Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 169
•20 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 169
File number(s): MLG 596 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 20 October 2021 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – extension of time application – no arguable case of jurisdictional error – extension of time refused Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Migration Act 1958 (Cth), ss 65(1)(b), 368, 477
Migration Regulations 1994 (Cth), cl 572.223 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kumar v Minister for Immigration and Border Protection [2010] FCAFC 16
Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 23
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294
Shoji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1920
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of hearing: 18 October 2021 Place: Perth Counsel for the Applicant: In person Counsel for the Respondents: Ms S Wright Solicitor for the Respondents: Mills Oakley ORDERS
MLG 596 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPINDER PAL SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 KENDALL:
INTRODUCTION
The applicant in this matter seeks judicial review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 16 February 2017. The Tribunal affirmed a decision made by a delegate of the Minister refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”) under s 65(1)(b) of the Migration Act 1958 (Cth) (the “Act”).
The applicant filed his application for judicial review in this Court outside of the 35 day time period specified by s 477(1) of the Act.
This judgment addresses whether the applicant should be granted an extension of time within which to file his substantive application for judicial review.
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 3). He arrived in Australia as the holder of a Student visa in April 2009 (CB 57, 66, 95 & 118) and has held a further two Student visas (CB 57).
Since 2009, the applicant has completed the following courses in Australia: Certificate IV in Spoken and Written English; Certificate III in Automotive Mechanical Technology;
Certificate III in Frontline Management; Diploma of Management; Certificate IV in Automotive Technology; and, Diploma of Automotive Technology (CB 114). The applicant has also been enrolled in, but has cancelled or deferred, a number of other courses since 2009 (CB 114-116).
On 1 May 2015, the applicant applied for the visa the subject of this proceeding. He did so with the assistance of a registered migration agent (CB 1-26 & 95). The applicant provided numerous educational certificates and statements of academic results with his visa application (CB 27-45). Relevantly, the applicant was enrolled to study a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality (CB 5 & 27-29).
On 5 May 2015, the then Department of Immigration and Border Protection (the “Department”) requested further information from the applicant. Relevantly, the Department requested evidence of the applicant’s English language ability, evidence that the applicant met genuine temporary entrant criterion, evidence as to his financial capacity, health information and a copy of the applicant’s passport (CB 50-62).
On 2 June 2015, the applicant’s migration agent provided to the Department a statement prepared by the applicant addressing the genuine temporary entrant criterion. The agent also provided health insurance documents, academic documents and financial documents
(CB 63-87).
On 29 June 2015, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 93-98). The delegate was not satisfied that the applicant met cl 572.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). The delegate was not satisfied that the applicant genuinely “intend[ed] to stay in Australia temporarily” (at [97]).
On 17 July 2015, the applicant applied for review of the delegate’s decision by the Tribunal. Again, he did so with the assistance of a registered migration agent (CB 99-100).
On 10 January 2017, the Tribunal sent an email to the applicant’s migration agent inviting the applicant to attend a hearing scheduled for 14 February 2017 (CB 105-113). The invitation also asked the applicant to provide further information, including a copy of his current Confirmation of Enrolment (“CoE”) and any documents that evidenced the applicant’s “past or intended studies”.
On 14 February 2017, the applicant’s migration agent provided to the Tribunal a further statement prepared by the applicant, various academic records and three CoEs (CB 124-161).
Later that day, the applicant and his migration agent appeared before the Tribunal
(CB 162-164).
On 16 February 2017, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 168-174).
The Tribunal notified the applicant, through his migration agent, of its decision on 17 February 2017 (CB 165-167).
On 24 March 2017, the applicant filed his application for judicial review in this Court.
Unfortunately, the applicant filed his application for judicial review outside of the 35 day time period specified by s 477(1) of the Act. That application was filed 1 day late.
In the circumstances, the applicant must obtain an order extending time before he can pursue his substantive application.
CONSIDERATION - EXTENSION OF TIME REQUEST
Section 477(2) of the Act provides:
The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make that order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In this matter the applicant requested an extension of time in writing. Section 477(2)(a) of the Act is thus satisfied. In those circumstances, the Court must determine whether it is “in the interests of the administration of justice” to grant an extension of time: s 477(2)(b) of the Act.
