FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2019] FCA 428 Appeal from: Singh v Minister for Immigration & Anor [2017] FCCA 3406 File number: VID 1227 of 2017 Judge: BROMBERG J Date of judgment: 25 March 2019 Catchwords: MIGRATION – judicial review of decision of the Federal Circuit Court of Australia – Student (Temporary) (Class TU) visa – whether error of fact critical to the decision and constitutes jurisdictional error – appeal dismissed Legislation: Migration Regulations 1994 (Cth) Sch 2, cl 570.223 Migration Act 1958 (Cth) s 499 Cases cited: Singh v Minister for Immigration & Anor [2017] FCCA 3406 Date of hearing: 25 March 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Appellant: The Appellant appeared in person assisted by an interpreter Counsel for the First Respondent: Mr C Tran Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 1227 of 2017 BETWEEN: AVTAR SINGH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 25 MARCH 2019 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMBERG J: 1 This is an appeal from the judgment of the Federal Circuit Court of Australia in Singh v Minister for Immigration & Anor [2017] FCCA 3406. By that judgment the primary judge dismissed the appellant's application for judicial review of a decision of the Administrative Appeal Tribunal ("Tribunal") made on 17 September 2015. By its decision, the Tribunal determined to affirm the decision of a delegate of the first respondent ("Minister") not to grant the appellant a Student (Temporary) (Class TU) visa ("visa"). 2 The delegate had refused to grant the visa because the delegate had come to the view that the appellant did not satisfy the requirements of cl 570.223 of Sch 2 of the Migration Regulations 1994 (Cth). As the Tribunal recognised at [12] of its reasons, the issue before it was whether or not the appellant met the "time of decision" criterion set out in cl 570.223. 3 The terms of cl 570.223(1)(a) are relevantly as follows: (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because: (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: (i) the applicant's circumstances; and (ii) the applicant's immigration history; and (iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and (iv) any other relevant matter; and … 4 The Tribunal recognised at [13] of its reasons that in considering whether the appellant satisfied criterion in cl 570.223, the Tribunal had to have regard to Direction No 53, a direction made under s 499 of the Migration Act 1958 (Cth). 5 The Tribunal affirmed the decision of the delegate of the Minister not to grant the appellant the visa. The Tribunal's reasoning in support of that determination is, for relevant purposes, sufficiently set out at [30] and [31] of its reasons: [30] The Tribunal has concerns about the fact that the applicant has resided in Australia for almost 6 years before enrolling in any course in his own right, despite there being no apparent barrier to him studying English in that period (albeit possible a shorter course than the ones he is presently enrolled in), should he genuinely have wished to do so. The Tribunal acknowledges that the applicant indicated that he did not know whether he had permission to do so while a dependent on his wife's subclass 572 visa and said that he did not think that he did. The Tribunal also notes his evidence that his wife was the educated one and took care of all visa-related paperwork. Nevertheless, it considers that his lack of knowledge on this point to be inconsistent with his assertion that he genuinely wanted to study here. The Tribunal also has concerns about the applicant's inability to provide any details of the course(s) he is enrolled to study, or to coherently explain why he could not pursue an English course in India, or how learning English would assist him on his return to India. The Tribunal found his evidence that completing an English course in Australia would assist him in the family business (in which he drove trucks) in India, or in any business he set up with his wife in India (given she is fluent in English), to be vague and general in nature. The Tribunal did not find the applicant's explanation of the benefits of the courses in which he is enrolled for his career prospects in India to be plausible or persuasive. [31] On the basis of the above, and having considered the applicant's circumstances, immigration history, and other matters it considers it relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.570.223(1)(a). 6 Having failed before the Tribunal, the appellant then applied to the Federal Circuit Court for judicial review. As I have said, that application was dismissed by the primary judge. Insofar as I need to deal with the reasons of the primary judge, I shall do so in considering the appellant's grounds of appeal. 