BAL v Minister for Immigration

[2016] FCCA 2938

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2938

Catchwords:
MIGRATION – Application for judicial review of Tribunal decision affirming decision of first Respondent not to grant Applicant a Student visa – whether Tribunal failed to consider Applicant’s evidence in deciding whether Applicant met criterion in cl.572.223 Sch.2 Migration Regulations 1994 – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth)
Migration Regulations 1994

Cases cited:
Goumari v Minister for Immigration and Border Protection & Anor [2014] FCA 899
Minister for Immigration and Ethnic Affairs v Wu Shung Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Lee (2013) 87 ALJR 618

Applicant: KARAMJEET SINGH BAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 963 of 2015

Judgment of: Judge Jones

Hearing date: 12 October 2016

Date of Last Submission: 12 October 2016

Delivered at: Melbourne

Delivered on: 12 October 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Knowles

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for judicial review filed on 4 May 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs in the fixed amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 963 of 2015

KARAMJEET SINGH BAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled from Transcript)

Introduction and Background

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 7 April 2015 affirming a decision made by a delegate of the Minister for Immigration and Border Protection on 24 November 2014 refusing to grant the Applicant a Student (Temporary) (Class TU) 572 visa (‘the visa’).  By way of background, the Applicant is a citizen of India who arrived in Australia on a previous student visa on 15 April 2009, which was due to cease on 25 May 2010. 

2. Since his arrival in Australia he has held either a Student visa or associated bridging visas (CB 43). The decision which confronted the Tribunal was whether the Applicant satisfied the relevant criteria, which at the time was cl.572.223 of the Migration Regulations 1994 contained in Sch.2. The Regulations provided in summary as follows:

   (1)the Minister was satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that 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

…

(iv)and any other relevant matter.

1. This criterion which can be referred to as the genuine temporary entrance criterion, must be satisfied by all Applicants who make an application for a Student (Temporary) (Class TU) 572 visa on or after 5 November 2011. In addition, the Tribunal was required to have regard to a direction issued by the government under s.499 of the Migration Act 1958.  That direction is Direction No. 53 and is headed Assessing the Genuine Temporary Entrance Criteria for Student Visa Applications. The direction required the Tribunal to take into account, where relevant, certain matters, such as the Applicant’s circumstances in their home country (in this case, India); the Applicant’s potential circumstances in Australia; the value of the courses to the Applicant’s future; and his immigration history.

2. The Tribunal is not to use the Direction No. 53 as a check list, but merely as a guide for the Tribunal to weigh up the Applicant’s circumstances as a whole in reaching its finding as to whether the Applicant satisfies the relevant criteria:  Gilmore J in Goumari v Minister for Immigration and Border Protection [2014] FCA 899 at 3. So the issue which was identified by the Tribunal as the issue in this case was whether the Applicant satisfied the genuine temporary entry criteria contained in cl.572.223, Sch.2, of the Regulations.

3. The delegate found that the Applicant did not do so and in its decision record said this (CB 45):

   Overall, given your lack of academic progress, your study history, your potential circumstances in Australian, your immigration history and lack of value of the courses to your future, I find that you’re using the student visa program to circumvent a permanent migration program and I’m not satisfied that you are a genuine Applicant for entry and stay as a student and that you intend to stay in Australia temporarily.

Tribunal Decision

1. The Applicant sought review by the Tribunal.  He was invited to appear at a hearing scheduled for 30 March 201 (CB 49-53).  The Applicant indicated that he and his representative would appear at the scheduled hearing.  The Tribunal in its decision record set out the background preceding the Tribunal hearing (CB 67 at [4]):

   The Tribunal sent SMS hearing reminders to the Applicant’s contact number on 23 and 27 March 2015.  On 30 March 2015 the Applicant’s agent attended the hearing but the Applicant did not.  The Tribunal commenced the hearing with the Applicant’s agent in attendance.  The agent stated that they were expecting the Applicant to attend the hearing.  He had been aware of the hearing, but they could not contact him on the day of the hearing.  The Tribunal provided the agent with time to provide information as to why the Applicant had failed to attend the hearing.  On 7 April 2015 the Tribunal received the following information from the agent:

   We would like to thank you for granting us an extension for submitting the proof for adjournment.  Regrettably, we have not heard anything from our client to date.  We have tried to contact him, the client, several times by phone and by email, however all in vain.  Consequently, we have no instructions or evidence to submit in this matter.  Thank you very much for your cooperation in this matter.

