Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 303
•25 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 303
File number(s): CAG 34 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 25 February 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) Subclass 500 visa – whether the Tribunal provided sufficient weight to the applicant’s situation – whether the Tribunal failed to understand the applicant’s intentions – whether the Tribunal had jurisdiction – whether the Tribunal acted unconscionably or unreasonably – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth), ss. 476, 499, 359
Migration Regulations 1994 (Cth, Sch 2, cl. 500.211-500.218
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat 151 FCR 214
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZARG v Minister for Immigration and Border Protection [2018] FCA 624
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 1555
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
WZAVW v Minister for Immigration [2016] FCA 760
Number of paragraphs: 50 Date of last submission/s: 16 February 2021 Date of hearing: 16 February 2021 Place: Parramatta Solicitor for the Applicant: The applicant appeared in person. Solicitor for the Respondents: Ms Wright appeared on behalf of the first respondent. ORDERS
CAG 34 of 2020 BETWEEN: AMRITPAL SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
25 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the amount of $6100.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of India. The applicant first arrived in Australia on 22 July 2017 with his then partner. The applicant and his then partner, separated almost immediately after arriving in Australia and were divorced in June 2019. The applicant made an initial application for a Student visa on 3 October 2018. That application was refused.
The applicant made a second application for a Student (Temporary) (Class TU) Subclass 500 visa, on 10 January 2019. That application was refused by a delegate of the Minister for Home Affairs (“the delegate”) on 4 March 2019. The delegate was not satisfied that the applicant had satisfied the criteria within cl 500.212 of Schedule 2 to the Migrations Regulations 1994 (Cth) (“the Regulations”) in that the applicant was a genuine temporary entrant for stay in Australia, as a student.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 22 June 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant a Student visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The applicant appeared before the Tribunal on 22 June 2020 to give evidence and present arguments. In terms of evidence in support of the application, the applicant provided a response to a s 359(2) of the Migration Act 1958 (Cth) (“the Act”) request from the Tribunal, together with his current Confirmations of Enrolment (“COE”). The Tribunal noted that it had considered these documents, the delegate’s decision and the evidence given by the applicant, in reaching its decision.
The Tribunal decision is relatively brief. After setting out the background at paragraphs 6 to 9 of its decision, the Tribunal instructed itself as to the primary criteria for the grant of Subclass 500 (Student) visa, set out in cl. 500.211 to 500.218 of the Regulations. The Tribunal noted that it was also required to have regard to Direction No 69 “Assessing the Genuine Temporary Entrant Criteria for Student visa and Student Guardian visa Applications” made under s 499 of the Act
In relation to the applicant’s entry and visa history, the Tribunal noted at paragraphs 10-12 of its decision, that the applicant was an Indian male who had arrived in Australia in July 2017 with his partner. After arrival in Australia, the applicant moved to another city to work and their only contact was by telephone. The applicant and his partner were divorced in June 2019. The applicant made an initial application for Student visa in October 2018 that was refused. The current application was made in January 2019.
In terms of the applicant’s time on shore, the applicant has not returned to India since his arrival in Australia.
In terms of the applicant’s study history, the Tribunal noted that he had obtained a Diploma in Computer Applications and a Diploma in Pharmacy in India. One of these courses was completed in the Hindi language and the other in English. The applicant has previously worked as a receptionist and a computer operator. At paragraph 16 of its decision, the Tribunal noted that the applicant had not, as at the date of the hearing, completed any courses in Australia. The applicant was enrolled in a general English class from January 2019, which he did not complete. The applicant also enrolled in a Diploma of Business and a Diploma of Hospitality but did not commence either course. As at the time of the hearing, the applicant was currently enrolled in a general English course and proposes a future enrolment in a Certificate III in painting and decorating. The applicant told the Tribunal that he has not been attending the course he is currently enrolled in, as he does not have study rights on a Bridging visa E.
In terms of the applicant’s circumstances in his home country, the Tribunal noted in its decision, that the applicant told the Tribunal that the reason for not studying in India, is that the courses are not available there. In terms of the applicant’s personal ties to his home country, the Tribunal noted that the applicant’s parents live in India and his brother lives in the United Kingdom. The Tribunal also noted that the applicant has involvement with charity groups in the local cricket academy, and that his family have a block of land in India, which is held in his parents’ names. Since arriving in Australia, the applicant has not returned home to India.
