on 7 December 2010. The applicant subsequently arrived in Australia on 29 January 2011.
oThe Provider Registration and International Student Management System (“PRISMS”) indicates that the applicant has previously been enrolled in a Certificate IV in Hospitality, a Certificate III in Automotive Mechanical Technology, a Diploma of Automotive Management, a Certificate IV in Business Administration and a Diploma of Management. Two of the applicant’s enrolments were cancelled due to non-payment of fees.
On 16 September 2015, the delegate invited the applicant to comment on his circumstances and given an opportunity to give evidence in relation to the GTE criterion. The applicant was given 28 days to respond, which he did.
The applicant gave evidence to the Tribunal that his father had given him advice to enrol in automotive courses. The owner of an automotive business who could provide employment to the applicant had subsequently sold his garage.
At paragraph 29, the Tribunal confirms that the applicant disclosed him ambition to obtain permanent residency in Australia. When asked about the inconsistency between his intention to obtain permanent residency and the GTE criterion, the applicant admitted that these positions were inconsistent.
The Tribunal asked questions to the applicant concerning an alleged unlawful overstay of a non-citizen between the period of 16 November 2013 and 10 December 2010. The applicant was given time to discuss the relevant criterion with his representative before being asked to comment. The applicant responded that his application had been completed by a former agent who was not aware of his history, and that the applicant was unaware the form had been incorrectly completed.
At paragraph 33, the Tribunal records that the applicant’s representative stated that it advised the applicant not to cease his studies, but that he did cease his studies in order to work. The representative further advised the applicant and the Tribunal that there was a lot of scope for employment in India in the hospitality industry.
At paragraph 35, the Tribunal was not satisfied that the applicant intended to genuinely stay in Australia temporarily and that he did not meet cl 572.223(1)(a) of the Regulations. It further found that the applicant was not enrolled in, or had an offer of enrolment in any applicable course of study and therefore did not meet clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations.
At paragraph 38, the Tribunal found that the applicant did not meet cl 572.223 of the Regulations and as such, the decision under review had to be affirmed.
grounds of judicial review
The applicant’s grounds of judicial review are contained within an Initiating Application filed with the Court on 29 March 2018. The grounds are as follows as they appear in the application:
1. The AAT Member failed to observe the obligations of natural justice.
PARTICULARS
a.The Tribunal Member reached an oral decision at the hearing and did not provide a written record of the decision. I was not able to properly respond to the Tribunal Member’s concerns during the hearing and adequately plead my case.
b.The hearing was very stressful for me and I did not fully understand the reasons for the refusal. I should have been given a written record of the decision so that I could properly understand the reasons for the refusal and be able to properly appeal the Tribunal’s decision.
2. The AAT Member failed to give consideration to relevant factors in the decision
PARTICULARS
a.The Tribunal Member failed to comply with their obligations to give proper, genuine and realistic considerations to the merits of the case and actively failed to examine the facts.
b.The decision-maker was not considered the circumstances of my genuine temporary entrant criteria for my student visa application actively ignored such a request. These were not referred to or reported in their decision.
c.The Tribunal Member and the delegate of the Minister for Immigration failed to consider the decision made by the Minister for Immigration previously, under equivalent, if not more favourable, circumstances.
3. The AAT Member based much of their decision on an irrelevant factor and should not have.
PARTICULARS
a.The Tribunal Member failed to comply with their obligations to give proper, genuine and realistic considerations to the merits of the case and actively failed to examine the facts.
b.I was not given sufficient opportunity to respond to the Tribunal Member’s queries or address their concerns at the time. Furthermore, I did not understand the outcome of the Tribunal Member’s decision and the hearing itself was very stressful for me. I do not have a written record of the Tribunal Member’s decision, nor did I fully understand the process or the decision made.
the applicant’s submissions
The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been translated to him. The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wished to.
At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of his case. The applicant confirmed to the Court that as at the time of the decision by the Tribunal, the applicant was not enrolled in any course of study. The applicant also confirmed that his Migration Agent told the Tribunal that he wanted to stay in Australia permanently.
The Court explained to the applicant that it was a condition precedent for the grant of the type of visa he sought, being a Temporary Student visa, that as at the time of the Tribunal’s decision, he had to be enrolled in an approved course of study. Further, indicating to the Tribunal an intention to stay in Australia permanently was at odds with a grant of the type of visa he sought, being a temporary student visa. The applicant stated that he relied upon his Migration Agent and did not know what to say.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if you wish to state anything in reply. The applicant answered “No”.
THE FIRST RESPONDENTS SUBMISSIONS
The first respondent submitted that an extension of time pursuant to s 477(2) of the Act should not be made, as the application does not reveal any sufficiently arguable basis upon which the Court should be satisfied it is in the interests of justice to make such an order.
