Ankit v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1322

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ankit v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1322

File number(s):

SYG 1654 of 2020

Judgment of:

JUDGE SKAROS

Date of judgment:

3 December 2024

Catchwords:

MIGRATION – Judicial Review of a decision of the Tribunal to refuse the applicant a student visa – Genuine temporary entrant criteria – application dismissed

Legislation:

 Migration Act 1958 (Cth) s 476

Migration Regulations 1994 cl 500.212

Division:

Division 2 General Federal Law

Number of paragraphs:

47

Date of hearing:

27 November 2024

Place:

Parramatta

Solicitor for the Applicant:

Self-represented Litigant

Solicitor for the Respondent:

Ms Warren of Sparke Helmore

Solicitor for the Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 1654 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ANKIT

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SKAROS
DATE OF ORDER:	3 DECEMBER 2024

THE COURT ORDERS THAT:

1.The application filed on 1 October 2024 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE SKAROS:

1. By application filed on 9 July 2020 and amended 1 October 2024, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) (as it then was) made on 24 June 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) dated 31 October 2018 refusing to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. The applicant is a 29-year-old male citizen of India. He first arrived in Australia as the holder of a student visa. On 13 September 2018, the applicant applied for a further student visa, which is the subject of these proceedings.

3. On 31 October 2018, the delegate refused the application, not being satisfied that the applicant intended to genuinely stay temporarily in Australia and found he did not meet cl 500.212 of sch 2 of the Migration Regulations 1994 (the Regulations).

4. On 21 November 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

5. In response to a s 359 invitation to provide information sent on 9 April 2020, the applicant provided a completed ‘request for student visa information’ form and a Confirmation of Enrolment (COE). In that form the applicant consented to the Tribunal determining the matter without a hearing.

6. On 24 June 2020, the Tribunal affirmed the decision under review.

   THE TRIBUNAL’S DECISION

7. The Tribunal identified the dispositive issue as being whether the applicant met cl 500.212 of the Regulations. That is, whether the applicant was a genuine applicant for entry and stay as a student because the applicant intended genuinely to stay in Australia temporarily (the GTE Criteria).

8. The Tribunal identified that, in determining the relevant issue, it must have regard to the Ministerial Direction No. 69 titled ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ made under s 499 of the Act. This Direction provided that the Tribunal must have regard to (as a guide, not a checklist):

   ·     the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·     the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·     if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·     any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

9. The Tribunal then went on to discuss (and make findings) as to the matters it considered relevant in determining whether the applicant intended to genuinely stay in Australia temporarily.

10. The Tribunal was satisfied with the reasons given by the applicant for not undertaking his proposed study in his home country.

11. As to the applicant’s circumstances and connection to his home country the Tribunal stated the following:

    (a)that the applicant’s immediate family all reside in India, that he has a sound relationship with them and communicates with them regularly via social media. Notwithstanding, the Tribunal took into account that the applicant had not returned to India since first arriving in Australia in June 2015.

    (b)that there was no evidence to suggest that the applicant was involved in any community organisations in India or that he owns property, personal assets or investments in India.

    (c)it was not persuaded by the applicant’s oral evidence that his father was a successful businessman in India and that he would return to take over the business, as the applicant had provided no evidence to substantiate these claims.

12. Considered overall, the Tribunal was not satisfied that the applicant’s personal ties would serve as a significant incentive for him to return to India.

13. The applicant’s evidence about his father’s business and him taking it over in the future was insufficient for the Tribunal to determine his economic circumstances in India as compared to Australia, and the Tribunal gave this consideration neutral weight.

14. The Tribunal considered that the applicant had a strong incentive to remain in Australia for the following reasons:

    (a)the applicant had maintained employment for significant periods of time, established a residence, friendships and a pattern of life in Australia.

    (b)the disparity in general living standards between India and Australia, the length of time the applicant had been in Australia without visiting India, and the applicant’s lack of employment history in India.

    (c)the Tribunal was not satisfied that the applicant’s personal circumstances would serve as a significant incentive for him to return to India and was concerned that the applicant’s ties to Australia would present as a strong incentive for him to remain.

15. The Tribunal was also concerned with the applicant’s study history and the value of his proposed courses. It stated the following:

    (a)the applicant arrived in Australia on 22 June 2015, and he successfully completed a Certificate IV in Business and Diploma of Business, in August 2016 and July 2017, respectively.

    (b)in June 2017, the applicant enrolled in an Advanced Diploma of Business. The applicant did not complete this course and enrolled, over a period of about two years, in three different courses relating to motor vehicle repairs – none of which he completed.

    (c)on 22 June 2020, the applicant’s Advanced Diploma of Business, of which he provided to the Tribunal a COE, was due to commence.

    (d)the Tribunal was particularly concerned with the applicant’s study history between July 2017 and June 2020. It noted that there was no evidence that the applicant had completed any qualifications in this period and instead enrolled in a series of short, inexpensive courses.

