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

[2021] FCCA 1151

FEDERAL CIRCUIT COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1151

File number(s):

LNG 56 of 2020

Judgment of:

JUDGE RIETHMULLER

Date of judgment:

31 May 2021

Catchwords:

MIGRATION – show cause – judicial review application – amended grounds – no matters of principle – dismissed  

Legislation:

Migration Act 1958 (Cth) s 499

Migration Regulations 1994 (Cth) r 500.212

Number of paragraphs:

24

Date of last submissions:

5 November 2020

Date of hearing:

5 November 2020

Place:

Townsville (via Microsoft Teams)

The Applicants:

Appeared in person

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

LNG 56 of 200

BETWEEN:

MANDEEP SINGH

First Applicant

HARPREET KAUR SUWAN

Second Applicant

JASLEEN KAUR VIRDI

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	31 MAY 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.

REASONS FOR JUDGMENT

JUDGE RIETHMULLER

1. The applicant seeks judicial review of a decision made by the Migration and Refugee Division of the Administrative Appeals Tribunal (‘the Tribunal’), which on 16 June 2020 affirmed a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the applicant another student visa to undertake an Advanced Diploma of Leadership and Management in Australia.

2. The Tribunal was not satisfied that the applicant was a genuine applicant seeking entry in Australia as a student, as required by clause 500.212(a) of the Migration Regulations 1994 (Cth) (‘Regulations’) to the Migration Act 1958 (Cth) (‘the Act’). The first applicant was the primary applicant, the second applicant is his wife and the third applicant is their child, who was born in Australia on 28 October 2017. The second and third applicants are dependants of the first applicant and therefore the outcome of their application rests entirely on whether the first applicant is successful in his application. This matter was listed before me for a Show Cause hearing.

   Background

3. The applicant, a citizen of India who arrived in Australia on 10 August 2008, has spent 12 years in Australia on 5 separate student visas. He has made 7 visits to India during that period.

4. On 8 February 2018, the applicant applied for the student visa that is the subject of these proceedings. This application was refused by a delegate for the Minister. The applicants filed an application for review with the Tribunal on 11 October 2018. They were invited to provide information on 19 March 2020 and to attend a hearing by telephone on 16 June 2020, with the assistance of an interpreter. At the end of the Tribunal hearing, the Member delivered an oral decision, following which, written reasons were provided on 1 July 2020.

5. The Tribunal noted the applicant’s long history of student visas in Australia since 2008 saying:

   9.The applicant said that he came to Australia in August 2008 to study. He said that he had not done tertiary study in India but had finished high school. He said that he was interested to study overseas and bring up his skill level, and he says that he had heard that studying in Australia is good. He agrees that he has now been in Australia for nearly 12 years. In that time, he has done various courses in hospitality and business. When he came in 2008, he enrolled in a Diploma of Hospitality which he pursued for one year. He said that in part due to immaturity and also to advice from friends, he decided to discontinue for that course after about a year.

   10.Although he is not sure of exactly when he discontinued that study, he agrees that it is likely to have been towards the end of 2009. He did not enrol in any other courses until 2011. In September 2011 he enrolled in a Certificate IV in Business.

   11.In the time between dropping out of the Diploma in Hospitality Management and starting the Certificate IV in Business, the applicant spent about a month and a half in India. The rest of the time, which the applicant agreed was over a year and a half, he said that he was looking for courses at which to study management.

   12. It was put to the applicant that that seemed like a long time, and the applicant said that that was because he was asking his friends and that he was suffering depression.

   13. No evidence of depression was presented, and the applicant agreed that he did not get any treatment.

   14. The tribunal noted that at the time the applicant's application was refused by the delegate, he was enrolled in an Advanced Diploma of Leadership and Management. The applicant gave evidence that he did not complete that course, but has provided evidence that he is now enrolled in a Graduate Diploma of Business (Leaming).

