Singla v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 532

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singla v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 532

File number(s):

BRG 135 of 2021

Judgment of:

JUDGE LUCEV

Date of judgment:

23 June 2023

Catchwords:

MIGRATION – Judicial review – Administrative Appeals Tribunal decision – citizen of India – refusal of Student Guardian Visa – exceptional reasons – whether jurisdictional error

Legislation:

Migration Act 1958 (Cth) ss 48, 362B, 474, 476

Migration Regulations 1994 (Cth) Sch 2, cll 590.211, 590.212

Cases cited:

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Singla v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 514

Division:

Division 2 General Federal Law

Number of paragraphs:

20

Date of last submission/s:

5 June 2023

Date of hearing:

5 June 2023

Place:

Adelaide

Applicant:

The Applicant appeared in person via CISCO Webex

Counsel for the First Respondent:

Mr M Hopkins via CISCO Webex

Solicitor for the First Respondent:

MinterEllison

Second Respondent:

Submitting appearance, save as to costs

ORDERS

BRG 135 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SHANU SINGLA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LUCEV
DATE OF ORDER:	23 JUNE 2023

THE COURT ORDERS THAT:

1.The originating application filed 9 April 2021, as amended by an amended originating application filed 26 April 2023, be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order 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 LUCEV

INTRODUCTION

1. Before the Court is a judicial review application (“Judicial Review Application”) filed on 9 April 2021, made under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application was subsequently amended (“Amended Judicial Review Application”) on 26 April 2023. In the Amended Judicial Review Application the applicant, Ms Shanu Singla (“Ms Singla”), seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (“Second Tribunal Decision” and “Tribunal” respectively) dated 12 March 2021. In the Second Tribunal Decision, the Tribunal affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), not to grant Ms Singla a Student (Temporary) (Class TU) Student Guardian (subclass 590) visa (“Student Guardian Visa”).

   BACKGROUND

2. The background to the making of the Second Tribunal Decision is as follows:

   (a)Ms Singla is a citizen of India: CB 23;

   (b)on 15 March 2018 Ms Singla applied for the Student Guardian Visa in respect of her then 17 year old son: CB 23 and 29;

   (c)on 6 July 2018 the Delegate’s Decision was to refuse Ms Singla the Student Guardian Visa on the basis that she did not satisfy cl 590.212 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 85;

   (d)on 27 July 2018 Ms Singla applied to the Tribunal for review of the Delegate’s Decision: CB 88;

   (e)on 7 November 2019 the Tribunal affirmed the Delegate’s Decision (“First Tribunal Decision”): CB 127-129;

   (f)Ms Singla subsequently sought judicial review of the First Tribunal Decision before this Court (then the Federal Circuit Court);

   (g)on 25 May 2020 the Court made consent orders (“Consent Orders”) remitting the matter to the Tribunal for reconsideration, on the basis that the Tribunal failed to ask itself the question, and to consider, whether there were exceptional reasons why Ms Singla may be required to reside with the nominating student in Australia pursuant to cl 590.211(3) of Sch 2 to the Migration Regulations: CB 130;

   (h)following remittal to the Tribunal, on 15 January 2021 Ms Singla was invited to attend a hearing (“First Tribunal Hearing”) scheduled on 4 February 2021 by telephone: CB 169. Ms Singla did not appear at the First Tribunal Hearing: CB 189, and a decision was made to dismiss the review application (“Dismissal Decision”) under s 362B(1A)(b) of the Migration Act: CB 198;

   (i)following notification of the Dismissal Decision Ms Singla contacted the Tribunal in relation to her non-attendance: CB 199. This was treated as an application to reinstate the review application, and on 8 February 2021 the Tribunal decided to reinstate the review application: CB 205;

   (j)on 25 February 2021 Ms Singla was invited to attend a hearing (“Second Tribunal Hearing”) on 12 March 2021: CB 209; and

   (k)on 12 March 2021:

   (i)Ms Singla appeared before the Tribunal in the Second Tribunal Hearing by telephone: CB 221; and

   (ii)the Second Tribunal Decision was to affirm the Delegate’s Decision not to grant Ms Singla the Student Guardian Visa: CB 230–234.

