Bavuri v Minister for Immigration

[2018] FCCA 2358

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAVURI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2358

Catchwords:
MIGRATION – Application for judicial review – student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994, cl.572.233(1)(a)

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Applicant: BALAJI BADRINATH BAVURI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 529 of 2017

Judgment of: Judge Riethmuller

Hearing date: 3 July 2018

Date of Last Submission: 3 July 2018

Delivered at: Melbourne

Delivered on: 3 July 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application in a case be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $1,945.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 529 of 2017

BALAJI BADRINATH BAVURI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application to set aside orders made in this Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) as a result of the applicant failing to attend at court on 20 June 2018. The orders dismissing the application were made pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001, formally dismissing the matter without hearing.

2. The applicant’s current application in a case was filed on 26 June 2018.  The applicant supports his application with an affidavit explaining that his reason for non-attendance on 20 June 2018 was that he was moving house.  The applicant says that a door jammed and he was unable to exit the house in time to get to court.  The applicant says that he called the registry that day, but was advised that the application had already been dismissed.  The applicant makes a submission that there is no significant prejudice to the Minister if the dismissal decision is set aside.

3. Whilst it is far from a compelling reason to explain his absence, it seems to me that the more significant question in a case such as this is to assess whether or not the applicant has arguable grounds for judicial review.  I turn then to consider those issues.

4. The applicant seeks judicial review of a decision of the Tribunal made 16 February 2017.  That decision affirmed a decision of the delegate of the Minister not to grant him a Student (Temporary) (Class TU) visa.

5. The applicant first came to Australia in August 2013 on a student visa. In August 2015, he applied for a further visa and in October 2015 a delegate refused to grant the second visa because the delegate concluded he had not satisfied cl.572.233(1)(a) of Schedule 2 to the Migration Regulations 1994; that is, an intention to genuinely stay in Australia only temporarily.

6. The applicant applied to the Tribunal on 12 November 2015 for a review of this decision and had a hearing orally in which he intended to present arguments and give evidence on 14 February 2017.  The Tribunal advised the applicant that the major issue in the review was whether or not he met cl.572.223, that is, whether he was a genuine applicant for entry and stay as a student.  The applicant was also made aware of Direction No.53 which the Tribunal had regard to in determining these issues.  The Tribunal affirmed the delegate’s decision.

The Tribunal’s Decision

1. The evidence of the applicant before the Tribunal was that after graduating with a Bachelor of Information Technology from a university in India, he came to Australia to study a Master’s degree in Information Technology. He arrived in August 2013. The applicant said that he was progressing well, but the death of his grandfather caused him to suffer “depression, loneliness and helplessness” and resulted in his failure in his first semester of studies: see [20]. The applicant gave evidence that his enrolment was cancelled and further evidence that he was unable to enrol in other master’s programs due to his performance in the first program in which he was enrolled.

2. The applicant said that after receiving what he, on reflection, thinks to be poor advice, he enrolled in an English course in 2014 and a VET Diploma of Business in 2014. The applicant was not aware that these courses seemed to be in breach of the conditions of his visa which provided for him to come to study a master’s degree. The Tribunal accepted his evidence in this regard: see [24].

3. The Tribunal was concerned that the applicant, already being a university graduate prior to arriving in Australia, had chosen to study for qualifications at a level below his university accomplishments.  The Tribunal also considered the effect upon him of the death of his grandfather and noted that he had a choice of how to proceed and that it was not incumbent on him to persevere in Australia if his health was such, but that he had decided to remain in Australia.

4. The applicant’s evidence in respect of his enrolment in the Diploma of Business was outlined at [34] to [36] of the decision where the Tribunal said:

   34. He told the Tribunal that by April 2015 he had failed in the diploma of business, and did not have any enrolment for the remainder of the visa period to 30 August 2015.

   35. He said he was hit by a car in June 2015 and spend four days in hospital. He also conceded that at any rate he was not studying by that time.

   36. He applied for the visa in August 2015 and obtained enrolment in the diploma of business again.  He said he did not start classes. He never completed the diploma of business despite it being the only course he proposed when he applied for the visa, despite it being at the more manageable VET sector level, and despite him having knowledge enough to have already passed 6 out of 8 units.

5. The Tribunal noted that the applicant’s enrolment was cancelled in the lead-up to the Tribunal hearing and that the applicant had no enrolment in a course.  The applicant said that he did not know that, but the Tribunal found at paragraph 41:

   41. …the applicant has demonstrated a lack of interest in study entitlements which suggests a lack of interest in the study itself which casts doubt on the value of the courses proposed to the applicant’s future”.

