Singh v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 935

Federal Circuit and Family Court of Australia

(DIVISION 2)

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 935

File number(s):

SYG 2234 of 2018

Judgment of:

JUDGE LAING

Date of judgment:

14 November 2022

Catchwords:

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal misconstrued cl 500.215 by not considering whether the applicant could make adequate health insurance arrangements – whether the Tribunal impermissibly made a finding for which there was no evidence or that was legally unreasonable – whether the procedure adopted by the Tribunal was reasonably open – application dismissed.

Legislation:

Migration Act 1958 (Cth) s 499

Migration Regulations 1994 (Cth) cl 500.212, cl 500.215

Cases cited:

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601

SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51; (2009) 177 FCR 1

Division:

Division 2 General Federal Law

Number of paragraphs:

33

Date of hearing:

8 November 2022

Place:

Sydney

Counsel for the Applicant

The applicant appeared by telephone.

Solicitor for the First Respondent

Mr E Taylor (Mills Oakley) appeared in-person.

Counsel for the Second Respondent:

Submitting appearance, save as to costs.

ORDERS

SYG 2234 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SANDEEP SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	14 November 2022

THE COURT ORDERS THAT:

1.The application 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 LAING

INTRODUCTION

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (student visa).

   background

2. The applicant is a citizen of India. He applied for a student visa on 26 September 2017.

3. The Delegate refused the application on 28 December 2017. The Delegate was not satisfied the applicant had provided sufficient evidence to demonstrate that adequate health insurance arrangements had been made for the duration of his intended stay in Australia. Accordingly, the Delegate found that the criterion in cl 500.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) could not be met.

4. On 3 January 2018, the applicant sought review of the Delegate’s decision by the Tribunal. The applicant attended a hearing before the Tribunal on 9 May 2018.

5. On 9 July 2018, the Tribunal affirmed the Delegate’s decision.

   RELEVANT LAW

6. A criterion in issue before the Tribunal was cl 500.215 of Schedule 2 of the Regulations, which provided:

   500.215

   The applicant gives to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.

7. The Tribunal also considered cl 500.212 of the Regulations, which provided:

   500.212

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subjected; and

   (c)       of any other relevant matter.

8. In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:

   (a)the applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to their future;

   (b)the applicant’s immigration history; and

   (c)any other relevant information.

9. The Direction indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.

   the tribunal’s deciSion

10. The Tribunal identified the following two issues before it (at [9]):

    (a)whether the applicant had adequate arrangements in place for health insurance in Australia for the period of his intended stay; and

    (b)whether the applicant was a genuine applicant for entry and stay in Australia as a student.

11. The Tribunal noted that the applicant had not responded to previous requests by the Department to produce evidence of Overseas Student Health Cover (OSHC). On 3 January 2018, after the date of the Delegate’s decision, the applicant provided the Tribunal with evidence of OSHC covering the period from 26 September 2017 to 30 September 2019 (at [11]).

12. At the hearing before the Tribunal, the applicant provided evidence that he had enrolled in a Master of Business Administration on 8 May 2018, the day before the hearing. The course was due to run from 7 May 2018 to 1 May 2020. The Tribunal received evidence from the applicant after the hearing that his OSHC policy had been extended up to 31 January 2020. The Tribunal observed that this did not cover the full period of his study as outlined in the Confirmation of Enrolment (COE) (at [12]-[13]).

13. At [14], the Tribunal considered the applicant’s evidence that he would complete his Master of Business Administration course within six months of the date of the hearing. On that basis, he had contended that the timeframe identified in the COE was not relevant, as he did not intend to remain in Australia until 2020. The Tribunal had given the applicant further time after the hearing to provide evidence in support of this claim. However, the applicant had subsequently written to the Tribunal claiming to have been misguided as to the number of credits that he would be granted. The applicant submitted that another college would give him credits but that he required an 8–month student visa.

14. Having regard to the submissions provided by the applicant after the hearing, the Tribunal was not satisfied that the duration of study provided in the COE should be disregarded. The Tribunal was unwilling to place weight upon his claim that a different education provider may give him further credits, in the absence of documentary evidence in support of this claim (at [15]). As the applicant had not demonstrated that he had adequate health insurance arrangements in place until May 2020, the Tribunal was not satisfied that he met cl 500.215 of Schedule 2 to the Regulations (at [16]-[17]).

