Chugh v Minister for Immigration and Border Protection
[2017] FCA 99
•15 February 2017
FEDERAL COURT OF AUSTRALIA
Chugh v Minister for Immigration and Border Protection [2017] FCA 99
Appeal from: Chugh v Minister for Immigration & Anor [2016] FCCA 2006 File number: VID 877 of 2016 Judge: MOSHINSKY J Date of judgment: 15 February 2017 Legislation: Migration Act 1958 (Cth), s 499(2A)
Federal Court Rules 2011, rr 36.01, 36.02, 36.03
Migration Regulations 1994 (Cth), Sch 2, cl 572.223(1)(a)
Date of hearing: 18 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 10 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr V Murano, Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
VID 877 of 2016 BETWEEN: RAJAT CHUGH
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
15 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be treated as if it were a notice of appeal filed in accordance with rules 36.01, 36.02 and 36.03 of the Federal Court Rules 2011.
2.The draft notice of appeal filed by the appellant on 1 August 2016 stand as the notice of appeal.
3.The appeal be dismissed.
4.By 4.00 pm on 17 February 2017, each party file any further submission (no more than one page) on costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
On 3 October 2013, the appellant, a citizen of India, applied for a Student (Temporary) (Class TU) visa. The application was refused by a delegate of the first respondent (the Minister) but subsequently the Migration Review Tribunal (the Tribunal) remitted the application for reconsideration. On 20 August 2014, a delegate of the Minister decided that the application for the visa should be refused. On 19 June 2015, the Tribunal decided to affirm the decision not to grant the visa (the Tribunal Decision). The appellant sought judicial review of the decision by the Federal Circuit Court of Australia (the Federal Circuit Court). On 12 July 2016, the appellant’s application for judicial review was dismissed. The appellant appeals to this Court from the judgment of the Federal Circuit Court.
I note that, in this Court, the appellant filed an application for extension of time and leave to appeal. The filing of that document appears to have been based on a misconception that the hearing before the Federal Circuit Court was a “show cause” hearing. In fact, it was a final hearing. In these circumstances, the appellant may appeal as of right to this Court. Given that the appellant filed his application within the time that he could have filed a notice of appeal, and that the appellant is self-represented, the Minister consented to the Court:
(a)dealing with the application as if it were a notice of appeal filed in accordance with rules 36.01, 36.02 and 36.03 of the Federal Court Rules 2011; and
(b)treating the grounds listed in the draft notice of appeal filed by the appellant on 1 August 2016 as the appellant’s grounds of appeal.
I will proceed on this basis.
As noted above, the Tribunal Decision was made on 19 June 2015. In relation to that decision, the following matters are noted:
(a)The Tribunal observed at [3] that the delegate had refused to grant the visa because, in the view of the delegate, the appellant did not satisfy the requirements of cl 572.223(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth), as it stood at the relevant point in time. The delegate reached this conclusion as he was not satisfied that the appellant genuinely intended to stay in Australia temporarily.
(b)The Tribunal noted at [6] that, by the Tribunal’s letter of 19 January 2015: the appellant was invited to appear at a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in the review; the appellant was informed that one issue that would arise related to cl 572.223(1)(a); the appellant was provided with a copy of the Minister’s Direction No. 53; and the appellant was invited to provide a written statement addressing the issues arising in the Minister’s Direction.
(c)At [7]-[8], the Tribunal noted that the appellant did not provide any of the material invited by the Tribunal, but appeared before the Tribunal on 2 March 2015.
(d)The Tribunal stated at [11] that the issue in the case before it was whether the appellant met the criteria set out in cl 572.223(1)(a), which (at the relevant time) provided:
(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) …
(e)The Tribunal referred to Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications, at [12] of the Tribunal Decision.
(f)The Tribunal set out, at [14]-[17], aspects of the appellant’s evidence at the hearing and, at [18], some additional information provided by the appellant after the hearing.
(g)The essence of the Tribunal’s reasoning is set out at [23]-[26]. The main reasons why the Tribunal concluded that it was not satisfied that the appellant intended genuinely to stay in Australia were as follows:
(i)The appellant first arrived in Australia in January 2008 to study a bachelors degree in accounting.
