Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 805
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 805
File number(s): ADG 344 of 2018 Judgment of: JUDGE BROWN Date of judgment: 5 October 2022 Catchwords: MIGRATION – application for judicial review of AAT decision – citizen of India – Student (Temporary) (Class TU) visa – whether applicant was enrolled in a course of study at time of decision – whether applicant was afforded procedural fairness – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 359AA, 360, 474
Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Regulations 1994 cl 1.03, 500.111, 500.211, 500.212, Sch 2
Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
SXNXA v Minister for Immigration & Citizenship [2010] FCA 775
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 139 FCR 344
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 27 September 2022 Place: Adelaide Counsel for the Applicant: Appeared in person Counsel for the First Respondent: Mr Chan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting notice filed save as to costs ORDERS
ADG 344 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
5 OCTOBER 2022
THE COURT ORDERS THAT:
1.The application filed 3 September 2018 is dismissed.
2.The applicant pay the first respondent’s costs in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
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 BROWN:
INTRODUCTION
These reasons for judgment relate to an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 7 August 2018. The decision confirmed an earlier decision of a Delegate of the Minister for Immigration & Border Protection, made on 28 March 2017, not to grant the Applicant Harpreet Singh[2] a Student (Temporary) (Class TU) Visa[3] pursuant to the provisions of the Migration Act 1958 (Cth).[4]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “Mr Singh” or “the applicant”.
[3] Hereinafter referred to as “the student visa” or “the visa”.
[4] Hereinafter referred to as “the Act”.
Mr Singh was born in India on 13 August 1985. As far as the present visa application is concerned, Mr Singh is to be regarded as the primary visa applicant, which also supports an application of his wife, Jyoti Rani, who was born on 7 June 1990, also in India. Both Mr Singh and Ms Rani are citizens of India. They have a child, Perry Singh, who was born in India on 14 January 2017.
The applicant first arrived in Australia on 23 July 2008 pursuant to a student visa, which was granted offshore on 5 July 2008 and which was valid until 4 April 2011. The applicant applied for the visa relevant to these proceedings on 1 December 2016, some eight years after his initial visa had been granted.
At that stage he indicated a desire to complete a Diploma of Business and an Advanced Diploma of Business between September 2016 and October 2018. In a letter in support of his visa application, Mr Singh indicated that he had previously engaged in a course of study related to hospitality, which he had not been able to complete due to personal circumstances relating to his own mental ill health occasioned by the death of his mother.
He further indicated that his successful completion of the two business diploma courses, which founded his visa application, would augment his aspiration to found a chain of bakery businesses, in India, when he returned there following the completion of his studies.
The conditions which a student visa is required to satisfy before the grant of such a visa are set out in subclass 500 of Schedule 2 to the Migration Regulations 1994.[5] These various criteria are characterised as being primary criteria namely they must be satisfied at the time a decision is made in respect of any visa application.
[5] Hereinafter referred to as “the Regulations”.
Pursuant to clause 500.211 an applicant is required to be enrolled in a course of study, at the time of decision. This expression, in turn, is defined as a full-time registered course falling within the parameters of clause 500.111. This clause picks up a further regulation contained in clause 1.03.
This provides a further definition of the expression registered course, which is a course of educational training provided by an institution, which has been approved to provide the relevant course to overseas students. In bureaucratic terms, if an overseas student is enrolled in a registered course of study, he or she will be eligible to obtain a Certificate of Enrolment, from the relevant education provider.[6]
[6] Hereinafter referred to as a “COE”.
Thereafter, clause 500.212 requires the relevant visa decision maker to satisfy further criteria before the grant of a student visa. In general terms any such applicant concerned must be assessed as being genuine in their intention to stay in Australia, on a temporary basis, whilst he or she completes their approved course of study.
