Singla v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 514
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singla v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 514
File number(s): ADG 401 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 16 June 2023 Catchwords: MIGRATION - Judicial review – decision of Administrative Appeals Tribunal – decision to affirm refusal to grant Student Temporary Class TU – whether failure to consider evidence of financial support – whether evidence of financial support misconstrued - whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 348, 359AA, 474, 476
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1
AMF17 v Minister for Immigration & Anor [2018] FCCA 1848
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
BQQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 268
DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72; (2020) 275 FCR 517
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Jata v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1998
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737; (2022) 403 ALR 398
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission: 28 October 2022 Date of hearing: 28 October 2022 Place: Perth Counsel for the Applicant: Mr H Glenister via CISCO Webex Solicitor for the Applicant: William Gerard Legal Counsel for the First Respondent: Ms G Ellis Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 401 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DHRUV SINGLA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
16 June 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 24 October 2019, as amended by an amended originating application filed 14 February 2020, and as further amended by a further amended originating application filed 12 October 2022, 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
On 24 October 2019 the applicant, Mr Dhruv Singla (“Mr Singla”) filed an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”), seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 23 September 2019. The Tribunal Decision affirmed a decision of 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 Mr Singla a Student Temporary (class TU) Student (subclass 500) visa (“Student Visa”). The Judicial Review Application has subsequently been twice amended, and the Court now has before it a Further Amended Judicial Review Application filed 12 October 2022.
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 135-148.
BACKGROUND
The relevant background to the matter is as follows:
(a)Mr Singla is a citizen of India who first arrived in Australia on a student visa on 23 April 2015: CB 19;
(b)on 13 March 2018 Mr Singla applied for the Student Visa: CB 1-51, on the basis of confirmed enrolments in three automotive courses, the last course to be completed by March 2020: CB 49-51;
(c)on 4 May 2018 the Delegate’s Decision was to refuse Mr Singla the Student Visa on the basis that Mr Singla did not satisfy the genuine temporary entrant criterion (“GTE Criterion”) in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 64-67;
(d)on 25 May 2018 Mr Singla applied to the Tribunal for review of the Delegate’s Decision and listed his mother as his representative: CB 68-69;
(e)on 11 June 2019 the Tribunal wrote to Mr Singla’s mother inviting Mr Singla to provide information (“Information Invitation”): CB 74-82. The Information Invitation required Mr Singla to respond in writing with information about the courses of study he was to undertake, his entry and stay in Australia as a student, and to complete the online Request for Student Visa Information form. The response to the Information Invitation was due by 25 June 2019: CB 76;
(f)on 12 June 2019 Mr Singla’s mother wrote to the Tribunal requesting an extension of time for the Information Invitation until 20 July 2019 on the basis that she was preparing documents in support of her other son’s application and that she was “facing financial hardship now a days”: CB 83-84;
(g)on 13 June 2019 the Tribunal wrote to Mr Singla’s mother refusing to grant the extension to the Information Invitation: CB 85-87;
(h)on 13 June 2019 Mr Singla’s mother again wrote to the Tribunal, this time requesting an extension of time for the Information Invitation of one week: CB 88;
(i)on 18 June 2019 the Tribunal wrote to Mr Singla’s mother agreeing to grant an extension of time to 2 July 2019 for the response to the Information Invitation: CB 90-92;
(j)on 2 July 2019 the Request for Student Visa Information form was provided to the Tribunal, completed by Mr Singla’s mother: CB 93-103, with the response to the Information Invitation: CB 104-110;
(k)on 27 August 2019 the Tribunal wrote to Mr Singla’s mother to invite Mr Singla to a Tribunal hearing on 13 September 2019 (“Tribunal Hearing”): CB 111-115;
(l)on 27 August 2019 Mr Singla attended, together with his mother, the Tribunal Hearing: CB 117-119;
(m)at the Tribunal Hearing Mr Singla’s mother provided an email from Durban International College to Mr Singla’s mother dated 13 September 2019 appending a Letter of Offer and Acceptance of Offer addressed to Mr Singla for a Diploma of Business course: CB 120-131; and
