Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-05-06|Before: Derrington J

The application for leave to appeal be dismissed.
The applicant pay the first respondent's costs fixed in the sum of $3,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This application by Mr Singh is for leave to appeal from the orders and judgment of a judge of the Federal Circuit Court made on 3 November 2020. By that decision, the Federal Circuit Court judge dismissed Mr Singh's application for judicial review of a decision of the second respondent, the Administration Appeals Tribunal (the Tribunal) dated 11 March 2020, in which it affirmed a decision of a delegate of the Minister to refuse the grant of a Student (Temporary) (Class TU) (Subclass 500) visa (the visa). 2 The dismissal of Mr Singh's application before the Federal Circuit Court was consequent upon the Minister's application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) calling on Mr Singh to demonstrate that his application raised an arguable case for the relief claimed. That application was interlocutory in nature as was the primary judge's decision. Consequently, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), Mr Singh requires leave to appeal.

Background 3 Mr Singh is a 38 year old citizen of India who arrived in Australia as the holder of a Student (Class TU) (Subclass 572) visa on 3 July 2008. He was subsequently granted a further student visa before being granted a Temporary Work (Skilled) (Class UC) (Subclass 457) visa on 22 December 2014. 4 On 20 December 2018, two days prior to the expiry of the temporary work visa, he applied for a further student visa which is the subject of these proceedings. As part of his application, he provided two confirmations of enrolment. The first was in respect of a course for a Diploma of Hospitality Management due to commence on 18 March 2019 and to conclude on 19 June 2020. The second was in respect of an Advanced Diploma of Hospitality Management due to commence on 13 July 2020 and to conclude on 30 April 2021. 5 On 20 February 2019, the Minister's delegate refused to grant Mr Singh the visa on the basis that he did not meet cl 500.212 of the Migration Regulations 1994 (Cth) (Migration Regulations). In substance, the delegate was not satisfied that he intended genuinely to stay temporarily in Australia. The delegate concluded that Mr Singh's application for a further student visa was not for the genuine purpose of undertaking further study. 6 On 3 March 2019, Mr Singh applied to the Tribunal for a review of the delegate's decision. 7 On 6 November 2019, the Tribunal invited Mr Singh to provide information in relation to his application. In particular, he was requested to provide information demonstrating that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. 8 In response Mr Singh completed an online form entitled, "Request for Student Visa Information". In it he confirmed that he consented to the Tribunal deciding the review without a hearing and that he did not have a current confirmation of enrolment in a registered course of study.

The Tribunal's decision 9 On 13 March 2020, the Tribunal affirmed the delegate's decision not to grant the visa to Mr Singh. 10 The Tribunal noted that a consequence of Mr Singh consenting to the matter being determined by it without a hearing, was that it had no power to permit him to appear: Hasram v Minister for Immigration and Citizenship (2010) 183 FCR 413. 11 In consideration of the substance of Mr Singh's application the Tribunal noted that the Migration Regulations identified that one of the primary criteria for the student visa was the satisfaction of reg 500.211. In the circumstances of this case, only sub-reg (a) applied. It required that at the time of the making of the decision the applicant is enrolled in a relevant course of study. The Tribunal noted that Mr Singh did not claim to meet any of the other requirements. 12 It further observed that producing evidence of a current enrolment was a critical first step towards obtaining a student visa and that it was therefore critical that Mr Singh be currently enrolled in a registered course of study. Here the evidence was that he was not so enrolled. 13 As a result, the Tribunal could not be satisfied that he met the criteria of reg 500.211 with the necessary consequence being that it had no choice but to affirm the decision under review.

