Garg v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 253
•12 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garg v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 253
File number(s): SYG 2703 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 12 November 2021 Catchwords: MIGRATION – Application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a student visa – whether open to the Tribunal not to be satisfied the applicant intends genuinely to stay in Australia temporarily – no jurisdictional error. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), Sch 2, cl 572.223(1)(a)
Cases cited: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 3 November 2021 Place: Sydney The Applicant: Appeared in person, by telephone Solicitor for the First Respondent: Ms S Roberts of Mills Oakley, by telephone ORDERS
SYG 2703 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEEPAK GARG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
12 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $5,400.
THE COURT NOTES THAT:
3.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
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
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (Student visa).
BACKGROUND
The applicant is a citizen of India. He first entered Australia on 23 August 2007 as the holder of a Student (subclass 573) visa.[1] That visa was valid until 1 November 2007.
[1] CB61
The applicant applied for a Student visa on 7 April 2016 on the basis of his enrolment in an Advanced Diploma of Business.[2] To have been entitled to the grant of the Student visa the applicant was required to satisfy the requirements of subclass 572 of Schedule 2 (Schedule 2) to the Migration Regulations 1994 (Cth) as they applied on 7 April 2016. Relevant to the application before me is cl 572.223(1)(a) which provides:[3]
The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter . . . .
[2] CB22
[3] For ease of expression I will refer to Schedule 2 in the present tense
By the time the applicant applied for the Student visa he had been residing in Australia as the holder of a Student visa for more than 8 years, and had travelled outside Australia on 6 occasions.[4] Further, records maintained by the Provider Registration and International Student Management System indicate that from 15 October 2007 until 7 April 2016 the applicant had enrolled in 17 courses and completed 6 of those courses;[5] and by 3 June 2016, when the delegate decided not to grant the applicant the Student visa, the applicant had enrolled in a further course which had been cancelled.[6]
[4] CB61
[5] CB62
[6] CB62
By letter dated 19 April 2016 what was then known as the Department of Immigration and Border Protection (Department) requested the applicant provide the information identified in the letter.[7] The letter stated that records indicated the applicant was in Australia as the primary holder of a student visa from 13 April 2015 to 28 March 2016 without being in attendance of a course of study, and the applicant was invited to advise the Department of the applicant’s activities during that period, and to provide the reasons for not maintaining his enrolment.[8]
[7] CB31-39
[8] CB35
The applicant responded to the Department’s request for information by a submission prepared by the applicant’s migration agent. That addressed what the submission referred to as the “Genuine Temporary Entrant Criterion”.[9]
[9] CB40
BEFORE THE TRIBUNAL
At the hearing before the Tribunal the applicant gave evidence that included the following:[10]
(a)The applicant was enrolled in and attending a Bachelor of Business course. The applicant said he enrolled in that course because he had not done a degree, and it will help him in his business.
(b)The applicant wants to open a restaurant in India. The applicant’s brother and father have a real estate business in which the applicant could work if he does not open his own business.
(c)In response that he comment on the Department’s finding the applicant had enrolled in 17 courses and had finished 6, the applicant said this was because on 3 occasions colleges had shut down.
(d)The applicant agreed that if he completed his Bachelor of Business in 2020 he will have been in Australia as a student for 12 years. The applicant said he previously had a girlfriend in Australia, but they broke up; and his family are arranging a marriage for him.
(e)The applicant said he did not study for 9 months because he was depressed and drinking due to his mother’s death in January 2016; he went to India for two months where his family helped him recover.
(f)The applicant is being financially supported by his family, and he occasionally works. The applicant has no family in Australia, and he chose to study in Australia because in India the courses have no value.
(g)In response to the Tribunal’s question of what incentive the applicant has to return to India, the applicant said his family has a very good business, and they are asking him to get married; the applicant loves his family and he will take over the business, get married, and live happily in India.
[10] CB112-113, [6]-[11]
TRIBUNAL’S REASONS
The Tribunal first identified the question that was before it, and that is whether the applicant meets the criterion prescribed by cl 572.223(1)(a) of Schedule 2. After setting out that provision, the Tribunal noted it was required to have regard to Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications, and set out the factors Direction No. 53 required the Tribunal to have regard to.