(n)on 26 September 2019 the Tribunal Decision affirmed the Delegate’s Decision to refuse Mr Singla a Student Visa: CB 132-148.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)found that the issue was whether Mr Singla was a genuine temporary entrant and met the GTE Criterion, and that in considering the issue, it must have regard to Ministerial Direction No 69 (“Direction 69”): CB 136-137 at [6]-[9];
(b)recorded that it had put Mr Singla’s enrolment records in the Provider Registration International Student Management System to him (under s 359AA of the Migration Act), and that he had requested an adjournment to consider the information before commenting on it: CB 137 at [11], but that it declined to give Mr Singla additional time to provide comment on the information as it considered that he had already been given a reasonable opportunity to provide evidence about his studies and enrolments: CB 137 at [12]-[13]; and
(c)applying Direction 69, made the following findings:
(i)although Mr Singla had extended family in India, his immediate family was in Australia. This, combined with the length of time he has spent in Australia, led the Tribunal to conclude that he had a significant incentive not to return home to India: CB 138 at [20.b];
(ii)Mr Singla’s economic circumstances as a whole were a significant incentive not to return to India: CB 138 at [20.c];
(iii)Mr Singla’s social and emotional connections were a strong incentive to remain in Australia: CB 139 at [29.a];
(iv)Mr Singla’s pattern of enrolment, periods of non-enrolment, changes in fields of study, limited plans in relation to his return to India, and absence of any explanation for how the course would benefit his career, all suggested that he was using the student visa program to circumvent the intentions of the migration program: CB 140 at [29.b], and primarily to maintain ongoing residence in Australia: CB 140-141 at [29.c] and [38.e];
(v)Mr Singla had a good knowledge of living in Australia and of the proposed course: CB 140 at [29.d];
(vi)the proposed course was a progression from Mr Singla’s high school education and was consistent with previous courses he has been enrolled in since arriving in Australia: CB 140 at [33.a];
(vii)the proposed course was not relevant to any previous employment but was of general relevance to Mr Singla’s future intentions: CB 140 at [33.b];
(viii)Mr Singla had not demonstrated reasonable academic progression, especially having regard to a period of non-enrolment for over 12 months after finding out that “auto” was “just not his thing”: CB 139-140 at [25] and [33.c]; and
(ix)Mr Singla’s projected income in India was less than his current earnings in Australia: CB 141 at [33.d].
Based on the findings set out at [4] above, the Tribunal was ultimately not satisfied that Mr Singla intended genuinely to stay in Australia temporarily: CB 142 at [41], and he therefore did not meet the GTE Criterion, particularly Sch 2, cl 500.212(a) of Sch 2 to the Migration Regulations: CB 142 at [42]-[44].
LITIGATION HISTORY
Given that the Judicial Review Application was originally filed more than three and a half years ago in the Adelaide Registry of the Court it is appropriate to briefly set out the litigation history of the matter thereafter, which is as follows:
(a)the matter was initially listed for a directions hearing before a Registrar of the Court (then the Federal Circuit Court) on 6 December 2019;
(b)on 2 December 2019 a Registrar of the Court made consent orders for the filing of documents in the matter, and ordering that the matter be listed for both a final hearing and a directions hearing on dates to be advised;
(c)on 16 December 2019 the Minister filed the CB;
(d)on 14 February 2020 Mr Singla filed an amended Judicial Review Application (“Amended Judicial Review Application”):
(e)nothing further occurred until more than two years later, when in May 2022, the matter was allocated to the docket of the presiding Judge in the Perth Registry of the Court;
(f)on 19 May 2022 the parties were notified of a directions hearing before the presiding Judge;
(g)on 26 May 2022 the parties attended a directions hearing at which orders were made (“May 2022 Orders”) that:
(i)Mr Singla file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 27 September 2022;
(ii)the Minister file and serve any amended response, affidavits in reply, and an outline of submissions by 10 October 2022; and
(iii)listing the matter for a final hearing by video link on 27 October 2022 before the presiding Judge;
(h)on 27 September 2022 Mr Singla filed a new Notice of Address for Service advising that his address for service was a law firm in Perth;
(i)on 11 October 2022 the Court made consent orders extending time for compliance with the May 2022 Orders;
(j)on 12 October 2022 Mr Singla filed the Further Amended Judicial Review Application;
(k)on 14 October 2022 Mr Singla filed:
(i)written submissions; and
(ii)an affidavit affirmed on 14 October 2022 by Mr Hamish Glenister appending a transcript of the Tribunal Hearing (“Tribunal Hearing Transcript”);
(l)on 20 October 2022 the parties were advised that the hearing of the matter had been relisted from 27 to 28 October 2022; and
(m)on 21 October 2022 the Minister filed written submissions.