The relevant Minister has provided directions[7] regarding how the regulatory regime set out above is to be administered. These matters, which any administrative decision maker is required to consider, in making any student visa determination, in respect of the validity of their particular application can be summarised as follows:
·The applicant’s circumstances in his/her home country, including the economic reasons for pursuing study in Australia;
·The degree of personal ties that the applicant has to their home country;
·The existence of sound reasons for not studying in the relevant home country;
·Factors that would provide a significant incentive for the applicant not to return to their own country;
·The applicant’s potential circumstances in Australia, including evidence that the applicant concerned may be using the student visa program as a mechanism to circumvent Australia’s migration program;
·The value of the proposed course to the applicant’s future, including whether the course would assist the applicant to gain employment in their home country and the relevance of any past or future employment in this regard; and
·The applicant’s migration history.
[7] See Ministerial Direction No 69, which is referred to as such hereafter.
In refusing the current visa application, the Ministerial Delegate concerned had access to the applicant’s migration history, which indicated that he had been resident in Australia for 2,564 days and outside Australia for 489 days, from July 2008 onwards. In the period since he had held three previous visas, which were subject to a condition that he achieve satisfactory academic progress and attend classes as required.
In addition to the applicant’s migration history, the Delegate had access to information germane to him via the Provider Registration and International Student Management System.[8] This indicated that the applicant had completed a Certificate course in spoken and written English; a Diploma of Community Welfare Work; and a Certificate of Frontline Management. However, he had cancelled courses in management, business, hospitality and retail baking. Other courses had been cancelled due to his unsatisfactory progress and the failure to pay tuition fees.
[8] Hereinafter referred to as “PRISMS”.
In these circumstances, the Delegate considered that the applicant had not complied with the visa condition that he achieve satisfactory academic progress. In addition, in the context of the multiplicity of courses, which the applicant had undertaken, during his period in Australia, the Delegate concluded as follows:
Even though a person may seek a change in career, I note that the courses you have chosen are typically of a short duration, low cost and I have also noted that the courses you are attempting are somewhat related which makes me question why you would be enrolled to study the similar subjects for up to 10 years without any attempts to progress to a higher education level.
Based on all the information I have available to me, I have serious concerns about your true intentions in Australia. You appear to have enrolled in this new course for the purposes of securing a further student visa rather than due to a genuine interest in study and overall academic progress. You appear to be using the Student visa program as a means of maintaining ongoing residence in Australia and you do not seem to have a genuine intention to stay in Australia temporarily.[9]
[9] See Court Book at page 48.
In these circumstances, the Ministerial Delegate was not satisfied that the applicant had intended genuinely to stay temporarily in Australia and declined to grant the relevant visa concerned.
Given the ministerial determination, which was made on 28 March 2017, Mr Singh and Ms Rani applied to the AAT for a review of the decision. Their application was lodged with the Tribunal, on 4 April 2017, within time.
On 10 July 2018, Mr Singh and Ms Rani were invited to attend a hearing, scheduled for 7 August 2018, before the AAT. In this letter of invitation, Mr Singh was advised that he would be required to provide the following information to the Tribunal, at the hearing:
·A copy of his current COE;
·Documents relevant to his past studies in Australia, including academic transcripts and attendance records; and
·A written statement addressing the relevant directions contained in Ministerial Direction 69, a copy of which was provided to him with the letter.
In preparation for the hearing, Mr Singh appointed an agent, Dr Chahal to assist him in the preparation of his case. As a consequence, with Dr Chahal’s assistance, the applicant prepared a lengthy written submission, which was submitted to the Tribunal.
In particular, a table was prepared, which was directed to providing an overall timeline of the various qualifications undertaken and completed by Mr Singh, and the ones for which any relevant COE had been cancelled.[10] In this submission, the applicant indicated as follows:
I have been continuing with my study since 28 March 2017, the date on which my student visa was refused, but unfortunately as mentioned before the College which issued me the CoE for Advance Diploma of Business got shut down in August 2017 leaving me stranded in between and not showing me any path from where I could pursue my studies. I have been visiting various Colleges in Adelaide since the closure of Adelaide College of Technology to further pursue my studies, but all of them are reluctant to issue me a CoE because currently my case is with the Administrative Appeals Tribunal and my future visa status is not clear because of which I am have been facing difficulty in getting admission.[11]
[10] See Court Book at page 79-89.
