KAUR v Minister for Home Affairs

[2019] FCCA 1814

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1814

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – grounds of review not given or particularised – Applicants’ non-compliance with Orders – no submissions filed by Applicants – impermissible merits review – Application dismissed with costs.

Legislation:

Migration Act 1958 (Cth). s.65

Migration Regulations 1994, cl.500.212 of Schedule 2

Cases cited:

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Attorney-General (NSW) v Quin (1990) 170 CLR 1

First Applicant: SATBIR KAUR

Second Applicant: GURLEEN KAUR

Third Applicant: AMRITPAL SINGH

Fourth Applicant: JASKARAN SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: CAG 57 of 2018

Judgment of: Judge Neville

Hearing date: 15 March 2019

Date of Last Submission: 15 March 2019

Delivered at: Canberra

Delivered on: 15 March 2019

REPRESENTATION

Solicitors for the Applicants: First Applicant In person

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Application for Review, filed 30^th July 2018, be dismissed.

2. The Applicant pay the First Respondent’s costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 57 of 2018

SATBIR KAUR

First Applicant

GURLEEN KAUR

Second Applicant

AMRITPAL SINGH

Third Applicant

JASKARAN SINGH

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicants’ Application, filed 30^th July 2018, seeks that the Administrative Appeals Tribunal’s (“the Tribunal”) decision, made on 25^th June 2018, be quashed, and that a writ of mandamus issue to require the Tribunal to determine the  Application according to law.[1]

   [1] For reasons not explained, in their Application, the Applicants refer to the decision as having been made by the Immigration Assessment Authority (“the IAA”).  Strictly speaking, the Orders sought are inapt, if not incapable of being made, because they are sought against the IAA rather than directed to the Tribunal.  No point in this regard was taken at the hearing.

2. The principal or First Applicant is a citizen of India.  The other Applicants are her Husband (also a citizen of India) and their two children, who are aged 13 and 11 years.  For the purposes of what follows I will refer only to the principal Applicant and refer to her as “the Applicant”.  Among the Applicants, she was the only person who appeared at the hearing.[2]

   [2] The reasons that follow were delivered ex tempore at the conclusion of the hearing.  They have been revised from the Transcript.

3. The Applicant applied for a visa (a Subclass 500 visa) to undertake study in Australia.

4. On 31^st October 2016, pursuant to s.65 of the Migration Act 1958 (Cth) (“the Act”), a Delegate of the First Respondent refused the Application for this visa on the ground that the Applicant did not meet the requirements of cl.500.212 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”). This was because the Applicant did not meet the criteria of a genuine temporary entrant for study.

5. Although set out in the First Respondent’s submissions below, for ease of reference, the terms of the Regulation in question are as follows:

   500.212     The applicant is a genuine applicant for entry and stay as a student because:

   (a)  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; and

   (b)  the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)  the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)  the applicant's stated intention to comply with any conditions to which the visa may be subject; and

   (c)  of any other relevant matter.

Grounds of review

1. The Applicant did not particularise any Grounds of Review in her Application filed on 30^th July 2018, or in the Affidavit filed on 24^th August 2018.

2. In the Applicant’s August 2018 Affidavit, summarised, she deposed that:

   (a)She worked as a “retail manager”;

   (b)She had no assistance in the preparation of her Application.  She said that she had used her “old application” as the basis for the documents filed in this Court, which I take to mean the Application to either the Delegate and/or to the Tribunal;

   (c)The same comment was made in relation to the preparation of her Affidavit;

   (d)The Applicant confirmed that she was seeking a review of the decision of the Administrative Appeals Tribunal.

The Tribunal’s decision

1. Summarised, the reasons for the Tribunal’s decision of 25^th June 2018 were as follows.

2. Relevantly, at par.5, the Tribunal noted that the Applicant had obtained qualifications in accounting since arriving in Australia, at which time she held a Subclass 485 visa.  The Tribunal noted further (in the same paragraph) that the Applicant applied for the current visa to enable her to study for a diploma in accounting.  In India, she had already obtained a Bachelor of Arts and Master of Political Science.  In Australia, she had completed a Bachelor of Accounting, Graduate Diploma in Business, and a Diploma of Human Resource Management.  The Tribunal recorded that she was currently studying for an Advanced Diploma of Management (Human Resources).

