BALA v Minister for Immigration
[2018] FCCA 2579
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2579 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – student (temporary) class TU visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; 75 ALR 630; 75 ALD 630 SZBCS v Minister for Immigration & Multicultural Affairs [2005] FCA 1457 |
| First Applicant: | KANCHAN BALA |
| Second Applicant: | BALJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1093 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 3 September 2018 |
| Date of Last Submission: | 3 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Advocate for the applicants: | In person |
| Solicitors for the applicants: | None |
| Advocate for the respondents: | Ms S He |
| Solicitors for the respondents: | Mills Oakley |
ORDERS
The applicants’ application filed on 25 May 2017 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1093 OF 2017
| KANCHAN BALA |
First applicant
| BALJIT SINGH |
Second applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
On 25 May 2017, the applicants filed an application seeking an order that the respondents show cause why a remedy ought not be granted in exercise of the court’s jurisdiction under section 476 of the
Migration Act 1958(Cth) (“the Act”).
On 20 December 2017, a Registrar of this court ordered that pursuant to rule 44.11(c) of the Federal Circuit Court Rules 2001 (Cth), a hearing under rule 44.12 be dispensed with and that the application be listed for a final hearing.
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”) made on 10 May 2017. The tribunal, by its decision on that day, affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) dated 3 August 2015 to refuse to grant the applicants student (temporary) (class TU) visas (“the visas”).
Background
On 18 May 2015, the first applicant lodged an application for a student (temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on the basis of her enrolment in a Certificate IV in Accounting and a Diploma of Accounting.[1] The second applicant was listed as a member of the first applicant’s family unit and included on that basis in the application.
[1] Court book pages 1 to 9; and page 71.
On 19 May 2015, the Department of Immigration and Border Protection (“the Department”) wrote to the first applicant requesting further information in support of her application. In particular, the Department requested further information addressing the ‘Genuine temporary entrant criteria’ contained in clause 572.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).[2]
[2] Court book page 19 to 29.
The correspondence from the Department dated 19 May 2015 invited the first applicant to address her study history in Australia. In particular, the letter summarised the first applicant’s visa and completion history of the various courses in which she had enrolled whilst on various student visas since 2009. Relevantly, the letter from the department contained the following:
This application is for a 4th Student visa with which you intend to continue studying at the vocational education level until 26/08/2016.
…Records indicate that since arriving onshore, you only travelled offshore on 2 occasions on medical grounds. Your dependant SINGH, Baljit … has not travelled offshore at all.
With a low level of course completion, course hopping, limited offshore travel and holding a large number of enrolments in various courses since arriving onshore, it seems you might be using the temporary visa program to maintain de-facto residency in Australia.
Please provide a statement explaining the above and setting out your reasons for undertaking the course(s) of study specified in your application.[3]
[3] Court book page 26.
The first applicant provided a response via her registered migration agent, including a statement addressing the genuine temporary entrant criteria.[4]
[4] Court book pages 30 to 63; and particularly pages 43 to 44.
On 3 August 2015, the delegate refused to grant the applicants’ student visas on the basis that the delegate was not satisfied that the first applicant was a genuine applicant for entry and stay as a student as required by clause 572.223 of the Regulations.[5] The delegate relevantly stated:
Overall, given your lack of academic progress, your study history, your potential circumstances in Australia, your immigration history and the lack of value of the courses to your future, I find that you are using the Student visa program to circumvent permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you indent to stay in Australia temporarily.[6]
[5] Court book pages 69 to 76.
[6] Court book page 75.
The tribunal proceedings
On 6 August 2015, the applicants applied to the tribunal for a review of the delegate’s decision.[7] In that application, the applicants appointed a registered migration agent to represent them.
[7] Court book pages 77 to 79.
By letter dated 12 April 2017, the tribunal invited the applicants to a hearing on 2 May 2017.[8] That invitation included a request that the applicants provide any documents upon which they seek to rely to establish that they meet the criteria for the visa. Relevantly, it also contained the following:
[8] Court book pages 87 to 98.
We will be assessing whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.[9]
[9] Court book page 88.
On 2 May 2017, the applicants’ migration agent contacted the tribunal and advised that the applicants could not attend the hearing as the first applicant was unwell. A medical certificate was provided indicating that the first applicant had “pregnancy related lower back pain” and was “having trouble moving around” and “needs rest and avoid any physical exertion rest of the pregnancy”.[10] The hearing was then postponed to
10 May 2017 and arrangements made for the applicants to appear by telephone.[11] The applicants attended the hearing on 10 May 2017 by telephone and were assisted by an interpreter.[10] Court book page 114.
[11] Court book page 121.
