Gupta v Minister for Immigration

[2016] FCCA 871

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUPTA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 871

Catchwords:
MIGRATION – Review of decision of the former Migration Review Tribunal – refusal of a temporary student visa – applicant found not to be a genuine temporary entrant – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001

Migration Act 1958 (Cth), ss.499, 359A, 360

Migration Regulations 1994 (Cth)

Ghimire v Minister for Immigration [2014] FCA 899
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Re The Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SHUSHANT GUPTA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE REVIEW TRIBUNAL

File Number: MLG 503 of 2015

Judgment of: Judge Driver

Hearing date: 14 April 2016

Delivered at: Melbourne

Delivered on: 14 April 2016

REPRESENTATION

Mr Gupta appeared in person

Solicitors for the Respondents: Ms Gangemi, Australian Government Solicitor

ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”

2. The application filed 13 March 2015 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 503 of 2015

SHUSHANT GUPTA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 18 February 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Gupta, a temporary student visa.  Background facts relating to this matter are conveniently set out in the Minister’s outline of legal submissions filed on 31 March 2016. 

Background

1. Mr Gupta is a 26 year old male citizen of India[1] who first arrived in Australia on a student visa in February 2007. He was subsequently granted two further student visas, the latter valid until 17 September 2010. On 18 September 2012, he was granted a Temporary Graduate (Class VC subclass 485) visa valid until 18 March 2014.[2]

   [1] Court Book 1-2 (CB)

   [2] CB 73

2. On 17 March 2014, Mr Gupta applied for the visa currently in issue.[3] On 20 March 2014, the Department of Immigration and Border Protection (the Department) wrote to Mr Gupta requesting that he provide further information, including a statement of purpose setting out his reasons for undertaking the course of study specified in his application, evidence of his economic circumstances in his home country, evidence of significant ties to his home country, copies of employment references and evidence of previous studies. Specifically, the letter asked Mr Gupta to explain why he was studying a Diploma of Business when information available to the Department indicated that he had finished this course in November 2010.[4]

   [3] CB 1-21

   [4] CB 38-44

3. On 17 April 2014, Mr Gupta provided the Department with a statement of purpose. Mr Gupta claimed that he was undertaking a Diploma of Business as his “knowledge of hospitality was not enough in order to manage and run a business”. Mr Gupta further claimed[5]

   I feel that diploma will enable me to secure a better carrier in my future and I am try to learn something more in in which I found my interests and related to my future career. … I wish to open my own restaurant in the future and this course will certainly enable me to progress in this direction. Hospitality is a booming industry in my country India and I am excited with the prospect of opening my own restaurant and being united with my family members.

   (errors in original)

   [5] CB 45, 66

4. On 16 July 2014, a delegate of the Minister refused to grant the visa as Mr Gupta did not satisfy the requirements of clause 572.223(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). Specifically, the delegate was not satisfied that Mr Gupta was a genuine applicant for entry and stay as a student as the delegate was not satisfied that Mr Gupta intended genuinely to stay in Australia temporarily.[6]

   [6] CB 71-76

5. On 30 July 2014, Mr Gupta applied to the Tribunal for review of the delegate’s decision.[7]

   [7] CB 77-87

6. On 12 December 2014, the Tribunal wrote to Mr Gupta inviting him to attend a hearing before it on 18 February 2015.[8] A copy of Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications dated 3 November 2011 (Direction No. 53) was attached to the hearing invitation. The hearing invitation also stated that:

   The Tribunal will assess whether you intend to genuinely stay in Australia temporarily as required by clause 572.223(1)(a) of the Migration Regulations.

   Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.

   Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction No. 53.

   [8] CB 91-93

7. On 18 February 2015, Mr Gupta appeared at a hearing before the Tribunal and gave evidence and presented arguments.[9] At the hearing, Mr Gupta also submitted documents, including documents evidencing his previous studies and confirmation of enrolment in a Diploma of Business.[10]

   [9] Tribunal Decision (TD) [4], CB 129

   [10] CB 97-124, TD [13], CB 131

8. On 18 February 2015, the Tribunal affirmed the decision of the delegate.

9. On 13 March 2015, Mr Gupta lodged his application for judicial review.[11]

   [11] CB 1-6

Relevant legal framework

1. At the time of the application for the visa, clause 572.223 of Schedule 2 to the Regulations was a mandatory time of decision criterion for primary applicants for the grant of a subclass 572 visa. The clause provided that: 

   (1) 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 Mr Gupta; and

   iv.any other relevant matter; and

   (b) the applicant meets the requirements of subclause (2).

2. Under s. 499 of the Migration Act 1958 (the Act), the Tribunal is required to comply with written directions given by the Minister about the performance of functions or the exercise of powers under the Act. Relevantly in this case, Direction No. 53 was issued under s. 499 of the Act and set out the factors to be taken into account in assessing whether an applicant for a student visa was a genuine temporary applicant for entry and stay as a student. The factors are not to be used as a checklist but are intended to guide decision makers to weigh up the applicant’s circumstances as a whole in reaching a finding as to whether the applicant satisfies the genuine temporary entrant criterion.[12]

   [12] see Ghimire v Minister for Immigration [2014] FCA 899 at [4] per Gilmour J

Tribunal's findings and reasons

1. At [7],[13] the Tribunal stated that the issue in the review was whether Mr Gupta met the time of decision criterion in clause 572.223(1)(a).

