Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 605
•24 May 2022
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 605
Appeal from: Singh v Minister for Immigration & Anor [2020] FCCA 1349 File number(s): VID 386 of 2020 Judgment of: ROFE J Date of judgment: 24 May 2022 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – student visa – appellant not enrolled in a course of study – appellant did not satisfy primary criteria in cl 500.211(a) of the Migration Regulations 1994 (Cth) – where appellant failed to attend hearing – where primary judge was correct in holding that the Tribunal’s decision was not affected by jurisdictional error Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Bodige v Minister for Immigration & Anor [2018] FCCA 1841
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 37 Date of hearing: 23 May 2022 Counsel for the Appellant: The appellant did not appear Solicitor for the First Respondent: Mr J Simpson of Clayton Utz Solicitor for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
VID 386 of 2020 BETWEEN: SIMERJEET SINGH
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
ROFE J
DATE OF ORDER:
24 MAY 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROFE J:
The appellant, Mr Simerjeet Singh, appeals from a judgment of the Federal Circuit Court of Australia (FCC) dated 14 May 2020 (primary judgment).
The primary judgment concerned an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), to affirm a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) not to grant the appellant a Student (Temporary) (Class TU) (Subclass 500) visa (the visa). The primary judge dismissed that application.
For the reasons that follow, the appeal is dismissed.
BACKGROUND
The appellant is an Indian national who first arrived in Australia in 2008 as the holder of a student visa. Since his arrival, the appellant has been granted additional visas allowing him to study and reside in Australia.
On 24 August 2016, the appellant applied for the visa which is the subject of these proceedings. This application was refused by a delegate of the Minister on 17 November 2016. The delegate had determined that the appellant had not met the requirements of cl 500.212 of the Migration Regulations 1994 (Cth) (the Migration Regulations) as the delegate was not satisfied that the appellant was a genuine temporary entrant to Australia for the purposes of study.
The appellant applied to the Tribunal for a review of the delegate’s decision on 7 December 2016.
On 23 March 2018, the Tribunal wrote to the appellant and invited him to appear at a hearing on 18 April 2018. In the lead up to the hearing date, the Tribunal requested a copy of the appellant’s current certificate of enrolment or any other document that could show he was currently enrolled in a course of study. Despite making these requests on 23 March 2018, 16 April 2018 and 17 April 2018, it appears that the appellant never provided such a document.
THE TRIBUNAL’S DECISION
The principal issue before the Tribunal was whether the appellant satisfied the requirements of cl 500.211 of the Migration Regulations in force at the time, which stated:
500.2—Primary criteria
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.
At [18] of the Tribunal’s reasons, the Tribunal member explained to the appellant that:
While the issue before the delegate at the time of the application was whether the applicant was a genuine temporary entrant under clause 500.212(a) of the Regulations, the issue before the Tribunal, at the time of the decision, was whether the applicant met the enrolment criterion in 500.211(a) of the Regulations. The Tribunal advised the applicant that the Tribunal could affirm the decision to refuse the visa based on any applicable visa criteria, including enrolment in a course of study, and that the Tribunal was actively considering the enrolment criterion.
Before the Tribunal, the appellant stated that after the delegate refused to grant a further visa on 17 November 2016, he enrolled in an Advanced Diploma of Marketing. However, this course was later cancelled by the institution. At [17], the Tribunal noted that the appellant did not enrol in any alternative courses following the cancellation.
During the hearing, the Tribunal asked the appellant whether he was able to provide any evidence of current enrolment in a registered course. The appellant was not able to do so and confirmed he was not currently enrolled in any course.
The Tribunal concluded at [23] that at the time of its decision, the appellant was not enrolled in a full-time registered course of study, and therefore failed to meet the requirement of cl 500.211(a). It affirmed the decision of the delegate not to grant the appellant the visa.
THE JUDGMENT OF THE FEDERAL CIRCUIT COURT
The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision on 30 May 2018.
This application was heard and determined on 14 May 2020. The appellant was unrepresented at this hearing.
The primary judge set out the background of the matter and details of the proceedings before the Tribunal at [2]–[14] of the primary judgment.
