Kaur v Minister for Home Affairs & Anor
[2019] FCCA 1372
•23 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1372 |
| Catchwords: MIGRATION – Student visa – whether applicant genuine temporary entrant – Direction No 53 – whether mandatory considerations – whether considerations relevant to the application on review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss 65, 338, 474, 476, 499 Migration Regulations 1994 (Cth), Sch 2 cl 572.223 Ministerial Direction No 53 |
| Cases cited: Applicant WAEE v Minister for immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Bala v Minister for Immigration and Border Protection [2019] FCA 600 Ghimire v Minister for Immigration and Border Protection [2014] FCA 899 He v Minister for Immigration and Border Protection (2017) 255 FCR 41 Hossain v Minister for Immigration and Border Protection (2018) 82 ALJR 780 Khan v Minister for Immigration and Border Protection [2019] FCCA 565 Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Norbis v Norbis (1986) 161 CLR 513 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Singh v Minister for Immigration and Border Protection [2018] FCCA 3423 Singh v Minister for Immigration and Border Protection [2019] FCA 428 Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 |
| Applicant: | NAVNEET KAUR |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 397 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 16 May 2019 |
| Date of Last Submission: | 16 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Mosley |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application dated 16 February 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 397 of 2018
| NAVNEET KAUR |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 16 February 2018, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 5 February 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant her a Student (Temporary) (Class TU) visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
Background
The applicant, an Indian citizen aged 37 years, first came to Australia on 27 October 2008 as the holder of a Student (Temporary) (Class TU) (subclass 573) visa which was valid until 28 March 2011. Thereafter, the applicant has held either a Student, or an associated bridging, visa.
On 9 September 2015, the applicant applied for the visa.
On 23 June 2016, a delegate of the Minister refused to grant the visa, as she was not satisfied that the applicant complied with a criterion for the grant of the visa; namely, that she intended genuinely to stay in Australia temporarily, being a criterion prescribed by cl 572.223(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 29 June 2016, the applicant applied to the Tribunal for a review of the delegate’s decision.
On 15 January 2018, the applicant was invited by the Tribunal to attend a hearing on 1 February 2018. The invitation provided the applicant with a copy of a Direction of the Minister (Direction No. 53) entitled “Assessing the genuine temporary entrant criterion for Student visa applications.” The applicant was invited to provide a written statement addressing the issue of whether the applicant was a genuine temporary entrant by reference to the Direction.
The applicant attended the hearing on 1 February 2018 and was represented by her migration agent.
On 5 February 2018, the Tribunal affirmed the decision of the delegate not to grant the applicant a Student visa. The Tribunal provided a statement of reasons for its decision (Reasons).
In reaching its decision, the Tribunal set out the relevant background, summarised the delegate's decision and outlined the relevant requirements of cl 572.223 and the Direction: [1]-[2]; [3]; [9]-[10]. In the course of the hearing, the Tribunal member took the applicant through the key criteria in the Direction and the primary reason for the delegate’s refusal: [11]. The Tribunal referred to the applicant’s current enrolment and noted that she had not undertaken any studies at a higher level of education, which her initial visa had permitted: [12]-[13].
The Tribunal detailed the applicant’s circumstances and her future career objectives, noting she had left Australia for only 50 days since her arrival in 2008: [14]-[16]. It expressed concern that the applicant’s only employment since leaving school in 2000 had been as a part-time kitchen hand/cleaner, and found that she was unable to provide a plausible response as to why she had not sought part-time employment in hospitality despite holding practical qualifications in cookery: [17]. Contextually, the Tribunal noted the applicant’s evidence that her passion was in hospitality: [16].
The Tribunal noted that the applicant had no reason which precluded her return to India: [18]. It referred to the applicant’s present employment and summarised the various Certificate and Diploma courses that she had undertaken in Australia; observing that her current enrolment to study in hospitality was unrelated to her earlier studies in hairdressing, business, human resources management and marketing. The Tribunal questioned the value of her current enrolment: [19]-[22].
