Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 997
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 997
File number(s): ADG 421 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 30 November 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – refusal of student visa – citizen of India – observations on bases for adjournment of proceedings where medical and dental certificates provided – where no ground of review in application – whether impermissible merits review – whether afforded procedural fairness - whether jurisdictional error Legislation: Administrative Decisions Judicial Review Act 1975 (Cth)
Migration Act 1958 (Cth) ss 360, 474, 476, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 4.02, 13.06
Federal Court Rules 1976 (Cth)
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Cases cited: AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815
Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1
C v Minister for Immigration and Multicultural Affairs [1999] FCA 1663
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
Gao v Federal Privacy Commissioner [2002] FCA 823; (2002) 76 ALD 447
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration & 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 & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24
NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559
Nikolli v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 940
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Singh v Minister for Immigration and Border Protection [2016] FCA 108
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
WZAQB v Minister for Immigration & Anor [2012] FMCA 688
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1744
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 3 November 2022 Date of hearing: 2 and 3 November 2022 Place: Perth Applicant: In person via CISCO Webex Counsel for the First Respondent: Mr L Waldron Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 421 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARMANPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
30 NOVEMBER 2022
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 on 4 November 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
Before the Court is an application filed on 4 November 2019 by the applicant, Mr Harmanpreet Singh (“Mr Singh”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking judicial review (“Judicial Review Application”) 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) subclass 500 visa (“Student Visa”).
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 114-122.
Background
The relevant background to the matter is as follows:
(a)Mr Singh is a citizen of India who arrived in Australia on 13 February 2014 on an earlier Student Visa: CB 57, 90;
(b)the earlier Student Visa was granted to Mr Singh on the condition of his enrolment in a Diploma of Information Technology and Bachelor of Information Technology: CB 57;
(c)Mr Singh’s Diploma of Information Technology program was cancelled by his education provider on 17 October 2014 as he had ceased to study and had failed to re-enrol in a new semester which had commenced on 23 June 2014: CB 57;
(d)on 14 March 2017 Mr Singh applied for the Student Visa the subject of this Judicial Review Application: CB 8-47;
(e)on 31 May 2017 the Delegate’s Decision was to refuse the Student Visa on the basis that Mr Singh did not meet the criteria in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 48-59;
(f)on 15 June 2017 Mr Singh applied to the Tribunal for review of the Delegate’s Decision: CB 61-62;
(g)more than two years later, on 23 September 2019, the Tribunal wrote to Mr Singh’s migration agent inviting Mr Singh to attend a hearing before the Tribunal on 14 October 2019 (“Tribunal Hearing”): CB 86-89;
(h)Mr Singh provided to the Tribunal numerous documents: CB 90-106, including his response to the Tribunal indicating he would attend the Tribunal Hearing: CB 94-96;
(i)on 14 October 2019 Mr Singh attended the Tribunal Hearing with his migration agent: CB 108-110; and
(j)on 15 October 2019 Mr Singh was notified of the Tribunal Decision which affirmed the Delegate’s Decision not to grant Mr Singh a Student Visa: CB 112-122.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)set out the background to the application for review to the Tribunal: CB 115 at [1]-[5];
(b)set out the relevant criteria and legislation: CB 115 at [7]-[8];
(c)set out its consideration of the documents and evidence given by Mr Singh to the Tribunal: CB 116 at [9]-[11];
(d)noted Mr Singh gave evidence: CB 116-117 at [12]-[32] that:
(i)he came to Australia to study in February 2014 planning to study information technology, was granted a Student Visa and started to study at a bachelor’s degree level, but that the course proved too difficult so he changed to study business and management at the diploma level;
(ii)in March 2017 he was planning to do an Advanced Diploma in Business, but he changed his course because he decided to open a restaurant in India and changed his course to one in commercial cookery to further that end;
(iii)the restaurant industry is growing in India, and that he had deduced this from looking online at restaurant reviews and his visits to India when he observed an increase in restaurant business, but he had not brought any evidence to corroborate his views;
(iv)the type of restaurant he was hoping to open would serve all of the food that they normally eat in India but also food related to other cultures such as Thai food or modern Australian cuisine such as schnitzels;