The clear evidence before the Tribunal was that the applicant did not satisfy the enrolment requirements of cl 572.223 of the Regulations. That is, as at the time of the decision the applicant did not have a current certificate of enrolment in an approved course.
Although not required to do so, the Tribunal also considered whether the applicant met the requirements of cl 572.223(1)(A) of the Regulations, being the genuine temporary entrant requirements. The Tribunal formed a view, based on the applicant’s evidence, that he did not meet those requirements, given he was work between 20 and 25 hours per week as a Taxi Driver and aspire to gain permanent residency.
In these circumstances, particularly in relation to the fact that the applicant was not enrolled in any course, it was submitted that the Tribunal arrived at the only decision that it could, due to all the circumstances.
In terms of the grounds of judicial review, it was submitted that ground one is factually incorrect. The Tribunal’s decision record clearly indicates that the decision was not an oral decision and that the applicant was provided with written reasons of its decision. The notification letter and the decision were sent to the applicant by email to his registered Migration Agent on 20 February 2018 in accordance with the relevant provisions of the Act being s 441A(5) and s 441G of the Act.
Ground two alleges that the Tribunal failed to consider relevant matters. No matters are identified where it is said that the Tribunal did not consider. The first respondent submitted to the contrary, that the Tribunal clearly considered the applicants written and oral evidence in relation to the requirements of cl572.222 and cl 572.223(1)(a) of the Regulations. The applicant’s own evidence was that he did not have a current enrolment and that he was aspiring to gain permanent residency. In so far as ground 2 to review the delegate’s decision, the Court has no jurisdiction to undertake a review of that decision.
Ground three alleges that the Tribunal considered relevant matters. Again, the applicant does not identify what are relevant matters it is said to have considered. The matter is considered by the Tribunal clearly relevant to the return of issues on review, namely whether the applicant held a current certificate of enrolment whether he was a genuine temporary entrant.
CONsIDERATION
The first issue for the Court to consider, is whether not to grant an extension of time. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:
a. the extent of the delay;
b. the explanation for the delay;
c. prejudice to the respondent due to the delay; and
d. the merits of the proposed application.
In this case, the delay is a period of some three days. The Court does not consider this to be so excessive such that an extension should not be granted. The Court notes however, that no explanation has been provided as to why the application was not made within time, noting however, the claims made by the applicant in his Affidavit affirmed 29 March 2018 that he did not have a written record of the Tribunal Member’s decision, and this delayed him in being able to make a proper application to the Court. The Court does not consider this factor to be such that an extension should be granted.
During the course of oral submissions, the first respondent conceded that there was no real prejudice to the first respondent in relation to the 3 day delay in the filing of the application for judicial review. The Court does not consider this factor would warrant an extension not being granted.
The final matter relates to the merits of the proposed application. As noted by the first respondent, as at the time of the decision the applicant did not meet mandatory requirements of cl 572.222 of the Regulations. This requires the applicant, as at the time of the decision to have a current Certificate of Enrolment in an approved course. That being the case, the Tribunal had no option other than to affirm the delegate’s decision under review. Notwithstanding this, the Tribunal also considered whether not the applicant met the requirements of cl 572.223(1)(a) of the Regulations, being whether or not the applicant met the genuine temporary entrant requirements. The Tribunal had proper regard to the applicant’s evidence including the fact that he was not enrolled because he wished to work and that he aspired to gain permanent residency. As noted by the Tribunal, this was at odds with the conditions of his visa that being that he was a genuine temporary entrant for the purpose of study. The Tribunal also concluded that the applicant did not meet the requirements of cl 572.223(1)(a) of the Regulations. The Court can detect no error in the reasoning of the Tribunal and the conclusions that it reached that he did not meet the requirements of either of these two clauses.
In relation to the grounds of judicial review, ground one is misconceived. The applicant’s Migration Agent was provided with a copy of the written reasons. Any assertion that the reasons were given orally is simply incorrect. Ground one has no merit.
Ground two is an un-particularised assertion that the Tribunal failed to take into account relevant considerations. No particulars are provided as to what relevant considerations were not taken into account. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). In any event, the Court is satisfied that the Tribunal correctly identified those matters that were relevant within the applicant’s own evidence, and correctly analysed that evidence and applied to the relevant law. Ground two has no merit.
Ground three is an assertion that the Tribunal considered irrelevant matters. Again, no particulars are provided as to what irrelevant matters were erroneously considered by the Tribunal. A fair reading of the Tribunal’s decision record indicates that the Tribunal did not take any irrelevant matters into account, rather it considered the matter based upon the relevant law, the applicants own evidence and admissions regarding his non enrolment and aspiration to stay in Australia as a permanent resident. Ground three has no merit
In these circumstances, noting that none of the proposed grounds of judicial review has any merit, the Court declines to grant an extension of time for the filing of the application.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 6 March 2023
0
2
0