Cherupalli v Minister for Immigration and Border Protection
[2016] FCA 1361
•16 November 2016
FEDERAL COURT OF AUSTRALIA
Cherupalli v Minister for Immigration and Border Protection [2016] FCA 1361
Appeal from: Cherupalli v Minister for Immigration & Anor [2016] FCCA 1407 File number: NSD 1047 of 2016 Judge: DOWSETT J Date of judgment: 16 November 2016 Catchwords: MIGRATION – student temporary (class TU) visa – whether the Administrative Appeals Tribunal misconstrued reg 572.223 of the Migration Regulations 1994 (Cth) – whether visa applicant is genuine student or the student visa is being used to maintain ongoing residence Legislation: Migration Act 1958 (Cth) s 65, 368, 499
Migration Regulations 1994 (Cth) reg 572.223
Date of hearing: 31 October 2016 Date of last submissions: 1 November 2016 (Respondent)
2 November 2016 (Appellant)Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Appellant: Mr L Boccabella Solicitor for the Appellant: Richard Timpson Solicitors and Migration Agents Pty Ltd Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs ORDERS
NSD 1047 of 2016 BETWEEN: MADHAV CHERUPALLI
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
16 NOVEMBER 2016
THE COURT ORDERS THAT:
1.the appeal be dismissed;
2.the appellant pay the respondents’ costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWSETT J:
This is an appeal from a decision of a Judge of the Federal Circuit Court. His Honour refused an application for declaratory relief and the issue of constitutional writs directed to the Minister for Immigration and Border Protection (the “Minister”) and the Administrative Appeals Tribunal (the “Tribunal”). The Tribunal has filed a submitting appearance.
The appellant is a citizen of India. He first arrived in Australia on 28 February 2009 on a student visa. It was valid until 15 March 2011. On 17 March 2011, a further student visa was granted. It expired on 15 March 2014. Since arriving in Australia the appellant has left Australia on one occasion, from 28 April 2013 until 8 June 2013.
On 14 March 2014 the appellant applied for a student temporary (class TU) visa. On 24 April 2014 the Minister’s delegate refused the visa, finding that the appellant did not satisfy reg 572.223 of the Migration Regulations 1994 (Cth) (the “Regulations”). That clause provided that such a visa would be granted in the following circumstances:
(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 spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii)any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity.
The Tribunal noted that the appellant:
·between 2009 and 10 June 2011 successfully completed certificates II, III and IV in business and a diploma of management;
·between 10 October 2011 and 27 May 2012 successfully completed certificate III in business administration;
·has since been enrolled five times for certificate IV in small business management, but has not completed it;
·in April 2013 travelled to India for sinus surgery; and
·was granted leave from his college for the period from April 2013 to October 2013.
In connection with the present proceedings, the appellant had enrolled to undertake a course leading to the award of a certificate IV in small business management, a diploma of marketing and an advanced diploma of marketing. It seems that the appropriate visa was a “subclass TU 572” visa. Pursuant to reg 572.223(2), a requirement for such a visa was that the appellant had access to a sufficient amount of money to cover his expenses, including course fees, living costs and travel costs. The Minister’s delegate found that the appellant did not satisfy this requirement.
The appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal disposed of the matter on a different basis. It found that the appellant did not satisfy the requirements of reg 572.223(1). The appellant applied to the Federal Circuit Court for declaratory relief and constitutional writs. The grounds for review were:
·that he had been denied procedural fairness in that he was not advised, before the Tribunal hearing, that there was a question as to whether he genuinely intended to remain only temporarily in Australia; and
·that the Tribunal’s interpretation of reg 572.223(1)(a) was unreasonable and failed to give real consideration to all of the factors set out in the relevant Ministerial Direction (“Direction 53”).
The primary Judge found that the appellant had not been denied procedural fairness, and that there was no substance in the assertion that the Tribunal had failed to give real consideration to all of the factors set out in Direction 53. His Honour did not identify the submissions advanced in support of the second ground. Nor did his Honour deal with discrete submissions on this aspect of the case. However, a perusal of the Tribunal’s reasons suggests that it considered the relevant aspects of Direction 53 and took them into account. In any event, as appears below, on appeal, the appellant’s case, as conducted at the hearing, was quite limited and focussed upon the Tribunal’s understanding of reg 572.223. The current grounds of appeal are as follows:
1.The tribunal erred by failing to comply with s 360 and s 357A(3) of the Migration Act 1958 by failing to give the applicant sufficient notice of raising an issue which was not the basis of the refusal of the primary decision by the delegate;
2.The Federal Circuit Court by failing to determine the tribunal had committed the error referred to in the previous paragraph;
3.The tribunal failed to properly expose its reasons for decision and/or failed to fully comply with s 368 of the Migration Act 1958 and the Federal Circuit Court erred by relying on the reasons of the tribunal;
4.The tribunal's decision was an improper exercise of power in that it did not give a proper genuine and realistic consideration of the merits of the appellant's case and hence the Federal Circuit Court erred by relying on the improper decision of the tribunal;
5.The tribunal failed to properly expose its reasons for decision and/or failed to fully comply with s 368 of the Migration Act 1958 and hence the Federal Circuit Court erred by relying on the improper reasons of the tribunal.