Application to the Federal Circuit Court 14 As mentioned, the applicant sought judicial review of the Tribunal's decision by the Federal Circuit Court on 13 March 2020. Subsequently, the Minister made an application under the Federal Circuit Court Rules requiring Mr Singh to show cause by demonstrating that his application raised an arguable case. 15 The learned primary judge first set out the background facts and history of the review proceedings. His Honour noted that the first ground of Mr Singh's application was that the Tribunal erred by failing to receive evidence from him and that the third ground was that it did not issue any written invitation prior to making the decision. His Honour considered the evidence before him and, in particular, Mr Singh's written consent that the Tribunal decide the review without a hearing. He then noted that by ss 360(3) and 363A of the Migration Act 1958 (Cth) (Migration Act) the Tribunal was prohibited from inviting Mr Singh to attend a hearing once he had given his consent to a review without a hearing. The Tribunal was obliged to proceed to determine the review without the applicant appearing before it. 16 The learned primary judge concluded that there were no merits in the first and third grounds of the application. 17 The remaining ground of review appeared to concern the Tribunal's conclusion that Mr Singh was not relevantly enrolled in any course of study. The primary judge set out the evidence in which Mr Singh, in writing, identified that he did not have a current confirmation of enrolment in a registered course of study. His Honour found that, based on that response, the Tribunal could not have been satisfied that Mr Singh was in fact enrolled in a qualifying course. Accordingly, the Tribunal was only capable of finding that reg 500.211(a) was not satisfied. 18 In the result, the learned primary judge concluded that the application did not raise an arguable case for the relief claimed and that it ought to be dismissed pursuant to r 44.12 of the Federal Circuit Court Rules.

Application to this Court 19 On 16 November 2020, Mr Singh filed an application for leave to appeal from the decision of the Federal Circuit Court. 20 The grounds of the application were articulated as follows: 1. The Hon Judge failed to consider that The Tribunal decision was effected by jurisdictional error in that the Tribunal failed to correctly apply the law. 2. The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT. 21 An affidavit was filed with the application but, unfortunately, did not annex any proposed Notice of Appeal as required by r 35.12(2)(d) of the Federal Court Rules 2011 (Cth). 22 By orders made on 18 November 2020 by a Registrar of this Court, Mr Singh was directed to file and serve a draft Notice of Appeal setting out particularised grounds within 10 business days of the date of the directions. No draft Notice of Appeal was filed. 23 Orders were also made for the filing and serving of a written outline of submissions. Mr Singh did not comply with this order.

Whether leave to appeal should be granted 24 It is undoubted that Mr Singh bears the onus of persuading the Court that leave to appeal should be granted: GPV18 v Minister for Home Affairs [2020] FCA 393 [32]. It is also well established that the exercise of the Court's discretion usually turns upon, firstly, whether substantial injustice would result if leave were refused, assuming the decision at first instance was wrong; and, second, whether the decision is attended with sufficient doubt to justify its reconsideration on appeal: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398 - 399; Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139. 25 In the circumstances of the present case there is nothing on which this Court should conclude that the decision of the Federal Circuit Court is attended with sufficient doubt to justify its reconsideration. The reasons are: (a) The proposed grounds of appeal are not capable of any substantive meaning. They are articulated in broad and general terms and devoid of any particulars which might identify some substantive error. (b) Neither of the proposed grounds concern issues which were advanced to the Federal Circuit Court. No basis is shown as to why any new grounds ought to be permitted to be raised on appeal. (c) The decision of the primary judge was palpably correct. On the basis of Mr Singh's own evidence that he was not currently enrolled in a registered course of study, the Tribunal could not have been satisfied that he met the primary criteria in reg 500.211 with the consequence that it had no option but to affirm the decision under review. The Federal Circuit Court could not have held other than that the Tribunal's decision was correct. (d) Specifically, in relation to ground 2 of the application for leave, it is pellucid that the primary judge considered the grounds of review raised before him as well as the evidence surrounding those issues. There is no merit in the second ground. (e) Although Mr Singh appeared at the hearing of this application for leave to appeal, he was unable to identify any error in the decision of the Federal Circuit Court. He did, however, confirm that although he had attempted to enrol in some courses of study for the purposes of his visa application, he was unable to do so. 26 Mr Singh was also unable to identify any basis on which he would suffer substantial injustice if leave were refused. None is apparent. 27 In the result, Mr Singh's application for leave to appeal must be refused.

Costs 28 The Minister has sought costs of the application in the sum of $3,000. That is less than the amount that can be claimed in a short form bill for an application involving a migration decision that is dismissed after hearing, being the sum of $7,241. In the circumstances, the sum of $3,000 is reasonable and proportionate to the nature of the case including its complexity: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 [18]. 29 It is appropriate to fix costs in the present case given the circumstances and that the costs of any process by which they would be taxed would be likely to exceed the amount claimed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.

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