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Singh v Minister for Immigration & Anor [2016] FCCA 2264 (9 August 2016)

Last Updated: 1 September 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) The application filed on 18 February 2015 be dismissed.
(2) The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.
(3) The title of the proceeding be amended so that the name of the second respondent is Administrative Appeals Tribunal.

MLG306 of 2015

Applicant

And

First respondent

And

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Migration Review Tribunal. The applicant applied for a Student (Temporary) (Class TU) visa. A delegate of the Minister refused that visa. The Tribunal affirmed the delegate’s refusal.
2. The history of the matter is that the applicant is a citizen of India. He had a succession of student visas over a number of years, including a Higher Education Sector (subclass 573) visa. However, he did not complete a course at that level. He undertook a number of certificate-level courses and hospitality management courses.
3. At the time of the Tribunal’s decision, the applicant was not enrolled in any registered course. The Tribunal invited the applicant to attend a hearing and the applicant did so.
4. The applicant filed an application in this court on 18 February 2015, apparently without the benefit of legal assistance. The grounds of application are as follows:
   • I am not satisfied with the decision made by Department of Immigration and Border Protection and Migration Review Tribunal. I have attached my claim in a separate copy.
5. The reference to “a separate copy” appears to be to a document attached to the applicant’s affidavit dated 18 February 2015 and headed Grounds of Application. That document sets out some of the history of the matter. It does not point to any jurisdictional error on the part of the Tribunal. The applicant referred to the case officer. To the extent that might be a reference to a delegate of the Minister, the court is not permitted to review the delegate’s decision. The applicant said in his document dated 18 February 2015:
   • My concern is that why a student visa applicant gets a refusal even if they are studying continuously.
6. The document dated 18 February 2015 also said that the applicant had tried to complete his studies to his best potential and never breached any condition attached to his visa. He said he had always been a genuine student.
7. The decision of the Tribunal indicates that there were two bases on which the Tribunal affirmed the delegate’s decision. The first was that the applicant was not at the time of decision enrolled in an appropriate course. The Tribunal wrote to the applicant prior to the Tribunal hearing inviting the applicant to provide a copy of a current certificate of enrolment.
8. The applicant did not provide such a certificate prior to the hearing. The Tribunal’s decision record notes that, at the hearing, the applicant told the Tribunal that he was not currently enrolled. The Tribunal checked that concession against the PRISMS^[1] database. That database confirmed what the applicant had said. The Tribunal noted that the applicant had not provided any evidence of current enrolment and had not sought an adjournment to obtain evidence of current enrolment. In those circumstances, the Tribunal concluded that the applicant did not meet the criteria in any applicable student visa subclass.
9. The Tribunal said, for that reason alone, the delegate’s decision had to be affirmed. The Tribunal also considered that the applicant was not a genuine applicant for entry and stay temporarily in Australia as a student. The Tribunal examined the applicant’s study history and found that it did not indicate a consistent course of study that would have led to the applicant being able to further a career.
10. The Tribunal noted that the applicant had first come to Australia six years previously with a Higher Education Sector (subclass 573) visa. However, the Tribunal noted that the applicant did not complete any higher education course. Consequently, the Tribunal found that the applicant did not comply with condition 8516 of his last student visa as he had not maintained enrolment in a higher education course.
11. The applicant indicated to the Tribunal that he had not completed his higher education course because he could not pay the required fees. However, the Tribunal noted that to get the visa the applicant would have needed to provide evidence that he could pay the fees.
12. The Tribunal considered that the various low level courses that the applicant had enrolled in were for the purpose of prolonging the applicant’s stay in Australia rather than achieving any particular academic outcome that might assist the applicant in his future career.
13. It seems to me that those conclusions were reasonably open to the Tribunal. The Tribunal considered the correct visa criteria and applied them correctly. The applicant was given procedural fairness by being invited to a hearing at which he was able to give evidence and make submissions, and also by the Tribunal inviting the applicant to provide a certificate of enrolment and other material prior to the hearing.
14. The Tribunal’s decision was the only decision it could have made in view of the fact that the applicant did not have a current certificate of enrolment in any appropriate course. It seems to me that it cannot be said that the Tribunal made any jurisdictional error in this case. Consequently, the application must be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 31 August 2016

^[1] Provider Registration and International Student Management System.