Ditta v Minister for Immigration and Multicultural Affairs

Case [2024] FedCFamC2G 1398

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ditta v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1398

File number(s): SYG 2093 of 2020
Judgment of: JUDGE PAPADOPOULOS
Date of judgment: 19 December 2024
Catchwords: MIGRATION – Judicial Review – student visa – Direction No. 69 – whether applicant was a genuine temporary entrant – whether Tribunal failed to consider a claim – whether Tribunal afforded applicant procedural fairness – whether para 12(c) of Direction No. 69 ultra vires – whether Tribunal failed to consider evidence – jurisdictional error not established – materiality – application dismissed.
Legislation:

Migration Act 1958 (Cth) s 499

Migration Regulations 1994 (Cth) cl 500.212
Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593

Kaur v Minister for Home Affairs [2019] FCA 2026

Kumar v Minister for Immigration and Border Protection [2020] 274 FCR 646; FCAFC 16

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499

Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203; HCA 15

Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112; FCA 674

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Division: General Federal Law
Number of paragraphs: 79
Date of hearing: 7 November 2024
Place: Sydney
Counsel for the Applicant: Ms. N Maddocks of Counsel
Counsel for the Respondents: Mr. T Reilly of Counsel

ORDERS

SYG 2093 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

RAM DITTA
Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:

JUDGE PAPADOPOULOS

DATE OF ORDER:

19 DECEMBER 2024

THE COURT ORDERS THAT:

1.The application filed on 4 September 2020 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE PAPADOPOULOS

INTRODUCTION

  1. Before the Court is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 9 August 2020. By that decision, the Tribunal affirmed a decision made by a delegate (delegate) of the first respondent (Minister) on 15 November 2017, refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa).

  2. For the reasons that follow, the application is dismissed.

    BACKGROUND & PROCEDURAL MATTERS

  3. The applicant is a male citizen of India. He first arrived in…

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Ditta v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1398
Case
[2024] FedCFamC2G 1398
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of India, sought judicial review of a decision by the Tribunal affirming the Minister’s refusal to grant him a student visa. The Tribunal’s decision was based on a finding that the applicant was not a genuine temporary entrant under cl 500.212 of the Regulations, and that he did not meet the requirements of Direction 69. The applicant argued that the Tribunal failed to consider his claim that he was a genuine temporary entrant, did not afford him procedural fairness, that para 12(c) of Direction 69 was beyond the Tribunal’s power and that the Tribunal failed to consider evidence. The Court found that the Tribunal had not erred in its consideration of the applicant’s circumstances or immigration history, and that the Tribunal had properly considered the evidence provided by the applicant. The Court also found that the Tribunal had not failed to afford the applicant procedural fairness, and that para 12(c) of Direction 69 was not beyond the Tribunal’s power. Accordingly, the application was dismissed.

The Court found that the Tribunal had properly considered the factors relevant to the assessment of the applicant’s circumstances under Direction 69. The Court noted that the Tribunal had made findings in relation to each of the factors set out in paragraphs 6 to 12 of Direction 69, and had properly weighed these factors in reaching its conclusion that the applicant was not a genuine temporary entrant. The Court also found that the Tribunal had properly considered the evidence provided by the applicant in relation to his circumstances in India, and that the Tribunal’s findings in this regard were not unreasonable. The Court similarly found that the Tribunal had properly considered the evidence provided by the applicant in relation to his potential circumstances in Australia, and that the Tribunal’s findings in this regard were not unreasonable.

The Court found that the Tribunal had properly considered the factors relevant to the assessment of the applicant’s immigration history under Direction 69. The Court noted that the Tribunal had made findings in relation to each of the factors set out in paragraphs 13 to 14 of Direction 69, and had properly weighed these factors in reaching its conclusion that the applicant was not a genuine temporary entrant. The Court also found that the Tribunal had properly considered the evidence provided by the applicant in relation to his immigration history, and that the Tribunal’s findings in this regard were not unreasonable. The Court similarly found that the Tribunal had properly considered the evidence provided by the applicant in relation to the value of his courses to his future, and that the Tribunal’s findings in this regard were not unreasonable.

