Singh v Minister for Immigration Citizenship and Multicultural Affairs
[2024] FedCFamC2G 623
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration Citizenship and Multicultural Affairs [2024] FedCFamC2G 623
File number: MLG 3770 of 2019 Judgment of: JUDGE BINGHAM Date of judgment: 18 July 2024 Catchwords: MIGRATION LAW – judicial review of a decision of the Administrative Appeals Tribunal to refuse cancel a Student (Temporary) (Class TU) (Subclass 500) visa – consideration of the genuine temporary entrant criterion – Direction No. 69 – Applicant provided confirmation of enrolment but determined to not be a genuine applicant for entry and stay – whether Tribunal failed to properly consider the case or its reasons were generic
MIGRATION LAW – held - reasons demonstrate the Tribunal took relevant factors and evidence into account and was not persuaded – Applicant has conflated the relevant criteria – findings were open to the Tribunal – application dismissed with costs
Legislation: Migration Act 1958 (Cth) ss 5, 474(1), 476 and 499(2A)
Migration Regulations 1994 (Cth) cl 500.2 and 500.212
Cases cited: Craig v South Australia (1995) 184 CLR 163
Kaur v Minister for Home Affairs [2019] FCA 2026
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 2 July 2024 Place: Melbourne Solicitor for the Applicant: Huk Legal Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 3770 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.The Application filed 31 October 2019 and amended 3 July 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceedings fixed in the sum of $5,400.00.
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 BINGHAM:
The Applicant filed an application on 31 October 2019 seeking judicial review (Application), pursuant to s 476 of the Migration Act 1958 (Cth) (the Migration Act), of the decision of the Administrative Appeals Tribunal (the Tribunal) made 9 October 2019 where the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Visa). The Tribunal was not satisfied that the Applicant met the genuine temporary entrant criterion in cl 500.212(a) (the GTE Criterion) of Schedule 2 of the Migration Regulations 1994 (Cth) the (Migration Regulations).
BACKGROUND
The Applicant is a citizen of India.
The Applicant arrived in Australia on 7 March 2009 as a holder of a student visa, which expired on 11 April 2011. The Applicant subsequently held four further student visas. The last of the Applicant’s student visas expired on 17 November 2017. Between 13 April 2009 and 1 November 2017 the Applicant completed various VET and diploma level courses relating to food processing, business and building and construction. On 9 November 2017 the Applicant enrolled in an Advanced Diploma of Building and Construction (Management). On 18 November 2017 the Applicant applied for the Visa in order to undertake an Advanced Diploma of Building and Construction (Management) in which he had enrolled.
On 12 January 2018 the Delegate refused to grant the Applicant the Visa because the Applicant did not meet the GTE Criterion. Having considered the factors in Ministerial Direction No. 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction No. 69) the Delegate found that the factors indicated that the Applicant was not a genuine student but rather was using the student visa program as a means of extending his stay in Australia and that he did not genuinely intend to stay temporarily as a full time student (the Delegate’s Decision).
On 24 January 2018 the Applicant applied to the Tribunal for review of the Delegate’s Decision.
The Advanced Diploma of Building and Construction (Management) in which the Applicant enrolled concluded on 1 October 2018.
On 12 April 2019 the Tribunal invited the Applicant to provide information regarding his enrolment status and whether he met the GTE Criterion. The invitation to provide information included a link to a “Request for Student Visa Information form” (Request Form).
On 16 April 2019 the Applicant was offered a place in a Bachelor of Business which was to commence on 22 July 2019 and conclude on 1 July 2022.
On 26 April 2019 the Tribunal was provided with pages 1, 2, 5, 8, 9, 12 and 13 of the Request Form. Page 13 of the Request Form was signed by the Applicant and dated 16 April 2019. The Applicant consented, in the Request Form by ticking the appropriate box, to the Tribunal deciding the review without a hearing. The Applicant also provided the Tribunal with a copy of his offer of enrolment in the Bachelor of Business.
On 2 September 2019 the Tribunal purported to affirm the Delegate’s Decision. The Tribunal found that the Applicant had not provided it with persuasive evidence of a current enrolment and was not satisfied that the Applicant met the GTE Criterion.
On 5 September 2019 the Applicant emailed the Tribunal attaching a letter from the education provider and an Overseas Student Confirmation of Enrolment (COE). Both documents were dated 23 July 2019 and showed that the Applicant had enrolled in a Bachelor of Business which had commenced on 29 July 2019.