The application for judicial review set out ten grounds of review. It is unnecessary to go through each ground in detail for the purposes of this appeal. In broad terms, the first and second ground assert that the Tribunal erred in failing to take into account the fact that the appellant had an offer of enrolment at the time of the decision and could provide evidence of such. The primary judge concluded these grounds could not be made out as the appellant himself confirmed to the Tribunal that he was not enrolled in any course or had any offer of enrolment at the time (Tribunal’s reasons at [17]).
Grounds four, five, six, seven, nine and ten assert that the Tribunal did not consider evidence that the appellant was a genuine temporary entrant as per the Migration Regulations. The primary judge concluded that these grounds were misconceived, as the task of the Tribunal was to determine whether the appellant met the requirements of cl 500.211(a) and could show evidence of a current course enrolment. It was not concerned with any evidence that went to the delegate’s decision that the appellant was not a genuine temporary entrant to Australia. As such, these grounds were not made out.
Finally, grounds three, eight and nine contended that the appellant was denied natural justice, had insufficient time to collect and provide the necessary documentary evidence for his claim, and that he was restricted in obtaining a certificate of enrolment. The primary judge noted that these grounds appeared to relate to the appellant’s request to the Tribunal for an adjournment of the hearing. The history of these requests are set out in the primary judgment at [7]–[11].
In dismissing these grounds of review, the primary judge stated that he was satisfied that there was an “evident and intelligible justification” for the Tribunal to decline the appellant’s requests for an adjournment of the hearing. The bases for this finding are set out in the primary judgment at [31]–[37].
The primary judge was unable to find any jurisdictional error on the part of the Tribunal and dismissed all grounds of review.
THE APPEAL TO THIS COURT
The appellant filed a notice of appeal from the primary judgment on 11 June 2020. The appellant relies on two grounds of appeal, which are set out below (in the form as filed by the appellant):
1.The learned judged erred in law and/or fact in failing to find that the decision of the Department of Home Affairs was affected by jurisdictional error and or the Department of Home Affairs had misapplied the Migration Regulations and/or the Migration act for the following with respect to the First Applicants (“the Applicant”) intentions to stay in Australia for the purpose of seeking a 500 visa.
a)The Department of Home Affairs the Federal Circuit court erred in law and/or in fact, and thereby fell into judicial error, when it summarily dismissed and discounted the evidence presented by the applicant that indicated that the applicant’s claims were of a genuine applicant;
b)The Department of Home Affairs and/or the Federal Circuit court erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant matters and/or information and/or evidence and did not take into account relevant matters and/or information and/or evidence as required by law;
c)The Department of Home Affairs and/or the Federal Circuit court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to properly and/or adequately investigate and assess the claims put forth by the applicant with a genuine claims of achieving a 500 visa.
(Ground 1)
2.The Department of Home Affairs and/or the Federal Circuit court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration and weight to evidence presented by the applicant with respect to
i)Applicants enrolment in a registered course of study;
ii)The evidence showing that the applicant had an confirmation of enrolment at the time of application to the Department of Home Affairs;
iii)The claims put forward by the applicant to support his application.
(Ground 2)
In both the above grounds of appeal, the appellant refers to the primary judge as reviewing the decision of the “Department of Home Affairs”. As has been noted above, the primary judge was reviewing a decision of the Tribunal. All references to the Department of Home Affairs have been read as referring instead to the Tribunal.
Orders were made by Registrar McCormick on 15 June 2020 requiring the appellant to file written submissions no later than ten business days before the hearing date. The appellant did not comply with this order and no submissions had been received from the appellant at the time of the hearing of the appeal.
In an email to my chambers on 13 April 2022, the appellant confirmed that he was currently overseas in India, but would appear at the hearing via Microsoft Teams. Subsequent emails from my chambers to the appellant on 18 May, 20 May and 23 May 2022 seeking confirmation that he would appear were not responded to and no further correspondence was received.
The appellant did not appear at the hearing of this matter listed on 23 May 2022. Mr Simpson of Clayton Utz appeared on behalf of the first respondent and indicated he was content to rely upon his written submissions.
Ground 1
Ground 1 asserts that the primary judge erred in not finding jurisdictional error in the Tribunal’s application of the Migration Regulations and the Migration Act 1958 (Cth) (the Act) with respect to the appellant’s intentions to stay in Australia. Particular (a) further submits that the primary judge fell into jurisdictional error by summarily dismissing and discounting the appellant’s evidence which indicated that he was a “genuine applicant”.
