Don v Minister for Immigration

[2016] FCCA 2924

FEDERAL CIRCUIT COURT OF AUSTRALIA

DON v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2924

Catchwords:
MIGRATION – Application for student visa – whether the Tribunal engaged in jurisdictional error – held Tribunal did not engage in jurisdictional error.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 cl.573.326 Sch.2.

Cases cited:

Singh v Minister for Immigration and Border Protection & Anor [2016] FCA 74

Applicant: SUSIPSARA MEINAAK DEHIGASPITIYA DEHIGASPITIYAGE DON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEAL TRIBUNAL

File Number: MLG 950 of 2015

Judgment of: Judge Jones

Hearing date: 12 October 2016

Date of Last Submission: 12 October 2016

Delivered at: Melbourne

Delivered on: 12 October 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Ms Briffa

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for judicial review filed on 4 May 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs in the fixed amount of $3,700.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 950 of 2015

SUSIPSARA MEINAAK DEHIGASPITIYA DEHIGASPITIYAGE  DON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEAL TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled from Transcript)

1. This is an application for judicial review of a decision of the then Migration Review Tribunal (‘the Tribunal’) dated 7 April 2015 in which it affirmed a decision of a delegate of the Minister for Immigration and Border Protection dated 31 May 2013 refusing to grant the Applicant a Student (Temporary) (Class TU) visa (‘the visa’).

2. By way of background, the Applicant is a citizen of Sri Lanka.  On 17 March 2008, the Applicant was granted a Student (Subclass 573) visa to study English, a Diploma of Community Welfare Work and a Bachelor of Social Work [CB110]. That visa was valid until 15 March 2013.  During that period, the Applicant was the primary visa holder. 

3. On 15 March 2013, the Applicant applied for a further Student (Temporary) (Class TU) visa as a member of his de facto family unit.   [CB13]. In the visa application, he indicated that his de facto partner held a student subclass 573 visa which was granted on 3 August 2010 and ceased on 30 August 2014 [CB23].

4. At the time of the visa application, the grant of the visa under s.65 was governed by the Migration Regulations 1994 (Cth) (‘the Regulations’) and, in particular, cl.573.326 Sch. 2. This was the criteria that the Applicant was required to meet for a secondary visa. That clause is situated in Sch.2 of the Regulations.

5. A copy of the relevant Regulations has been provided by the Minister to the Court and to the Applicant.  And, relevantly, cl. 573.326 provides the Minister is satisfied:   

   (aa)the Applicant intends genuinely to stay in Australia temporarily, having regard to the Applicant’s immigration history and any other relevant matter. 

   Now, it is to be noted that, at the relevant time, the Minister had issued a direction pursuant to s.499 of the Act.  That direction is Direction 53, entitled “Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications” and it is dated 3 November 2011.  Therefore, under the statutory provisions, the Tribunal was required, in considering whether the Applicant intended to stay in Australia temporarily, to have regard to those directions.

6. As I have indicated, the delegate refused to grant the Applicant the visa.  The Applicant subsequently, on 21 June 2013, applied to the Tribunal for a review of the delegate’s decision.  His application is set out at [CB 114-124].

7. The Tribunal invited the Applicant to appear before it. Firstly, it did so by way of correspondence dated 23 September 2014 [CB 130-136]. It is to be noted that, in that correspondence, the Tribunal stated that it would assess whether the Applicant intended genuinely to stay in Australia temporarily. It then made a reference to cl.573.223(1)(a) of the Regulations, which is the clause that applies to a primary Applicant. However, I am satisfied that nothing turns on this because the wording of both clauses are in identical form.

8. The Applicant requested a postponement, which was granted. Consequently, a new hearing invitation was issued by the Tribunal.  [CB 147].  Again, the Applicant was, as he was before, invited to provide various information in relation to his study history, his current enrolment, and was also put on notice that the Tribunal will assess whether he intends genuinely to stay in Australia temporarily.  Again, there was a reference to the primary clause, not the secondary clause, contained in the Regulations.  As I have already Indicated, the contents of both clauses are the same.