On 9 October 2019 the Tribunal affirmed the Delegate’s Decision on the basis that it was not satisfied that the Applicant met the GTE Criterion.
THE TRIBUNAL’S DECISION
In its decision of 9 October 2019 the Tribunal accepted that it had fallen into jurisdictional error on 2 September 2019 by making a decision that the Applicant was not enrolled in a registered course of study in circumstances where in fact the Applicant had been enrolled in a Bachelor of Business. The COE was belatedly provided to the Tribunal on 5 September 2019.
The Tribunal determined to make a further decision based on the evidence before it.
The Tribunal considered whether the Applicant met the GTE Criterion with reference to Direction No. 69.
The Tribunal found that the Applicant’s circumstances in his home country weighed against a finding that he satisfied the GTE Criterion and made the following observations:
(a)The Applicant had been present in Australia almost continuously since 7 March 2009.
(b)The prolongation of the Applicant’s stay until 1 July 2022 would mean that the Applicant would be present in Australia for approximately 13 years and four (4) months which would be a period inconsistent with the notion of temporary entry and stay.
(c)The Applicant failed to provide a satisfactory explanation as to why he could not undertake his studies in India and his career objectives were vague and underdeveloped.
(d)The Tribunal accepted that the Applicant had family in India but observed that he had provided no documentation in support of his claim that he had personal property worth $300,000 there.
The Tribunal found the following in relation to the Applicant’s potential circumstances in Australia:
(a)The evidence disclosed that there was a gap in the Applicant’s enrolment in a course of study between 1 October 2018 and 23 July 2019.
(b)The Applicant had only enrolled in the Bachelor of Business three (3) months after the Tribunal’s correspondence of 12 April 2019.
(c)The Applicant’s presence in Australia during his ten-month gap in enrolment in studies was motivated by factors other than studies.
(d)The Applicant enrolled in the Bachelor of Business for the purpose of maintaining residence in Australia. The Tribunal gave great weight to this finding.
In relation to the Applicant’s immigration history the Tribunal found the following which weighed heavily against the Applicant satisfying the GTE Criterion:
(a)The duration of the Applicant’s stay in Australia and his desire to extend his stay.
(b)The Applicant had been abusing the student visa program.
The Tribunal was not satisfied that the Applicant met the GTE Criterion and affirmed the Delegate’s Decision: Tribunal’s Decision [34] to [36].
PROCEEDINGS BEFORE THE COURT
The Applicant has been represented by Mr Warraich, a lawyer from HUK Legal Services, since a Notice of Address for Service was filed on 29 January 2020.
On 28 March 2024 a Registrar of this Court made consent orders (28 March 2024 Orders), among others, that the Applicant file and serve:
(a)written submissions;
(b)any amended application with proper particulars of the grounds of the application; and
(c)any additional evidence on which the Applicant sought to rely.
The Minister was also ordered to file and serve written submissions and any evidence upon which the Minister sought to rely. The time for filing was extended on two occasions to facilitate the parties.
On 29 April 2024 the Applicant’s lawyer filed written submissions (Applicant’s Submissions). No amended application or additional evidence was filed on behalf of the Applicant. The Applicant’s Submissions did not address the grounds as expressed in the Application but rather raised new scantly particularised grounds. It is unacceptable that a legal practitioner would completely disregard orders to file an amended application in circumstances where there was an intention to abandon the grounds originally pleaded.
The written submissions for the Minister filed 13 May 2024 (Minister’s Submissions) addressed the Applicant’s new grounds. A summary of those grounds is found at paragraph [26] of the Minister’s Submissions.
Grounds of Review
This matter was heard on 2 July 2024 in person (Hearing). The lawyer for the Applicant, by consent, appeared by videoconference. The lawyer for the Minister appeared in person.
At the Hearing clarity was sought from the lawyer for the Applicant as to the grounds of review upon which his client relied in circumstances where the grounds relied upon in the Applicant’s Submissions differed from those in the Application.
Mr Warraich agreed that the Minister’s summary of the Applicant’s grounds of review at paragraph [26] of the Minister’s Submissions were the grounds upon which the Applicant relied. Mr Warraich informed the Court that apart from the grounds summarised in paragraph [26] of the Minister’s Submissions, there were no other grounds upon which the Applicant intended to rely.[1]
[1] Transcript P2:L12-P3:L21.