GROUND 1 OF THE FURTHER AMENDED JUDICIAL REVIEW APPLICATION
Only ground 1 of the Further Amended Judicial Review Application is pressed, and it is as follows:
1.The Second Respondent (Tribunal) made a jurisdictional error by failing to consider or misconstruing Mr Singla’s claim or evidence that he would be financially supported upon his return to India by his parents.
SUBMISSIONS
Mr Singla’s submissions
Mr Singla submitted that:
(a)he had claimed that he would be supported upon his return to India by his “parents”: Tribunal Hearing Transcript, p 17, ln 1. The Tribunal failed to consider or misconstrued this claim at CB 138 at [19] by substituting “mother” for “parents”. The relevance of this was that Mr Singla’s mother had claimed financial hardship and provided evidence of the same: CB 83 and 104-108. The Tribunal ultimately reasoned at CB 138 at [20(b)] and [20(c)] that Mr Singla’s economic circumstances presented “a significant incentive not to return home’”, which weighed against the proposition that he genuinely intended to stay in Australia temporarily;
(b)Mr Singla had said that his parents would support him on his return to India, not just his mother, and it cannot be inferred that the Tribunal considered that evidence;
(c)there was a reference in a letter signed by Mr Singla at CB 20 in support of his Student Visa application to the effect that his “real aunt and stepfather” supported “us financially”, and so there was some evidence of the involvement of Mr Singla’s stepfather;
(d)although it was a small factual error it was one of some importance: Transcript, p 4, because “mother” does not mean “parents”;
(e)properly understood, a failure by the Tribunal to consider a claim, representation, contention or submission is a failure by the Tribunal to complete the task required of it under s 348(1) of the Migration Act: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [55] and [63] per Black CJ, French and Selway JJ; EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 (“EVA17”) at [36] per Perry, Derrington and Wheelahan JJ. That failure will constitute jurisdictional error if it is material to the outcome of the review: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75 at [45] per Bell, Gageler and Keane JJ; DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72; (2020) 275 FCR 517 at [60] per McKerracher, Mortimer and White JJ;
(f)the judgment of the Federal Circuit Court (as this Court then was) in AMF17 v Minister for Immigration & Anor [2018] FCCA 1848 (“AMF17”), submitting that it was a very similar case in that the Tribunal found that the applicant in AMF17 was not credible in circumstances where it misconstrued his evidence about whether or not he had disclosed his homosexuality, which upon analysis by the Court was found to be what is now recognised as a material jurisdictional error;
(g)there was a realistic possibility - the proof of proving which was slight, referring to Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737; (2022) 403 ALR 398 - that the Tribunal’s failure to consider Mr Singla’s evidence about financial support from his “parents” may have affected the outcome of the Tribunal Decision that there was no significant incentive for the Mr Singla to return to India.