[11] See Court Book at page 88.
THE HEARING BEFORE THE AAT
The AAT hearing is to be characterised as a merits hearing, in contrast to the current proceedings, which are directed towards judicial review of the AAT proceedings. In the former, the AAT stands in the shoes of the Delegate and conducts a fresh hearing of all relevant evidence, at the time of its decision, rather than that of the Delegate.
The decision record indicates that Mr Singh attended the hearing and was assisted by a Punjabi interpreter. The hearing concerned was relatively brief, taking approximately 23 minutes. It concluded with the member concerned delivering an oral decision, which was later augmented by a written statement, which was provided to the applicant.
In the written decision, the AAT noted that it was necessary for the applicant to provide evidence that he was enrolled in a relevant course of study before he could be granted the relevant visa.
In this context, during the hearing itself, Mr Singh was informed that the issue for resolution before the Tribunal was no longer centred on his genuine temporary student status but rather on whether he satisfied the relevant enrolment criterion, usually evidence by the production of a COE.
In this context, the decision record indicates that the following exchange took place between the Tribunal member and the applicant:
The Tribunal asked the applicant to confirm that he was no longer enrolled to study a course here in Australia as his Advanced Diploma of Business was now cancelled. The applicant acknowledged that he was no longer enrolled to study a course here in Australia and did not have a certificate of enrolment.
Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
In regard to the secondary applicant the Tribunal finds that she is not a member of a family unit of a person who satisfies the criteria in cl.500.312.
Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.[12]
[12] See Court Book at page 164 at [12]-[16].
GROUNDS FOR REVIEW
Given this decision, on 4 September 2018, the applicant commenced proceedings, in this court, seeking a judicial review of the decision of the AAT made on 7 August 2018. He has prepared his own grounds of review, which are as follows:
·Did not get chance to argument (sic);
·Could not upload my proper documents;
·Unfair to me.
On the basis of these grounds, the applicant seeks an order quashing a decision of the AAT and the matter be remitted back for further consideration.
Clearly, the applicant is dissatisfied with the outcome of the proceedings before the AAT. I can understand why this would be so. However, given the generalised and amorphous nature of his application, which is not focussed on issues of specific jurisdictional error, it is difficult for the court to discern what errors Mr Singh attributes to the Tribunal, which attract the jurisdiction of this court, other than he disagrees with the outcome and considers it unfair. This lack of particularity, of itself, provides grounds for the dismissal of his application.[13]
[13] See SXNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21] per Reeves J.
THE APPLICABLE LEGAL FRAMEWORK TO JUDICIAL REVIEW PROCEEDINGS UNDER THE MIGRATION ACT
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.
In addition, in certain circumstances, a Tribunal may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable. Legal unreasonableness is a broad concept but usually is confined to two major categories.
Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the Tribunal in question, leading the decision being able to be characterised as nugatory.
Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable in some way, as it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness. The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision.
Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness. Which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
In order to be successful in her application for review, it will be necessary for the applicant to demonstrate such an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own decision for that of the Tribunal. Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the applicant, which does not arise from his application.
In determining whether the reasoning utilised by the AAT is illogical or irrational in nature, the reviewing court must look to the applicable statutory framework applicable to its decision as well as the decision itself. In so doing the court should not subject the AAT’s reasoning to any degree of heightened or overly zealous criticism or over-analysis, as this may have the unintended consequence of transforming a process of judicial review into one of involving a re-hearing on the merits.
In this context, the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang must be borne in mind.[14]In the case, the High Court indicated that a court, conducting judicial review “should not be concerned with unhappy phrasing” or “looseness in the language” in the decision being subject to review.[15]
[14] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
[15] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].
The High Court also emphasised the following passage from Attorney-General (NSW) v Quin[16]
The duty and jurisdiction of the court to review administrative
action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[17][16] Attorney-General (NSW) v Quin (1990) 170 CLR 1.
[17] See Attorney-General (NSW) v Quin (1990) 170 CLR 1 at page 35-36.