Tribunal’s decision
The tribunal provided an oral decision at the conclusion of the hearing on 10 May 2017 affirming the delegate’s decision.[12] The tribunal was not satisfied that the first applicant intended to genuinely stay in Australia temporarily and therefore did not meet the criteria in
clause 572.223(1)(a) of the Regulations.[12] Court book page 125.
At the request of the applicants, the tribunal provided a written statement of reasons dated 17 May 2017.
The tribunal summarised the relevant factors contained in Ministerial Direction No. 53 issued pursuant to section 499 of the Act
(“Direction 53”), which it observed were contained in the delegate’s decision.[13] The tribunal noted that the first applicant acknowledged that she had read and understood the primary decision which was provided to the tribunal as part of the review process and discussed in some detail at the hearing.[14][13] Court book page 136 at paragraphs [8] to [10]
[14] Court book page 136 at paragraph [11].
The tribunal noted that the two hearing invitations issued to the applicant requested the first applicant provide supporting evidence and a statement addressing the issues in Direction 53, but she did not provide any information or evidence.[15] The tribunal considered the first applicant’s claims to have completed a Certificate IV in Accounting and to be enrolled in a Diploma of Accounting, but found that no evidence had been provided to support that claim.[16]
[15] Court book page 137 at paragraphs [14] and [19].
[16] Court book page 137 at paragraphs [19] and [21].
The tribunal considered the first applicant’s evidence that she had originally come to Australia to study graphic design, which she did not complete due to a “lack of interest”.[17] It found that since arriving in Australia, the first applicant enrolled in a large number of unrelated courses, most of which were cancelled, and reiterated the findings of the delegate that the first applicant had “demonstrated a pattern of poor academic progress of enrolling and starting but not completing courses”.[18]
[17] Court book page 137 at paragraph [24].
[18] Court book pages 137 to 138 at paragraphs [26] to [27].
The tribunal did not accept that the first applicant’s conduct was the behaviour of a genuine student and found the first applicant’s motive in choosing the courses was to remain in Australia.[19] The tribunal found that even if it accepted that the first applicant had completed the Certificate IV in Accounting, she had only completed two cumulative years of study over a period of almost eight years in Australia, which did not reflect the progress of a genuine student.[20] The tribunal also had regard to significant study gaps in concluding that the first applicant’s behaviour was not that of a genuine student.[21] The tribunal had particular regard to the first applicant’s study gap between 23 June 2013 (when she ceased studying in Ballarat) and 8 May 2014 (when she commenced studying the Certificate IV in Accounting), which was also referred to in the delegate’s decision record.[22]
[19] Court book page 138 at paragraph [28].
[20] Court book page 138 at paragraphs [30] to [31].
[21] Court book pages 138 to 139 at paragraphs [33] to [35].
[22] Court book pages 72 and 138 at paragraph [13].
The tribunal had regard to the first applicant’s stated goal to become an accountant and her stated desire to undertake additional related study in Australia but queried why the first applicant could not study accounting or commerce at any of the “excellent universities in India”. It rejected the first applicant’s claim that studying in Australia would give her a better opportunity to get a good job, finding that if the first applicant genuinely wanted to become a tax accountant, it would make more sense for her to study tax law in the country in which she intended to practice.[23]
[23] Court book page 139 at paragraph [37].
The tribunal found that the first applicant’s answers about her future plans were “vague and general at best”.[24] While it accepted that having family in India provided some incentive for the first applicant to return there, it did not consider this outweighed her immigration history and circumstances in Australia, including that:
a)she had lived in Australia for eight years with her husband;
b)both she and her husband were employed; and
c)she now wished to remain in Australia to study for a “significantly longer period”.[25]
[24] Court book page 139 at paragraph [39].
[25] Court book page 139 at paragraph [40].
The tribunal had regard to the timing of the first applicant’s student visa application, which was lodged the day before her previous student visa ceased and on the same day as she enrolled in the Diploma of Accounting, and found her motivation was not to study but to be granted a visa.[26]
[26] Court book page 139 at paragraph [41].
Having considered the applicants’ circumstances as a whole, including the matters set out in Direction 35, the tribunal was not satisfied the applicant met the Genuinely Temporary Entrant criteria (“the GTE”) in clause 572.223(1)(a) of the Act and affirmed the delegate’s decision.[27]
[27] Court book page 139 at paragraph [42].
Procedural history
Orders were made on 20 December 2017 for the applicants to file and serve any amended application and any additional evidence 28 days prior to the final hearing in this matter. No such documents have been filed.
Ground one
The first ground of review is:
The Tribunal failed to consider properly the first applicant’s oral evidence that she was enrolled in a Diploma of Accounting and that she subjective intention to become an accountant (sic).[28]
[28] Applicant’s application filed 25 May 2017.
It is evident from a fair reading of the tribunal’s decision record[29] that it in fact did consider the applicant’s evidence about her enrolment in a Diploma of Accounting and her desire to become an accountant.