Minister’s submissions
The Minister submitted that as to ground 1, there is no error in the Tribunal’s reasoning because:
(a)there is no material difference between parents and mother in the present circumstances. There was no evidence about Mr Singla’s father in this matter. The only reference in Mr Singla’s documents to his father is in his visa application, and there it refers to Mr Singla’s “step parent” in India: CB 8. The only time Mr Singla referred to his parents in plural is that singular reference at the hearing. When it came to financial support, Mr Singla’s consistent evidence was that he was reliant on his mother. For instance, in his visa application, under other financial support, he clearly stated that “I have financial support from my mother. My mother manages everything”: CB 9. Mr Singla’s mother had also previously confirmed that she was a single mother: CB 104;
(b)it was entirely logical in any event for the Tribunal to observe that there was an inconsistency with Mr Singla’s mother’s claim of financial hardship: CB 83 and 104, with Mr Singla’s claim that his parents could support him financially. If his parents (plural) were able to support Mr Singla, then presumably his mother would not be suffering financial hardship in Australia;
(c)the ground requires the Court to read the Tribunal Decision with an eye too keenly attuned to error and to assume that a singular remark had more prominence in Mr Singla’s case than it was presented with. It is well-settled that that is not the approach the Court should take. Rather, the Court should instead read the Tribunal Decision with the following approach as set out in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 (“Singh - Full Court”) at [37(b)] per Reeves, O’Callaghan and Thawley JJ (cited with approval in Jata v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1998 at [33] per Wheelahan J):
(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal;
(d)read fairly and in context, the Tribunal’s reasoning was entirely reasonable and logical and did not misunderstand Mr Singla’s evidence or claim.
CONSIDERATION
Law
For present purposes it suffices to observe that this Court may set aside the 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 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ
It is well established that failure to consider an integer of an applicant’s claim may constitute jurisdictional error where that claim relates to a mandatorily relevant criterion under the Migration Act: Dranichnikovv Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [47]-[50] per Judge Lucev. In Htun at [42] per Allsop J, it was said that "[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on".
The Full Court of the Federal Court in Singh - Full Court at [34] per Reeves, O’Callaghan and Thawley JJ observed as follows:
… a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if - for example - it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” - see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” - see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” - see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
and further at [37(b)] per Reeves, O’Callaghan and Thawley JJ as set out at [9(c)] above.
While the Court can infer a failure to consider a claim if the Tribunal did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Tribunal Decision as a whole, and such an inference ought not too readily be drawn where the reasoning in the Tribunal Decision is otherwise comprehensive and the issue has at least been identified at some point: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ. Further, it may be unnecessary to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ.
In EVA17 at [36] per Perry, Derrington and Wheelahan JJ the Full Court of the Federal Court observed as follows:
Undoubtedly, a failure to consider a relevant component integer of a claim may, in appropriate circumstances, constitute a jurisdictional error: BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [9] per Flick J. Necessarily the decision-maker is also required to consider the claims and the integers thereof which are not expressly articulated but which necessarily arise on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] French, Sackville and Hely JJ held:
[46]It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47]The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The Tribunal is not obliged to refute, line by line, relevant material: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [65] per McHugh J, nor is the Tribunal required to expressly refer to each and every individual piece of evidence provided by an applicant or make findings regarding each of those pieces of evidence: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [67]-[68], [73]-[74], [77], [89] and [91] per McHugh, Gummow and Hayne JJ.
Consideration of the claim
In the Further Amended Judicial Review Application the claim said not to have been considered by the Tribunal is specifically said to arise from the evidence at Tribunal Hearing Transcript at p 17, ln 1. In context, the evidence at Tribunal Hearing Transcript at p 16, ln 26 – p 17 ln 3 was as follows (reproduced unaltered):
Member Glenn O’Brien (17:48) In terms of your ties to Australia … Or actually I’ll get … Before I get to your Australian, circumstances in Australia, one of the other concerns the Tribunal may have is your financial or economic circumstances as a whole may not be a significant incentive for you to return to India, because you have no arranged employment and no income in India, and you’re earning income in Australia. Do you have anything to say in relation to that?
Mr Dhruv Singla (18:16) Um, I think my, um, parents can support me, um, if I, uh, plan to move to, um, India soon. For a little bit, u-until I get the job. Or, um, until I make a source of income. But, um, for that I would have to, um, complete my studies to get to, um, get a job for that, in the, in the [inaudible 00:19:10].
