Ettem v Minister for Immigration

[2018] FCCA 1080

FEDERAL CIRCUIT COURT OF AUSTRALIA

ETTEM v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1080

Catchwords:
MIGRATION – Student (class TU) (subclass 572) visa – applicant not a genuine applicant for entry and stay as a student – applicant undertook a number of courses, some completed some incomplete – six month gap in study.

Legislation:

Migration Regulations 1994, Sch.2, cl.572.223(2)(b)

Cases cited:
AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BHK15 v Minister for Immigration and Border Protection [2016] FCA 569
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Craig v State of South Australia (1995) 184 CLR 163
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Minister for Immigration & Multicultural Affairs v Yousef (2001) 206 CLR 323
Minister of Immigration and Ethnic Affairs v Wu-Shan Liang (1996) 185 CLR 259
WZATH v Minister for Immigration & Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571

Applicant: DINESH REDDY ETTEM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2350 of 2015

Judgment of: His Honour Judge Wilson

Hearing date: 18 April 2018

Date of Last Submission: 18 April 2018

Delivered at: Melbourne

Delivered on: 18 April 2018

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Counsel for the First Respondent:

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application filed 20 October 2015 is dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2350 of 2015

DINESH REDDY ETTEM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. By application filed in this court on 20 October 2015, the applicant applied for judicial review of a decision of the Administrative Appeals Tribunal (“tribunal”) made 30 September 2015 pursuant to which the tribunal affirmed the decision of the minister’s delegate not to grant the applicant a student (class TU) (subclass 572) visa. 

2. In essence, the tribunal took the view that based on the information it heard and the documentation it read, the tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student and thereby did not satisfy the requirements of cl.572.223(2)(b) of Schedule 2 to the Migration Regulations (“regulations”).  The question in this case was whether the tribunal correctly so found.

Synopsis

1. For the reasons that follow, in my view, the tribunal did not fall into jurisdictional error.  It follows that this application for judicial review failed and I dismiss this proceeding with the applicant to pay costs.

Short factual narration

1. The applicant, a citizen of India, arrived in Australia on 17 May 2009 on a student (class TU) (subclass 572) visa valid until 10 July 2011.  He successfully obtained a further student visa on 12 September 2011 and again on 26 April 2013 which were valid until, respectively, 15 March 2013 and 15 October 2014. 

2. On 16 October 2014, the applicant applied for a further student (class TU) (subclass 572) visa of relevance in this case. On 24 November 2014, a delegate of the minister refused the applicant’s application and refused the grant of a student (class TU) (subclass 572) visa for the reason that the applicant did not satisfy cl.572.223(2)(b) of Schedule 2 to the regulations.

3. Being dissatisfied with that decision, on 15 December 2014 the applicant applied to the tribunal for a review of the delegate’s decision.  On 10 July 2015 the applicant appeared at the hearing before the tribunal and gave evidence then presented argument.  On 30 September 2015 the tribunal affirmed the decision made by the delegate.  Again being dissatisfied with the decision of the tribunal, the applicant applied for judicial review in this court.

4. Before going to the tribunal’s reasons it is necessary to recite the grounds of application verbatim, the errors being in the original –

   Review was affirmed not to grant the visa, changing the course.  Tribunal member not satisfy new field of course inspite and explained the tribunal was not satisfied, indicating that I am not a genuine applicant for stay as a student.

5. Even recognising certain linguistic difficulties and the fact that the applicant was a litigant in person (and I make all due allowance for those factors) it was not easy to distil the precise basis upon which the applicant sought judicial review in this court. 

6. The minister appeared to have proceeded, at least in part, on the basis that the applicant was seeking a review on the merits.  The minister quite properly brought to my attention that review in the nature of a merits review is not permitted in a judicial review application, as has been held in an array of decisions in the High Court, including Australian Broadcasting Tribunal v Bond,[1] Attorney-General (NSW) v Quin,[2] Chan v Minister for Immigration and Ethnic Affairs[3] and Minister of Immigration and Ethnic Affairs v Wu-Shan Liang.[4]  To the extent that the applicant invited me to engage in a merits review I decline to do so, that not being the proper function of this court in an application for judicial review. 

   [1] (1990) 170 CLR 321

   [2] (1990) 170 CLR 1

   [3] (1989) 169 CLR 379

   [4] (1996) 185 CLR 259

7. Going to the reasons for the tribunal’s decision, the mainstay of the tribunal’s reasoning was reposed between paragraphs 27 and 31 of the tribunal’s reasons.  In essence, the tribunal took the view that, having regard to the history of the applicant’s course of study, the nature of the courses that he studied, the changing nature of them, and the period over which he was enrolled, the pattern of enrolment indicated a desire to remain in Australia for a prolonged period rather than to follow a genuine academic and/or career path.

8. The minister brought to my attention the PRISMS[5] records in this case.  Those records are not easy to follow, but to the extent that they revealed the applicant’s history,[6] it was apparent that there were gaps in the applicant’s enrolment, and it was also apparent that the applicant had enrolled in any number of courses over the period 2010 to 2016. 

