FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2019] FCA 1863

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the first respondent's costs of the appeal to be fixed in the amount of $5,000 inclusive of any GST.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Since 2008, Mr Gurpreet Singh has lived in Australia in order to undertake courses of study. For that purpose he has sought and obtained a succession of student visas. The first student visa was granted in 2008, the next in 2011 and the next (a graduate visa to get work experience in the field of completed study) in 2013.

2    In 2015, Mr Singh applied for a temporary student visa (subclass 572), a class of visa that closed for further application from 1 July 2016. The application was refused. He sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision to refuse the visa application. Mr Singh then sought judicial review in the Federal Circuit Court. The application was refused and this Court now considers an appeal against the decision of the primary judge in the Federal Circuit Court.

3    Mr Singh raises eight grounds of review. A number of the grounds seek to raise new matters not argued before the primary judge. Those grounds cannot be advanced unless leave to do so is given by this Court. The approach to be taken and the matters to be brought into account in considering an application for leave in applications of the present kind are both well established. I summarised them recently in CHZ19 v Minister for Home Affairs [2019] FCA 914 at [31]-[39]. To the extent that those matters are of particular significance in this case I will deal with them in the course of considering the appeal grounds.

4    For the following reasons, the appeal should be dismissed.

Application

5    Mr Singh's application said that he wanted to study an Advanced Diploma of Business at Adelaide College of Technology. He described his reasons for undertaking the course in the following way:

As I have already studied business, I want to develop some more skills in this field. I chose to study in Australia because my partner and her kids live here and we have been living together for more than 2 years. I will look for a job in business sector or most probably I will run my own business in future.

The Tribunal's reasons

6    The Tribunal conducted a hearing and gave oral reasons immediately after the hearing. It published those reasons when requested to do so by Mr Singh.

7    In its reasons, the Tribunal correctly summarised the criteria to be satisfied by Mr Singh as requiring him to demonstrate that he had a genuine intention to remain in Australia temporarily and he was a genuine student (paras 4 and 5).

8    The Tribunal then stated that it was necessary to have regard to Direction No 53 - Assessing the genuine temporary entrant criterion for Student visa applications (Direction) (para 7). This too was correct. The Direction was made by the Minister in the exercise of the power conferred by s 499 of the Migration Act 1958 (Cth). By s 499(2A), a body such as the Tribunal must comply with the Direction in the performance of functions and the exercise of powers under the Migration Act.

9    The Tribunal briefly recounted the history of Mr Singh's student visa applications and then noted that Mr Singh had never studied at the level required under his first visa (paras 14 and 15). The reasons record an interjection from Mr Singh complaining 'that was back in 2010'. The Tribunal corrected him by pointing out that it was from 2008 to 2010.

10    The Tribunal also referred to a statement by Mr Singh that he had signed a blank visa application which was completed by a migration agent. As to that claim, the Tribunal expressed the view that it was 'quite incredible' (para 16).

11    The Tribunal briefly recounted the courses of study undertaken. It observed that Mr Singh had come to be qualified as a graphic designer. It then noted that he had been in Australia for nine years and now wished to stay longer (paras 17 to 19).

12    Then, as to the graduate visa, the Tribunal said (paras 20 to 22):

You were granted a 485 visa which are granted to enable students to get work experience in the field in which they have completed studies.

You finished your previous studies in February 2010. You were not granted the 485 visa until October 2011. You did no study while waiting for the 485 visa but worked at McDonald's. Having been granted the 485 visa you did not work in your area of study but worked as a taxi driver.

You did not do any study while on the 485 visa but when that visa was about to expire and you decided to apply for another student visa, you therefore enrolled in a Diploma of Business and a Diploma of Management. The tribunal finds that your motivation for gaining those enrolments was for the purpose of obtaining a visa rather than a desire to study.

13    The Tribunal concluded from these findings (paras 23 and 24):

Student visas are granted with the expectation the visa holder will remain enrolled and studying. You have significant study gaps and the Tribunal does not accept your explanation as reasonable and does not believe your behaviour is that of a genuine student.

You say your ultimate goal is to run your own business, a cafe, a hotel a restaurant despite the fact you have no experience in that industry. You say your brother studied hospitality so perhaps you could go into business with him.

14    The Tribunal noted that Mr Singh lives in Australia with his de facto partner and her children. His younger brother lives with them. His de facto partner provided a statement to the Tribunal saying that once Mr Singh had divorced his wife in India they will get married, buy a house and have a baby. Mr Singh said he had $50,000 he had saved and would like to buy a house in Adelaide (paras 28 to 30).

15    On the basis of this evidence the Tribunal concluded that the visa was being sought for the purpose of maintaining ongoing residence in Australia (para 31).