   SECOND TRIBUNAL DECISION

3. In the Second Tribunal Decision the Tribunal:

   (a)stated that Ms Singla must satisfy all of the primary criteria at the time the Delegate’s Decision was made on the Student Guardian Visa. Under cl 590.211(2)(a) of Sch 2 to the Migration Regulations the criteria may be met where the nominating student has not turned 18: CB 232 at [15], and recorded that Ms Singla did not claim to meet this criterion and conceded that her son was over 20 years old at the time of the Second Tribunal Hearing: CB 232 at [15];

   (b)explained to Ms Singla that the determinative issue in her case had changed (since the delivery of the Delegate’s Decision), which it recorded she understood: CB 232–233 at [16] and [21], and that the Tribunal now needed to consider, pursuant to cl 590.211(3) of Sch 2 of the Migration Regulations, whether there were “exceptional reasons” why the nominating student needs Ms Singla to reside with the nominating student in Australia: CB 232 at [16];

   (c)noted that “exceptional reasons” is not defined in the Migration Act or the Migration Regulations, and further noted the examples of “exceptional reasons” provided in the Department of Home Affair’s (“Department”) Policy Advice Manual (“PAM3”): CB 233 at [18];

   (d)noted that Ms Singla did not make any claims under cl 590.211(4) of Sch 2 to the Migration Regulations, nor was there any suggestion that the grant of the Student Guardian Visa would significantly benefit the relationship between the government of Australia and that of a foreign country: CB 233 at [19];

   (e)noted Ms Singla’s evidence that her son was independent, had moved out with his girlfriend, and no longer lived with Ms Singla: CB 233 at [20];

   (f)considered Ms Singla’s evidence that she “is no longer proceeding with her guardianship case”, though noting she had not withdrawn the review application: CB 233 at [20];

   (g)noted Ms Singla’s view that the Delegate’s Decision should have been in her favour on the basis that her son was not 18 at the time of the Delegate’s Decision: CB 233 at [20];

   (h)said it had considered all of the material and evidence before it, and was not satisfied that Ms Singla had demonstrated exceptional reasons as to why there is a need for her son to reside with her in Australia: CB 233 at [23]; and

   (i)found, on the basis that Ms Singla could not satisfy cl 590.211(3) of Sch 2 to the Migration Regulations, that Ms Singla did not meet the criteria for the grant of a Student Guardian Visa and affirmed the Delegate’s Decision: CB 234 at [23]–[24].

   GROUNDS

4. The grounds in the Amended Judicial Review Application are as follows (reproduced unaltered):

   1.Not happy with the decision made by AAT

   2.I have FCC orders to quash the decision

   3.Home Affairs Minister agreed decision made by their department was a jurisdictional error

   4.Would like to Review my applications by Hon’ble Judge Lucev.

   5.I have orders to quash Decision of AAT Tribunal in 2021 (25^th May 2020

5. The grounds in the Amended Judicial Review Application differ from those in the Judicial Review Application only by reason of the inclusion of grounds 4 and 5.

   SUBMISSIONS

   Ms Singla’s Submissions

6. Ms Singla filed a written outline of submissions on 23 May 2023 as follows (reproduced unaltered):

   BACKGROUND OF THE CASE

   Applicant (Single Parent) arrived in Australia on a Guardian Visa Subclass 580 on 23rd April 2015 with her two Sons aged 14 and 15. Visa was for three years from 19th March to 2015 to 15th March 2018. After three years of study, Both of Sons grown up and younger one age was 17.5 years. Applicant applied again Guardian Visa Subclass 590 for Extension of Visa. But application was not successful. It was refused.