(v)he had seen large malls selling foreign food;
(vi)he could source vegetables from the family farm so he believed that he has an advantage and he should be profitable, although he had not taken any advice from an accountant or business adviser, but he had spoken to his family who are supportive;
(vii)when he finished his study at the end of 2020 he would return to India and after a month or two of break he will start trading, his family will locate premises and do whatever else is needed to set up the restaurant and that they will meet all of the costs (the Tribunal noting that there was no corroborative evidence of any discussion to this effect with his family);
(viii)no one in his family has any experience in the hospitality industry;
(ix)he had transferred from information technology to business and later cookery, because he was interested in computers when he was younger, in India, but that he had found the courses in that discipline too difficult, and when it became clear to him that he was not going to succeed he wanted to return to India, but on the advice of his family he transferred to business and management courses because it had always been his ambition to go into business;
(x)the Tribunal’s suggestion as to whether the decision to change to easier courses that he was more likely to pass was motivated by a desire to stay in Australia rather than consideration of which courses would be more beneficial for him was denied;
(xi)he did not return to India to finish his qualifications, because he and his family wanted him to finish his studies in Australia because Australian qualifications are more in demand in India;
(xii)he was not proposing to seek work in India but would be setting up his own business, and then said that the Australian qualifications provide a better background for running a business;
(xiii)as to whether studying in Australia is more beneficial than studying in India he said that he believes it is, and that he can learn the Indian side of things on the job, but with the Australian study he can learn things on an international level;
(xiv)knowing how things operate in Australia will help his Indian business, and although management skills are largely the same everywhere if he learns the Australian approach it will be applicable in India (the Tribunal observing that Mr Singh’s argument was circular); and
(xv)he was not sure whether there are any relevant cookery and management courses in India, and when the Tribunal asked if he had looked into it, he said that he had not;
(e)found Mr Singh’s evidence about his need to study in Australia to be unconvincing: CB 117 at [30];
(f)set out at CB 117-121 at [33]-[35] its considerations as to whether Mr Singh met the factors in Direction No 69 (a Ministerial Direction under s 499(2A) of the Migration Act) (“Direction 69”) observing as to:
(i)Mr Singh’s circumstances in India and whether Mr Singh had reasonable reasons for not undertaking the study in India, that Mr Singh had not made any enquiries about the availability of relevant courses in India, and had said that it was his preference and his family’s preference that, having started his study in Australia he complete that study in Australia, and that the Tribunal was not:
(A)persuaded by the reasons that Mr Singh gave for this; and
(B)satisfied that Mr Singh had reasonable reasons for not undertaking the study in India;
(ii)Mr Singh’s circumstances in India and whether his personal ties to India would serve as a significant incentive to return to India, that Mr Singh’s parents and his siblings, an older brother and sister, all live in India, and he presented evidence to establish that his family in India are financially secure and said that he intends to return to India and pursue a business there;
(iii)Mr Singh’s economic circumstances that would present as a significant incentive for him not to return to India, that Mr Singh said that he believes that a restaurant is likely to return him an income in the vicinity of $3,000 AUD per month which is roughly twice what he is earning in Australia as a supermarket manager, but the Tribunal observed that no basis was presented for his estimate of his likely earnings in India and he had not sought any expert advice about the potential of his intended business;
(iv)military service commitments that would present as a significant incentive for Mr Singh not to return to their home country, that Mr Singh said that he is not liable to fulfil any military service in his home country;
(v)political and civil unrest in India, that Mr Singh said that there is no relevant unrest in India and that he feels quite safe there, and that there is nothing about the political situation in India that makes him reluctant to go home;
(vi)Mr Singh’s circumstances in India relative to the circumstances of others in India, that Mr Singh gave evidence that his family in India are financially secure, that there was nothing to suggest that his circumstances in India would be so far below the circumstances of other Indians that it would serve to discourage Mr Singh from returning home;
(vii)Mr Singh’s potential circumstances in Australia and whether ties with Australia would present as a strong incentive to remain in Australia, that Mr Singh gave evidence that he has a few friends in Australia but no strong ties;
