DEVI v Minister for Immigration

[2018] FCCA 2582

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2582

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa – whether the Tribunal had regard to the applicant’s circumstances – whether the Tribunal complied with its procedural fairness obligations – no jurisdictional error made out – application dismissed.

Legislation:
Migration Act 1958 (Cth), s. 476.

Migration Regulations 1994 (Cth), cl. 573.223.

First Applicant: REENA DEVI

Second Applicant:  YASHPAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 495 of 2017

Judgment of: Judge Street

Hearing date: 30 July 2018

Date of Last Submission: 30 July 2018

Delivered at: Perth

Delivered on: 30 July 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The application in a case is dismissed.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 495 of 2017

REENA DEVI

First Applicant

YASHPAL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 October 2017 affirming a decision of the delegate not to grant the first applicant a Student (Temporary) (Class-TU) Higher Education Sector (Subclass 573) visa.

2. The first applicant is a citizen of India and on 23 November 2013 was granted a Higher Education Sector Student (Class TU) (subclass 573) visa on the basis of her enrolment in an English Language Bridging Course and Masters of Management, which the first applicant was due to commence on 28 July 2014. On 18 August 2014, the first applicant cancelled the enrolment.

3. On 18 February 2016, the first applicant applied for the student visa the subject of these proceedings. The first applicant put before the delegate material referring to the first applicant’s deferral request dated 16 July 2014 and other material.

4. On 1 April 2016, the delegate found the first applicant failed to meet the criteria for the grant of the student visa because the delegate was not satisfied the first applicant intended genuinely to stay temporarily in Australia.

The Tribunal

1. On 14 April 2016, the first applicant applied for review to the Tribunal. The second applicant was included as a member of the family unit. On 29 June 2017, the first applicant was invited to attend a hearing on 29 August 2017 before the Tribunal via letter sent to the first applicant’s email address after the lodgement of a change of contact details lodged with the Tribunal.

2. The first applicant attended the hearing via phone to give evidence and present arguments. The Tribunal, in the course of the telephone hearing, raised with the first applicant the issue of whether the first applicant was a genuine temporary entrant. The Tribunal referred to the material that had been provided by the first applicant. The Tribunal identified that the first applicant came here to study at Masters’ level but had only completed courses at the Vocational, Educational and Training sector level.

3. The Tribunal asked the first applicant about her future plans. The Tribunal asked the first applicant why the first applicant did not do those particular studies at home and noted the first applicant provided no satisfactory answer. The Tribunal was of the view the first applicant would have plenty of opportunities to get practical experience in India. The Tribunal referred to and took into account the first applicant’s daughter who is at home in India, but nonetheless found that the current circumstances presented a strong incentive for the first applicant to remain in Australia.

4. The Tribunal, taking into account the content of the courses that the first applicant had undertaken, found the first applicant’s motivation for enrolling in a three year course is to maintain residence in Australia rather than a genuine desire to follow an academic pathway.

5. It was in those circumstances that the Tribunal found the first applicant did not meet cl 573.223(1)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”) and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 12 September 2017. On 25 October 2017, a Registrar of the Court made orders giving the first applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the first applicant the nature of the hearing and the applicant confirmed that she understood the nature of the hearing as explained by the Court.

3. From the bar table the first applicant indicated that she did not wish to press the application in a case that had been filed and her application for an adjournment was accordingly dismissed.

4. From the bar table, the first applicant maintained that she was a genuine temporary student and that she wished to continue her studies. This Court does not have power to revisit the merits. The first applicant’s submissions from the bar table, in substance, invited the Court to engage in merits review. This Court does not have power to decide the matter on compassionate or discretionary grounds. Nothing said by the first applicant from the bar table identified any relevant error by the Tribunal in the conduct of the review or in the Tribunal’s reasons. The first applicant’s disagreement with the adverse finding does not make out any relevant legal error.

The grounds

1. The grounds in the application are as follows:

   1. I was born on 1st of April 1986 in India in a town Pundri in Haryana.

   2. After completing my study in India, I decided to take my further study in Australia.

   3. I was granted study visa in November 2013.

   4. I was enrolled in ELICOS to meet entry requirement for Masters of Management at Curtin University.

   5. I was enrolled in Masters of Management at Curtin University.

   6. I did completion of ELICOS in two attempts.

   7. After completion of Elicos I was advised by Curtin University on 16th of July 2014 that course requirement for Masters of Management has changed.

   8. I was offered Masters of Commerce (Professional Accounting).

   9. I realised accounting laws and regulations in Australia are quite different than one in India.

   10. I was struggling to get hold of Masters of Commerce as I come from non-accounting background.

   11. Career Prospects are not very high in India after completion of Accounting from Australia considering different laws and regulations in place.

   12. After so much happening in such a short span I was shattered and unable to understand what was happening.

   13. I had to restart from scratch.

   14. Finally, after some brain storming I decided to change my career pathway to Hospitality.

   15. In recent times we have seen massive boom in this industry due to exposure of global brands.

   16. I applied for extension of my student visa 18 February 2016.

   17. I tried to explain in my GTE while applying for visa

   18. I got refusal from DIBP on 1st of April 2016.

   19. I further applied for review of decision in given time frame.

   20. I got my review refused on 29th August 2017.

   21. I am still continuing my study and currently enrolled in advance diploma of leadership management.

   22. I have completed my study without any gap meeting requirement of student visa.

   23. I would like to bring to attention of federal circuit court that decision maker has made an error in judgement.

   24. I believe my case was not addressed properly and I should be given another chance to explain my side.

2. The grounds in substance repeat the first applicant’s claims in evidence and do not identify any relevant error by the Tribunal. Conduct by the delegate cannot give rise to reviewable error by the Tribunal. There is no apparent error in the reasoning of the Tribunal. There is no basis to conclude that the Tribunal misunderstood or failed to give real and genuine consideration to the applicant’s evidence and submissions. The assertion that the case was not properly addressed is without substance.

3. I am satisfied on the face of the material before the Court that the first applicant had a real and meaningful hearing before the Tribunal. I am satisfied on the material before the Court that the Tribunal complied with its statutory obligations for the review. I am satisfied on the material before the Court that the Tribunal complied with the requirements of procedural fairness in the conduct of the review. The Tribunal’s reasons were open to the Tribunal for the reasons given by the Tribunal. Those reasons were logical and cannot be said to lack an evident and intelligible justification.

4. Nothing in grounds 1 to 24 of the applicant identify any relevant legal error by the Tribunal. The bare assertion of error made in paragraph 23 is not itself capable of making out any relevant error.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 September 2018