   After appealing to AAT, again it was Unsuccessful My son Dhruv Singla got Mental Illness in 2017. He was affected with Bipolar Disorder. His file is still with Federal Circuit Court. His file number is Dhruv Singla ADG401/2019

   I faced very bad time on the refusal time. Financially and Mental Stress. I had to look after my son and I was without work Rights in Australia. So I was not able to leave country to lodge another visa.

   During this Refusal Appeal Process

   On 25th May, 2020, Federal Circuit Court, Brisbane, JUDGE EGAN ( File No. BRG 1055/2019) Ordered

   - ADMINISTRATIVE APPEALS TRIBUNAL to Quash its decision. Decision was affected by Jurisdictional Error. Second Respondent erred by failing to ask the correct question and to address the necessary requirements under 590.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (The Regulations) in the assessment of the Student Guardian Visa Application before it.

   - to pay Legal costs, the applicant is entitled to as a self-represented litigant.

   ADMINISREATIVE APPEALS TRIBUNAL RECONSIDERATION

   (After Court Orders)

   The Tribunal affirms the decision not to grant a applicant Subclass 590 Guardian Visa because Applicant’s son turned 18 so applicant dies not meet Student Guardian Visa Subclass 590 Criteria.

   PRELIMINARY ISSUE

   In this case, Refusal Case, Section 48 Bar applied to Applicant.

   SECTION 48 BAR STATES

   If you have had a visa cancelled or refused since last arriving in Australia and you are either unlawful (that is – you do not hold a visa) or you hold a bridging visa you are then in what is called ‘section 48 bar’.

   If you are ‘section 48 barred’ you are prevented from lodging most other visa applications while you are in Australia (there are some very limited exceptions). This means that you would normally need to leave Australia.

   Becoming unlawful in Australia or overstaying your visa can negatively affect future visa applications and eligibility for citizenship.

   ORDERS SOUGHT

   Applicant Refusal was affected by Jurisdictional Error. SECTION 48 Bar is only applied to refused applicants. I was unlawful. Not eligible to lodge another visa while onshore.

   Applicant is Section 48 Barred. The section 48 bar will be lifted. So that Applicant can apply visa Onshore

   Becoming unlawful in Australia will affect my future visa applications and my eligibility for Citizenship.

   Humple request to Hon’able Judge Lucev for the best decision in my case.

7. At hearing Ms Singla said that: “it is completely understandable why I can’t be granted visa” and “because my sons are above 18, and I can’t be granted guardian visa”, but also that she was “because of the refusal … still suffering because if 48 section applied to my visa, and I can’t lodge my visa onshore” and that “the refusal … was a error still affecting me – my visa status in Australia”: Transcript, p 1 (see also pp 2-3 where similar remarks were made).

8. The Court notes that the matter numbered ADG401/2019 referred to in Ms Singla’s written submissions is a matter in which Ms Singla’s other son sought judicial review of a Tribunal decision refusing him a student visa, and was the subject of a judgment handed down by the Court on 16 June 2023 in which the application for judicial review was dismissed: Singla v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 514.

   Minister’s Submissions

9. The Minister filed a written outline of submissions on 22 May 2023 (a day before Ms Singla) in which it was submitted that:

   (a)the orders referred to in grounds 2 and 5 of the Amended Judicial Review Application are the Consent Orders which concerned the First Tribunal Decision, and not the Second Tribunal Decision for which judicial review is now sought;

   (b)the Consent Orders referred to in grounds 2 and 5 do not relate to, nor do they have any effect on, the Second Tribunal Decision that is the subject of the Amended Judicial Review Application;

   (c)contrary to ground 3, there is no reference to, nor is it accepted that the Minister conceded, that the Delegate’s Decision to refuse the Student Guardian Visa was affected by jurisdictional error, but, in any event, that is not relevant as the Court has no jurisdiction to review the Delegate’s Decision, and the decision the subject of the Amended Judicial Review Application is the Second Tribunal Decision;