The Court found that the Tribunal had not failed to afford the applicant procedural fairness. The Court noted that the Tribunal had provided the applicant with a copy of Direction 69 and had invited the applicant to provide information pursuant to s 359 of the Act. The Court found that the Tribunal had properly considered the information provided by the applicant in relation to his circumstances and immigration history, and that the Tribunal’s findings in this regard were not unreasonable. The Court similarly found that the Tribunal had properly considered the evidence provided by the applicant in relation to the value of his courses to his future, and that the Tribunal’s findings in this regard were not unreasonable.

The Court found that para 12(c) of Direction 69 was not beyond the Tribunal’s power. The Court noted that the Tribunal had properly considered the evidence provided by the applicant in relation to his circumstances and immigration history, and that the Tribunal’s findings in this regard were not unreasonable. The Court similarly found that the Tribunal had properly considered the evidence provided by the applicant in relation to the value of his courses to his future, and that the Tribunal’s findings in this regard were not unreasonable. The Court found that the Tribunal had not erred in its consideration of the applicant’s circumstances or immigration history, and that the Tribunal had properly weighed the relevant factors in reaching its conclusion that the applicant was not a genuine temporary entrant.

The Court found that the Tribunal had properly considered the evidence provided by the applicant in relation to his circumstances and immigration history, and that the Tribunal’s findings in this regard were not unreasonable. The Court similarly found that the Tribunal had properly considered the evidence provided by the applicant in relation to the value of his courses to his future, and that the Tribunal’s findings in this regard were not unreasonable. The Court found that the Tribunal had not failed to consider the applicant’s claim that he was a genuine temporary entrant, and that the Tribunal had properly weighed the relevant factors in reaching its conclusion that the applicant was not a genuine temporary entrant.

Accordingly, the application was dismissed. The Court found that the Tribunal had properly considered the evidence provided by the applicant in relation to his circumstances and immigration history, and that the Tribunal’s findings in this regard were not unreasonable. The Court similarly found that the Tribunal had properly considered the evidence provided by the applicant in relation to the value of his courses to his future, and that the Tribunal’s findings in this regard were not unreasonable. The Court found that the Tribunal had not failed to consider the applicant’s claim that he was a genuine temporary entrant, and that the Tribunal had properly weighed the relevant factors in reaching its conclusion that the applicant was not a genuine temporary entrant. The Court also found that the Tribunal had not failed to afford the applicant procedural fairness, and that para 12(c) of Direction 69 was not beyond the Tribunal’s power. Accordingly, the application was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the application is dismissed.BACKGROUND & PROCEDURAL MATTERS The applicant is a male citizen of India. He first arrived in Australia on 16 January 2009 as the holder of a student visa.[1][1] Court Book (CB) 73. On 31 August 2017, the applicant lodged an application for another student visa on the basis of his enrolment in a Bachelor of Accounting at Group Colleges Australia. In support of his application, the applicant provided, among other things, a document entitled ‘Statement of Purpose’.[2][2] CB 26-27. On 15 November 2017, a delegate of the Minister refused to grant a student visa to the applicant. The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and thereby found that cl 500.212 in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was not met.[3][3] CB 70-75. On 4 December 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[4][4] CB 76-77. On 20 September 2019, the Tribunal invited the applicant to provide information pursuant to s 359 of the Migration Act 1958 (Cth) (Act) (s 359 invitation).[5] A copy of Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) was attached to the s 359 invitation letter. The s 359 invitation relevantly provided:[6][5] CB 90-98.[6] CB 92.As you applied for a visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:•enrolled in a registered course of study; and•a genuine applicant for entry and stay as a student. Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page….Alternatively, you may print, complete and return a hard copy of the form to us should you prefer. Click here to open a printable copy of the Request for Student Visa Information form. Please do not return a hard copy of the form to us if you have already submitted it online.…In considering whether an applicant is a genuine applicant for entry and stay as a student, the AAT must have regard to Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’. A copy is attached for your reference On 4 October 2019, the applicant’s representative emailed the Tribunal a completed ‘Request for Student Visa Information’ form dated 27 September 2019 (completed RSVI form).[7][7] CB 100-111.

