CHERUPALLI v Minister for Immigration

[2016] FCCA 1407

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHERUPALLI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1407

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the applicant was afforded procedural fairness – whether the Tribunal failed to inform the applicant of an issue arising in relation to the decision under review – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, Sch.2, cl.572.223

Cases cited:
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: MADHAV CHERUPALLI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3223 of 2014

Judgment of: Judge Street

Hearing date: 9 June 2016

Date of Last Submission: 9 June 2016

Delivered at: Sydney

Delivered on: 9 June 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Solicitors for the First Respondent: Mr L Leerdam
DLA Piper

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3223 of 2014

MADHAV CHERUPALLI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 28 October 2014, affirming the decision of the delegate not to grant the applicant a Student Temporary (Class TU) visa.

2. The applicant is a citizen of India who initially arrived in Australia on 28 February 2009 on a student visa valid until 15 March 2011.  On 17 March 2011, a further student visa was granted, to 15 March 2014.  Within that period and until the date of the hearing, the applicant had left Australia on one occasion, from 28 April 2013 to 8 June 2013.

3. The applicant applied on 14 March 2014 for a Student Temporary (Class TU) visa. The delegate provided reasons on 24 April 2014 for refusing the visa and found that the applicant did not satisfy cl.572.223 of the Migration Regulations 1994, for the following reasons.

4. The delegate referred to a request sent by email in relation to having sufficient funds, referred to evidence provided in relation to those funds and said

   …you have only provided evidence of your sponsor’s funds equivalent to AUD$46,680.71

5. The delegate found that the applicant had not provided any evidence of the relationship between the applicant and the holder of the bank account, nor evidence as to how the applicant could access those funds in accordance with schedule 5A requirements and found that the applicant did not satisfy cl.572.223(2) for the grant of a visa.

6. The delegate also said that:

   The criteria in the subclass 572 regulations that you did not satisfy are set out at the end of this decision record.

7. At the end of the delegate’s decision is a heading, Criteria in the Migration Regulations Not Satisfied.

8. Under that heading, the delegate refers to reg.572.223(1):

   (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 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; and…

9. Under that heading, the delegate also referred to the financial capacity criteria that the applicant did not satisfy under cl.5A405. 

10. The applicant lodged an application for review on 9 May 2014. By letter dated 5 September 2014, the applicant was invited to attend a hearing to take place on 13 October 2014. That letter expressly referred to the need for the applicant to:

    …provide all documents you intend to rely on to establish that you meet the criteria for a visa.

11. The invitation also expressly referred to other documents, including:

    …an explanation of any gaps in your enrolment and any documentary evidence relevant to your explanation.

12. In response to that letter, the applicant’s legal representative, on 9 October 2014, provided a number of documents, relevantly including a statement by the applicant that purported to identify his intention to go back to India in the last two dot points of that statement.

13. Those last two dot points clearly went to the issue of whether the applicant intends genuinely to stay in Australia temporarily.  The applicant appeared, on 13 October 2014, before the Tribunal to give evidence and present arguments and was also represented by his migration agent.

14. The Tribunal referred to the adverse findings by the delegate, and the Tribunal raised with the applicant whether he met the requirements of cl.572.223(1)(a). The Tribunal said that issue is the issue referred to as whether the applicant intends genuinely to stay in Australia temporarily.

15. It is apparent from the transcript of the hearing before the Tribunal that whether the applicant intends to stay in Australia temporarily was a live issue in the hearing before the Tribunal.  The Tribunal expressly referred to concerns as to why the applicant was studying in Australia and whether the applicant was using it to maintain residence.

16. The Tribunal also identified that the last course the applicant completed was on 27 May 2012, more than two years prior to the hearing. The Tribunal identified that it raised with the applicant that the courses he had been enrolled in appeared to be marketing courses, which were inexpensive and with little educational progression, and it may lead the Tribunal to find that the applicant is using the student pathway to maintain residence in Australia.

