Danny v Minister for Immigration

[2018] FCCA 238

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANNY v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 238

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.499
Migration Regulations 1994 (Cth)

Applicant: DANNY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1625 of 2017

Judgment of: Judge Driver

Hearing date: 2 February 2018

Delivered at: Sydney

Delivered on: 2 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms F Taah of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with item 2, Division 1, Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1625 of 2017

DANNY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Danny, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 May 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Danny a temporary student visa.

2. The background facts relating to the visa application and the Tribunal’s decision on it are set out in the Minister’s outline of legal submissions filed on 24 January 2018.  .

3. Mr Danny is a citizen of Indonesia.  On 24 July 2008, he was granted a student visa offshore which expired on 13 December 2010. On 3 August 2008, Mr Danny arrived in Australia. Since arriving in Australia, Mr Danny has applied for, and has been granted two further student visas.[1]

   [1] Court Book (CB) 33

4. On 24 November 2015, Mr Danny applied for the visa on the basis of his enrolment in a Certificate III and IV in Commercial Cookery, and a Diploma of Hospitality Management.[2]

   [2] CB 1-8, 11-13

5. On 26 November 2015, the Minister’s Department (Department) invited Mr Danny to comment on adverse information.[3]  Specifically, the Department was concerned Mr Danny did not meet the genuine temporary entrant criterion for the grant of the visa.

   [3] CB 19-22

6. On 10 December 2015, Mr Danny provided a statement to the Department.[4]  Mr Danny stated that:

   a)he planned to return to Indonesia to open his own restaurants. He wished to work for 5 star hotels and famous international restaurants to gain experience before opening;

   b)he was lucky to study in Australia as the courses were of a higher quality when compared to Indonesia, and  Australian graduates have better chances of gaining employment and earn higher incomes in Indonesia;

   c)he had a passion for cooking and found his (then) role at Hooters to be very enjoyable;

   d)his previous business management diplomas provided an important foundation for when he opens his own restaurant in Indonesia, and indicated that his human resources management knowledge would be of great assistance when he wished to hire staff.

   [4] CB 23

7. On 28 April 2016, the delegate refused to grant Mr Danny the visa.[5] The delegate was not satisfied that Mr Danny was a genuine applicant for entry as a student for the purposes of clause 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

   [5] CB 31-38

8. On 6 May 2016, Mr Danny applied to the Tribunal for review of the delegate’s decision. Mr Danny attached additional documents to the application, including documents regarding his family’s property and assets in Indonesia.[6]

   [6] CB 39-52

9. On 31 March 2017, the Tribunal invited Mr Danny to attend a hearing.[7] That letter requested a number of documents from Mr Danny, and also informed him that the Tribunal would assess whether he intends to stay in Australia temporarily, as required by clause 572.223(1).

   [7] CB 64-80

10. On 1 May 2017, Mr Danny attended the Tribunal hearing, accompanied by his representative.[8]  At the hearing, Mr Danny provided a number of documents, including diplomas he had been granted and transcripts of his results.[9]

    [8] CB 99-101

    [9] CB 102-115

11. The criteria for the grant of a subclass 572 visa are set out in Part 572 of Schedule 2 to the Regulations. One of the criteria which Mr Danny had to satisfy at the time a decision was made on his application was clause 572.223(1)(a) which relevantly 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)    …

    (iv)    any other relevant matter; and

    ...

12. Ministerial Direction No. 53 made under s.499 of the Migration Act contains the relevant matters that a decision maker is to have regard to in considering whether a person satisfies clause 572.223(1)(a) of the Regulations. Those factors are:

    a)the applicant’s circumstances in their home country, including the political and economic situation there which would present a significant incentive for the applicant to not return to his or her home country;[10]

    b)the applicant’s potential circumstances in Australia, including family and community ties, which would present a strong incentive to remain in Australia and whether the student visa is being used to maintain ongoing residence in Australia;[11]

    c)the value of the course to the applicant’s future, including the relevance of the course to the applicant’s proposed future employment in their home or third country;[12]

    d)the applicant’s immigration history, including visa and history of travel to Australia and other countries and whether the applicant complied with the conditions of previous visas;[13]

    e)any other relevant information provided by the applicant or otherwise available to the decision-maker.[14]

    [10] clauses 9 and 10 (CB 78)

    [11] clause 11 (CB 79)

    [12] clause 12 (CB 79)

    [13] clauses 13-14 (CB 79)

    [14] clause 16 (CB 80)

13. On 10 May 2017, the Tribunal affirmed the delegate’s decision not to grant Mr Danny the visa.[15]

    [15] CB 122-131

14. The Tribunal noted that the issue before it was whether Mr Danny satisfied clause 572.223(1)(a).[16] The Tribunal then noted that it was required to have regard to the factors in Direction No. 53 in considering whether Mr Danny met clause 572.223(1)(a).[17]

    [16] CB 128 at [25]

    [17] CB 128 at [26]-[27]

