Joshi v Minister for Immigration & Border Protection

[2014] FCCA 1293

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSHI & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1293

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 (Cth) r.44.12

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

First Applicant:

Second Applicant:

SUMITRA JOSHI

RAJ KUMAR SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 785 of 2014

Judgment of: Judge Emmett

Hearing date: 19 June 2014

Date of Last Submission: 19 June 2014

Delivered at: Sydney

Delivered on: 19 June 2014

REPRESENTATION

Solicitor for the Applicant: Mr Ray Turner
(Manning Lawyers)

Solicitors for the Respondents: Ms Sharon Burnett
(Clayton Utz)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 785 of 2014

SUMITRA JOSHI

First Applicant

RAJ KUMAR SHRESTHA
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicants seek judicial review of a decision of the Migration Review Tribunal dated 4 March 2014 (“the MRT”).

2. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court commenced by way of application filed on 25 March 2014, be dismissed on the basis that the applicants have not raised an arguable case for the relief claimed. The first named applicant is the primary applicant and the second named applicant is her husband. His claims are wholly dependant on those of the first named applicant. For those reasons, I will refer only to the applicant.

3. On 25 March 2014, the applicant filed an application for judicial review of the decision of the MRT dated 4 March 2014 pursuant to the Act. The only ground is as follows:

   “The applicant is entitled to a Student (Temporary) (Class TU) 572 visa application in accordance with the relevant provisions of the Migration Act and Regulations.”

4. On 27 May 2014, the applicant attended a directions hearing before me. On that occasion, I explained to the applicant that the Court has no power to interfere with the decision of the MRT unless the Court is satisfied that the decision is affected by a mistake that goes to the jurisdiction of the MRT. I also explained to the applicant that presently the ground of her application made a bare assertion that did not disclose an error capable of review by this Court. I explained to the applicant that under the rules of this Court, if the grounds of her application do not raise an arguable case, her application may be dismissed.

5. I also explained to her the costs consequences that may flow to her if she was unsuccessful, and I provided her with a copy of that costs schedule together with a copy of r.44.12 of the Rules following the applicant’s confirmation that she wished to continue with her application. The applicant was given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon together with any further evidence by way of affidavit and submissions in support, by 9 June 2014. The matter was then set down for hearing today pursuant to r.44.12 of the Rules.

6. The applicant was unrepresented at the directions hearing, although had the assistance of an interpreter. Today, the applicant was represented by her solicitor, Mr Turner. Mr Turner filed in court an Amended Application marked in Exhibit 1A. Exhibit 1A identified the following grounds:

   “1. The Tribunal failed to carry out its Statutory Duty.

   Particulars

   a. The Migration Act 1958 s.359A requires that the Tribunal must give the Applicant particulars of any material that is before it and is adverse to the Applicant.

   b. The Tribunal gave the Applicant a general outline of the adverse material p.3 para 6.

   c. The Tribunal relied upon specific information adverse to the Applicant p.7. para 19.

   d. By failing to give the Applicant specific particulars of the adverse information, the Tribunal failed to carry out its Statutory Duty set out in the Migration Act 1959 s.359A.

   2. The Tribunal’s decision was not based on the facts as found.

   Particulars

   a. The courses currently being undertaken by the Applicant would, on the balance of probabilities, only lead to an application for a further temporary visa rather than a permanent visa.

   b. The Tribunal failed to distinguish between the Applicant’s intentions and dreams.”

7. Mr Turner submitted that the MRT failed to give specific particulars of the adverse information to the applicant in 359A in that the 359A letter was no more than an immigration history.

8. Section 359A of the Act requires the MRT to give to the applicant information that the MRT considers would be the reason or part of the reason for affirming the decision under review and to ensure, as far as reasonably practical, that the applicant understands why it is relevant to the review and the consequences of it being relied on in affirming the decision under review. The applicant should also be invited to comment on or respond to the letter.

9. On 15 November 2013, the MRT wrote to the applicant inviting her to comment on or respond to information that the MRT considered may be the reason or part of the reason for affirming the decision under review. The letter identified the following information:

   “Electronic (PRISMS) records before the tribunal indicate that you are currently enrolled in a course of study. The Tribunal notes that you provided the Department of Immigration and Border Protection with two Confirmation of Enrolment (CoE) documents, for Certificate IV in Hospitality (Commercial Cookery) from 12 November 2012 to 27 June 2014 and Diploma of Hospitality, from 21 July to 26 September 2014. These records indicate:

   You were enrolled in a number of courses in the field of Hairdressing and Salon Management for over four years after your arrival in Australia on 1 January 2009. However, your two current enrolments are in an unrelated field.

