Brahmbhatt v Minister for Immigration

[2018] FCCA 3636

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRAHMBHATT v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3636

Catchwords:
MIGRATION – Application for judicial review – Student (Temporary) (Class TU) visa – whether jurisdictional error – whether failure to afford procedural fairness – no error apparent – no lack of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: NAIMISH BIPINCHANDRA BRAHMBHATT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1413 of 2016

Judgment of: Judge McNab

Hearing date: 30 October 2018

Date of Last Submission: 30 October 2018

Delivered at: Melbourne

Delivered on: 30 October 2018

REPRESENTATION

The Applicant appearing in person

Solicitors for the Respondent: Ms S Nyabally of the Australian Government Solicitor

ORDERS

1. The application filed 4 July 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1413 of 2016

NAIMISH BIPINCHANDRA BRAHMBHATT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. By an application filed on 4 July 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 3 June 2016. By that decision, the Tribunal affirmed a decision made by a delegate of the Second Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa (‘the Visa’).

Grounds of review

1. The Applicant’s grounds of review are set out in a document headed ‘Statement of Affidavit in Support of My Federal Appeal’ filed

   
   

   4 July 2016. The grounds of review appear to be essentially points where he disagrees with the decision of the Tribunal. For example, the Applicant’s affidavit (replicated exactly) states that:

   I completely do not agree where the members believes that I have lack of interest in academic progression as so far I completed Certificate III in printing and Graphic arts, Certificate IV and Diploma in business, Diploma and Advanced diploma of accounting with Australian Learning, Training and Education Centre followed by Diploma of Management from Harward international college which shows that I been progressed.

   I also disagree with the member’s objection to study at the same level and sector as I do not believe that it is not fair to stop me from studying at the same level as many international students are doing then I should not I given an opportunity to do courses at the same level.

2. The Applicant has not identified any failure by the Tribunal to consider claims, or where it failed to undertake its statutory function. 

Background

1. On 30 December 2014, the Applicant applied to the Department of Immigration and Border Protection for the visa.

2. On 10 February 2015, the delegate refused to grant the visa because the Applicant did not satisfy the criterion in clause 572.223(1)(a) of sch 2 to the Migration Regulations 1994 (Cth) (‘Regulations’). Clause 572.223(1)(a) provides that an applicant may be eligible for a Visa where:

   1.The Minister is 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

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

   (iv)    any other relevant matter…

3. On 2 March 2015, the Applicant applied to the (then) Migration Review Tribunal for review of the delegate’s decision.

4. On 9 March, the Applicant appeared before the Tribunal to give evidence and present arguments. He was represented by his registered migration agent, who also attended the hearing. The representative also made post-hearing submissions.

5. On 3 June 2016, the Tribunal affirmed the decision not to grant the Visa on the basis the applicant did not satisfy the requirements of clause 572.223(1)(a) of sch 2 to the Regulations.

Decision of the tribunal

1. The Tribunal, in its decision, set out the history of the Applicant’s visa applications and summarised the statements and submissions made in support of his application, in particular, at [11], [21] and [23].[1] At [11] of the Tribunal’s decision, the Tribunal outlined the Applicant’s education history in Australia. The Tribunal stated:

   The Applicant arrived in Australia on 31 January 2009 and has completed the following courses: Certificate IV in Spoken and Written English, Certificate III in Printing and Graphic Arts, Certificate IV and Diploma of Business, Diploma and Advanced Diploma of Accounting, Diploma of Management and general English course. These were to be followed by a Diploma and Advanced Diploma of Marketing, but these courses were not completed. The current application relates to a Certificate IV, a Diploma and an Advanced Diploma in Marketing. The delegate noted that the applicant’s previous enrolments in an Advanced Diploma of Management and the Diploma and Advanced Diploma of Marketing were cancelled for non-payment of fees.[2]

   [1] Court Book 194.

   [2] Ibid.