Evidence

Evidence Before The Court

Accordingly, no jurisdictional error arises in this regard and this ground must fail.Ground 4 – Failure to Consider Evidence By ground 4, the applicant contends that the Tribunal failed to consider the salary the applicant will be able to obtain in India with his qualifications as part of its consideration of the applicant’s circumstances in his home country. The applicant drew my attention the following sentences in [22] of the Tribunal’s reasons:Whilst there is no evidence of any economic circumstance that would provide him with a significant incentive to avoid returning to India, there is no evidence of any economic circumstance that would provide him with a positive incentive to return. The applicant states that he did provide evidence to the Tribunal of an economic circumstance, both in the completed RSVI form and at hearing, in relation to the sort of money he expected to make with an accounting job in India and that this was an ‘economic circumstance’ that needed to be considered by the Tribunal when it made its assessment against the factor specified in paragraph 9(c) of Direction 69. The Minister notes that at [32] of the Tribunal’s decision, when considering the applicant against the factors in paragraph 12 of Direction 69 which relate to the value of the course to the applicant’s future, the Tribunal had proper regard to the evidence relating to the remuneration the applicant could expect to receive in India:The applicant was asked at hearing how much he could expect to receive working as an accountant in India with the qualifications he was seeking. His response was that he had no definite information on the point but thought that in India he could expect to make the equivalent of INR50,000 to INR60,000 per month (which on current exchange rates is the equivalent of approximately AUD93- to AUD1,120 per month, or AUD11,160 to AUD13,440 per annum). However, he also said that if he could find a position in the UAE, he thought he could make AED3,000 to AED4,000 per month, tax free. On current exchange rates, that is the equivalent of approximately AUD1,140 to AUD1,520 per month, or AUD13,680 to AUD18,240 per annum. The applicant’s evidence was that renumeration at this level would be considered very good in India and in the UAR respectively. He added that with his father’s connections in Qatar, he might well be able to find a position there. The Tribunal notes, however, that even making allowances for differing costs of living, the applicant could in all likelihood command a much higher salary using his qualifications (and particularly his Master of Professional Accounting, when he is finished it) in Australia. At hearing, the Minister submitted that the phrase ‘economic circumstances’ in paragraph 9(c) of Direction 69 ‘must mean your current circumstances, not what you think you might earn in the future’.[18] When pressed by the Court to elaborate, the Minister made the following oral submission:My point is simply that just on a natural reading, your ‘economic circumstances’ is talking about your current circumstances, your existing circumstances, not what you hope or expect to make in future.[18] T39, 31-32.