6. The applicant told the Tribunal he had been working as a cook and proposed to complete courses in commercial cookery and hospitality management.  The applicant provided a certificate of enrolment dated

   
   

   8 February 2017 which it seems, was obtained shortly after receiving the Tribunal’s invitation to appear before it. The Tribunal took the view that he appeared to have obtained the enrolment to be able to provide a certificate enrolment because of the Tribunal’s request of him to do so: see [45].

7. The applicant explained to the Tribunal that he was now pursuing a career as a chef and wished to open his own restaurant.  The Tribunal said:

   52. Given his history of not pursuing a meaningful line of work based on qualifications he already has, and a history of abandoned the career plans he has proffered to the Department, the tribunal does not have satisfaction that his latest proposed career plan and study are genuine or enduring.

8. The Tribunal believed that the applicant only obtained his enrolment that he held at the time of the hearing because the Tribunal had sought the enrolment documents. 

9. The applicant gave evidence that his family remains in India, but that he was scared to face his family following his poor performance in his studies in Australia.  The Tribunal found that the applicant had managed living in Australia and did not consider that his personal connections overseas to be a distinct incentive for him to cease residence in Australia. 

10. Ultimately, the Tribunal found that the applicant did not wish to return to India and does not have a plan to return to India or live elsewhere outside of Australia. The Tribunal was not satisfied that “the applicant had any motivation to acquire skills, knowledge and qualifications in Australia and then to make his departure from Australia”: see [64].

11. The Tribunal concluded:

    65. Instead, the tribunal finds as suggested that the applicant seeks to prolong his stay in Australia for as long as he can, and will only expend money and effort in obtaining enrolment when he is requested to by the government, and when the grant of a further visa depends on that enrolment.

    66. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters is 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).

The Applicant’s Grounds

1. The applicant’s grounds for judicial review as are set out in his application are relevantly as follows:

   4. Oral evidence has been presented by me to support the claims that I have been a genuine student visa entrant and during my studies I have been mentally unstable for some time after my grandfather’s death and sought medical help which interrupted my studies and such supporting evidence from the medical person has not been considered by the Hon Tribunal member in giving the decision. The tribunal erred in failing to place weight on the legal arguments in favour of the Applicant being myself including applying the GTE criterion 572.223 cl 572.233(1). Further, the tribunal showed apprehended bias in applying S 499 of the Migration Act 1598 in the tribunal matter.

   5. The hearing of this matter was on the 14^th February 2017.  On the 13^th February 2017, I sent a detailed email with 48 attachments to the tribunal by way of supporting documents and submissions to be considered by the Hon Tribunal member.  The email bounced back. At the hearing on the 14^th February 2017 I attended the tribunal with the hard copies of all 48 documents and presented same to the tribunal in person.

   6. After the tribunal hearing the Hon Tribunal Member gave me 24 hours to forward the said documents to the tribunal by email.

   7. On the 15^th February 2017 as requested by the Hon Tribunal member I sent all 48 documents by way of 7 emails to the tribunal for consideration.

   8. I have attached the 7 emails to my Affidavit.

   9. The Hon Tribunal Members decision dated the 16^th February 2017 there is no mention of the documents that I provided on the 15^th February 2017 by email or its contents.

   10. Accordingly, the AAT failed to give consideration to the evidence as a matter of law.

   11. The AAT erred in affirming the delegate’s decision.

2. On 13 September 2017, a Registrar made orders for the applicant to file further material by 27 October 2017.  Whilst the applicant did not comply with this timeline, he did make written submissions on 19 June 2018 at 4.20 pm, the day before the last scheduled hearing, which identified further grounds of complaint as follows:

   ·    The Tribunal placed too much weight on Direction 53;

   ·    The Tribunal did not consider the applicant’s “follow-up 7 emails enclosing 48 documents”; and

   ·    The Tribunal failed to give weight to the applicant’s grandfather passing.

3. Reading his application and further submissions as a whole, it appears to me that, ultimately, the applicant has identified five separate issues which should be considered as though they were particularised grounds.  I therefore turn to each of these issues.

Issue 1

1. The first issue is whether or not the Tribunal gave appropriate consideration to the applicant’s evidence concerning his grandfather passing away and the medical evidence from the psychologist supporting this claim. 

2. The Tribunal discussed these issues in length at [29] to [33] of their decision.  In [20] of the decision, the Tribunal considered the psychologist’s evidence that was placed before it. 

3. In the hearing before me, the applicant extended the argument in this regard to one of not being able to have an opportunity to speak at length to the Tribunal and to set out his narrative because he was asked a number of questions by the Tribunal.  There is no transcript before me and the applicant was not able to give a specific example of being cut off, or where the Tribunal’s conduct in questioning him led to him being prevented from putting forward a part of his case.  I note that in the Court Book there are lengthy written submissions that he made to the Tribunal: see pp.113 to 122. 