Mr Warraich sought leave to amend the Application to reflect the grounds in the Applicant’s Submissions, as summarised at paragraph [26] of the Minister’s Submissions. Mr Warraich advised the Court that he was in a position to file an amended application the next day, consequently Orders were made granting leave to file an amended application by 10:00am on 3 July 2024.
The Applicant filed an Amended Application at 9:28am on 3 July 2024. The grounds of review relied upon by the Applicant are:
(1)The Tribunal fell into jurisdictional error by affirming the second decision ‘on the basis of template reasons’ which are not peculiar to the Applicant and failed to consider the case on its merits;
(2)The second decision has no basis;
(3)The Tribunal failed to consider the mandatory criteria in Direction No. 69;
(4)The Tribunal excluded from consideration information that favoured the Applicant including information that explained the Applicant’s study plan and future endeavours; and
(5)The Tribunal’s evaluation of the Applicant’s academic progress and the value of the proposed course to the Applicant’s future was not justified.
THE LEGISLATIVE FRAMEWORK
Sections 5 and 474 of the Migration Act define “a privative clause decision” as meaning a decision of an administrative character made under the Migration Act or regulation or other instrument made under the Migration Act, which includes the granting of a visa. A privative clause decision is final and not subject to judicial review in any Court. A decision effected by jurisdictional error is not a privative clause decision and therefore a person may seek to have the Court review that decision, as a decision affected by jurisdictional error is “no decision at all”: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]. The role of the Court is not to engage is a merits review of a decision but rather to identify whether the decision has been affected by jurisdictional error or not: Craig v South Australia (1995) 184 CLR 163 at 177-180; Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272].
In order to be granted the Visa, the applicant for the Visa must satisfy the GTE Criterion provided for in cl 500.212(a) of the Migration Regulations. At the relevant time cl 500.2 provided:
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.
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 subject; and
(a)of any other relevant matter.
[…]
Direction No. 69 was issued by the Minister on 18 April 2016 pursuant to s 499 of the Migration Act and commenced on 1 July 2016. In accordance with s 499(2A) of the Migration Act the Tribunal is required to comply with Direction No. 69. Direction No. 69 outlines factors that should “guide” a decision maker’s assessment of the GTE Criterion. The factors include:
(a)The Applicant’s circumstances in his home country, including his ties to his home country and any incentives or disincentives he had to return.
(b)The Applicant’s circumstances in Australia, including any evidence the student visa program was being used to maintain ongoing residence in Australia.
(c)The value of the course being undertaken to the Applicant’s future, including the anticipated impact of the qualification for which the Applicant was studying on his employment prospects and remuneration.
(d)The Applicant’s immigration history.
CONSIDERATION
The Applicant relied on the Applicant’s Submissions filed on 29 April 2024. Mr Warraich made short additional oral submissions. The affidavit made in support of the Application was not tendered. The Minister relied on the Minister’s Submissions filed 13 May 2024. The lawyer for the Minister also made short additional oral submissions primarily addressing the oral submissions made on behalf of the Applicant. The Minister tendered the Court Book.
Ground 1 - Whether the Tribunal fell into jurisdictional error by affirming the second decision “on the basis of template reasons” which are not peculiar to the Applicant and failed to consider the case on its merits
Paragraphs [13], [14] and [17] of the Applicant’s Submissions address this ground. The Applicant complains that the Tribunal failed to conduct a proper review of his case. The Applicant’s Submissions allege that the Tribunal’s Decision was made ‘on the basis of template reasons’ and that there was no engagement with the particular circumstances of the Applicant. The Applicant did not take the Court to any evidence that generic reasoning or a template was applied by the Tribunal.
At paragraph [14] of the Applicant’s Submissions, it is contended that “the Applicant has complied with the criteria i.e enrolment that has been accepted by the Tribunal in the first decision and the jurisdictional error was accepted”. Mr Warraich developed this contention in his oral argument. He submitted that the evidence before the Tribunal was that the Applicant was at the relevant time enrolled in a bachelor’s degree, a higher education qualification, which the Applicant intended to complete the corollary being that the evidence of enrolment in the bachelor’s degree was sufficient to satisfy not only the criteria that Applicant be enrolled in a higher education course but that it also satisfied the GTE Criterion.
In response to the oral submissions made by Mr Warraich, the Minister submitted that the Applicant was conflating the criteria, that is enrolment in the course and a genuine temporary stay. It was further submitted that the Applicant satisfying one criterion, that is enrolment in in a higher education course, does not mean the Applicant would satisfy the GTE Criterion. This is correct: Kaur v Minister for Home Affairs [2019] FCA 2026 (Kaur) [19] to [20] and [29] to [31].