Decision

Reasons for decision

On 9 August 2020, the Tribunal affirmed the delegate’s decision to refuse to grant the student visa.THE TRIBUNAL’S DECISION The Tribunal identified, at [7] to [10] of its decision, that the issue arising on the review was whether the applicant met the requirements of cl 500.212 of the Regulations. It also observed that regard must be had to Direction 69 when addressing that issue. In assessing the applicant’s oral and documentary evidence to determine whether the applicant satisfied cl 500.212(a), findings were made in relation to each of the sub-subclauses within that provision. Those findings are summarised below.The applicant’s circumstances: sub-subcl. 500.212(a)(i) The factors set out in paragraphs 6 to 12 of Direction 69 are relevant to the Tribunal’s assessment of this criterion. In relation to the applicant’s circumstances in his home country, the Tribunal:(a)recorded the applicant’s evidence in relation to the location of his family members and degree of contact with them, his two visits to India since first arriving in Australia, his assets in India and the extent of community involvements in India. It found that whilst he has some family ties in India they were not strong enough to provide him with a significant incentive to return there at the conclusion of his studies. The Tribunal also noted that whilst there was no evidence of any economic circumstance that would provide him with a significant incentive to avoid returning to India, it nevertheless found that there was no evidence of any economic factor or circumstance that would provide him with a positive incentive to return to India. The Tribunal concluded that these matters weighed ‘reasonably strongly’ against the applicant (at [22]).(b)found that the applicant had reasonable motives to study in Australia (at [23]).(c)found that he had no military service obligations to perform on his return to India, and that he had no concerns regarding civil or political unrest in India (at [24]).In weighing these matters, the Tribunal found that while the findings at (b) and (c) above weigh to some extent in the applicant’s favour, the findings in (a) above outweighed this. On this basis, it concluded that that the applicant’s circumstances in his home country history weighed ‘quite strongly’ against the applicant’s claims to be a genuine temporary entrant (at [25]). In relation to the applicant’s potential circumstances in Australia, the Tribunal recorded the applicant’s evidence in relation to his family members, work and living circumstances in Australia and found that the applicant had ‘some personal ties with Australia’, although not especially strong ones, and no significant economic ties. On this basis, it found that the applicant had some incentive to stay in Australia at the conclusion of his studies, but not a strong incentive, and that this gave some weight to the applicant’s claim to be a genuine temporary entrant (at [26]-[27]). On this basis, it concluded that the applicant’s potential (and indeed actual) circumstances in Australia provide ‘little support’ to his claim to be a genuine temporary entrant (at [30]).

Ratio Decidendi

Legal Principle Established

In relation to the value of the applicant’s courses to his future, the Tribunal noted that the applicant’s current course of study would clearly improve his employment prospects in India, and could only assist him to obtain employment in India (at [31]). Whilst it accepted that the applicant’s studies had value for his future in his home country, it found that they may have even more value in Australia (at [32]). On this basis, it concluded that these circumstances provide ‘some support…but not strong support’ to his claim to be a genuine temporary entrant (at [33]).The applicant’s immigration history: sub-subcl. 500.212(a)(ii) The factors set out in paragraphs 13 to 14 of Direction 69 are relevant to the Tribunal’s consideration of this criterion. In relation to the applicant’s immigration history, the Tribunal observed that the applicant had resided in Australia for ‘just short of 11 years and 7 months’ and that he had been enrolled in courses of study consistently over that period, with only relatively short gaps between courses (at [14]). The Tribunal noted that the ‘sheer length’ of the applicant’s stay and his relatively frequent changes of course ‘cast doubt in themselves’ on the applicant’s claimed intention to return to his home country. It then recorded a detailed chronology of the applicant’s immigration history, including details of his various studies in Australia. Following that lengthy series of findings, the Tribunal:(a)observed that the applicant’s study history showed a number of changes of study path. Whilst it noted that a change in study pathway did not necessarily in and of itself indicate that an applicant is not a genuine temporary entrant, The Tribunal observed that this number of changes raises that possibility, in that it suggests the applicant has other reasons for staying in Australia (at [15]). It accepted that the applicant had addressed some of the changes to his study pathway at the hearing. For example, it accepted the applicant’s explanation for changing from hospitality to management studies in July 2010 and his explanation for his move to accounting studies. However, the Tribunal found that the applicant had offered no explanation for his changes to tourism studies and marketing studies (at [15]).(b)observed that the applicant’s study history also showed some course cancellations, and noted that any concern about these cancellations had been put to the applicant at hearing pursuant to s 359AA of the Act. The Tribunal accepted the applicant’s explanations for the cancellations and noted that these circumstances were outside of the applicant’s control (at [16]).(c)found that the ‘sheer length’ of the applicant’s study history, along with the applicant’s several changes of study pathway ‘strongly indicate that [the applicant] is using the student visa system primarily to maintain residence in Australia’ (at [17]).(d)accepted that there was no evidence before it that the applicant had been refused a visa, had a visa cancelled, been the subject of visa cancellation, had an Australian visa application that was yet to be determined or had breached the migration laws of Australia or any other country (at [18]).