7 In his Notice of Appeal in this Court, the appellant raises seven grounds of appeal. The appellant appeared before me unrepresented but assisted by an interpreter. The appellant did not file any written submissions in support of his grounds of appeal and his oral submissions did not advance those grounds. Ground 1 8 Ground 1 of the grounds of appeal is in the following terms (errors in original): The Federal Circuit Court did not consider the fact that the reason I could not study because of was my visa condition of "no study". This was despite the fact that I had enrolled in my course and paid the course fees and was asking for a student visa so that I could study. I wanted to study but could not study because of my visa condition. Hence refusing my application because I did not study was wrong. I was asking for a student visa so that I could study. 9 Whether or not the appellant was unable to commence study without having a student visa was not a matter expressly considered by the primary judge. It need not have been. The appellant's grounds of view had not made that circumstance relevant. That circumstance was potentially relevant to the Tribunal's task, and was considered by the Tribunal. It was taken into account at [30] of the Tribunal's reasons where the appellant's understanding that he was not entitled to study was referred to and evaluated. Ground 1 raises no appealable error and must be dismissed. Ground 2 10 The appellant's second ground is in the following terms: The Court asked me to provide proof. I had provided proof of my enrolment in course. It was not explained to me what other proof Court wanted. 11 This ground must also be dismissed. The appellant did not take me to any material to substantiate the assertion that the primary judge had asked him to provide any proof, nor is it apparent to me how any failure to provide proof is suggested to have resulted in either an error by the primary judge or jurisdictional error by the Tribunal. Ground 3 12 The appellant's third ground is in the following terms: The Court did not consider the compelling reasons and future plans given in my written submissions showing my genuine intention to study. 13 Although the ground points to an asserted failure by the primary judge, it may be that the appellant intends to assert that there had been a failure by the Tribunal to have considered his reasons and future plans set out in his submissions to the Tribunal going to the question of his genuine intention to study. If the ground is truly directed at the failure by the primary judge, it is misconceived. It is not the primary judge's role to consider those matters, those being matters that go to the merits of the application. If alternatively, as I have indicated, the ground is directed to an allegation that the Tribunal failed to give consideration to those matters, the allegation is not made out. The Tribunal's reasons demonstrate that the Tribunal took into account the reasons put by the appellant including as to his future plans. Accordingly, Ground 3 must be dismissed. Ground 4 14 The appellant's fourth ground of appeal is in the following terms: The Court disregarded the error by the Tribunal in the timeline and it did not consider that that error could have played and in fact did play a part in the Tribunal arriving at its decision. In this regard the Court was wrong in accepting respondent's submission that the exact time period was not of critical importance to the Tribunal's findings. The Court had no basis to accept this submission. 15 The error of the Tribunal to which this ground refers appears to be that, as for instance exemplified in the reasons of the Tribunal at [30], the Tribunal misconceived the number of years that the appellant had been in Australia before enrolling in any course of study. The Tribunal proceeded on the basis that the appellant had been in Australia for 6 years before commencing study, when in fact the appellant had only been in Australia for 4.5 years. 16 The primary judge recognised that the Tribunal had erred in this respect. The primary judge held that this was an error of fact within jurisdiction and did not constitute jurisdictional error. Relevantly, at [20]-[22] the primary judge said this: [20] With respect to the ground identified at the reinstatement hearing, it is clear that the Tribunal made a mistake of fact in saying that the applicant had been here six years before enrolling rather than four and a half years. This error of fact did not go to whether or not the Tribunal had jurisdiction to decide the case. Rather, it was one of the many facts and circumstances the Tribunal had to consider in making its ultimate decision. As a result, I am not persuaded that this is a jurisdictional fact. [21] I am mindful that it is important that the Tribunal have regard to the evidence before it. I take into account that the Tribunal must have regard to and consider the evidence before it: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 and similar cases. [22] In this case the error of fact is objectively a minor one. On any version, a number of years passed between when the applicant first came to Australia and when he decided he wished to learn English. It is clear that this was a mistake by the Tribunal rather