In terms of the applicant’s economic circumstances in Australia as an incentive not return home, the Tribunal noted that he works as a painter and has done so since October 2019. The applicant earns approximately $800-$1000 per week.
At paragraph 21 of its decision, the Tribunal did not accept the applicant’s assertion about not being able to study in his home country. It was a bare claim made without evidence. Further, the applicant did not provide any specific details establishing benefits to be gained, by studying the proposed course in Australia as opposed to studying in India.
At paragraph 22 of its decision, the Tribunal considered that the applicant had not demonstrated a clear and substantial reason for studying in Australia. The applicant did not demonstrate any clear improved opportunities that would result from studying in Australia, so as to balance the significant time and financial outlay required. Whilst acknowledging that the applicant has family ties in India, the Tribunal was not satisfied that this presented as a significant incentive to return. The Tribunal was not satisfied that the applicant had established strong social ties to his home country.
At paragraph 24 of its decision, the Tribunal noted that the applicant does not have any family in Australia, however he has friends with whom he socialises. The applicant has not completed any courses since his arrival in Australia and his proposed courses are in a different subject matter from his previous qualifications and work experience in India. The Tribunal noted that the applicant provided no information as to how he chose his course.
At paragraphs 25-26 of its decision, the Tribunal did not consider that the applicant had family or social ties that present as an incentive to remain in Australia, however his employment represents an economic incentive to remain in Australia.
At paragraph 27 of its decision, the Tribunal acknowledged that students may choose different areas of study on the basis of a decision to change career pathway, however, the Tribunal considered the applicant’s enrolments in different courses, of significantly different subject matter, were an indication that the Student visa program, was being used to circumvent the migration program. The Tribunal concluded that the applicant had provided no reasonable explanation as to the benefits of the change in study pathways, particularly in the light of the qualifications he already holds. The Tribunal was not satisfied that the completion of the courses would improve the applicant’s remuneration prospects in his home country to an extent that is outweighed by the completion of the course in Australia.
At paragraph 33 of its decision, the Tribunal was not satisfied that the applicant had demonstrated the value of the proposed courses to his career, and considered that the real value of the course to the applicant was that it would enable him to extend his stay in Australia.
At paragraph 34 and onwards of its decision, the Tribunal had regard to the applicant’s immigration history. The applicant arrived in Australia as a partner of a person who held a Student visa, however, did not live with his partner post arrival in Australia. The applicant did not study at the time that he was on the dependent Student visa.
The Tribunal considered all of the evidence, both individually and collectively, but was not satisfied that the applicant had met the criteria of cl 500.212 of the Regulations, in that, he intended to stay in Australia genuinely on a temporary basis only as a student and accordingly, affirmed the decision under review.
GROUNDS OF JUDICIAL REVIEW
The applicant relies upon the following grounds of judicial review contained in an application filed with the Court on 21 July 2020. They are as follows verbatim:
Ground One
The Administrative Appeals Tribunal did not provide enough weight to the situation while they had put more weightage on disposing of the case before them and not looked into the actual circumstances.
Ground Two
The Tribunal did not further request for any document to support my student visa such as any funds availability while reaching to an outcome of my AAT application. Additionally, Tribunal did not consider my ties (family and financial) back home and my future plans which support that I will travel back to India after completing the studies in Australia.
Ground Three
The Tribunal failed to understand my intentions to continue the current course where as I have explained in details about the Genuine entrant criteria for my further studies in Australia.
Ground Four
The member of an AAT did not consider, my past study progress in overseas, my future plans to support my genuine intentions to complete the current course and go back to my country India. Member of an AAT did not bother to ask for any further documentation to support my claims and gave unfavourable decision. AAT member contradicts her own statement at several occasions in an outcome.
Ground Five
The decision by the Delegate is based on mistaken presumptions and/or erroneous findings.
Ground Six
The merits of the case should have been taken into serious consideration in its totality and the substance rather than the application for review. Moreover, Tribunal decided to dispose of the application for review rather than requesting and taking evidences into account. Decision was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in this matter.
Ground Seven
The Tribunal did not request or provide me enough time so that I could provide an evidence of an access to all the funds available for my current studies, however, it overlooked my genuine intentions a student as I have made two attempts for further studies in Australia during my entire stay here in Australia, moreover, my prime motive to study in Australia is a quality of the education as compared to my home country, India.