15. The Tribunal considered Mr Danny’s circumstances in Indonesia, and accepted that he wished to return to look after his parents. Further, the Tribunal accepted that that Mr Danny successfully completed his courses in the appropriate time frames, and was enrolled in and studying courses at all times while holding his student visas. The Tribunal considered that these factors were indicative of a temporary entrant who wished to return to their country.[18]

    [18] CB 129 at [29]-[30]

16. The Tribunal was however concerned that Mr Danny had been in Australia for over seven years, and had only returned to Indonesia three times.[19]  Further, the Tribunal was concerned that Mr Danny had only studied at the vocational level. It did not accept Mr Danny’s evidence that he preferred the practical courses. The Tribunal was rather concerned about the absence of evidence indicative of education progression. The Tribunal was not satisfied that Mr Danny had provided credible evidence as to the reasons for the courses he had undertaken.[20]

    [19] CB 129 at [31]

    [20] CB 129 at [32]-[33]

17. The Tribunal also had concerns about Mr Danny’s evidence that he wished to open his own restaurant, and wished to work in a 5 star restaurant in Bali. The Tribunal noted that Mr Danny’s evidence that he wanted to open a western cuisine restaurant because such restaurants are not big in Indonesia was inconsistent with independent information indicating that there are many such restaurants in Bali. Mr Danny’s lack of awareness of restaurants in Bali added to the Tribunal’s concerns that he was not credible as to his future career aim and why he wished to study in Australia. The Tribunal was also concerned about the generality of Mr Danny’s evidence, noting that he was not able to describe in any detail the type of business he wished to open in Bali. The Tribunal found this concerning in light of Mr Danny’s evidence that he had a real passion for cookery.[21]

    [21] CB 129-130 at [34]-[36]

18. The Tribunal formed the view that Mr Danny was using the student visa system to maintain residence in Australia.[22] The Tribunal considered the representative’s submission that Mr Danny wished to return to Indonesia because he could only ever be an employee in Australia, whereas he can open his own business with financial help from his parents.[23] It also considered other evidence before it, including that Mr Danny had successfully completed a Certificate IV in Cookery.[24]  However, these factors did not overcome the Tribunal’s concerns that Mr Danny was using the student visa program to maintain residence in Australia.[25]

    [22] CB 130 at [38]-[39]

    [23] CB 130 at [38]

    [24] CB 130 at [41]

    [25] CB 130 at [42]

19. Having regard to Mr Danny’s overall circumstances including his immigration and study history, his circumstances overseas and in Australia, and other matters it considered relevant, including with respect to Direction 53, the Tribunal was not satisfied that Mr Danny satisfied clause 572.223(1)(a).[26]  The Tribunal further found, on the material before it, that Mr Danny could not be granted any other subclass of student visa.[27]

    [26] CB 130 at [43]-[44]

    [27] CB 131 at [45]

The present proceedings

1. These proceedings began with a show cause application filed on 25 May 2017.  Mr Danny continues to rely upon that application.  There is one ground in it which is an assertion that the Tribunal failed to exercise its jurisdiction by failing to consider all aspects of his claims.  The application is supported by a short affidavit filed with it, which I received. 

2. I also have before me as evidence the book of relevant documents filed on 6 July 2017.

3. Only the Minister prepared pre-hearing submissions in accordance with the registrar’s procedural orders.  I invited oral submissions from Mr Danny today.  He told me that he considers the cookery courses he has undertaken to be relevant to his chosen career and that he wishes to continue to pursue on the job training at the Bondi Pizza Restaurant, where he has been working since the Tribunal decision.

4. I put to Mr Danny that the Tribunal decision discloses at [5][28] that he has enrolled in not less than 21 courses over the decade that he has been in Australia.  Mr Danny considers that his studies have been useful and, in effect, conceded that he wishes to remain in Australia to further his practical training.  He told me, however, that he has completed his formal studies.  This is consistent with what he told the Tribunal at [21] of the Tribunal decision, which I had the interpreter read to him. 

   [28] CB 123-125

5. Mr Danny told me that although he had informed the Tribunal that he planned to return to Indonesia after completing his then-current studies, he has stayed on in order to pursue on the job training.  As I put to him, however, the fact that he has no further formal studies to undertake would seem to be an insuperable obstacle to obtaining a further student visa.  In short, his further pursuit of that visa appears futile.

6. In other respects, I agree with the Minister’s submissions concerning the ground of review.

7. In its decision, the Tribunal set out Mr Danny’s claims and evidence in detail.[29]  Furthermore, the Tribunal viewed aspects of Mr Danny’s claims and evidence favourably, accepting the evidence of his successful completion of courses and evidence of his strong family ties in Indonesia.[30] Nevertheless, after considering and weighing Mr Danny’s claims and evidence, the Tribunal was not satisfied that he genuinely intended to stay in Australia temporarily.  This finding was open to the Tribunal on the material before it, and that no arguable case for the relief claimed is disclosed by the application.

   [29] CB 123-127 at [3]-[23]

   [30] CB 130 at [41]

8. I conclude that Mr Danny is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

9. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with item 2, Division 1, Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  5 February 2018