9. I should observe here that in both hearing invitations, the one dated 23 September and the next hearing invitation dated 30 October, the Applicant was also informed that the Tribunal would be considering direction number 53, and a copy of this direction was attached to both pieces of correspondence.  He was invited to provide a written statement addressing whether he was a genuine temporary entrant by reference to direction number 53. 

10. The Applicant attended the hearing before the Tribunal on 17 November 2014 to give evidence and present arguments.  He was assisted in that by his migration agent.  The Tribunal affirmed the delegate’s decision on 7 April 2015 [CB 170].

11. The Tribunal identified the correct criteria the Applicant must satisfy and that it was required to have regard to direction no. 53 and indicated the various factors that were specified under that [CB 172, para 11].

12. At para. 12, the Tribunal indicated that it was well aware that it was not to use the Direction as a checklist but simply to have regard to relevant factors and weigh up the Applicant’s circumstances as a whole.  This approach is consistent with the decision of Reeves J in Singh v Minister for Immigration and Border Protection [2016] FCA 74.

13. The Tribunal then set out the Applicant’s evidence [CB 14-17].  The Tribunal noted in these paragraphs that the Applicant’s evidence was that he completed his diploma course in 2009 but did not commence his bachelor degree due to financial difficulties which his mother (and financial sponsor) was experiencing, and that, as a consequence, he could not study. He worked illegally for around three years until February 2013, at which time he enrolled in a Diploma of Management. 

14. at the Tribunal hearing, the Applicant had a current offer of enrolment in a Certificate IV in Construction Management.  The Tribunal asked the Applicant about his de facto partner, the primary person. The Applicant responded that his de facto partner held a bridging visa and was awaiting the outcome of an application for a student visa.

15. Relevantly, the Tribunal indicated to the Applicant that, given the account of his history while he had held his subclass 573 visa, the history suggested that he was not a genuine student for most of the life of that visa and that this now raises the question whether he is a genuine temporary entrant [CB 173, para.17]  The Tribunal stated:

    The Applicant says he agreed.  Asked further whether he is using the student visa now as a means to maintain ongoing residence in Australia, he said yes, he and his de facto partner intend to marry and apply for migration to Australia.

16. The reasoning of the Tribunal is set out at [19]. The Tribunal stated that it had considered the factors in the Minister’s Direction relevant to the Applicant as a secondary Applicant to a student visa, including the circumstances in his home country, the potential circumstances in Australia and his immigration history.

17. The Tribunal summarised the Applicant’s evidence that while he was a holder of the valid visa for around five years, he worked illegally for around three years and did not study.  In relation to the essential requirement of genuine temporary entry criteria, the Tribunal noted that the Minister’s Direction acknowledges that there is for Applicants “a lawful pathway from student visa to other visas in Australia”. However it stated [CB 173, para. 19] that ‘in the present case, it appears that the Applicant has used his previously held student visa and has confirmed that the purpose of his application for this visa is simply to maintain ongoing residence in Australia.’ 

18. The Tribunal went on to that, critically, that the Applicant’s concession that he is using the visa as a means to maintain ongoing residence in Australia for the purpose of remaining permanently is the most persuasive information, which leads me to conclude that the Applicant does not intend genuinely to stay in Australia temporarily as a member of the family unit of the primary person in the application for the visa within the meaning of clause 573.326 and having regard to the Minister’s direction.

19. The Applicant, in his application for judicial review, specified three grounds of review. A copy of his application is set out in the court book commencing page 1.  His grounds are set out at [CB 4].  These grounds are as follows:

    1.MRT TOOK ACCOUNT OF IRRELEVANT CONSIDERATIONS.

    2.          MRT ERRED AT LAW.

    3.MRT FAILED TO TAKE ACCOUNT OF RELEVANT         CONSIDERATION.

20. As the Applicant was self-represented, I explained to the Applicant the nature of judicial review proceedings, and, in particular, that my function as a Court is not to engage in merits review of the circumstances or the granting of his visa. I explained that my function is to focus on the Tribunal decision and decide whether it engaged in jurisdictional error or, as I put it, serious legal mistake.  I also explained to the Applicant the procedure at the final hearing. I asked the Applicant to explain his grounds and in relation to the first ground, which is that the Tribunal took account of irrelevant considerations, the Applicant said that the Tribunal failed to properly take into account the financial difficulties that he experienced which was the reason he gave to the Tribunal for ceasing his studies in 2009.  The Applicant also stated that the Tribunal had failed to take into account the fact that he was a dependent and the Tribunal gave greater weight to his immigration history, his failure to study rather than his financial difficulties.  The Applicant explained to the Court that the financial difficulties experienced by his mother was that the bank where she held her bank accounts had gone bankrupt in late 2009.