Ground Eight
The Tribunal fell in error by not considering the factors provided to them. Additionally, Tribunal reach to the conclusion without requesting any supporting documents/information such as information about my current scenario in Australia as I am currently working in the occupation that is related to my further studies in Australia.
Ground Nine
The Tribunal exercised its decision making power unreasonably and unconscionably.
The Court notes, that no particulars were provided to supplement the above grounds of judicial review.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not initially request the assistance of an Interpreter. At the commencement of the hearing the applicant stated that he needed a Punjabi Interpreter. After a brief adjournment, the services of a telephone Interpreter in the Punjabi language were obtained, and the hearing proceeded.
At the commencement of the hearing, the Court ensured that the applicant had a pen and paper so that he could take notes during the course of the hearing should he wish to. The Court also ensured that the applicant had a copy of the relevant Court Books and the first respondent’s written submissions.
At the commencement of the hearing, the Court carefully explained the process by which the hearing would be conducted. The Court also explained the difference between merits review, which the Court could not undertake and judicial review. It was explained to the applicant that he could only succeed if he was able to establish a jurisdictional error on the Tribunal record. If this occurred, all the Court could do is quash the decision and remit it back to the Tribunal for further consideration.
Despite Court orders, no written submissions were filed in support of the applicant’s grounds of judicial review. Some material was provided in an affidavit dated 21 July 2020. The applicant complains that the Tribunal was aware of his current employment and that that employment, was related to his further studies in Australia and future career prospects back home.
The applicant complains that the Tribunal was incorrect in the comment made that the applicant did not study during the time he was on the dependent visa. The applicant argues that he was restricted in his study whilst on a dependent visa.
The applicant further complains that the Tribunal did not give him a fair opportunity to give evidence and present arguments such as the availability of funds, to support his studies and the reasons to continue the particular study’s taken on by him. The applicant states that he was expecting a request for further documentation by the Tribunal. The applicant confirms that he is currently enrolled in a general English course and will be completing a Certificate III in painting and decorating which will help him to enhance his skills in this particular field. The applicant stated that he plans to return home to India, after completion of that course.
The applicant asks that he be allowed to appear before the Court and provide further material which will result in a Student visa approval.
When the applicant was asked if he wished to make any oral submissions, he told the Court that he simply wished to be allowed to stay in Australia and complete his studies.
Following the completion of the first respondent’s oral submissions the applicant was again asked if he had anything further to tell the Court. The applicant reiterated his wish to stay in Australia and complete his studies.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent noted that the Application filed with the Court by the applicant was deficient in that the only relief sought, was that the decision of the Tribunal be quashed. This was insufficient to attract the jurisdiction of the Court. No objection was taken for the applicant being able to orally seek to amend his application to include a writ of mandamus and/or prohibition order. The applicant sought leave to amend his application accordingly, and the Court granted leave to do so.
The first respondent submitted that ground one, which complains that the Tribunal did not “provide enough weight to the situation” and put more “weightage” on disposing of the case before it, goes to no more than expressing disagreement with the Tribunal attributing varying weight to matters. The first respondent submitted that the Tribunal was entitled to accept, reject or give weight to the evidence proffered as it thinks fit in the circumstances: see Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. This ground invites the Court to undertake impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
Grounds two and four complain that the Tribunal did not request any further documentation, such as the availability of funds before reaching a conclusion. The grounds further contend that the Tribunal did not consider the applicant’s financial and family ties in India, the applicant’s past study progress or his future plans.
To the extent that the applicant is complaining that the Tribunal should have requested further documents, the Tribunal has no general duty to inquire: see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429. It was for the applicant to make his case before the Tribunal: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 1555 at [169]-[170]. The applicant was plainly on notice of the determinative issue on review in light of the delegate’s decision, the s 359(2) of the Act invitation to provide information and the hearing invitation. The Tribunal expressly considered the applicant’s claims regarding the value of the course and his career plans. Ultimately, the Tribunal found that the applicant did not establish that study in Australia could assist him in achieving a career goal beyond what he could achieve studying in India. That finding was reasonably open to the Tribunal on the evidence before it.
Ground three complains that the Tribunal failed to understand the applicant’s intentions to continue his course. The applicant’s supporting affidavit takes issue with the Tribunal’s finding that the applicant did not study during the time he was on a dependent Student visa. The Tribunal’s finding was open to it, on the available evidence and the applicant’s complaint merely disagrees with the Tribunal’s factual findings.