This particular raises the same challenge as grounds four, five, six, seven, nine and ten in the FCC proceeding. As the primary judge noted in relation to those similar grounds, the appellant has misconstrued the task of the Tribunal (primary judgment at [29]). The issue before the Tribunal was whether the appellant had satisfied cl 500.211(a) of the Migration Regulations and could provide evidence of enrolment in a course of study, not whether he was a genuine temporary entrant per cl 500.212(a). As noted by the primary judge at [29], the Tribunal explained this distinction to the appellant (see also Tribunal decision at [18]).
The primary judge was correct in dismissing the related grounds as they were not relevant to the task of the Tribunal. Once it was determined that the appellant did not meet the mandatory requirement of a current enrolment in a course of study per cl 500.211(a), it was not required to assess whether any other visa criteria was or wasn’t met: Bodige v Minister for Immigration & Anor [2018] FCCA 1841 at [24]. This particular is not made out.
Particular (b) asserts that the Tribunal and/or the primary judge took into account irrelevant matters, information or evidence and failed to take into account relevant matters, information or evidence. The appellant did not provide any further basis for this claim and did not make clear what irrelevant or relevant material was in issue. In light of the lack of any evidence or submissions as to what material the appellant is referring to, this particular cannot be made out.
Particular (c) contends that the Tribunal and/or the primary judge failed to properly investigate and assess the “claims” of the appellant in support of his visa application. The first respondent submits that this particular cannot be made out, as there is no obligation on the Tribunal to investigate any claims put before it, with the exception of some limited circumstances not relevant here: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. I agree with this submission. The Tribunal and the primary judge were under no obligation to investigate any of the claims of the appellant. It was a matter for the appellant to satisfy the Tribunal and the primary judge that he met the mandatory requirement of cl 200.211(a) of the Migration Regulations, which the Tribunal made clear to him at [18] of its reasons.
For these reasons, ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal and the primary judge failed to give proper consideration and weight to the evidence presented by the appellant. Particular (i) refers to the appellant’s “enrolment in a registered course of study”. Considering both the Tribunal and primary judge’s reasons, it is clear that the appellant’s enrolment status was carefully considered. The appellant confirmed to the Tribunal member that he could not provide any evidence of a current enrolment as he was not currently enrolled in any course of study (Tribunal decision at [19]). The Tribunal also considered the appellant’s unsuccessful attempts at enrolling in a course of study and the appellant’s stated reasons for why they were unsuccessful (Tribunal decision at [16]–[22]).
The primary judge noted at [27]:
The relevant question that the Tribunal had to concern itself with was whether the applicant was enrolled in a course of study under Clause 500.211(a) as defined in the Regulations. A review of the Tribunal’s reasons discussed earlier clearly discloses that this was the task that the Tribunal concerned itself with. While the Tribunal considered at paragraph 21 of its reasons the applicant’s attempts to discuss enrolment and the alleged offers, it was not required to do so. Nor was it required to accept a letter of offer for a course in place of a certificate of enrolment. Doing so would not have satisfied the requirements of Clause 500.211, subparagraph (a). The Tribunal has therefore not made an error of the type complained of by the applicant.
No evidence has been provided to this Court by the appellant in support of this contention. Particular (i) is not made out.
Particular (ii) states that the Tribunal and/or the primary judge failed to give proper consideration to evidence showing that the appellant had a confirmation of enrolment at the time of his application to the Department of Home Affairs. The decision record of the delegate of the Minister indicates that at the time of the application, the appellant was enrolled in a Diploma of Marketing. As discussed above, the Tribunal was only concerned with the evidence of a current enrolment at the time of the Tribunal’s decision. In evidence given at the Tribunal hearing, the appellant confirmed that the Diploma of Marketing course had been cancelled, and that he was not currently enrolled in any course of study (Tribunal decision at [16]–[17]). This particular cannot succeed.
Particular (iii) refers in a general manner to the “claims put forward by the applicant to support his application”. In the absence of any evidence or details supporting this particular, it cannot be made out. The reasons above make it clear that both the Tribunal and the primary judge carefully considered the evidence provided by the appellant in support of his case.
CONCLUSION
For the above reasons, neither ground of appeal is made out. The appeal is dismissed with costs in favour of the first respondent.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe. Associate:
Dated: 24 May 2022
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