   Since your arrival in Australia you have finished a number of inexpensive and short courses, only one of which was for more than six months, at the Vocational level. Your current CoEs are for further study, for two years, at the same level.

   You applied for permanent Skilled Migration on the basis of your qualifications in Hairdressing, on the nomination of your SNJ Hair Styling Pty Ltd. This application was refused by the Department on 21 June 2012. You have not explained why you decided to change courses in Hospitality or why you would have done so, having sought permanent residency in Australia on the basis of a career in the field of Hairdressing.

   You have submitted a work reference from Vatan restaurant stating that you were employed as a kitchen hand but this provides little information about your duties or your tenure in this position.”

10. The letter clearly gives the applicant the particulars that the MRT was of the view may be part of the reason for affirming the decision under review. The MRT explained the consequences that may flow to the applicant if that information was relied upon. In particular, the MRT stated as follows:

    “The above information is relevant as it might lead the tribunal to conclude that you do not satisfy clause 572.223(1) of schedule 2 to the Migration Regulations as you are not a genuine applicant for entry to stay in Australia as a student. Further, the information might lead the tribunal to conclude that you do not satisfy clause 572.223(1)(a) as the tribunal might conclude that you do not intend genuinely to stay in Australia temporarily and that the decision refusing to grant you a temporary class TU visa should be affirmed.”

11. The applicant responded to that letter and that response was considered and taken into account by the MRT.

12. The MRT summarised the applicant’s evidence and noted that it put to her that the changes in her courses of study, together with her nomination from the hairdressing salon, could suggest that when she found it was not possible for her to gain permanent residence in Australia through hairdressing, she decided to attempt to do so through an alternative course.

13. The MRT noted that the applicant repeated that she was determined to make a future in cookery and that she had completed her course in hairdressing. The MRT also noted a submission by the applicant’s adviser that the applicant’s reason for changing courses was not to remain in Australia and that she had developed a genuine interest in cookery and intended to return to Nepal on completion of her current course.

14. It is well established that the MRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the MRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

15. The MRT gave clear reasons as to why it did not ultimately accept that the applicant is a genuine applicant for entry and stay in Australia as a student as follows:

    “19. Having carefully considered the applicant’s evidence and the information before the Tribunal I am unable to be satisfied that she is a genuine applicant for entry and stay in Australia as a student temporarily. I accept that she is currently studying a course in Certificate IV in Commercial Hospitality to end in June 2014m and that she is also enrolled in a course in Diploma of Hospitality to end in September 2014. As put to her in the Tribunal’s letter of 15 November 2013 and at the hearing, however, she previously applied for permanent skilled migration on the basis of her qualifications as a hairdresser and was nominated by a hairdressing salon. This application was refused in June 2012, and some months later she commenced a course of study in commercial cookery, a quite unrelated field. I have considered the reasons she has advanced for the change in her studies – that she realised hairdressing would not offer good employment prospects in Nepal and that she had developed an interest in cookery from working in a restaurant in Auburn – but I do not find these convincing. I consider her actions evince a clear interest in remaining in Australia permanently, an aim which she hoped to achieve through nomination in the field of hairdressing but which she now sees as being achieved through study in commercial cookery. I am not satisfied that she does, in fact, intend to return to Nepal on completion of her studies in this field.

    20. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that she is a genuine applicant for entry and stay in Australia as a student or that she intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal finds that the applicant does not meet cl.572.223(1) or 572.223(1)(a).”

16. I am not persuaded that there is any arguable case raised in ground 1 of the Amended Application. There is nothing on the face of the MRT’s letter dated 15 November 2013 to suggest that it did not comply with s.359A of the Act.

17. Further, a fair reading of the MRT’s decision record makes clear that the MRT explored with the applicant the matters of concern that it had about her claims and noted her responses. In the circumstances, the MRT’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the MRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

18. Ground 2 of the Amended Application asserts that the MRT’s decision was not based on the facts as it found that the courses currently being undertaken by the applicant would, on the balance of probabilities, only lead to an application for a further temporary visa rather than a permanent visa and that the MRT failed to distinguish between the applicant’s “intentions and dreams”. Mr Turner did not make particular submissions in relation to that ground. On its face, those complains do not raise an arguable case for the relief claimed having regard to the MRT’s decision record, which make clear that the MRT explored with the applicant its concerns about her claims both in writing and at the hearing.

19. Whilst I make no final decision as to whether or not the MRT’s record is affected by jurisdictional error, as stated above the MRT’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave.

20. In the circumstances, I am not satisfied that any of the grounds raised by the applicant, either in the application filed on 25 March 2014 or in Exhibit 1A, raise an arguable case for the relief claimed. Accordingly, the proceeding before this court commenced by way of application filed on 25 March 2014 should be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:     26 June 2014