    (e)the applicant provided no detailed evidence of what he was doing in Australia during this period apart from working between July 2017 and June 2018. The Tribunal was satisfied that the applicant’s study history was inconsistent with the study history of a genuine student and the Tribunal stated that this was evidence that the student visa may have been used primarily for maintaining ongoing residence.

16. The Tribunal considered that the applicant’s circumstances, and potential circumstances, evidenced that the student visa programme was being used by the applicant to circumvent its intention and to maintain ongoing residence.

17. Various other considerations were given neutral weight by the Tribunal.

18. After considering the totality of the evidence, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. The applicant was found not to have met cl 500.212(a) and the Tribunal affirmed the delegate’s decision.

    APPLICATION TO THIS COURT

19. The application which commenced proceedings in this Court, and later amended, contains four grounds of judicial review, which have been considered by the Court further below.

20. In compliance with orders made on 13 August 2020 by a Registrar of the Court, the Minister filed the Court Book on 24 September 2020 and written submissions on 17 December 2020.

21. In compliance with the orders made on 13 September 2024 by a Registrar of the Court, the applicant filed an amended application on 1 October 2024 and the Minister filed amended written submissions on 30 October 2024, which spoke to the grounds of judicial review in the amended application.

22. The matter was heard on 27 November 2024 at the Parramatta Registry of the Court. The applicant appeared in person and was assisted by an interpreter in the Hindi and English languages. The Minister was represented by Ms Warren, a solicitor advocate.

23. Given the deficiencies in the amended application, which did not invoke the jurisdiction of the Court by its failure to indicate the orders sought by the applicant, the Court proposed that the amended application for judicial review, filed 1 October 2024, be taken to have been amended so as to seek an order that the decision of the Tribunal be quashed and a writ of mandamus. The Minister did not object to this course of action, and the Court so ordered.

24. Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.

25. The Court invited the applicant to make submissions in respect of each ground of judicial review raised in the amended application, each of which were read out to him with the assistance of the interpreter.

    GROUNDS OF REVIEW

26. The amended application for judicial review raised the following grounds (without alteration):

    1.My visa has been rejected by the department without any valid reason. I was studying when my visa was rejected.

    2.Immigration department completely ignore the facts and they have given arbitrary decisions.

    3.I have faced injustice even though I had given all the papers at the time of applying for visa.

    4.I am expecting justice from Hon. Court.

    Ground One

27. In so far as ground one asserts an error in the delegate’s decision, the Court notes that it has no jurisdiction to review that decision, because it is a primary decision: see ss 476(2)(a) and (4)(a) of the Act. This was explained by the Court to the applicant at the hearing. The Court asked the applicant to explain why he believed the Tribunal had not provided valid reasons for its decision or why he believed the Tribunal had made a legal error in conducting a review of the delegate’s decision.

28. The applicant said that when he applied for an extension of his student visa he was studying. He submitted he was a medical student when he came to Australia, but after getting advice from his migration agent he tried to change to the automotive industry. He said he was continuously studying but the Tribunal told him he was not studying. He suffered severe anxiety and depression because of the refusal of his visa, for which he has been on medication. He was studying continuously and completed a diploma in hospitality management, completed a skills assessment and moved to Western Australia to obtain a nomination, the results of which he is currently waiting for. The applicant said he provided a COE to show that he was studying, and does not understand why the Tribunal said he was not a genuine student.

29. The Minister has appropriately addressed this ground of review (to the extent possible) as a complaint of error in the Tribunal’s decision.

30. To the extent that the applicant alleges that the Tribunal had failed to provide valid reasons for concluding that it was not satisfied that the applicant was not a genuine temporary entrant as required by cl 500.212, this must be rejected. The Court accepts the Minister’s submission that the Tribunal gave cogent reasons for its conclusion.

31. In arriving at its conclusion, that the applicant was not a genuine temporary entrant, the Tribunal had regard to the matters it was required to consider, as set out in Direction No. 69. At [12]—[14] of its decision, the Tribunal considered the applicant’s personal ties to his home country (India), but it was not satisfied that they provided a significant incentive to return there. At [17]—[18], the Tribunal had regard to the disparity in living standards between Australia and India, the length of time the applicant had been residing in Australia, including that he had not returned there since 2015, his lack of employment history in India, and his ties to Australia, which the Tribunal considered would present a strong incentive for him to remain.

32. At [21]—[22], the Tribunal considered the applicant’s study history and noted that he had changed his study from business to motor vehicle repairs and back to business studies, but it was not satisfied with the reasons the applicant had given for changing his study pathway.  The Tribunal was not satisfied on the evidence before it that the applicant’s study would improve his employment prospects in India and did not consider the applicant’s claims in relation to his employment prospects in India to be credible. At [26]—[27], the Tribunal set out the courses completed by the applicant in Australia and observed that, between July 2017 and 22 June 2020, he was enrolled in a series of short, inexpensive courses. The Tribunal considered the applicant’s study history in Australia was inconsistent with the study history of a genuine student and that the student visa was being used to maintain ongoing residence.