2. At [12] to [14] the Tribunal summarised the evidence that the Applicant gave before the it, including that:

   (a)the Applicant had been awarded a Bachelor of Commerce in India before coming to Australia;

   (b)the Applicant came to Australia to study graphic design, and that he did not do this course in India because the course was cheaper in Australia and his two brothers were here; and

   (c)the Applicant would like to do his master’s degree at Holmes Institute, but would do so only if he had enough money.[3]

   [3] Ibid.

3. At [14] the Tribunal recorded that:

   The Tribunal queried whether he would be able to proceed from an advanced diploma to a master’s degree. He claimed he could enrol with his bachelor’s degree. When asked why he did not do this in the first place, he responded that it was too expensive. The Tribunal noted that the nine courses he had undertaken since his arrival would also have been expensive. He claimed that his brothers were more settled now and could provide him with financial assistance.[4]

   [4] Ibid.

4. The Applicant, in a written statement to the Tribunal, said that he had undertaken a marketing course in order to assist him in his anticipated career in agriculture in India. He stated:

   As I hope to enter into an ancient and vast industry of my country, I need to have an additional skills to market myself, hence I changed my study stream but was sure to complete the marketing course.[5]

   [5] Ibid 104.

5. At [15] he gave evidence before the Tribunal that he wished to study in Australia in order to benefit his career and future in agriculture and enhance his employment prospects in India. He said that he could now afford an MBA because he was working hard and his brothers are in a better situation and can help him financially, as can his father, who is retired and can access superannuation funds and retirement money.[6]

   [6] Ibid 195 [19].

6. At [14], the Tribunal made reference to an observation made to the Applicant:

   The Tribunal observed that the Applicant appeared to have no intention of returning to India. That he had done several courses of questionable value to his future and in which many subjects were duplicated. He said he would return to India if he did not have the money to enrol in a Master’s degree.[7]

   [7] Ibid 194.

7. At [24], the Tribunal considered whether the Applicant intended to genuinely stay in Australia temporarily, and at [25] concluded that it was not satisfied that he genuinely intended to stay in Australia temporarily.[8] In that regard, the Tribunal considered the applicant’s circumstances, from [26] to [32] of its decision.[9] At [28] the Tribunal noted:

   In relation to the value of his current courses to his future, as noted above, before coming to Australia, the Applicant had completed a Master’s degree. Each course in which he has been enrolled in Australia has been below this level. He has not advanced beyond an Advanced Diploma level qualification since he arrived in 2009, and on occasion he has reverted to a Certificate IV level course. As addressed with the Applicant, the subjects in several of his courses he has undertaken have overlapped and, in terms of academic progress, he has regressed. In this context, the Tribunal considers that the courses do not appear to have been of any career benefit to him. He provided conflicting evidence as to his commencement of his current Advanced Diploma of Marketing. He told the Tribunal that he commenced studying it in September 2015, but that it had been extended, and this was the explanation for the new COE with a commencement date of March 2016. Later correspondence from his education provider confirmed that he had commenced it in March 2016, not September 2015.[10]

   [8] Ibid 196.

   [9] Ibid 196 – 197.

   [10] Ibid 196.

8. The Tribunal considered the Applicant’s immigration history and noted that since his arrival in Australia in January 2009, the Applicant had held student visas or bridging visas for over seven years. At [35], the Tribunal found that his evidence in relation to his reasons for undertaking so many lower level courses and failing to progress academically, unconvincing, and, at times, implausible.[11] The Tribunal concluded that the Applicant was utilising the student visa program to maintain residency in Australia. 

   [11] Ibid 197.

9. At [39] the Tribunal concluded that the Applicant was using the student visa program primarily to maintain residence in Australia and to circumvent the intentions of the student visa migration program.[12]

   [12] Ibid 198.

Consideration

1. In my view, there is no jurisdictional error apparent in the decision of the Tribunal. It has considered in detail the applicant’s evidence before the Tribunal and submissions made on his behalf by his representative. 

2. There is no indication there has been any failure to accord procedural fairness, and the terms of the decision do not indicate that there is any irrational or illogical thought processes being applied by the decision-maker. 

Conclusion

1. For these reasons, the Court will dismiss the application.

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

Associate: 

Date:  7 December 2018