   [13] CB 129

2. At [8] to [9],[14] the Tribunal noted that it was required to have regard to the factors in Direction No. 53 in considering whether Mr Gupta met the criterion in clause 572.223(1)(a).

   [14] CB 130

3. At [10] to [12],[15] the Tribunal considered Mr Gupta’s immigration and study history. At [12], the Tribunal considered Mr Gupta’s claim that he previously undertook a Diploma of Business but did not complete it. However, as information obtained from the Provider Registration and International Student Management System (PRISMS) cited in the delegate’s decision stated that Mr Gupta had completed all the required units to complete his course, the Tribunal did not accept Mr Gupta’s statement that he had not completed this course, or that he had provided any satisfactory explanation as to why he had enrolled in a Diploma of Business for a second time.

   [15] CB 130-131

4. Further, at [13][16], the Tribunal noted that Mr Gupta’s failure to complete his last course (a Certificate IV in Business scheduled to finish on 14 September 2014), added to the Tribunal’s view that he did not intend to stay in Australia temporarily.

   [16] CB 131

5. At [14],[17] the Tribunal noted that Mr Gupta had been in Australia a “very long time” and in this period had undertaken a series of short, inexpensive courses without progressing to higher level courses. The Tribunal stated that Mr Gupta had not provided any reasonable explanation as to why he was repeating studies at the same level. The Tribunal further stated that it was not satisfied that Mr Gupta’s proposed course of study would assist him to obtain employment or improve his employment prospects in his home country. The Tribunal noted that Mr Gupta had said at the hearing that he wanted to open a restaurant in Australia somewhere in the countryside where there are not many restaurants. The Tribunal also noted that Mr Gupta presently had no family in Australia, but had said at the hearing that he wanted to bring family over and make a future in Australia. The Tribunal stated that its concerns were not overcome by Mr Gupta’s provision of statements of attainment in first aid and managing recruitment selection and projects and a certificate of responsible serving of alcohol.

   [17] CB 131

6. At [15],[18] the Tribunal stated that it had considered all the factors set out in Direction No. 53 but concluded that Mr Gupta was using the student visa programme to maintain ongoing residency. The Tribunal found that Mr Gupta did not meet the criterion in clause 572.223(1)(a).[19]

   [18] CB 131

   [19] CB 131 [16]

7. At [17][20] the Tribunal found that Mr Gupta did not meet the requirements of clause 572.223. The Tribunal also found that Mr Gupta did not meet the requirements for the other subclasses of Class TU visas, nor was there material before the Tribunal to suggest that Mr Gupta met the criteria for a Subclass 580 visa.

   [20] CB 131

8. At [18],[21] the Tribunal affirmed the decision of the Minister’s delegate.

   [21] CB 131

Current proceedings

1. As noted above, these proceedings began with a show cause application filed on 13 March 2015.  Mr Gupta continues to rely on that application.  He has not taken up the opportunity afforded to him by procedural orders made by a registrar to file and serve an amended application or additional evidence.  The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 7 July 2015.  Only the Minister filed written submissions in accordance with the registrar’s orders.

2. I invited oral submissions from Mr Gupta today.  He raised one issue.  He is aggrieved that he was not believed in relation to a course he had, in his words, partially undertaken, but which the Tribunal found he had completed.[22]  At the heart of Mr Gupta’s complaint is the proposition that the course that he was seeking to undertake pursuant to his visa application was a course that he had not previously undertaken.  The Tribunal reasoned that Mr Gupta was repeating previous studies because the previous course had been completed.  The issue was addressed by the Tribunal at [12] of its decision record.[23] 

   The applicant told the Tribunal that he previously undertook a Diploma of Business but he did not complete it. However, this is contrary to Provider Registration and International Student Management System (PRISMS) records, cited in the delegate’s decision (a copy of which was submitted to the Tribunal), where the educational provider Iascend TAFE commented in relation to a Diploma of Business he undertook in 2010 that he had completed all the required units to complete the course. Given this information, the Tribunal does not accept the applicant’s statement that he has not previously completed this course. The applicant has not provided any satisfactory reason as to why he again has enrolled in a Diploma of Business for the period 15 October 2014 to 14 April 2015.

   [22] See [15] above

   [23] CB 130

3. Mr Gupta sought to tender in court a certificate from the institution which indicated that only two units had been completed.  That certificate appears at page 98 of the court book.  The certificate was available to the Tribunal.

4. In her submissions, the solicitor for the Minister took me to the decision of the Minister’s delegate, in particular at page 73 of the court book. It is apparent from that part of the delegate’s reasons that the issue was addressed by the delegate. The delegate relied upon the computer database known as PRISMS which recorded that Mr Gupta had completed all the required units to complete the course in issue. Mr Gupta was on notice of the issue from the delegate’s decision and, indeed, provided it to the Tribunal with his review application. It follows that no issue arises in relation to the application of s. 359A of the Act.