Noting that the applicant was unrepresented, the Court explained to him that the matters it may consider in this regard are not limited. However, as outlined in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, the Court will usually consider the following factors when determining whether an extension of time should be granted:
(a)the length of delay and any prejudice to the parties;
(b)whether the explanation for the delay is “adequate”; and
(c)whether the proposed substantive application for judicial review has merit.
The Court notes that the applicant’s affidavit (which accompanied his substantive application) does not explain the delay or why it was in the interests of the administration of justice for an extension of time to be granted. While the applicant is required to do so pursuant to
r 29.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Court can dispense with compliance of this requirement if deemed appropriate. The Court does so here.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 24 March 2017, a Court Book numbering 174 pages (marked as Exhibit 1), a Supplementary Court Book numbering 5 pages (marked as Exhibit 2) and written submissions filed by the Minister on 22 November 2017.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed.
The Court confirmed with the applicant that he had received a copy of the Court Book, the Supplementary Court Book and the Minister’s submissions.
As discussed below, noting that the applicant was unrepresented, the Court invited the applicant to address each of the factors outlined above and to highlight “anything else” he considered relevant to his application for an extension of time.
Delay and Explanation
The statutory time period within which the applicant can seek judicial review in this Court is 35 days from the date of the decision: s 477(1) of the Act. Here, the Tribunal made its decision on 16 February 2021 and notified the applicant of its decision on 17 February 2021
(CB 165-174). Section 368(2) of the Act provides that the decision is taken to be made on the day the written statement is made. The Tribunal made its written statement on 16 February 2021 (CB 168-174).
The applicant was thus required to file his application for judicial review with this Court on or before 23 March 2021. The applicant lodged his application on 24 March 2021. This is a delay of one day.
The delay here is negligible. This weighs in favour of granting the extension of time.
The applicant’s written explanation for why he filed the substantive application one day late provides as follows (without alteration):
One day late to submit my application that reason behind that I get back problem I can’t or hard to move so that why I late one days.
The applicant repeated this submission in oral evidence before the Court.
Unfortunately, the applicant has not provided any corroborating medical evidence to substantiate his claims that he has health issues which made it difficult for him to file his substantive application.
This weighs slightly against granting the extension of time.
Prejudice
There is a public interest in the finality of litigation: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 23 at [120].
The Minister submits that it suffers no prejudice by the grant of an extension of time. The Court agrees.
This weighs in favour of an extension of time being granted.
Merits
The Court should not grant an extension to pursue an application which has no arguable prospect of success. To do so would be futile and would not be in the interests of the administration of justice: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16].
However, when determining whether any proposed substantive application has “merit”, the Court should do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391. Importantly, the applicant need only demonstrate that there is an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error.
In this regard, noting that the applicant is unrepresented, the Court will itself remain astute and alert to whether there is a reasonably arguable case of jurisdictional error: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
The Tribunal’s Decision
In determining whether there is an arguable case that there is an error, it is useful to first summarise the Tribunal’s decision.
Here, the Tribunal’s decision is seven pages in length and spans 49 paragraphs.
The Tribunal began identifying the relevant issue before it and outlined the legislative framework as follows:
12. A major issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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) …
13. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
•the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
14. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal explained (at [15]) that the applicant was:
a. given a summary of the mandatory criterion as required by the Regulations;
b. informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 (as relevant to the applicant) and any other relevant matter;
c. informed that the criterion has as its focus an examination of the applicant’s intentions – relevantly, whether they are for stay as a student, whether they are genuine and whether they are for a temporary stay in Australia;
d. given an overview of the considerations laid out in Direction No.53;
e. informed that a complete copy of Direction No.53 had been provided to him, along with the invitation to the tribunal hearing;
f. informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria and that, if the criterion is not met, it would likely not be met for each of those subclasses.