21. I asked the Applicant whether the Tribunal’s statement that he was using the Student visa as a means to maintain ongoing residence in Australia was correct [CB 173, para.15]. He said that it was.  He indicated that at the time he could not apply for a permanent visa. I presume from this submission that what he was indicating was that this was the only pathway for him to remain in Australia. 

22. The Applicant informed the Court that he was not clear what was meant by Ground 2, that the Tribunal erred at law.  So I will set that ground aside on the basis that that is not being prosecuted by the Applicant. 

23. In respect of Ground 3, the Applicant, in essence, repeated his submissions made in relation to Ground 1, that is, the failure of the Tribunal to take into account or give significant weight to the financial considerations that impacted on his capacity to study which thereby had a major effect on his immigration history and the fact that he had applied for the visa as a dependent.

24. Turning first to the question of whether the Tribunal considered his financial difficulties.  I have to say that it is manifestly evident from the Tribunal’s decision [CB 172, para.15] that the Tribunal did take this into account.  It referred specifically to the Applicant’s evidence that he could not complete the bachelor degree course due to financial difficulties his mother, his financial sponsor, was experiencing.  What is apparent when one has regard [para. 17] of the Tribunal’s decision record where the Tribunal records the Applicant’s evidence where he agreed he was using the Student visa now as a means to maintain ongoing residence in Australia, and then its reasoning set out in [19] is that, whilst it had regard to the Applicant’s immigration history, his reasons for not studying and the fact that he worked illegally for three years, it gave significant weight to the Applicant’s concession that he was using the visa as a means to maintain ongoing residence in Australia for the purpose of remaining permanently.

25. The Tribunal at [19] described this ‘is the most persuasive information which leads me to conclude that the Applicant does not intend genuinely to stay in Australia temporarily.’

26. It is clear from the reasoning in [19] that the Tribunal had regard to Direction no. 53. It had regard to the Applicant’s immigration history, his circumstances in Australia, his relationship with his de facto spouse, their intention to marry, but it gave greatest weight to the Applicant’s concession about his purpose in applying for the visa.  This was something the Tribunal was perfectly entitled to do.  It is not open to this Court to intrude on the weight that the Tribunal gave to various pieces of evidence and that is settled principle.  Consequently, that part of the Applicant’s ground does not give rise to jurisdictional error.

27. I now turn to consider the Applicant’s submission that the Tribunal failed to take into account his status as a dependent on his de facto wife. I have to say again it is manifestly clear from the decision record that, in fact, that is precisely what the Tribunal did. It identified at para.10, cl.573.326, which is the relevant criteria for secondary applicant, as the criterion the Applicant was required to meet. It proceeded to consider the totality of the Applicant’s evidence and have regard to the Minister’s Direction no. 53, This reasoning was encapsulated in [19] of the decision record.

28. The Tribunal’s reasoning was open to it. It was not illogical or arbitrary. It simply decided, based on the evidence before it, that the Applicant did not meet the criteria. As the Minister’s Counsel stated in oral submissions, the Applicant’s concession to the Tribunal recorded at [17] that he was using the Student visa as a means to maintain ongoing residence was not applied without regard to the fact that an Applicant may well engage in a lawful pathway from a Student visa to other visas in Australia. For instance, his desire to obtain a Permanent visa. Nevertheless, the Tribunal was persuaded by the Applicant’s concession and found that the Applicant did not meet the criteria set out in cl.573.326 of the Regulations and having regard to Direction no. 53.

29. Accordingly, I am not satisfied that the Tribunal’s decision discloses jurisdictional error on the grounds that the Applicant has claimed.  I should say also, having regard to the decision as a whole, I am satisfied that the Tribunal decision is free of any jurisdictional error.  Therefore the Court will dismiss the Applicant’s application for judicial review and make an order for costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 14 November 2016