FEDERAL COURT OF AUSTRALIA

Singh v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350

ORDERS

THE COURT ORDERS THAT:

1.    The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs be substituted as the first respondent.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent's costs fixed in the amount of $3,500.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the appellant a Student (Temporary) (Class TU) subclass 500 student visa on the ground that the appellant did not meet a criterion for the grant of the visa in cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

Legislative requirements

2    Section 31(3) of the Migration Act 1958 (Cth) provides that the Regulations may prescribe criteria for a visa or visas of a specified class. Regulation 2.01 provides that classes of visas are set out in (relevantly) Schedule 1. Regulation 2.03 provides that prescribed criteria are set out in the relevant part of Schedule 2. Regulation 1.07 provides that a reference to a visa of a particular subclass is a reference to a visa granted on satisfaction of the criteria for the grant of the visa that are set out in the part of Schedule 2 that bears the number of the subclass.

3    Schedule 1 includes the category of visa of Student (Temporary) (Class TU). Schedule 2 contains criteria for subclass 500 student visas. Clause 500.2 of Schedule 2 is introduced by a note that provides that 'All criteria must be satisfied at the time a decision is made on the application'. Clause 500.211 provides that the primary criteria are as follows:

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.

(emphasis added)

4    Clause 500.111 comprises relevant definitions. It provides that 'course of study' means:

course of study means the following:

(a)    in relation to a secondary exchange student - a full-time course of study under a secondary school student exchange program administered by a State or Territory education authority;

(b)    in relation to a Foreign Affairs student - either:

(i)    a full-time course of study or training under a scholarship scheme approved by the Foreign Minister; or

(ii)    a full-time course of study or training under a training program approved by the Foreign Minister;

  (c)    in relation to a Defence student - either:

(i)     a full-time course of study or training under a scholarship scheme approved by the Defence Minister; or

(ii)    a full-time course of study or training under a training program approved by the Defence Minister;

  (d)    in any other case - a full-time registered course.

5    The subclass 500 visa was introduced into the Regulations by the Migration Legislation Amendment (2016 Measures No 1) Regulation 2016 (Cth) and took effect from 1 July 2016, and so applies to the appellant's application.

The appellant's visa application

6    The appellant is an Indian citizen. On 14 March 2017 the appellant lodged his application for a student visa. The application was acknowledged by the Department of Immigration and Border Protection on that day.

7    According to the Department, the appellant provided evidence with the application of a current enrolment into a Bachelor of Business (Community Services Management) course at the Stott's Colleges.

8    However, the confirmation of enrolment was cancelled on 20 March 2017. According to a submission made later by the appellant to the Tribunal, he was not told why his enrolment was cancelled.

9    On 23 May 2017 a delegate of the Minister refused to grant the visa on the basis that the appellant did not satisfy cl 500.211 of the Regulations, in that he had not provided evidence that he was currently enrolled in an educational institution at the date of the decision.

10    On 9 June 2017 the appellant applied to the Tribunal for review of the delegate's decision.

11    The Tribunal wrote to the appellant inviting him to attend a hearing, give evidence and present arguments relating to the issues relevant to his case. The hearing invitation requested that the appellant provide a copy of his current confirmation of enrolment or other documents that showed that he was currently enrolled in a course of study (as defined in the Regulations); and documents that showed his past studies in Australia, including copies of all his attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to his past or intended studies in Australia.

12    The appellant provided written submissions to the Tribunal. Prior to the hearing, the appellant gave the Tribunal a 'Letter of Offer and Student Acceptance Agreement' for a Bachelor of Business course from 'Acknowledge Education' (letter of offer), as well as voluminous financial documents.

13    The appellant appeared before the Tribunal on 15 May 2018 to give evidence and make submissions, but by oral decision of the same day the Tribunal affirmed the delegate's decision and subsequently provided reasons.

14    The Tribunal's reasons noted the requirements prescribed in the Regulations, particularly the requirement to provide evidence of current enrolment. The Tribunal noted that the submitted documents, including the letter of offer, did not satisfy cl 500.211.

15    The Tribunal conducted a de novo review of whether the appellant satisfied the requirements for a visa. As the appellant did not have current enrolment and provided no evidence of current enrolment, the Tribunal found that he did not satisfy cl 500.211, a prerequisite for the grant of a visa. The Tribunal affirmed the delegate's decision.

