Grewal v Minister for Immigration

[2016] FCCA 3168

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREWAL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3168

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

First Applicant: SUKHWINDER KAUR GREWAL

Second Applicant: JAGSIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1412 of 2015

Judgment of: Judge Riethmuller

Hearing date: 14 November 2016

Date of Last Submission: 14 November 2016

Delivered at: Melbourne

Delivered on: 14 November 2016

REPRESENTATION

The First Applicant appeared In Person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for judicial review be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1412 of 2015

SUKHWINDER KAUR GREWAL

First Applicant

JAGSIR SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore)

1. This is an application for judicial review of a decision of the Migration Review Tribunal, as it was then called, made on 4 June 2015.  The matter was the subject of a directions hearing in this Court in July 2016.  The applicant has not filed any outline of argument, nor any amended application, despite the fact that her current application does not appear to identify any ground for review. 

2. At the hearing this afternoon, the applicant attended and sought an adjournment.  In support of that application, she tendered an email exchange between a lawyer, Mr Godson Nwankwo and Mr David Brown from the Australian Government Solicitor’s office.  Mr Nwankwo sought an adjournment of the matter to enable him to file and serve an amended application and written submissions.  No timeframe was sought by the lawyer.  The lawyer had not filed a Notice of Address for Service.  Nor did the lawyer provide any confirmation that he would, in fact, act in the matter if it were adjourned.  These are strong factors against granting an adjournment in these circumstances. 

3. Mr Brown for the Minister highlighted the fact that the lawyer had not gone on the record for the applicants in his response.  He pointed out that the court book had been delivered six months earlier and that the applicants had already failed to file materials by 20 October 2016 in accordance with hearing directions.  The solicitors for the Minister were of the view that the applicant had had sufficient time to prepare that the hearing should proceed in these circumstances. 

4. As best I can ascertain, the applicant has not yet put the lawyer in funds and there is no reliable basis for concluding that the lawyer is likely to attend on the next occasion if the case is adjourned.  The applicant sought only an unspecified time for the adjournment until she was pressed, when she ultimately asked for a couple of months. 

5. In these circumstances, it does not appear to me to be appropriate to grant an adjournment, rather it was quite appropriate for the lawyer for the Minister to decline to agree to an adjournment.  Had the applicant’s proposed lawyer filed a Notice of Address for Service, or provided some other confirmation that he would, in fact, be appearing to argue the case, the circumstances would have been different.  Indeed, it is not uncommon for the lawyers for the Minister (as model litigants) to agree to adjournments in such circumstances, that is, where there is some material to confirm that a lawyer is, in fact, working on the case and will argue it if given a reasonable period of time.  In the circumstances of this case, I am not persuaded that an adjournment is appropriate.

   [Further argument ensued on the substantive issues]

6. The applicant came to Australia in May 2009 on a student visa.  She was granted a further student visa in October 2011.  That visa was valid until 15 March 2014.  She applied for a further student visa in February 2014, which a delegate of the Minister refused to grant in May 2014.  The applicant applied to the Tribunal to review the delegate’s decision, and the Tribunal affirmed that decision in June 2015.

7. The facts of the case are a little unusual.  The applicant is somewhat older than the common age of students, having been born in 1979.  Before arriving in Australia, she was working as a primary school teacher in India and she had also completed a Master of Arts degree.  She came to Australia to study a Diploma of Community Welfare work, which she completed in September 2011.  She then undertook a Diploma of Management, which she completed in September 2013.  She then enrolled in an Advanced Diploma of Management in February 2013, but in May of that year changed to a Diploma of Production Horticulture.  After completing that diploma, she then sought to enrol in a Diploma of Agribusiness Management, to be followed by an Advanced Diploma of Agribusiness Management. 

8. The Tribunal were not persuaded that the applicant was a genuine student.  In coming to this conclusion, the Tribunal had regard to the matters set out in Direction 53, which is a comprehensive list of matters to take into account when making such a decision. 

9. The Tribunal noted her personal circumstances and background and her evidence that she studied the community welfare course because that’s what her agent had enrolled her in.  She said that she did not have any interest in a career in that field but had always wanted to study horticulture to improve her father’s farming business.  She said that her father owns seven acres of land in India.  Not surprisingly, the Tribunal was concerned that she would have been in Australia for eight years studying if she were to complete the courses that she planned.  The Tribunal also noted that given the size of the farm, the Diploma in Production Horticulture appeared sufficient.  The variety of courses that she undertook, and her admission that she never was interested in a career in community welfare were circumstances that indicated that she was not here as a genuine student to remain in Australia temporarily for the purpose of studying.  Ultimately, the Tribunal member concluded that the applicant would be using a student visa to circumvent the intention of the migration program.  Thus, the Tribunal concluded that the applicant did not meet criteria 572.223, in that the Tribunal was not satisfied that she intended genuinely to stay in Australia temporarily.

10. On the material before it, this was a finding that was open to the Tribunal – a finding that they were logically able to make on the evidence before them.  The applicant was not able to articulate any complaint about procedural fairness, nor about the reasoning of the Tribunal.  The applicant does not point to any error of law by the Tribunal. 

11. The grounds of the application provided by the applicant state:

    I applied student visa on 27 Feb 2014 to the department of immigration my application was refused by deligate of the minister on the basis that i did not satisfied the requirement.

    I applied for review application to MRT. I appeard before the Tribunal to Present aguement and give evidence that my intention to study is genuine and I will return back to my county after compete my study but MRT made a decision against my application.

    I am not satisfied with the decision made by MRT I believe these is an error their for I want to appel against decision in the court.

12. In substance, the applicant simply seeks to have the Court review the merits of the decision.  In the circumstances, I therefore dismiss the current application. 

    [further argument ensued]

13. In this matter, the applicant has been unsuccessful.  Costs ordinarily follow the event.  The sum sought is less than the scale fee.  No doubt if the applicant wishes to enter into a payment arrangement with the Minister, she can discuss that with the Minister’s lawyers.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 8 December 2016