Ground five alleges that the delegate’s decision was based on the mistaken presumption or erroneous findings on the part of the delegate. The Court has no jurisdiction to review the delegate’s decision as it is a “primary decision” for the purposes of s 476(2)(a) of the Act. This claim cannot accordingly succeed.
Ground six alleges that the decision was not made in accordance with the “relevant legislation” and that the Tribunal had no jurisdiction. No attempt has been made to particularise these contentions. The contention that the Tribunal had no jurisdiction, has no substance. The application to the Tribunal was lodged only three days after the delegate’s decision. In the absence of further particulars to make these complaints meaningful, they failed to establish any arguable case of jurisdictional error in the Tribunal’s decision and ought to fail: see MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25].
Ground seven again complains that the Tribunal did not request to allow the applicant enough time to demonstrate the funds he had available for his studies, and overlooked his genuine intentions as a student in Australia. The Tribunal was not required to make the applicant’s case for him: see Abebe v Commonwealth of Australia (1999) 197 CLR 510 (“Abebe”) at [187]. Nor was the Tribunal required to act as a cross examiner or prompt and stimulate an elaboration that the applicant chooses not to embark upon. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: see Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat 151 FCR 214 at [76].
In relation to grounds 8 and 9, there was no material that indicated that the Tribunal acted unconscionably or unreasonably. There was no obligation on the Tribunal to seek further material from the applicant as it is for the applicant to prove his case.
CONSIDERATION
The Court notes that none of the grounds of judicial review are particularised. The complaints of the applicant merely take issue with the factual findings of the Tribunal and invite the Court to undertake impermissible merits review.
It is well accepted that the Tribunal is not required to accept uncritically any and all claims made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]. Nor is the Tribunal to inquire as to the applicant’s case or act as a contradictor It is for the applicant to put their case and the Tribunal to decide if the claim is made out: see Abebe at [187].
In relation to ground one, the Court agrees with the first respondent that this complaint goes no more than requesting the Court to engage in impermissible merits review. It is a matter for the Tribunal to consider the evidence that it has been provided with by the applicant and give it such weight as it thinks appropriate. Ground one reveals no jurisdictional error.
Grounds two, four and six in part, all complain that the Tribunal did not request any further documents or material. The applicant also complains that the Tribunal did not consider the applicant’s financial and family ties in India, his past study progress and future plans. The Court is satisfied that there was nothing in the case that required the Tribunal to make an enquiry regarding an obvious critical fact that could be reasonably ascertained. The Court is satisfied that the Tribunal did consider the value of the proposed course to the applicant’s career, as well as the other matters raised by him as set out above. Ultimately, the Tribunal did not accept the submissions that the applicant made. There is nothing illogical, irrational or legally unreasonable in the factual conclusions that the Tribunal arrived at.
Ground three again, is simply a complaint whereby the applicant disagrees with the Tribunal’s factual findings. The Court is satisfied that the finding, that the applicant did not study during the time that he was on a dependent Student visa, was open to the Tribunal on the evidence. This complaint merely disagrees with the Tribunal’s factual findings and accordingly must fail.
Ground five must fail, the Court has no jurisdiction to review the delegate’s findings.
The balance of ground six, not dealt with above, complains that the decision was not made in accordance with the “relevant legislation” and that the Tribunal has no jurisdiction. The assertion is made without particulars. For that reason alone, the ground is liable to be dismissed, as it is a bare assertion without any substance: see WZAVW v Minister for Immigration [2016] FCA 760 at [35].
Ground seven is a further iteration or variation of the complaints made in grounds two and four. The Tribunal is not required to make the applicant’s case for him. The Court is satisfied that the Tribunal had regard to the evidence based on the material submitted by the applicant and assessed his circumstances, as required, by reference to Direction No 69. The Tribunal provided clear and supportable reasons for the decision it arrived at. Ground seven reveals no jurisdictional error.
Grounds eight and nine are also without substance. There was no obligation on the Tribunal to request further documents. This was not a case where the matter turned upon a critical fact, the existence of which was easily obtainable. There is nothing in the decision that supports the claim that the Tribunal acted unreasonably or unconscionably. The evidence was considered and evaluated against the relevant legislative requirements along with Direction No 69. These grounds also fail.
As the applicant was unrepresented, the Court carefully reviewed the Tribunal decision. The Court was unable to find any unarticulated jurisdictional error in the Tribunal decision.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 25 February 2020
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