Bajwa v Minister for Immigration

[2016] FCCA 2266

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAJWA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2266

Catchwords:
MIGRATION – Administrative Appeals Tribunal – student visa – Student (Temporary) (Class TU) subclass 572 visa – whether applicant a genuine temporary entrant – applicant frankly stating to Tribunal that he wished to stay in Australia indefinitely.

Legislation:
Migration Regulations 1994, Sch 2, cl.572.223(1)(a)

Cases cited:
Saini & Minister for Immigration and Border Protection (2015) 300 FLR 72; [2015] FCCA 2379

Applicant: MANDEEP SINGH BAJWA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 64 of 2016

Judgment of: Judge Riley

Hearing date: 8 August 2016

Date of last submission: 8 August 2016

Delivered at: Melbourne

Delivered on: 8 August 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Chris Hibbard

Solicitors for the first respondent: Clayton Utz

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The application filed on 13 January 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 64 of 2016

MANDEEP SINGH BAJWA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal.  The applicant applied for a Student (Temporary) (Class TU) subclass 572 visa.  A delegate of the Minister refused to grant that visa largely on the basis that the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily, as required by cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

2. The applicant then applied to the Tribunal. The Tribunal listed the matter for a hearing which the applicant attended. The hearing invitation letter also asked the applicant to provide various items of information. The letter said that the Tribunal would assess whether the applicant intended genuinely to stay in Australia temporarily, as required by cl.572.223(1)(a). It enclosed a copy of what is known as Direction No. 53 and it asked the applicant to provide a written statement addressing the issue of whether he was a genuine temporary entrant in Australia.

3. The applicant did attend the hearing before the Tribunal.  The decision record notes the applicant’s academic history, which was, essentially, that he had enrolled in 21 courses, five of which he had completed.  The Tribunal also noted that the courses that the applicant enrolled in did not form a cohesive whole such as would be likely to lead to a particular career path. 

4. The Tribunal put to the applicant that he appeared to be using the student visa program to remain in Australia.  The applicant acknowledged that he wanted to remain in Australia.  The Tribunal also said to the applicant during the hearing that the delegate had noted that the applicant had applied for a subclass 457 visa.  The delegate had said in his decision that the 457 visa application suggested that the applicant was using the student visa application as a means of maintaining residence in Australia and that he did not genuinely intend to stay in Australia temporarily, but wished to maintain ongoing residence in Australia.  When all of that was put to the applicant and when he was asked directly if his plan was to stay in Australia, the applicant frankly replied, “Yes”.

5. The Tribunal discussed the applicant’s academic history with him and the applicant again made it clear that he wished to remain in Australia indefinitely.  The Tribunal considered the decision of this court in Saini & Minister for Immigration and Border Protection (2015) 300 FLR 72; [2015] FCCA 2379, where Judge Cameron said that an intention to remain in Australia after the conclusion of the studies in relation to which a student visa was granted would amount to the lack of an intention to stay temporarily:

   because the intention to stay temporarily would not be unqualified as cl.572.223(1)(a) requires.

6. The Tribunal noted that it appreciated the applicant’s honesty. However, taking into account the applicant’s circumstances as a whole, the Tribunal was not satisfied that the applicant intended to stay in Australia temporarily. The Tribunal concluded that the applicant did not meet cl.572.223(1)(a) of Schedule 2 to the Regulations.

7. The applicant was not represented before this court.  He filed an application in which the grounds of review are as follows:

   The tribunal did not consider my supporting evidence which I Provide during my hearing.  I am a regular international student and want to complete my course on time.  I never breach any student visa condition during my stay in Australia.  I have sufficient evidence to support my application. (errors in original)

8. The applicant was not able to elaborate on what he meant by “supporting evidence”.  It appears that he simply meant that the Tribunal did not accept his evidence that he was a genuine student.

9. It appears from the court book that the Tribunal did take into account all of the applicant’s circumstances and all of the relevant history of the matter.  The Tribunal detailed the courses that the applicant had undertaken.  The Tribunal specifically recorded the application of Direction No. 53.  The Tribunal recorded that the applicant said repeatedly during the hearing that he did wish to stay in Australia indefinitely. 

10. All in all, I do not see any basis upon which it could be said that the Tribunal did not take into account all the supporting evidence provided by the applicant.  The fact is that, having reached the conclusion that the applicant was not a genuine temporary entrant for the purposes of study, the conclusion that the applicant did not satisfy cl.572.223(1)(a) of Schedule 2 to the Regulations was unavoidable.

11. The other aspects of the grounds set out in the application are, at best, seeking merits review which this court is not permitted to provide.

12. The applicant filed an affidavit in support of his application.  In the affidavit, the applicant said:

    The tribunal did not consider my supporting evidence which I Provide during my hearing.  I am a regular international student and want to complete my course on time. (errors in original)

13. This is, basically, a repeat of the grounds set out in the application which have already been addressed.  The applicant did not file any written submissions for consideration by this court.

14. In oral submissions, the applicant was asked to elaborate on what he meant by “my supporting evidence”.  He simply embarked on a history of the various courses that he had undertaken.  When told by the court that the issue on which the case was decided was that the Tribunal was not satisfied that the applicant was a genuine temporary entrant, the applicant told the court, essentially, that, “Everyone who comes here to study wishes to stay”.  He said that Australia is a much better country.  He said that there is advertising in India where he comes from by agents saying that if people do two years of study in Australia they will then be able to stay.  The applicant confirmed that he had applied for a 457 visa, but had been unsuccessful.

15. It may well be that everyone who comes to Australia to study wishes to stay here. However, the fact is that there are rules and regulations about who can stay and what criteria they need to satisfy to be permitted to stay. Clause 572.223(1)(a) of Schedule 2 to the Regulations is very clear that an applicant for a student visa needs to be a genuine temporary entrant and not someone who is using the system to remain in Australia indefinitely.

16. It does not seem to me that any of the matters raised by the applicant today or in his application or supporting affidavit indicate that the Tribunal made a jurisdictional error.  Looking at the case more generally, there seems to be no basis upon which it could be said that the Tribunal did not afford the applicant procedural fairness.  He was invited to a hearing on reasonable notice.  He attended the hearing.  The Tribunal put various matters to the applicant during the hearing.  The Tribunal decided the case on, essentially, the same basis as the delegate.  In these circumstances, there seems to be no basis upon which it could be said that the applicant was not afforded procedural fairness.

17. The Tribunal has identified one of the relevant criteria that the applicant had to satisfy in order to be granted the visa he sought. The Tribunal has determined the facts and applied the relevant criteria to those facts. I am unable to see any error of law in relation the Tribunal’s application of cl.572.223(1)(a) to the facts of this case. There does not appear to be anything that the Tribunal was obliged to consider that it failed to consider.

18. The Tribunal has considered the evidence that the applicant provided.  However, the overwhelming issue was that, on the applicant’s own statements to the Tribunal, the Tribunal concluded that he was not a genuine temporary entrant for the purposes of study.  It seems to me that that conclusion was open to the Tribunal.  It was not a legally unreasonable decision that the Tribunal arrived at, given its findings about the applicant’s intentions in relation to his stay in Australia.

19. All in all, I am not satisfied that the Tribunal has made a jurisdictional error in this case.  Consequently, the application must be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 31 August 2016