The Tribunal concluded:
I have had regard to the applicant's explanations and evidence but I find that the facts of the applicant's concerning immigration history (with 50 days absent from Australia in more than 9 years), the significant changes of courses which have been at the low cost level, her inability to explain her very different claims of future careers, and her potential circumstances in Australia indicates that the student visa program is being used in the case of the applicant primarily to maintain residence in Australia. I have considered the applicant's circumstances in her home country, and her relative circumstances in Australia, and when I consider these against the above concerns and findings, I give these factors less weight in establishing her claim that she will return to India at the completion of her current period of study.
Given the extended period of time the applicant has been in Australia and the significant divergence in the courses of study undertaken, together with a preoccupation with unrelated low cost courses, the Tribunal is not satisfied that the applicant is a genuine temporary entrant and that the true motivation is to secure residency in Australia.
Having considered the applicant's circumstances, immigration history, and other matters it considers relevant, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and found that she did not meet the criteria in c1 572.223(1)(a): [23]-[26].
Procedural history
On 16 February 2018, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit to which she exhibited a copy of the Reasons, but adducing no further evidence in support of the application for judicial review.
By a Response filed on 7 March 2018, the Minister opposed the application on the stated basis that it failed to establish any jurisdictional error in the Tribunal’s decision.
On 12 December 2018, orders were made, by consent, listing the matter for a show cause hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions; however, those opportunities were not taken.
On 23 April 2019, consent orders were made vacating the show cause hearing and listing the matter for final hearing on 16 May 2019.
On 3 May 2019, the Minister filed submissions that were responsive to the grounds appearing in the application.
Applicable principles
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Act, s 476(2).
Under the Act, the latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of the particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[4]
[4]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Relevantly, a criteria for the grant of the visa prescribed by cl 572.223(1)(a) required the decision-maker to be satisfied that the applicant intended genuinely to stay in Australia temporarily having regard to the matters enumerated in par (i)-(iv) of that regulation.
In Sch 2 of the Regulations, cl 572.223(1) relevantly states:
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). . . ; and
(iv)any other relevant matter;
(b) . . .
By s 499(2A) of the Act, where the Minister issues a direction to a person having functions or powers under the Act, respecting the performance of those functions or the exercise of those powers, the person shall comply with such a direction. In the present case, the Minister accepted that Direction No 53 was a direction to which s 499(2A) applied.
Consideration
As the applicant was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s Reasons and her application for judicial review.
At the outset, I note that to the extent the application also seeks review of the delegate's decision, the court has no jurisdiction to do so.[5]
[5] Act, ss 338(2), 476(2)(a) and 476(4).
The application for review contained three grounds, each of which was unparticularised and not explained by any evidence or written submissions. I examine them in turn.
Ground 1 – cost of study
Ground 1 reads:
Tribunal member has erred in making decision as cost and duration of the pre studied course could not be considered as non genuine student.
In weighing up whether the applicant satisfied the genuine temporary entrant criterion, the cost and duration of prior courses undertaken by the applicant was a matter considered by the Tribunal: [23]-[24].
Further, Direction 53 expressly provides that in considering an applicant’s immigration history, the Tribunal was required to consider:
. . . the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses . . . (emphasis added)
Contrary to the applicant’s submission, the Tribunal correctly assessed the application against the criteria in Part 572 of Sch 2 to the Regulations.
Ground 1 is rejected.
Ground 2 – earlier study
Ground 2 reads:
Tribunal member has erred in making decision as pre studied courses are related and these courses are essential components to run business, Moreover units studied in pre courses can be exempted in current course.
As the Tribunal found, since arrival in Australia in 2008 the applicant had completed various certificate and diploma courses in hairdressing, salon management, human resources management and in marketing. Since the delegate’s decision in June 2016, the applicant had completed a certificate in commercial cookery and was, at the time of the Tribunal hearing, undertaking an advanced diploma in hospitality management.
The applicant’s agent urged the Tribunal to enable the applicant to complete the current diploma and gain skills before leaving Australia.