5. The issue was argued before the Tribunal, which weighed the evidence.  The Tribunal concluded that it would rely upon the information derived from the PRISMS database. 

6. In the absence of any cogent evidence that the database was wrong, there was, in my opinion, no obligation on the Tribunal to make any further inquiry.  Mr Gupta maintains that the database is wrong and that he did not complete the course.  That was why he was seeking to enrol in essentially the same course.  That is a matter that the Minister’s department could investigate, and I have suggested to Mr Gupta that he raise the matter with the department.  To the extent that there is a factual error based upon the PRISMS database, it does not, in my opinion, support a contention that the Tribunal fell into jurisdictional error.  The conclusion reached by the Tribunal was, in my opinion, open to the Tribunal on the information before it. 

7. The Minister’s submissions otherwise address the grounds of review raised in Mr Gupta’s application.  Those grounds of review are :

   1.   The Tribunal made a decision without considering all facts and information and disregarding the evidence it had on file.

   2.   The Tribunal failed to accord the applicant procedural fairness and natural justice.

   3.   The Tribunal failed to take into account the compassionate reasons to remit the decision of the Minister’s delegate for reconsideration.

8. Mr Gupta did not address further those matters in oral argument.  I agree with the Minister’s submissions.

9. In respect of the first error alleged by the Mr Gupta, the Tribunal considered all of the material that was available to it. The Tribunal had regard to Mr Gupta’s study records and the PRISMS records referred to in the delegate’s decision.  The Tribunal also had specific regard to the evidence given by Mr Gupta at the Tribunal hearing.

10. While Mr Gupta claims that the Tribunal failed to consider “the fact that the applicant enrolled in Diploma of Business so that he can open his own restaurant in India and be able to manage it”, this claim is based on a factual premise that is contrary to statements made by Mr Gupta at the Tribunal hearing. That the Tribunal preferred Mr Gupta’s evidence as given at the Tribunal hearing was a matter for the Tribunal to determine as the decision-maker par excellence.[24]

    [24] Re The Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

11. Further, to the extent that Mr Gupta claims that the Tribunal failed to consider that he is a genuine student who wishes to complete his studies, this claim misunderstands the matters that the Tribunal was required to consider. At issue was not whether Mr Gupta was a genuine student, but whether the Minister was satisfied that Mr Gupta is a ‘genuine applicant for entry and stay as a student’. In making its decision, the Tribunal considered Mr Gupta’s recent course progress, but found that his failure to complete his course within the specified time added further to the Tribunal’s view that Mr Gupta does not genuinely intend to stay in Australia temporarily. These findings were open to the Tribunal on the material before it.

12. In respect of the second alleged error, the Tribunal has discharged its procedural fairness obligations, which are codified under Pt 5 Div 5 of the Act. As required by s 360 of the Act, the Tribunal invited Mr Gupta to attend a hearing to present arguments and give evidence about the issue under review, namely his compliance with clause 572.223(1)(a).[25] Mr Gupta duly attended a hearing and gave evidence with the assistance of an interpreter.[26] In making its decision, the Tribunal only relied on information provided to the Tribunal or the Department and was not required to put any information to Mr Gupta for the purposes of s 359A of the Act.

    [25] CB 90-93

    [26] TD [4], CB 129

13. As to the third alleged error, Mr Gupta has not identified which ‘compassionate reasons’ for remitting the decision the Tribunal failed to take into account. Ultimately, in making its decision, the Tribunal was aware of, and had regard to, the relevant matters in Direction No. 53, including Mr Gupta’s circumstances, immigration history and other matters it considered relevant.[27] While the Tribunal acknowledged Mr Gupta had worked in the hospitality industry and accepted that he wished to work in this field into the future, the Tribunal was not satisfied that the proposed studies in Business would assist him to obtain employment or improve his employment prospects in Australia.[28] Further, Mr Gupta had not provided any satisfactory explanation as to why he had enrolled in a Diploma of Business again.[29] Significantly, Mr Gupta’s failure to complete his most recent course within the specified time and his stated desire to make a future in Australia by opening a restaurant and bringing his family to Australia were found by the Tribunal to indicate that Mr Gupta did not intend to stay in Australia temporarily. That the Tribunal gave greater weight to these factors over others was ultimately a matter for the Tribunal.[30]

    [27] see CB 189 [28]

    [28] CB 131 [14]

    [29] CB 130 [12]

    [30] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41

14. I conclude that Mr Gupta is unable to demonstrate that the Tribunal decision is affected by any jurisdictional error.  The decision is therefore a privative clause decision, and the application must be dismissed.  I will so order.

15. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5000.  Scale costs in this instance would be $6825.  Although not certain, the solicitor for the Minister indicated that the Minister’s party and party costs could be less than $5000.  Mr Gupta did not wish to be heard on the issue of costs.  I have decided to award $4500 and will order that Mr Gupta pay the first respondent’s costs and disbursements of and incidental to the application, fixed in that amount.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 15 April 2016