(viii)whether the Student Visa programme was being used to circumvent the intentions of the migration programme, that Mr Singh gave evidence that he has completed a Diploma in Management, a Diploma in Business and had almost completed a Certificate III in commercial cookery, and that this represents about three and a half years of completed study in about five and a half years in Australia, which the Tribunal put to Mr Singh was a relatively low level of achievement which might suggest that he was studying in order to stay in Australia rather than to promote his career, but which Mr Singh said was not the case, and that the slowness of the study was because the first course he tried was too hard and he had to revert to the “small courses”;
(ix)whether the Student Visa was being used to maintain ongoing residence in Australia, Mr Singh denied this suggestion;
(x)Mr Singh’s knowledge of living in Australia and his intended course of study, that Mr Singh’s arrangements for study and living in Australia represent a continuation of arrangements already in place and the Tribunal found Mr Singh’s knowledge in this regard to be good;
(xi)the value of the course to Mr Singh’s future and whether Mr Singh was seeking to undertake a course that is consistent with his current level of education and whether the course would assist him to obtain employment in India, that Mr Singh originally came to Australia to study information technology, but that the course proved too difficult, and that Mr Singh said that he transferred to business because he was determined to open his own business in India, but that he now wishes to pursue study in cookery and hospitality management and says that he believes that these studies will help him run a business in India, that he does not suggest that he will seek employment in India but will be self-employed, and that the Tribunal accepted that Mr Singh’s study of cookery will assist him if he does open a restaurant;
(xii)the relevance of the course to Mr Singh’s past or proposed future employment, that the study of cookery would be relevant to Mr Singh’s proposed work in hospitality, that there was no evidence that that study would be better done in Australia than in India, that Mr Singh’s evidence about the value of the proposed course in hospitality management was confused and the Tribunal found this evidence to be unconvincing. The Tribunal noted the Mr Singh’s own evidence that he will learn this “on-the-job” in India;
(xiii)remuneration he could expect to receive in India compared with Australia using the qualifications to be gained from the proposed course of study, that Mr Singh gave evidence that he would expect to make about $3,000 AUD per month running a restaurant in India. He was unable to support this with any corroborative evidence and had not made any enquiry or conducted any research, and his evidence was wholly speculative. There was no evidence about likely earning capacity in Australia and Mr Singh insisted he was not proposing to work in Australia when he completed his study;
(xiv)Mr Singh’s immigration history that he:
(A)had previously held a Student Visa;
(B)gave evidence he had not been refused a visa to any other country;
(C)gave evidence that he had not been proceeded against for failure to comply with the conditions of a visa, which the Tribunal accepted;
(D)had never held a visa that was cancelled or considered for cancellation;
(E)had been in Australia for five and a half years in which time he had completed two diplomas, and had commenced a higher level of study but that it was too difficult and he had reverted to easier short courses; and
(F)had been to Indonesia twice and he had complied with the laws of that country at all times;
(g)noted he had not made any enquiry about the availability of relevant courses in India and that Mr Singh’s reasons for preferring to study in Australia were not persuasive, and his evidence about his proposal to open a restaurant in India and that there was a strong market for western-style food in India was unsupported and not persuasive: CB 121 at [36];
(h)noted that Mr Singh provided documentation which suggested that his family own assets worth the equivalent of more than $800,000 AUD and that it accepted this was a substantial amount but that there was no evidence as to how much, if any, Mr Singh’s family were prepared to dedicate to his restaurant and further noted Mr Singh himself did not know how much it would cost to open the restaurant: CB 121 at [37];
(i)noted that Mr Singh said that his family will attend to all of the setup of the restaurant including locating premises and arranging set up and that he believes he will be able to start trading very soon after he returns to India, but that there was no corroboration of this evidence: CB 122 at [38];
(j)it was not convinced that Mr Singh:
(i)had carefully considered his plan to open a restaurant in India;
(ii)needs to study in Australia to be able to open a restaurant in India; or
(iii)was not using student visas to secure a prolonged stay in Australia: CB 122 at [39];
(k)it was therefore not satisfied that Mr Singh genuinely intended to stay in Australia temporarily, and that accordingly he did not meet cl.500.212(a) of Sch 2 of the Migration Regulations: CB 122 at [40]; and
(l)the Tribunal was not satisfied that Mr Singh is a genuine applicant for entry and stay as a student as required by cl.500.212 of Sch 2 of the Migration Regulations, and therefore found that the criteria for the grant of the Student Visa were not met: CB 122 at [41]; and that the Delegate’s Decision under review must be affirmed: CB 122 at [43].
