Inderjit v Minister for Home Affairs

[2019] FCCA 1525

FEDERAL CIRCUIT COURT OF AUSTRALIA

INDERJIT & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1525

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the Tribunal made a jurisdictional error by misinterpreting the term “genuinely intends to stay in Australia temporarily” in cl 500.212(a) – whether the Tribunal made a jurisdictional error by making legally unreasonable findings of fact – no jurisdictional error made out – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), cl.500.212

Cases cited:

Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971

Minister for Immigration and Citizenship v Li [2013] HCA 18

Saini v Minister for Immigration and Border Protection [2016] FCA 858

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

First Applicant: INDERJIT INDERJIT

Second Applicant: BALRAJ KUMAR

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 609 of 2018

Judgment of: Judge Humphreys

Hearing date: 5 June 2019

Date of Last Submission: 5 June 2019

Delivered at: Parramatta

Delivered on: 5 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Applicant: Parish Patience

Counsel for the Respondents: Ms Laing

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $6000.00.

DATE OF ORDERS: 5 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 609 of 2018

INDERJIT INDERJIT

First Applicant

BALRAJ KUMAR

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. This is an application by Ms Inderjit as the first applicant and Mr Kumar as the secondary applicant, against a decision of the Administrative Appeals Tribunal (“the Tribunal”) of 9 February 2018, who affirmed a decision of a delegate of the Minister to refuse a Student (Temporary) (Class TU) visa dated 15 November 2016. Ms Inderjit’s husband, Mr Kumar, as the second applicant, was also refused consequentially upon the refusal of her visa. The basis for the refusal by the delegate was that the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student. They now make an application to this Court for judicial review.

Background

1. The first applicant was born in 1980. She first came to Australia in 2009 on a student visa. She has been in a de facto relationship with her now husband from 2009. In 2015, they married. Her husband first came to Australia in 2007 on a student visa. Their migration visa history is set out in paragraph 11 of the Tribunal’s decision. Paragraph 12 notes that the first applicant achieved satisfactory results in a Diploma of Business in 2016 and an Advanced Diploma of Business in 2017.

2. The Tribunal noted that there is no information that either applicant has ever been non-compliant with their visa conditions. In paragraph 21 the Tribunal found that on oral and written evidence, the applicant and her husband both intend to remain on shore in Australia to pursue permanent residency if an opportunity presents itself.

3. In paragraph 28 of the Tribunal’s decision, after considering the applicant’s evidence and attendance at a recently enrolled Bachelor of Business course, the Tribunal found it was not satisfied that adding a Bachelor of Business degree to her academic qualifications, in the applicant’s circumstances, would improve her prospects of being armed to set up and run her business. In paragraph 29, the Tribunal formed a view that the applicant was enrolled in a bachelors degree to support a student visa application and not because she genuinely needs the qualification.

The Grounds of Appeal

1. The grounds of the application are as follows:

   1) The Tribunal made a jurisdictional error by misinterpreting the term “genuinely intends to stay in Australia temporarily” in cl 500.212(a).

   2) The Tribunal made a jurisdictional error by making legally unreasonable findings of fact or making such findings without evidence or by taking into account irrelevant considerations.

Consideration

Ground 1

1. Ground 1 can be dealt with briefly. This Court is bound by the decision in Saini v Minister for Immigration and Border Protection [2016] FCA 858 (“Saini”) where Logan J held at 30:

   ...if there is a settled intention, at the time of the decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”.

2. The applicant submits that Saini is wrongly decided and that the preferable position is that of Manousaridis J of this Court in Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971. The Court notes that the first applicant has a settled intention to later seek a visa that would lead to other temporary residence. While I dismiss this ground of appeal, bearing in mind I am bound by the decision of Logan J in Saini, I note that the applicant formally seeks to reserve rights by submitting that Khanna should be preferred to Saini.

Ground 2

1. The law on unreasonableness is well settled. In Minister for Immigration and Citizenship v Li [2013] HCA 18 at paragraph 76 it was held that the findings must have an evident and intelligible justification. Courts must be slow, but not unwilling, to find legal unreasonableness. The standard is high and the decision must be one at which no rational or logical decision-maker could arrive at on the same evidence as per Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at paragraphs 124 and 130.

2. The applicant submits that the finding by the Tribunal that adding a Bachelor of Business will not improve the first applicant’s prospects of being able to set up and run her business, was unreasonable. Additionally, the applicant’s poor attendance at the Bachelor of Business course was not evidence that the applicant did not intend to remain in Australia temporarily. Finally, the applicants submit that the Tribunal’s finding that if the visa was granted, the costs over the next two years would be such that the applicants would not have any savings to start a business are irrational, illogical or unreasonable.

3. The Tribunal properly set outs at paragraph 16 of its decision cl 500.212 of the Migration Regulations 1994 which enables the Tribunal to assess not only the matter set out there, but also any other relevant matters.

4. Paragraph 17, also refers to Ministerial Direction Number 69, which requires a decision-maker to have regard to the value of the course to the applicant’s future as well as any other relevant information. Because of the finding in Ground 1, it is actually not necessary for me to make a decision as to Ground 2. That is because of the intention that was found by the Tribunal that the applicants were seeking to stay in Australia and pursue a permanent residency if possible.

5. I am of the view that even if Ground 2 were to be uphold, it would make no material difference to the ultimate finding that the Tribunal arrived at. For that reason, I cannot find in favour of the ground even if I were to find that the conclusions arrived at by the Tribunal were illogical or unreasonable. Accordingly, Ground 2 is dismissed. I have already said that I am bound by Saini in Ground 1 and, therefore, that ground is dismissed.

Conclusion

1. The application is dismissed.

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

Associate:   

Date:  9 July 2019