4. In the absence of a transcript, there is no evidence of the applicant not receiving a reasonable opportunity to be heard, and the Court Book demonstrates that there was a relatively lengthy hearing from 4.40 pm to 6.16 pm on the day of the hearing: see Court Book pp.158 to 159.  The case is therefore one without evidence in this regard.  I am also of the view that the applicant’s inability to articulate some specific example or complaint with respect to the hearing rather than the general claim does not result in a sufficient being raised to justify this ground and continuing to a hearing, or an order for the Minister to produce the transcript in the context of this case. 

5. I therefore conclude that the applicant does not have an arguable ground with respect to Issue 1.

Issue 2

1. The second issue is a complaint about the Tribunal looking at cl.572.223 of the Regulations as set out in his application.  The applicant, when asked to make submissions about this, spoke about the fact that he commenced with a different category of visa, although it seems that the Regulation is the appropriate category for the visa that the Tribunal were considering.  I see no error in the Tribunal turning to this Regulation as it was the key piece of legislation that governed the determination that had to be made. 

2. It was appropriate that the Tribunal note the terms of it as they did at [11] and go on to consider its application.  I also note (as discussed in Issue 5 below) that they had regard to Direction No.53 in assessing this criteria as they set out at [12] and [13] of the decision.  On the submissions before me today I see no arguable case by the applicant with respect to Issue 2. 

Issue 3

1. Issue 3 is an allegation that the conduct of the process was such as to lead to a reasonable apprehension of bias on the part of the Tribunal member. 

2. The applicant was unable to give any particulars of facts or circumstances other than two matters: firstly, he says that he wasn’t given an appropriate chance to talk at the hearing. For the reasons discussed above I am not persuaded that this shows a basis for concluding he didn’t have a hearing or that there could be a reasonable apprehension of bias.  Secondly, that he had attempted to email material to the Tribunal, but it had not reached the Tribunal.  However, the member accepted, on the day of the hearing, physical copies of that material and invited the applicant to email it again by separate smaller emails which he did.  It appears from the face of the record, as discussed with respect to Issue 4 below, that the Tribunal did have regard to each of those documents. 

3. In the circumstances of this case I’m not persuaded that the applicant has established an arguable ground with respect to Issue 3.

Issue 4

1. The fourth issue is a complaint that the documents that the applicant had attempted to email the Tribunal before the hearing were not considered by the Tribunal.  Certainly, there were technical problems as a result of the size of the email that the applicant attempted to send which prevented it reaching the Tribunal.  However, on a practical level this did not impede the Tribunal from considering those documents.  They did receive in evidence physical copies from the applicant and they were also sent emails of electronic copies after the hearing, albeit that it was a number of emails so as to reduce the overall size of each email. 

2. It is clear from the references in the Tribunal’s decision that careful regard has been had to these documents. For example, there are references in [48], [38], [62] and [43] to [44] of the Tribunal’s decision to several of the documents that were forwarded to them. 

3. In the circumstances, I am not persuaded that this issue is one by which the applicant has established an arguable ground for judicial review. 

Issue 5

1. The fifth issue relates to the Tribunal’s reference to Directions No.53, the complaint being that the Tribunal appears to have given excessive consideration to Direction No.53. 

2. The Tribunal were clearly obliged to have regard to Direction No.53, as the Tribunal member noted at [12]. The Tribunal reminded itself that the Direction was not to be used as a checklist, but intended to guide decision-makers in weighing up the circumstances as a whole: see [13]. The Tribunal did not adopt a checklist approach to Direction No.53. It is clear from the reasoning of the Tribunal that it did not tally particular findings about the Direction, but rather used it as a guide to ensure that it considered various aspects of the applicant’s circumstances that were appropriate.

3. In these circumstances, I’m not satisfied that the applicant has established an arguable case within the ambit of Issue 5 as he has raised it. 

Conclusion

1. Ultimately, it seems to me that the applicant’s claims are for merits review, that is, that he is not satisfied with the ultimate decision of the Tribunal.  The applicant has not been able to articulate any particular legal error or basis for judicial review that is arguable before this court. 

2. In these circumstances, where the applicant has not been able to establish an arguable case, there appears to me to be no purpose to be served in reinstating the proceedings.  I therefore dismiss the application.

Costs

1. In these matters, costs ordinarily follow the event, and I see no reason why costs shouldn’t follow the event in this case.  The costs sought by the Minister appear to me to be reasonable having regard to the scale applicable for general federal law matters in this court and the migration scale.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date:  23 August 2018