3. At the hearing before the Tribunal, the Applicant(s) were assisted/represented by their registered migration agent.

4. At par.11, the Tribunal noted that, in assessing whether the Applicant had satisfied cl.500.212 (a), it must have regard to Direction No.69 (“the Direction”), entitled “assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.” This Direction was made under s.499 of the Act. The Tribunal set out, at par.11, a range of factors to be considered. I need not detail them here.

5. The Tribunal confirmed, at par.13, as required by the Regulations and the Direction, that the Applicant has extended family, as well as assets and property, in India. Her Husband and children reside in Australia, as does one of her siblings.

6. At par.14, the Tribunal noted that the Applicant has an extensive work and study history in Australia since she arrived here in 2009.  The Applicant confirmed to the Tribunal that she would return to India when she completed her Advanced Diploma.  The Tribunal said that it was not convinced that this was the Applicant’s “honest intention.”

7. After noting her work history, at par.15 the Tribunal said that the Applicant had listed her employment as “student” and had withheld information at the time of her visa Application about her employment history to the Delegate.

8. At par.16, the Tribunal set out in some detail what it said were inconsistent statements by the Applicant regarding her employment goals.  The Tribunal noted that, on the one hand, the Applicant said in her Work Experience History, that she wanted to obtain a full-time position with a company.  However, on the other hand, she stated that she intended to establish an accountancy firm on her return to India.

9. Other details of the Applicant’s employment history are set out in pars.16 and 17.  I need not repeat them here.

10. At par.18, the Tribunal found that the Applicant’s main focus in Australia is her “ongoing employment rather than education and that she is seeking to continue studying at a vocational level in order to maintain her residency.”  The Tribunal said that its conclusion in this regard was supported by the fact that the Applicant had also applied for a Subclass 187 Regional Sponsored Migration Scheme Visa.

11. At par.19, the Tribunal said that it was not satisfied that the diploma for which the Applicant is currently studying would add value to her future over and above the qualifications and experience she already has.  It also noted that, after completing her University qualifications the Applicant had “regressed to vocational courses” which were said by the Applicant to be necessary to run a business.  The Tribunal rejected this latter contention.

12. After noting the Applicant’s periodic return to India since mid-2009, the Tribunal said (at par.22) that, in its view, the Applicant was continuing to study in order to maintain residency in Australia “rather than for a genuine purpose.”  It also found that the Applicant was continuing to study “in the event that she is not successful in obtaining work sponsorship.”

13. Accordingly, the Tribunal found that the relevant criteria for the grant of a Subclass 500 visa were not met.

Written submissions by the Applicant

1. On 17^th September 2018, the Court directed the Applicants to file and serve by 13^th November 2018 any Affidavit, containing any additional evidence to be relied upon, and any Amended Application particularising each ground of review.  These Orders also required the Applicants to file and serve an Outline of Submissions by 1^st May 2019.  Regrettably, the Applicants did not file any submissions, or any other material.

Written submissions on behalf of the First Respondent

1. The First Respondent’s Submissions, filed 8^th March 2019, were in the following terms:[3]

   [3] The First Respondent filed a Court Book (“CB”) on 16^th October 2018.

   1)  The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 25 June 2018 (CB 164 to 167), by which it affirmed a decision by a delegate of the First Respondent (Delegate) to refuse to grant the primary applicant, her husband and her daughter (collectively the Applicants) Student (Temporary) (Class TU) visas (Student visa) under s 65 of the Migration Act 1958 (Cth) (Act) (CB 76 to 83).

   2)  These submissions are filed in accordance with the Orders made by this Court on 17 September 2018.  These Orders also required that the Applicants file and serve an outline of submissions by 1 March 2019.  No such submissions have been filed by the Applicants and accordingly, these submissions respond to the application filed in this Court on 30 July 2018 (Application).     

   3)  The Minister submits that the Application does not articulate any ground of review nor does it establish jurisdictional error and for the reasons that follow, the Application ought to be dismissed with costs. 

   Background

   4)  The Applicant is a citizen of India who entered Australia on 20 March 2009 as the holder of a Higher Education (Class TU) (Subclass 573) visa (CB 78).