[29] Court book page 137 at paragraphs [19] to [26]; page 138 at paragraphs [26] to [33]; and page 139 at paragraphs [34] to [36].
It was submitted on behalf of the Minister that this ground seeks impermissible merits review.
I agree and find that ground one does not disclose any jurisdictional error and is not made out.
Ground two
The second ground of review is:
The Tribunal failed to property (sic) inquire as to the first applicant’s personal circumstances despite here evidence (sic) that she was pregnant at the time and was having health issues.[30]
[30] Applicant’s application filed 25 May 2017.
As noted above, the initial hearing before the tribunal was scheduled for 2 May 2017. On that day, the applicants’ migration agent contacted the tribunal and advised that the first applicant was unwell and would not be able to attend the hearing. The medical certificate provided in support of this correspondence indicated that the first applicant was pregnant, suffering from pregnancy-related lower back pain and needed to rest and avoid engaging in physical exertion.[31]
[31] Court book pages 113 to 118.
In response, quite properly the tribunal adjourned the hearing date to
10 May 2017 and permitted the applicants to attend by telephone so that the first applicant could remain in her own home environment and participate in the hearing without engaging in any physical exertion. It is notable that notwithstanding having a migration agent, no further medical evidence was submitted to suggest that the first applicant’s condition meant that she could not participate in the hearing even by telephone.[32]
[32] Court book page 121.
As noted by the Minister, where an applicant is not feeling well, the tribunal has a discretion as to whether to adjourn a hearing but is not obliged to do so.[33]
[33] SZBCS v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1457 at [32].
It is evident from the decision record and I find that the tribunal member raised a number of matters with the applicant in the course of the hearing which she was able to address. There is no evidence that the first applicant raised her pregnancy as a basis for any inability to participate in the hearing. To the extent that it limited the first applicant’s ability to physically attend, this was accommodated by allowing her to appear by telephone.
For these reasons, ground two is not made out.
Ground three
The third ground is:
The Tribunal fell into jurisdictional error because it asked itself the wrong question in determining whether the first applicant was a genuine applicant for entry and stay as a student in Australia temporarily.[34]
[34] Applicant’s application filed 25 May 2017.
No particulars are identified as to what question the tribunal asked itself and how this was the “wrong question”. Counsel for the Minister submitted that this ground is not particularised such as to make it meaningful. There is some merit to this submission.
In any event, it is evident from a fair reading of the tribunal’s reasons that it considered the correct question. So much is evident from of the written reasons in which the tribunal relevantly said:
To be eligible for the grant of a student visa, applicants must be both genuine temporary entrants and genuine students.
To be a genuine temporary entrant your circumstances must support a genuine intention to remain in Australia temporarily. (emphasis added).[35]
[35] Court book page 136 at paragraphs [3] to [4].
For the above reasons, this ground does not disclose any jurisdictional error and is therefore not made out.
Ground four
The fourth ground is:
The Tribunal erred in concluding that the first applicant was not a genuine entrant despite the first applicant’s intention to return to India after completing her account diploma (sic).[36]
[36] Applicant’s application filed 25 May 2017.
Counsel for the Minister submitted that a fair reading of the tribunal’s reasons reveal that the tribunal did consider the applicant’s claim that it was her intention to return to India upon concluding her studies but ultimately found that the applicant’s intention was to remain in Australia for a longer period of time.
I am persuaded by the Minister’s submissions. It is clear from the decision record that the tribunal understood that the applicant had a stated intention to complete her studies and then return to India to practice as a tax accountant,[37] but concluded that there was a difference between her “words and (her) actions”.[38] It also concluded that the applicant’s “answers about (her) plans and future intentions are vague and general at best.”[39]
[37] Court book page 139 at paragraph [37].
[38] Court book page 139 at paragraph [40].
[39] Court book page 139 at paragraph [39].
As submitted by counsel for the Minister, the tribunal is entitled to accept or reject or give such weight as it deems appropriate to the evidence put forward.[40]
[40] Leev Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
The tribunal’s reasoning and conclusions were open to it. This ground, like many others raised by the applicant, is an attempt at impermissible merits review.
For these reasons, ground four is not made out.
Ground five
The fifth ground is:
The Tribunal has breached Sections 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.[41]
[41] Applicant’s application filed 25 May 2017.
Again, no particulars are provided which could make this ground meaningful.
Section 348 of the Act provides that where a valid application is made, the tribunal must review a decision. In this case, the tribunal has reviewed the delegate’s decision, therefore there has been no failure to comply with this section.
Section 353 of the Act provides that in conducting a review of a Part 5 reviewable decision, the tribunal is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case. In this case, for the reasons set out in response to various other grounds of review, the findings made by the tribunal were reasonably open to it, it dealt with the applicants fairly and as there are no other “breaches” particularised, I find that the tribunal complied with this provision.