   (d)Ms Singla’s grounds misapprehend the effect of the Consent Orders which do not concern, nor have any effect on, the Second Tribunal Decision, which is the subject of the Amended Judicial Review Application, and otherwise Ms Singla’s grounds do not identify or allege, and much less establish, any jurisdictional error in the Second Tribunal Decision;

   (e)the Second Tribunal Decision was not affected by jurisdictional error, but rather was plainly correct; and

   (f)the Amended Judicial Review Application should be dismissed with costs.

10. At hearing the Minister’s lawyer briefly reiterated the above written submissions: Transcript, p 4, and further submitted: Transcript, pp 3-4, that:

    (a)Ms Singla had accepted that there was no jurisdictional error in the Second Tribunal Decision, and on her own case there was a lack of identifiable jurisdictional error in the Second Tribunal Decision; and

    (b)the bar under s 48 of the Migration Act which was apparently affecting Ms Singla’s capacity to obtain a visa was a matter related to Ms Singla’s personal circumstances and was irrelevant to any alleged jurisdictional error in the Second Tribunal Decision.

    CONSIDERATION

    Jurisdictional error required

11. For present purposes it suffices to observe that this Court may set aside the Second Tribunal Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. It is important to understand that the only Tribunal decision in relation to which the Court has jurisdiction on the Amended Judicial Review Application is the Second Tribunal Decision, and therefore it is the Second Tribunal Decision in relation to which Ms Singla must establish jurisdictional error.

    Grounds 1 to 5

12. Ground 1 does not allege jurisdictional error in the Second Tribunal Decision. Ms Singla’s assertion of unhappiness with the “decision made by the AAT” is, at most, a plea for impermissible merits review of the Second Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

13. Grounds 2 and 5, and arguably ground 3, refer to the Consent Orders, which were orders which had the effect of quashing the First Tribunal Decision and remitting the matter for reconsideration by the Tribunal, but which are irrelevant to the issue of whether the Second Tribunal Decision is affected by jurisdictional error.

14. If ground 3 does not refer to the Consent Orders, but rather to the Delegate’s Decision, then it is a ground which is misconceived and cannot succeed because the jurisdiction of this Court is, relevantly in this matter, to judicially review decisions of the Tribunal: Migration Act, ss 474 and 476, and the Court has no jurisdiction in this matter to review the Delegate’s Decision.

15. Ground 4 does not allege jurisdictional error and is no more than a request that the Court carry out its judicial review function under s 476 of the Migration Act.

16. It follows from [12]-[15] above that grounds 1 to 5 of the Amended Judicial Review Application do not establish jurisdictional error in the Second Tribunal Decision. The Court also notes that Ms Singla effectively conceded as much at hearing.

    The bar under s 48 of the Migration Act

17. Ms Singla’s complaints about the alleged invocation of the bar under s 48 of the Migration Act to preclude her from applying for a visa is not a complaint of jurisdictional error in, or in relation to, the Second Tribunal Decision, but rather of other matters related to her capacity to apply for a visa and how any such applications have been dealt with by the Department. These complaints were not matters which were before the Tribunal for the purposes of the making of the Second Tribunal Decision, and are therefore not matters which are judicially reviewable by this Court.

    Jurisdictional error otherwise

18. The Court is cognisant that Ms Singla was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Second Tribunal Decision.

    CONCLUSION AND ORDER

19. The Court has concluded that Ms Singla has not made out the grounds of the Amended Judicial Review Application and that the Second Tribunal Decision is not affected by jurisdictional error by reasons of Ms Singla’s grounds, submissions, or otherwise. It follows that there will be an order dismissing the Judicial Review Application filed on 9 April 2021, as amended by the Amended Judicial Review Application filed on 26 April 2023.

20. The Court will hear the parties as to costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       23 June 2023