6.The Federal Circuit Court erred by misunderstanding and/or misapplying and/or not applying the principles of reasonableness and ought to have found that the tribunal's decision was unreasonable;
7.The decision of the tribunal was otherwise wrong in law and the hence the Federal Circuit Court erred by relying on the improper decision of the tribunal;
In grounds 3 and 5, the appellant alleges failure to comply with the requirements of s 368 of the Migration Act 1958 (Cth) (the “Migration Act”). That section deals with the requirement that the Tribunal make a written statement, dealing with specified matters. At the hearing of the appeal, the appellant seemed to submit with respect to s 368, only that in the absence of any finding as to a particular fact in the reasons, it may be inferred that the fact was not treated as material to the decision. The appellant then submitted, in his written outline at para 61:
There may have been various factual findings that the Tribunal could have made from which an inference could have been drawn that the appellant was not genuine. Any findings it did make was clouded by this misinterpretation of clause 572.223(1)(a) of the Regulations that it was somehow legally unacceptable for a person to lawfully renew a student visa in order to ‘maintain residence’. Yet maintaining residence is exactly what a genuine student has to do, i.e. get reliable medium to long term accommodation for the duration of one’s stay in Australia.
I do not understand this submission to assert any failure to comply with s 368. Before considering the grounds of appeal, I should say something about Direction 53. The Direction was issued pursuant to s 499 of the Migration Act which provides:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A)For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
(3)The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.
(4) Subsection (1) does not limit subsection 496(1A).
Direction 53 is headed “Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications”. In the preamble it is said that a successful applicant for such a visa will be both a genuine temporary entrant and a genuine student. Relevant parts of the Direction include the following:
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.
...
9.b. The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country.
...
11.a. The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties.
b. Evidence that the Student visa program is being used to circumvent the intentions of the migration program.
c. Whether the Student visa is being used to maintain ongoing residence.
d. Whether the primary and secondary applicant(s) have entered into a relationship of concern for Student visa purposes. Where it has been determined that an applicant and dependant have contrived their relationship for Student visa purposes, the decision maker can find that both applicants do not satisfy the genuine temporary entrant criterion.
e. The applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant could be expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
…
12.a. Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.
b. Relevance of the course to the student’s past or proposed future employment either in their home country or a third country.
13. An applicant’s immigration history refers both to their visa and travel history.
…
14. a. Previous visa applications for Australia or other countries, including:
i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which they were refused.
…
b. Previous travels to Australia or other countries, including:
…
iii. the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification.
...
16.Decision makers must also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
Clearly, the matters addressed in paras 8, 11(c) and 14(b) are to be treated as factors which are inconsistent with the relevant applicant’s being “genuine”.
At [26]-[35] the Tribunal gave its reasons for concluding that it was not satisfied that the appellant was a genuine applicant for entry and stay, as a student, and that the student programme was “only being used to maintain ongoing residence”. The reasoning in support of this finding depended upon:
·the appellant’s history of undertaking educational courses in Australia;
·in more recent years the fact that he was not studying, although for a period of time, as the Tribunal accepted, he was incapacitated;
·his apparent lack of familiarity with the content of the course which he was to undertake; and
·his inability to explain, other than in very general language how the course would assist him in his proposed business venture.
The Tribunal also took into account the fact that he had close family ties in India, a consideration which presumably was favourable to his case.
As I understand it, the appellant expressly abandoned grounds 1 and 2. Grounds 3 and 5 seem to be virtually identical. The ground in question was addressed only in the peripheral way outlined above. Grounds 4 and 6 were not pursued. Ground 7 is plainly not a ground at all. The appellant’s submission was, in effect, that the Tribunal misconstrued reg 572.223(1), and so failed to decide the case in accordance with law. This submission encompassed the following propositions:
1.the Migration Act and the Regulations permit a person to renew a student visa while on-shore;
2.there is no limit upon the number of student visas for which a person may apply;
3.overseas students are not subsidised by the public purse and are full fee paying students;
4.as detailed in the Knight Report, the overseas student sector is a substantial industry making a substantial contribution to the Australian economy;
5.there is a thorough regime available to the Minister to cancel a student visa if the person is breaching the terms of that visa;
6.no steps have ever been initiated to cancel any student visa held by the appellant;
7.essential to the Tribunal’s decision was its conclusion that the appellant was somehow seeking to “maintain residence” in Australia in a way that was unlawful: yet maintaining residence under the legal definition of that term is what all students do;
8.the Tribunal simply misinterpreted reg 572.223(1)(a) by importing some notion into the definition of “genuine” that a person could not “maintain residence” in Australia; and
9.the Tribunal’s pivotal finding on “maintain residence” inevitably coloured the whole review.
