Jagpal v Minister for Immigration

[2018] FCCA 2878

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAGPAL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2878

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Student (Class TU) (Subclass 572) visa to the applicant – Administrative Appeals Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay temporarily as a student but rather used the Student visa program as a means of maintaining residence in Australia – no jurisdictional error identified by the applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.360

Migration Regulations 1994 (Cth)

Applicant: MANDEEP JAGPAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1298 of 2017

Judgment of: Judge Dowdy

Hearing date: 4 October 2018

Delivered at: Sydney

Delivered on: 4 October 2018

REPRESENTATION

The Applicant appeared
in person.

Counsel for the Respondents: Ms S. He

Solicitors for the Respondents: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 1 May 2017 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the amount of $5,400.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth), the Applicant have up to including 15 November 2018 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1298 of 2017

MANDEEP JAGPAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a male citizen of India aged 31 years, having been born on 30 May 1987.  

2. By Application filed in this Court on 1 May 2017, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 6 April 2017, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister of Immigration and Border Protection (Minister), dated 20 April 2016, refusing to grant to him a Student (Temporary) (Class TU Subclass 572) visa (Student visa).

Background

1. The Applicant was granted his initial student visa offshore on 5 December 2008 which was valid until 14 March 2011. 

2. He arrived in Australia on 15 December 2008 and so by the time of the Tribunal hearing to be referred to below he had been in Australia for eight years and three months, returning to India for a period of six weeks in 2013 but otherwise, apart from that visit, living in Australia since December 2008.  Since arriving in Australia, the Applicant has held successive Student visas or associated bridging visas. 

3. During his stay in Australia, he had been enrolled in seven courses but only completed either one or three of them, as I will discuss below.  The Applicant applied for the present Student visa on 14 October 2015 and was enrolled in an Advanced Diploma of Hospitality which he had commenced on 12 October 2015 and which was to conclude on 8 October 2017. 

Statutory Requirements for the Grant of a Student Visa

1. Relevantly to this proceeding, the Applicant had to satisfy what is known as the “genuine temporary entrant criteria” comprised in cl.572.223 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations). At the time of decision cl.572.223 provided as follows:

   572.223

   (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 the applicant; and

   (iv)  any other relevant matter; …

   (emphasis added)

Decision of Delegate

1. By letter dated 22 October 2015, the Department of the Minister asked the Applicant to comment on what was perceived to be unfavourable information in relation to the genuine temporary entrant criterion and his studies in Australia since 2008. 

2. In particular, this letter pointed out that the Applicant was not enrolled in any course of study for a period of 24 months from 18 October 2013 to 11 October 2015 but that it had been a condition of his Student visa, namely condition 8202, during this time that he be enrolled in a registered course.  The Applicant, in response, sent a four page letter detailing his life circumstances from 2008 to date, which included:

   a)an allegation of depression, a loss of confidence during a 14 month period and that he had for that period stayed in a Sikh temple in Griffith in New South Wales;  and

   b)he had been unable to concentrate on his studies.

3. The Delegate, by his Decision Record of 20 April 2016, refused to grant the Student visa to the Applicant.  The Delegate found that the Applicant had been enrolled in seven courses in Australia and only completed one of them.  The Delegate further found that the seven courses were of a short duration, low cost and somewhat related, which led the Delegate to question why the Applicant had been studying similar courses for some eight years without any attempt to progress to higher education level study. 

4. The Delegate further noted in his Decision Record that during the two year period for which the Applicant was not enrolled in any course because, so the Applicant had said, his father was ill, he had not sought to defer his studies. 

5. In the result, the Delegate was not satisfied that the Applicant was a genuine applicant for entry and stay as a student temporarily but was using the student visa program to circumvent permanent migration programs and he refused to grant the Student visa to the Applicant. 

Tribunal Decision

1. The Applicant lodged an application for merits review with the Tribunal on 9 May 2016 and gave a copy of the Decision Record of the Delegate to the Tribunal. 

2. By letter dated 7 March 2017, the Tribunal appointed a hearing date of 6 April 2017 and asked for information from the Applicant on his study courses in Australia since 2008 and a copy of his current Certificate of Enrolment and the Tribunal directed his attention to the genuine temporary entrant criteria.

3. Then, on or about 4 April 2017 the Applicant appointed Mr Jack Li, a lawyer and registered migration agent, to act for him in connection with his application for review to the Tribunal.  On 6 April 2017, the Applicant, together with Mr Li, appeared at the Tribunal hearing to give evidence and present arguments. 