Appeal grounds

16    A number of the appeal grounds are expressed as errors by the Tribunal rather than errors by the primary judge. In some respects this reflects the fact that some of the grounds seek to raise matters not addressed by the primary judge. There is no explanation as to why those matters were not raised in the Federal Circuit Court. No prejudice has been identified beyond that associated with all cases where matters are raised for the first time on appeal. The present application does not raise claims to protection. However, refusal of the appeal may have the consequence that Mr Singh will have to leave Australia and will not be able to pursue any further study (assuming that he can demonstrate that is genuinely his reason for seeking the visa). To the extent that the grounds do not raise new evidentiary issues, I would grant leave if merit was demonstrated. To the extent that evidentiary matters are raised then I deal with them below.

Ground 1: Alleged failure to conform to a policy expressed in PAM3

17    The first appeal ground is expressed in general terms. It claims a failure by the Tribunal to conform to a policy known as PAM3. It identifies no particular aspect of the policy and no particular respect in which there was a failure to conform to the policy. It fails to indicate why a failure to conform to the policy would be jurisdictional error. The ground was not pursued below and is without merit. Leave to advance the ground is refused.

Ground 2: Alleged error in placing too much weight on family living in Australia

18    The second appeal ground complains that the Tribunal placed too much weight on the fact that Mr Singh had family living in Australia. The evidence as to those matters was logically relevant to the Tribunal's decision and were matters to which the Tribunal was required to have regard by the Direction. The weight to be given to the evidence was a matter within the jurisdiction of the Tribunal. The ground is without merit. Leave to advance the ground is refused.

Ground 3: Alleged error in relying on breach of conditions of earlier visa

19    Ground three concerns the Tribunal's finding that Mr Singh failed to comply with the requirements of his first visa by not undertaking study at the level required by the visa. Two aspects are raised by the ground. First it is said that the Tribunal did not explain the requirement and what the consequence of its breach entailed. This is an allegation of procedural unfairness.

20    In the grounds before the primary judge there was a complaint of an alleged failure to comply with s 359AA of the Migration Act. Section 359AA provides that the Tribunal may give orally clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The section then further provides the steps to be taken to ensure that the applicant for review understands the relevance of the information and has an opportunity to respond, if the power is exercised. However, the ground before the primary judge was expressed in generic terms. It alleged a failure by the Tribunal to provide 'any of the provisions, evidence, regulations, and facts which were taken into consideration while affirming the decision of the delegate'. There was no reference to any particular information (such as the failure to comply with the original visa) that had been raised orally and in respect of which there was an alleged failure to comply with s 359AA.

21    The primary judge dealt with the ground in the generic way in which it had been advanced concluding that there was no information that caused the procedural fairness requirements to be engaged: Singh v Minister for Home Affairs [2019] FCCA 1675 at [28]-[29].

22    The difficulty with the manner in which the ground is reformulated on appeal is that it now raises a complaint about the reasoning concerning the alleged failure to comply with the requirements for the first visa. This is to raise a new ground. The nature of the breach is not evident from the Tribunal's reasons. It is not evident from the materials that were before the primary judge as to the basis for the Tribunal's conclusion or the manner in which it was raised with Mr Singh.

23    Mr Singh appeared in person. The Court has a duty to explain the procedural requirements to a litigant in person so as to ensure that the litigant has sufficient information about the practice and procedure of the court to ensure a fair hearing: Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[311], quoted with approval in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]; and Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 at [103]. See also SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15 at [36]-[38].

24    In those circumstances, I indicated to Mr Singh in the course of the hearing that he might apply for an adjournment for the purpose of seeking to present the evidence that might support this ground. However, I indicated that he would need to show that the adjournment would serve some purpose in the sense that there was an expectation that a ground of review might be raised which could support the relief sought in the appeal.

25    Mr Singh explained that he accepted that he had not complied with the earlier visa because he had not undertaken a course of study at the required degree level. He also accepted that that the issue of compliance with the requirement had been raised with him by the Tribunal at the 'interview' which I took to be a reference to the oral hearing. In those circumstances, I indicated to Mr Singh that I formed the view that no purpose would be served by an adjournment to put on further evidence. I did so for the following reasons.

26    It is not suggested that the Tribunal was wrong in the conclusion it reached that Mr Singh breached his earlier visa. Nor does Mr Singh identify any matter that would provide an explanation for the breach. He accepts that the matter was raised orally with him in the course of the hearing. In those circumstances, there is no suggestion that further evidence might support a claim to procedural unfairness. Further, even assuming there had been a breach of procedural fairness there is no possibility of jurisdictional error because there was no submission to be made as to the matter of earlier compliance.

