Champaneri v Minister for Immigration

[2017] FCCA 720

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAMPANERI & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 720

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – show cause hearing – applicant found not to intend to stay in Australia temporarily – no arguable jurisdictional error discerned.

Legislation:
Migration Act 1958, ss.360, 425(1), 499
Migration Regulations 1994, cl.572.223(1)(a)

First Applicant: RITABEN RAJIVKUMAR CHAMPANERI

Second Applicant: RAJIVKUMAR AMRUTLAL CHAMPANERI

Third Applicant: DHYEY RAJIVKUMAR CHAMPANERI
BY HIS LITIGATION GUARDIAN
RITABEN RAJIVKUMAR CHAMPANERI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1738 of 2016

Judgment of: Judge Riley

Hearing date: 15 March 2017

Date of last submission: 15 March 2017

Delivered at: Melbourne

Delivered on: 15 March 2017

REPRESENTATION

Advocate for the first applicant: In person

Solicitors for the first applicant: None

Advocate for second the applicant: In person

Solicitors for the second applicant: None

Advocate for the third applicant: First Applicant

Solicitors for the third applicant: None

Advocate for the first respondent: Nicola Johnson

Solicitors for the first respondent: Mills Oakley

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Mills Oakley

ORDERS

1. The application filed on 15 August 2016 and amended on 1 March 2017 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The first and second applicants pay the first respondent’s costs of the proceeding fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1738 of 2016

RITABEN RAJIVKUMAR CHAMPANERI

First Applicant

And

RAJIVKUMAR AMRUTLAL CHAMPANERI

Second Applicant

And

DHYEY RAJIVKUMAR CHAMPANERI

By his litigation guardian
RITABEN RAJIVKUMAR CHAMPANERI

Third 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 a show cause application in the context of an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister refusing the applicants Student (Temporary) (Class TU) visas. 

2. The first applicant is the wife of the second applicant.  They are the parents of the third applicant.  The first applicant was appointed as the litigation guardian of the third applicant by order of a registrar made on 1 February 2017.

3. The first applicant arrived in Australia on 29 May 2008 as the holder of a subclass 573 student visa.  She subsequently held three further student visas.  On 15 January 2015, she applied for a further subclass 572 student visa on the basis of her enrolment in a Certificate IV in commercial cookery.

4. The delegate refused the application on the basis that he was not satisfied that the first applicant intended to stay in Australia temporarily as a student. That meant that the applicants did not meet cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994, which required that:

   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 spouse of the applicant; and

   (iv)any other relevant matter …

5. Following the delegate’s decision, the applicants applied for review by the Tribunal. That application was lodged on 11 March 2015. A little over a year later, the Tribunal invited the applicant to a hearing on 17 May 2016. The hearing invitation enclosed a copy of Direction No. 53 made under s.499 of the Migration Act 1958 (“the Act”).  That direction concerned the assessment of whether a person was a genuine temporary entrant for a student visa.  The invitation also asked the applicants to provide a written statement addressing the temporary entrant criterion.

6. The applicants’ representative provided a response and additional documents on 16 May 2016.  The first and second applicants attended the hearing before the Tribunal on 17 May 2016 with their representative.

7. The Tribunal considered the matters required by Direction No. 53.  The Tribunal noted that, since 2008, the applicant had meandered from courses in hospitality and cookery to management to information technology, back to cookery, and most recently to an advanced diploma of business.  The Tribunal did not accept the first applicant’s explanation for abandoning cookery.  The Tribunal noted that at the end of the first applicant’s courses in 2015, the applicants did not return to India, but instead, sought to obtain new visas to remain in Australia.  That visa application proposed a course in commercial cookery and said that it would be the first applicant’s last course of study.

8. The delays in the Tribunal process meant that the applicant had completed her Certificate IV in commercial cookery before the application for review was considered by the Tribunal.  The Tribunal noted that, instead of the first applicant returning to India upon completion of her Certificate IV in commercial cookery, she enrolled in another course, being an advanced diploma of business.  The Tribunal noted that the first applicant claimed that the advanced diploma of business would assist her in her career aspiration of opening a restaurant in India.

9. However, the Tribunal considered that the first applicant’s advanced diploma of hospitality management, which the first applicant had already completed, was more specific and directed to the first applicant’s claimed aspiration of running a restaurant than the more general advanced diploma of business.  The Tribunal considered that the applicant had enrolled in the advanced diploma of business to support the grant of a student visa, rather than because it would appreciably assist the first applicant in her future career aspirations.

10. The Tribunal considered that the first applicant would have returned to India after completing her Certificate IV in commercial cookery if she had been a genuine temporary entrant for the purposes of study.  Consequently, the Tribunal affirmed the delegate’s decision.

11. The applicants filed an application for review in this court on 15 August 2016 and then filed an amended application on 1 March 2017.  The amended application has 19 grounds.  The first applicant told the court that it was prepared with the assistance of a lawyer.  However, the applicants were not assisted in court today by a lawyer.  The amended application lists a litany of jurisdictional errors.  However, the amended application contains no particulars.  The amended application does not, in any way, link the alleged jurisdictional errors with anything that the Tribunal, in this particular case, may have done or not done.