Judicial Review Application
History
The Judicial Review Application was filed in the Adelaide Registry of the Court (then the Federal Circuit Court of Australia) on 4 November 2019. Given the delay of almost exactly three years in the matter coming to hearing on 2 and 3 November 2022 it is appropriate to set out the history of the matter, which is as follows:
(a)on 19 December 2019 a Registrar of this Court made consent orders programming the matter and ordering that the matter be listed for a final hearing on a date to be advised;
(b)in May 2022 the matter was docketed to the presiding Judge in the Perth Registry of the Court;
(c)on 19 May 2022 the parties were notified of a directions hearing listed for 26 May 2022 before the presiding Judge;
(d)on 23 May 2022 Mr Singh called the Chambers of the presiding Judge (“Chambers”) seeking an adjournment of the directions hearing on the basis that he had a dental illness;
(e)on 23 May 2022 the parties were notified of the grant of the adjournment and the relisting of the directions hearing to 15 June 2022;
(f)on 15 June 2022 the parties attended a directions hearing where orders (“June 2022 Orders”) were made that:
(i)Mr Singh file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 26 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)the matter be listed for a final hearing by video link on 2 November 2022 at 1.00pm AWST/3.30pm ACDT before Judge Lucev,
and noting that the matter may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) if Mr Singh did not appear at the final hearing;
(g)a copy of the June 2022 Orders, and a Notice of Listing advising that the matter was listed for hearing by videoconference on 2 November 2022, were emailed to the parties later on 15 June 2022;
(h)Mr Singh filed no submissions or documents pursuant to the June 2022 Orders;
(i)on 10 October 2022 the Minister filed an outline of submissions pursuant to the June 2022 Orders;
(j)on 31 October 2022 Mr Singh emailed Chambers seeking an adjournment of the hearing on the basis that he was, once again, experiencing a dental illness, and provided:
(i)a medical certificate signed by a general practitioner dated 28 October 2022 providing that Mr Singh “will be unfit for work/school/university from 28/10/2022 to 29/10/2022 inclusive”;
(ii)a letter signed by the same general practitioner dated 30 October 2022 indicating that Mr Singh “had attended a medical appointment for severe dental pain on 30/10/2022 at 2.30pm”; and
(iii)a dentist’s appointment card with a handwritten appointment date of Tuesday 1 November 2022 at 3.30pm;
(k)on 31 October 2022 Chambers emailed the parties noting Mr Singh’s adjournment request and the documents provided to Chambers and enquiring of the Minister’s lawyers as to whether there was any objection to Mr Singh’s adjournment request;
(l)later on 31 October 2022 the Minister’s lawyers wrote to Mr Singh and to Chambers advising that:
(i)the Minister objected to Mr Singh’s request for an adjournment;
(ii)the previous listing on 26 May 2022 was adjourned for broadly the same reasons as the current adjournment request, being Mr Singh’s dental illness;
(iii)a tooth extraction, which Mr Singh had said was scheduled for 1 November 2022, should not prevent him from appearing in an online hearing on 2 November 2022 for a matter which had been on foot for approximately three years;
(m)later still on 31 October 2022 Chambers emailed the parties advising that:
(i)if Mr Singh still sought an adjournment of the final hearing on 2 November 2022 at 3.30pm ACDT/1.00pm AWST he should make an Application in a Proceeding (the appropriate form was attached to the email) supported by affidavit/s and a report (not simply a medical certificate) from his treating dentist indicating:
(A)the nature of his dental illness/injury;
(B)why that illness/injury renders him unable to attend Court by videolink or telephone on 2 November 2022 at 3.30pm ACDT/1.00pm AWST; and
(C)how long it would be before he was able to attend Court by videolink or telephone; and
(ii)Mr Singh must also be aware that his treating dentist may need to be available to be cross-examined as the Minister opposed the adjournment request;
(n)on 1 November 2022 at 2.17pm AWST Mr Singh wrote to Chambers advising that:
(i)his tooth extraction was finished;
(ii)his dentist was not prepared to provide an affidavit, but had provided a “medical certificate” which was in fact a handwritten letter from his dentist stating that Mr Singh was:
Unable to work on 2/11/22 due to Dental Extraction. Back to work on 3/11/22
(o)on 1 November 2022 Chambers emailed the parties to advise that the matter remained listed for hearing on 2 November 2022 at 1.00pm AWST/3.30pm ACDT; and
(p)Mr Singh did not file an Application in a Proceeding seeking to adjourn the hearing on 2 November 2022.
