Grewal v Minister for Immigration

[2018] FCCA 2594

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREWAL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2594

Catchwords:
MIGRATION– Application for review of decision of Administrative Appeals Tribunal refusing the application for the grant of a student visa– where Tribunal discharged duty to properly consider and arrive at decision concerning Applicant’s failure to consider future job prospects in home country – application for review dismissed.

Legislation:

Migration Regulations 1994 (Cth) – cl 572.223(1)(a)

Migration Act 1958 (Cth) – ss.476(1), 499, 499(1)

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: JASWANT SINGH GREWAL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEAL TRIBUNAL

File Number: BRG 1080 of 2016

Judgment of: Judge Egan

Hearing date: 5 September 2018

Date of Last Submission: 5 September 2018

Delivered at: Brisbane

Delivered on: 5 September 2018

REPRESENTATION

Counsel for the Applicant: Mr P Travers

Solicitors for the Applicant: Chand Lawyers

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application for review filed on 16 November 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of five thousand dollars ($5,000.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1080 of 2016

JASWANT SINGH GREWAL

Applicant

And

MNISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVEAPPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia as the holder of a student (temporary) (subclass 572) visa on 23 June 2009.  A student visa was granted and valid until 15 March 2012.  Subsequently, the applicant was granted a subclass 457 visa for the period from 13 April 2012 until 10 July 2013. 

2. The applicant was subsequently granted a further subclass 572 visa, valid until 30 October 2015.  On 27 September 2015, the applicant made an application for a further student (temporary) (class TU) visa.  That application was made on the basis that the applicant intended to undertake further study for a diploma of marketing which was an advanced diploma. 

3. On 30 October 2015, a delegate of the Minister refused to grant the applicant the visa. The delegate was not satisfied that the applicant intended genuinely to stay only temporarily in Australia and that, therefore, the applicant did not meet the requirements of clause 572.223(1)(a) of the Migration Regulations 1994 (Cth).

4. The applicant made application for review of the delegate’s decision by the filing of an application to the tribunal on 18 November 2015. On 24 October 2016, the Administrative Appeals Tribunal (“the AAT”) affirmed the decision of the delegate. The applicant filed an application for judicial review of the decision of the AAT on 18 November 2016. The application was brought pursuant to section 476(1) of the Migration Act 1958 (Cth) (“the Act”).

5. At paragraph 6 of the reasons of the AAT, it was indicated that the applicant had been enrolled in, and had successfully completed, the following courses since his arrival in Australia:

   1.General English – 2009

   2.Certificate III in Carpentry – 2009/2010

   3.Diploma of Building and Construction – 2010/2011

   4.Certificate IV in Small Business Management – 2013

   5.Diploma of Management – 2013/2014

   6.Diploma of Business – 2014/2015

   7.Advanced Diploma of Business – 2015

   8.Diploma of Marketing – 2015/16

6. Pursuant to the provisions of section 499 of the Act, Ministerial Direction No. 53 came into operation. That Ministerial Direction was dated 3 November 2011. Matters which are relevant to the consideration of a decision-maker in relation to matters such as the present are set out in that Ministerial Direction.

7. Section 499 of the Act provides as follows:

   Minister may give directions

   (1)  The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

   (a)  the performance of those functions; or

   (b)  the exercise of those powers.

   (1A)  For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

   (2)  Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

   (2A)  A person or body must comply with a direction under subsection (1).

   (3)  The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

   (4)  Subsection (1) does not limit subsection 496(1A).

8. It can be seen from a reading of section 499(1) of the Act that such a Ministerial Direction applies to a person or body having functions or powers under the Migration Act if the direction is about the performance of those functions or the exercise of powers under the Act.

9. It is clear that the AAT was one such body and that pursuant to the Ministerial Direction it was required to have regard to the contents of the direction. 

10. Clause 12 of that Ministerial Direction provides, under the heading “value of course to the applicant’s future”, the following: 

    Decision makers must have regard to the following factors in considering the value of the course to the applicant’s future:

    a. Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.

    b. Relevance of the course to the student’s past or proposed future employment either in their home country or a third country.

    c. Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

11. In paragraphs [41] and [45] of the reasons of the AAT, it was pointed out that on the applicant’s evidence he had not looked into any job positions, or researched the issue of employment in his home area, saying that he would do that in the future.  His evidence was that he was, in part, undertaking a course of study to improve his job prospects and job opportunities.  The tribunal expressed concern about the genuineness of the applicant in his undertaking of studies in circumstances where, particularly in relation to the marketing course last undertaken by him, one would have thought that the applicant would have looked into the prospective work positions available in India, and how the course might help his job prospects in India in the light of his assumed completion of such course.