15. In assessing whether the applicant was a genuine applicant for entry and stay in Australia as a student, and having regard to the effect of Direction No. 69, the Tribunal considered the following:

    (a)The applicant had not completed any courses he had been enrolled in since June 2014 (at [22]);

    (b)The applicant told the Tribunal that he had intended to study in Australia to qualify for a Master of Business Administration, in order to become successful in business in India. The Tribunal placed limited weight upon this claim, considering the applicant’s study history. The Tribunal observed that the applicant was initially enrolled in this course in 2014. However, the applicant did not study this course and instead enrolled into a Master of Information Sciences course. He maintained that study pathway until ceasing study in 2017. The applicant had, at the time of the hearing, only recently re-enrolled in a Master of Business Administration course. The Tribunal was not persuaded he had done so for genuine study purposes (at [23]);

    (c)The Tribunal was concerned that the applicant may have an economic incentive to remain in Australia. Considering the applicant’s bank records, the Tribunal noted that the applicant frequently earned higher wages than he had reported at the hearing before the Tribunal. The Tribunal stated that “[g]iven the comparative economic circumstances and earning potential the applicant has between India and Australia, the Tribunal has concern the applicant has an economic incentive to maintain his residency in Australia” (at [24]).

16. Having regard to the applicant’s circumstances, including his immigration and study history, his circumstances abroad and in Australia and other relevant matters, including Direction No. 69, the Tribunal was ultimately not satisfied that the applicant intended genuinely to stay in Australia as a temporary entrant. Accordingly, the Tribunal was not satisfied the applicant met the requirement in cl 500.212(a) of Schedule 2 to the Regulations (at [25]-[26]).

17. The Tribunal concluded the applicant did not meet the criteria for the grant of a student visa and affirmed the Delegate’s decision (at [29]).

    PROCEEDINGS BEFORE THIS COURT

18. The applicant commenced the current proceedings by an application filed on 10 August 2018, relying upon the following grounds:

    1.The Second Respondent (Tribunal) made a jurisdictional error by misconstruing cl 500.215 of Sch 1 to the Migration Regulations 1994 (Cth):

    Particulars

    a.The Tribunal held at para 16 of its decision that the Applicant did not meet cl 500.215 as he did not have health insurance at least up until May 2020;

    b.The Tribunal had evidence before it that the Applicant had health insurance valid until 31 January 2020;

    c.The Tribunal further had evidence before it as to the Applicant’s earning capacity;

    d.The Tribunal, in order to reach the state of satisfaction as to whether to 500.215 was met, ought to have considered whether the Applicant could make adequate arrangements for health insurance otherwise than by a policy valid until May 2020, including renewal of extension of the existing policy before end January 2020.

    2.The Tribunal made a jurisdictional error by making a finding of fact for which there was no evidence or which was legally unreasonable.

    Particulars

    a.The Tribunal found at para 24 of its decision that the Applicant had an economic incentive to remain in Australia;

    b.The Tribunal found that this incentive was due to the comparative economic circumstances and earning potential of the Applicant in India;

    c.        There was no evidence before the Tribunal regarding the comparison;

    d.There was not an evident and intelligible justification for the comparison.

    Ground 1

19. Ground 1 contended that the Tribunal misconstrued cl 500.215 by not considering whether the applicant could make adequate arrangements for health insurance other than by a policy valid until May 2020 (such as by renewing the existing policy before its expiry).

20. I do not accept that the Tribunal misconstrued cl 500.215 by not reasoning in this manner. Clause 500.215 required evidence, at the time of decision, of adequate arrangements for health insurance during the period of the applicant’s intended stay in Australia. The Tribunal did not misunderstand cl 500.215 in not reasoning that arrangements that might be put in place, at some point in the future, were capable of satisfying this criterion.

21. In submissions to the Court, the applicant suggested that the Tribunal did not adequately consider his evidence regarding OSHC or understand his submissions regarding having been misled as to his course duration. The applicant also contended that the Tribunal contradicted its own statements and failed to give him an opportunity to prove OSHC, which was mismatched with his COE. These contentions cannot be sustained on the material before the Court.