The Court notes that the necessity for there to be appropriate medical (here dental) evidence concerning the effect of any alleged issues upon a person’s capacity to deal with or engage in the litigation concerned and before any indulgence (such as an extension of time or adjournment) can be granted is well-established: NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [4]-[10] per Lindgren J; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [47]-[50] and [52] per Collier, Griffiths and Mortimer JJ; Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] per Pagone J (“Singh”); AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815 at [19] per Lee J; Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1744 at [18]-[20] per Judge Lucev. As the Federal Court pithily observed per Pagone J in Singh at [2]:
… what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing.
Whilst, because of the manner in which the matter was ultimately heard, it was unnecessary to make a formal ruling with respect to any adjournment of the proceedings on the basis of Mr Singh’s dental issues, it is appropriate to observe that the bare dental and medical certificates provided did not meet the standard set out in Singh (and the other cases cited) and would not have founded a basis for the adjournment of the hearing on 2 November 2022 had such an application been formally made.
Grounds
There are no grounds set out in the Judicial Review Application.
Written submissions
Mr Singh did not file written submissions in support of the Judicial Review Application.
The Minister filed written submissions submitting that:
(a)the Judicial Review Application contains no grounds and could be dismissed on that basis alone, citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J:
(b)the Tribunal had regard to relevant evidence, submissions, the criteria under cl 500.212(a) of Sch 2 of the Migration Regulations and factors under Direction 69 in determining that Mr Singh did not meet that criteria, and therefore affirmed the Delegate’s Decision;
(c)there was no breach of procedural fairness hearing or notification of issues requirements; and
(d)the Tribunal Decision was not affected by jurisdictional error.
Hearing
On 2 November 2022 the hearing of the matter commenced at 1.10pm ACDT. At hearing, Mr Singh was assisted by a Punjabi interpreter. Mr Singh made no application at the hearing for an adjournment.
At the commencement of hearing the Court explained to Mr Singh, in the context of migration judicial review proceedings, the necessity to establish, and the nature of, jurisdictional error. The Court then marked the CB as Exhibit 1. Mr Singh said that he did not have a copy of the CB. It was unclear as to whether Mr Singh was asserting that he had not been served with the CB or that he simply did not have the CB to hand. The Minister’s lawyer submitted that a copy of the CB was served by email on 25 February 2020, but was unable to confirm if a copy of the Court Book had been served by ordinary post.
Rather than attempt to resolve the issue of whether the CB had been served and whether Mr Singh had a copy, or a copy to hand, of the CB, the Court, having regard to Mr Singh being self-represented, seemingly not having a copy of the CB to hand, the recent history of dental issues (and albeit that the certification in respect thereof was not sufficient to warrant an adjournment), and out of an abundance of caution, indicated that it would ask the Minister to make oral submissions forthwith and then adjourn the hearing to 12.00pm ACDT the next day (3 November 2020), and would also order that a copy of the CB be served on Mr Singh by email by 6.00pm ACDT on 2 November 2020 . The effect of the Court adopting that course gave Mr Singh the benefit of:
(a)having heard and having some time to reflect upon the Minister’s oral submissions;
(b)receipt (or further receipt) of the CB; and
(c)a further appearance before the Court on a day not the subject of a medical or dental certificate.
