Kaur v Minister for Immigration

[2014] FCCA 1445

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1445

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

First Applicant: MANDEEP KAUR

Second Applicant: JASWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2882 of 2013

Judgment of: Judge Driver

Hearing date: 7 July 2014

Delivered at: Sydney

Delivered on: 7 July 2014

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms N Blake

Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2882 of 2013

MANDEEP KAUR

First Applicant

JASWINDER SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 25 October 2013.  The Tribunal affirmed decisions of a delegate of the Minister not to grant the applicant (Ms Kaur) and her partner (Mr Singh) temporary student visas.  Ms Kaur was the principal visa applicant and Mr Singh, the second visa applicant, was also an applicant in the proceedings in this Court.

2. Ms Kaur applied to the Minister’s Department for the visas on 9 March 2013. The Minister’s delegate refused to grant the visas on 28 May 2013. The delegate refused to grant the visas on the basis that Ms Kaur was not a genuine applicant for entry and stay as a student because she did not satisfy the requirements of clause 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicants sought review before the Tribunal.

3. The Tribunal was not able to make a favourable decision on the papers and invited the applicants to a hearing.  Ms Kaur appeared before the Tribunal on 24 October 2013 to give evidence and present arguments.

4. As has been the case at the hearing today, the hearing before the Tribunal was conducted partly in English and partly in the Punjabi language through an interpreter.

5. The Tribunal, like the delegate, dealt with clause 572.223 of Schedule 2 to the Regulations. Relevantly, that clause states that the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, being satisfied that the applicant intends genuinely to stay in Australia temporarily.

6. The Tribunal was not satisfied that Ms Kaur was a genuine applicant for entry and stay as a student because it formed the view that she intended to stay in Australia permanently.  Ms Kaur conceded to the Tribunal that when she first came to Australia as a student in 2008 to study cookery, she hoped to find ongoing employment in Australia.  At the time of the Tribunal’s decision, she had been in Australia five years.  She had looked for work in Australia in the cookery field but without success.

7. Ms Kaur’s studies were interrupted for a time because of a pregnancy.  Ms Kaur’s expressed intention at the time of the Tribunal decision was to pursue alternative studies in hairdressing with a view of a future in that field in India.  The Tribunal found a lack of credibility in that expressed intention.

8. The Tribunal took into account Ms Kaur’s evidence concerning whether her relatives had ever owned a business in India.  The Tribunal also took into account Ms Kaur’s concession about her intention when she first came to Australia and the length of time she had been here.

9. These proceedings began with the show cause application filed on 21 November 2013.  Ms Kaur continues to rely upon that application.  There are two grounds in the application:

   1. I believe that DIBP and MRT made determination based on their individual opinions or interpretations officers/delegates rather than following the legal criteria for the grant of the visa (Please see attached a detailed cover letter)

   2. I believe that DIBP and MRT made determination based on their individual opinions or interpretations of officer/delegates rather than following the legal criteria for the grant of the visa (Please see attached a detailed cover letter) (errors in original)

10. In her application Ms Kaur also invites the Court to pay attention to a typewritten letter attached to the application.  In that letter, Ms Kaur explains her intentions concerning her future employment in India.  She takes issue with the merits of the Tribunal decision.  As I explained to her, those merits are beyond the scope of the proceedings in this Court.

11. The grounds of review as expressed do not point, obviously, to any jurisdictional error.  They might suggest a contention of bias but there is no evidence to support such a contention.   They might suggest some constructive failure of jurisdiction but, as I explained to Ms Kaur, the Tribunal decision discloses that the Tribunal considered the material before it and its adverse credibility finding, while not generous in the face of Ms Kaur’s honest concessions to the Tribunal, was open to the Tribunal on the material before it.

12. Ms Kaur explained that she is currently the holder of a bridging visa which permits her to study.  She is apparently partway through a hairdressing course which will conclude on 27 April 2015.  She seeks the opportunity to complete that course with the expressed intention of returning to India thereafter.

13. There are, as I explained to her, options available to her to pursue a more favourable outcome with the Minister’s Department and with the Minister.  Those are matters beyond the scope of this proceeding.

14. I will observe, however, that I found Ms Kaur to be a frank and honest person.  I have no reason to disbelieve her expressed intention to depart Australia after she has completed her current course of study.  It would be a pity if she is denied that opportunity in circumstances where she is not a burden on the Australian community.

15. Ms Kaur has been unable to establish an arguable case of jurisdictional error by the Tribunal. Accordingly, I will dismiss the application pursuant to rule 44.121(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

16. In consequence of the dismissal of the application, the Minister seeks an order for costs.  Ms Kaur did not wish to be heard on costs.  The Minister seeks costs in accordance with the Court scale. 

17. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  15 July 2014