The Tribunal then summarised the applicant’s evidence, as follows:
18. On the applicant’s evidence, and by reference to relevant considerations laid out in Direction 53, the applicant’s oral evidence, and written material provided by the applicant to the Department and tribunal, the applicant has had, and continues to have, incentive to cease residence in Australia:
a. The applicant has articulated the background circumstances to the applicant’s choice to study in Australia (written statement DIBP file);
b. The applicant has close family members and friends outside Australia;
c. The applicant does not have close family members in Australia;
d. The applicant has articulated a plan to utilise the skills and knowledge gained in Australia in pursuits outside Australia;
e. That plan is to get good job opportunities in India.
The Tribunal then considered the applicant’s study history in Australia and career goals, as follows:
19.As is recorded in his written statements, the applicant gave evidence at hearing that he came to Australia in 2009 and, to 2014, studied four VET sector automotive courses to which he added VET sector study in frontline management and management.
20. He said his career goal was to open an automotive business back in India.
21.In 2014 he moved his study on to the advanced diploma of management, which he did not complete. He explained there we delays in receive money sent from overseas, and he did not pay fees on time and his enrolment was cancelled.
The Tribunal continued:
22.He gave evidence that from around July 2014 and to May 2015 he held no relevant enrolment in any course and was just working in Australia. As suggested, he was in breach of conditions 8202 and 8516 (the requirements for which were explained) during this period.
The Tribunal then considered the applicant’s evidence that he had “‘changed his mind’ about the automotive sector, and now proposed commercial cookery and hospitality, and wants to be a chef in India”. The Tribunal noted in this regard that the applicant had advised the Department that the reason for this change was “that the tourism sector was expanding in India” (at [23]).
The Tribunal then noted:
24.As suggested, the time and money invested in automotive study appears now to have little or no value to the applicant's future.
25.He had no satisfactory explanation for why it had taken him almost a year to obtain enrolment in new courses.
The Tribunal also noted that noted that the applicant had attended only two weeks of his Certificate III in Commercial Cookery (at [26]-[27]).
The Tribunal continued:
28. He had no meaningful response to the proposition that if he did not study when he had permission to study, his conduct indicated that he did not himself see sufficient value in the courses proposed to attend class and move towards educational goals that, he claims, his eventual departure from Australia are premised on.
29. He had no meaningful response to the proposition that he appeared content to live and work in Australia on a bridging visa A without moving towards acquiring the skills, knowledge and qualifications he claims are needed for his future ambitions which he claims will take him outside Australia.
With respect to the applicant’s study history, the Tribunal noted:
32.The sum result of the applicant's conduct is that, apart from a couple of weeks of study in 2015, the applicant has not studied in Australia since around July 2014 - despite, at all times, having permission to study.
The Tribunal continued:
33.The applicant said he abandoned automotive ambitions when he could not find an automotive job in Australia. He had no satisfactory explanation for why he did not return to India at that point to pursue his then claimed career goal of entering the automotive industry in India. He claimed Indian employers wanted work experience but had no satisfactory response to the proposition that if he could not obtain work experience in Australia, as claimed, then to pursue his ambition he would need to obtain work experience outside Australia, which he did not do.
34.Instead, he chose to stay on in Australia, failed to complete a VET sector management course, worked in Australia for almost a year without having any relevant course enrolment, and went on to propose a full complement of VET sector cookery and hospitality courses which he has not pursued since May 2015 despite having permission to study.
The Tribunal then addressed the applicant’s family relationships and was not satisfied that the applicant’s “personal connections overseas” provided an incentive for the applicant to “cease residence in Australia” (at [35]-[36]).
The Tribunal considered the applicant’s evidence that the applicant had travelled between India and Australia and determined as follows:
37.The applicant gave evidence (f.63) that no relevant travel has been taken other than between Australia and the home country. The tribunal finds this unremarkable and that it does not weigh on the question of whether the applicant intends to stay in Australia temporarily.
The Tribunal continued:
38.Overall, the tribunal finds that the significant automotive study undertaken by the applicant is now of negligible value to the applicant outside Australia, because the applicant decided not to go overseas to pursue ambitions in that sector.
