Goyal v Minister for Immigration
[2018] FCCA 2392
•31 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOYAL v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2392 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Applicant seeks impermissible merits review – findings of the Tribunal open to it on the evidence before it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 499 Migration Regulations 1994 (Cth) Schedule 2, cl.572.223(1)(a) Federal Circuit Court Rules 2001 (Cth) r.13.03C |
| Cases cited: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 66 ALR 299 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration and Citizenship v Khadgi [2010] 190 FCR 248 Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 |
| Applicant: | SUNIL GOYAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1860 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 20 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Mr Lipinski |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the total sum of $11,204.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1860 of 2016
| SUNIL GOYAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed 31 August 2016 the Applicant applied for judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 11 August 2016, with respect to which a written record was provided on 17 August 2016. By that decision the Tribunal affirmed a decision of the First Respondent, by his delegate, not to grant the Applicant a Student Temporary (Class TU) (Subclass 572) visa (‘the visa’).
The Applicant’s application was listed for a final hearing on 28 June 2018 at 10.00am. By email dated 26 June 2018 the Applicant advised the Court that he had “fallen sick of chickenpox” and requested that his hearing be postponed. The Applicant attached to his email a medical certificate signed by Dr Premjeet Singh, which stated that:-
“Mr Sunil Goyal has a medical condition and will be unfit from 25th June 2018 to 29th June 2018 inclusive.”
By email to the Minister’s legal representatives, dated 26 June 2018, the Court requested that the Minister inform it as to whether it consented to the Applicant’s proposed adjournment.
By email dated 27 June 2018 the Minister’s legal representatives informed the Applicant and the Court that the Minister did not consent to the request for an adjournment and that the Applicant was still required to attend the hearing on 28 June 2018 at 10.00am.
By email dated 27 June 2018 the Court informed the Applicant, relevantly, that:-
“A medical certificate provided to the Court in support of an adjournment application should include the diagnosis, treatment and reason why the diagnosis prohibits you from attending Court.
Please provide the Court with a medical certificate including the abovementioned details.
If the Court is satisfied that you are unable to attend the Court for medical reasons, a telephone link may be arranged.
Chambers notes the matter remains listed for final hearing at 10.00am on 28 June 2018.”
At the hearing on 28 June 2018 the Applicant did not appear. The Court made orders dismissing the matter pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (‘the Rules’) and an order that the Applicant pay the costs of the First Respondent in the sum of $7,328.
On 12 July 2018 the Applicant filed an application in a case seeking the following orders:-
“1. Pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the Order of 28 June 2018 made by Judge Hartnett in this matter is set aside.
2. My application filed on 31 August 2016 is re-heard.
3. Such further and/or other order as the Court deems appropriate.”
The reinstatement application filed on 12 July 2018 was accompanied by an affidavit filed that same day, in which the Applicant provided supporting evidence.
The Court determined on 20 August 2018 to reinstate the Applicant’s application. Whilst the Court expressed considerable dissatisfaction with the medical certificate that had been provided by the Applicant, in respect of the hearing of the substantive application, the Court found that the Minister suffered little prejudice, as conceded by the Minister, if the matter were to be reinstated. The Minister also submitted that the application had no merits and thus it would be futile to set aside the orders dismissing the application, but the Court determined that the hearing of the application filed 31 August 2016 could proceed at 2.15pm in the afternoon of 20 August 2018.
On the hearing of the matter at 2.15pm on 20 August 2018, the Applicant appeared in person and Mr Lipinski appeared as Counsel for the First Respondent.
Before the Court was the Applicant’s application filed 31 August 2016, which contained eight grounds of application. Those grounds of application are annexed to these reasons (‘Annexure A’). The First Respondent filed a response seeking dismissal of the application and costs. There was additionally, before the Court, the evidence as contained in the Court Book filed 1 March 2017; the Applicant’s submissions filed on 21 March 2017; and the First Respondent’s submissions filed on 6 April 2017.