In essence, this court, in conducting a judicial review, has no authority to substitute its own judgment, in respect of factual issues, for that of the Tribunal or to exercise any discretion residing in it in a manner of its own election. Rather this court’s authority is to intervene only if it is satisfied that the Tribunal has exercised the jurisdiction conferred upon it erroneously or in a legally unreasonable manner.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme”, not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[18] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[18] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148].
CONCLUSIONS
I am not in a positon to conduct a re-hearing of Mr Singh’s application on its merits. My function is to ascertain whether the decision of the AAT was vitiated by any type of jurisdictional error, as characterised above.
Essentially, these proceedings are concerned with whether it was open to the Tribunal to make a finding that an essential precondition, for the grant of the relevant visa, had not been met, at the time of its decision, namely that Mr Singh did not hold a COE on 7 August 2018. This is a matter of fact arising from the relevant regulatory regime.
The AAT had no discretion or authority to dispense with the condition or modify it. Once it found Mr Singh did not have a current COE, given the regulatory regime it was obliged to apply to discharge its jurisdictional function, it had no other logical or legally reasonable option open to it other than to dismiss Mr Singh’s application.
Therefore, in my view, it cannot be established that Mr Singh did not have an opportunity to present his case. To the contrary, in arguing his case, via his written submissions, Mr Singh provided the evidence on which the decision of the Tribunal was legally based.
The evidence on which the Tribunal reached its decision in this regard was found in Mr Singh’s own written submissions, which he orally confirmed during the hearing. In these circumstances, in my view, the Tribunal had no other logical or jurisdictional option other than to dismiss his application.
In order to discharge its jurisdictional obligations, the Tribunal had to determine whether Mr Singh was enrolled in an approved course of study. The effect of his evidence was that he was not. As such, the Tribunal had no jurisdiction to do anything other than dismiss his application.
The applicant has prepared a brief affidavit in support of his application for judicial review. However, in practical terms, the effect of this affidavit is only to provide a copy of the relevant AAT decision. In particular, Mr Singh has not provided any evidence in respect of his assertion that he could not upload his proper documents.
In this context, counsel for the Minister has submitted that it is clearly the case that the applicant did provide written submissions to the Tribunal and other supporting documents. They have been reproduced, in this court, from the AAT record.
In all these circumstances, it is unclear what the applicant means by this ground and, as such, no jurisdictional error can be demonstrated under this ground particularly that Mr Singh was subject to some level of gross procedural unfairness.
What, in my view, is evident from the manner in which the AAT conducted the proceedings before it was that Mr Singh did get an opportunity to present his case and make submissions to it. Firstly, he received an appropriate invitation to appear before the Tribunal, which was in accordance with the provisions of section 360(1) of the Act which provides as follows:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Accordingly, it is mandatory for the Tribunal to provide such an invitation to each applicant. Significantly, in the letter inviting him to attend this hearing, the applicant was provided with a clear delineation of what issues the hearing to which he had been invited would canvas. In particular, he was requested to bring his current Certificate of Enrolment and other documents relevant to his past studies in Australia.
In my view, given the hearing before the Tribunal was a de novo or fresh hearing, it is of no moment that the AAT determined the case on a different basis to which it was decided by the Ministerial Delegate.[19]
[19] See Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 139 FCR 344 at [28].
In the context of the invitation letter to Mr Singh, section 359AA of the Act is relevant. It provides as follows:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The decision record indicates that the Tribunal did utilise its discretion arising under section 359AA to raise with the applicant his PRISM record and the fact that he was not then enrolled in an approved course of study. Accordingly, in my view, it cannot be said that the applicant has been subject to any form of procedural unfairness to constitute some form of jurisdictional error.
The decision in question was not procedurally unfair and the applicant was given an opportunity to comment on his PRISM record. The AAT in this case provided the applicant with a routine and fair merits based rehearing of his visa application. Its conclusion was logical and its reasons adequate.[20]
[20] See Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [7].
For these reasons, the application must be dismissed. The first respondent seeks costs in an amount of five thousand dollars ($5,000.00), which is less than the amount prescribed by the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021. I will make an order to this effect.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 5 October 2022
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