39.The value of the cookery and hospitality courses proposed since 2015 is claimed to lie in an expanding tourism sector in India.
40.Direction 53 indicates that reasonable changes to career plan should be accommodated.
41.The applicant claims that it is and always has been his proposition that he wished to acquire skills, knowledge and qualifications in Australia that he would bring offshore and put to use.
42.He repeated that claim to the Department in his latest student visa application where he also stated he was passionate about his new chosen field (DIBP file ff.84-85).
On the basis of the above, the Tribunal found as follows:
43. If the applicant were motivated to acquire skills, knowledge and qualifications in cookery and hospitality, the tribunal finds as suggested that he would have pursued that study from 2015 by taking advantage of the permission to study that he had, and two courses would have been completed by now.
44. As suggested, the applicant did not pursue that study, and has been content to work and live in Australia without studying, because he personally sees no particular value in the study and has no particular interest in completing any study in a timely fashion.
45. As suggested, this is because the applicant sees sufficient value in the ability to access continued stay and work in Australia.
The Tribunal then concluded:
46. Overall, and for the reasons above, and relying on the considerations laid out in Direction 53, the tribunal finds that the applicant has no intention to cease residence in Australia, has no intention of returning to India, or living elsewhere, and has acted to attempt to prolong his stay in Australia for as long as possible without expending money or effort in studying.
In the circumstances, the Tribunal determined that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, it found that the applicant did not satisfy cl 572.223(1)(a) of the Regulations (at [47]).
The Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [48]-[49]).
Arguable Case of Error? -- Proposed Application for Judicial Review
In the application for judicial review filed by the applicant on 24 March 2017, the applicant outlines four “grounds of review” as follows (without alteration):
1. My student visa application was refused by DIBP and an appeal was made to the Tribunal for review of this decision for not to grant my student visa.
2. AAT has misinterpreted definition of genuine student. An error in Law has been made. I have been studying on full time basis and have completed all the courses I was enrolled in.
3. I believe I am a genuine applicant for student visa extension and would like to make an appeal that AAT and DIBP has made an error while deciding on this matter and would like to appeal to FCC to make new orders and replace old orders and grant or remit this decision back to AAT.
4. I have strong faith in Australian FCC and Judiciary system and like to get a fresh look on this matter and I believe FCC must accept this application so that I could have a fair decision.
The applicant also filed an affidavit affirmed on 24 March 2017 with his application for judicial review. The affidavit did not further particularise the applicant’s “grounds”.
The applicant appeared before this Court without legal representation. An interpreter fluent in the Punjabi language was made available to assist the applicant. During the hearing, the applicant advised the Court that he would only rely on that assistance if he did not understand what was being said or could not communicate effectively to the Court. Ultimately, no translation assistance was required. The parties appeared by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). No issues arose in this regard.
To assist the applicant, the Court explained that in determining whether there was an arguable case that the Tribunal had fallen into error, the Court would look for “certain types of mistakes”. It was explained that the categories of jurisdictional error are not exhaustive and sometimes overlap, but that for migration decisions of this sort most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision when assessing whether there is an arguable case that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (“Wu Shan Liang”).
Against that backdrop the Court invited the applicant to explain what he thought the Tribunal “did wrong”: as per the reasoning in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
Unfortunately, the applicant did not address the issue of jurisdictional error. At their highest, the applicant’s oral submissions simply sought an impermissible merits review of the evidence before the Tribunal.
In that context, the Court will assess the applicant’s grounds of review to determine whether any error is, arguably, identified. In that regard, in its duty to assist self-represented litigants, the Court will interpret the applicants’ grounds of review as broadly as possible to ensure that, to the extent that any arguable error is identified, it can be scrutinised. The Court has also considered for itself, at an impressionistic level, whether any arguable error arises in the Tribunal’s decision: MZAIB.
Ground 1
The applicant’s first ground of review states:
1. My student visa application was refused by DIBP and an appeal was made to the Tribunal for review of this decision for not to grant my student visa.
The Minister submits in its written submissions dated 22 November 2017 that this proposed ground is “a statement of fact and does not give rise to even an arguable case of jurisdictional error.”