12. The AAT did not accept that the applicant was undertaking his then study in marketing for the reasons he had claimed, rather, finding that he was using such study, and his student visa, as a means of maintaining his residence in Australia.

13. Paragraphs [41] – [45] of the reasons inclusive are as follows:

    41. When asked at hearing to provide further evidence as to why he has studied these courses and is studying marketing courses the applicant did not elaborate further rather than providing evidence in general terms, as noted above. His evidence that he has not looked into any job positions or researched the area and will do that in the future is of significant concern, particularly as his evidence is that he is, in part, undertaking these courses to improve his job prospects and job opportunities. The Tribunal is of the view if he was genuine in this reason for undertaking the marketing courses he would have looked into the positions available in India and how the course would help his job prospects and opportunities, even if he is busy studying in Australia.

    42. His evidence that studying these courses would help him with his business in his trade also contradicts his claim he is studying the courses to obtain a job as an administrator or in marketing.

    '43. The Tribunal is of the view that his lack of detailed and clear evidence as to his future career aim and why he has undertaken the courses he has, plus his lack of research into the future career opportunities to be significant, particularly as he has been in Australia since 2009. These factors lead the Tribunal to not be satisfied that he has undertaken the range of courses he has, all at the vocational level, and is undertaking the Advanced Diploma of Marketing for any career aim or any other stated aim. Rather it is of the view he is using the student visa program to maintain residence in Australia,

    44. As to the applicant's immigration history, there is no evidence before the Tribunal he has previously travelled to Australia or anywhere else before 2009, or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas.

    45. In making my decision I have considered all the evidence before me, including that he is currently enrolled and successfully completing an Advanced Diploma of marketing which finishes in November 2016, he has stronger family ties in India than Australia, that he has successfully completed all the courses enrolled in and remained enrolled while on the student visas and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

14. The application for review initially consisted of three grounds, but during the course of the hearing, grounds 1 and 2 were abandoned.  That left ground 3 which was the ground which asserted that no reasonable tribunal could have arrived at the decision which it did, in particular, claiming that the decision made by the tribunal was illogical, irrational, or manifestly unreasonable. 

15. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] and [135], respectively, it was said by Crennan and Bell JJ as follows:

    [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

    [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

16. It cannot be said that the AAT, having due regard to the contents of clause 12 of Ministerial Direction 53, failed in its duty to properly consider, and then arrive at a decision concerning, the question of the applicant’s having failed to consider future job prospects in India when undertaking the marketing course.  That is particularly so in the light of the AAT having already addressed relevant issues relating to the applicant’s studies and stays in Australia as follows: 

    a)The applicant had not returned to India since arriving in Australia in June 2009 [37].

    b)Since the expiry of the applicant’s subclass 457 visa in 2013, the applicant had studied at a vocational level in a range of areas including business, management and marketing which indicated that he was using the student visa program to maintain residence [38].

    c)The applicant had not provided credible evidence as to why he had undertaken courses since 2013, all at a vocational level, as well as his evidence in relation to his lack of information or knowledge about how that study might assist him in the future. (See [39] of reasons)

    d)The applicant had not inquired as to whether the marketing study undertaken by him would have been likely to result in him obtaining any worthwhile employment in India [41].

    e)The applicant’s claim that the study undertaken would assist him in his business and in his trade contradicted his claim that the purpose of his study was to obtain employment as an administrator or as a marketing manager [42].

17. The tribunal found that the applicant was using the student visa program to maintain residence in Australia, and was not satisfied that the applicant was a genuine applicant for entry and temporary stay in Australia as a student. 

18. At [47] of the reasons, the AAT held that based on what was evidenced in the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia, as well as the matters referred to above, the tribunal was not satisfied that the applicant was a genuine applicant under the program. 

19. The fact that it was found that the applicant had closer family ties to India rather than Australia is but one criteria to be taken into account when considering whether to grant or refuse a student visa, and clearly, the tribunal was not satisfied that such consideration was determinative in the circumstances of the application before it. 

20. In all of the circumstances, therefore, the application for review should be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 25 September 2018