Section 357A of the Act relevantly provides that the tribunal is required to act in a way that is fair and just. No particulars have been identified in the applicants’ application as to how it is said that the tribunal has not acted in a manner which was ‘fair and just’.
At the hearing, when asked to put in her own words what it is that the tribunal did which the applicants complain about, the first applicant referred to the following:
a)the tribunal asked why the applicant did not choose to study accountancy in her own country;
b)the applicant stated that she started with the highest studies first which was her error and it was too hard but she completed a Certificate 4; and
c)that it is ultimately her decision as to where she should study.
Given that the issue before the tribunal was whether the applicants met the “genuine temporary entrants” requirements, it was open to the tribunal and reasonable in the circumstances to enquire of the first applicant as to not only her commitment to her studies in Australia but also her connection with India and her desire to return to India upon completion of her studies.
In those circumstances, the questions asked of the first applicant in the course of the hearing before the tribunal do not support a finding that the tribunal member has acted in a manner which was not ‘fair and just’.
In essence, this ground seeks impermissible merits review. For each of these reasons, this ground is not made out.
Ground six
The sixth ground is:
The Tribunal has breached section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made.[42]
[42] Applicant’s application filed 25 May 2017.
Section 368(1) of the Act requires the tribunal to set out its decision on the review, the reasons for the decision, findings on any material questions of fact and any evidence upon which those findings of fact were based.
In this case, the tribunal made a decision and delivered its decision orally on 10 May 2017 and then pursuant to section 368D of the Act, reduced its decision to writing and provided that to the applicants. The requirements in respect of oral decisions are the same as those required under section 368(1) of the Act.
In either case, the tribunal is not required “to refer to every piece of evidence and every contention made by an applicant in its written reasons.”[43]
[43] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; 75 ALR 630; 75 ALD 630 at [46].
In this case, the tribunal has provided detailed reasons which explain its findings and its reasons for those findings. In essence, it recites the relevant evidence given by the first applicant and, where that evidence has not been accepted, the reasons for that.
This ground is not made out.
Ground seven
The seventh ground is:
The Tribunal has erred jurisdictionally by its failure to objectively consider the totality of the evidence before it.[44]
[44] Applicant’s application filed 25 May 2017.
This ground is essentially a restatement of ground six. For the same reasons discussed above, I find that the tribunal did consider the totality of the evidence before it.
After doing so, the tribunal was not satisfied that the applicants met the requisite criteria for it to grant the applicants their student visas.
This ground, such as it is, simply invites the court to engage in impermissible merits review.
Ground eight
The eighth ground is:
The Tribunal misdirected itself at law by referring on Direction No 53 instead of Direction No 69.[45]
[45] Applicant’s application filed 25 May 2017.
Section 499 of the Act relevantly provides:
(1)The Minister may give written directions to a person or body having function or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Direction 53 was issued pursuant to section 499 of the Act, commenced operation on 5 November 2011 and:
…applies to delegates performing functions or exercising powers under section 65 of the Migration Act… in relation to assessing the genuine temporary entrant criterion at Schedule 2 to the Migration Regulations 1994 for Student visa applications.[46]
[46] Court book page 94.
In addition, the interpretation section of Direction 53 defines
‘genuine temporary entrant criterion’ to include clause 572.223(1)(a) of the Regulations and a ‘student visa’ to mean a student (temporary)
(class TU) visa.
In 2016, a new Direction was issued, namely Ministerial Direction No. 69 issued pursuant to section 499 of the Act (“Direction 69”) which deals with assessing the genuine temporary entrant criterion for student visas. It is submitted on behalf of the applicant that in failing to have regard to Direction 69, the tribunal engaged in jurisdictional error in that it failed to have regard to the correct Ministerial Direction.
It was submitted on behalf of the Minister that Direction 69 commenced operation on 1 July 2016 and was limited to assessing the genuine temporary entrant criterion in clauses 500.212(a), 500.312(a) and 590.215(a) of Schedule 2 of the Regulations.[47]
[47] Ministerial Direction No. 69 issued under Part 1, section 499 of the Migration Act 1958 (Cth).
It was further submitted that at the time that the applicants applied for a student visa, there was no subclass 500 to 559 nor was there a subclass 581 to 599 within the Regulations. Rather, the applicants’ visa application related to subclass 572 - Vocational Education and Training Sector, to which Direction 53 applied.
Other than referring to a more recent Ministerial Direction made pursuant to section 499 of the Act, the applicant has failed to demonstrate how Direction 69 is said to have applied to her claim.
In the absence of any other basis, the court must and does conclude that the tribunal did apply the relevant Ministerial Direction.
The applicant has failed to make out this ground of review.
Conclusion
As none of the applicant’s grounds has been made out, the application should be dismissed with costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 21 September 2018
0
4
4