On 3 November 2022 the hearing of the matter resumed and Mr Singh submitted: Transcript at pp 7-8, that:
(a)he had to “change a couple of courses” due to the environment he comes from that he needed to “adjust” himself in the “atmosphere here or the situation here”;
(b)he followed “all the system as it was there” but he was still not granted a visa;
(c)he should have been granted the Student Visa because he “provides them everything”, that he had sent all the documents to the Tribunal and the Tribunal had not taken the “right decision” on his case;
(d)he had not “done any mistake” and had provided whatever documents were asked for about his finances and other things;
(e)he came here from school and he was unable to understand, and that was the reason he “changed a couple of courses” because he had “come into IT” and from there he changed his courses to business; and
(f)the last course he changed was cookery and he also had a course in relation to management but cookery was also related to his course “because it was a subject course which could have helped [him] in the future”.
The Minister’s lawyer made no further submissions other than that Mr Singh had not identified any jurisdictional error in the Tribunal Decision and on that basis submitted the matter should be dismissed with costs.
Consideration
Jurisdictional error required
The Tribunal Decision may only be set aside by this Court upon judicial review if it is affected by 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. Such an error will only constitute a jurisdictional error 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, authority or powers given under the Migration Act: Minister for Immigration & 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 & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine Mr Singh’s claim for the Student Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J (“Quin”).
No grounds of review
As indicated above, the Judicial Review Application contains no grounds for review. Rule 4.02 of the GFL Rules states that the content of an application must briefly state the orders sought and the basis on which the orders are sought. No advantage was taken by Mr Singh of the opportunity afforded by the June 2022 Orders to file an amended Judicial Review Application to include grounds for review. Notwithstanding the opportunity to make oral submissions afforded to Mr Singh at the adjourned hearing on 3 November 2022, after having heard the Minister’s oral submissions at hearing on 2 November 2022, Mr Singh said nothing by way of submission relevant to the establishment of jurisdictional error, and, therefore, nothing that could constitute grounds for review. It follows that there are no grounds for review, and that the Minister may have no case to answer: WZAQB v Minister for Immigration & Anor [2012] FMCA 688 at [34] per Lucev FM.
In C v Minister for Immigration and Multicultural Affairs [1999] FCA 1663 (“C v MIMA”) the Federal Court was dealing with an application for judicial review with no grounds specified, but in which the applicant made submissions at hearing which specified, as the Federal Court interpreted the argument, a number of errors by the Refugee Review Tribunal which included a failure to have regard to evidence provided by a humanitarian non-government organisation, a failure to ask the “what if I am wrong” test in relation to the findings made, a failure to give reasons for decision, and giving a decision which was induced or affected by actual bias: C v MIMA at [8] per Mansfield J. The Federal Court relied on a provision of the then Federal Court Rules 1976 (Cth), the same in substance as r 1.07 of the GFL Rules, to dispense with non-compliance with a requirement to set out grounds of judicial review as it felt it was in the interests of justice to do so: C v MIMA at [6] per Mansfield J. In expressing that the Minister had suffered no prejudice the Federal Court stated in C v MIMA at [7] per Mansfield J that:
It would be unjust in those circumstances to deprive the applicant of the opportunity for judicial review, with the possible consequence (as he alleges) that he will be returned to Bangladesh where he will be persecuted, by reason of his failure fully to comply.
The circumstances referred to by the Federal Court in C v MIMA at [7] per Mansfield J were that following the making of the submissions made by the applicant, the Federal Court adjourned the proceedings to allow the Minister to consider the applicant’s submissions and make any necessary further submissions, and the Minister did not make any submission that the application should not be entertained given those circumstances: C v MIMA at [3] per Mansfield J.