The Tribunal accepted the applicant was enrolled in a Bachelor of Business course. It did not accept, however, that the applicant’s enrolment in that course (or in a Master’s course the applicant’s migration agent stated in a submission the applicant intended to undertake on completion of the Bachelor of Business course) was for the purpose of opening a restaurant because the applicant did not demonstrate how his studies are justified given the cost of studying and living in Australia. The Tribunal also found the applicant could have deferred his studies or consulted with the Department rather than cease his studies for 9 months. The Tribunal then made the following findings:[11]
These issues, together with the length of time the applicant has been in Australia, his lack of academic progress in that time, proposed length of stay to undertake further study and his immigration history, the Tribunal finds the applicant is using the student program to maintain residency in Australia.
[11] CB115, [21]
Given this finding, the Tribunal was not satisfied the applicant met cl 572.223(1)(a) of Schedule 2.
GROUNDS OF APPLICATION
In his amended application, the applicant, who is not legally represented relies on the following grounds (errors in original):
1.I have received the unfavourable decesion from the Department of Immigration and the the Tribunal.
1 Applicant claims he stasified genunie temporary entrant criterion. AAT did not access case as per law. Applicant enrolled in course and doing his study since 2007.
2.Applicant also study several certifictes course including commercial cookery.
3.Applicant satisfy cl 572.223(1)(a) once he finished his study he will return back to his country.
4.Tribunal finding was inconsistent and not related with applicant. Once he finished his study he will go back to his native place.
5.Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural FCA 2020
At the hearing before me the applicant made two submissions. First, the applicant said the Tribunal found that he was using his Student visa for the purpose of getting into the permanent residency program; but the applicant had no intention of applying for permanent residence. Second, the applicant explained to the Tribunal why there was a 9 month gap in his studies. The applicant said the Tribunal found that the applicant could have deferred his studies. The applicant said he was going through bad circumstances.
Grounds 1, 2, 3, and 4 appeal to the merits of the applicant’s claims for the grant of a Student visa. They do not disclose any jurisdictional error by the Tribunal. To the extent the grounds can be read as claiming it was not reasonably open to the Tribunal to make the findings it made for the reasons that it gave, I would not accept such claim. The Tribunal relied on the length of the applicant’s stay in Australia, the further time the applicant proposed he would remain in Australia to complete his studies, the lack of progress in his studies, and the Tribunal’s not accepting the applicant’s evidence of the purpose of his undertaking the Bachelor Degree. In those circumstances, I could not accept the Tribunal’s decision was one it was not reasonable for the Tribunal to make for the reasons it gave.
Ground 5 refers to Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[12] but says nothing that links that case with the case before me. In Eros Allsop CJ, in allowing an appeal from this Court, found the Tribunal made a jurisdictional error by making findings that were consistent only with a finding that the visa applicant intended to stay temporarily; and nevertheless concluded it was not satisfied the visa applicant intended to stay temporarily in circumstances where the Tribunal referred to material that may have permitted a finding that the visa applicant intended to stay indefinitely, but the Tribunal did not make a finding to that effect.[13] There is nothing in the reasons of the Tribunal in the case before me that is capable of suggesting the Tribunal made an error of the sort the Tribunal in Eros was found to have made. The Tribunal referred to material that was capable of supporting a finding that the applicant was using the student program to maintain residency in Australia, and the Tribunal made a finding to that effect on the basis of that material. Ground 5, therefore, discloses no jurisdictional error.
[12] Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
[13] Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061, at [30], [31]
The first of the two submissions the applicant made at the hearing before me misunderstands the finding the Tribunal made. The Tribunal did not find the applicant was using his Student visa as a means of gaining permanent residency; the Tribunal found the applicant was using the student program to maintain residency in Australia. As for the second of the two submissions the applicant made at the hearing before me, the Tribunal referred to the applicant’s explanation for his not having been enrolled in a course for 9 months, and the Tribunal considered that explanation. In any event, the second of the submissions the applicant made at the hearing before me is an appeal to the merits of the applicant’s application for a Student visa. It was for the Tribunal to assess the significance of the explanation the applicant gave for not having been enrolled for 9 months in a course; and the Tribunal did consider that explanation.
DISPOSITION
The applicant has not demonstrated the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.
The Minister applied for an order that the applicant pay the Minister’s costs, and that those costs be set in the amount of $5,400. I am satisfied that the usual order as to costs should be made in this proceeding, and that $5,400 represents a fair indemnity of the costs the Minister will have incurred in successfully resisting the application. I therefore also propose to order that the applicant pay the Minister’s costs set in the amount of $5,400.
I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) does not constitute or continue any court by the name of the “Federal Circuit and Family Court of Australia”.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 12 November 2021
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