The applicant had been unable to provide a plausible response to the Tribunal as to why her only employment since 2000 had been as a part-time kitchen-hand/cleaner, and why she had not sought part-time work in hospitality if this was her passion, even though she held practical qualifications in cookery. The Tribunal rejected the applicant’s submission that world economic conditions had led the applicant to abandon a career in hairdressing and her shift to hospitality. The Tribunal was not satisfied with the applicant’s explanation as to the significant divergence in the courses of study undertaken or her different claims as to her future career. The Tribunal did not accept the past courses were related. Those conclusions were open.
As to the running of a business, the Tribunal found that whilst the applicant’s stated career objective was to work in the international hospitality industry and set up her own business in India, she had not made any job applications or developed any business plan to establish her own business in India.
As to the applicant being exempted from undertaking units in her current course due to undertaking earlier courses, there was no material before the Tribunal to that effect.
I accept the Minister’s submission that Ground 2 rises no higher than a request for impermissible merits review.[6]
[6] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Ground 2 is rejected.
Ground 3 – career changes
Ground 3 reads:
Tribunal member has erred in making decision as career changes could not be considered as non genuine student.
The Tribunal considered the applicant’s claimed future career objective in the context of the courses she had previously undertaken and was currently studying. The courses undertaken since the delegate’s decision were in a field quite unrelated to those prior courses.
The Tribunal considered the applicant’s stated reasons for her change in her career objective from hairdressing to hospitality. Each of these were matters for the Tribunal to weigh in making its assessment.
Direction 53 required the Tribunal to consider the value of the course to the applicant’s future.[7] It did so.
[7] Direction 53, paras 7 and 12.
Ground 3 is rejected.
Direction 53
Direction 53 is entitled Assessing the genuine temporary entrant criterion for Student visa applications and is arranged in two parts.
Part 1, Preliminary, addresses a series of subjects and states that the Direction “provides guidance to decision makers on the factors that should be considered in weighing up: the applicant’s circumstances; the applicant’s immigration history, the intentions of a parent, legal guardian or spouse of a minor applicant, and any other relevant matter to determine whether the applicant genuinely intends to stay in Australia temporarily”. In Part 1, decision makers are directed to take a balanced approach:
. . . between the need to make a timely decision on a Student visa application and the need to identify those applicants who, at the time of decision, do not genuinely intend to stay in Australia temporarily.
Part 2, Directions, is arranged in 16 paragraphs. Paragraphs 1-5 are entitled Assessing the genuine temporary entrant criterion. As the text of par 1 makes clear, the factors in Part 2 are not to be employed as a checklist but are intended to guide decision makers to weigh up the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. By par 2 decision makers are directed to assess whether or not, on balance, the genuine temporary entrant criterion is satisfied and to do so by:
a)considering the applicant against all factors specified in this Direction; and
b)taking into account any other relevant information provided by the applicant (or information otherwise available to the decision maker).
Direction 53 requires that a decision maker must refuse a Student visa application if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia: cf Direction 53, Part 2, par 5; Act, s 65(1)(b).
The remainder of Part 2 is arranged as follows:
a)the applicant’s circumstances:
i)generally: pars 6-8;
ii)in his or her home country: pars 9-11;
iii)the applicant's potential circumstances in Australia: par 11;
iv)the value of the course to the applicant’s future: par 12;
b)the Applicant’s immigration history: par 13-14;
c)if the Applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant: par 15; and
d)any other relevant matters: par 16.
A distinguishing feature of the drafting of Direction 53 is that while Part 1 and Part 2 (par 5) make clear that the factors which are addressed by the Direction are not to be employed as a checklist and are intended to serve as a guide, the text of pars 6, 9, 11, 12, 14, 15 and 16 state that the decision maker must have regard to the factors which they address. On one view the matters addressed by pars 6, 9, 11, 12, 14, 15 and 16 should be read subject to the intention expressed in par 5 that those matters not be employed as a checklist but that they serve as a guide.