The Court agrees.
This proposed ground also refers to the delegate’s decision. This Court has no jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act. The Tribunal’s decision on review “cures” any error in the delegate’s decision or processes: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
Ground 1 does not raise any arguable case of error on the part of the Tribunal.
Ground 2
The applicant’s second ground of review states:
2. AAT has misinterpreted definition of genuine student. An error in Law has been made. I have been studying on full time basis and have completed all the courses I was enrolled in.
In written submissions dated 22 November 2017 the Minister submits as follows in relation to ground 2:
23. Proposed ground two states the Tribunal “misinterpreted’ the definition of a genuine student and asserts that the applicant has been studying on a full time basis and “completed all the courses I was enrolled in.” This assertion fails on a factual level. The applicant’s own evidence to the Tribunal (at CB 172, [27]) was that he attended two weeks of classes in the Certificate III of Commercial Cookery and Hospitality and “stopped studying.”
Again, the Court agrees. No arguable case of error rises in this regard.
It is clear on the material before the Tribunal that on his own evidence the applicant did not complete all of the courses he had been enrolled in. This is evident from the “PRISM” records in the Court Book (CB 114-116), which demonstrate that at 19 January 2017 (less than one month before the Tribunal’s decision), the applicant was not enrolled in a course of study, had finished some courses but had also been enrolled in (but, relevantly, had cancelled) at least 13 courses (CB 114-116).
The Minister correctly identifies that the Tribunal’s reasons also record that the applicant had commenced a Certificate III in Commercial Cookery but gave evidence to the Tribunal as follows (CB 172):
27.He said he had attended two weeks of classes and then stopped studying, despite being aware he had no right to study on the Bridging Visa A that he held after applying to the tribunal.
Clearly, the applicant had not “completed all the courses [he] was enrolled in” – contrary to anything the applicant might now be suggesting. In that context, the Tribunal’s findings that the applicant had “not studied when he had the right to study and had commenced but not completed numerous courses” (see [21]-[22]; [25]-[28], [30]-[32]) were findings that flowed logically from the evidence before it.
In relation to any concern that the Tribunal “misinterpreted the definition of a genuine student”, again it cannot be said that any arguable case of error is identified here.
The issue before the Tribunal was whether the applicant was a “genuine applicant for entry and stay as a student” in accordance with cl 572.223 of Schedule 2 of the Regulations.
In determining whether the applicant was a “genuine applicant for entry and stay as a student”, the Tribunal outlined the task before it as follows:
12. A major issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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) …
13. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
•the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
14. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
In relation to the Tribunal’s consideration of cl 572.223 of Schedule 2 of the Regulations, in circumstances where Direction 53 was properly applied and considered, it is difficult to identify how the Tribunal could have misconstrued cl.572.223 of the Regulations. The matters in Direction 53 are specifically linked to cl.572.223 of the Regulations (in the sense that the factors in Direction 53 should be considered by the Tribunal in determining whether cl.572.223 of the Regulations is met): Kumar v Minister for Immigration and Border Protection [2010] FCAFC 16 at [25].
In relation to whether the Tribunal “correctly applied” the requirements articulated in Direction 53, the Court notes that the Tribunal did not use “headings” or “signposts” in its reasons. While less than “ideal”, a fair reading of the Tribunal’s decision demonstrates that the Tribunal was well aware of the matters in Direction 53 and, where relevant, assessed them.
Relevantly, the Tribunal:
(a)In determining the “applicant’s circumstances” (cl 572.223(1)(a)(i) of Schedule 2 of the Regulations and Ministerial Direction paragraphs [6]-[11]):
(i)considered the evidence before it as relevant to the “applicant’s circumstances in their home country” as follows:
35. The applicant gave evidence (f.63) that the following family members are overseas: his parents and brother in India, and that the applicant has returned 2 times since coming to Australia in 2009.