In addition to the evidence given by Mr Singla at the Tribunal Hearing the only other evidence or material to which the Tribunal was referred to support the making of the alleged “parents” financial assistance claim was contained in the Student Visa application and was as follows:
(a)Mr Singla confirmed that he had other family members being parents or siblings in or outside Australia: CB 7;
(b)referred to the relationship of the other family members to him as being “Mother/Father-in-law”: CB 7;
(c)set out family member details for his:
(i)mother and brother: CB 7-8; and
(ii)a male step-parent: CB 8,
all of whom were said to ordinarily be resident in India: CB 7-8;
(d)said, under the heading “Funding for stay” at CB 9 that:
I have financial support from my mother. My mother manage everything.
(e)said, in an attached written statement at CB 20, that:
… I always receive support from my mother emotionally and financially. She always encouraged me to excel in my studies. She is my mentor. My real Aunt and my step father helps my mother to support us financially …
The evidence as to financial support from Mr Singla’s step-father went no further than that set out above.
The Tribunal Decision noted that:
(a)Mr Singla completed year 10 in India and did not engaged in any paid employment in India prior to travelling to Australia: CB 138 at [15];
(b)Mr Singla’s mother and brother reside in Australia with Mr Singla, that he has no immediate family in India, but an uncle and aunt in India, that his mother has property in India which valued at $65,000 AUD, but Mr Singla’s mother is currently resident in Australia: CB 138 at [16];
(c)Mr Singla’ returned to India for one week in 2017: CB 138 at [17];
(d)Mr Singla told the Tribunal he works as a carpet steam cleaner in Australia and earns between $300-500 AUD per week on the basis of 15 hours a week part-time work, and is supported by his mother: CB 138 at [18];
(e)his mother has claimed financial hardship and Mr Singla indicated part of his reasons for his periods of non-enrolment related to the claimed financial hardship: CB 138 at [18];
(f)Mr Singla’s evidence in relation to his plans for returning to India was “at best vague”, and that he told the Tribunal he will return to India and seek employment in business, but he has no plans at the moment, and when asked how much he anticipated earning upon his return to India Mr Singla stated “no comment - I have no plans”: CB 138 at [19];
(g)Mr Singla told the Tribunal his mother will support him until he gets a job if he plans to return: CB 138 at [19], but this evidence appeared inconsistent with the financial hardship claimed: CB 138 at [19];
(h)in considering Mr Singla’s circumstances in his home country on the basis of the matters set out in the Tribunal Decision and the evidence before the Tribunal, found: CB 138-139 at [20], that:
(i)Mr Singla provided reasonable reasons for not undertaking the proposed course of study in India;
(ii)Mr Singla’s immediate family is in Australia, that he has an aunt and uncle in India, and Mr Singla’s mother owns property in India, and that in considering the period of time Mr Singla has been in Australia and the completion of his high schooling in Australia, the residence of his mother and brother in Australia, the limited travel to India since 2015, and the absence of any substantive plan to return to India and seek employment, these circumstances are a significant incentive not to return home;
(iii)Mr Singla:
(A)is supported financially during his study in Australia by his mother, however, the Tribunal noted his mother claims to be suffering financial hardship and that she had produced payment plans to the Tribunal in relation to outstanding education fees for Mr Singla;
(B)did not work previously in India;
(C)currently works in Australia as a carpet steam cleaner and earns approximately $300-500 AUD per week on the basis of approximately 15 hours part-time work; and
(D)has no substantive plan in relation to returning to India to seek employment; and
(iv)accepted Mr Singla’s living expenses in India are likely to be less than in Australia; and
(i)found, in considering these matters as a whole, that Mr Singla’s economic circumstances present as a significant incentive not to return home to India.
Apart from Mr Singla’s minimal evidence of Mr Singla’s own financial position, and the evidence of Mr Singla’s mother as to her and her family’s (that is her, Mr Singla and Mr Singla’s brother) financial position, there is no evidence of the financial position of any other person, and in particular Mr Singla’s step-father. Having made the claim it was for Mr Singla to provide evidence of the “parents’” financial position: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 at [187] per Gummow and Hayne JJ; SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233 at [18] per Barker J; BQQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 268 at [80] per Katzmann J. Mr Singla failed to provide evidence of the financial position of anyone other than himself (and then only in relation to his employment earnings) and his mother.
