Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 937
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 937
File number(s): ADG 523 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 15 November 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – student visa - citizen of India - whether enrolled in a course of study at time of decision – whether jurisdictional error Legislation: Education Services for Overseas Students Act 2000 (Cth) Pt 2, Div 3
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Migration Act 1958 (Cth) ss 359, 360, 474, 476
Migration Regulations 1994 (Cth) reg 1.03, Sch 2 cll 500.111, 500.212
Cases cited: AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494; (2008) 274 ALR 55; (2008) 119 ALD 60
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 Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
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
Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 220
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 27 October 2022 Date of hearing: 27 October 2022 Place: Heard in Perth, delivered in Adelaide First Applicant: In person via CISCO Webex (with the assistance of an interpreter) and appearing for the second and third applicants Counsel for the First Respondent: Mr C Retallick via CISCO Webex Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 523 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: INDERJIT SINGH
First Applicant
NAVNEET KAUR
Second Applicant
PARTIK SINGH BY HIS LITIGATION GUARDIAN INDERJIT SINGH
Third 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:
15 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 30 December 2019 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Introduction
Before the Court is an application filed on 30 December 2019 by the applicant, Mr Inderjit 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”).
The other applicants in the Judicial Review Application are Ms Navneet Kaur and Mr Partik Singh, who are Mr Singh’s wife and son respectively. Mr Singh is his son’s litigation guardian in this case. For convenience, the Court will only refer to Mr Singh in the remainder of these Reasons for Judgment, as his wife and son’s visa status is dependent upon the grant or refusal of Mr Singh’s Student Visa.
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 148-151. An affidavit sworn by Mr Singh on 30 December 2019 (“Singh Affidavit”) was tendered and read into evidence, subject to relevance. Apart from the annexed copy of the Tribunal Decision and an admission that at the time of the Tribunal Decision Mr Singh had already completed the course in respect of which he had applied for a Student Visa, nothing turns on the Singh Affidavit which otherwise argues that he is a genuine student and annexes other documents which are irrelevant to the Judicial Review Application. Fresh evidence of these latter matters is unnecessary and irrelevant for judicial review purposes: MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] per Gordon J.
Background
The relevant background to the matter is as follows:
(a)Mr Singh is a citizen of India who arrived in Australia on 7 November 2008 on a Student Temporary (class TU) Vocational Education and Training Sector subclass 572 visa: CB 97;
(b)following the initial arrival of Mr Singh to Australia, Mr Singh was granted four Student Temporary (class TU) Vocational Education and Training Sector subclass 572 visas on 10 January 2011, 21 February 2012, 18 January 2013 and 18 December 2014: CB 97;
(c)Mr Singh lodged this Student Visa application on 16 June 2017 on the basis that Mr Singh would undertake studies in an Advanced Diploma of Management (Human Resources) for a period of one year: CB 97;
(d)on 14 September 2017 the Delegate refused to grant Mr Singh a Student Visa on the basis that he did not meet the requirements set out in cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 89-103;
(e)on 18 September 2017 Mr Singh applied to the Tribunal for review of the Delegate’s Decision: CB 104-109;
(f)more than two years later on 24 October 2019 the Tribunal invited Mr Singh to provide further information in writing regarding Mr Singh’s enrolment in a registered course of study and evidence pertaining to Mr Singh being a genuine applicant for entry and stay in Australia as a student: CB 114-120;
(g)on 28 October 2019 the Tribunal invited Mr Singh to attend a Tribunal hearing on 20 December 2019 as the Tribunal was unable to make a favourable decision based on the material and information presently before it: CB 122-123;
(h)on 5 November 2019 Mr Singh responded to the Tribunal’s invitation to attend a Tribunal hearing and indicated that he would not take part in the Tribunal hearing: CB 124-127;
(i)on 6 November 2019 Mr Singh provided the Tribunal with a response to a request for information pursuant to s 359(2) of the Migration Act (“Mr Singh’s Response”): CB 128-143;
(j)as a consequence of Mr Singh not seeking to take part in the proposed Tribunal hearing, on 12 November 2019 the Tribunal informed Mr Singh of the cancellation of the Tribunal hearing: CB 145; and
(k)on 16 December 2019 Mr Singh was notified of the Tribunal Decision which affirmed the Delegate’s Decision not to grant Mr Singh a Student Visa: CB 148-151.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)set out the background of application for review to the Tribunal: CB 149 at [1]-[3];
