Dhingra v Minister for Immigration

[2017] FCCA 2889

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHINGRA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2889

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) cl.572.223(1)(a)

Applicant: SAHIL DHINGRA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND ANOTHER

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 613 of 2017

Judgment of: Judge Vasta

Hearing date: 6 November 2017

Date of Last Submission: 6 November 2017

Delivered at: Brisbane

Delivered on: 6 November 2017

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Mr Galloway

Solicitors for the Respondent: Minter Ellison

ORDERS

1. The Application filed on 30 June 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 613 of 2017

SAHIL DHINGRA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this Court on 30 June 2017, the Applicant, Sahil Dhingra, has asked this Court to review a decision of the Administrative Appeals Tribunal.  That decision was made on 7 June 2017, and it affirmed a previous decision of the delegate of the Minister not to grant the applicant a student visa. 

2. The Applicant has been in this country since 2013.  He arrived here on a higher education (subclass 573) visa.  The Applicant was to study an information technology (IT) course, however, almost as soon as he started it, he said that he was having trouble with his vision, looking at computer screens, and then ceased the course.

3. The Applicant then enrolled from the higher education category to vocational education courses.  In fact, the application for this visa is not a subclass 573 visa; it is a 572 visa, which is for vocational education and training. 

4. In wanting to ascertain as to what it was that the Applicant wished to study, there was quite a deal of “to-ing and fro-ing” before it was that the delegate had the information.  On the information the delegate had, the delegate refused the application. 

5. The Applicant then applied to the Tribunal, seeking a review of that decision, on 20 May 2016.  On 26 April 2017, the Applicant and his migration agent attended the hearing before the Tribunal and the Applicant was also able to make some post-hearing submissions before the Tribunal affirmed the decision on 7 June.

6. The main issue before the Tribunal was whether or not the Applicant was a genuine applicant for entry and stay as a student.  That really connotes this: that the Applicant would come to Australia, would study, and then be able to go back to India, using the fruits of the education that he has had in Australia. 

7. The merits of such a scheme are obvious.  It allows our educational institutions to ensure that they are at the highest standards, so that they not only attract the best within this country, but also the best from overseas; it allows for an injection of some foreign capital into this nation’s economy; and then it benefits the nation from which the student has come, because what the student has learnt, is put to use and is able to better that society. 

8. The system works extremely well, but unfortunately it can be open to abuses. This is what the Tribunal has found in this Applicant’s particular case.  That is, in coming here on a higher education visa and then not following through and only doing the shorter, cheaper, vocational courses, he has really tried to, in effect, pervert the system so as to allow him to stay here for as long as possible. 

9. Since the Applicant arrived here in January 2013, he has only been back to India for a total of 33 days. 

10. Whilst the Applicant has completed a number of those vocational courses, they do not seem to have any theme to them to go to an ultimate goal.  The courses that the Applicant has completed have been a diploma of business and a diploma of management in 2014, a diploma of business administration, and an advanced diploma of management. It seems the only one he has actually passed is the diploma of business and diploma of management in 2014. 

11. The Applicant says that he has had a series of depressive illnesses, and there is some evidence that he was treated for about a month with depression. 

12. He has, as he told the Tribunal, an interest in cooking, and he has decided to study for a further certificate in commercial cookery and a diploma of hospitality.  He has said that his aim is to either get a job in one of the good restaurants or other hospitality places to do with cooking in India, and that those jobs have many perks.  His other idea is to use the business diploma, open up a chain, or some form of chain of restaurants that would concentrate on cooking chicken and/or pizza. 

13. There was no business plan for any of these ventures.  There was no evidence of any particular ways or means by which any of this would be accomplished, and they could be aptly described as “thought bubbles”.

14. The Tribunal ended up looking at the Applicant’s circumstances, his immigration history, and all other relevant matters and came to the conclusion that the Applicant was not a genuine student, and that he really was doing whatever he could to stay in Australia for as long as he could. 

15. The Tribunal did accept the medical evidence that he had been actively treated for depression for one month, and the Tribunal also accepted that his vision problems were investigated.  The Tribunal also accepted that his mother was ill for about a month at the end of 2016.  The Tribunal also accepted that it was only a couple of days before the hearing that he had enrolled in the certificate IV in commercial cookery. 

16. With all those facts, it is not surprising that the Tribunal came to the conclusion that the Applicant did not intend to genuinely stay in Australia temporarily. Accordingly, he did not meet the criterion in cl.572.223(1)(a) of the Migration Regulations 1994 (Cth).

17. The Applicant’s grounds in his application were handwritten, and they are these:

    “1. The decision of the second respondent is affected by jurisdictional error where the second respondent asked itself the wrong questions and incorrectly applied the criteria and/or failed to accurately guide itself and weigh up the applicant’s circumstances as a whole in satisfying itself that the applicant is a genuine applicant for entry and stay as a student.

    2. The decision of the second respondent is affected by jurisdictional error where the second respondent asked itself the wrong questions and incorrectly applied the criteria and failed to consider and rely on all relevant materials and records of the applicant available before the member, including but not limited to the applicant’s circumstances and immigration history when ascertaining the genuineness of the applicant’s temporary residency and/or whether he intends to genuinely stay in Australia as a temporary resident rather than permanently.” 

18. It became very evident that the Applicant had really no idea what those grounds were.  He conceded to me during the course of the hearing that he had been told by someone else what to write, and he simply followed the jargon. 

19. He could not identify the questions that were wrong.  He could not identify what it was that amounted to the incorrect application of criteria, and what it was that the Tribunal failed to do. 

20. What he did say to me was that he felt that there were wrong questions asked because the Tribunal focused on the business and his family in India, and he said to me, “I feel it is not related to my studies or being a genuine student.” 

21. In fact, those sorts of questions are extremely relevant, because it does go to whether he is a genuine student and as to what it is that he’s going to plan to do with the studies.  Answers to those questions can help a Tribunal ascertain whether the Applicant is genuine or not, but it is also part of the departmental guidelines that the Tribunal needs to look into when assessing the matter.

22. The Applicant did say that he has spoken to a number of lawyers, and lawyers have wanted money to represent him, but the point is here he has had more than enough time to prepare his case. I explained on 7 August, when he appeared before me, that the matter would be going ahead today.

23. I asked the Applicant to submit written submissions, and he has failed to comply with that part of the order.  Realistically, his application to me is a plea to feel sorry for him and to give him another go because he really wants to stay in Australia. 

24. As tempting as that may be, it cannot in any way amount to a jurisdictional error, and I can only allow this application if it is established to my satisfaction that the Tribunal has committed a jurisdictional error. 

25. As I said, I do not think that there has been any jurisdictional error at all proved.  The application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date:  7 December 2017