16    The Tribunal published reasons for its decision on 13 July 2018.

17    The appellant then applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision.

Before the Federal Circuit Court

18    The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court. He was self-represented.

19    The appellant raised three grounds of review:

(1)    The delegate did not seek clarification or provide the appellant with the opportunity to explain [his] circumstances and made an adverse decision.

(2)    The Tribunal considered irrelevant information and made a biased decision, which amounts to jurisdictional error.

(3)    The Tribunal fell into jurisdictional error by not carefully considering the relevant factors and thereby acted unreasonably.

20    A fourth ground was raised by the appellant in an affidavit, in which the appellant claimed he was not given a chance to clarify his circumstances; the Tribunal did not consider the information provided to it; and the Tribunal made a judgment based on assumptions, rather than facts.

21    The primary judge found that:

(1)    The appellant had not identified any evidence of bias, nor any irrelevant considerations that were taken into account or any relevant considerations that were overlooked.

(2)    The appellant could not clarify why he considered the Tribunal's decision to be unreasonable. The Tribunal could not be said to have acted unreasonably by failing to adjourn the hearing so that the appellant could formalise the offer in question, given that the appellant was clearly on notice that the absence of proof of enrolment was the reason the delegate refused his visa. It was obvious that issue would be the issue on review.

(3)    On the evidence there was nothing in the decision that indicated it was illogical or irrational. The Tribunal relied on the evidence provided by the appellant that showed he was not currently enrolled or studying in a registered course. The Tribunal had considered all the facts, relevant legislation and evidence provided, and made the only decision that was open to it.

(4)    As to procedural fairness, the appellant had been given every opportunity to put on evidence to dispute the Tribunal's finding, and he did not do so. No adjournment was sought by the appellant and there was nothing to suggest that an adjournment should have been granted. It could not be said that procedural fairness had not been afforded.

22    The primary judge dismissed the application for review.

23    The appellant now appeals from the judgment of the Federal Circuit Court.

Ground of appeal

24    The appellant relies on one ground of appeal:

The delegate did not seek clarification on my circumstances and did not consider information provided by me on judgment day.

25    The appellant was also self-represented in these proceedings. He did not file an outline of submissions prior to the hearing, but made oral submissions.

26    Clearly it is not for this Court to review or consider an appeal from the decision of the delegate. However, I was prepared to consider the ground of appeal on the basis that the appellant intended to refer to the decision of the primary judge. The appellant's failure to direct his ground of appeal at the Federal Circuit Court decision is explicable by the fact that he is and has been unrepresented throughout the proceedings.

27    Even so, no documents were sought to be tendered by the appellant at the hearing before the primary judge, and his Honour considered the appellant's oral submissions, as is apparent from his detailed reasons.

28    The ground of appeal appears to be a further challenge to the Tribunal's decision. Despite an appeal to the Federal Court being an appeal by way of rehearing, it is necessary for an appellant to demonstrate an error in the judgment appealed from: it is not an opportunity to revisit the Tribunal's decision. As the Full Court has explained, 'an appeal by way of rehearing … does not mean it is an opportunity to revisit the decision of the tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge': Rawsthorne v Minister for Immigration & Citizenship [2013] FCAFC 39 at [27]; BZAHB v Minister for Immigration & Border Protection [2015] FCA 1205 at [31]-[34].

29    Before me, the appellant said that he did not have a certificate of enrolment because he wished to await the grant of a visa before incurring the costs of enrolment. He also said he wanted a second chance to continue his studies, as he came to Australia for that purpose.

30    Whilst I can well understand the appellant's desire to continue studies in Australia, the matters he has raised do not comprise a basis for finding appellable error on the part of the primary judge.

31    It is clear that the Tribunal properly understood its task. It ascertained that the appellant had failed to provide evidence of enrolment at the date of its decision and applied the relevant definition, as required for the purpose of considering whether the criterion for the subclass 500 visa was met. It applied the definition correctly. Accordingly, no jurisdictional error on the Tribunal's part is disclosed and the primary judge did not err in dismissing the review application.

32    The appeal must be dismissed with costs.

Associate:

Dated:    21 August 2019