Background
The Applicant was granted an initial Student (Class TU) (Subclass 572) visa offshore on 13 October 2008. It was valid until 30 October 2010. He subsequently arrived in Australia on 8 November 2008. Since his arrival onshore he has held either a student visa or an associated bridging visa.
On 11 March 2015, the Applicant, who is a citizen of India, applied for a further Student (Class TU) (Subclass 572) Visa. At the time of that application, he was enrolled to undertake a Diploma and an Advanced Diploma of Marketing.
The Applicant was represented by his authorised representative. By emails sent to that authorised representative, dated 12 March 2015 and 14 May 2015, the Department of Immigration and Border Protection (‘the Department’) requested the Applicant provide further information, including evidence in relation to the Applicant’s English language ability, genuine temporary entrant criterion, financial capacity and health. The Department sought a response within 28 days.
In the Department’s invitation for comment, the delegate, as noted in the delegate’s decision of 19 May 2015 said, relevantly:-
“[The Applicant had been] invited to provide, including documentary evidence, an explanation or comment regarding:-
- Records show you have been in Australia 5.7 years and attempted Certificate 3 Hairdressing (3 months-not completed), Certificate 3/Diploma Automotive, Certificate 4 Business, Diploma/Advanced Diploma of Management, Certificate IV Auto Mech Diag. You have now applied to study Certificate 4, Diploma & Advanced Diploma of Marketing.
- Please provide a detailed statement of your career goals and future study intentions.
- Please provide a statement setting out your reasons for undertaking the course(s) of studies specified in your application.”[1]
[1] Court Book filed 1 March 2017, 102.
On 26 March 2015 and 15 May 2015 the Applicant’s authorised representative provided the Department additional information and evidence in support of the visa application, including financial information, medical information, evidence of his education and a statutory declaration of the Applicant.
The delegate was not satisfied that the Applicant genuinely intended a temporary stay in Australia. The delegate, as set out in Ministerial Direction Number 53, weighed the Applicant’s circumstances and immigration history and also considered whether there were any other matters relevant to the delegate’s assessment of the Applicant’s genuine intention to temporarily stay in Australia, but on balance was not satisfied that the Applicant was a genuine Applicant for entry and stay as a student because the delegate was not satisfied the Applicant intended to genuinely stay in Australia temporarily, having regard to his circumstances and immigration history and other relevant matters.
The Tribunal
On 25 May 2015 the Applicant applied to the Tribunal for a review of the delegate’s decision. By letter dated 25 July 2016 the Tribunal invited the Applicant to attend a hearing on 11 August 2016. That hearing invitation requested the Applicant, relevantly, to provide:-
“…information so that a decision can be made as quickly as possible.”
The information requested was:-
a)a copy of a current Certificate of Enrolment (COE);
b)documents that showed the Applicant was currently enrolled in or had an offer of enrolment in a registered course;
c)documents that showed the Applicant’s past studies in Australia, including copies of all the Applicant’s attendance certificates, academic transcripts and certificates of completion, as well as documents evidencing any work related to past or intended studies in Australia; and
d)an explanation of any gaps in the Applicant’s enrolments and documentary evidence relevant to that explanation.
The Applicant was advised in the hearing invitation that the Tribunal would assess whether the Applicant intended genuinely to stay in Australia temporarily. The invitation to a hearing also attached a copy of Ministerial Direction Number 53 made under s.499 of the Migration Act 1958 (Cth) (‘the Act’), and the Applicant was asked to provide a statement addressing those issues contained in the Direction. On 29 July 2016 the Applicant appointed a new representative (‘the second authorised representative’). By email dated 4 August 2016 the second authorised representative provided the Tribunal with, amongst other things, the documents requested by the Tribunal on 25 July 2016.
On 11 August 2016 the Applicant and his second authorised representative attended the hearing before the Tribunal. The Applicant provided to the Tribunal the ‘Angad International Student Information Handbook’.
