Singh v Minister for Immigration, Migrant Services and Multicultural Affairs

1. The appeal is dismissed.
2. The appellant pay the first respondent's costs fixed in the sum of $5,200. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The appellant is a citizen of India who appeals orders of the Federal Circuit Court of Australia (as it was then known) made 15 October 2020 which dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister to refuse the appellant's application for a Student (subclass 500) visa. The decision of the primary judge is published: Singh v Minister for Immigration [2020] FCCA 2799 (J). 2 Under s 65(1)(b) of the Migration Act 1958 (Cth) the Minister must refuse to grant a visa if, inter alia, the Minister is not satisfied that criteria prescribed by the Act or the regulations have been satisfied. In this case, the criteria that had to be satisfied included that the appellant was a genuine applicant for entry and stay as a student by reason of the particular criteria that are set out in cl 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth), the text of which is as follows - The applicant is a genuine applicant for entry and stay as a student because: (a) 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 (b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to: (i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and (ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and (c) of any other relevant matter. 3 The above criteria were considered by Allsop CJ in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros), in particular at [8]-[15]. 4 On 19 July 2017, a delegate of the Minister refused the appellant's application for the student visa. The application was refused on the ground that the delegate was not satisfied that the appellant satisfied the criterion in cl 500.212(a), namely that he intended genuinely to stay in Australia temporarily. By an application made on 2 August 2017, the appellant sought review of the delegate's decision by the Tribunal. 5 On 22 February 2019, the Tribunal wrote to the appellant and invited him to provide information in writing about the courses of study that he was undertaking and his stay in Australia as a student. On 21 March 2019, the appellant's migration agent provided supporting documents and submissions in response to the Tribunal's invitation. A hearing took place before the Tribunal on 1 May 2019, which the appellant attended. 6 On 27 November 2019, the Tribunal affirmed the decision not to grant the appellant the student visa, finding that it was not satisfied that the appellant intended genuinely to stay in Australia temporarily. The primary judge summarised the Tribunal's reasons for not being so satisfied at J[10]-[20]. At the heart of the Tribunal's reasons were findings that the appellant's testimony was vague and unconvincing, and that it was not satisfied that the appellant was not simply proposing to study short and inexpensive courses with the intention to maintain ongoing residence in Australia. 7 The appellant then applied to the Federal Circuit Court for judicial review in the exercise of that Court's jurisdiction under s 476 of the Act. The appellant was not represented before the Court below, and he remains unrepresented on this appeal. 8 The appellant's application to the Federal Circuit Court was not particularised, claiming only that - The Tribunal decision is not according to law. [Jurisdictional error]. 9 The primary judge recorded the course that the proceeding and the hearings took at J[22]-[29]. In summary - (a) the appellant was given an opportunity to file an amended application, any supporting affidavit evidence and an outline of written submissions, but no further materials were filed; (b) the materials before the primary judge were thus limited to the judicial review application, a court book, and outlines of written submissions filed by the Minister; (c) when the matter first came before the primary judge for hearing on 21 August 2020, his Honour drew attention to the then recent decision of Allsop CJ in Eros, and adjourned the hearing so that the parties could present further written submissions; (d) the appellant did not file any submissions, but the Minister did, and the application was then heard on 12 October 2020; (e) at the hearing the primary judge gave the appellant an opportunity to elaborate on his sole ground of review; (f) the primary judge afforded guidance to the appellant by informing him that the Court could not review the merits of the Tribunal's decision, but could consider only jurisdictional error, and explained common instances of jurisdictional error; and (g) the appellant did not assist the primary judge in relation to whether the Tribunal's decision was affected by jurisdictional error. 10 The primary judge considered at J[31] that the appellant's sole ground of review was, in effect, meaningless. Nonetheless, the primary judge considered for himself whether there was reviewable error in the Tribunal's decision, citing MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; 238 FCR 158 (Mortimer J). In MZAIB Mortimer J considered at [59]-[77] and [100] the elements of ensuring a fair hearing for an unrepresented litigant. At [100], her Honour stated in relation to a judicial review application - All the judge can do is to make the process as fair as possible and then, in my opinion, do her or his best to be astute and alert to the possibility of legal error in the tribunal's decision when considering the material before her or him, and be prepared to raise any such possibilities with the Minister's legal representatives. 11 In COS16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 112 (COS16) at [20], McKerracher J gave the following guidance in relation to an unrepresented appellant, stating that it was preferable for the Court to review the reasons under consideration for any self-evident or obvious error - It is well-established that it is not the role of the Court to examine the reasons of the primary judge in detail in order to identify potential grounds of appeal: see, for example, BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J (at [10]). However, in the case of an unrepresented appellant, it is preferable for the Court to review the reasons under consideration and to determine whether there is any self-evident error as to the manner in which the Court or Tribunal has resolved the grounds of review previously advanced and which it would appear are sought to be re-agitated on appeal: see BGZ15 (at [11]). However, such an examination for an obvious error may fall well short of the Court parsing and analysing an administrative decision with a view to identifying a potential argument as to jurisdictional error. In the absence of self-evident error, there is no duty or function of the Court to articulate a question of law or to identify an error. 12 The analysis which the primary judge undertook was detailed, and comfortably satisfied the guidance in COS16. The primary judge addressed of his own volition: (1) whether the Tribunal accorded the appellant procedural fairness (J[33]-[34]); and (2) whether the relevant legal principles were correctly applied, including a consideration of the decision of Allsop CJ in Eros, which the primary judge distinguished (J[35]-[47]). His Honour held that no jurisdictional error had been demonstrated, and dismissed the application.