In his role as model litigant, the Minister drew attention to a series of decisions which have considered whether the requirements in Direction 53 should be construed as being mandatory provisions that an administrative decision-maker must take into account when assessing a visa application under cl 572.223, or whether they are permissive.[8]
[8]See Ghimire v Minister for Immigration and Border Protection [2014] FCA 899, [3] (Gilmour J); Singh v Minister for Immigration and Border Protection [2018] FCCA 3423 (Riley J); Singh v Minister for Immigration and Border Protection [2019] FCA 428, [24] (Bromberg J); Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051, [23] (Perry J); Khan v Minister for Immigration and Border Protection [2019] FCCA 565, [35], [79] (BarnesJ); Bala v Minister for Immigration and Border Protection [2019] FCA 600 (Anastassiou J).
The use of guidelines in the exercise of statutory discretionary powers is not uncommon.[9]The trend of reasoning in the authorities[10] respecting Direction 53 and to which my attention was drawn confirms that the use of those guidelines requires that they be addressed insofar as they are relevant to the particular facts of the instant application. By extension, those guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.
[9] CfNorbis v Norbis (1986) 161 CLR 513.
[10] With the exception of Singh, [2018] FCCA 3423.
In the present case it is clear that the Tribunal recognised the relevance of, and discussed, Direction 53 with the applicant; having supplied her with a copy of that Direction in advance of the hearing.
I accept the Minister’s submissions that the Tribunal expressly considered the matter addressed by pars 6, 7, 8, 9(a), 9(b), 9(c), 11(a), 11(b), 11(c), 11(e), 12(a), 12(b), 14(a)(i), 14(b)(iii),
While the Minister acknowledged that the Reasons do not expressly address the matter in:
a)pars 9(d)-9(e), those matters concerns military service and political unrest, neither of which had been raised by the applicant or otherwise appeared relevant;
b)par 11(d), this factor related to the question of any relationship between primary and secondary applicants (which there were not);
c)par 12(c), this factor concerned the question of remuneration which the applicant might have expected to receive from pursuing her chosen course of study once qualified either in her home country or another country. As the applicant’s evidence was that she had not applied for any employment overseas, the question did not arise;
d)pars 14(a)(ii), 14(b)(i)-(ii) and (iv), these factors concerned the earlier refusal of a visa, compliance with visa conditions, travel laws and the cancellation of a visa; none of which were relevant.
To adapt the reasoning of Bromberg J in Singh v Minister for Immigration and Border Protection[11] and Perry J in Takhi v Minister for Immigration, Citizenship and Multicultural Affairs,[12] it is readily apparent that the Tribunal had regard to the matters in pars 6-16 of Direction 53 insofar as those specific factors were applicable to her case.
[11] [2019] FCA 428, [24].
[12] [2018] FCA 2053, [23].
I am satisfied that the Tribunal gave proper, genuine and realistic consideration to each of the factors in Direction 53 and engaged in an active intellectual process in doing so in the context of the matters to which it was required to have regard by cl 572.223.[13]
[13]He v Minister for Immigration and Border Protection (2017) 255 FCR 41, [52], [79], [82].
I am further satisfied that the Tribunal considered[14] each of the matters identified by Direction 53 insofar as they were material, and to the extent they are not expressly referred to, I am prepared to infer that they were considered and properly disregarded as irrelevant.
[14]Ibid; see also Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, [34]; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248.
In particular, it was not necessary for the Tribunal to refer to every piece of material that was considered by it.[15]
[15]Applicant WAEE v Minister for immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]; He, supra (2017) 255 FCR 41, [83].
A fair reading of the Reasons involves acceptance and an understanding of the case that was being addressed by the Tribunal.[16] To the extent that any of those factors was erroneously overlooked by the Tribunal, I would not have considered such error as being jurisdictional in the circumstances of this case.[17]
[16]Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, [14] (Gleeson CJ, Hayne and Heydon JJ).
[17]Hossain v Minister for Immigration and Border Protection (2018) 82 ALJR 780 at 788 [30] (Kiefel CJ, Gageler and Keane JJ), citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J); see also Lansen v Minister for Environment and Heritage (2008) 174 FCR 14, [90].
Conclusion
For the reasons above, I have concluded that the application must be dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 23 May 2019
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