Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1874

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1874 Appeal from: Singh v Minister for Immigration & Anor [2019] FCCA 1288

File number: WAD 322 of 2019

Judge: KERR J

Date of judgment: 13 November 2019

Legislation: Migration Regulations 1994 (Cth) sched 2 cl 572.223

Date of hearing: 7 November 2019

Date of last submissions: 29 October 2019

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 16

Counsel for the Appellant: The Appellant appeared in person

Counsel for the First Respondent: Ms Ladhams

Solicitor for the First Respondent: Australian Government Solicitor

ORDERS WAD 322 of 2019 BETWEEN: HARDEEP SINGH Appellant

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: KERR J DATE OF ORDER: 7 November 2019

THE COURT ORDERS THAT: 1. The appeal be dismissed.

THE COURT ORDERS BY CONSENT THAT: 1. The Appellant pay the First Respondent's costs of the appeal fixed in the amount of $2,400.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

KERR J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA) delivered on 15 May 2019. In that proceeding, the FCCA dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) which had affirmed a decision made by a delegate of the Minister for Immigration and Border Protection (Minister) as the Minister was then referred to not to grant Mr Singh, the Appellant, a student temporary class TU, subclass 572 visa (Student Visa). 2 The duty of the FCCA in conducting its review was to ascertain on the grounds that had been advanced before it whether there had been any legal error in the decision of the Tribunal. It was not open to the primary judge to determine the matter afresh on the merits. His Honour's responsibility was limited to determining whether or not the Tribunal's decision was infected by a relevant error of law or mistake of fact amounting to jurisdictional error. The grounds that were advanced before FCCA are as follows: 1. My circumstances should be considered. 2. Not satisfied with the decision of the Immigration and Tribunal departments. 3. I am a genuine student and studying responsibly (G.T.E). 4. I am a genuine temporary entrant to study in Australia. 3 The Appellant's application for judicial review was dismissed on the basis that the grounds identified involved no error of law. 4 Given that Mr Singh is unrepresented and was unrepresented in the proceedings below, I have been scrupulous to examine the proceedings before the Tribunal to ascertain whether or not, despite the want of any specification in the grounds he earlier advanced before the FCCA, there might be an identifiable legal error that the judge below ought to have identified. I have come to the same conclusion as the FCCA: namely that no relevant legal error can be discerned in the reasoning of the Tribunal. 5 The merits of the Tribunal's decision were for it alone. They were not for the FCCA, nor are they for this Court on appeal. It is not in dispute that the major issue before the Tribunal was whether the then Applicant met the relevant criterion which governed the grant of student visas at the relevant time, set out in then cl 572.223(1)(a) of the Migration Regulations 1994 (Cth) (the "time of decision criterion"): (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 6 A critical aspect of that provision is that it is a criterion for a Student Visa that the Minister be satisfied that the applicant intends genuinely to stay in Australia temporarily. The Tribunal at [15]-[25] gave careful attention to whether or not it was satisfied that the Applicant had such an intention. It noted that in the seven years since the Appellant arrived in Australia in 2009 he had completed only one course: a Diploma of Business. 7 The Tribunal discussed the reasons the Appellant had advanced for his having been "prevented", to use his language, from successfully pursuing further studies. It identified that he had asserted that was because of prolonged grief due to the death of his grandfather in December 2010, which had extended until 2013. It also identified that he had asserted that he had followed poor advice that he should not study in the course of the Tribunal review process, notwithstanding that he had a right to do so. The Tribunal did not find those explanations convincing. It reasoned, at [19], that the Appellant had had seven years to acquire skills, knowledge and qualifications. It pointed out that the Appellant had had more than sufficient time to demonstrate by his conduct that he had intended to acquire skills, knowledge and qualifications during a temporary stay. 8 The Tribunal ultimately concluded - for the reasons that it comprehensively set out - that it was not satisfied that the Appellant intended genuinely to stay in Australia temporarily. By that, I understand that it concluded that the Appellant's evidence, including the reasons for his more recent enrolment, was not genuine and had been designed simply to prolong his opportunity to remain resident in Australia. For that reason, the Tribunal found that the Appellant had not met an essential requirement of cl 572.223. 9 The Appellant exercised his right to seek review of that decision in the FCCA. The grounds he advanced in that court have been set out above. 10 The primary judge, in my view, was correct to have concluded that none of those grounds identified anything that could be described as legal error, let alone legal error amounting to jurisdictional error. His Honour observed that the Tribunal's reasons illustrated that it had adequately considered the then applicant's circumstances. 11 In this Court, the only ground of appeal advanced is stated as: Genuine temporary entrant (GTE) circumstances should be considered. 12 Insofar as I apprehend the Appellant's case as contended for in this Court, it is the same as that which was advanced in the court below. That is, the Court should grant him a dispensation based on its own assessment that consideration should be extended to him by the Court that was not extended to him by the Tribunal. However, neither the FCCA nor this Court can undertake merits review. The Court's task is limited to determining whether or not a reviewable legal error has been established. 13 The ground of appeal advanced in this Court identifies no asserted legal error. Rather, as the Appellant's oral submissions confirmed, it is a plea for the Court to exercise merits review. However, in the absence of jurisdictional error having been established that plea must be rejected and the Appellant's appeal must be dismissed. 14 Having regard to that conclusion, I turn to the question of costs. The First Respondent seeks a lump sum costs order in the amount of $2,400.00. Ms Ladhams, who appeared for the First Respondent, read an affidavit of Sarah Anicic, a lawyer within the Australian Government Solicitor (AGS), in support of that application. Ms Anicic deposes that she has checked the amount that the First Respondent seeks by way of a lump sum against that which might be allowed under item 15 of sched 3 of the Federal Court Rules 2011 (Cth) for a short form bill of costs. That amount is $7,241.00. 15 Ms Anicic provides a costs summary, prepared on the basis of AGS billing records. She includes in her affidavit her estimate that the total costs and disbursements incurred by the First Respondent in relation to this matter will amount of the approximately $3,206.50. She deposes that that estimate does not include a further attendance at judgment, consideration of reasons, entry of orders, reporting to the client or the service of sealed orders on the Appellant. She then indicates that the amount of $2,400.00 sought represents the First Respondent's party/party costs. 16 In my opinion, this is an appropriate case for the making of a lump sum order for costs. Having ascertained from the Appellant that he consents to the making of a lump sum order in the terms proposed, I will order that costs be fixed in the sum of $2,400.00. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.