than a failure to consider the evidence generally. It is also clear that it relates to only a very small aspect of the overall considerations of the Tribunal. The Tribunal refers to other significant matters that go to whether or not the applicant is a genuine student. For example, the applicant appeared to lack knowledge of his enrolment. The applicant appeared to be unable to coherently explain why he could not pursue an English course in India nor how learning English would assist him when returning to India. The applicant was vague and very general in his answers trying to explain why English would assist him in his business in India. The Tribunal found that his explanations of the benefits of his proposed courses to him in India were implausible. 17 I do not consider that the primary judge erred in the conclusion reached. As the Minister submitted, it might be the case that an error of fact critical to the decision may constitute jurisdictional error. However, in this case, the error of fact was not critical to the decision. The Tribunal's decision was in part, and only in part, based on the appellant's prior opportunities to enrol in a course of study. The Tribunal reasoned that the appellant had had sufficient prior opportunity to have commenced his studies. The Tribunal's error as to the precise amount of time involved was not in my view critical to the view that the Tribunal took. Additionally, as the Minister submitted, there were various other reasons for the Tribunal holding that the appellant was not a genuine applicant. For those reasons Ground 4 must be dismissed. Ground 5 18 The appellant's fifth ground is in the following terms: The Court disregarded the fact that my lack of reasonable English language was or could have been the reason as to why I was not able to explain my course enrolment details to the Tribunal. I had provided paperwork to show those enrolments 19 If the ground is directed at a failure by the primary judge, the circumstance raised by the ground was not a matter for the primary judge on judicial review. If on the other hand, the ground is directed at the failure of the Tribunal, it is not apparent to me and has not been substantiated by anything put by the appellant, that it was ever suggested to the Tribunal that the appellant's lack of English was a basis which explained his inability to properly communicate the details of the course in which he had enrolled. This ground must also be dismissed. Ground 6 20 The appellant's sixth ground is as follows: The Court did not take into account that I had not come to Australia as a student. I had in fact come to Australia with my wife who had come as a student. It was only some time later that I decided to study English and thus enrolled in English course and applied for student visa. The Tribunal and Court were wrong in being critical that I had not decided to study before. I did not have to. This does not mean that I did not genuinely want to study. It was wrong not to grant me visa for that reason. 21 I assume that this ground is directed at what is said to be the failure of the Tribunal to have identified that the appellant had not come to Australia as a student and that the Tribunal had erred in being critical of the appellant for not having sought to study at an earlier time, in the Tribunal coming to its decision that the appellant was not a genuine applicant. 22 It is clear from the Tribunal's decision, in particular at [16] that the Tribunal was aware that the appellant had not come to Australia as a student. It was for the Tribunal to evaluate the significance of that fact to the issue of whether the appellant was a genuine applicant and also the significance of the extent of time which elapsed before the appellant chose to take up study in Australia. These were matters for the Tribunal to take into account on a merits assessment of the appellant's application. The Tribunal made no jurisdictional error in doing so. Ground 6 of the notice of appeal must also be dismissed. Ground 7 23 By Ground 7 the appellant stated that he may provide further grounds of appeal once he had received the reasons for judgment of the Federal Circuit Court. No such further grounds have been provided or suggested by the appellant. 24 There is one further matter which I should address given that it has been raised by the written submissions of the Minister. On the basis that Direction No 53 may contain relevant mandatory considerations required to have been considered by the Tribunal, the Minister submitted that each of the considerations of relevance set out in Direction No 53 were in fact taken into account by the Tribunal. For the reasons given in the Minister's written submission, I am satisfied that insofar as the considerations set out in Direction No 53 are mandatory considerations, and insofar as those considerations were relevant, those considerations were taken into account by the Tribunal. 25 For those reasons the appeal must be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 27 March 2019