17. The applicant responded that once he finished the marketing course, he wanted to return to India.  The Tribunal raised the issue of the period of time over which the applicant had been in Australia and that he had only left on one occasion and questioned the applicant as to whether he was a genuine student.

18. The Tribunal turned to the requirements of cl.572.223(1)(a) and, in particular, referred to the need to consider the criterion to which the Tribunal must have regard under direction 53. The Tribunal referred to that direction in regard to a number of specified factors, which the Tribunal set out as follows:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of the parents, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

19. The Tribunal also said that the direction indicates that the factors specified should not be used as a checklist but rather are intended to guide decision-makers to weigh up the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

20. The Tribunal said that, in making its decision, it had carefully considered the evidence that the applicant provided, including the applicant’s circumstances and whether he intends genuinely to stay in Australia temporarily as a student:

    …having regard to the factors specified in direction 53.

21. The Tribunal made reference to the fact that the applicant had not been enrolled in any course from October 2013 to July 2014 and that that was relevant to the consideration of whether the applicant was a genuine student.  The Tribunal found that the applicant was using the student visa program to maintain residence in Australia.

22. The Tribunal noted that the applicant’s parents and siblings were in India but found that the applicant was undertaking study in Australia as a pathway to maintain residence.  The Tribunal found that it was not satisfied the applicant is a genuine applicant for entry and stay as a student, because the Tribunal was not satisfied that the applicant intends to genuinely stay in Australia temporarily. The Tribunal made reference to having considered the evidence cumulatively.

23. The Tribunal found that it was not satisfied that the applicant was a genuine applicant for entry and stay as a student. The Tribunal was of the view that the student program was only being used by the applicant to maintain ongoing residence.

24. Accordingly, the Tribunal found that the applicant did not meet the criteria under cl.572.223(1)(a). The Tribunal found that, as the applicant did not meet an essential requirement of cl.572.223, the decision of the delegate should be affirmed.

25. The grounds of the application are as follows:

    1. The Tribunal erred by failing to provide the Applicant with procedural fairness in the form of a real opportunity to attend a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    Particulars

    The Tribunal did not, at any time before the hearing, give any indication to the Applicant that the question of whether he genuinely intended to stay in Australia temporarily was an issue arising in relation to the decision under review. In respect of that issue, the Tribunal failed to comply with ss 360(1) and 360A(4) of the Migration Act 1958 and denied the Applicant procedural fairness by requiring him to address orally at the hearing without reasonable notice, issues that had not previously been raised either by the delegate or the Tribunal.

    2. The Tribunal’s interpretation of the criterion in cl 572.223(1)(a) was unreasonable and failed to give real consideration to all of the factors set out in the relevant Ministerial Direction.

    Particulars

    The Tribunal did not consider the entirety of the factors set out in Direction 53 made on 3 November 2011 pursuant to s 499 of the Act.

26. Mr Jones, solicitor on behalf of the applicant, sought to argue in relation to ground 1 that the applicant did not have a genuine hearing and the issue of whether the applicant was a genuine temporary entrant was not squarely raised.

27. I reject that submission.  It is patent from the decision of the delegate that this was a basis upon which the applicant’s application before the delegate had failed.  This is not a case of the kind in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. Further, it is apparent the applicant’s representative fully understood the need to provide material relating to whether the applicant was a genuine temporary entrant, and did so.

28. Further, it is apparent in the course of the transcript of the hearing that the Tribunal raised as a live issue with the applicant whether he was a genuine temporary entrant.  Ground 1 has no substance.  Ground 1 fails to make out any jurisdictional error.

29. In relation to ground 2, Mr Jones, the solicitor for the applicant, sought to argue that the Tribunal, by implication in its reasoning, had not had proper regard as required to Direction 53.  There is no substance in that proposition.

30. It is manifest from the Tribunal’s reasons that it had regard to and complied with its statutory obligation in relation to Direction 53.  This is not a case where there is any basis for a proposition, based on the reasoning of the Tribunal, that it has not had proper regard to the direction.  Ground 2 fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2016