CHUGH v Minister for Immigration

[2016] FCCA 2006

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHUGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2006

Catchwords:
MIGRATION – Application for Student (Temporary) (Class TU) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal considered all of the applicant’s circumstances – whether the Tribunal considered documentary material provided by the applicant – previously held student visas – claims in relation to applicant’s employment with 7-Eleven and alleged underpayments – not relevant to current proceedings – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 474, 476, 499(2), Direction No.53

Migration Regulations 1994 (Cth), cll.572.223(1)(a) of sch.2

Cases cited:

Minister for Immigration & Border Protection v MZYTS [2013] 230 FCR431; [2013] FCAFC 114
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration & Border Protection v SZSRS [2014] 309 ALR 67; [2014] FCAFC 16
Pokharel v Minister for Immigration &Border Protection [2015] FCCA 2714

Applicant: RAJAT CHUGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1645 of 2015

Judgment of: Judge Smith

Hearing date: 12 July 2016

Date of Last Submission: 12 July 2016

Delivered at: Melbourne

Delivered on: 12 July 2016

REPRESENTATION

The applicant appeared in person.

Solicitor for the Respondents: Mr V Murano , Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1645 of 2015

RAJAT CHUGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. On 3 October 2013, the applicant applied for a Vocational Education and Training Sector (Subclass 572) visa. He had previously held student visas and had studied furniture making and furnishing technology. This time he was enrolled in a marketing course. The delegate of the Minister decided to refuse to grant the applicant a visa and the applicant applied successfully for review of that decision to the Migration Review Tribunal[1]. In the meantime, the applicant had changed his course and now is enrolled in a Diploma of Laboratory Technology.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The delegate of the Minister refused to grant the applicant a visa and the applicant applied to the Tribunal again for review of that decision. The issue for the Tribunal on review was whether the applicant satisfied the criterion in sub-cl.572.223(1)(a) in sch.2 to the Migration Regulations 1994 (Cth). That criterion has since changed. However, for the purposes of the applicant’s visa application, the relevant criterion was 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; and

   …

Tribunal’s decision

1. On 19 January 2015, the Tribunal wrote to the applicant inviting him to attend a hearing to be conducted by it on 2 March 2015. In that letter it also raised the issue arising under sub-cl.572.223(1)(a) and noted that the Minister had made a direction, being Direction No.53, which was relevant to that requirement. The Tribunal enclosed a copy of that direction and asked the applicant to provide a written statement addressing the issue by reference to the direction, as well as providing any other information relevant to the issue.

2. The applicant did not respond to that letter. However, he did attend the hearing conducted on 2 March 2015 and gave evidence and presented arguments relating to the issue identified in the letter of 19 January 2015. After the hearing, the applicant wrote to the Tribunal in the following terms (without correction):

   …

   In the review I was asked that why my student visa was rejected first time. I told you there was some additional financial documents requested. But those documents were requested in my first review because I changed from Barkly College to RMIT and the cost of the fee for Laboratory Technology was higher than previous course at Barkly. The main reason for immigration to reject my case was on the basis of IELTS[2]. When I applied for my new student visa I had IELTS that was more than 2 years old. I asked my lawyer and he said it’s fine. He told me that immigration was increased the validation of IELTS from 2 to 3 years. Later I find out that it was just for someone who was applying for permanent residency. He also suggested me to take admission in Barkly College because my visa expired in early October 2013 and the session for laboratory technology was in February 2014. I was scared because I didn’t want to be illegal in Australia, so I did what he suggested me.

   I also want you to consider that I have already invested $16000 in Laboratory Technology. Please give me a chance to complete this course. As I told you in the review want get some qualification so I can earn my living back home. My dad is also retired now. He invested all this money in me, so I can get some qualification and make my life. I don’t want to disappoint him.

   [2] International English Language Testing System.

3. On 19 June 2015, the Tribunal made a decision affirming the delegate's decision. The applicant now seeks judicial review of the Tribunal’s decision.