22. The Tribunal considered the applicant’s submission that he would not need the full amount of time indicated on his COE in order to complete his degree. Further time was given to the applicant after the Tribunal hearing to provide further evidence in this regard and to provide evidence of adequate OSHC. That time was extended for an additional week in accordance with a request by the applicant’s representative. In response, the applicant provided evidence of OSHC that did not cover the full period of studies indicated on his COE. The applicant did not, however, provide evidence that his education provider would allow him to complete the course in the timeframe he had contended. The Tribunal observed that the applicant had instead submitted that he had been misguided in this regard by his education agent (at [14]). The applicant did not seek further time in which to arrange alternative OSHC. Instead, the applicant sought an 8 month visa to facilitate his engagement with another education provider he claimed may provide him with additional credits (thus shortening his course).

23. At the hearing before the Court, the applicant submitted that no one told him that he needed to provide OSHC for the period indicated on his COE. However, like the Tribunal, the Delegate took issue with the fact that the applicant had not provided evidence of OSHC until the date indicated on his (earlier) COE as the date for finalisation of his studies. The applicant was on notice, at least from the Delegate’s decision, that he needed to provide evidence of OSHC arrangements that covered the duration of his study in Australia. The applicant sought to persuade the Tribunal that his period of study was less than indicated on his COE.

24. The Tribunal declined to place weight upon the applicant’s claim that another education provider may give him further credits, in the absence of any documentary evidence in support of this claim. Instead, the Tribunal placed weight upon the course timeframe indicated by the COE that the applicant had provided. As the health insurance arrangements he had made did not cover this period, the Tribunal was not satisfied that the applicant met cl 500.215.

25. The above reasoning, and approach taken by the Tribunal, was not unintelligible. I accept the Minister’s submission that it was reasonably open to the Tribunal to proceed in the manner that it did. This was in circumstances where the applicant had been given further opportunity to address the difficulties in his evidence after his hearing before the Tribunal. His response did not seek additional opportunity to provide evidence of extended OSHC that was capable of matching the COE he had provided.

26. It follows that ground 1 is unable to succeed.

    Ground 2

27. Ground 2 contended that the Tribunal made a finding that the applicant had an economic incentive for remaining in Australia, based upon his comparative circumstances in India, for which there was no evidence and/or that was legally unreasonable.

28. An initial difficulty is that the Tribunal does not appear to have made a finding in the form contended. At [24], the Tribunal observed that the applicant’s bank records appeared to indicate that the applicant was making more money in Australia than the applicant had claimed during his hearing before the Tribunal. The Tribunal expressed a “concern” that the applicant may have an economic incentive to maintain residence in Australia, considering his comparative economic circumstances and earning potential in India. However, the Tribunal made no clear finding that the applicant’s economic circumstances and earning potential were greater in Australia than India, or that he in fact had an economic incentive to remain in Australia (as distinct from a “concern” that he may have such an incentive).

29. In any event, even if I did accept that the Tribunal found that the applicant had an economic incentive to remain in Australia due to greater economic circumstances or earning potential, I would not have been persuaded that this reasoning lacked an evidence or intelligible justification or required the identification of specific evidence in order for it to have been open to the Tribunal. In this regard, I accept the Minister’s submission that the source of such a finding would have likely come from the Tribunal’s common or accumulated knowledge: see Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 at [7], [116], [263]-[264]. Such sources did not require the Tribunal to identify explicitly their precise origins: SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51; (2009) 177 FCR 1 at [148]-[153].

30. Further, I accept Mr Taylor’s submission for the Minister that the Tribunal’s findings regarding cl 500.215 represented a separate and independent basis for its decision, additional to its finding that the applicant was unable to meet cl 500.212(a). Therefore, even if I had accepted that error had been demonstrated under this ground, I would have been obliged to find that materiality had not been established in the sense considered in cases such as Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

31. It follows that ground 2 is unable to succeed.

    CONCLUSION

32. For the above reasons, the application must be dismissed.

33. I will hear from the parties in relation to costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       14 November 2022