4. In [8] – [10] of its Decision Record, the Tribunal recorded discussion and questioning of the Applicant of his circumstances in India.  At the end of [11] the Tribunal noted that the Applicant asserted that in fact he had completed two further courses in Australia but that he had not received a certificate for them because with respect to one, the college had closed, and with respect to the other, there was an issue with payment of fees and, therefore, he asserted that he had completed three courses. 

5. At [12] of its Decision Record, the Tribunal noted that on this evidence the Applicant had only completed three courses in a period of eight years and three months.  The Tribunal recorded that it asked the Applicant to comment on this and the Applicant stated that between 2014 and 2015 he had become depressed because his father had bypass surgery in India and because of that, he had travelled to Griffith in rural New South Wales and lived in a temple for a period of time. 

6. At [13] the Tribunal recorded that there had been an earlier Migration Review Tribunal reviewing a decision of a Delegate.  The meaning of this was clarified at the hearing and it appears that at a point of time with respect to an earlier application by the Applicant for a Student visa, a Delegate had refused a Student visa but that, on review, a Migration Review Tribunal had granted to the Applicant a Student visa. 

7. At [14] of its Decision Record, the Tribunal recorded that it had asked the Applicant what his long term plans were and that the Applicant had responded that he wished to open up an Indian restaurant in Australia in about five to 10 years’ time and that he expected this would be financed by his father who would provide the set up costs of this business. 

8. Then, at [16] of its Decision Record, the Tribunal recorded that Mr Li, the registered migration agent and lawyer, had asked whether he could address the Tribunal and that he had done so by stating that the Applicant had finished three courses in Australia and that the Applicant had been given poor migration advice during the time he had been in Australia and as a result of this he had lost his path as a student. The migration agent also noted that the Applicant had been affected by his father’s illness and as a consequence had stayed in the temple in Griffith.   

9. At [26] – [28] of its Decision Record the Tribunal expressed its view that it was not satisfied that the Applicant was a genuine applicant for entry and stay as a student.  It noted that there were substantial gaps in his study which were claimed to be as a result of his father’s illness and that the Applicant was very close to his father.  However, the Tribunal noted that despite this the Applicant had only once returned to India and had spent most of his time in Australia. 

10. Wit reference in particular to the father’s illness the Tribunal noted its view that illness befalls all families at various stages of their lives and that it did not accept that this factor led to the inhibition of the Applicant to successfully pursue and complete his studies in Australia over an extended period. 

11. In the result, the Tribunal found that the Applicant was utilising the Student visa scheme as a mechanism of remaining in Australia permanently and that the stated intention to open up an Indian restaurant in Australia confirmed this view. 

12. The Tribunal accordingly affirmed the decision of the Delegate not to grant a Student visa to the Applicant.

Grounds of Attack on Tribunal Decision in this Court

1. The Applicant relied upon the following Grounds:

   1. Judge did not give me enough chance to explain myself.

   2. Trying to explain him about wrong advice by migration agent but he did not consider.

   3. My dad was in bad health trying to explain him.

Consideration

Ground 1

1. At the first return date of the Application on 2 June 2017, the Applicant appeared in person.  I specifically advised him with respect to Ground 1 that if the Ground was to be maintained, he would need to get a copy of the transcript of the hearing before the Tribunal and that the consent orders that he had entered into on that day put that responsibility on him.  I asked him whether he understood what I had said and he told me that he would get the transcript and he did understand what I had said.  Unfortunately, no transcript of the Tribunal hearing has been tendered. 

2. In my view there is no evidence to the effect and the Applicant has not established that he was denied an opportunity to give evidence and present arguments as required by s.360(1) of the Migration Act 1958 (Cth). There is no transcript which would indicate that the Tribunal cut off, truncated, or inhibited the Applicant in any way from saying what he wanted to say. Nothing appears on the face of the Decision Record of the Tribunal that would support this Ground.

3. The Applicant was in a better position than most applicants in hearings at the Tribunal because he had a lawyer with him and there is no suggestion that there was ever any objection by the lawyer to the alleged truncating or inhibiting of evidence at the Tribunal hearing and there is no evidence of any subsequent complaint being made by either the lawyer or the Applicant himself to that effect. 

4. The lawyer was clearly allowed to address the Tribunal, as I have already mentioned: see [16] of the Decision Record.  In [9] – [16] of its Decision Record the Tribunal also recorded the extensive questioning of the Applicant by the Tribunal and the answers given by him. 