Only propositions 1, 2, 7, 8 and 9 seem in any way relevant.
The appellant correctly points out that where a visa applicant satisfies the prescribed criteria, the Minister must issue the relevant visa. See s 65 of the Migration Act. The appellant then submits that:
·the legislative and regulatory scheme could have limited the number of applications which could be made for a student (temporary) (class TU) subclass 572 visa but did not do so;
·the “pivotal” sentence in the Tribunal’s reasons is “... however for the reasons outlined above [the Tribunal] is of the view that he is undertaking study in Australia as a pathway to maintain residence”;
·there is an extensive and comprehensive visa cancellation regime which would detect any illegal conduct;
·if the appellant was in fact, acting illegally, his visa could have been cancelled;
·all that can be said about the appellant is that he was positioning himself to remain in Australia, holding sequential temporary visas; and
·if such conduct was unlawful, the Regulations could have been amended to prevent such conduct.
Paragraphs 30‑35 of the appellant’s outline are irrelevant. The appellant then draws attention to the “loose” use by the Tribunal of the word “residence”, suggesting that it may have been used in a way which departs from the way in which it is used in the Migration Act and Regulations. The significance of this proposition is not entirely clear. Regulation 572.223 seems carefully to avoid referring to residence, rather using the expression “stay in Australia” or “stay” as a noun or verb. However Direction 53 uses the terms “reside” and “residence” in a number of places. At para 8 the Direction requires that weight be given to circumstances which indicate that an applicant’s purpose in seeking a visa is maintaining residence in Australia. In paras 11(c) and 14(b)(iii) there are references to use of the visa to maintain ongoing residence. The Tribunal’s use of the term reflects the usage in Direction 53.
The appellant then submits that the Tribunal considered that the appellant was “doing something wrong”, which wrongdoing was not identified. In answer to this alleged suspicion, the appellant asserts that he had always held a visa, entitling him to be in Australia. I reject the suggestion that the Tribunal considered that the appellant had done anything wrong by being in Australia or applying for a visa. Its concern was about his intentions. The point was not whether he might “go underground” or “live as an unlawful citizen”. It was rather whether he should be granted a visa which would allow him to remain in Australia for the purpose of undertaking further study.
Paragraphs 43‑46 of the submission are irrelevant. Paragraphs 47 and 48 seem to assert some sort of legal fallacy. When one refers to the Tribunal’s reasons at paras 29, 31, 32 and 34, it is clear that the Tribunal is referring to the purpose for which the appellant was seeking to use the visa for which he was applying, or the “student programme”, presumably the overall scheme pursuant to which such visas are granted. Pursuant to paras 8, 11(c) and 14(b)(iii), the Tribunal was obliged to take into account, in considering the visa application, whether it was sought for the purpose of securing a further period of residence in Australia.
Paragraphs 49‑55 of the appellant’s submission are irrelevant.
In para 56, the appellant submits that:
... the genuineness test is about whether the [appellant] intends to do something illegal or not, like work in excess of the permitted levels, or go underground when his or her visa expires, or something like that. But if the [appellant] is behaving within the limits of the law by rolling over his student visa, then, at law he is genuine! If the Regulations permit him to roll over his student visa and he does so, then he is hardly at law a non‑genuine student.
This proposition is plainly without merit. The appellant may be entitled to apply for a further visa, but he has no entitlement to such a visa unless he satisfies the relevant criteria. In particular, it was necessary that the Tribunal be satisfied that he was a genuine applicant for entry and stay as a student, because of the matters identified in regs 572.223(1)(a) and (b). There is no basis for the proposition that he would fail only if he had done something unlawful in applying for the visa, or proposed to engage in unlawful conduct after the grant of any visa.
In paras 58‑61 the appellant seems to submit that the Tribunal did not comply with s 368 of the Migration Act. In my view the findings, the decision, the reasons and the evidence appear sufficiently at paras 25‑35 of the decision. I find no clear criticism by the appellant of the content of those paragraphs. I do not see any basis upon which any criticism could be made.
In reply, the appellant submitted, in effect, that the Tribunal could not find that he was not “genuine” unless it found an intention to remain in Australia. That approach is contrary to the requirement in reg 572.223, that the Minister be satisfied that the appellant was a genuine applicant for entry and stay as a student because of the Minister’s satisfaction as to identified matters.
The primary Judge correctly dismissed the review application. The appeal must be dismissed with costs.
I certify that the preceding twenty‑five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 16 November 2016