   [5] Provider Registration and International Student Management System

   [6] Court Book filed 6 April 2016, p.102

9. At least one of those courses was cancelled.  Some courses the applicant finished.  In respect of others, it was apparent that there was at least a duplication in the nature of the studies that the applicant undertook, a point observed by the tribunal in paragraph 28 of its reasons, where the tribunal took the view that the applicant’s explanation was unconvincing when he said he was currently studying hospitality management for a second time.

10. The tribunal placed reliance on the decision of the Full Court of the Federal Court of Australia in Yang v Minister for Immigration and Multicultural and Indigenous Affairs,[7] where Finkelstein J and Ryan J held that regression in the proposed course of study was a relevant consideration for the purposes of “other relevant matters” for the purposes of the clause of the regulations with which I am concerned.

    [7] (2003) 132 FCR 571

11. Whether or not the applicant’s subsequent studies in hospitality management represented regression, it at least indicated that there was not progression in his path of study such as one would expect in a person who was genuinely pursuing academic study, or relevantly for the purposes of cl.572.223(2)(b), whether the applicant was a genuine applicant for entry and stay as a student.

12. It seemed to me that the tribunal had a proper basis for its conclusion that the applicant’s studies did not progress meaningfully in the fields in which he was studying.  It was also significant that the applicant had a six-month gap in his study, a point upon which the tribunal fastened.  While not in and of itself a particularly long gap nor a point that compellingly drew the conclusion of the want of genuineness, it was a matter which, when aggregated with other information, pointed to the likelihood of the applicant not being a genuine applicant for entry and stay as a student.  I am willing to proceed on the basis that a gap in study of half a year over a six-year period of study in which there was very little progress in the nature of the courses undertaken, that the tribunal was correct in its conclusions in this case.

13. It follows that the conclusion reached in paragraph 29 of the tribunal’s reasoning was correct. Having regard to the applicant’s study history including a period of almost six months in which he was not studying, the applicant was not a genuine applicant for entry and stay as a student in Australia. It seemed to me that the tribunal had an ample basis for conclusion that cl.572.223(2)(b)(ii) was not met. It follows that the tribunal’s conclusion was open to it.

14. Judicial review in this court in a conventional sense invites a consideration of the matters raised in such cases as Craig v State of South Australia[8] and in Minister for Immigration & Multicultural Affairs v Yusnf.[9]  Conventionally, an examination of jurisdictional error invites a consideration of such things as –

    a)the identification of a wrong issue;

    b)a consideration of the wrong question;

    c)ignoring relevant material;

    d)relying on irrelevant material; or

    e)in some instances making an erroneous finding or reaching a mistaken conclusion.

    [8] (1995) 184 CLR 163

    [9] (2001) 206 CLR 323

15. That said, as the High Court pointed out in Kirk v Industrial Court (NSW),[10] the ambit of jurisdictional error is only illustrated by those matters as it is neither possibly nor necessary to attempt to plot the metes and bounds of jurisdictional error as the reasoning in Craig, Yousef and other cases do not provide a rigid taxonomy of the point.

    [10] (2010) 239 CLR 531

16. In this case it fell to the applicant to make out his claims of jurisdictional error.  His grounds of application did not descend into any detail.  They were not easy to understand.  From the decision in WZATH v Minister for Immigration & Border Protection,[11] Siopis J is taken to have concluded that, in respect of a ground or review expressed in such generality that it could not be taken to be a meaningful ground of review, then the proceeding is amenable to being dismissed on that basis alone.

    [11] [2014] FCA 969

17. Logan J said words to similar effect in BHK15 v Minister for Immigration and Border Protection,[12] as his Honour did in the slightly later decision in AQN15 v Minister for Immigration and Border Protection.[13]  The point was observed again, this time by Gilmour J in WZAVW v Minister for Immigration and Border Protection.[14]  In short, unparticularised assertions of jurisdictional error which are vague and which do not specify the nature of the error allegedly committed, when not particularised, enable the court to dismiss the proceeding on that basis alone.

    [12] [2016] FCA 569

    [13] [2016] FCA 571

    [14] [2016] FCA 760

18. I will not dismiss this proceeding simply by reason of the unparticularised assertions of jurisdictional error.  That said, they were manifest.  It seemed to me that the proceeding should be dismissed on the basis that jurisdictional error was not established in the circumstances of this case.  I take the view that the reasoning of the tribunal was adequate and open to it in the circumstances.  The fact that the applicant did not like the result did not tell of jurisdictional error.

19. Today when I invited the applicant to tell me in his own words what he said the tribunal did wrong he answered by saying that he was presently undertaking a part-time job and he invited me to give him some time to do that.  That is not a basis for granting relief in the nature of the issue of constitutional writs on the basis of jurisdictional error.  He also told me that he told the tribunal all that he wanted to say and his real complaint was that the tribunal did not find in his favour.  Again, that is not a sound foundation for the establishment of judicial review for jurisdictional error.

20. In the circumstances, I dismiss this proceeding and I order the applicant to pay the minister’s costs.  I fix the minister’s costs in the sum of $6,000. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson

Date:              30 April 2018