5. In my view, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error. 

Grounds 2 and 3

1. These Grounds also fail.  They seem to assert that the Tribunal did not properly consider the Applicant’s complaints about incorrect advice from a migration agent and his father’s ill health.  The Applicant had certainly raised these complaints.  They had been raised first in his letter to the Tribunal dated 18 November 2015 where he complained about a previous agent and spoke about his father’s need for a heart bypass surgery. 

2. Again in his letter to the Tribunal forwarded under cover of an email from Mr Li on 4 April 2017, the Applicant had made similar complaints about a previous migration agent not renewing his Student visa and of the Applicant going to a wrong agent because that agent “was actually a property agent” and that letter also refers to “his dad was in really poor health”.  However, in my view the Tribunal did properly consider these issues as raised by the Applicant. 

3. First, the Tribunal at [12] of its Decision Record recorded that the Applicant had claimed first that he had been depressed because his father had bypass surgery in India and that he was very close to his father and, second the complaint by the Applicant that a previous migration agent had said that he was not allowed to study for a period.  There is another reference to the father’s bypass surgery at [15] of the Decision Record of the Tribunal.  At [16] the Tribunal records Mr Li’s submissions about the father’s health and poor migration advice given to the Applicant during the time he had been in Australia. 

4. Second, at [23] of its Decision Record the Tribunal recorded that it had considered the Applicant’s evidence about a range of factors that had allegedly impaired his study over the time that he had been in Australia such as poor migration advice and claimed depression as a result of his father’s illness in India.  At [27] the Tribunal again recorded that it had regard to the evidence of the Applicant that there were substantial gaps in his study as a result of his father’s illness but it went on in that paragraph to reject that as a sufficient reason to explain the failure to successfully pursue and complete studies in Australia over an extended period. 

5. In my view, Grounds 2 and 3 fail to establish that the decision of the Tribunal is affected by jurisdictional error. 

Further Matters

1. There are two further matters that I should deal with. 

2. First, in a written document annexed to his affidavit filed at the same time as his Application in this Court, the Applicant said that he felt that the Tribunal member did not want to listen to him at the Tribunal hearing.  That might be taken in the Applicant’s favour as an assertion that the Tribunal member had either prejudged his Application for merits review, which would amount to actual bias, or perhaps an allegation of circumstances leading to a reasonable apprehension of bias.  In my view there is not a skerrick of evidence of any form of bias.  As I have said earlier, there is no transcript of the Tribunal hearing and there is nothing on the face of the Decision Record of the Tribunal that would tend to indicate any form of bias and it is significant that the lawyer who was present at the hearing has never made any complaint of bias.

3. Accordingly, in my view, if there was meant to be a claim of bias it does not succeed. 

4. The second matter is this, at the hearing the main concern of the applicant appeared to be that he considered that he had been ‘tricked’ by the Tribunal when, as recorded at [15] of its Decision Record the Tribunal asked “what his long-term plans were” and the Applicant responded “that he wished to open up an Indian restaurant in Australia…that his father would provide the setup costs of this business in the future…that his plan was to do this in about 5 to 10 years’ time”.

5. The Applicant agreed that he had given this information to the Tribunal but that he had just spoken “casually” and it was then used against him by the Tribunal and he did not know when he gave the information that it would be used against him and that his father was a tailor in India with a small shop and could not send him a hundred thousand dollars from India to setup a restaurant.

6. This complaint does not establish that the decision of the Tribunal is affected by jurisdictional error. There was nothing improper or legally unreasonable in the Tribunal asking the Applicant what his long-term plans were. Parties and witnesses often give information in responding to questions in legal or inquisitorial proceedings which can be used within the mosaic of evidence in ways that they do not expect. In any event, the Applicant’s evidence with respect to his intention to establish an Indian restaurant in the future was not a critical matter to the Tribunal’s findings but was merely used by the Tribunal in the last sentence at [27] of its Decision Record as follows:

   The evidence before the Tribunal when cumulatively considered leads the Tribunal to find that the applicant is utilising the student visa scheme as a mechanism of remaining in Australia permanently and the applicant’s objective to open up a Indian restaurant in Australia further confirms this finding.

7. I have otherwise examined the decision of the Tribunal to see whether there is anything else that could be discerned in favour of the Applicant but in my view the decision of the Tribunal was legally reasonable and was not based on illogical or irrational findings of fact.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly, the Application filed in this Court is to be dismissed. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 18 October 2018