Tribunal decision
The Tribunal affirmed the decision under review. Having considered the Applicant’s circumstances as a whole, including the issues in Ministerial Direction Number 53, the Tribunal was not satisfied that the Applicant was a genuine student who intended to stay temporarily in Australia. The Tribunal therefore found the Applicant did not meet cl.572.223(1)(a) of Schedule 2 to the MigrationRegulations 1994 (Cth) (‘the Regulations’). The Tribunal said, at paragraphs 28 to 30 of the Tribunal Statement of Decision and Reasons (‘the Decision Record’), the following:-
“(28) The Tribunal finds that your enrolment and your study history is not that of a genuine student seeking to progress academically but rather indicates that you are using the student visa programme to maintain residence in Australia.
(29) When asked why you do not do your proposed studies at home you state that, Australia is one of the safest places to study, multicultural with a diverse culture, and qualifications accepted worldwide. Given you wish to go back and set up your own business, whether qualifications are accepted worldwide is irrelevant.
(30) As mentioned in the Primary decision, the fact that you have been here for almost 8 years and have not progressed beyond studying courses at the Vocational Education and Training Sector, where you have enrolled in short, relatively inexpensive courses indicates that you are using the student visa programme to maintain residence in Australia rather than due to a genuine interest in studying and academic progression.”
The Tribunal noted otherwise conflicting evidence provided by the Applicant about his future intentions in respect of his future employment prospects, and the Tribunal found that the studies undertaken by the Applicant did not provide commercial value to his future. The Tribunal noted that before coming to Australia the Applicant had completed a Bachelor of Arts Degree at Chandigarh University in Punjab. He came to Australia in November 2008, on a student (Class TU) (subclass 572) visa to study in Brisbane to qualify as a hairdresser.
The Tribunal confirmed its decision by email to the Applicant and his second authorised representative and notified the Applicant that he could request a written statement of decision and reasons. Subsequently the second authorised representative requested, by email, of the Tribunal a detailed copy of the Decision Record.
The Tribunal, in coming to its decision, outlined the relevant law, including Ministerial Direction Number 53; properly considered each of the Applicant’s claims and evidence, rejected the Applicant’s claims and evidence based on, amongst other findings, that they were not “reasonable” and were “conflicting”; and found otherwise as set out above.
Consideration
In essence, the grounds of review and the submissions of the Applicant challenge the merits of the Tribunal’s decision. That is not, in the circumstances of this case, a matter for the Court. The Tribunal did not make an error of law. It correctly applied the law and it considered each of the Applicant’s claims, making findings open to it on the evidence before it. There was no illogicality in the reasoning process nor in the findings of the Tribunal.
As submitted by the First Respondent, the Tribunal did engage in an “active intellectual process.”[2] In considering the matters prescribed in cl.572.223(1)(a) of Schedule 2 to the Regulations and the Ministerial Direction, the Tribunal considered, amongst its other considerations:-
a)the length and cost of the Applicant’s courses;
b)the fact that many of the courses contained units that were in courses the Applicant had previously studied; and
c)conflicting evidence as to the Applicant’s future intentions
in finding that the Applicant was not a genuine temporary entrant.
[2] Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 57.
As further submitted by the First Respondent the Tribunal was entitled to determine the weight to be given to the above matters before it, in a manner it considered appropriate,[3] and there was no requirement that the Tribunal consider or weigh the evidence in the manner proposed by the Applicant in the Applicant’s grounds of judicial review numbered 1, 2, 5, 6 and 7.
[3] Ibid 58.
The Tribunal did not fail to consider the Applicant’s claims and evidence and its reasons disclose an appropriate weighing of such evidence, including the evidence relied upon by the Applicant.[4] The Tribunal did consider the claims underpinning grounds 1 to 6 of the Applicant’s application for judicial review.
[4] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, 50.