33. The applicant’s contention that he was a genuine student because he was continuously enrolled in a course and had been studying, demonstrates a misunderstanding of the requirements of cl 500.212(a), which form part of cl 500.212, and the reasons given by the Tribunal for why the applicant did not satisfy the genuine temporary entrant requirement. The issue which the Tribunal had to determine, as indicated at [7] of its decision, was whether the applicant intends genuinely to stay temporarily in Australia as a student. In considering whether the applicant satisfied this requirement, the Tribunal had regard to Direction No. 69 and the matters stated therein when assessing the applicant’s circumstances and evaluating whether he satisfied the genuine temporary entrant criterion.

34. A fair reading of the decision indicates the Tribunal’s findings and conclusions were open to it based on the evidence and material before it and for the cogent reasons it gave.

35. Ground one does not establish jurisdictional error.

    Ground Two

36. Taking ground two as a complaint against the Tribunal, the applicant asserts that the Tribunal failed to take into account facts and made an ‘arbitrary’ decision.

37. In oral submissions, the applicant said the Tribunal told him he did not have ties with family in India, that he had had not visited India and this was why he was not a genuine student. He said this was why he contends the decision was ‘arbitrary’. The applicant said he has maintained ties with his family in India and visited them in 2022.

38. The Court accepts the Minister’s oral submissions, that the Tribunal’s reasons discloses that it did have regard to the applicant’s ties in India. At [12] of the decision the Tribunal observed that applicant’s parents, brother and other family members resided in India. It also recorded the applicant’s evidence that he communicates with members of his family on social media. It accepted that the applicant has a sound relationship with his family members and that he communicated regularly with family and friends in India via social media. At [14] the Tribunal accepted that the applicant’s relationship with his family and friends in India may provide a reason for him to visit India in future. The Tribunal also noted at [14] that the applicant had not visited India since June 2015 and that there was no evidence before it that he had significant interest in property or personal assets there. The applicant’s return to India in 2022 was an event that occurred after the Tribunal made its decision (in June 2020) and is not a basis for impugning the Tribunal’s decision.

39. In response to the Minister’s oral submission, the applicant said he does have interest in property and other assets in India, but they were held in his father’s name as his father was still alive. The evidence before the Court does not indicate that any ownership (or right to ownership) of property or other assets in India was before the Tribunal. It was therefore open to the Tribunal to state there was no evidence of the same, at the time it made its decision. No error arises on the part of the Tribunal in this regard.

40. The Tribunal’s decision discloses that it took into account the evidence before it, including the evidence provided by the applicant when responding to the s 359 letter. Its findings and conclusions were open to it and for the reasons it gave. The applicant has not demonstrated that the Tribunal’s decision was arbitrary, capricious or unreasonable.

41. Ground two does not establish jurisdictional error.

    Ground Three

42. By ground three, the applicant complains that he has experienced injustice as he had provided the documents required for the grant of the visa.  The Minster submits that ground three is not a proper review ground and does not establish error.

43. Taken at its highest, this may be understood as a compliant that the Tribunal had acted unreasonably or its decision was unreasonable. When asked at the hearing to explain why he thought the Tribunal’s decision or the manner in which it conducted the review was unjust, the applicant said his agent had told him that if he returns to his country, automotive studies would be helpful as there was ‘a big scope back home’. He said he got the COE through the agent and applied for his visa. He said the Tribunal’s query as to why he was doing the course in Australia and not India was, in his view, the injustice.

44. The Minister submitted that, notwithstanding the different reasons given for why the applicant had decided to change his study and career pathway (which he had previously indicated was because his friends persuaded him to do so: at [21]), the Tribunal was not persuaded by the applicant’s explanation for why he changed his study pathway. It was submitted that the Tribunal’s conclusion was open to it. The Court accepts the Minister’s submission. The Tribunal in its decision (at [21]), considered the evidence before it relevant to the applicant’s studies and his explanation for why he had changed his study pathway. Having regard to the matters it was required to take into account by Direction No. 69, it was open for the Tribunal to consider the applicant’s study history and to arrive at the conclusion it did. The Tribunal’s conclusion was not unreasonable or lacking in relational foundation, nor can it be suggested that it was (in the legal sense) an unjust decision.

1. Ground three does not establish legal error.

   Ground four

2. Ground four is a statement that the applicant expects justice from the Court. This is not a proper ground of review. Ground four does not establish jurisdictional error.

   Conclusion

3. As none of the grounds raised in the amended application establish jurisdictional error, the application filed on 9 July 2020, and amended on 1 October 2024, must be dismissed.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

Associate:

Dated:       3 December 2024