(b)identified that the criteria for granting a Student Visa was contained in Pt 500 of Sch 2 of the Migration Regulations: CB 149 at [9];
(c)noted that the Delegate’s Decision to refuse Mr Singh a Student Visa concerned compliance with cl 500.212 of Sch 2 of the Migration Regulations and whether Mr Singh was a genuine temporary applicant for entry and stay as a student: CB 149 at [11];
(d)set out Mr Singh’s immigration history: CB 150 at [12];
(e)noted that since 16 June 2017 Mr Singh had been on a bridging visa: CB 150 at [12];
(f)determined that the relevant issue was whether Mr Singh satisfied the primary criteria set out in cl 500.211 of Sch 2 of the Migration Regulations and set out the relevant subsections of that clause: CB 150 at [14];
(g)identified that under cl 500.211(a) of Sch 2 of the Migration Regulations Mr Singh was required to be enrolled in a course of study and noted that Mr Singh did not claim to meet any of the alternative requirements. In Mr Singh’s Response the Tribunal were advised that Mr Singh had completed his course of study in July 2018 and was currently not enrolled in a course of study as required under cl 500.211 of Sch 2 of the Migration Regulations: CB 150 at [15]-[16];
(h)observed the comments made in Mr Singh’s Response in which Mr Singh claimed that by completing his intended course of study while waiting for the Tribunal to review the Delegate’s Decision he demonstrated that he was a genuine temporary entrant: CB 150 at [17]; and
(i)concluded that it could not be satisfied that Mr Singh met the criteria for the granting of a Student Visa and, accordingly, affirmed the Delegate’s Decision to not grant Mr Singh a Student Visa: CB 150-151 at [18]-[20].
Judicial Review Application
Litigation History
The Judicial Review Application was filed in the Adelaide Registry of the Court (then the Federal Circuit Court of Australia) on 30 December 2019. Given the delay in the matter coming to hearing it is appropriate to set out the litigation history of the matter, which is as follows:
(a)on 3 March 2020 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 26 May 2022 the parties attended a directions hearing where orders (“May 2022 Orders”) were made that:
(i)Mr Singh file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 27 September 2022;
(ii)the Minister file and serve any amended response, affidavits in reply, and an outline of submissions by 10 October 2022; and
(iii)the matter be listed for a final hearing by video link on 27 October 2022 at 11.00am AWST/1.30pm 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 (Division 2) (General Federal Law) Rules 2021 (Cth) if Mr Singh did not appear at the final hearing;
(e)a copy of the May 2022 Orders, and a Notice of Listing advising that the matter was listed for hearing by videoconference on 27 October 2022, were emailed to the parties later on 26 May 2022;
(f)Mr Singh filed no submissions or documents pursuant to the May 2022 Orders; and
(g)on 29 September 2022 the Minister filed an outline of submissions pursuant to the May 2022 Orders.
Grounds
There are five grounds in the Judicial Review Application as follows (reproduced unaltered):
1.As per my understanding, the Administrative Appeal Tribunal (AAT) has made an error by not considering my situation and agreeing to the fact that I was a genuine student and made a valid and genuine application with the Department of Home Affairs (DHA) when I was studying my course for Advanced Diploma of Management (Human Resources).
2.I explained to AAT in the written response on 06/11/2019 that when my Student Visa Application for Subclass 500 got refused on 14/09/2017, I did mentioned in my GTE Statement that I am a genuine student and have studies till now in Australia and lived as well complying always with my visa conditions.
3.I did mention to the AAT that I have already completed my course for which I made the student visa application with DHA but was only waiting for AAT to open my case and grant me visa as I always wanted to let the Department know that I was a genuine student and completed my qualification based on which I applied the visa. If I would have not been a genuine student then I would have left the course in-between when the visa got refused and would have saved all my course money and time spent on my studies, which I didn’t.
4.So, the main purpose for the AAT Application was and that they have done injustice to my case is that considering all this if the AAT even would have granted me a visa for a day the I would have not hold the black mark on my file which I did get because of the visa refusal and will return back to my home country accordingly after that.
5.My intentions were always clear and were genuine to study in Australia being a genuine student but the chance was actually snatched from me by the DHA which AAT even didn’t consider.
Mr Singh’s submissions
Mr Singh did not file written submissions in support of the Judicial Review Application: see [6(f)] above.
In oral submissions at hearing, Mr Singh’s submissions went no further than to assert that he was a genuine student who wished to resume his studies. In his submissions in reply Mr Singh conceded that he had no confirmation of enrolment for a course of study at the time of the Tribunal Decision.