(ii)After several years, the appellant had completed only two courses at certificate level in the vocational educational and training sector in the cabinet making industry.
(iii)The appellant undertook those courses for the purpose of qualifying for permanent residency in Australia. He had a legitimate plan to complete studies on a student visa and to apply lawfully to remain in Australia, “perhaps as a skilled migrant”.
(iv)That exercise having failed, albeit not for the lack of genuine effort by the appellant, he reverted to applying for a student visa, facilitated by his enrolment in a course (being a diploma of management course) in which he “had no interest and did not commence”. Implicit in this, the Tribunal found, was a “clear plan to remain in Australia”.
(v)Having arrived in Australia at about 24 years of age, the appellant was, at the time of the Tribunal Decision, around 31 years of age. He had, by this time, spent 7.5 years in Australia, a considerable portion of which was spent working, not studying.
(vi)According to the Tribunal, the appellant’s pattern of study indicated that he had “undertaken relatively short courses to maintain ongoing residence in Australia”.
(vii)The course the appellant now proposed to study (being a course in laboratory technology) was “not relevant to any previous studies, academic qualifications or work the appellant had performed or pursued”.
(h)Accordingly, the Tribunal affirmed the decision not to grant the appellant a Student (Temporary) (Class TU) visa.
As noted above, the appellant applied to the Federal Circuit Court for judicial review. The appellant was not legally represented. His grounds for review included a statement that the Tribunal member did not consider all of the evidence before making a decision on his application and he therefore contended that there was a jurisdictional error. The primary judge gave ex tempore reasons for judgment. The primary judge noted at [7] of those reasons that the error identified by the appellant in his application was that the Tribunal did not consider all of the appellant’s evidence before making its decision. The primary judge accepted that, if established, that ground might establish jurisdictional error. However, the primary judge was satisfied that the Tribunal had regard to all of the information relied upon by the appellant relating to the issue arising under cl 572.223(1)(a) (at [11]). The primary judge considered, and rejected, a number of subsidiary or particular points raised by the appellant (at [12]-[21]). Also, at [22], the primary judge stated that, as the appellant was unrepresented, the primary judge had looked more broadly at the Tribunal’s reasons for decision, but could see no jurisdictional error in those reasons. Accordingly, the primary judge dismissed the application.
The appellant’s draft notice of appeal which, as indicated above, stands as his notice of appeal, sets out five grounds. The first and second grounds can be put to one side as they relate to leave to appeal which, for the reason given above, is unnecessary.
The third ground of appeal is that the primary judge failed to consider that the delegate erred in deciding that the appellant did not meet the requirements of cl 572.223(1)(a). The particulars under this ground state: (a) the delegate misconstrued cl 572.223(1)(a) in finding that the appellant was not a genuine temporary entrant; and (b) the delegate relied on the Minister’s Direction No 53, without any basis in law or fact. There is no substance to this ground. First, the ground relates to the decision of the delegate rather than that of the Tribunal. It was the decision of the Tribunal that was in issue before the primary judge. Secondly, even if the ground is to be read as referring to the Tribunal Decision, the ground is not made out. There does not appear to be any error in the way that the Tribunal construed cl 572.223(1)(a), and it was appropriate for the Tribunal to have regard to the Minister’s Direction No. 53: see Migration Act 1958 (Cth), s 499(2A).
The fourth ground proceeds on the erroneous assumption that the hearing before the primary judge was a “show cause” hearing. This ground can, therefore, be put to one side.
The fifth ground is that the appellant’s application clearly raises an arguable case. This would appear to relate to an application for extension of time and leave to proceed. But, as explained above, there is no need for such an application.
For completeness, I note that I have had regard to the appellant’s oral submissions and brief written submission. These do not raise any distinct, arguable ground of appeal.
Accordingly, the appeal is to be dismissed. In relation to costs, as discussed at the hearing, I will give the parties the opportunity to file a brief further submission. I will then determine this issue on the papers.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 15 February 2017
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