Consideration

1. The combination of ss.474 and 476 of the Migration Act 1958 (Cth) mean that in order to succeed in this application, the applicant has to establish that there is jurisdictional error in the Tribunal’s decision. It is not easy to describe what jurisdictional error means, but roughly speaking, it is some form of error, legal or procedural, that affects the Tribunal’s exercise of its jurisdiction. It may be an error that deflects it from asking or answering the correct question posed by the legislation, or it might be a denial of procedural fairness.

2. The error identified by the applicant in his application is that the Tribunal did not consider all of the applicant’s evidence before making its decision. There is no doubt that if established, that ground might establish jurisdictional error. See, for example, Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (“SKRKT”) and Pokharel v Minister for Immigration &Border Protection [2015] FCCA 2714.

3. In order to determine whether there was such an error, it is necessary to consider the Tribunal’s reasons for decision. First, however, it is important to recall that the critical issue for the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student. That means that evidence that was not relevant to that issue was not material to the decision and that any failure by the Tribunal to consider it is not an error of any description.

4. In its reasons for decision, the Tribunal noted that the applicant had been invited to provide certain information relevant to his application but had not done so. It also recounted the evidence given by the applicant at the hearing; see in particular [14] to [17] of the Tribunal’s reasons. There is nothing in the material before the Court to suggest that that was not an accurate summary for the hearing and I accept that it was. The Tribunal also referred to and summarised the written submission made to the Tribunal after the hearing; see [18] of the Tribunal’s decision. The Tribunal then set out its findings and conclusions.

5. I accept the following summary, taken from the Minister’s written submissions, as an accurate summary of those findings:

   a)the Applicant had been in Australia for 7.5 years and had completed a Certificate III and IV in Cabinet Making in December 2010;

   b)between December 2010 and February 2014, the Applicant spent his time either working or looking for work in a bid to gain permanent residency and when his temporary resident visa (not student visa) was about to expire, he enrolled in a course in which he had no interest, “only for the purpose of satisfying visa requirement [sic] related to timing”;

   c)the Applicant’s most recent enrolment was unrelated, and irrelevant, to his previous qualifications;

   d)the payment of $16,000 in course fees did not establish a genuine intention to stay in Australia temporarily, nor that the Applicant is a genuine applicant for entry and stay as a student;

   e)the Tribunal was not satisfied with the explanation of the Applicant’s change of studies, and considered that, as the Applicant conceded, “he enrolled simply to satisfy visa criteria. Implicit in this is his clear plan to remain in Australia. This in my view brings reasonably into question, the applicant’s intentions now”;

   f)the Applicant’s pattern of study indicated that he has undertaken relatively short courses to maintain ongoing residence in Australia;

   g)considering the Applicant’s evidence, immigration and study history, academic performance and having regard to Direction No. 53, the Tribunal formed the view that the applicant was using the student visa program to maintain ongoing residence in Australia and to circumvent the intention of the migration program; and

   h)the Tribunal affirmed the delegate’s decision as it was not satisfied that the Applicant intended genuinely to stay in Australia temporarily in accordance with cl.572.223(1)(a).

6. That survey of the Tribunal’s reasons satisfies me that the Tribunal had regard to all of the information relied upon by the applicant relating to the issue arising under sub-cl.572.223(1)(a). The applicant has not identified any material that was before the Tribunal which was relevant, cogent and important to the decision: see SZRKT at [111] to [112], Minister for Immigration & Border Protection v SZSRS [2014] 309 ALR 67; [2014] FCAFC 16 at 50 and Minister for Immigration & Border Protection v MZYTS [2013] 230 FCR431; [2013] FCAFC 114 at 70.

7. At the hearing, in his oral submissions, the applicant said that he had told the Tribunal that he wanted to do the course in order for him to be able to go back to India and work and that his father had retired. I note that these things were amongst the matters referred to in the applicant’s letter to the Tribunal dated 12 March 2015. It was also something that was recorded by the Tribunal in its summary of the applicant’s evidence at [16] of its reasons. Therefore, I accept that the applicant put those matters to the Tribunal as being relevant to the decision.