   15. It was noted that if the applicant had continued to study after the delegate's decision, he would have completed his Advanced Diploma in Leadership and Management. The applicant agreed that that was the case, and said that he would have returned to India if he had done that He said that instead he withdrew from that course after the visa refusal. He said that he withdrew because he was confused about whether he was entitled to keep studying. He said that he enrolled in his current course, the Graduate Diploma of Business, in late March of this year. He agreed that he had not done any study since the delegate's decision at the end of September 2018.

   16. He gave evidence that since the visa refusal, rather than studying, he was waiting for this review. When asked what changed at the end of March when he enrolled in his current course, the applicant said that when he was sure that his file for review was opened, he thought it was a good opportunity to enrol and study. It is not apparent to the tribunal why this is the case.

6. As set out at Court Book (‘CB’)  pages [81] to [92], the applicant has completed the following courses:

   •Certificate IV in Business (September 2011 – March 2012)

   •Diploma of Management (March 2012 – September 2012)

   •Diploma of Business (November 2012 – May 2013)

   •Certificate III in Commercial Cookery (June 2013 – January 2014)

   •Certificate IV in Commercial Cookery (February 2014 – August 2014)

   •Diploma of Hospitality (October 2014 – May 2015)

   •Advanced Diploma of Hospitality (May 2015 – October 2015)

   •Advanced Diploma of Business (October 2015 – May 2016)

7. After traversing various matters relevant to Direction 69, made pursuant to s. 499 of the Act (‘Direction 69’), the Tribunal clearly identifies that the core concern is as follows:

   30. It was put to the applicant that he had been in Australia for nearly 12 years. He was asked whether it was unreasonable to conclude that he is trying to stay in Australia rather than trying to study in Australia. The applicant denied that suggestion and said that he needs further qualifications to improve his earnings in India.

8. Given this history of study courses, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student, as required by clause 500.212(a): see paragraph [39] of the Decision.

   GROUNDS OF REVIEW

9. The applicant set out the following five grounds in the Application for judicial review:

   1.The Administrative Appeals Tribunal made jurisdictional error by making legally unreasonable findings of fact, making such findings without evidence or taking into account irrelevant considerations in clause 500.212

   2.The Administrative Appeals Tribunal fell into error at law. by mis-applying Direction Number 69 - Assessing the Genuine Temporary Entrant Criterion for Student Visa (Temporary TU), Subclass 500 (Student) Visa.

   3.Under section 499(2A) of the Migration Act, 1958 ('the Act') the Administrative Appeals Tribunal ('the Tribunal') must comply with a Direction made by the Minister for Home Affairs:

   4.The decision of the Administrative Appeals Tribunal - Migration and Refugee Division (the tribunal) dated 16 June 2020 was affected by jurisdictional error as the tribunal failed to consider all the evidence with respect to the factors identified in Direction 69 which were the subject of circumstances in my home country India and in Australia

   5.The Tribunal fell into error by misunderstanding the issue of discontinued my studies in Australia and the reasons for not studying in India

   Ground 1

10. When the applicant made submissions, I asked him about the three different elements within Ground one. The first element was the claim that the Tribunal findings were unreasonable. The applicant explained that he was studying a Graduate Diploma in Tasmania, because he wanted to build his management skills. He said he understands that he has been in Australia for a long time, but all that time he has been studying and gaining an education, and that he wants to continue so that he can get a better job when he returns to India.  

11. The applicant accepted that he has done eight different Diplomas over the last nine years. He submitted that it was unreasonable for the Tribunal to consider that the length of time he has spent studying was really for the purpose of staying in Australia, and he therefore was not a genuine applicant. The applicant said he enrolled in his ninth diploma in ten years to get more skills and education to build his career prospects.

12. Having regard to the very large number of courses and the lengthy period during which the applicant has been in Australia, it appears to me that it was open to the Tribunal to reach the views that it did.

13. The second element of this ground was that the Tribunal findings were without evidence. The applicant said he was not able to show evidence to the Tribunal about his job applications, he said it was an internet search and he was not able to save the searches and put that evidence to the Tribunal. These submissions do not identify any findings of the Tribunal that were made without evidence.