The Tribunal did not fail to consider the claim or the evidence in support of the claim in relation to financial support. Apart from Mr Singla’s evidence of his financial position, the only evidence of actual financial position was that provided in support of the claim by Mr Singla’s mother, who was said to be suffering financial hardship. There was no failure to consider the financial position of the step-father because Mr Singla put no evidence of the step-father’s actual financial position before the Tribunal. The Tribunal can only consider the claim by reference to the evidence put before it, and even if it did fail to consider the evidence before it of the financial position of the “parents”, or the financial position of the step-father, it could not have led to a different finding of fact nor made any possible material difference to the findings in the Tribunal Decision because there was no evidence of the parents’ collective financial positon or the separate financial position of the stepfather: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; WAEE at [46] per French, Sackville and Hely JJ; EVA17 at [36] per Perry, Derrington and Wheelahan JJ. In essence, there was nothing, or nothing of any substance, to overlook with respect to the evidence about the financial position of the step-father: WAEE at [47] per French, Sackville and Hely JJ. The Tribunal was not required to expressly refer to each and every individual piece of evidence provided by Mr Singla, or to make a finding concerning skerricks of evidence that his step-father was providing financial assistance (more particularly financial assistance to Mr Singla’s mother than Mr Singla): CB 20 (as set out at [17(e)] above]); Yusuf at [67]-[68], [73]-[74], [77], [89] and [91] per McHugh, Gummow and Hayne JJ, and particularly so where:
(a)no evidence or particulars of that financial assistance to Mr Singla’s mother was provided to the Tribunal;
(b)the evidence from Mr Singla concerning financial support from the “parents” at Tribunal Hearing Transcript at p 17, ln 1 was, at best, equivocal:
Um, I think my, um, parents can support me …
(c)notwithstanding whatever assistance it was that was provided to Mr Singla’s mother by Mr Singla’s step-father, Ms Singla’s financial position remained one of suffering financial hardship.
Mr Singla relied upon AMF17. In AMF17 the Tribunal had found that the applicant had “failed to disclose his claimed homosexuality to his counsellor” and that that undermined the applicant’s claim to be homosexual: AMF17 at [18] and [29] per Judge J Smith. But in AMF17 the Tribunal omitted from a summary of a relevant part of the evidence the evidence that the applicant had specifically told a counsellor about his sexuality: AMF17 at [28] and [33] per Judge J Smith, and that was important in that case because the Tribunal:
(a)had proceeded on the basis that the applicant had not acted consistently with his claimed fear of harm (persecution on the basis of sexuality): AMF17 at [33] per Judge J Smith: and
(b)having failed to consider relevant direct evidence about the applicant’s sexuality, rejected the applicant’s sexuality claims on the basis of credibility findings based on findings that the applicant’s evidence was unconvincing: AMF17 at [34] per Judge J Smith,
which led the Court to find jurisdictional error because of the Tribunal’s “failure to take into account the evidence that the applicant had in fact spoken to his counsellor about his sexuality”: AMF17 at [37] per Judge J Smith.
As set out at [20]-[21] above, there was no failure by the Tribunal in this matter to take into account evidence about the actual financial position of the step-father as no such evidence was before the Tribunal. The Tribunal cannot fail to take into account what was not put before it: Abebe at [187] per Gummow and Hayne JJ. AMF17 is therefore distinguishable and of no assistance.
It follows from the Court’s findings at [16]-[23] above that Mr Singla has failed to establish that the Tribunal failed to consider, or has misconstrued, Mr Singla’s claim or evidence that he would be financially supported upon his return to India by his parents. It follows that ground 1 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 24 October 2019, as amended by the Amended Judicial Review Application filed on 14 February 2020, and as further amended by the Further Judicial Review Application filed on 12 October 2022.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 16 June 2023
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