36. As suggested, the tribunal finds that over a long and prolonged stay the applicant has been able to manage personal relations overseas by living in Australia, by keeping in touch from Australia, and by making infrequent visits. As suggested, the tribunal does not consider the applicant's personal connections overseas to be distinct incentive for the applicant to cease residence in Australia;
(ii)considered the applicant’s “potential circumstances in Australia” and, on the evidence before it, noted that the applicant “does not have close family members in Australia” (at [18]);
(iii)
carefully considered the applicant’s previous study history in Australia
(at [17]-[34]);
(iv)considered the “value of the course to the applicant’s future” (at [24], [39]-[45]) and noted that the applicant’s previous studies “appear now to have little or no value to the applicant’s future” (at [24]).
(b)In determining the “applicant’s immigration history” (cl 572.223(1)(a)(ii) of Schedule 2 of the Regulations and Ministerial Direction paras [13]-[14]), the Tribunal noted as follows:
37. The applicant gave evidence (f.63) that no relevant travel has been taken other than between Australia and the home country. The tribunal finds this unremarkable and that it does not weigh on the question of whether the applicant intends to stay in Australia temporarily.
In this regard, the Tribunal had specific regard to the applicant’s previous visa history (at [19], [22], [23] & [29]) and the applicant’s previous travels to Australia (at [37]).
It is apparent from the above that the Tribunal clearly considered and correctly applied the matters in Direction 53. While the Tribunal does specifically reference the matters in Direction 53 per se, it uses the language of Direction 53 throughout and it is clear what matters the Tribunal considered relevant in light of the evidence and the case advanced by the applicant.
There was no misapplication, or misunderstanding, of Direction 53.
No arguable case of error arises in relation to ground 2.
Ground 3
The applicant’s third ground of review states:
3. I believe I am a genuine applicant for student visa extension and would like to make an appeal that AAT and DIBP has made an error while deciding on this matter and would like to appeal to FCC to make new orders and replace old orders and grant or remit this decision back to AAT.
In relation to ground 3, the Minister submits as follows in written submissions dated 22 November 2017:
24. Proposed ground three states the applicant is a genuine applicant for “student visa extension” and asks that the matter be remitted to the Tribunal. This proposed ground is no more than an attempt at merits review and must fail.
The Court agrees. Ground 3 expresses no more than disagreement with the Tribunal’s decision. Disagreement, however strong, does not assist the applicant in relation to whether or not the Tribunal has arguably fallen into jurisdictional error: Wu Shan Liang at 272 cited in Shoji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1920.
Ground 3 fails to identify any arguable case of error on the part of the Tribunal.
Ground 4
Ground 4 provides:
4. I have strong faith in Australian FCC and Judiciary system and like to get a fresh look on this matter and I believe FCC must accept this application so that I could have a fair decision.
The applicant again appears to seek no more than an impermissible merits review by asking the Court to take “a fresh look” at his matter. As explained to the applicant at the hearing and as outlined above, this Court cannot review the merits of the applicant’s matter. It can only assesses whether there is an arguable case that the Tribunal made a material error in its decision: Wu Shan Liang at 272. Without more, it cannot be said that any such error is identified by ground 4.
Ground 4 fails to identify any arguable case of error on the part of the Tribunal.
Conclusion – an “arguable case”?
The applicant’s proposed grounds of review do not identify any arguable case of jurisdictional error on the part of the Tribunal. The applicant conceded as much before this Court, asking, in effect, that the Court reassess the evidence for itself to determine whether the applicant should be given the visa he seeks.
The Court has itself been unable to identify an arguable case of jurisdictional error in the Tribunal’s decision.
This weighs significantly against granting an extension of time.
DECISION
The applicant’s substantive application for judicial review was filed only one day late and no prejudice would arise if the substantive application were accepted. These factors weigh in favour of granting the applicant an extension of time for the filing of his substantive application.
However, the applicant’s explanation for the delay was less than satisfactory and, significantly, there is no arguable case of error in the Tribunal’s decision. The latter determination weighs significantly against granting an extension of time.
In the circumstances, the Court is not satisfied that it is in the interests of the administration of justice for an extension of time to be granted.
Accordingly, the applicant’s request for an extension of time within which to file his substantive application for judicial review is refused.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 October 2021
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