   5) On 5 August 2016, the Applicant applied for a Student visa (CB 1 to 24). On 31 October 2016, a Delegate refused the visa application on the basis that the Applicant did not satisfy the genuine temporary entrant criteria pursuant to clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

   6)  The Applicant applied to the Tribunal for review and attached a copy of the Delegate's decision (CB 84 to 102).

   7)  On 2 March 2017, the Applicant appointed a migration agent, Yojana Pareek, as her Authorised Representative (CB 106 to 108).

   8)  On 7 December 2017, the Tribunal sent an email to the Applicant's Authorised Representative inviting the Applicants to attend a hearing on 9 January 2018 (Hearing Invitation) (CB 109 to 118).   

   9)  The Applicant appeared before the Tribunal, assisted by her Authorised Representative on 9 January 2018 (CB 141).

   10)   On 23 January 2018, the Applicant's Authorised Representative provided the Tribunal with post hearing submissions which attached copies of the Applicant's past studies in Australia and her employment history (CB 145 to 156).

   11)   On 25 January 2018, the Applicant's Authorised Representative provided the Tribunal with a statutory declaration signed by the Applicant declaring that she had not held an accounting job in Australia from 2009 to "current" (CB 157 to 160).

   12) On 25 June 2018 at 4:43pm, the Tribunal affirmed the decision on review (CB 163 to 167), on the basis that the criteria for the visa were not met because the Applicant did not satisfy the genuine temporary entrant criteria pursuant to clause 500.212 of the Regulations (at [23]-[24]).

   Grounds of review

   13)   The Applicant has articulated no ground of review in her Application.

   14)   In an effort to assist the Court, the First Respondent makes the below contentions and ultimately submits that there is no jurisdictional error on the face of the Tribunal's decision.

   Consideration

   15) Section 360(1) of the Act provides that the Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to issues arising in relation to the decision under review.

   16) The Hearing Invitation annexed a copy of Ministerial Direction 69 (Direction No. 69) and advised the Applicant that the Tribunal would assess whether she intended genuinely to stay in Australia temporarily in accordance with section 359 of the Act. The Hearing Invitation relevantly stated that the Tribunal would assess whether she intended genuinely to stay in Australia temporarily and requested that the Applicant provide the Tribunal with copies of documents showing the Applicant's past studies in Australia, an explanation for any gaps in enrolments and a Certificate of Enrolment (COE) to demonstrate that the Applicant was enrolled in a registered course. The Tribunal requested that the Applicant's written statement and other information be provided at least 7 days before the hearing date.

   17)   On 5 January 2018, the Applicant's Authorised Representative provided the Tribunal with copies of the Applicant's COE, academic qualifications and course discontinuance (CB 122 to 133).

   18)   Notwithstanding that this information was provided to the Tribunal 4 days prior to the hearing, the Tribunal considered and referred to the information in its decision (see CB 164 to 166 at [5] and [14]).

   19) As was required, the Tribunal considered the Applicant's claims having regard to clause 500.212 of the Regulations, which relevantly states:

   500.212     The applicant is a genuine applicant for entry and stay as a student because:

   (a)  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; and

   (b)  the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)  the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)  the applicant's stated intention to comply with any conditions to which the visa may be subject; and

   (c)  of any other relevant matter.

   20) The Tribunal correctly identified that pursuant to section 499 of the Act, in determining whether the Applicant satisfied clause 500.212, the Tribunal was required to have regard to Direction No. 69. The Tribunal's decision noted that the Direction required the Tribunal to consider certain factors, including:

   a)   the Applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the Applicant's future;

   b)   the Applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   c)   if the Applicant is a minor, the intention of a parents, legal guardian or spouse of the Applicant; and

   d)   any other relevant information provided by the Applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the Applicant.

   21)   The First Respondent submits that the Tribunal, making its decision, had regard to the factors contained in Direction 69 and correctly considered the information provided by the Applicant in response to the relevant factors, as follows:

   a)   the Applicant's circumstances in India (see CB 165 at [13]);

   b)    potential circumstances in Australia (see CB 165 to 166 at [14] - [18]);

   c)   value of the course to the Applicant's future (see CB 166 at [19]);

   d)   the Applicant's immigration history (see CB 166 at [20]);

   e)   including previous applications for an Australian visa or for visas to other countries (see CB 166 at [18]); and

   f)     previous travel to Australia or other countries (see CB 166 at [20]);

   and made a decision that was open to it on the available evidence.