2. The Tribunal stated (CB 47, para.6) that in the absence of any explanation for the Applicant’s failure to appear at the hearing it would exercise its discretion under s. 362B of the Act to proceed to a decision.  I should say that in the circumstances the Tribunal was perfectly entitled to do this.  The Tribunal then handed its decision down on 7 April 2015 (as set out at CB 66-73).

3. The Tribunal identified that the relevant sub-class of student visa was sub-class 572.  It identified the particular issue for decision, which was whether the Applicant satisfied the genuine temporary entrance criterion and noted the Applicant’s written submissions to the Department of Immigration and Border Protection and the information in the delegate’s decision regarding the Applicant’s study history. The Tribunal noted (CB 14) the various courses that the Applicant had previously been enrolled in (CB 70-71) and also noted at [15] that the PRISMs records show that the Applicant had completed his Advanced Diploma of Management and was studying a Diploma of Marketing (CB 71 at [15]).

4. The Tribunal noted that had the Applicant attended the hearing, which he did not, it would have asked him about various matters, including his choices of a disparate range of courses [16], his decision not to return to India despite claiming that he had been offered the opportunity to work in his uncle’s farm in the field of marketing [17], an explanation of his study gap while on student visa [18], and the relation between the courses the Applicant studied and his future employment plans [20].

5. The Tribunal, of course, was not able to do so because the Applicant failed to attend the hearing and his migration agent had no knowledge about why that was so and had been unable to contact him.  In those circumstances, in the absence of any explanation or evidence provided by the Applicant at the hearing, having regard to the evidence before it, the Tribunal found that the Applicant was not a genuine temporary entrant for the purpose of study based on the following matters, in particular:

   a)the Applicant’s study gap of seven months and the Applicant’s written submissions to the delegate with an explanation for his study gap, which the Tribunal found was not an acceptable explanation for the gap [18];

   b)the fact that there was no apparent clear and genuine study path given the Applicant’s choice of “disparate range of courses in Australia with limited relevance to his future employment plans” [16-19];

   c)the Applicant’s significant period of time in Australia and the veracity of the Applicant’s statement that he “wants to be an entrepreneur:  establish an electronic company with a friend” and the lack of any specifics about that plan [20]. This finding is set out at paragraph 20 of the decision record; and

   d)the fact there were no apparent family reasons for the Applicant to return to India [21].

6. The Tribunal set out its reasoning [23-24] as to why it found that the Applicant was not a genuine Applicant for entry and stay and consequently did not satisfy cl.572.223(1)(a) as follows:

   The Applicant has been in Australia for an extended period of time.  He has completed one practical course in electronics and communication and then more recently courses in unrelated fields of business management and marketing.  The Applicant has not shown how his study relates to his future plans, which, as provided, are vague and contradictory.  He has provided limited detail regarding his connection to India.  He has had an extended break in his studies which has not been sufficiently explained.  On the basis of the above and having considered the Applicant’s circumstances, immigration history and other matters it considers relevant the Tribunal is not satisfied that the Applicant intends genuinely to stay in Australia temporarily.  Accordingly, the Applicant does not meet cl.572.223(1)(a).

