Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 183

FEDERAL CIRCUIT COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 183

File number:	SYG 2935 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	4 February 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal –application for a Student (Temporary) (Class TU) visa – whether Tribunal failed to take into account relevant considerations – whether the Tribunal was biased – no jurisdictional error made out – amended application dismissed.
Legislation:	Migration Act 1958 (Cth), ss. 359AA, 476
Number of paragraphs:	23
Date of hearing:	4 February 2021
Place:	Sydney
Counsel for the Applicant:	In person
Solicitor for the First Respondent:	Ms K Evans Sparke Helmore

ORDERS

SYG 2935 of 2019

BETWEEN:

KULWINDER SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	4 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The amended application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 October 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student (Temporary) (Class TU) visa (“the Visa”).

2. The applicant is a citizen of India and applied for the Visa on 31 August 2015. 

3. A differently constituted Tribunal’s decision was set aside and the matter was sent back to the Tribunal for reconsideration.

4. The applicant appeared before the current Tribunal on 30 October 2019 to present arguments. 

5. The applicant had clearly been notified beforehand of a need for a Course of Enrolment in respect of the Visa. That was an essential criteria for the grant of a Visa. It is apparent that this issue was raised during the course of the hearing and the Tribunal raised with the applicant consistently with s 359AA of the Act that the PRISM records indicate he is not currently enrolled.

6. It was in those circumstances that the Tribunal found that the applicant did not have a current course of enrolment, which was an essential criteria for the grant of the Visa. The Tribunal accordingly found that the applicant failed to meet the requirements of cls 570.232, 571.232, 572.231, 573.231, 574.321 and 575.231 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) and affirmed the decision under review. 

   BEFORE THE COURT

7. These proceedings were commenced on 12 November 2019. A Judge of this Court made orders on 29 November 2019 giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.

   THE GROUNDS

8. The applicant orally submitted that he was a genuine student. This submission fails to address the essential criteria that the applicant did not meet in respect of the Course of Enrolment. The Tribunal squarely raised with the applicant at the hearing the need for a Course of Enrolment and correctly identified this as an essential criteria. The applicant’s assertion of being a genuine student does not rise to any error by the Tribunal in finding that the applicant failed to meet the essential criteria for want of a Course of Enrolment. Nothing said by the applicant identified any jurisdictional error.

9. The applicant did file an amended application, the grounds of which are as follows:

   1.APPLICANTS CLAIMS THAT THE ADMINSTRATATIVE APPEAL TRIBUNAL MADE JURISDICTIONAL ERROR WHEN IT DID NOT CONSIDER THE APPEAL FROM APPLICANT TO CONSIDER ON THE COMPASSIONATE REASON.

   2.APPLICANTS CLAIMS HE EXPLAIN EVERYTHING TO TRIBUNAL OFFICER BUT HE REFUSED TO GRANT HIM VISA

   3.MY VISA APPLICATION IS NOT PROPERLY ASSESS BT DELGATES.

   4.I AM GENUINE STUDENT WHO IS DOING HIS STUDY BUT THEY REFUSED MY VISA.WHEN THEY REFUSED MY STUDENT VISA APPLICATION AT THAT TIME I AM CURRENTLY EN ROLL IN KINGS OWN INSTITUTE AND DOING MY ACCOUNTING STUDY. I AM IN THIRD SEMESTER AT THAT TIME.THEY REFUSED MY VISA ON LIMITED INFORMATION.

   5.I HAVE COMPLETED SO MANY DTMPLOMS AND THAN AFTER I ENROLL IN BACHELOR COURSE.IF DO NOT WANT TO STUDY THEN WHY I TOOK ADMISSION IN BACHELOR COURSE. MY INTENTION IS STUDY AND COMPLETE MY BACHELOR COURSE.

   6.AAT AND DELGATES BOTH MISUSE THERE POWER AND THEY DELIBERATELY REFUSED MY VISA.

   7.I HAVE SO MUCH HOPE FROM HONOURABLE JUDGE.I APPEAL HON.JUDGE TO LOOK IN TO MY MATTER AND GRANT ME VISA.

   GROUND 1

10. In relation to the first ground, it was not necessary for the Tribunal to consider any question of compassionate reasons or circumstances where the applicant failed to satisfy an essential criteria, which was the course of enrolment. The Tribunal made no error in finding that the applicant did not meet the essential criteria for want of a Course of Enrolment. The applicant was squarely on notice of this issue which was raised with the applicant at the hearing. The applicant acknowledged that he had no current Course of Enrolment.   

11. No jurisdictional error is made out by ground 1. 

    GROUND 2

12. In relation to ground 2, it is apparent that the Tribunal raised with the applicant in the course of the hearing the critical issue in respect of the want of a Course of Enrolment. There is no substance in the proposition that he did not have a real and meaningful hearing before the Tribunal on the evidence before the Court. The Tribunal correctly identified the essential criteria and the adverse finding by the Tribunal in that regard was clearly open. This ground otherwise invites impermissible merits review.

13. Accordingly, no jurisdictional error arises by reason of ground 2.

    GROUND 3

14. In relation to ground 3, the assessment by the Delegate is irrelevant in relation to the establishment of jurisdictional error in the conduct of the review by the Tribunal. In any event, in so far as ground 3 is intended to refer to the Tribunal, it is apparent that the Tribunal correctly identified the critical issue in respect of the requirement for a current Course of Enrolment, which the applicant did not have. 

15. No jurisdictional error is made out by ground 3.

    GROUND 4

16. In relation to ground 4, this is simply a contention by the applicant that he was a genuine student. This reflects a disagreement with the adverse finding by the Tribunal which was open for the reasons given by the Tribunal as summarised above. This ground does not identify any jurisdictional error. 

    GROUND 5

17. In relation to ground 5, this is an assertion as to the courses the applicant has undertaken and does not identify any jurisdictional error. 

    GROUND 6

18. In relation to ground 6, there is no conduct that has been identified to support any allegation of bias. The adverse findings by the Tribunal are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

19. On the face of the Tribunal’s reasons, the Court finds that the Tribunal approached the review with an open mind, reasonably capable of persuasion as to the merits. There is no basis for the assertion of deliberate refusal identified in ground 6. 

20. No jurisdictional error is made out by ground 6. 

    GROUND 7

21. Ground 7 is a request to the Court to look at the matter and does not identify any jurisdictional error. The Court has heard the matter and considered the whole of the evidence and submissions. No jurisdictional error has been made out. The application should be dismissed.

22. The Court notes the first respondent’s submissions in relation to an order made by another Judge of the Court on 21 February 2020. It is not apparent to this Court why any such order was made. To the extent relevant, having carefully considered the same, there is nothing on the face of the material before the Court to suggest any breach of s 360 of the Act. 

23. As the amended application fails to make out any jurisdictional error, the amended application is dismissed. 

I certify that the preceding twenty-three (23) numbered paragraphs areare a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 February 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       25 February 2021