27    In addition, the ultimate conclusion by the Tribunal was to the effect that Mr Singh did not intend to stay in Australia temporarily. I accept the submission by counsel for the Minister that the Tribunal's conclusion depended upon Mr Singh's reason for applying for the visa rather than a view as to whether he would undertake a different form of study to that required by any visa (being the nature of the non-compliance noted by the Tribunal). In all those circumstances, it has not been demonstrated that providing an opportunity for further evidence would assist in advancing an arguable basis for a claim that any denial of procedural fairness would rise to practical injustice. Even if Mr Singh had been deprived of an opportunity to respond concerning the matter whether he undertook studies at the required level when in Australia on an earlier student visa then that opportunity could not realistically have resulted in a different decision: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [38], [45] (Bell, Gageler and Keane JJ).

28    The second part to ground 3 is a complaint that any breach of the law had been 'condoned' by operation of law when subsequent visa applications were granted without any complaint being raised as to earlier non-compliance. There is no such principle that would apply to prevent the Tribunal from considering past non-compliance in dealing with the present application. The primary judge was correct to dismiss that aspect of the ground.

29    Therefore, leave to raise the first part of ground 3 should be refused and the ground should otherwise not be upheld.

Ground 4: Failure to explain s 359AA

30    Ground 4 complains of a failure to comply with s 359AA. Again this is an allegation that was put in a generic way to the primary judge and, having been put on that basis, was properly dismissed: at [30].

Ground 5: Alleged irrelevance of matters concerning earlier visa

31    Ground 5 alleges, in effect, that the Tribunal was in error in relying upon a period when Mr Singh had not studied when he was not under any obligation to study. This complaint misconstrues the Tribunal's reasoning. The finding was to the effect that there was both no study and the work undertaken was not in a field related to gaining experience in the area of previous study. Given the nature of a graduate visa, it is clear that these findings were logically made and relevant to the Tribunal's decision. Further, the Direction itself says that the decision maker must have regard to the applicant's immigration history and any other relevant information. It is not the case that the Tribunal could not consider a failure to comply with the conditions of an earlier visa.

32    The ground also complains of a failure by the Tribunal to consider whether the knowledge to be gained from the courses might assist Mr Singh in the future and enhance his knowledge and skills after his return to India. However, the unchallenged and properly founded findings of the Tribunal were to the effect that the appellant planned to stay in Australia and buy a house with his de facto partner. In any event, for reasons that I gave in Jan v Minister for Home Affairs [2019] FCA 1837 at [21]-[28], jurisdictional error is not demonstrated merely by identifying a particular matter listed in the Direction as a matter to which the Tribunal 'must have regard' to which the Tribunal did not refer in its reasons. The part of the ground that simply alleges a failure to consider a particular matter identified in the Direction does not disclose an arguable ground of review.

33    None of the aspects of this ground were raised before the primary judge. For reasons I have given they are without merit and I refuse leave to raise the ground.

Ground 6: Allegations concerning withdrawn partner visa application

34    The Tribunal referred in its reasons to a withdrawn partner visa application by Mr Singh based upon his de facto relationship in Australia, in which he did not declare that he was already married. In circumstances where one of the issues for the Tribunal to determine was whether Mr Singh genuinely sought the visa in order to be in Australia temporarily, the partner visa application was properly a matter for the Tribunal to consider and the weight to be given that matter was a matter for the Tribunal.

35    The ground was not raised before the primary judge. It is without merit and I refuse leave to raise the ground.

Ground 7: Alleged fraud by migration agent

36    Ground 7 alleges that there was a failure by the Tribunal to consider submissions that the migration agent had 'played a fraud' with Mr Singh by getting him to sign a blank visa application. The primary judge correctly found that the Tribunal considered this matter and rejected it as baseless and therefore the ground had no substance: at [34]. No error has been demonstrated in this reasoning and this ground should not be upheld.

Ground 8: Alleged failure to give weight to his completed courses

37    The error alleged by ground 8 is that the primary judge did not give any weight to the fact that all the courses enrolled in by Mr Singh were studied and completed. This was not a matter that was raised by any ground of review before the primary judge so there could be no error in failing to consider that matter. If the ground is a complaint that the Tribunal did not give weight to this matter then it is without merit. The Tribunal took into account Mr Singh's completed courses. It is to be noted that the evidence showed that Mr Singh had not completed all the courses in which he had enrolled. However, that was not an aspect considered by the Tribunal.

38    Therefore, ground 8 should not be upheld.

Conclusion

39    For reasons I have given, the grounds of appeal should be dismissed. After hearing the parties as to costs, I made orders for costs to be fixed in the amount of $5,000 inclusive of any GST.

Associate:

Dated:    14 November 2019