12. The first ground is that the Tribunal breached s.425(1) of the Act. That section applies to refugee claims. Consequently, it has no application to the present matter. Assuming that the applicants meant to refer to s.360 of the Act, there is no reason to believe that the Tribunal breached that section. The Tribunal conducted a hearing, at which the first and second applicants appeared and gave evidence, with the assistance of a representative. They were alerted to the relevant issue before the Tribunal by the delegate’s decision, as well as by the Tribunal’s hearing invitation letter. I am not satisfied this ground has any reasonable prospect of success.

13. The second ground is that the Tribunal considered irrelevant matters.  The applicants have not identified any irrelevant matters considered by the Tribunal, and I have been unable to discern any. 

14. The third ground is that the Tribunal failed to consider relevant matters.  The applicants have not identified any relevant matter that the Tribunal failed to consider, and I have been unable to discern any.

15. The fourth ground is that the Tribunal failed to consider and weigh the evidence presented by the applicants.  The applicants have not pointed to any evidence that the Tribunal failed to consider and weigh.  In any event, weight is generally a matter for the Tribunal.

16. The fifth ground is that the Tribunal summarily dismissed and discounted the evidence presented by the applicants.  The applicants have not identified any evidence that the Tribunal acted in that way.  It is true that the Tribunal rejected the first applicant’s explanation for moving away from her cookery studies.  However, I am unable to discern any jurisdictional error in the Tribunal’s conclusions in that regard.

17. The sixth ground is that the Tribunal misapplied the facts, law, regulations, policy and guidelines in deciding the applicants’ application.  The applicants have not pointed to any particular way in which this alleged error is said to have occurred.  I have been unable to discern any.

18. The seventh ground is that the Tribunal did not act in a way that was fair and just.  The applicants have not elaborated on this claim.  The Tribunal does appear to have conducted a fair hearing process. 

19. The eighth ground is that the Tribunal erred when it found that the evidence presented by the applicants did not satisfy the requirements of the legislation.  The Tribunal did reject the first applicant’s claim that she would return to India after completing her latest course, and, in that sense, the Tribunal found that the applicants did not satisfy the legislative requirement that the first applicant be a temporary entrant.  However, the applicants have not indicated how the Tribunal erred in a jurisdictional sense, and I am unable to discern any such error.

20. The ninth ground is that the Tribunal erred by making findings that were not open on the evidence.  The applicants have not provided any particulars of this ground.  It seems to me that the Tribunal’s findings were open on the evidence.

21. Ground 10 is that the Tribunal misconstrued or misapplied the applicable law or otherwise failed to ask itself the right question.  The applicants have not identified how the Tribunal is said to have made those errors.  I have been unable to discern any basis for any such errors. 

22. Ground 11 repeats ground 1.

23. Ground 12 repeats ground 7.

24. Ground 13 alleges that the Tribunal was biased.  The applicants have not pointed to any evidence or any indication in the Tribunal’s reasons for decision that supports this serious allegation.  I am unable to discern anything that suggests that the Tribunal might reasonably be suspected of having prejudged the application or in any other way have been biased.

25. Ground 14 is that the decision was unreasonable.  The applicants have not pointed to any particular circumstances in support of this ground.  It seems to me that the decision of the Tribunal was not unreasonable in the necessary sense.

26. Ground 15 is that the Tribunal failed to consider all of the applicants’ claims.  The applicants have not identified any claims that the Tribunal did not consider, and I have been unable to discern any. 

27. Ground 16 is that the Tribunal failed to give the applicants an opportunity to put forward all of their claims.  This ground is contrary to the facts of the case.  They are that the Tribunal invited the applicants to a hearing, after disclosing the relevant issues, the first and second applicants attended the hearing and gave evidence, and the applicants provided written submissions, via their agent, to the Tribunal.

28. Ground 17 is that the Tribunal failed to consider all of the applicants’ claims individually and in totality.  The applicants have not pointed to any way in which this ground could be made out.  I am unable to discern how it could be made out.

29. Ground 18 is that the Tribunal failed to give adequate reasons.  It seems to me that the Tribunal carefully and fully explained its reasoning process in this case. 

30. Ground 19 is that the Tribunal erred in law or fact in finding or holding that the applicant was not a genuine student or a genuine temporary entrant.  The applicants have not specified the nature of the alleged error.  I am unable to discern any such error.

31. In oral submissions today, the first applicant emphasised that she has done all of the courses that she came here to do.  She said that she has always attended class.  She said that, even after the Tribunal’s decision, she continued to study.  She said that she told the Tribunal that she intended to go back to India after she finished her studies.  She said that the Tribunal should have believed her, because she promised.

32. It was open to the Tribunal not to believe the first applicant’s assurances.  It was for the Tribunal to consider the merits of the matter, and the Tribunal appears to have done so without falling into jurisdictional error. 

33. I am not satisfied that the applicants have an arguable case.  Consequently, the application must be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     12 April 2017