Minister’s submissions
The Minister submitted that:
(a)the Tribunal Decision was made on the basis of Mr Singh’s lack of enrolment (for the purposes of cl 500.211 of Sch 2 of the Migration Regulations) at the time the Tribunal Decision was made, whereas the issue before the Delegate was whether Mr Singh met the criteria as contained in cl 500.212 of Sch 2 of the Migration Regulations: Minister’s Submissions at [18];
(b)the Tribunal was required to provide Mr Singh with an opportunity to present evidence relating to the issue in contention: 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 (“SZBEL”), however, the Tribunal was not required to give Mr Singh notice of the issues in contention prior to the commencement of the Tribunal Hearing: AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494; (2008) 274 ALR 55; (2008) 119 ALD 60: Minister’s Submissions at [18];
(c)on 28 October 2019 the Tribunal invited Mr Singh to attend a Tribunal hearing, but Mr Singh declined the invitation and consented to the Tribunal review application being determined without a Tribunal hearing: Minister’s Submissions at [19];
(d)Mr Singh was specifically advised by the Tribunal that a requirement for the grant of the Student Visa was current enrolment in a course of study: CB 114-115, and, as such, information regarding whether Mr Singh was enrolled in a course of study was required to be put before the Tribunal. In reply Mr Singh stated that he was not enrolled in a course of study: CB 133, Minister’s Submissions at [20]; and
(e)the Tribunal Decision not to grant Mr Singh a Student Visa, on the basis that Mr Singh was not enrolled in a course of study, was plainly correct, and that the Tribunal Decision was not affected by jurisdictional error: Minister’s Submissions at [21]-[22].
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 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. 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.
Grounds
It is unnecessary to address the grounds individually. Mr Singh appears to assert that the Tribunal erred by not considering Mr Singh’s circumstances and by affirming the Delegate’s Decision. Mr Singh claims that he is a genuine student and has studied in Australia while complying with his visa conditions, and that if he were not a genuine student then he would have left the course of study once his Student Visa was refused by the Delegate.
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.
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 fairly recent judgments will suffice for present purposes.
In Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350 at [29]-[31] per Banks-Smith J the Federal Court of Australia observed that:
29. Before me, the appellant said that he did not have a certificate of enrolment because he wished to await the grant of a visa before incurring the costs of enrolment. He also said he wanted a second chance to continue his studies, as he came to Australia for that purpose.
30.Whilst I can well understand the appellant’s desire to continue studies in Australia, the matters he has raised do not comprise a basis for finding appellable error on the part of the primary judge.
31.It is clear that the Tribunal properly understood its task. It ascertained that the appellant had failed to provide evidence of enrolment at the date of its decision and applied the relevant definition, as required for the purpose of considering whether the criterion for the subclass 500 visa was met. It applied the definition correctly. Accordingly, no jurisdictional error on the Tribunal’s part is disclosed and the primary judge did not err in dismissing the review application.
In Dhawan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1335 (“Dhawan”) at [58] per Judge Kendall (followed in Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 220 at [18]-[20] per Judge Lucev) the then Federal Circuit Court of Australia observed that:
... it was not relevant why the applicant was not enrolled. It was only relevant whether he was enrolled. Hence, the fact that he was not allowed an opportunity to explain “why” is of no consequence.
No enrolment
Mr Singh admitted that he was not enrolled in a course of study: CB 150 at [16]. 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.
Mr Singh’s assertions that he meets the genuine temporary entrant criteria (in cl 500.212 of Sch 2 to the Migration Regulations) are misconceived and miss the point. Mr Singh did not meet the relevant criteria in cl 500.211(a) of Sch 2 to the Migration Regulations at the time of the Tribunal Decision which required Mr Singh to be enrolled in a course of study. Mr Singh provided evidence to the Tribunal (and to this Court: Singh Affidavit at [1]) that he was not so enrolled. Nothing put by Mr Singh constitutes jurisdictional error in the Tribunal Decision.
The Tribunal’s affirmation of the Delegate’s Decision to refuse Mr Singh a Student Visa on different grounds is immaterial because the Tribunal was required to hear and consider the matter anew, and at the time of the Tribunal Decision 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.
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.
The Court 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 was also required to put Mr Singh on notice of the determinative issues in the review so that he may have an opportunity to present arguments or evidence on those issues. In circumstances where specific aspects of a matter may be referred to in the Tribunal Decision and may be open to doubt, the Tribunal must also at least ask for an explanation or expansion of the evidence in relation to those specific aspects: SZBEL at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
On the material before the Court the Tribunal:
(a)invited Mr Singh to a Tribunal hearing which he declined to attend: CB 121-127;
(b)requested Mr Singh provide further information, and specifically information as to whether he was currently enrolled in a course, to which Mr Singh responded advising that he was not so enrolled: CB 128-143; and
(c)provided Mr Singh a meaningful opportunity to put forward all relevant materials to make out his case.
It follows from the above that Mr Singh was not denied procedural fairness by the Tribunal.
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 30 December 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 twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 November 2022
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