Grewal v Minister for Immigration

[2017] FCCA 2048

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREWAL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2048

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl. 573.223

Applicant: ARVINDER SINGH GREWAL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1174 of 2016

Judgment of: Judge Vasta

Hearing date: 21 August 2017

Date of Last Submission: 21 August 2017

Delivered at: Brisbane

Delivered on: 21 August 2017

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the Application filed 20 December 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs of and incidental to this proceeding fixed in the sum of $5,800.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1174 of 2016

ARVINDER SINGH GREWAL

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

and

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this Court, on 20 December 2016, the Applicant, Arvinder Singh Grewal, has asked this Court to review a decision of the Administrative Appeals Tribunal, which was given on 15 November 2016.  That decision affirmed a decision by the delegate for the Minister of Immigration not to grant the Applicant a student visa. 

2. The facts, in short compass, are that the Applicant is a citizen of India, and arrived in Australia on 19 June 2013, on a subclass 573 visa, which was valid until 16 September 2015.  The 573 visa is a visa for a course of study that is in the higher levels of study; that is, Bachelor’s courses and above. 

3. He was to do an ELICOS course, and then that would lead to doing a Masters of Business Administration at James Cook University.  This follows on the fact that the Applicant had completed a Bachelor of Arts in India, and he came to study business in Australia, so as to improve the family farm business.

4. He did do the ELICOS course, but then claimed that the people told him to instead study at New England College, rather than James Cook University.  He claimed that he was more interested in practical matters, and so changed to study automotive studies at the New England College of Technology. 

5. He said that he was interested in this area, and did not understand the difference between subclasses 572 and 573.  He claimed that he sought deferment from James Cook University, received no response and then found out that his visa was cancelled.

6. What he had done, in the meantime, was completed a certificate III and a certificate IV:  a certificate III in light vehicle mechanical technology, and a certificate IV in automotive mechanical diagnosis, but they are the only courses of study that the Applicant has completed, and they are at a low level. 

7. The Applicant claimed, to the delegate, that he always had the dream of opening his own business, and so he wanted to learn business skills, together with the practical aspect, in order to start his own business. He said that this is why he wanted to study a Graduate Diploma in Business, and a Masters of Professional Accounting, and the sort of business he wants to run is a garage, which is quite different to what his proposed courses of study was when he entered the country.

8. The Applicant gave the Tribunal all of this information.  He told the Tribunal that, notwithstanding that he had done those certificates, he had tried to study but he had a car accident in May of 2016.  He was asked if he had advised the school about that accident, and said he did, but he did not ask for a deferment. 

9. Notwithstanding that he was unconscious in the accident, and spent a day in hospital, he did not ask whether he could have his examinations and assessment on those subjects deferred.  He said that he did not know that he could actually ask that.

10. The Tribunal had told the Applicant that they had difficulty accepting that he was studying a Graduate Diploma in Business, and a Masters of Professional Accounting, to assist with a garage business on return to India. 

11. The Tribunal questioned the value of those courses to his future career, and the Applicant responded that he needed business knowledge.  The Tribunal, again, questioned the value of those courses to the future career, and why he would need such a level of courses to operate a garage business. 

12. The Tribunal, again, noted that since 2013, apart from the ELICOS course, and those two certificates, the Applicant had not completed any other study.  The Applicant said that it was because of the accident and the Tribunal questioned that, noting that the accident occurred in May 2016, well after he had come to Australia.

13. He told the Tribunal he is presently attending the Graduate Diploma in Business, and will complete three subjects in this semester.  The Applicant ended up producing an email from the Holmes Institute, indicating that the Holmes Institute decided not to report him to immigration for unsatisfactory study progress, due to the car accident, based on some medical evidence. 

14. In summary, that was the material before the Tribunal, and the Tribunal looked at cl.573.223 and direction number 53.  In the end, the Tribunal found that the Applicant did not satisfy the genuine temporary entrant criterion.

15. The finding was based on a number of factors.  The Tribunal said that the Applicant had been in Australia since 19 June 2013, a period of over three years, and now over four years.  The Tribunal viewed that it was significant that, since his arrival in 2013, the Applicant has only completed the ELICOS course and the two courses at the vocational level, which were subclass 572 level, both of those courses being approximately six months long. 

16. The Tribunal viewed that the period that the Applicant had stayed in Australia, only completing courses at the vocational level, was indicative of a person using the student visa program to maintain residence. 

17. In making that assessment, it accepted the car accident evidence, but even taking that into account, the Tribunal still was concerned that the Applicant had only successfully completed the courses that he had, in that period of time.

18. The Tribunal acknowledged that, since mid-2015, the Applicant had been enrolled in a Graduate Diploma of Business.  However, the evidence indicates that the Applicant had not yet successfully completed any subjects in that course.  Again, accepting the car accident evidence, which affected the ability to successfully complete courses in that semester, the Tribunal viewed it as “of concern” why the Applicant did not successfully complete any courses in that courses, whilst being enrolled from mid-2015. 

19. The Tribunal had difficulty accepting that it was because he was not used to studying automotive at the vocational level, when he had completed a Bachelor of Arts already, in India.

20. The Applicant had stated, at the hearing, that he would successfully complete three courses in the semester, notwithstanding his lack of successful completion of courses in 2015 in the Graduate Diploma of Business.  This unrealistic “goal” added to the Tribunal’s concern that he was using the student visa process simply to maintain residence. 

21. In the end, the Tribunal made the decision that the Applicant was not a genuine entry student, and therefore did not fit the criteria under cl.573.223(1)(a).  Therefore, it affirmed the decision.

22. The Applicant brought this matter to the Court on three grounds. The first ground was:

    “1. Unjust decision made by the delegate of the department and in error to believe my qualification does not relate to the Master’s degree I wish to pursue.”

23. This ground really is an attempt for an impermissible merits review.  The decision may be seen as unjust, but it was a decision that was still open on the evidence. The Applicant could not show to me that this decision was not open.  He simply argued that it was a decision that the Tribunal should not have made, because all the Applicant wants to do is study. 

24. The fact is, that whilst other Tribunals may have come to different conclusions, that did not mean that such a conclusion, that this Tribunal came to, was not open on the evidence.  In summary, there is no jurisdictional error founded in this ground.

25. The second ground:

    “2. Unjust analysis of the genuine temporary entrant statement that was provided.”

26. The analysis of the statement that the Applicant had made was a proper analysis.  Whilst the analysis was not to the liking of the Applicant, that is not the test.  The submission by the Applicant, other than simply saying, “I don’t like it” or, “I disagree”, did not contain any reason as to why the analysis was a wrong analysis. Again, this ground is an attempt at an impermissible merits review, and exposes no jurisdictional error.

27. The third ground:

    “3. There are numerous instances where people from various educational background chose to study Master of professional accounting as this course will provide them with valuable insight on the principles of business and financial management.”

28. As much as this statement may be true, the Tribunal was of the view that it did not apply to this particular Applicant.  That was a matter that was totally within its purview, and does not disclose any jurisdictional error.

29. Having gone through the decision myself, I cannot see that there is actually any jurisdictional error made by the Tribunal. 

30. With that as a result, there is no option for me but to dismiss the application and to order that the Applicant pay the costs of the Minister, fixed in the sum of $5,800.00.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 4 October 2017