Whilst the Applicant complains in ground 7 that the Tribunal’s finding regarding his “relatively inexpensive” courses ignore the cost to him on his budget the Court accepts the submissions of the Minister that:-
a)other than in these grounds, it is not clear the Applicant made any positive claim to the Tribunal (or delegate) that the courses were actually expensive;
b)it is clear that the Tribunal considered the courses inexpensive, only relative to other courses, and its findings more generally raise several areas of concern; and
c)more fundamentally, the reasons at that paragraph are citing matters in the delegate’s decision which the Applicant provided to the Tribunal. There was therefore no obligation on the Tribunal to put that “information” to the Applicant.[5]
[5] Migration Act 1958 (Cth) ss.359A(4)(a), (b).
In relation to ground 8, the Court finds the Applicant did not raise with either the Department or the Tribunal, prior to the hearing, any claim or evidence as to his automotive related work experience in Australia. In any event, it was not a relevant matter such that the Tribunal was “bound” to consider it.[6]
[6] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 66 ALR 299, 308.
The Applicant’s submissions at paragraphs 5 and 9 give rise to an allegation of apprehended bias. This allegation has no basis. There is no evidence that the Tribunal member did not bring an impartial or unprejudiced mind to the making of its decision.
To the extent the Applicant’s submission at paragraph 4, that the Tribunal’s consideration of some of his claims was “absurd” or gave rise to an allegation that the Tribunal’s decision was “illogical or irrational”, in the sense articulated in paragraph 130 of Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611, this submission cannot be made out. There are no illogical or irrational conclusions in the decision of the Tribunal. The Tribunal made findings open to it, on the evidence before it, after first giving rational and logical consideration to that evidence and with reference to Ministerial Direction Number 53.
Accordingly, the Court shall dismiss the application and costs shall follow that order. The costs which the Court will award are in the sum of $7,467 in respect of the substantive application and $3,737 in respect of the Applicant’s application to set aside the earlier orders of the Court.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 31 August 2018
‘Annexure A’
The decision of the Tribunal is affected by a jurisdictional error. The reasons are as below;
The Tribunal noted that since arriving in Australia I had enrolled in and studied a number of courses being in Automotive, Business, Management and Marketing. The Tribunal incorrectly regarded my different courses as change of courses. The Tribunal incorrectly refused to accept my submission that my courses were not changes, but rather progressive from the main filed of Automotive to Business, Management and Marketing to equip me with knowledge to set up, manage and market my own Automotive related business.
The Tribunal also asserted that I was not a genuine student. This is incorrect as in Australia there has been no gap or deferment in my studies. Except for the change of initial course from hairdressing to automotive after about 3 months, I have completed all courses in a timely manner in which I had enrolled in Australia.
The Tribunal gave too much weight to the fact that I had changed my initial course from hairdressing to automotive after a very short time (3 months) but failed to give enough weight to the fact that since then I had progressively completed all the courses in a timely manner that I had enrolled in.
The Tribunal found that the courses I had studied did not follow an academic path where each adds value to my future employment prospects. This finding was contrary to my submissions of intending to open my own automotive related business and how my courses were to help me achieve that.
The Tribunal incorrectly did not accept that Marketing studies do not add value to my proposed business of mobile automotive service or equip me to me a more attractive and valuable employee in business. In fact, marketing has a great impact on the success of any business and also additional education and knowledge is always desired by an employer.
The Tribunal also incorrectly relied too much on the fact that many of my courses contained units that were also in courses I had studies previously. Even though l had some same/similar units, I received appropriate credit for those which reduced the length or workload of my next course.
The Tribunal also incorrectly relied too much on the fact that my courses were inexpensive. This is incorrect. My courses cost an average of $6,000 per year. This is not inexpensive for an overseas student with limited means.
The Tribunal failed to recognise the progression and value of my courses to me in future especially in light of my proposed plan to open my own business. The Tribunal also did not take into account my automotive related work experience in Australia.
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