In Gao v Federal Privacy Commissioner [2002] FCA 823; (2002) 76 ALD 447 at [20]-[21] per Goldberg J (“Gao”) the Federal Court found it inappropriate to extend the time in which to bring an application for review against the Federal Privacy Commissioner under the Administrative Decisions Judicial Review Act 1975 (Cth) as on the material before the Federal Court no grounds of review were disclosed, and nor did the application for review or applicant’s affidavit in Gao particularise facts or other matters or circumstances capable of constituting relevant grounds of review: Gao at [20] per Goldberg J.
In judicial review proceedings under the Migration Act the failure to particularise grounds of review is sufficient to warrant an application for judicial review being dismissed by this Court: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J, citing WZAVW. This is not a case of failure to particularise grounds of review, but a case where there are no grounds of review, and therefore the reasoning relating to failure to particularise grounds of review applies, with even stronger force.
In circumstances where:
(a)the Judicial Review Application contains no grounds of review, and Mr Singh:
(i)was given the opportunity by reason of the June 2022 Orders to include grounds of review in an amended Judicial Review Application; and
(ii)failed to take advantage of the opportunity provided by the June 2022 Orders to file an amended Judicial Review Application with particularised grounds of review; and
(b)when given the opportunity at hearing to make submissions, none of the submissions made by Mr Singh could be said to constitute a proper ground of judicial review (as opposed to impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ),
the failure to provide grounds of review of itself is sufficient, in the circumstances, to warrant dismissal of the Judicial Review Application.
Jurisdictional error otherwise
The Court is however 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 that regard, the Court observes that the Tribunal:
(a)had regard to Mr Singh’s oral evidence at the Tribunal Hearing, the written statement he provided with the Student Visa application, undated submissions from his representative received by the Tribunal in about October 2019, and some documents relating to the financial position of Mr Singh’s family in India: CB 116 [9]-[10];
(b)understood that Mr Singh had to satisfy cl 500.212(a) of Sch 2 to the Migration Regulations: CB 115 at [7]-[8], and considered Mr Singh’s evidence against factors in Direction 69 (which it set out): CB 117-121, as it was obliged to do insofar as any of those factors were relevant: Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 at [13]-[15] per Middleton J (followed in Nikolli v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 940 at [12]-[13] per Judge Lucev);
(c)considered Mr Singh’s circumstances, including:
(i)the extent of his ties to India;
(ii)the length of his stay in Australia;
(iii)his choice of study courses, and the value of those courses to his future; and
(iv)Mr Singh’s immigration history,
and in so doing applied factors in Direction 69 relevant to the evidence concerning Mr Singh’s circumstances. The Tribunal thereby complied with its obligation to consider those factors: Migration Act, s 499(2A). In considering those factors it made findings that were open on the materials before the Tribunal, and review of which would, in the relatively straightforward circumstances of this case, constitute impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Quin, CLR at 35-36 per Brennan J.
On the basis set out in the preceding paragraph it was open to the Tribunal to find that Mr Singh did not meet cl 500.212(a) of Sch 2 of the Migration Regulations and to therefore affirm the Delegate’s Decision.
The Court also notes that the Tribunal was required to invite Mr Singh to appear before it to give evidence and present arguments relating to the issues arising on the Tribunal’s review of the Delegate’s Decision: Migration Act, s 360(1); SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The Tribunal gave Mr Singh a fair and meaningful opportunity to be heard pursuant to s 360(1) of the Migration Act in that Mr Singh:
(a)attended the Tribunal Hearing at the Tribunal’s invitation to give evidence and present arguments, with the assistance of his migration agent: CB 108; and
(b)was on notice of the dispositive issues before the Tribunal by reason of the Delegate’s Decision: CB 50-59.
In the circumstances set out at [24]-[26] above the Court is satisfied that there is no jurisdictional error otherwise occurring in the Tribunal Decision.
Conclusion and Orders
The Court has concluded 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 4 November 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 thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 30 November 2022
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