8. However, not only did the Tribunal refer expressly to those matters, at [16] and [18] of its decision, but it dealt expressly with them in the reasons given by it, in particular at [22] where there is reference to the applicant’s desire to qualify before returning to India so as not to disappoint his father and to enable him to find employment.

9. In written submissions that had been previously sent to the solicitor for the Minister and were filed in court, the applicant raised his previous employment with 7-Eleven and the issues that arose out of that employment. Those issues include the fact that there was a claim that the applicant was exploited while working by being underpaid for the work in such a way that his income was insufficient for him to pay his bills, rent and food. It appears that he has been represented by a firm of lawyers in connection with potential claims against his previous employer for such underpayment and that those lawyers are in the process of finalising his claim for submission.

10. The claims made by the applicant in connection with his work are familiar to the Court, both because of the wide publicity that the system of underpayment by 7-Eleven to its employees has received over the last year, but also because of the number of cases that have been heard and determined in this Court and in which large penalties have been given to the relevant employers. That said, however, the question of underpayment of the applicant by 7-Eleven do not relate to any issues before this Court in these proceedings.

11. It appears that the reason that they were raised is because of the underpayment.. The underpayment caused the applicant to have to work in excess of the hours allowed by the conditions upon his student visa. Ordinarily a foreign student in Australia here under a student visa is entitled to work only 20 hours per week. It seems that the applicant, like many other employees of 7-Eleven were required to work well in excess of 20 hours per week in order to earn a sufficient wage to live.

12. That, according to the submission, in turn had a potential impact upon his previous student visas in that they may have been liable for cancellation. In that context the applicant referred to an amnesty apparently proposed to be given by the Minister for Immigration in connection with employment with 7-Eleven.

13. However, it is clear from the material, and was confirmed by the applicant at the hearing, that the student visas in question have, in fact, ceased and they ceased well before the applicant applied for the subclass 572 visa, for which the applicant applied and which was the subject of the Tribunal’s review. For those reasons, while there might be a significant issue for the applicant, and an ongoing issue for the applicant, in connection with his previous employment with 7-Eleven, that issue has no bearing upon these proceedings.

14. The other matter that the applicant raised in his written submissions was that he wished to prove that he was a genuine temporary entrant in Australia, and that his primary purpose to be in Australia is to study only for which he has been granted a student visa. I noted earlier that in order to succeed, the applicant had to establish that the Tribunal’s decision was affected by jurisdictional error. It is important to note that the court, in determining whether there is jurisdictional error, is not entitled to inquire into the decision that ought to have been made by the Tribunal.

15. In this case the legislation makes it clear that it was the Tribunal’s task, and the Tribunal’s task alone, to consider whether, in fact, the applicant was a genuine student. That is to say, it is not a matter for the Court to decide one way or the other whether the Tribunal was right to conclude that the applicant was not a genuine applicant for stay, and entry into Australia as a student. That is what is often described as the merits of the decision, and the merits are something that the court is not entitled to consider.

16. Another way of saying the same thing is that even if there were a mistake by the Tribunal, in that respect, it would not have constituted a jurisdictional error and so would not have entitled the applicant to the relief that he seeks. For those reasons, the grounds upon which the applicant has relied do not succeed.

17. As the applicant is unrepresented, I have also looked more broadly at the Tribunal’s reasons for decision but I can see no jurisdictional error in it. It addressed the relevant criterion, complied with Direction No. 53 that it was required to according to s.499(2) of the Act, and it afforded the applicant the opportunity required by s.360 to attend a hearing, to give evidence and to present arguments relating to the issues that were arising in relation to the decision under review. That issue, as I have said, was the issue of whether the applicant was a genuine student for stay and entry into Australia on a student visa. It is clear that the applicant had every opportunity to address that issue before the Tribunal.

18. For those reasons, I can see no jurisdictional error in the Tribunal’s reasons and the application must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 10 August 2016