Choppala v Minister for Home Affairs

[2019] FCCA 874

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOPPALA & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 874

Catchwords:
MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal refusing student visa – the applicant spent 9 years in Australia studying VET level courses – Tribunal not satisfied the applicant genuinely intended to remain in Australia temporarily.

Legislation:

Migration Act 1958 (Cth)

First Applicant: MANIKIRAN CHOPPALA

Second Applicant: RAJYA LAKSHMI CHOPPALA

Third Applicant: SARNIN CHOPPALAS

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 2 of 2018

Judgment of: Judge Young

Hearing date: 15 March 2019

Date of Last Submission: 15 March 2019

Delivered at: Darwin

Delivered on: 15 March 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Stokes

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application filed 2 January 2018 is dismissed.

2. That the First Applicant pay the First Respondent’s costs in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 2 of 2018

MANIKIRAN CHOPPALA

First Applicant

RAJYA LAKSHMI CHOPPALA

Second Applicant

SARNIN CHOPPALA

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 15 December 2017 to affirm a decision of the Minister’s delegate made on 11 May 2016 to refuse Mr Manikiran Choppala a student visa. He was the primary applicant for the visa and his wife and child were secondary applicants. 

3. The ground on which the visa was refused was that the delegate, and then later the Tribunal, were not satisfied that the applicant satisfied a necessary criterion of the application, that is, that the Minister or the delegate must be satisfied that the applicant genuinely intended to stay temporarily in Australia.

4. The background to that conclusion is set out in the Tribunal’s decision, but, in summary, it is as follows. The applicant had first obtained a student visa in Australia in 2008 and, since then, has completed a number of vocational education and training, or VET, level courses in Australia. He has completed, as I understand it, diplomas in horticulture, management and human resources, an Advanced Diploma in Management and an Advanced Diploma in Human Resources Management. That is five VET level diploma courses completed by the applicant over the years.

5. On the completion on his Advanced Diploma in Human Resources Management the applicant did not enrol in any further study in Australia.  It is apparent that when he sought a review of the delegate’s decision in the Tribunal and the Tribunal sent him an invitation to an interview in about December 2017 the applicant then sought and obtained a conditional letter of offer from an institution in Adelaide to undertake a Diploma of Hospitality Management.  The evidence is unclear about whether that diploma has been completed.

6. There is no evidence about whether the Diploma of Hospitality Management has been undertaken or completed by the applicant. In a sense, that is irrelevant. The Tribunal, after reciting this history, said that there was a doubt about what has been called the genuine temporary entrant criterion and, at paragraph 15 of the Tribunal decision, it noted that the applicant had been vague about the purpose of his VET level study in Australia and it was noted that, certainly in more recent times, the applicant had worked in a bakery in Australia. Apparently, he said that he intended to return to India and start his own business at some point.

7. The Tribunal was concerned that, after some nine years at the time of the hearing before the Tribunal, the applicant had made no progress to any higher level of study than a variety of VET level programs, which, it is at least implied in the Tribunal decision, was not a trajectory that one would necessarily expect after nine years in Australia if the applicant was genuinely intending to return to his home country.  Another factor that the Tribunal took into account was that the applicant’s family presently reside in Australia, his wife and child, his close family, although it appears he has other family members in India.

8. The Tribunal also raised questions about the applicant’s credibility and noted that, at one point, the applicant had claimed that his father ran a transport business in the Punjab in India but at the hearing before the Tribunal the applicant said, apparently, that his father was a farmer elsewhere and the Tribunal was not satisfied about the applicant’s explanation of that apparent inconsistency. It seems that the applicant also mentioned that he had worked in Oman as a pharmacist at one point in the past.

9. Taking into account those factors, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily, and, accordingly, the Tribunal was not satisfied that he met clause 572.223 of the relevant visa requirements, that is, the genuine temporary entrant criterion, so called. The applicant’s grounds of review do not identify any recognisable ground of jurisdictional error. Ground 1 is not expressed in terms of jurisdictional error but simply asserts – and I quote:

   The Administrative Appeals Tribunal has made an error by not giving me a chance to do study in the field of hospitality management, as per the response which I gave to them –

   and so on, and ground 2 is really a statement that the applicant had obtained information about the hospitality management course and began getting together the money to complete that course, and he would do so after the AAT gave him a hearing date and if it all went well.

10. Neither of the two grounds identified a ground of jurisdictional error, and taking that into account, I invited the applicant in oral submissions to identify any error in the decision-making process of the Tribunal. He was not able to do so. It appears to me that the conclusion of the Tribunal was at least open to it on the materials and I am not able to discern any error in its decision-making process. The application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  5 April 2019