   22)   Accordingly, the First Respondent submits that the Tribunal's decision is lawful and free from jurisdictional error.

   Conclusion

   23) The Application does not identify any jurisdictional error, and should therefore be dismissed with an order that the Applicant pay the First Respondent's costs in the amount of $7,467 pursuant to rule 44.15(1) and Item 3 of Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001 (Cth), or such amount as may be fixed by the Court.

Consideration and disposition

1. On 30^th July 2018, the Applicants filed an Application to review a decision of the Administrative Appeals Tribunal dismissing an Application for a Student (Temporary) (Class TU) [a Sub-class 500] visa. 

2. Some two months or so later, on 17^th September 2018, as already noted, the Court made Orders by consent, which provided for a timetable for the filing of documents.  Those Orders also fixed a date for final hearing to take place on 15^th March 2019. 

3. The Consent Orders, as earlier observed, provided a further opportunity for the Applicants to (a) file any further material, (b) amend the Application (if the Applicants so wished), and (c) require, as part of any amendment, to provide the First Respondent with complete particulars of each ground of review relied upon.  The Consent Orders also provided for an outline of submissions to be provided at least 14 days prior to the hearing.  As also previously observed, none of these things happened; the Applicants filed nothing.

4. The Minister’s lawyer informed the Court today that these Orders made by consent were explained to the Applicant on the day that they were made on 17^th September 2018. 

5. Unfortunately, not only has nothing has been filed by the Applicants in accordance with those Orders, there has been no explanation given as to why nothing has been filed, or why there are no details regarding each Ground of Review.  I acknowledge that, during the hearing, the Applicant said that she had sought advice from her migration agent and some others, who were not identified.  She said, using my words, that she did not receive satisfactory responses to assist her. 

6. Even during the hearing, there was no information provided regarding any details to support or otherwise to explain either the bases for the Applicants’ Grounds of Review or the lack of detail concerning them.

7. Two observations are necessary and apposite.  First, a foundational principle of Court procedure is that parties need to know with adequate detail the case, or the issues, to be determined.  Because there has been no information since the end of July 2018 up to and including the date of the hearing, neither the Court nor the First Respondent know what the Applicants contend in relation to the Tribunal’s decision, other than, it may be inferred, that they disagree with it.

8. Secondly, Courts are public resources available to everyone.[4]  What happens in one matter can and usually does have some impact on another.  The Court is required to be careful in the use of public resources, not least in the allocation of hearing time and to ensure, as far as possible, that any matter listed for hearing is ready to proceed.  The Orders made in September 2018 were designed to ensure that (a) the matter would be ready to proceed on the date allocated for hearing and (b) the Court, and the First Respondent, would be provided with sufficient detail to know precisely what the complaint(s) of the Applicants were that required determination.

   [4] Generally, see the comments by the High Court in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

1. Procedurally, the Applicants have had three opportunities to set out what the Grounds of Review are.  Those three opportunities are: (a) the original Application; (b) under the orders from September 2018 for any amended Application; and (c) to provide an Outline of Submissions pursuant to Order 5 of the Orders of September 2018.  The Applicants have provided no relevant details of their Grounds of Review.

2. In the light of these omissions, and contrary to the Court’s Orders and directions, the Applicants have provided no (a) Grounds of Review, (b) relevant particulars of their claims, and/or  (c) argument(s) in support of their Application via written submissions or otherwise.

3. In the absence of any particularised Ground of Review, the Court may reasonably infer also that the Application amounts to a generalised complaint about the Tribunal’s decision.  If this be so, such a course would amount to impermissible merits review.[5]

   [5] See Attorney-General (NSW) v Quin (1990) 170 CLR 1.

4. In the circumstances outlined, otherwise I agree with and accept the submissions of the First Respondent.

5. Accordingly, the Application must be dismissed with costs as per the Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.

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

Date: 8 July 2019