14. The third element of this ground is that the Tribunal took into account irrelevant considerations. The applicant submitted that his student visa history was irrelevant and that he was only undertaking so much study to better his career prospects. I do not accept that the applicant’s study history is irrelevant, as it shows what education the applicant has received, and whether the applicant is progressing in his studies.

15. I accept that Minister’s submission that:

    24. Several factors were relevant to the Tribunal’s ultimate conclusion including that the Tribunal was not satisfied that the first applicant’s further study would much improve his employability, his inability to give a clear indication of the work he proposed to do when he returns to India, and the Tribunal’s lack of satisfaction that he was motivated to apply for the visa for the purpose of study. The Tribunal’s findings were open to it on the materials, and its findings were neither irrational nor illogical, let alone extremely so. Therefore, this ground does not raise an arguable case.

16. This ground does not raise an arguable case.

    Grounds Two, Three and Four

17. In these grounds, the applicant alleges that the Tribunal misapplied Direction 69. When asked about these grounds, the applicant said that he did not understand what the grounds meant. The applicant said he did not really know what this Direction or the associated grounds were about. The applicant said the application was drawn up by a friend.

18. The decision traverses factors relevant to the matters set out in Direction 69. It does not appear that the Member has failed to have regard to the requirements of said Direction. It is not necessary for a Tribunal Member to cite the Direction in the reasons in order to comply with its requirements.

19. These grounds do not raise an arguable case.

    Ground five

20. The applicant was asked what he meant by this ground and he clarified at the hearing that the Tribunal had asked him why he studies in Australia, when there are lots of colleges in India. The applicant said he tried to explain that Australia provides better education and career opportunities. He said the comparable colleges in India have very limited places and the fees are very high compared to those in Australia. The applicant said the Tribunal misunderstood why he’s undertaking Diploma courses in Australia. These submissions appeared to differ from what was recounted by the Tribunal, however, no transcript of the Tribunal proceedings was provided during these proceedings.

21. The Minister submitted that:

    28. There are no particulars to explain in what way it is alleged that the Tribunal misunderstood the evidence in relation to discontinuance of studies in Australia and the reasons for not studying in India, or the significance of any such misunderstanding, if there was one.

    28.1. The information before the Tribunal indicated that there were 2 occasions on which the first applicant discontinued a course of study in Australia, in 2009 and in 2018. The evidence about that is clear and was given by the first applicant to the Tribunal (CB140 at [9]-[10] and 141 at [14], [15]). The information about completed courses provided by the first applicant himself in the completed Request for Student Visa Information form (CB88) indicates that no courses were completed in the gaps identified by the Tribunal (2009 until September 2011, and September 2018 to March 2020). Page 7 39389030

    28.2. With respect to study in India, the Tribunal summarised the first applicant’s evidence as being that there are comparable courses available in India at comparable fees but they were difficult to get into (CB142 at [21]). In the completed Request for Student Visa Information form the first applicant said

    (CB89): there are some very good universities in Punjab but it's hard to get admission into those universities due to limited capacity and volume of students. They are also quite expensive too.

    This is consistent with the Tribunal’s understanding of the situation. The question of whether the information satisfied the Tribunal that it was reasonable for the first applicant to elect not to study in India was a matter for the Tribunal.

22. The submissions made by the Minister must be accepted with respect to the ground as drawn in the application.  To the extent that the applicant’s submissions may have differed from that recounted by the Tribunal Member, there is no evidence that the Member had not accurately recounted the submissions made by the applicant at the Tribunal hearing. I am not persuaded that this is an arguable ground.

23. As the applicant has not identified an arguable case the application must be dismissed.

    COSTS

24. The parties made submissions as to costs at the end of the hearing before me. The applicant seeks his filing fee of $695.00. The Minister seeks costs at scale for an interlocutory hearing at $3,737.00. As the Minister has been wholly successful it is appropriate that he receive his costs.  I accept that the scale fee is appropriate for the nature of the work required in this case. I therefore order costs in the sum of $3,737.00.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.

Associate:

Dated:       31 May 2021