The Tribunal’s reasons, the Minister submitted, show that it engaged with the limited information the Applicant had provided, being the incomplete Request Form and COE. The Minister further submitted that the Tribunal's Decision does not suggest a mere template was used. The Applicant did not identify any generic reasoning or reasoning that failed to take into account the particular circumstances of the Applicant.
It is apparent from paragraphs [16] to [33] of the Tribunal’s Decision that no template was applied. The Tribunal engaged with the peculiarities of the Applicant’s circumstances when applying the GTE Criterion.
The Applicant must fail on this ground.
Ground 2 - The second decision has no basis
The Applicant alleged at paragraph [18] of the Applicant’s Submissions that the Tribunal’s Decision “has no basis”. This allegation is not developed in the Applicant’s Submissions nor was it developed orally.
The Minister contended that that the Tribunal considered that the Applicant’s length of stay in Australia, the absence of any substantial evidence of incentives to return to India, the gap in his studies, and the lack of compelling evidence going to the value of the Bachelor of Business and as such had a basis for the decision.
The Tribunal’s Decision was based upon probative material and logical grounds. The Tribunal’s Decision was open to it. The Applicant must fail on this ground.
Ground 3 -The Tribunal failed to consider the mandatory criterion in Direction No. 69
At paragraphs [19] and [20] of the Applicant’s Submissions the Applicant advanced an argument that the Tribunal failed to consider mandatory relevant considerations “as specified in the Ministerial Direction”.
The Minister submitted that each of the factors in Direction No. 69 are not mandatory relevant considerations independent of the context in which Direction No. 69 is to be applied: Kaur at [19] to [20] and [29] to [31] (Steward J). Where evidence or submissions engage a factor in Direction No. 69 the Tribunal must take the factor into account. The Minister submitted that the Tribunal properly applied Direction No. 69 and the Tribunal’s Decision demonstrated that it took into account the relevant factors on the evidence before it.
The Applicant did not develop this ground in written or oral submissions. The “mandatory criteria” which was alleged to have applied and those criterion that were overlooked by the Tribunal were not identified by the Applicant. Direction No. 69 is not a check list and should not be applied as one: Kaur at [30] (Steward J).
The Tribunal’s reasons demonstrate that that it took account those factors in Direction No. 69 where those directions were relevant. The Applicant cannot succeed on this ground.
Ground 4 - The Tribunal excluded from consideration information that favoured the Applicant including information that explained the applicant’s study plan and future endeavours
The Applicant submitted that the Tribunal excluded favourable information from its consideration. The Applicant’s Submissions referred to “the applicant’s study plan and future endeavours”. The Minister submitted that the Applicant has not particularised this complaint and that the Tribunal’s Decision at [17], [19] to [20] and [28] to [29] are evidence of the Tribunal considering these matters.
The Applicant again did not develop this ground in written or oral submissions, other than making the vague and broad assertions such as the Tribunal excluded favourable information from its considerations including reference to study plan and future endeavours. As submitted by the Minister it is evident that that the Tribunal took these matters into account when making its decision but was not persuaded by them.
The Applicant must fail on this ground.
Ground 5 - The Tribunal’s evaluation of the Applicant’s academic progress and the value of the proposed course to the Applicant’s further was not justified
The Applicant also complained that the Tribunal’s evaluation of the Applicant's academic progress and the value of the proposed course to the Applicant's future was not justified. The Minister contended that to the extent that this complaint seeks impermissible merits review it must be rejected: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 557.
This ground was not developed by the Applicant in written or oral submission . In so far that the Applicant seeks a review of this finding on the merits it is impermissible for this Court to do so.
Further the finding made with respect to the Applicants “academic progress” and the value of the bachelor’s degree to his future was based on probative material and logical grounds see paragraphs [17], [19] and [21] of the Tribunal’s Decision. The findings were open to the Tribunal.
The Applicant must fail on this ground.
CONCLUSION
The Tribunal’s Decision is not affected by jurisdictional error.
The Application filed 31 October 2019 and amended on 3 July 2024 must be dismissed.
The Minister sought costs fixed in the amount of $5,400.00 which is less than the amount prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the GFL Rules. Accordingly, the Applicant is to pay the Minister’s costs in the sum of $5,400.00.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 18 July 2024
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