Judicial review

1. The Applicant appears today self-represented and, accordingly, I explained to him the nature of judicial review.  I explained that the court’s function is not to consider his circumstances, but rather to examine the Tribunal decision and the processes as adopted to decide whether the Tribunal made a jurisdictional error or, to put it another way, a serious legal mistake.  In his application for judicial review, which the Applicant filed on 4 May 2015, he said this as his ground for judicial review:

   The MRT erred in not giving consideration to the evidence that I, being the Applicant, provided to the effect that I’m a genuine student visa Applicant.  As a result of same the visa application refusal decision has been affirmed by the MRT.  Accordingly, the MRT erred as a matter of law.

2. I asked the Applicant to explain what he meant.  Firstly, I asked him whether what he was saying was that the Tribunal failed to take into account evidence that he provided and the Applicant said this was so.  I asked him to explain what was the evidence that he had provided that the Tribunal failed to take into account.  The Applicant submitted that what the Tribunal failed to take into account was evidence in relation to the period of his study gap of seven months. He said his evidence was that it was not his fault, but that he could not provide evidence to the Tribunal. 

3. The Applicant submitted, by reference to the PRISMs record (CB 56), that on 2 April 2012 he enrolled with an institution called Austwide in a Certificate III in Automotive Mechanical Technology light vehicle.  He decided that this course was not for him and he sought a cancellation of his Certificate of Enrolment as he wished to enrol in a new course elsewhere.  He told the court that a dispute emerged over the payment of fees and for this reason the institution refused to issue him a cancellation of the certificate of enrolment and it was not until 16 November 2013 that he was able to enrol in an Advanced Diploma of Management elsewhere.

4. The Applicant clarified that his complaint with the Tribunal was its finding that there was no evidence for the Applicant’s explanations and that the Tribunal, in fact, ought to have preferred his explanation.  I note here that the Applicant did not attend the Tribunal hearing, so although he had the opportunity, he simply did not take advantage of the opportunity to give an explanation to the Tribunal.

5. All the Tribunal had before it was the Applicant’s explanations to the delegate in his submissions and the delegate’s decision record.  The Applicant’s position is really this:  that the Tribunal simply should have accepted his explanation given earlier and he should not have been put to proof which he could not provide by way of evidence.  In relation to that, that clearly is an argument that invites this Tribunal to engage in an impermissible merits review.  It is settled principle that the Court should not engage in such merits review and I refer to just one of the many decisions of the High Court on this point in Minister for Immigration and Ethic Affairs v Wu Shung Liang (1996) 185 CLR 259 at 272, which is the judgment of the majority of the Court.

6. The Applicant acknowledges that there were other reasons for the Tribunal finding that he did not satisfy the relevant criteria, but makes submissions that the Tribunal’s finding that he lacked plans because he changed courses was unfair because people do that after having talked to friends.  Again, this suffers from the same vice, which is that he is simply asking the Court to accept some explanation of his and to review his circumstances and substitute the Court’s view for the Tribunal’s findings.

7. The Tribunal’s finding was completely open to it on the material before it and, I reiterate, the Applicant failed to provide evidence and present arguments to the Tribunal at the hearing about all these matters that he now seeks to ventilate in this Court.  There was no error on the Tribunal’s part.  The decision of the Tribunal was not unreasonable.  It was perfectly open to the Tribunal to find, based on the evidence before it and having regard to Direction No. 53, that the Applicant simply failed to satisfy the relevant criteria.

8. The Applicant has not argued before the Court that the Tribunal’s decision to proceed to make its decision pursuant to s.362B of the Act was unfair, but out of an abundance of caution I should say that in the circumstances it was a discretion which the Tribunal exercised reasonably.  The Tribunal reminded the Applicant by way of SMS messages about the Tribunal hearing and the Tribunal was advised by the Applicant’s migration agent that despite many attempts to contact his client he had not heard from the Applicant.  In those circumstances the Tribunal’s decision to proceed to make a decision was entirely reasonable.

9. I would refer to the decision of the Minister for Immigration and Citizenship v Lee (2013) 87 ALJR 618. In those circumstances I am satisfied that the grounds for judicial review do not give rise to jurisdictional error and consequently I dismiss the Applicant’s application for judicial review and make an order for costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 15 November 2016